qld cpd seminar: ethics, professional skills & practice management

CONTINUING PROFESSIONAL DEVELOPMENT

SEMINAR

Core Skills for Union Lawyers

Thursday 31 October 2013

Maurice Blackburn acknowledges the traditional owners of the land on which we gather, and we pay our respects to elders

past and present.

WELCOME

Part 1 - Bob Reed: Ethics for Union Lawyers

Part 2 - Cate Hartigan: Professional Skills

Morning tea break

Part 3 - Giri Sivaraman: Practice Management

OUR HISTORY

Founded in 1919

Maurice Blackburn – distinguished lawyer and Labor member of Parliament.

Dedicated to worker’s rights.

Defence of underprivileged groups.

Determined to make a genuine difference for people who need help

Fight hard for best possible outcome.

OUR SERVICES Employment & Industrial Law

Workers Compensation & Work Injuries

Road Accident Injuries

Medical Negligence

Asbestos & Dust Diseases

Superannuation & Disability Insurance

Public Liability

Faulty Products

Comcare

Will Disputes

Class Actions

OUR OFFICES

Bob Reed, Barrister

PART 1: ETHICS FOR UNION

LAWYERS

ANY QUESTIONS?

Bob Reed

Barrister-at-law

07 3236 5844

[email protected]

Cate Hartigan, BarristerMurray Gleeson Chambers

PART 2: PROFESSIONAL

SKILLS

UNFAIR DISMISSALS BENCHBOOK

• produced by the Fair Work Commission• content should be used as a guide only• do not rely on the Benchbook as authority at a

hearing!

Naming Conventions

Page 10 of 181

• Party names- Applicant (ie the employee who lodged the

application) - Respondent (the former employer)

• Who are the parties- Applicant is the individual who was dismissed.- Respondent – be sure to commence proceeding

against employing entity- Look at contract of employment, industrial instrument

or ATO documents to identify the proper respondent.

What is an Unfair Dismissal?

Page 14 of 181

• objects of unfair dismissal provisions (s 381 Fair Work Act)

• definition of unfair dismissal (s 385 Fair Work Act)• “fair go all round”.

Making an Application

page 15 of 181

• Application to be lodged within 21 days after the day the dismissal takes effect

• calculation of 21 days• multiple actions precluded

Discontinuing an Application

Page 16 of 181

• Discontinuing – s 588 Fair Work Act• Discontinuance filed by mistake or under duress• Naraydn v MW Engineers Pty Ltd [2003] FWCFB 2538

(unreported Ross J, Sams DP, Ball C, 29 April 2013) [14]

When is a person protected from unfair dismissal?

Page 18 of 181

• An employee of a national system employer who has been dismissed is eligible, to make an application for unfair dismissal remedy if:- they have completed the minimum period of

employment; and- they earn less than the high income threshold

(currently $129,300 pa); or- their employment is covered by a modern award

or enterprise agreement.

People excluded from National Unfair Dismissal Law

Page 21 of 181

Independent Contractors

Labour Hire Workers

Vocational Placements

Volunteers

Public Sector employees (non-national system employees)

What is a Constitutional Corporation?

Page 30 of 181

• S 12 Fair Work Act definition “a corporation to which paragraph 51(xx) of the Constitution applies:- Trading or financial corporation

What does “dismissed” mean?

Page 34 of 181

• “dismissed” s 386 Fair Work Act- A person’s employment has been terminated at

the employer’s initiative; or- A person was forced to resign because of the

conduct or course of conduct engaged in by the employer.

Terminated at the Employer’s Initiative

Page 35 of 181

The action of the employer must cause the termination (you can use the “but for” test)Repudiation – a repudiation of the contract does not bring the contract to an automatic end but gives the affected party the right to terminate the contract: Visscher v Giudice(2009) 239 CLR 361 [81].

Forced Resignation- constructive dismissal- Mohazab v Dick Smith Electronics (No. 2) (1995) 62 IR 200, 206- heat of the moment resignation

Demotion- employment continues but involves a significant reduction in duties

and/or remuneration.- new contract of employment.- check industrial instrument doesn’t allow for demotion.

Employment limited to the duration of a training arrangement orcontracts for specific time periods/tasks/specified season

High income threshold

High income threshold- S 382 Fair Work Act threshold – currently

$129,500 (adjusted annually on 1 July)What are earnings?

- S 332 Fair Work Act- wages- amounts dealt with on the employee’s behalf or as

the employee directs; and- Agreed money value of non-monetary benefits

• Non-monetary earnings superannuation – not included in an employee’s

earnings;- Any super paid in excess of compulsory contributions

may be included in the employee’s earnings; Vehicles- value of private use of vehicle can be included in

earnings;- application of formula by the Commission- fringe benefit tax – depends on whether the employee

directs how the amount is to be dealt with

Modern Award Coverage

Principal Purpose Test- the test is applied to the work performed at the time of the

dismissal – ie the principle purpose for which the employee was employed

Interpreting coverage clauses- words of coverage clause to be given ordinary general

meaning- courts should attempt to give terms a meaning that is

consistent with the intentions of the parties.

Application of an Enterprise Agreement

Page 51 of 181

Covers- an agreement covers if it is expressed to do so- coverage clause ordinarily specified the parties

Applies- the agreement is in operation- the agreement covers the employee; and- no provision of the FWA has the effect that the agreement does not apply

Effect of an Enterprise Agreement applying- s 51 FWA- confers entitlements and imposes obligations

Individual Agreements- reference to “enterprise agreement” includes an agreement based

transitional instrument

What is the minimum period of employment?

S 383 FWA- 6 months; or- 1 year where employer a small company

• Calculation of minimum period- a month means a calendar month- commences on employee’s first day at work

• Meaning of “continuous service”- not defined in FWA- period of unbroken service with an employer by an employee- break in service – resignation, dismissal or transfer of

employment

What is a transfer of employment?

Page 61 of 181

• Service with one employer will count as service with a second employer in different circumstances

• Are the employers associated entities?

Periods of service as a casual employee

Page 63 of 181

- does not count towards the minimum employment period unless:1. the casual employee was employed on a regular and

systemic basis; and2. the casual employee had a reasonable expectation of

ongoing employment over a regular and systemic basis.

What is a genuine redundancy?

• S 389 FWA• Genuine redundancy when:

- the employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

- the employer has not complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about redundancy.

The small business fair dismissal code

Page 79 – 82 of 181

When does a dismissal take effect?

Page 82 of 181

• a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.

• communication of dismissal:- can be oral- trend towards dismissal by text being unfair

• late lodgement of application- exceptional circumstances;- representative error - prejudice- merits

Power to dismiss applications

Page 90 of 181

• S 399A and 587 FWA• general powers of the Commissioner

- S 587(1)- application

- not made in accordance with the FWA; or- is frivolous or vexatious; or- has no reasonable prospects of success

- effect of settlement agreements;- frivolous of vexatious for having no reasonable prospect of

success- S 399A

What makes a dismissal unfair?

What is harsh, unjust or unreasonable?

What does “must take into account” mean?• factors are mandatory considerations

Facts acquired after dismissal• facts an employer unaware of at time of dismissal may be

taken into account

Valid reason relating to capacity or conduct

Page 100 of 181

Valid reason• sound, defensible and well foundedCapacity• employee’s ability to do the job required• protected due to temporary absence for illness or injuryConduct• did conduct actually occur (BOP)• serious misconduct – Regulation 1.07• out of hours conduct• fighting or assault• safety and welcome of other employees

Notification of reason for dismissal

Page 111 of 181

• S 387(b) FWA• Notification to be given to employee:

- before the decision to terminate is made- in explicit terms; and- in plain and clear terms

Opportunity to Respond

Page 114 of 181

• S 387(c) FWA• opportunity to respond must be given before the decision to

terminate is made• need not be a formal process

Unreasonable Refusal of a support person

Page 117 of 181

• S 387(a) FWA• no positive obligation to offer opportunity for a support

person• relevant is there was an unreasonable refusal

Warnings – unsatisfactory performance

When are warnings relevant?• timing of the warningHow should a warning be given?• must identify aspect that needs to be improved• must make clear employment is at risk of no improvement

Other relevant matters

Page 124 of 181

• see section 387(h) of the FWA• differential treatment• long unblemished work history• summary dismissal

Remedies

Reinstatement- what does an order for reinstatement mean?

- when is reinstatement not appropriate?

- re-appointed to their previous position

- appointed to another position no less favourable

- order to maintain continuity

- order to restore lost pay

• Compensations

- criteria for deciding amounts

- the effects of the order on the viability of the employers enterprise

- length of service

- calculation for compensation

- the Sprigg formula

- mitigation

- remuneration

Evidence

Page 157 of 181

• S 590 and s 591 FWA• commission has power to inform itself• not bound by the rules of evidence

Costs

Page 158 of 181

• ss 400A, 401, 402 and 611 FWAGeneral Rule: a party pays their own costs• Commission does have power to award costs in certain

circumstances

Appeals

Page 170 of 181

• S 400 FWA- lodged within 21 days- whether permission to appeal should be granted- whether there has been an error in the original decision

Practice Notes

• fair hearings PN 2/2013• unfair dismissal proceeding (draft practice note)

Giri Sivaraman, Principal

PART 3: PRACTICE

MANAGEMENT

Do as I say, not as I do: The Role of Policies in the Workplace

Practice Management 46

OVERVIEW

The role of workplace policies

The effect of a workplace policy

Vicarious liability of employers

– S793 of the Fair Work Act

– S106 of the Sex Discrimination Act 1984 (Cth)

What kind of policies should you have?

What happens if you don’t have a policy or don’t implement it

- Case study: Stutsel

- Case study: B, C and D


OVERVIEW (CONT.)

Elements of a good policy

When are company policies considered contractually binding?

- Case study: Riverwood

Contractual vs Aspirational policies

Case study: Nikolich

What if the policy is excluded from the contract

– Case study: Barker

The importance of proper workplace training

Fostering a workplace culture


THE ROLE OF WORKPLACE POLICIESThere are a number of reasons why an employer should put policies and procedures in

place, including:

ensuring compliance with legislative requirements. Examples:

– Sexual harassment legislation;

– Discrimination legislation; and

– Occupational health and safety legislation

promoting standards for workplace behaviour. Examples:

– regulating internet and email usage at work;

– prohibiting drug and alcohol usage at work;

prescribing employment conditions, entitlements and benefits.


THE EFFECT OF A WORKPLACE POLICY

In some circumstances, the requirement to comply with a workplace policy

can be considered to constitute a lawful and reasonable direction by an

employer.

An appropriate policy that is properly implemented will limit liability.


VICARIOUS LIABILITY OF EMPLOYERS: S793 OF THE FAIR WORK ACT

Section 793 of the Act provides that:

the conduct of an officer, employee or agent of a body corporate (where

within the scope of his/her actual or apparent authority) is taken to be the

conduct of the body corporate.


WHAT DOES S793 MEAN?

The effect of Section 793 of the Fair Work Act is that employers can, in certain

circumstances, be held liable for the actions of their officers, agents and

employees.

This means that an employer may be held vicarious liable for the wrongful

conduct of its officers, agents and employees where the conduct is performed

with the person’s actual or apparent authority.

That authority can be defined by reference to policies in the workplace

Workplace Bullying and Proposed Amendments to the Fair Work Act 2009 (Cth) 52

VICARIOUS LIABILITY CONT.

S106 SDA. Employer is vicariously liable for actions of employees unless it

can show reasonable steps to prevent harassment/discrimination.

Responsibility of employers for employees breaches will be determined by

reference to policies themselves and efforts made by employers to fully and

properly inform employees of policies and ramifications of terms (Cooper v

Western Area Local Health Network [2012] NSWADT 39.


WHAT KIND OF POLICIES SHOULD YOU HAVE?

Policies are a common tool for ensuring risk minimisation to the employer and

employees.

Discrimination and harassment

Grievances

IT

Social media


CASE STUDY: NOT HAVING A POLICY

LINFOX AUSTRALIA PTY LTD V STUTSEL [2012] FWAFB 7097

Stutsel was dismissed for having posted a number of negative comments about

his managers at Linfox on his Facebook page.

He brought an unfair dismissal application before the Fair Work Commission,

where the Commissioner was required to consider whether:

there was a valid reason for the dismissal; and

in all the circumstances, the dismissal was “harsh, unjust or unreasonable”.


LINFOX V STUTSEL (CONT.)

The Commissioner considered:

the special circumstances surrounding the employee and his termination;

the employee’s limited understanding as to the privacy of Facebook

communications;

the employee’s long and satisfactory employment record at Linfox; and

The failure of the employer to have a social media policy

and held that the dismissal was unfair in that it was harsh, unjust or

unreasonable.


CASE STUDY: NOT IMPLEMENTING A POLICY

B, C AND D V AUSTRALIA POST [2013] FWCFB 6191

Three employees were summarily dismissed for emailing pornography in

breach of the Australia Post IT policy.

The three men brought unfair dismissal applications before the Fair Work

Commission, arguing that their dismissal was either “harsh, unjust or

unreasonable”.


B, C AND D V AUST POST (CONT.)

The Full Bench Commission found that there had been a valid reason for the

dismissals:

the employees breached a reasonable policy that Australia Post considered

to be an important policy; and

the employees knew, in general terms, that they were in breach of the

policy.



[37] A prohibition on using an employer’s IT system to access, send or

receive and store pornography or other unacceptable material is a lawful,

rational and reasonable policy for an employer to implement for a number of

reasons that are not related to any moral offence at pornography. The main

reasons are:

Limiting legal liability to other employees, clients, customers or other third

parties, especially in relation to harassment. A reasonable employer will take

steps to suppress conduct that it knows may cause offence to others.



The employer is entitled to ensure that its resources, including its IT

resources, are devoted solely to work purposes (and such reasonable

personal use as it chooses to permit as owner or legal controller of its IT

infrastructure). An employer can be legitimately concerned to prevent the

diversion of its resources and the costs associated with such activity. Of

course, the monetary and time cost involved in sending an email is very

small. However, the wasting of work time by an employer accessing (‘surfing’)

such material may be significant.

Preventing reputational damage to the employer being identified to third

parties or the public as tolerating such material or such misconduct.

[38] It is the first of these reasons that arguably is the most important.


However, the Full Bench Commission considered the dismissals to be harsh,

and therefore, to be unfair.

Factors influencing the Commission were:

the absence of policy enforcement or warnings by the employer;

the three appellants’ substantial periods of satisfactory employment service

of 17 years, 13 years and 11 years respectively;

the three appellants’ good disciplinary records;

the culture at Australia Post in relation to inappropriate material; and

the harsh economic consequences for the appellants and their families.



ELEMENTS OF A GOOD POLICY

A good policy should:

establish the objective;

identify who is bound to observe the policy;

establish boundaries for workplace behaviour;

establish consequences for breach; and

be regularly updated in line with legislative change and

workplace/community culture.


WHEN ARE COMPANY POLICIES CONSIDERED CONTRACTUALLY BINDING?

Whilst employment contracts commonly refer to company guidelines, manuals

and codes, it is not always the case that these external documents form a part

of the employment contract terms.

The test from Toll (FGGT) Pty Ltd v Alphapharm Pty Ltd (2004) CLR 165 at

179:

Would the reasonable person, in the position of the other party, believe that the

person making the promise intended to be legally bound by it?


CASE STUDYRIVERWOOD INTERNATIONAL V MCCORMICK (2000) 177 ALR 193

In Riverwood, an employee agreed to “abide by all Company Policies and

Practices” in signing their employment contract.

The range of the Company policies and practices that the employee was

required to observe included those that were presently in place as well as

future policies and practices.

The Full Federal Court held that:

the express reference to the company’s policies and practices in the

employment contract gave the policies and practices a legal force; and

both the employee and the employer could insist upon performance of the

policies and practices in contract law.


RIVERWOOD (CONT.)

Although the employee was considered to be bound to observe future policies

and practices, it does not mean that employers can vary the policies and

procedures unilaterally.

As Justice North stated at [111]:

Any alteration or addition to the company policies and practices could only

achieve binding contractual effect if there was a separate agreement to such

alterations or additions, either by way of variation of the existing agreement or

by way of entering into a new agreement (emphasis added)


CONTRACTUAL VS ASPIRATIONAL POLICIES

Although a company policy or procedure is referred to in the employment

contract, it does not always mean that that these documents are contractually

binding upon the parties.

Whether the company policy or procedure and its terms is contractually binding

will depend on the language it uses.


ASPIRATIONAL POLICIES

Clauses are likely to be considered as being merely aspirational where the language

used is:

descriptive;

aspirational;

non-promissory;

informational;

encouraging; and

educational

Aspirational clauses may be contrasted with clauses that use more promissory

language.


CASE STUDY

Nikolich v Goldman Sachs [2006] FCA 784 and [2007] FCAFC 120

Nikolich was a financial advisor who claimed his supervisor’s bullying and

harassment breached the bullying and harassment policy at work.

He argued the claim under breach of contract, stating that the supervisor’s

conduct had breached the bullying and harassment policy which was legally

binding on his employer.


NIKOLICH (CONT.)

The question in Nikolich –

Whether the company policy document entitled “Working With Us”, which was

sent to the employee at the same time as the letter of appointment, formed a

part of the employee’s employment contract.

The Court held that the company policy on bullying and harassment did form a

part of the employment contract.


“LEGALLY BINDING”: FACTORS THE COURT CONSIDERS

In making its decision, the Court in Nikolich referred to a number of factors which indicated

that the company policy was contractually binding and not merely aspirational:

the language used was promissory (for example, by using the terms “comply” and

“abide”);

the language was obligatory (for example, by using the terms “duty” and “ensure”); and

the obligations were specifically stated rather than generally referred to.

Also relevant to the Court’s decision that the policy was contractually binding was the fact

that the employee was required to sign off to stipulate that they had read and understood

the policy.


WHAT IF THE POLICY IS EXCLUDED FROM THE CONTRACT?

Employers often have a ‘get out’ clause.

Do as I say but not as I do.

The contract states that policies do not form terms and conditions of the

contract.

The legal position on such a term has changed.

Also need to consider the cultural effect of such terms.


CASE STUDY

Commonwealth Bank of Australia v Barker [2013] FCAFC 83

Barker, a longstanding employee at the Commonwealth Bank, successfully argued that his employer had breached the implied term of mutual trust and confidence in his employment contract by failing to comply with its redeployment procedure in the event of a redundancy.

Important factors considered by the Full Federal Court included: Barker’s 27 years of service; the Bank’s considerable corporate size and its consequential capacity to

redeploy Barker; and the terms in the employment contract relating to the Bank’s redeployment

policy.


THE IMPORTANCE OF PROPER TRAINING

There is little utility in having ardent workplace policies where there is no

supportive workplace training to support, foster and maintain a work culture that

respects those policies.

What helps?

By implementing adequate policies and proper training into the workplace, the

risk of vicarious liability the employer is diminished in relation to OHS, sexual

harassment and discrimination claims by employees.


FOSTERING A WORKPLACE CULTURE

In order to foster a positive attitude and culture in the workplace:

The employer should commit to be bound by the same policies and

procedures which bind the employees.

An employer who agrees to be bound by its own policies and procedures

shows to its workforce their importance and value at work.


ANY QUESTIONS?

Giri Sivaraman

Principal – Employment and Industrial Law Section

02 8261 0931

[email protected]

mailto:[email protected]

Personal InjuryThis information is prepared for the purposes of the seminar conducted on 31 October 2013 only. The content of this paper is not legal advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the content of the foregoing but should take appropriate legal advice.

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