Quick Tips by Workplace Discrimination Lawyers

Anti-discrimination laws in Australia prohibit discrimination based on the protected attributes. The protected attributes include a person’s sex, relationship status, parental status, age, race, disability, political belief, trade union membership, gender identity, sexuality, family responsibility, and pregnancy.

Discrimination can also be separated into direct discrimination and indirect discrimination.

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Direct Discrimination

Direct discrimination occurs when a business or a person within the business treats a person less favourably because of the protected attributes mentioned above.

A business refusing to hire pregnant women is an example of direct discrimination.

Indirect Discrimination

Alternatively, indirect discrimination occurs when a person or a business imposes terms which a person with the particular protected attribute cannot possibly comply with, and that which a higher percentage of people without the protected attribute can comply with, and the term is unreasonable.

An example of this would be if an employer requires its workers to wear a uniform which includes a cap purely for appearance reasons and not for hygiene or safety reasons. This is not direct discrimination, but it could be classified as indirect discrimination because it prevents people who have a religious or cultural belief from wearing a particular headdress. In that circumstance, for the business to not be seen as engaging in indirect discrimination, it must allow the opportunity for people to wear a religious or cultural headdress if they so choose.

Motives

It is also important to realise that the motive for treating another person less favourably is not relevant. This is because direct and indirect discrimination can be unintentional or unconscious, and the Commission will not look at the reasons why such behaviour was instituted.

Protection at Work

It is important to remember that the discrimination laws protect workers in Australia while they are at work, while they are applying for work, and while they are attending a work-related activity.

The protection protects both employees and contractors. It does not matter whether the employee is full-time, part-time, or casual – they are all protected. The anti-discrimination law also applies to work performed on a voluntary or unpaid basis, work performed by students conducting work experience, work under an apprenticeship training programme or anything similar.

Some Exceptions for Discrimination on the Basis of Age

There are certain situations where conduct which may be perceived as discrimination may be lawful.

The first common exception is payment of workers who are under 21 years of age. Modern awards, enterprise bargaining agreements, and other industrial instruments often specify a lower pay for workers under the age of 21. It is not age discrimination to pay these workers the lower rates set under these provisions.

It is also not unlawful to institute a compulsory retirement age in certain allowable circumstances. Compulsory retirement age applies to some occupations includingjudges, fire officers, police officers, directors of public companies, members of the Australian Defence Force and some members of the public service.

If a business is intending to institute compulsory retirement, it is important that they obtain legal advice on whether it is lawful. It is only lawful if there is a law in place that justifies compulsory retirement. If there is no such law, then compulsory retirement can amount to discrimination based on age.

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Labour- hire Arrangements. Who Is The True Employer Of Labour-Hire Workers – From The Perspective Of Unfair Dismissal Lawyers, Perth

Labour-hire refers to the process by which businesses employ workers in order toprovide a service to other businesses by assigning those workers to perform work for those businesses (the host business).The host business pays the labour-hirebusiness a fee for providing its employees to work for them.

 

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There is an issue then regarding who the true employee of the hire workers is. Is it the labour hire company or the host organisation?

A recent Australian case gives some guidance.

FP Group Pty Ltd v Tooheys Pty Ltdconcerned a brewery operated by the Australian company Tooheys. Tooheys entered into a 3 yearcontract with FP group, under which FP group would supply mechanical and electrical trades services to Tooheys. This was a labour hire agreement. A further contract was entered into in 2002. That contract had a term of 3 and a half years but continued to operate after that period of time.

There was a clause in the contract saying that the workers would not be recognised as employees of Tooheys.

In 2011 Tooheys restructured their business and as a result of this they dismissed a number of FP group employees. Tooheys also terminated its contract with FP group and engaged another labour-hire company. The FP group employees lodged applicationsfor unfair dismissal. Some of the employees alleged that FP group was their employer, and others said thatTooheys was their employer.

The Fair Work Commission found that although Tooheys exercised a great deal of control over the employees, FP group was still the true employer. The Commission took a number of factors into consideration to decide this, but the most important were:

  1. FP group recruited the employees and entered into contracts with them.
  2. FP group paid the employees and made superannuation contributions on their behalf.
  3. FP group supplied clothes and tools to the employees.
  4. FP group paid for their induction and training, and provided other things such as salary entitlements and annual leave.

The Commission also noted that labour-hire arrangements may constitute sham contracting where other features suggest so. However, in this case there was nothing to suggest it was a sham, it was considered to bea genuine labour-hire arrangement. This was also because FP group had established itself as a business that was structurally independent from Tooheys. It supplied labour to other organisations, and had its own premises and own staff.

 

 

 

 

Summary

 

According to our unfair dismissal lawyers, the effect of this case is that genuine labour-hire agencies will be considered the true employers of workers supplied to other companies under a labour-hire arrangement, even where the hiring company exercises a large degree of control over those employees.

 

When labour-hire employees lodge unfair dismissal or general protections applications with the Fair Work Commission, they must be aware that the hiring company is not their true employer, it is the actual labour-hire company that is their employer.

Federal Court Awards Hospital Worker Long-Overdue Overtime Payments WithInterest By Employment Law Experts

In Polan v Goulburn Valley Health (No 2) [2017] FCA 30, the Federal Court awarded a hospital worker $27,869.28 in unpaid overtime, plus interest. The hospital worker hadclaimed breaches of enterprise agreements against her employer, Goulburn Valley Health, a large regional hospital. She had worked for the hospital for approximately 17 years before resigning, managing rosters of junior doctors, receiving calls from junior doctors and completing other administrative tasks.

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The Employee Worked On-Call

As part of her role, the hospital worker was required to make and receive calls to and from junior doctors whilst she was on-call at home. This was an ongoing expectation on the hospital worker, rather than a specific request by Goulburn Valley Health on each occasion.

he Employee’s Entitlement to Additional Remuneration

One of the arguments before the Court was whether the hospital worker’s duty to make and receive calls whilst at home could be considered “recalls to duty” under her enterprise agreements. If so, she would be entitled to additional remuneration.

It was held that, as the verb “recall” indicates a conscious decision by an employer to require an employee to perform particular duties outside ordinary hours, this was not a situation with “recalls to duty”. However, the hospital worker was still entitled to additional remuneration in the form of overtime.

Entitlement toOvertime

Unlike entitlements for “recalls to duty”, additional remuneration for overtime is not confined to the situation of an employer specifically making a direction to an employee to perform duties on a specific occasion. Further, the enterprise agreements in the present case allowed for the hospital worker to claim overtime payments. Therefore, as the hospital worker was impliedly authorised by Goulburn Valley Health under an ongoing understanding that she would undertake additional work outside of ordinary hours, she was entitled to additional remuneration for that overtime.

Calculation of Overtime

The hospital worker’s entitlement to overtime payments spanned several of her 17 years of service. In such a situation, the Court was faced with the problem of quantifying her entitlement when evidence of actual hours worked and tasks completed were scarce.

The hospital worker was able to provide her Telstra phone bills, but she did not have a lot of evidence to prove the dates and times of the other work she completed. The hospital worker’s role was also to take time to consider which doctors to call, to organise doctors with their most suitable departments and to complete other administrative tasks. The hospital worker also spent a considerable amount of her time waiting between phone calls, waiting for doctors to get back to her, and this work was not reflected in the phone bills.

In the end, despite the lack of detailed evidence, the Court allowed the hospital worker’s total entitlement based on the phone bills to be grossed up by 50% to cover the other overtime work.However, this was just a guestimate.

Lessons to be Learnt

Employers need to comply with the applicable enterprise agreements. This is especially the case for overtime. It may be considered normal for a hospital worker to be on-call, and everyone at the hospital may work additional hours, but that employee can still be entitled to overtime payments.

Meanwhile, employees need to be careful too. In case an employee wishes to make a claim in the future, it helps if the employee has kept records of their service, especially dates and times worked.

A Case Of Where An Employee Has An Adverse Action Claims

MKI Legal recently acted for a client called John (not his real name). Due to confidentiality reasons we cannot disclose his real name. John had a good case to make a General Protections application to the Fair Work Commission (resulting from adverse action). He was a part owner in a Panel and Paint business and worked in the business as a Panel Beater and Spray Painter.

 John’s case

John originally started the business with two friends, and they later expanded into a shop across the road from the location where they established their business. John worked long hours and was in charge of the day to day running of both businesses due to his many years of experience in the industry.

Initially there was a verbal agreement between John and his friends where they asserted that John had a one third share in the business.

One day John broke his foot at work and was required to be off work for a long period of time to recover. He was off work for 4 months in total, while he underwent rehabilitation. At that time, he also made a claim for worker’s compensation. When he was able to walk again, John returned to work.

When John returned to work he was only required to undertake light duties. John had planned to gradually return to his role as a Panel Beater, but his business partners directed him to only move cars around the yard. John was happy to do this, but in order for him to rehabilitate properly it was required that he take on a more active role.

John continued to do as he was directed by the other business partners. One day John came into work and was confronted by his business partners. They told him that they wanted to have a meeting with him. That afternoon John met with them and they told him that they no longer wanted to do business with him. They said that John was unfit to be on site, and that they would tell Workcover that John was not fit to be on site. They also made baseless accusations against John that he was bullying other staff members. They told John that his employment was terminated and that he was not allowed to return to the site.

They also suggested that they could either buy out John’s shares in the company, or he could buy them out. John offered them a sum of money for his share in the company but they refused, stating that John’s share was not worth anything.

Why John could make a general protections claim

 John had the right to make a general protections claim to the Fair Work Commission. Our adverse action lawyers state there were a couple of reasons why John could do this. These are:

  1. Temporary absence from work: John was temporarily absent from work due to his injury, as he needed time to recover. If one of the reasons for the termination of John’s employment was the fact that he was off work for a period of time because of his injury, then he would be protected by the general protections provisions.
  2. Exercising a workplace right: John exercised a workplace right by making a worker’s compensation claim. If this was one of the reasons for his dismissal, then he is covered by the general protections provisions.

John would be entitled to compensation for his dismissal if his general protections claim was successful.

Unfair dismissal and drug use by employees

Employers take a hard line on dismissing employees for drug use during work hours. Although it is recommended that employers have in place and follow zero drug use policies in order to prevent unfair dismissal claims, the Fair Work Commission has upheld terminations of employment even where no such policies existed, and even where employees have been denied procedural fairness.

This is usually due to the serious nature of the employee conduct.

Procedural fairness, a stipulation of unlawful termination laws, entails putting any allegations or accusations of misconduct to an employee before their employment is terminated, and allowing them to respond to those allegations.

In a recent case, Albert v Alice Springs Town Council, it was held that a council worker was fairly dismissed despite the fact that his employer did not give him the opportunity to respond to drug test results. The worker was involved in a car accident during work hours while he was driving a council truck. The truck was hit by someone who failed to give way at an intersection. After the accident the worker was required to undergo a urine test which found THC levels in his system that were 73 times higher than the council’s cut-off levels. He was dismissed summarily as the council argued that the extremely high levels of THC meant that he posed a danger to himself, the public and other employees.

The employee made a claim for unfair dismissal on the basis that he had not been allowed to see the results of his drug test, and had not been given the relevant paperwork when taking the urine test. The Commission held that even though this had not been done, and the employee had in fact been denied procedural fairness, the termination of his employment was still valid. This was because of the seriousness of his conduct, and the fact that safety was critical in his job.

The Commission found that even if the worker was given procedural fairness, the outcome would have been the same because of the extremely high levels of THC. Therefore, his unfair dismissal claim failed.

While this is an example of where the employer was not required to provide procedural fairness, it is a rare example. The conduct would usually have to be very serious for this to happen, and it is recommended that employers always provide employees with procedural fairness as a matter of good practice, even where there has been serious misconduct by an employee.  This means putting allegations and evidence to employees, and giving them an adequate opportunity to respond to those allegations.

Employers should also have in place clear drug and alcohol policies which specify what will happen to employees if they return a positive test result.

Our unlawful termination lawyers Perthadvise that employees should know that when they engage in serious misconduct, especially relating to drug and alcohol use, employers can summarily dismiss them for serious misconduct, and in some rare cases such as the above, do this without affording them proper procedural fairness.

Extension of Time Granted for Filing In the Wrong Jurisdiction

On 10 October 2016, Mr Pritchard was terminated by his former employer, and on 24 November 2016, he made an application with the Fair Work Commission for unfair dismissal in accordance to section 394 of the Fair Work Act.

On 1 December 2016, the respondent raised an issue that the applicant made the Fair Work Commission application outside of the 21-day time period.  The issue before the Fair Work Commission was whether to grant the extension of time for Mr Pritchard’s application.

On 30 October 2016, Mr Pritchard filed an application with the WAIRC.  On 22 November 2016, the parties met at a conciliation conference where the matter did not settle.  On 24 November 2016, Mr Pritchard received advice from the Chamber of Commerce and Industry of Western Australia that he made an application to the wrong industrial body.  Thirty minutes later, after receiving this advice, Mr Pritchard filed an unfair dismissal claim with the Fair Work Commission.

The Fair Work Commission will grant an extension of time under Section 394 of the Fair Work Act if there are exceptional circumstances.  The Fair Work Commission made a finding that there were exceptional circumstances and the extension of time was granted for the following reasons:

  1. Mr Pritchard was unaware that his former employer was a constitutional corporation as there was no “Pty Ltd” at the end of the employer’s trading name, and Mr Pritchard thought the employer was trading as a trust.
  1. Mr Pritchard, being a layperson, was “not well-versed in industrial relations law”.
  1. Within minutes of getting advice from the CCIWA on 24 November 2016, Mr Pritchard promptly lodged an FWC unfair dismissal claim.
  1. There was no prejudice to the former employer.
  1. Mr Pritchard had credible explanation why the three days was out of time and the delay for filing out of time.
  1. Fairness was relevant to other persons in similar situations.

While statutory time frames are enforced strictly by courts and commissions, this case highlights that there is scope for an extension to be granted in exceptional circumstances.

It’s important to remember that establishing special circumstances is not easy to do. We find that most cases do not meet the criteria. The most common reason for someone filing late is that they were not aware of their rights. The courts and commission have said time and time again that this is not good enough reason to justify an extension of time. The legal position  is ignorance of the law is no excuse.

If you believe you have a claim but you are out-of-time, it’s best to contact an employment lawyer to obtain the best advice in relation to how to move forward.  Your claim may be in the category where an extension can be granted.