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Sacked for Out of Hours Conduct – thoughts on Employment Law by BlandsLaw

Cyrius Administration - Monday, March 07, 2016

This article is reproduced from the BlandsLaw website:

The issue of when it is and is not okay to terminate an employee for conduct that occurs outside of the workplace can be a tricky one.  A recent case considered the impact of criminal charges.

The employee was a young apprentice butcher working in a small retail store in regional NSW.  He was charged by police with being an accessory after the fact to murder. His employer subsequently spoke with his parents and said there was concern about the effect of the criminal charge on the business. The employee was terminated and later brought an unfair dismissal application.

The Commissioner considered the initial jurisdictional issue of whether or not the dismissal was in accordance with the Small Business Fair Dismissal Code (the ‘Code’) and held that it was not. The Code requires a two step process for serious misconduct. It is not enough to simply hold a belief that the employee engaged in the alleged misconduct. The second step is to assess if that belief is in fact reasonable. This second element involves the concept of investigating the allegation or issue to determine its truth.

Turning to the substance of the claim, the Commissioner held on balance that there was a valid reason for the dismissal. In support of this was the employee’s aggressive behaviour (including holding a knife) upon finding out about the charge and that his identity in relation to the charge was public knowledge as a result of local media coverage. Importantly it was stressed that the finding was based on the particular circumstances and employers cannot presume that criminal conduct outside of work is always a sufficient basis or valid reason for termination.

Despite finding that on the facts there was a valid reason, the Commissioner went on to find the dismissal was nonetheless harsh and unjust. Of note, the employee was over two thirds of the way into his apprenticeship and the employer had failed to consider the option of retaining him and still adequately dealing with other employee and customer concerns. Consequently the employee was denied procedural fairness. An award for six weeks compensation was made.

Lesson for Employers

Generally speaking one’s conduct out of work is a personal matter. There are however situations where out of hours conduct can impact negatively on the employment relationship and potentially be grounds for termination.

The other aspect, raised in relation to the Small Business Fair Dismissal Code, is that it is not enough to simply have a belief that an employee has engaged in serious misconduct. It is necessary to consider whether that belief is reasonable. Practically this may mean making enquiries to verify information or conducting an investigation into the matter.

This case also highlights the importance of procedural fairness and that what this means in practice will vary depending on the situation. On the facts a key issue was that the employee was not far from finishing his apprenticeship and this should have been factored into the decision-making process.

Christine Broad

Solicitor

BlandsLaw

The Essentials Guide to Working Remotely

Cyrius Administration - Monday, July 20, 2015

This blog post is by Richard Grace of Mach5 IT Solutions Epping.

Working remotely.  It’s something more and more people do, and for those that haven’t yet sampled its particular delights, it’s not as difficult to get started as you might think.  Like anything, a little planning can go a long way and Mach5 IT Solutions have prepared a small list of ‘essentials’ to get you started:

  • Mobile device
  • Internet Connection
  • Team Viewer
  • Hosted Email
Mobile Device

Sounds obvious, particularly in the age of Smartphones that can do practically everything, but if you’ve only ever worked on a desktop computer you may be unaware of the enormous flexibility a mobile device can bring to your working life.  Or of the wide range of mobile devices from which you can choose.  For the purposes of this discussion, mobile device is not restricted to a handheld device, but includes laptops, tablets, hybrid laptop-tablets (e.g. MS Surface), iPad, iPad mini and smartphones.  The thing they all have in common is their portability – basically, they’re small, light and robust enough to take with you anywhere.  But with the major benefit of being powerful enough to do everything you can do on your desktop machine.

Internet Connection

You’ve got your mobile device and you’ve been working, at home, on a client presentation.  Now you need to have it reviewed by colleagues back at base.  How do you get it to them?  Over the internet!  Here, again, there are so many ways to achieve this.  You could utilise your home Wi-Fi connection.  Visit a friendly local café to enjoy a coffee while connecting to their free Wi-Fi service.  Send it over the mobile phone network from a smartphone.  Use a dedicated Wi-Fi dongle – a little device that connects to your mobile device wirelessly and also uses the mobile phone network to transfer data.  You can even use your smartphone in place of a dongle; the phone is ‘tethered’ to your mobile device (e.g. laptop) and data is transferred across the mobile phone network (that’s actually how this information got to you).

Team Viewer

A useful piece of proprietary application software that allows team meetings to be held involving up to 25 people in various locations.  Bring colleagues up-to-date with what you’re currently working on, easily discuss any issues, agree plans, review other people’s work; everything you’d normally do in a meeting, and all as if you were sitting in the same room with the rest of the team.  Team Viewercan also be used as a helpdesk & trouble-shooting tool.  If anyone working remotely experiences technical issues, it’s easy to connect directly to their device for problem identification and resolution.  Remote workers needn’t feel stranded or abandoned when help is just an internet connection away.

Hosted Email

A subject close to our hearts at Mach5 IT, and something we can’t speak highly enough about.  Using a system such as MS Exchange, emails are automatically synchronised between base (e.g. the office) and remote mobile devices.  Everything is automatically backed-up securely and is available wherever and whenever required.

Our list isn’t meant to be exhaustive, but simply serves as an introduction to the subject of remote working.  Discover how easily you can get started working remotely – talk to Mach5 IT Solutionsfor more information and arrange for an impartial review of your specific requirements.

What’s new in Windows 10? Mach5 IT Solutions gives you the rundown

Cyrius Administration - Thursday, June 18, 2015

This story is provided by Richard Grace of Mach5 IT Solutions.

Windows 10 is almost here – 29th July 2015 is the scheduled release date.  So what can we expect in the way of new features?

Well, first – it’s free to existing users with Windows 7 and Windows 8.1 already installed.  These users will have a full year to download and install their free upgrade.  Anyone with an older version of Windows, e.g. Vista, will have to pay for the upgrade – and it could make more sense to buy a newer machine with Windows 10 pre-installed.

Next, something new that’s old – the Start Menu is back (Microsoft bowing to consumer pressure?), albeit with expanded capabilities.  Essentially, it means anyone using Windows on a desktop will again enjoy an interface that is familiar and works sensibly with a keyboard.  The more modern features of Windows 8 are still available as part of 10 for those using tablets or other ‘touch’devices.

Continuing on that theme, Windows 10 will be optimised for the increasing number of 2-in-1 devices on the market.  If using a keyboard the system defaults to desktop mode; disconnect the keyboard and the tablet mode – touch interface – is activated automatically.  Users can easily toggle between modes to select your preferred method at any time.

Still using IE (Internet Explorer) as your default browser?  Windows 10 incorporates Microsoft’s new ‘Edge’ browser providing a better browsing experience to anyone who hasn’t switched to Chrome, Firefox or one of the other competing browsers.

Windows 10 is all about Apps.  The kind of Apps we all use and are familiar with on our mobile devices, and Microsoft has developed its own App Store to supply them.  The best part of the Apps upgrade is that they’ll have a common look and feel whatever device you access them through.

Of course, there’s much more to Windows 10 than we’ve discussed in this brief introduction.  If you want to know more about upgrading toWindows 10 on your existing pc, laptop or tablet, or on a new device, talk to the experts at Mach5 IT Solutions on 1300 872 727 and we’ll help identify your best options.

Hybrid Cloud – is it the answer for your organisation?

Cyrius Administration - Tuesday, May 05, 2015

Blog post by member Mach 5 IT Solutions:

Hybrid cloudWe’ve discussed Cloud Computing a number of times in the past and it’s clear that many businesses have adopted the Cloud to a lesser or greater extent.  Some organisations are fully committed to their entire IT operation being hosted in the Cloud, while others have, for a variety of reasons, taken a more measured approach to what goes into the Cloud and what stays in-house.  Both groups, when assessing their commitment to and usage of Cloud computing may be interested in a rising phenomenon within Cloud services – Hybrid Cloud.

Hybrid Cloud has been defined by Gartner, Inc. as “a cloud computing service composed of some combination of private, public and community cloud services, from different service providers”.  This crossover of boundaries between different service providers prevents simple categorisation in a single type – private, public, or community cloud service.  Instead, it enables exploitation of the power and resources available from operating in combination with other cloud services.

Dan Kobialka published a recent article in Talkin’ Cloud indicating that “28 percent of IT decision-makers say they plan to use hybrid in the next few years”.  Drawing on independent research by an Internet Service Provider (ISP) suggesting that the rate of adoption of hybrid cloud solutions is likely to triple in the next three years, the article argues that it is primarily economic factors driving the decision-making.

So, what are the perceived benefits of hybrid cloud in comparison with pure cloud?  Security may be at the top of the list as it’s often cited as a primary concern among many businesses reluctant to adopt any form of cloud computing.  The fear is that some, or all, of an organisation’s data and other resources will be ‘beyond their control’ and exposed to greater threat than if held within onsite infrastructure.

Hybrid Cloud can help alleviate this principal concern by combining an on-premises ‘private cloud’ with a third-party ‘public cloud’ in day-to-day operation.  Sensitive data and critical applications can be maintained within the private cloud; while development, testing and other less significant areas of the workload could operate within a public cloud, taking advantage of the scalability of this model.  Specialist software packages exist to connect the various public, private and community clouds together for ease of use.

Any organisation utilising a private cloud and concerned about missing out on the scalability built-in to private cloud solutions, should be aware of the concept of ‘cloud bursting’.  This model runs in a private cloud or other in-house infrastructure and bursts into a public cloud whenever there is an upsurge in activity; it is considered ideal for “high performance, non-critical applications handling non-sensitive information” operating as standalone systems.  The application is deployed locally and only bursts into the cloud to meet peak demand.  Security remains the prime concern for any business considering cloud bursting technology and it is imperative to ensure any public cloud selected offers the required level of protection for sensitive data.

If you’ve any queries on how your business might benefit from adopting Hybrid Cloud, now or in the future, give us a call here at Mach5 IT Solutions – we’re happy to help.

Buying a business computer: making the right choice

Cyrius Administration - Wednesday, April 08, 2015

Blog post courtesy of RBF member Richard Grace of Mach5 IT Solutions:

Mach5 IT Solutions“People buy consumer-grade products.  They don’t think it through, and then they’re surprised that they had credit card numbers stolen or that their database has disappeared.” – Rick Moran, formerly a VP at Cisco.

It’s a common mistake that many businesses continue to make in a misguided attempt to save money on their IT infrastructure.  The reality is that they’re probably setting themselves up for a future of IT-related grief – plus the associated and unexpected costs – when their less expensive consumer-grade infrastructure is unable to cope with the business-grade demands made of it.

Typically small to medium enterprises will put together their IT infrastructure piecemeal – a bit here, a bit there, on an as needed basis.  With little or no thought given to short-, medium- or long-term IT infrastructure planning.  This results in a mish-mash of manufacturers and technologies, some of which may be inadvertently operating to the detriment of each other.

This fire-fighting approach of applying ad-hoc additions to the network is a technician’s nightmare when it comes to identification and resolution of the inevitable problems that occur.  Instead of robust, interconnected business-grade devices and software issuing precise warnings and analytic information to help the technician, they’re more likely to be greeted by a set of blinking lights and being forced down the trial and error route of diagnostics.  A time-consuming and expensive process, negating any savings made on the original purchase of the consumer-grade items.

Planning is the key to success when deciding on your IT infrastructure requirements.  One of the most important elements of that is future-proofing – don’t install the infrastructure you need now, install what you’ll need as your business grows, what will be easily upgradeable and what will cope with advances in technology.

You should also consider preparing a schedule for implementing upgrades, detailing how and when you intend to replace components that have reached end-of-life or that have failed in operation.  This will help avoid unnecessary and costly downtime and the expense of emergency IT support.

Relying on consumer-grade IT infrastructure in all but the most simple of business environments is almost certainly a false economy.  If you’re serious about your business, get serious about your IT and insist on business-grade – it’s a decision that’ll repay you over the medium- to long-term.

Call Richard at Mach5 IT Solutions 1300 872 727 for advice on business-grade IT infrastructure and planning.

Discrimination – what not to ask

Cyrius Administration - Friday, March 06, 2015

Our thanks to Andrew Bland and Sarah Waterhouse of BlandsLaw for this blog post:

A recent Queensland Civil and Administrative Tribunal (QCAT) decision* highlights how easily employers may breach anti-discrimination legislation without necessarily intending to do so.

The complainant, a prospective employee, brought a claim against Woolworths because the online job application form required him to state his gender, date of birth and confirm his ability to lawfully work in Australia. Essentially the claim was that the requirement for job applicants to supply this information breached Queensland’s Anti-Discrimination Act by unnecessarily requesting information during the recruitment process which could form the basis for discrimination.

Woolworth’s arguments included that the information allowed them: to recruit for positions where employees needed to be over 18 years of age; to comply with gender reporting requirements; and avoid breaching the federal immigration legislation.

In an interesting decision, QCAT held that Woolworths could not satisfy the exception in the legislation which required them to show that it was reasonably necessary to gather the information. QCAT found that on the facts, the collection of data could occur without making it a mandatory requirement that job applicant’s specify their gender; a more general question could be asked of age (ie indicate if you are over 18) and further information and documentation including immigration status could be gathered at a later stage if needed. Woolworths could have, and have now, modified their questions to be less intrusive and/or specific.

The complainant was awarded $5000 which included an amount for the loss of the chance that he may have got the job if Woolworths had not engaged in the discriminatory conduct.

Lessons for Employers

Anti-discrimination legislation differs between States and Territories around Australia. This particular decision was based on the Queensland legislation.

The decision does however highlight the importance of employers understanding their obligations under the relevant legislation and being aware that these may include prospective as well as existing employees. It can be easy to breach your legal requirements if you have not turned your mind to how it applies to your particular business practices (ie your application forms etc).

In light of both anti-discrimination legislation and the new federal privacy requirements it is important to consider carefully what information you request from individuals and ensure that it is both lawful and necessary for the task at hand.

*Willmott v Woolworths Ltd [2014] QCAT 601.

For more information contact BlandsLaw.

Can a family constitution help your family business thrive?

Cyrius Administration - Tuesday, February 17, 2015

This blog post courtesy of members Hunt & Hunt Lawyers.

These conversations may be tricky, but talking about the future is crucial for ensuring the family owned business succeeds across generations.

A family constitution can be a valuable tool to assist the owners of medium to large family businesses in discussing and implementing a plan for the future of the business.

WHAT IS A FAMILY CONSTITUTION?

As good as a family business may be, it can only succeed and endure over time if it has a solid foundation of family consensus and buy-in.

Respondents to the KPMG and Family Business Australia Family Business Survey 2013identified “balancing of family and business issues” as their biggest challenge, yet only 16% had a family constitution.

A family constitution is a document which records the family’s values and rules for managing the relationship between the family and the business. It differs from a company’s constitution in several important respects (for example it may not be legally binding, or at least not fully so). A family constitution may also be known as a family charter, code of conduct or family agreement.

IS IT ENFORCEABLE?

Usually, the strength of a family constitution stems from its status as an emotionally-binding, rather than legally-binding, document.

In contrast to legally binding documents such as trust deeds and shareholders’ agreements (or, indeed, a company’s constitution), a family constitution can extend to family members who are not shareholders or are not involved in the business. This can be very useful, because those in the broader family network can certainly affect, and be affected by, the family business in a number of ways (e.g. through relationships with other family members or as potential beneficiaries of or stakeholders in the business in certain circumstances).

However, it may be in the best interests of the family for some provisions to be enforceable, such as provisions regarding conflict resolution, share transfers and confidentiality. Typically, any enforceable provisions would be found in another document, usually a shareholders’ agreement (it is generally best not to mix enforceable and non-enforceable provisions in the same document).

Of course, it is always important to consider how a family constitution interacts with other legally-binding documents (e.g. trust deeds, shareholders’ agreements and company constitutions) and to ensure there is no conflict between the different documents.

Often, the best approach is for the family constitution to “sit above” other legally binding documents as an overarching document.

IS IT WORTH IT?

You may think a family constitution seems like a lot of effort for not much gain.

But consider what is at stake; family conflict and a lack of future planning can destroy a family owned business, but the conversations required to avoid these pitfalls are often left in the “too hard basket”. This is understandable, as family dynamics can be difficult and future planning, particularly succession planning, can be a very emotional topic.

While by no means a “magic bullet”, the creation of a family constitution can be a valuable means for encouraging dialogue about the future and, once created, a useful “handrail” for managing family conflict.

WHAT MIGHT IT LOOK LIKE?

One of the most important elements of a family constitution is a “mission statement” which sets out the long-term goals and strategic vision for the future of the family business.

As Stephen Covey has said, “by creating and living by a mission statement, families are gradually able to build moral authority in the family itself” (The 7 Habits of Highly Effective Families  (1997)).

A written “mission statement” can be a powerful catalyst for building collective purpose and keeping the family business strong and focused.

A family constitution can also record the core values of the family.  This requires deep reflection on the very essence of the family and the belief-system which everyone agrees must be upheld to protect and grow the family’s wealth. Recording these values in a written document can help ensure these principles are embedded into the structure and culture of the family over time.

A family constitution can be tailored to ensure it is the right “fit” for your family; there is no “one size fits all” approach and the document should evolve and change over time.

Issues to address may include:

  • a conflict resolution procedure can be effective and has the benefit of keeping the dispute confidential (as discussed above, you may wish to ensure this procedure is legally enforceable);
  • succession planning issues (e.g. retirement ages) and a procedure for choosing individuals for appointment to management, the board and / or the family council;
  • procedures for determining how key events such as marriage, divorce, birth and death will affect ownership, participation in the business and wealth distribution;
  • procedures for employment and performance management of family members in the business (e.g. entry requirements such as experience and qualifications, remuneration and termination policies);
  • a formal mentoring program for the next generation;
  • procedures for distribution of income and wealth among family members;
  • share transfer issues such as price, transfer restrictions and terms for transfer to other family members or third parties (as discussed above, it will probably be appropriate for share transfer procedures to be legally enforceable and set out in a shareholders’ agreement);
  • establish and record rules of conduct for one or more governance bodies (e.g. a “family council”), including clear decision-making processes;
  • arrangements for communication among the broader family (e.g. a “family assembly” or organised social gathering); and
  • periodic reviews of the family constitution.

HOW DO I PUT ONE IN PLACE?

Consensus is the key to a meaningful and successful family constitution and the first step is consultation to gain support from the family.  It is important to decide up-front who will be involved and who will have overall responsibility for the process.

Often, a lot of the work is done at a family retreat or meeting, as a workshop environment facilitates the creative process required to develop a strategic vision.  Sometimes, families choose to engage an experienced external facilitator to run the meeting and / or assist with other aspects of the development process (such as drafting the document).

While the process can be time consuming, with the right advice and buy-in from the broader family, you can develop a family constitution which the family can use to protect the family business and build wealth for generations to come.

Hunt & Hunt’s Corporate and Business Advisory Group is experienced in assisting family and private businesses with a range of corporate governance and business succession issues.

We can work with you (and your other advisors as appropriate) to prepare a family constitution that’s the right “fit” for your family business.

CONTACTS

Maria Townsend, Partner – Sydney
Harold O’Brien, Partner – North Ryde
Nick Miller, Partner – Melbourne
Stefan Jury, Partner – Adelaide
Stephen Robertson, Partner – Brisbane
Darren Miller, Partner – Perth
Antony Logan,Partner – Hobart
Chris Osborne, Partner – Darwin

This blog post has been reproduced by Ryde Business Forum. Please read our disclaimer.

Leave accruals continue whilst on Workers’ Compensation

Cyrius Administration - Tuesday, February 17, 2015

This blog post is courtesy of Hunt & Hunt Lawyers.

A recent decision by the Federal Circuit Court of Australia has now clarified that, in New South Wales at least, employees continue to accrue annual leave when they are absent from work and receiving workers compensation payments.

Section 130 of the Fair Work Act (FWA) provides that an employee is not entitled to take or accrue any leave if the employee is absent from work because of illness or injury for which they are receiving workers compensation payments under a Commonwealth, State or Territory law (Compensation Period), UNLESS permitted by that law to take or accrue any leave during the Compensation Period.

The relevant provision of NSW Workers Compensation Act 1987 (WCA), section 49, does not expressly permit an employee to take or accrue leave during a Compensation Period.  However, it does allow workers to continue to receive payments of weekly compensation, without deduction, during periods where they are also entitled to receive paid annual leave.

Until the decision of Justice Emmett in NSW Nurses & Midwives Association –v- Anglican Care [2014] FCCA 2580, NSW employers had reasonable grounds to believe that employees were not entitled to take or accrue annual leave during a Compensation Period.

Although her Honour accepted that the WCA did not in itself create an express right to receive annual leave payments during a Compensation Period, she adopted a “beneficial construction”of Section 49 which permitted employees to accrue annual leave during a Compensation Period as required by the FWA.

Justice Emmett found that Section 49 of the WCA “expressly provides the opportunity for the worker to receive both workers compensation and accrue annual leave” and accepted “that a liberal approach to statutory interpretation is appropriate when dealing with legislation aimed at protecting the safety of workers and providing for compensation for injured workers”.

As a result of her Honour’s decision, NSW employees accrue annual leave (and potentially other leave entitlements) during a Compensation Period, and have had that entitlement since the commencement of the FWA.  This entitlement also applies to employees in other states and territories in which such “beneficial construction” is available.

IMPACT ON OTHER STATES AND TERRITORIES

If the reasoning in this decision is followed in other states and territories, then it will have significant ramifications outside New South Wales.

The relevant legislation in Victoria and Western Australia is similar to that in New South Wales, allowing an employee who takes annual leave to continue to receive payments of weekly compensation at the same level (section 185(4) Workplace Injury Rehabilitation & Compensation Act 2013 (Vic) and section 80 Workers Compensation & Injury Management Act 1981 (WA)).

In Queensland and South Australia, the relevant legislation already permits employees to take or accrue leave while they are receiving workers’ compensation payments.  Hence, annual leave already accrues and the NSW decision does not impact in these states (section 119A –Workers Compensation & Rehabilitation Act 2003 (QLD); section 40(2) – Workers Rehabilitation & Compensation Act 1986 (SA)).

In Tasmania, the relevant legislation contains provisions that prevent “double dipping”, so that workers cannot receive weekly payments of compensation and paid annual leave simultaneously (section 84 Workers Rehabilitation & Compensation Act 1988 (Tas)).

There are no relevant provisions in the Northern Territory Workers Rehabilitation & Compensation Act.

PROPOSED LEGISLATIVE CHANGES

The “Fair Work Amendment Bill 2014″, currently before Federal Parliament, proposes to remove an employee’s entitlement to take or accrue leave while receiving workers compensation, regardless of whether permitted or allowed by a compensation law.

However, as the proposed amendment will only apply in relation to a Compensation Period beginning after the commencement of the Amendment Act, NSW employees will be entitled to take or accrue annual leave until this Bill is passed.

NSW employers should review their employment records to ensure that they have not, and do not continue, to inadvertently breach the FWA by not properly accruing leave for employees during a Compensation Period.

Employers in Victoria and Western Australia should be aware that a similar decision may be handed down in their states.


 

NATIONAL EMPLOYMENT CONTACTS

NSW
Shawn Skyring
Martin Dunne

VIC
David Thompson

SA
John Connelly 

WA
Darren Miller

TAS
Sarah Sealy

NT
Chris Osborne

This blog post has been reproduced by Ryde Business Forum. Please read our disclaimer.