To Ask or Not to Ask, That is the Question

Prospective Employers in Queensland can now ask Job Applicants to disclose pre-existing injuries or Medical Conditions. If a prospective employer wishes to do this the request to the job applicant must be in writing, must describe accurately the duties of the job and must notify the job applicant that if they knowingly give a false or misleading reply to the questions then they will not be able to claim compensation or damages if something occurs at work that aggravates the pre-existing injury or medical condition. It seems likely that the question of what is pre-existing, and what is knowingly, as well as whether the job duties were accurately described could all be fertile grounds for dispute.

Just because a prospective employer can ask these questions is it wise to do so? If an employer knows that an employee has a pre-existing injury or medical condition that employer is likely to have a higher duty of care towards that employee. Prospective Employers are also still required to ensure that during their recruitment process they do not make decisions about hiring staff which breach the various provisions of the Fair Work Act (Cth), the Disability Discrimination Act (Cth) and the Anti Discrimination Act (Qld). The process of recruiting staff remains one that employers should undertake with great care.

Tweeting about Employment Law

Social media and employment law have again been the focus of litigation in Australia. Michaela Banerji was a public servant in the Immigration Department. Ms. Banerji also operated a Twitter account, anonymously, upon which she posted comments, many of which were critical of Government Policy as well as individual Politicians. In proceedings before the Federal Circuit Court of Australia, Ms. Banerji, who was subject to disciplinary proceedings by her employer, argued that her comments on Twitter were protected by an implied right of freedom of political expression. His Honour Judge Neville rejected that argument and in finding that there is no unfettered right to freedom of political expression Judge Neville also commented that even if Ms. Banjeri was correct and such a right does exist that it does not provide a licence to breach an employment contract. The terms and conditions of Ms. Banerji’s contract of employment did expressly prohibit the sort of comments on Twitter that she had been posting.

Amongst other things this case very neatly illustrates the importance of employers maintaining an up to date policy in relation to the use of social media by their employees and for employees being aware of and conscious of the terms of such policies with regards to any posting they might make on the various social media platforms.

Electronic Communication - have you kept the appropriate records

The use of Email in particular has become a common practice for parties to a contract to communicate. Just because you have saved the email that you have sent, if it comes to litigation, have you kept the necessary records?

In the Electronic Transactions Act (Qld) 2001 it provides that you must keep, in electronic form –

·The origin of the electronic communications;

·The destination of the electronic communication;

·When the electronic communication was sent;

·When the electronic communication was received.

We find that people tend to dispute whether they have received a certain email, and when they received it. To make it easy for people to determine this, there are a few rules set out in the Electronic Transactions Act 2001. We have briefly summarised these for you. These rules will apply unless your contract says something different.

·The time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee (that is the recipient) at an electronic address designated by the addressee; or

·The time of receipt of the electronic communication at another electronic address of the addressee is the time when both -

oThe electronic communication has become capable of being retrieved by the addressee at that address and the addressee has become aware that the electronic communication has been sent to that address.

For more information refer to the Electronic Transactions Act (Qld) 2001 or speak to us.

Unfair Dismissal

A recent decision of the Fair Work Commission in a case involving Australia Post, has thrown up a decision which at first glance is something of a surprise. Three employees of Australia Post were dismissed from their employment for using the Australia Post email system to send and receive mails which included material considered to be pornographic. None of the three employees denied that this is what they had done. Australia Post dismissed the three employees who then brought the case to the Fair Work Commission. The Fair Work Commission decided that dismissal of the three employees was harsh and that the circumstances did not justify dismissal.

The main problem for Australia Post was that whilst they had a policy against the use of their computer systems to send and receive pornographic images the Fair Work Commission adopted the view that over a number of years that policy had not been monitored and enforced. The Fair Work Commission accepted that there was a culture of acceptance of this behaviour amongst Australia Post Managerial Staff, and that the employees had not been given sufficient prior warning that the consequence of breaching the Australia Post Policy could be dismissal from employment.

The Fair Work Commission stressed that their decision should not be taken as authorising employees to use the email systems of their employers to transmit pornography or other unacceptable material. This decision from the Fair Work Commission highlights and reinforces the absolute importance of  employers following proper procedures before they make a decision to terminate the employment of their employees, even in circumstances where the behaviours of the employees, on the face of it, seems to justify that dismissal.

Happy Cabby Drivers

The Decision by the Federal Circuit Court in a matter brought by the Fair Work Ombudsman in relation to a company called Happy Cabby Pty Ltd illustrates very clearly the importance of ensuring accurate record keeping in relation to employees. The importance of ensuring that an employee is categorised and paid as an employee and not treated as a contractor if they are not actually engaged as a contractor was central to this case.

The company was found to have incorrectly classified bus drivers as Independent Contractors rather than as employees, to have breached some of the provisions of the modern award system and also failed to maintain proper records. This resulted in fines of more than $286,000.00, including in the region of a $48,000.00 fine for one of the company directors in his personal capacity. The Cabby drivers were also awarded some $26,000.00 in respect of under paid wages.

This is a tricky area as there is not one simple rule which applies when determining whether staff are employees or Contractors and it is vital to ensure that you receive proper advice.

Employment Contracts

The Supreme Court of NSW has provided a timely reminder of the importance of paying attention to the terms of a contract of Employment for Employee’s who wish to change from one Employer to another or for Employer’s who are contemplating taking on new staff. In the case of HRX Pty Ltd v Scott the Court considered the consequences when Mr Scott resigned from his employment with HRX Pty Ltd and commenced employment with a new employer, Talent 2 Pty Ltd. The terms of the employment contract between Mr Scott and HRX Pty Ltd included provisions which prohibited Mr Scott from taking employment with a competitor business for a particular period of time after he stopped working for HRX Pty Ltd.

As a result of the legal proceedings brought in the Supreme Court of NSW by HRX Pty Ltd, Mr Scott was ordered not to solicit work from clients of HRX Pty Ltd and not to engage in employment in competition with HRX Pty Ltd for a period of 12 months. In addition, because Talent 2 Pty Ltd had initially helped Mr Scott to try and defend the proceedings from HRX Pty Ltd and had paid his legal costs for his defence, Talent 2 Pty Ltd were ordered to pay a significant amount of the costs incurred in bringing the proceedings by HRX Pty Ltd.  This case contains a very clear lesson that Employees and Employers need to take great care when they move from one job to another or when they recruit new staff, especially from their local competitors.

In regards to advice in relation to employment matters contact Mr Ian Field or Mark Game.