Employment law update for Employers

 In Workplace Law

When will an employee’s poor performance constitute misconduct? 

The Fair Work Commission has considered the above question in an unfair dismissal  claim brought by an employee with 8 years’ service, and who was dismissed after an audit of driver run sheets found 39 non-compliant run sheets were incorrectly signed off as ‘compliant’ by the employee.

Although the Commission found the employer had a valid reason for dismissal (the repeated failures to review run sheets in line with company policies), the dismissal was wrongly interpreted as ‘misconduct’ as opposed to ‘poor performance’. The employee’s failures to perform his duties were not willful or deliberate, but “in the nature of mistakes” and resulted from a “lack of due diligence”. The employee did not receive a warning regarding his performance being unsatisfactory prior to dismissal, nor the opportunity to improve. The dismissal was found to be harsh and unreasonable.

Steven Zirilli v StarTrack Express Pty Limited [2019] FWC 3557.

Employee unlawfully dismissed for ‘manifestation’ of mental disability and awarded $140,000 in damages

An employee of Western Union Solutions (Australia) Pty Ltd (WUBS) had been absent from work for approximately seven months, providing multiple medical certificates during his absence from the workplace which identified his condition as being ‘very significant work-related stress and depression’. The employee did not provide a return date. Two months later the employee was terminated for failure to advise on a return to work date, his lack of cooperation with the employer’s requests and WUBS’s resulting “concerns about [his] capacity to return to work”. The employee brought a claim alleging he was unlawfully dismissed due to his mental disability.  

The Court found that WUBS dismissed the employee because of a “manifestation” of his mental disability (that is, the employee’s “capacity” to perform work), Justice Flick concluded that WUBS dismissed the employee “because of” his mental disability for the purposes of section 351 of the Fair Work Act 2009 (Cth). Justice Flick ordered that the employee be compensated in the sum of $140,000 and ordered that WUBS pay a penalty of $20,000.

Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913

Sham contracting test case against Deliveroo

A Deliveroo worker has launched a sham contracting test case against the company claiming that they should have paid him as a casual employee rather than per delivery as an independent contractor. The Delivery worker has accused Deliveroo of engaging in sham contracting in breach of s 357 of the Fair Work Act 2009 (Cth) and maintains it should have paid him as a transport worker grade 1 under the Road Transport and Distribution Award.

The first court date to hear the matter is set for 8 October 2019.

Jeremy Rhind v Deliveroo Australia Pty Ltd v Deliveroo Australia & Anor

Another day, another underpayment of wages

Former MasterChef judge George Calombaris has provided an undertaking which, amongst other things, included a public apology, a contrition payment of $200,000 and the completion of several public speaking engagements to encourage the importance of workplace compliance. This was after MADE Establishment Pty Ltd admitted to multiple contraventions under the Fair Work Act 2009 (Cth) including underpaying its workers up to $7.83 million in wages. Various unions have since spoken out regarding the fine being ‘in-sufficient’ and ‘light’ in considering the quantum of the underpayments.

Prime Minister Scott Morrison has since spoken out and put employers on notice that those who exploit workers may soon face criminal penalties.

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