Two weeks ago the Full Bench of the Fair Work Commission (‘Full Bench’) handed down Khayam v Navitas English Pty Ltd [2017] FWCFB 5162. The decision considered the circumstances in which employees employed under ‘maximum-term’ (also known as outer-limit) contracts could bring an unfair dismissal claim. What is a maximum-term contract? Maximum-term contracts are employment contracts where [...]
It is now easier for the Fair Work Ombudsman or employees to successfully sue franchisors and holding companies for contraventions by their franchisees and subsidiaries of fundamental employment rights under the Fair Work Act. However, there is a defence. If franchisors or holding companies can convince a court they took reasonable steps to prevent the [...]
The Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (“the Amendment Act”) commenced on 15 September 2017. The Amendment Act is aimed at punishing and discouraging the type of conduct which was the subject of several widely publicized underpayments scandals. The explanatory memorandum to the Amendment Act notes: “The Inquiry into 7-Eleven report, for example, [...]
Dismissing an employee because they are incapable of performing their job due to illness or injury is tough for all involved. From a legal perspective, there are many pitfalls, which if not carefully managed will expose an employer to liability. This includes successful claims of unfair dismissal, general protections or discrimination. This article outlines some [...]
“A restraint clause is not enforceable against an employee whose employment ends by the employer’s wrongful conduct – whether it be wrongful dismissal or….[by acceptance of an employer’s] repudiatory conduct.” In a recent Victorian Supreme Court of Appeal (“Court”) decision, an accountancy firm failed in its bid to enforce what would have [...]
Businesses of today exist in a very competitive environment. Competition can be fierce, and the fight to retain one’s existing clients is crucial for business survival. It is, therefore, incumbent upon most businesses to take proactive steps to defend their turf. One step to reduce the risk of ex-employees from taking your clients is to [...]
Employers can take several practical steps to reduce the risk of ex-employees from poaching clients. Below are our top tips. Use Well-Drafted Restraints It probably goes without saying. However, a well-drafted post-employment restraint is one of the best steps employers can take to reduce the risk of ex-employees poaching clients. If your company’s post-employment restraints [...]
Given the Australian rules football season is well upon us, I thought it fitting to start this article with a football metaphor. When I was 13 years old a teammate would always beat me in marking contests during training. This was very frustrating. We were both a similar height and weight. And we both had [...]
Well intended employment policies can leave employers legally unstuck. Here are the top mistakes I see employers make with their policies. 1. Trying to help line managers Many employment policies provide line managers with guidance about what they should or should not do when faced with a particular situation. The classic example here is a [...]
The cases do not give a clear answer. However, they do suggest the business rationale for using contractors or labour hire is very important to defending an unfair dismissal claim on account of genuine redundancy. We explore this issue below. The basics Let’s start with the basics. First, a redundancy will not be [...]
