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Your lack of employee records may come back to haunt you
In late 2017, the government amended the Fair Work Act 2009 to include provisions aimed at protecting vulnerable workers. These amendments went through without much publicity and, as a consequence, there is a general lack of awareness of the amendments amongst employers – despite the importance of the amendments. As a part of the amendments, a new section 557C was introduced into the legislation. The practical consequence of that amendment is this – if an employee brings a claim for say an underpayment of wages, annual leave, sick leave, or overtime, and employer did not comply with its obligations to keep employee records for these entitlements, the employer then bears the onus of disproving the employee’s claim. This is exactly how it played out in one recent case. Mr Pulis ran a plumbing business and employed an apprentice plumber on a “trial”. However, this employee was only an “apprentice” in title as the busi...
12 January 2018Fixed term contracts no longer as effective in preventing unfair dismissal applications
Unfortunately for employers, the concept of an employee’s employment coming to an end by the “effluxion of time” is no longer a jurisdictional protection against unfair dismissal claims. Up until the handing down of this decision by the Full Bench of the Fair Work Commission in December last year, employers were always able to argue that an employee, who finished up his or her employment on the last day of their fixed term contract, was jurisdictionally prevented from bringing an unfair dismissal application because they did not meet the requirement that the dismissal was “at the initiative of the employer”. Rather, it was argued, that the dismissal came about by the “effluxion of time” in accordance with the operation of the terms of the employee’s fixed term contract. The Full Bench in this case overturned the previous case law that stated an employee had no access to unfair dismissal laws when their employment ended by the &ldqu...
8 December 2017No obligation on employee to provide entire employment history
We’ve all heard of situations where employees have inflated their qualifications or employment experiences to obtain the job. But what happens if an employee deliberately leaves out part of their employment history? The job advert for Mr Findley’s role stated “previous experience of providing security services in a residential, commercial and/or university environment would be a distinct advantage.” In response, Mr Findley referred to his previous employment history with Chubb Security and Wilson Security. The employer alleged Mr Findley had engaged in misconduct by having “deliberately made misrepresentations, omissions and/or false statements in relation to his previous employment for the purpose of obtaining employment.” This is because Mr Findley did not mention his employment with Diamond Protection, another security company. In the decision, the Federal Circuit Court held that an employee answering a generic question about their prev...
24 November 2017