HR Law

Do you subscribe to our monthly newsletter? In HR Law's February Newsletter, we discuss the legislative update on the new obligations for businesses operating in Queensland to prepare and implement a Sexual Harassment Prevention Plan and a recent case in the Queensland Industrial Relations Commission involving an employee who was reinstated after a “brain snap” and the employer’s procedural failures. Click on the link below to read our February Newsletter: https://lnkd.in/en8-2da3

Determining modern award coverage and classification: Employers are regularly faced with various challenges, one of which includes determining the appropriate modern award and classification for their employees. Accurately determining modern award coverage and classification is essential, as it ensures employees are receiving their minimum entitlements. Additionally, incorrectly determining modern award coverage and classification may result in employers having to backpay employees, pay interest on underpayments and/or face financial penalties. Watch our video for further information or contact the team at HR Business Assist today! HR Business Assist | 1300 138 551 | support@hrbusinessassist.com.au #ModernAward #Classification #ClassificationLevel #PayPoints #Levels #Grades #Coverage #HR #HumanResources #HRBA #HRBusinessAssist #HRHelp #Assistance

In the case of Black v Gladstone Regional Council [2024] QIRC 285 (6 December 2024), a Gladstone Regional Council Team Leader (“Team Leader”) who privately referred to his supervisor as a “rude c$#t” and flippantly threatened physical harm was reinstated by the Queensland Industrial Relations Commission (“QIRC”) as it found that the Team Leader had a “brain snap” and procedural failures had not occurred in his termination.   Commissioner McLennan found that the Council failed to comply with their disciplinary processes because the Team Leader was only given an evening to arrange a person of support (and was unable to secure a support person in time), he was not advised of his right to have a union representative and he was not given sufficient detail in the notice about the purpose of the meeting. The evidence showed that the Council initially proposed a written warning and Commissioner McLennan stated that it was “highly regrettable the [Council] strayed from its original considered path”.  The Commissioner viewed that “a written warning in all the circumstances of this case was the correct course”.   The QIRC also accepted that the dismissal was unreasonable because it was a disproportionate response to the Team Leader’s unblemished employment record, he was under pressure at the time, and the text messages were out of character. The QIRC also considered that the Team Leader had showed remorse and expressed willingness and commitment to improving his behaviour.   To this end, the Tribunal found the dismissal to be unfair, unjust and unreasonable and ordered that the Team Leader be reinstated and ordered the Council to pay the Team Leader renumeration lost during the period of dismissal.   LESSONS Procedural fairness - During disciplinary proceedings and processes, employees must be afforded procedural fairness. Employers should ensure that if these processes are in place, that they are adhered to in the relevant processes.    Proportionate disciplinary actions - The proportionate and appropriate disciplinary action in response to the Team Leader’s conduct was a written warning. Employers must ensure that when addressing employee issues, appropriate and proportionate measures are implemented.   Consideration of context and factors - Employers must take into consideration relevant factors when assessing termination of an employee including their employment record, length of service, and contextual circumstances. To access the full case, click here: https://lnkd.in/gMWugg87 To read our full summary of this case, click here:   https://lnkd.in/gT3Tbm6G

Have you had your template documents reviewed recently? The recent case of Elisha v Vision Australia Ltd [2024] HCASL 60 highlights the risks associated with poorly drafted employment contracts and deeds which left an employer exposed to significant financial consequences. To read our case brief, click on the link below.

We are pleased to announce that HR Law has again been recognised in Doyles’ Guide for Leading Employment Law Firms (Employer Representation) in Queensland. Furthermore, we are delighted to share that our Managing Partner, Jill Hignett, has also again been listed as a Recommended Employment Lawyer (Employer Representation) in Queensland, 2025. As a Workplace Relations Accredited Specialist, Jill’s expertise and leadership have been instrumental in guiding our firm and ensuring we can continue to provide the most strategic, practical and commercially realistic advice to our clients. https://lnkd.in/gCfGCpvu

Do you subscribe to our monthly newsletter? As we settle into the New Year, we encourage employers to take the opportunity to review their employment practices to ensure they align with current legislative requirements. Details of our Workplace HR Audit offer can be found in the Newsletter. We also discuss a recent case in which the Fair Work Commission upheld the reinstatement of a Flight Attendant dismissed for drinking alcohol less than eight hours before a shift and allegedly breaching Virgin’s Fatigue Management Policy. Click on the link below to read our Newsletter.

In late January 2025, a Fair Work Commission (“FWC”) Full Bench redetermined a rejection of a late general protections application. As you may be aware, employees must file their general protections application within 21 days of their dismissal, subject to exceptional circumstances. In this case, the employee, Mr Kurtev, lodged his application 33 days after his dismissal, being 12 days after the statutory deadline. Mr Kurtev made his application on the basis that his dismissal was in contravention of the general protections in the Fair Work Act 2009 (Cth) (“FW Act”) as the reasons for his dismissal included physical or mental disability. Under section 351 of the FW Act, employers are prohibited from taking adverse action against employees or prospective employees on the basis of specific characteristics (including physical disability).  Mr Kurtev claimed he was suffering from Parkinson’s disease, a diagnosis he received after the termination of his employment. Mr Kurtev sought an extension to lodge his general protections claim on the grounds that he was “unable to confirm his medical condition in order to formulate his claim” prior to his application. Under section 366(2) of the FW Act, the FWC may allow a further period for a dismissal application to be made if the FWC is satisfied that there are “exceptional circumstances”. In the initial decision, Commissioner Leigh Johns refused Mr Kurtev’s extension application and held that no “exceptional circumstances” applied, finding that Mr Kurtev “did not need to wait for the diagnoses before filing his application”. Mr Kurtev subsequently appealed Commissioner Leigh Johns decision. The Full Bench overturned Commissioner Leigh Johns’ initial decision, forming the view that this case provided a set of “unprecedented circumstances”. The Full Bench granted Mr Kurtev’s extension application on the basis that “he needed to know whether he was suffering from a recognised medical condition and the nature of that condition before he could consider or make a claim that he was dismissed because of the symptoms or manifestations of a physical or mental disability for the purposes of s351(1) of the Act". In the Full Bench decision, the Full Bench also commented on the merits of Mr Kurtev’s claim stating that the claim “potentially raises complex issues of both fact and law, including as to whether a distinction can be drawn between a disability and its manifestations and may require consideration of the nature of Parkinson's disease as a condition, the features or symptoms of Parkinson's disease as well as the mental processes of the decision-maker”. The Full Bench remitted the substantive claim back to Commissioner Leigh Johns for consideration, pending listing.    To access the full case, click https://lnkd.in/gutVjU2C. 

From 1 January 2025, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024(“Closing Loopholes”) enforced provisions making the intentional underpayment of wages and entitlements to employees a criminal offence. The Fair Work Ombudsman (“FWO”) has published a guide for employers of all sizes to protect themselves from criminal liability under the Voluntary Small Business Wage Compliance Code and Closing Loopholes wage theft provisions. This guide provides employers with practical advice and tools to ensure they are not underpaying their employees (such as checklists and strategies for fixing errors). Additionally, this guide provides guidance on navigating Award entitlements and classifications and following pay-slip and record keeping obligations. The FWO has stated that businesses “do not have to check off every factor in the code to get the benefit of the Code”, rather the “overall picture of the business” will be assessed in the particular circumstances to determine whether the Code has been complied with. FWO representative, Anna Booth, has stated that this guide “will be the blueprint for every employer in Australia, and there will be no excuse for failing to comply with the law”. To access the Code, click here: https://lnkd.in/gmbdWwZ8 To access the guide, click here: https://lnkd.in/ghnQkQAn  

In Virgin Airlines Australia Pty Ltd v Dylan Macnish [2025] FWCFB 6, the Full Bench of the Fair Work Commission upheld the reinstatement of a flight attendant dismissed for drinking a glass of prosecco less than eight hours before a shift and allegedly breaching Virgin’s Fatigue Management Policy. The flight attendant was dismissed for consuming alcohol at a Christmas party around seven-and-a-half hours before a shift, despite Virgin’s policy requiring an eight-hour alcohol-free period. However, in the original decision of the FWC, Commissioner Lim found the relevant policy was not clearly communicated, as the eight-hour prohibition was not included in its Drug and Alcohol Management Program Manual (DAMP). Commissioner Lim also found that the employee took reasonable steps to ascertain whether he could sign up for the shift including consulting with the Cabin Crew Manager, checking the DAMP and breathalysing himself. Virgin also dismissed the flight attendant for allegedly breaching its Fatigue Policy a month earlier, by claiming he was too tired to catch a scheduled flight, but then inviting a guest to his hotel room for casual s*x during his ‘fatigue period’. Specifically, Virgin alleged that the flight attendant had contacted Crew Tracking (its rostering and network support team) to advise that he would be too fatigued for his rostered flight. He was then moved to an afternoon flight.  After calling Crew Tracking, the flight attendant met with someone for casual s*x. Virgin held the view that this was inconsistent with its Fatigue Policy as the flight attendant did not use his fatigue leave to “appropriately obtain rest”. At the original hearing before Commissioner Lim, the flight attendant gave evidence that: - on his rostered flight prior, a passenger had experienced a medical episode which resulted in the passenger accidentally urinating on the flight attendant’s shirt sleeves; - due to the incident, he was unable to sleep; - he made the decision to have a physical interaction with someone to help him fall asleep. Commissioner Lim accepted the flight attendant’s evidence that he was unable to sleep after a stressful shift and acted in a manner consistent with seeking rest and, accordingly, this was not a breach of the Fatigue Policy. In the appeal, Virgin raised concerns about a breakdown of trust and confidence, safety and precedent-setting. However, the Full Bench dismissed these grounds, finding no error in the original decision. This decision highlights the importance of having clear and precise workplace policies that detail specific expectations for employees, to ensure there is no ambiguity in compliance requirements. Employers should ensure policies are consolidated, with expectations on topics located in a single, accessible source to avoid confusion. Further, in determining appropriate disciplinary action, employers should fairly evaluate an employee’s actions, including their proactive measures to adhere to policies.

HR Law is growing! We are looking for an Employment and Workplace Relations Lawyer to join our team at our office in Coolangatta, Gold Coast. If you are interested in gaining new skills and working with a great team, click on the link below.