The dismissal for a wilful misconduct

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How a spoonful of Milo landed Coles in hot water

Wednesday, 19th February, 2014
By Jessica Oldfield 

In today's Workplace Bulletin:

• Case study: Homes v Coles Group Limited

Dear Reader,

Dismissing an employee for misconduct can be risky. You must understand when dismissal is unlawful.

Your decision to dismiss an employee must be based on defensible and lawful reasons. This means you must be able to show:

• that the dismissal relates to the employee's capacity or conduct; and
• that the facts and circumstances constituting the reason for the dismissal can be proven.

If a tribunal, such as the Fair Work Commission (FWC), reviews your decision to dismiss on fairness grounds, it will expect you to justify that dismissal was the appropriate response to the problem. That means, the punishment must fit the crime!

Today, Charles Power is going to take us through a recent case in which the Fair Work Commission considered these things.

Over to Charles…

Jessica Oldfield
Editor
Workplace Bulletin

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Case study: Homes v Coles Group Limited

By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In Homes v Coles Group Limited T/A Coles Warehouse Edinburgh Parks (2014), the FWC reinstated a worker who was found to have been dismissed unfairly.

The facts of the case are as follows:

Coles Warehouse provided Milo, among other things, in its break room for the staff to consume during their breaks. An employee regularly took some of the Milo home in a container to mix it with his own drinking chocolate, coffee and raw sugar. He would then bring the mix into work for consumption during his breaks. 

On 30 August 2013, management at Coles Warehouse was informed by another worker that the employee had been seen spooning Milo into a container and putting it in his bag.

Dismissal of an ill or injured worker

Home | About Us 7 must DOs before you dismiss an ill or injured worker Tuesday, 17th February 2014, by Joanna Weekes In today's Health & Safety Bulletin: What to do if an ill or injured worker cannot resume their pre-injury duties 7 things you need to do to dismiss an ill or injured worker .................................................Advertisement................................................. Want access to over 50 sample employment law contracts, policies, letters and forms you can copy and start using in your workplace? Click here to learn more .......................................................................................................................................................... Dear Reader, If you have an ill or injured worker, you might think that it is in your best interest to get them back into the workplace and working as quickly as possible - but this is not always the case. Early return to work is not always the right approach, it can agitate and extend an issue that could have been resolved in a shorter time with more rest. The decision to return a worker to work should be based on what the worker is capable of safely doing when they return to work. The decision about when a worker should return to work should be made with consultation between management, the worker, and after seeking professional medical advice. What if the worker is not fit for their pre-injury duties? If you determine (with the advice of a medical professional) that the worker will not become fit for their pre-injury duties for the foreseeable future, you will need to decide whether: you can offer the worker ongoing employment in a modified role to accommodate their condition; or you are going to terminate their employment. If both parties agree to the modified duties, then a new contract of employment can be drawn up. If this is the case, you can set goals that you and the injured worker have agreed on to ensure there is a clearly communicated expectation that the injured worker will return to their pre-injury duties. Remember, if a worker continues on modified duties for a prolonged period with no current plan to return to their pre-injury duties, it is arguable that the worker has been permanently appointed to a new role. When this occurs, the worker's old contract of employment is effectively terminated and replaced with a new one. If this were the case, you would be unable to dismiss the worker on the basis that they are permanently unable to return to their original position, as they have been appointed to a new role. 7 things you MUST do before dismissing an ill or injured worker Employers are generally prohibited from dismissing an employee because of incapacity due to illness or injury. However, there are certain circumstances in which you can dismiss an employee who is ill or injured. Before you terminate an injured worker, you must ensure that you do the following things: Obtain sound medical evidence regarding the worker's incapacity. Determine, and be able to prove, that the worker is unable to perform the job they were employed to perform. Determine, and be able to prove, that there is no reasonable measure you can take to accommodate the worker's injury or illness. Do not create an expectation in the worker that you will provide them with modified duties on an ongoing basis. Give the worker an opportunity to respond to the allegation that they are unfit for their duties and to the intention to terminate their employment. Consider the worker's length of service, employment history and the impact of dismissal on them. Check that you have no obligation to provide suitable employment under the workers' compensation legislation in your jurisdiction.  Until Thursday, Joanna Weekes Editor Health & Safety Bulletin

Medical information from emloyee

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When can you ask an employee for 

medical 

information?

Monday, 17th February, 2014
By Jessica Oldfield 

In today's Workplace Bulletin:

• When can you ask an employee for medical information?

Dear Reader,

Employees have an entitlement to take accrued paid personal (sick) leave under the Fair Work Act 2009 (Cth)(FW Act) if they are not fit for work because of a personal illness or injury. You can ask an employee to provide you with reasonable evidence of their reason for taking sick leave, such as a medical certificate.

But often medical certificates don't give very much information… so what happens if you need to know more about the employee's illness or injury? Charles Power is going to address that question today.

Until next time…

Jessica Oldfield
Editor
Workplace Bulletin

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When can you ask an employee for 

medical 

information?

By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

To exercise the entitlement to sick leave, the FW Act provides the employee must give his or her employer evidence that "would satisfy a reasonable person" that sick leave is being taken for this reason.

The kind of evidence an employee must give to take paid sick leave can be explained by a modern award or enterprise agreement applying to the employee and his or her employer.

The right to dismiss an employee for conduct on social media - Part 2

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When you CAN'T dismiss an employee 

for 

comments made via social media - Part 2

Friday, 7th February, 2014
By Jessica Oldfield 

In today's Workplace Bulletin:

• An easy way to manage your own super
• Case study: Fired for a Facebook comment – Part 2

Dear Reader,

In Wednesday's Bulletin, Charles Power told us about a recent case in which an employee was dismissed for comments she made via Facebook private messages. The employee lodged an unfair dismissal case and won. Today, Charles will explain a little more about the ruling.

But before we get to today's article, I just wanted to take a moment to let you know about something that may be of interest to you…

Finally – an easy way to manage your own super

The popularity of self-managed super funds (SMSFs) has been skyrocketing of late – and it's little wonder…

With an SMSF, you get to decide when, how and where your retirement money is invested, not to mention make all the crucial decisions that affect your financial future.

But knowing exactly how to go about starting an SMSF can be a daunting task...

For starters, how do you set it up? What about all the duties you will have as a trustee? And how will you stay up-to-date with any changes to the law that affect your role?

If you're considering setting up an SMSF and don't know where to start – or you already have one but you're concerned about how you'll stay on top of your responsibilities – there is now a simple, cost effective solution...

Click here to be one of the first to hear about the SMSF Handbook

Have a great weekend!

Jessica Oldfield
Editor
Workplace Bulletin

The right to dismiss an employee for conduct on social media

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When you CAN'T dismiss an employee 

for 

comments made via social media - Part 1

Wednesday, 5th February, 2014

By Jessica Oldfield 

In today's Workplace Bulletin:

• How to protect your business from the risks of social media
• Case study: Fired for a Facebook comment – Part 1

Dear Reader,

As we've discussed in a past bulletin (see HERE), employers are able to dismiss employees for conduct on social media.

However, an employer doesn't always have the right to dismiss an employee for conduct on social media. This week, Charles Power is going to take us through a case in which an employee made a claim for unfair dismissal after she was fired due to comments she made through social media. 

But before we get to today's article, I just wanted to remind you all about our eBook, Social Media & The Law…

How to protect your business from the risks of social media

Portner Press' 40-page eBook Social Media and the Law: Managing the Legal Risks for Your Business is written by Employment Law Practical Handbook Editor-in-Chief Charles Power, and it covers:

• The legal risks your business faces due to social media - and how to minimise them
• How to regulate and monitor your employees' social media use
• Where you stand if your business' confidential information gets shared online
• How to implement and enforce a legally sound social media policy
• And more!

Social Media and the Law: Managing the Legal Risks for Your Business will help you build and implement a legally sound social media policy for your business - one that maximises the opportunities and minimises the risks when you or people working for you use social media.

It costs just $49.95, and you can download it right now here.

Over to Charles…

Jessica Oldfield

Editor

Workplace Bulletin