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Category Archives: Adero Blog

Foster carer found to be worker in charity bullying case

The Tribunal found that a Barnardos Australia foster carer is in fact a worked and thereby capable of applying for a stop-bullying order within the meaning of the s789FC(2) of the Fair Work Act.

The foster carer claimed in their stop-bullying application that they were subjected to workplace bullying by the managers at Barnardos.

Barnardos denied the allegations and claimed that the foster carer does not perform work for them.

Commissioner Hampton found in favour of the foster carer even though he accepted that the applicant is not an employee of Barnados, an outworker, or a subcontractor. The commissioner considered that Barnados’ charity status as a person or business “performing work in any capacity” was broad enough to capture the carer as a “worker”.

Commissioner Hampton further elucidated that “the performance of work and that the work is done for the PCBU, are the two operative considerations in this matter” relevant to whether the foster carer was a “worker”.

Commissioner Hampton was however careful to emphasise that the decision in this instance was limited to its circumstances and context and is not a determination of whether foster carers are workers more generally.

Full case: Benjamin Legge [2019] FWC 5874

All quotes sourced from: Workplace Express

 

 

$1.2 Million awarded for Professor’s sacking in a win for academic freedom

Professor Ridd, the former head of the Physics department of James Cook University (JCU), was found to be unlawfully dismissed by JCU over criticism of prominent climate change research.

In 2015, Professor Ridd told a journalist that JCU needed to “check their facts before they spin their story” as “bad science” and misleading photos were were being circulated about climate change and its effect on the Great Barrier Reef.

Professor Ridd was sacked as he was found to have breached JCU’s code of conduct.

Justice Vasta found that the university’s code of conduct (which stipulates that staff are not to jeopardise the integrity or standing of the university or its reputation) was “subordinate” to an intellectual freedom clause in its 2013 enterprise agreement. Professor Ridd was awarded more than $1.2 million for multiple agreement breaches under the Fair Work Act.

Here was a summary of Justice Vasta’s findings:

  1. 17 misconduct findings as well as many censures, confidentially, speech and “no satire” directions enacted by the university were all found unlawful;
  2. JCU made a “fundamental error” in assuming that the code of conduct took precedents over JCU’s commitment to intellectual freedom in Clause 14 of the enterprise agreement; and
  3. Justice Vasta noted that it “may not always be possible to act collegiately when diametrically opposed views clash in the search for truth”.

National Tertiary Education Union (NTEU) has supported the finding whilst they do not support Professor Ridd’s views on climate change, they do believe it is crucial to “support his rights to academic freedom”.

Full case: Ridd v James Cook University [2019] FCCA 997

A Bad Reference or Defamation?

Can a bad reference amount to defamation? The recent findings in Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haigh & Chapman [2019] NSWDC 98 suggests this is possible.

Facts of the case:

  1. Mr Bowden is a 20-year-old student training in Certificate III for Early Childhood Education and Care at TAFE.
  2. He was employed by Hubba Bubba Child Care as part of his course to fulfil professional experience criteria.
  3. Ms Chapman was the director of MSC Holdings Pty Ltd t/as Hubba Bubba Childcare (Hubba Bubba) on Haig.
  4. Ms Chapman had a policy that prohibited her employees from undertaking any babysitting work whilst employed at her childcare centre.
  5. Mr Bowden undertook two babysitting jobs with the parent of a child who had previously sent her children to Hubba Bubba and Ms Chapman learned about the babysitting jobs in a phone conversation.
  6. Ms Chapman had Mr Bowden escorted off the premises as soon as he finished his duties for the day and subsequently Ms Chapman sent an email to 35 parents whose children attended the childcare centre stating that:

Matt – is unfortunately no longer with us due to disciplinary reasons. Whilst being good with the children in general, Matt was not truthful with us regarding his studies and some other issues, and I felt it was better for him to move on and possibly gain a bit more life experience. We wish him well with his future.

Continue reading A Bad Reference or Defamation?

Breach of Policy or Breach of Employment Contact?

There have been a number of cases over the last couple of years concerning whether or not certain breaches of employment policies constitute a breach of contract, thereby enabling the applicant to seek compensation, usually in the form of monetary damages, for this breach.

In Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 (22 December 2014), the Court found that the relevant policy was more “aspirational” but the policy was still found to be a part of the employee’s contract of employment. This case concerned an email sent by Ms Romero that set out her concerns stating that she felt bullied by Captain Martin, her sea captain on a voyage. Continue reading Breach of Policy or Breach of Employment Contact?

Modern awards and the NES

Modern awards and National Employment Standards (NES) protect the employment entitlements and rights of all working Australians. They are the basis for all Australian employment conditions. Most employees are covered threefold, by the Fair Work Act 2009, the NES and by the Modern Award that covers their relevant industry (if any). Employees may also be covered by multiple modern awards depending on industry and classification of their work, as there are separate awards for each industry.

A Modern Award will outline the minimum wage, pay rates, penalty rates and all other relevant remuneration conventions and standards. No matter your agreement or industry, your pay should reflect the standard of the modern award. It is an employer’s responsibility to keep up to date with annual minimum wage pay reviews.

From 1 July 2019, the National Minimum Wage (including the National Training wage and the National Minimum wage for those who are differently able) increased by 3%. Penalties will apply to those employers who fail to meet these obligations. Continue reading Modern awards and the NES

A casual employee – what does that mean?

Casual employment, being used as a false label, has been a subject of intense debate and vexed litigation in the employment law space for years. However, this debate has been intensified by recent events, especially given that 40% of Australian workers are in insecure work. The “Change the Rules” campaign has been a remarkable by-product of this debate, and it has put the spotlight back on the endemic issues associated with misuse of the “casual” label.

Continue reading A casual employee – what does that mean?