Welcome to my world; agony aunt questions

 

My web site encourages browsers to make enquiries of me, which was originally intended to facilitate potential clients contacting me with preliminary questions about fees and so forth. It has however become a vault of interesting questions arising from the workplace which my legal academic colleagues who teach law are welcome to use to test their students. Here is a miscellany of quaint and sometimes horrifying tales which are passed on to me by way of questions from the public.

 

Dear Stephen,

My employer has introduced non consensual physical searches ostensibly under an amendment to its drug and alcohol policy. Although I have no problem with submitting to blood or urine testing, surely this policy goes too far?

Answer.  The cases in the Fair Work Commission about this issue, reveal that there is no legal reason why an employer cannot impose a contractual obligation upon new employees to submit to such a search as a condition of employment. After all, an employee who objects can go and work elsewhere (in theory at least). However, there are substantial difficulties for an employer to do so as a unilateral variation of an existing employment condition, especially by legislating it upon a workforce as a policy. And even an objectively sound basis for introducing it into an acutely safety sensitive industry as the exercise of management prerogative may not render it a lawful and reasonable instruction which must be obeyed.  Furthermore, an employee who is protected from unfair dismissal may have good grounds to contest a dismissal based upon a refusal to comply and it is not too difficult either to see how a requirement to submit might breach various equal opportunity laws.

Hi Stephen,

I have been employed in the same job for 4 years and have never had a pay increase. What are my rights?

Answer; that depends. If your remuneration exceeds the minimum wage, and you are not employed under a modern award, enterprise agreement, or State award, your rights to a remuneration review will be determined by your contract of employment. If it is silent about an express entitlement to a pay increase, then you may not be entitled to an increase periodically. Of course this doe not mean that you cannot ask, even demand, a review.

The most basic safety net employees have is to leave their jobs if they are unsatisfied. Of course this is most commonly easier said than done.

Stephen,

I run a small business with 4 employees. I am being taken for a ride by one of my employees who persistently fails to show for work on Mondays and I suspect it is because he is hung over from drugs or alcohol. This is unfair to me, and unfair to the other staff. Can I terminate his employment?

Answer. The answer is yes, provided you lay the groundwork. e answer s in the Fair Work Act and cases of the Fair Work Commission. Although it is unlawful for an employer to dismiss an employee for reasons which include his or her temporary absence from work due to illness or injury where the absences do not total more than 3 months in a 12 month period,  or 3 months in one absence, that law is predicated upon the employee being genuinely incapacitated for work due to illness or injury, and the National Employment Standards entitle an employer to require “evidence that would satisfy a reasonable person” that the personal leave is taken “because the employee is not fit for work because of a personal illness or personal injury affecting the employee”; secs 97 and 107, Fair Work Act.

If your business is a national system employer, you are entitled to the benefit of compliance with the Small Business Fair Dismissal Code. You should also take legal advice.

Hi Stephen,

Is there a law against a work colleague giving me a one finger gesture? What can I do about this?

Answer. There is no specific law against this conduct although legal practitioners would say that if it persists it could constitute an assault, and thus a criminal offence. Under the Fair Work Act it could also constitute workplace bullying which would elevate it to a level where the employer may become liable. However the Fair Work Commission in its anti-bullying jurisdiction has held that a one off gesture is not workplace bullying. Nevertheless it is workplace misconduct warranting discipline which the employer would ignore at its peril.

Stephen,

I own a small company and am increasingly concerned about the frequency and length of staff toilet breaks. Can I limit these?

Answer. Yes and no. Although the NES is silent about toilet breaks, and most modern awards only deal with meal and rest breaks,  you as an employer are entitled to manage toilet breaks within reason. You can do this by publishing policies and by providing notice to the effect that the company will regard abuse of toilet break entitlements as a disciplinary issue. Having said that, the onus of demonstrating an abuse has or abuses have occurred would lie with you as the employer and it would be difficult o prove in, say, an unfair dismissal case. This may sound silly, but I am aware of a company which banned reading material in the toilets and I believe it was problem over.

Dear Stephen,

I have had an argument with my employer who operates a small cafe. I have been employed as a casual for almost three years and I have been told that I will not be offered any more shifts. When I mentioned unfair dismissal, he told me “good luck with that, you haven’t been dismissed”. If he does not offer me any more work, what are my rights?

Answer. This is a difficult question. Assuming for the moment that you are protected from unfair dismissal, which will require either that you have been employed on a regular and systematic basis if your employer is a national system employer or by a sole trader, the unfair dismissal jurisdictions depend upon there having been a dismissal, which simply put requires a termination of employment at the initiative of the employer. If you haven’t been dismissed, and for example your employer is just sulking, it is extremely challenging to assess at what point the absence of any offered work will be treated as a dismissal as against being an exercise of the employer’s right to offer you work as and when its operational needs require you. Having said that though, there are tight time limits for unfair dismissal which may force your hand.

You need urgent, careful and competent legal advice.

Stephen,

Yesterday I was dismissed without notice because I asked my boss whether I could take some annual leave next week. Do I have a case?

Answer. Yes. Assuming you had some leave accrued, you had a workplace right to make that enquiry and if one of the  reasons for your dismissal was that you did so, the termination of your employment is both unlawful and is also an unfair dismissal. But there is a 21 day time limit for taking action and you need to take urgent legal advice about which case to action because you cannot pursue both.

Dear Fair Work Legal Advice,

My employer is moving its operations to the other side of Perth and I am wondering whether I will be entitled to a redundancy payment since my contract refers to the current place of work as my workplace.

Answer. There are many decisions abut this from the Fair Work Commission.There is a fundamental distinction between a job becoming redundant and the right of an employee to refuse to comply with an instruction which results in the termination of an employee’s employment. Unless the decision by your employer to move its operations results in your employer “repudiating” your employment contract, which might be the situation if the wording of your contract expressly or implicitly guarantees you a job at the current workplace, it is likely that your job will not be regarded as having been rendered redundant in the circumstances you describe. However, the personal impact upon you and your family of a move of workplace will be a factor in determining whether the direction is a “lawful and reasonable instruction.” A requirement to move to the other side of the country without your consent will probably not be a lawful and reasonable instruction and a dismissal for a refusal to comply may well be an unfair dismissal.

Hi Stephen,

I was randomly drug tested at work on Tuesday and tested positive to cannabis. The company’s drug and alcohol policy required the company to stand me down but it did not do so because it is short staffed and had orders to complete. Can the company dismiss me in the future over this?

Answer. This is a bit tricky. The first question is whether the Fair Work Commission will uphold the application of an employer’s policy of zero tolerance to drugs and alcohol in the workplace, the answer to which will depend upon whether it is reasonable to do so and that will depend upon several factors such as whether the employer operates in a safety sensitive industry such as aviation or oil and gas. The second part is easier. What is good for the goose is good for the gander. If the employer overlooks one part of its policy for its own reasons, it will not be permitted to rely upon another part later to invoke its disciplinary provisions.

Dear Stephen,

I am 17 years old. Is it legal for my employer to take tax out of my pay?

Answer. The answer is yes. Income tax must be deducted from all Australian employees’ pay in accordance with the appropriate statutory tax scale. If there are statutory income tax concessions for age and annual income and so forth, that is a matter which is sorted out when an employee’s tax return is filed and processed by the ATO after 30 June in each financial year.

Dear Stephen,

Am I entitled to be provided with parking or an allowance for parking?

Answer. The answer is no, unless your contract of employment or enterprise agreement makes provision to that effect.

Hi Stephen,

I am a permanent part time employee. Can my employer cut my hours if I do not want them cut? There is a casual employee here. Shouldn’t her hours be cut down first?

Answer. The answer is may be! Your entitlement to maintain your hours will depend upon the contract of employment which has evolved between you and your employer. Many employees are unaware that they have a contract, but all employment arrangements are underpinned by a contract, even though it is unwritten, and often unstated.

When a person buys an apple, he or she makes a contract even if nothing is said about a contract and there is no discussion about its terms. Most of the terms are implied by custom  and practice and by legislation.

As a general principle, and in the absence of a provision of a modern award or enterprise agreement to the contrary, there is no obligation upon an employer to reduce the hours of work of a casual employee before those of a permanent employee; although to do so may breach the implied terms of contract which have built up over time or, if dramatic, may constitute grounds to the employee to resign and claim a constructive unfair dismissal.

Legal advice is required in this situation.

Hello Stephen,

I am looking for information on laws for employees who are required to travel for work?

Answer. There is no legal assumption to the effect that an employer must contribute to the cost of an employee’s travel to and from work. Unless there is an agreement between the parties, or a modern award or enterprise agreement or employer policy makes provision for an employer to contribute to the cost, then the employee will be liable for the expense. There are however several modern awards, for example the Building and Construction General On-site Award 2010, which do require employers to pay employees travelling allowances.