Fortnightly Workplace News
What’s new this fortnight?
Review of The Modern Slavery Act
The Federal Government has released the three yearly review into the Modern Slavery Act 2018 (Cth) (Act), outlining recommendations to strengthen and improve the Act.
Currently, under the Act companies turning over $100million are required to submit annual reports detailing the risks of modern slavery in their supply chains and operations. A key recommendation from the review is to lower the threshold so that the obligations under the regime would apply to businesses turning over $50 million.
The report also recommends penalties to be introduced for specific non-compliance to ensure reporting entities are complying with the Act. Businesses turning over $100 Million or more should ensure they are meeting their reporting obligations under the Act.
Fair Work Commission confirms dismissal occurs at time employee is aware they are being dismissed
The Fair Work Commission (FWC) found an extension of time was not required for an employee to bring an unfair dismissal claim as he couldn’t access the communication dismissing him until almost a week after it had been sent, resulting in the employee’s claim being four days late after the21-day deadline.
The FWC noted that there are circumstances where ‘receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal’, including where an employee is suffering ‘incapacitating illness or is legitimately unable to access their email for other reasons’.
The FWC accepted the employee had been to remote areas and had not had an opportunity to view the email until almost a week after it had been sent, meaning the employee was effectively dismissed when he read the email, and his unfair dismissal claim was within the statutory 21-day time limit.
Significant changes to enterprise agreement not unlawful or unreasonable despite non-compliance with consultation requirements
The FWC found a policy introduced under an enterprise agreement (EA) was not unlawful or unreasonable, despite finding the policy introduced ‘significant changes’ and did not comply with consultation requirements under the EA.
An employer introduced a policy under the EA, requiring employees to be vaccinated against COVID-19 as a condition of entry to the employer’s premises. An employee filed an application with the FWC alleging the policy was unreasonable and that the employer had not complied with requirements to consult with employees about the ‘significant change’.
The FWC found the employer was ‘within the bounds of reasonable decision-making, if for no other reason than to protect the safety of vulnerable persons with special susceptibilities to COVID-19’. Despite finding the employer had not complied with consultation obligations regarding the significant change, the FWC held that in the circumstances, the employers ’‘‘deficiencies in the ‘consultation process did not render the vaccination requirement unreasonable’.
Uniquely, the FWC found it was necessary to take into consideration whether compliance of the consultation requirements would have ‘reasonably have been expected to make any difference to the outcome’, which was held to be highly unlikely.
‘Vile’, ‘racist’, and ‘inappropriate’ Facebook posts not enough to breach code of conductor justify dismissal
An employee who posted on his Facebook page what was described as ‘vile and inappropriate’ material, was found to not be in breach of the employer’s code of conduct, nor did the posts justify dismissal of the employee.
The FWC refused to ‘detail the impugned posts’, suggesting that ‘even to some who would otherwise rail against political correctness,‘wokeness’ and virtue signaling, would find some of the opinions expressed in the posts confronting’. However, it was noted that while some of the comments on the posts were ‘distasteful, narrow minded, sometimes racist and sometimes abhorrent, the posts were made on personal time, in a personal space’, and were clearly the personal opinions of the employee, which did not damage, or bring the employer’s reputation into disrepute, nor did they connect the employee to an ‘activity in which he is involved or connected with ’in his employment.
While the Facebook posts were ‘unmistakably the ignorant and racist views which [the employee] holds but which he lacks the insight and emotional intelligence to not express’, they did not amount to a cause for dismissal.
We hope you have enjoyed this fortnight’s employment law news. See you next fortnight!
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