31 Jul HR LAW NEWSLETTER – JULY 2023

Welcome to the July 2023 HR Law Newsletter.  This month, we discuss some upcoming legislative changes as well as discuss a recent case, in which an employee’s sacking was upheld by the Fair Work Commission, after the employee’s employment was terminated for making a series of false reports regarding his colleagues, which posed a “psychosocial safety” risk.

CASUAL STAFF – POSSIBLE NEW CHANGES

The Federal Government may be about to turn casual engagement on its head again.

In a speech at the Sydney Institute on Monday 24 July 2023, IR Minister Tony Burke said the Labor Government is ready to “close the loophole that leaves people stuck as casuals when they actually work permanent regular hours”.

The Government is looking to make several key changes to casual employment including redefining who is a casual employee and around conversion to permanent employment.

HR Law will keep you updated as these changes progress.

To read the Hon Tony Buke MP’s Media Release, click here.

PAID FAMILY AND DOMESTIC VIOLENCE

A reminder that on 1 August 2023, employees of small business employers (fewer than 15 employees) can access 10 days of paid family and domestic violence leave (“FDV”) in a 12-month period.  This leave will be available for all employees including full-time, part-time and casuals.  This change will bring small businesses’ obligations in line with non-small businesses, who have been obligated to offer the paid leave since 1 February 2023. 

Unsure of your obligations around FDV leave?  HR Law’s sister company, HR Business Assist, is hosting a complementary Webinar on Wednesday, 2 August 2023 at 9:00am and will discuss:

• What is Family and Domestic Violence Leave;

• What does this mean for your business;

• How is FDV leave accrued; and

• What evidence can an employer request from an employee who has applied to take this type of leave. 

To register for the Webinar, click here.

THIS MONTH’S CASE BRIEF

On 26 June 2023, the Fair Work Commission (“FWC”) handed down its decision in Haytham M J Remawi v Virgin Australia Airlines Pty Ltd [2023] FWC 1501 (“Remawi v Virgin”).  Commissioner McKinnon found that the employee’s false reports regarding his colleagues posed “psychosocial safety” risks and provided a valid basis for Virgin Australia Airlines Pty Ltd (“Virgin”) to terminate his employment.

Background

Virgin dismissed Mr Remawi, pit crew operator (“the Operator”) after he consistently filed bizarre false reports about his colleagues. This culminated in an incident where he caused a safety concern and attempted to shift the blame onto a coworker.

According to Virgin, the Operator changed direction while driving and entered his colleague’s blind spot while the colleague was safely reversing his pushback vehicle.

On that day, the Ramp Duty Leader mentioned in a report that “staff members don’t want to work with [the Operator] anymore due to the fear of receiving safety reports against them” [37]. Following the incident, Virgin suspended the Operator while conducting an investigation into his conduct.

Virgin then sent the Operator a show cause letter, outlining accusations of intentionally unsafe driving, knowingly making multiple trivial or false reports about his colleagues, discussing resigning but deciding to “toy with the business” [29], dishonesty, and repeatedly sending unwanted messages to a female coworker.

In response to Virgin’s allegations, the Operator “evaded, denied, or downplayed the allegations” [182], giving explanations that did not make sense or were considered untrue.

Based on the Operator’s response, Virgin decided to terminate Mr Remawi’s employment for serious misconduct.

The Decision

Commissioner McKinnon of the FWC concluded that the Operator deliberately drove into his colleague’s path, creating a “risk to health, safety, and property” [48], constituting serious misconduct.

Further, Commissioner McKinnon determined that the Operator made a series of false or exaggerated reports about his colleagues when he:

• overstated the seriousness of an exchange with a colleague by reporting “aggressive behaviour“;

• reported a female colleague’s “aggressive approach” [57] after she asked him to complete a task simply because he disliked being told what to do;

• accused a coworker of “trying to assault him” and “threatening him” [64] following a disagreement that the coworker described as a “normal conversation” [68];

• submitted a false report to Virgin, accusing a coworker of “assaulting his wife”. He later retracted this claim, stating that he misheard something the coworker said; and

• made “baseless allegations” by claiming that Sydney Airport security were trying to frame him for terrorism.

Commissioner McKinnon also found that the Operator’s repeated sending of unwanted messages and Facebook friend requests to a young female coworker was “inappropriate in the workplace context” [180] and “bordered on workplace sexual harassment” [180].  The Commissioner found the Operator had engaged in unwelcome conduct towards much younger female employees when he:

• sent repeated and unsolicited friend requests;

• invited a young female employee to go to coffee with him on two occasions;

• engaged in unnecessary familiarity including requests for the female worker to look after his jacket and providing unsolicited medical and travel information and images of his naked legs.

Commissioner McKinnon concluded that Virgin substantiated all five reasons provided in the show cause letter, which were valid grounds for dismissal. The Commissioner stated, “both separately and together, these were sound, defensible, and well-founded reasons for dismissal” [186].

The Commissioner determined that the dismissal was a proportionate response to the deliberate and repetitive behaviour of the Operator, which rendered his continued employment untenable.  Furthermore, Virgin followed a fair process, including providing the Operator with a meaningful opportunity to respond.

To view the case, click here.

REMINDER: EKKA PUBLIC HOLIDAY

For businesses in the Brisbane city area, the Ekka People’s Day public holiday will be held on Wednesday, 16 August 2023.  Employees working on People’s Day will be entitled to public holiday entitlements under the relevant industrial instrument which applies to their employment such as a modern award or enterprise agreement.  

People’s Day is only for businesses in the Brisbane city area. Is your business based on the Sunshine Coast or in Logan, but you have employees working in Brisbane on that day? Are you confused about which regional Show Day public holiday is relevant to your business?  

Contact the HR Law team to check which regional public holiday applies to your business and what your employees’ entitlements and your obligations are.

Also a reminder that employers must comply with their obligations regarding public holidays, in light of the Full Court of the Federal Court of Australia decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, which was handed down on 28 March 2023 (“OS Case”).

Unsure of your obligations regarding public holidays?  Read our article on the OS Case here

WHAT YOU MAY HAVE MISSED

Article

HR Law recently  posted an article regarding the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (“Amendment Bill”) which was passed on 22 June 2023.  The Amendment Bill introduces several changes to the Fair Work Act 2009 (Cth).

To view HR Law’s article, click here.

1 July 2023 Increases

A reminder that on 1 July 2023, there were a number of increases to wages, compensation caps and filing fees that took effect.  Some of these included:

• Minimum Wage: The National Minimum Wage rose from $812.60 per week (or $21.38 per hour) to $882.80 per week (or $23.23 per hour).

• Modern Awards: The modern award minimum rates increased by 5.75%.

• High-Income Threshold: The high-income threshold increased from $162,000.00 to $167,500.00 for FY2023/2024.

• Maximum Compensation Unfair Dismissal Claims: The maximum compensation for unfair dismissal claims increased from $81,000.00 to $83,750.00 for dismissals occurring on or after 1 July 2023. 

• Filing Fees: The filing fees for various applications under the FW Act increased. Specifically, the filing fee for unfair dismissal, general protections, and anti-bullying/sexual harassment applications made under sections 365, 372, 394, 773, 789FC, and 527J of the FW Act increased from $77.80 to $83.30.  There is no fee to make an application to deal with a sexual harassment dispute under section 527F of the FW Act.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.