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.