The Importance of Workplace Investigations

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A workplace investigation is a process where an external investigator conducts an impartial analysis of the facts and circumstances in relation to a workplace complaint. The importance of conducting a detailed workplace investigation prior to dismissing an employee is underestimated. A workplace investigation when conducted thoroughly, and with the necessary element of confidence, can ensure that employers do not become the subject of unfair dismissal claims that leave them out of pocket.

Andrew Gillmore v South Oakleigh Club

The importance of conducting a workplace investigation has recently been reiterated in the case of Andrew Gillmore v South Oakleigh Club. Mr Gilmore was employed by the South Oakleigh Club (Club) for 4 and a half years before his employment was terminated by his employer based on the following six allegations, that:

1. he told customers of the Club that the business “had no money”;
2. he had passed on the confidential information a staff member to a club member;
3. he had been disrespectful to the management of the Club, including the Operations Manager and General Manager;
4. he did not abide by a direction made by the General Manager to ensure that staff did not leave the Club alone;
5. he had engaged in an open conversation with a male Club member where sexual remarks were made; and
6. his behaviour towards the Head Chef of the Club had been aggressive and unprofessional.

After becoming aware of the allegations made against him, Mr Gillmore sought a copy of the Club’s policy to determine what he had breached. The Club then made a without prejudice offer to Mr Gillmore, which he rejected and a week later, Mr Gillmore received a letter from the Club stating that:

1. they rejected his counter offer;
2. the Club had determined his conduct was a breach of Club’s Sexual Harassment/Bullying prevention policy and as such was constituted as “serious misconduct”;
3. he had breached company policy on standards of conduct;
4. he had breached confidentiality provided in the Club’s Induction Manual; and
5. he had breached the implied duty of confidentiality.

Consequently, the Club terminated Mr Gillmore’s employment on the grounds of serious misconduct.

Mr Gillmore then filed an unfair dismissal claim with the Fair Work Commission. The Commission proceeded to hear evidence from several staff members to determine whether the six allegations made by the Club that formed the basis of Mr Gillmore’s termination could be substantiated. Based on the evidence provided by employees of the Club, the Commissioner was of the view that the evidence as a whole was “not compelling enough” to substantiate the said allegations. The Commissioner considered that the accounts provided by the staff members instead appeared to be “hearsay” and “not believable”. The Commissioner determined that the financial difficulties of the club were well known, and whilst the employee may have displayed aggressive behaviour to the Head Chef, neither of the allegations warranted the employee’s dismissal. A more appropriate penalty would have been training or counselling the employee on acting more professionally. Thus, the Commission ordered the Club compensate Mr Gilmore a sum of $27,000 in accordance with section 390 of the Fair Work Act 2009 (Cth) for his unfair dismissal.

Workplace Investigation Benefits

This case shows the importance of employers carefully considering the facts before terminating employment. It is likely that if the Club had ordered that a workplace investigation be conducted in relation to the allegations prior to dismissing Mr Gillmore, they may not have had to compensate him. This is because a workplace investigation would have ensured procedural fairness and indicated to the Commission that the Club valued achieving industrial justice by considering all the facts and circumstances before deciding to terminate Mr Gillmore’s employment.

Cube Workplace Solutions conducts workplace investigations. We aim to establish the facts by interviewing relevant parties and make our determinations based on the available evidence as to where the allegations are substantiated. We provide detailed investigation reports, and our independent recommendations based on your business’ circumstances.

If your workplace is currently experiencing grievances or unease because of an employee’s conduct, it is fundamental that you act by undertaking a workplace investigation. Contact our team today on 1300 122 823 to discuss your matter with a member of our professional team.

Triangular Employment Arrangements, Illegal? Maybe, says High Court.

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Section 357 of the Fair Work Act 2009, or as it’s more colloquially and pejoratively known as, the sham contracting provision, states that an employer cannot misrepresent an employment relationship as one of independent contracting. For years, employers have side stepped this provision by introducing a third party, such as a labour hire company, into a triangular arrangement with the employee. Well, no one likes being put in a triangle, and in fact, this triangular arrangement may constitute sham contracting, according to the High Court of Australia’s recent ruling, Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] HCA 45.

The specific case involved two housekeepers for Quest South Perth Holdings, whom Quest attempted to “convert” into independent contractors, by moving them, along with a receptionist to a labour hire company. If you’re thinking this sounds a little fishy, you’d be right, and so did the High Court. The labour hire company provided the housekeepers with “contractor applications,” which stated they would be, “an independent contractor for [Quest] rather than an employee. Nothing will change in terms of your roster of shifts and you will all get work at [Quest]. The pay rates are going to change so you’ll get one flat rate whenever you work but it will be higher than the base rate now.”

The housekeepers continued to do the same work they did for Quest, and in reality, were still employees of Quest. According to the majority judges, “a representation made by an employer to its employee that he or she is providing work as an independent contractor under a contract for services made with another person is not actionable.” Therefore, the housekeepers were never legally “converted,” they were still employees of Quest.

The “Odco” style triangular contract, is a means of hiring employees through commercial contracts (contracts for services) as opposed to employment agreements (contracts of service.) It refers to Building Workers Industrial Union of Australia & Ors v Odco Pty Ltd (1991) 29 FCR 104, a case brought by the building unions against Odco, which provided self employed construction workers to the building industry. The unions boycotted the sites, as they do, and prevented the workers from entering the buildings. The Federal Court at the time ruled that the union’s boycott was in violation of the Trade Practices Act 1974, but they also had to decide, in common law, if the Odco workers were employees or contractors, and they decided that they were contractors, and not employees of anyone.

The High Court’s decision makes it clear now that an employer cannot avoid the sham contracting provision merely by using a labour hire company. This decision is relevant for any Australian business that has adopted an “Odco” style contract. Some of these arrangements will be untouched by the ruling, and each arrangement must be evaluated by its own facts.

If you aren’t sure whether your use of labour hire employees would constitute sham contracting, give Cube Workplace Solutions a call on 1300 122 823 and speak directly with a employment lawyer – for your own peace of mind.

The Effect of the Digital Age on the Employment Relationship

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The modern workplace is rapidly transforming because of globalisation and technological innovations such as mobile phone applications (apps). The problem this presents is, whether individuals working for the companies producing the apps are ‘employees’ or ‘independent contractors’.

This article will explore the position that the United Kingdom has taken in relation to Uber Drivers and whether the mobile app gives rise to an employer-employee relationship. Whilst, the Australian judiciary is yet to deal directly with an employment matter concerning app-based companies, consideration will be made on the likely approach that the judiciary will take when assessing the status of worker as ‘employees’ or ‘independent contractors’.

The position of Uber Drivers in the UK

Uber is a technology based company that provides car transportation, and more recently has grown to food delivery through its mobile application. The company has significant global presence; currently operating in 570 cities globally. In 2015, the UK employment tribunal in the case of Aslam, Farrar & Others v Uber B.V., Uber London Ltd and Uber Britannia Ltd, considered whether Uber drivers constituted as ‘employees’ or ‘contractors’. Uber forwarded the argument that as the drivers were overseeing the transportation of people, responsible for keeping their own accounts of their dealings and accountable for their own taxes, the drivers were “third party contractors”. The concern with such a title is that ‘third party contractors’ have very minimal rights, they do not receive benefits such as minimum wage or paid leave. Uber considered that their role was to simply to facilitate the pick-up of passengers through the mobile application, thus arguing that it was not a business providing a service.

The employment tribunal outright rejected Uber UK’s viewpoint holding that when a driver takes on a passenger, it is Uber that has formulated the deal with the passenger, not the driver. Uber was held to be the controlling body since the Uber driver did not exercise power over the type of passenger it picked up and the drivers were bound to the terms and conditions of Uber, not their own terms. Thus, the decision followed that any driver that has the Uber App turned on, is within he proximity to work and is ready, willing and able to accept an assignment proposed by Uber is a ‘worker’ and not an ‘independent contractor’ for the driver has very minimal control over the process.

The position of app-based companies in Australia

Currently, two Australian based food delivery companies, Deliveroo and Foodora, are facing a similar issue to that presented by Uber in the UK. Deliveroo and Foodra are currently being investigated by law firm, Maurice Blackburn, for exploiting their couriers by hiring them as ‘independent contractors’ not ‘employees’. An ‘independent contractor’ is generally a person who is in business for themselves, and has sufficient control over how and when the work is performed. Deliveroo and Foodora employees have been vocal arguing that they did not feel like they were their ‘own boss’ when working, instead feeling like they were under the complete control of the companies. The inquiry has found that workers were forced to wear uniforms, had very minimal rights and did not have access to minimum pay rates, WorkCover, leave or superannuation. The matter is still under investigation.

‘Quacks like a Duck’ Test

In light of the above, if we apply the judgement of Justice Gray in Re Porter, where he stated, that “parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck”, we can see that if all the circumstances point towards an employer-employee relationship existing, the reality is that in spite of technological innovations and the digital age, the worker will at minimum be entitled to the ten National Employment Standards (NES).

The team at Cube Workplace Solutions has extensive experience determining whether your workers are independent contractors or employees. If you are uncertain about whether your workers are employees or independent contractors, contact Cube Workplace Solutions today on 1300 122 823 to discuss your matter with a member of our professional team.

Can I make an employee redundant if they are on worker’s compensation?

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You must not select an employee for redundancy due to illness, injury or because they are on worker’s compensation. However, an employee is not protected from redundancy simply because they are on worker’s compensation. If a decision is made to make an employee, who is on worker’s compensation, redundant you must carry out the ordinary process that you would for example meeting consultation requirements prescribed in Modern Awards and Enterprise Agreements.

Is an employee entitled to use personal leave for a doctor’s appointment?

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No, unless the employee is not fit for work. The Fair Work Act states that an employee is only entitled to use personal leave in circumstances where the employee is not fit for work because of a personal illness, or personal injury, affecting the employee or to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of (i) a personal illness, or personal injury, affecting the member; or (ii) an unexpected emergency affecting the member.