Paid Parental Leave Bill makes its first appearance
By Nadine Zets of Gadens Lawyers, SydneyOn 12 May 2010, the long awaited Paid Parental Leave Bill 2010 (Bill) was introduced into the federal parliament.
The Bill seeks to establish, for the first time in Australia, a uniform paid parental leave scheme (Scheme) which will enable eligible primary carers to receive 18 weeks of paid parental leave at the national minimum wage.
Under the Bill, the Scheme will be available to primary carers who have or adopt a child on or after 1 January 2011 and who can satisfy the work, income and residency tests. In particular, a parent will be eligible for paid parental leave if the person applying for the leave:
has worked for a total period spanning at least 10 of the 13 months prior to the expected birth or adoption of the child with a break of no more than eight weeks between any two consecutive work days
has undertaken at least 330 hours of paid work during the 10-month period (an average of around one day of paid work a week)
has an income of $150,000 or less (to be indexed annually from 1 July 2012) in the financial year before the claim or birth of the baby, whichever is the earlier
is living in Australia and is an Australian citizen or permanent resident (although there are some exceptions).
The Scheme will be funded by the federal government but administered by employers through their own payroll systems. The Scheme is intended to compliment (as opposed to replace) paid parental schemes that employers already offer to their employees.
The Bill has been referred to the Senate Community Affairs Legislation Committee (Committee) for review and inquiry. The Committee's report on the Bill is due on 3 June 2010.
Implications for employers
Employers may wish to start reviewing or preparing their own parental leave schemes in light of the pending legislation. Employers should also follow the progress of the Bill closely.
Tram conductor reinstated after being dismissed for assaulting a passenger
By Nicholas Linke and Zev Costi of Gadens Lawyers, Adelaide
In a recent unfair dismissal application, Fair Work Australia (FWA) has reinstated a tram conductor and ordered his employer pay six months back pay after an altercation with a passenger who was preventing a tram from leaving a platform.
The decision of Peter Kidd v TransAdelaide [2010] FWA 2580 has important considerations for all employers investigating acts of employee misconduct.
The incident
The incident that led to the tram conductor’s employment being terminated by TransAdelaide was sparked when the conductor became involved in an altercation with two youths. As the tram was attempting to leave the platform, the first youth stood in the door way deliberately preventing the door from closing while the other youth stood outside on the platform. When the conductor asked the first youth to move from the doorway the second youth began verbally abusing the conductor.
TransAdelaide's policy was that when faced with verbal and or physical abuse from a passenger the conductor must back away from the incident and call the police.
However the conductor confronted the first youth obstructing the doorway and pushed the first youth. The contact was enough to move the first youth ‘rapidly’ across to the other side of the tram.
Both of the youths then violently assaulted the conductor by kicking him while he lay on the floor of the tram. Once the youths finished assaulting the conductor they ran from the tram. The conductor then, ‘in a dazed state’, chased after them where the youths again assaulted him.
The conductor was taken to hospital where he was treated for head trauma and minor hand and leg injuries.
TransAdelaide's investigation
TransAdelaide began investigating the incident and in the initial interview the conductor failed to mention that he had pushed the first youth. Upon reviewing the CCTV footage TransAdelaide discovered that it appeared that the conductor had pushed the first youth.
When shown the footage by TransAdelaide, the conductor admitted that he had pushed the first youth and that he should have walked away but that he did not remember the incident.
After conducting a full disciplinary hearing, the conductor’s employment was terminated on the grounds that he had pushed the first youth and that he had not reported the incident.
The hearing
In hearing the matter, FWA stated that the conductor should have handled the situation differently and that his approach amounted to misconduct.
However FWA found that there were mitigating circumstances including the provocation by the youths. In addition, there was a ‘strong element of reaction to the circumstances’, including the youths abusing the conductor and ignoring his directions.
FWA accepted medical evidence that the conductor suffered head trauma and did not remember the incident and therefore when he did not mention that he had pushed the youth he had not sought to mislead TransAdelaide.
FWA held that when all the circumstances were taken into account the dismissal was disproportionate. FWA also stated that the conduct by the conductor was a ‘one off’ and unlikely to happen again.
FWA ordered that TransAdelaide reinstate the conductor and that TransAdelaide pay the conductor for the six months between his dismissal and his return to work.
Key lessons for employers
When deciding whether to take disciplinary action after an investigation into misconduct, employers should ensure that all relevant factors are taken into account, including:
the degree to which an employee was provoked
the likelihood of the employee re-engaging in the misconduct
any reasonable justification for the employee’s actions or failures.
Can you be fired for driving under the nfluence outside of work time?
By Mark Sant of Gadens Lawyers, Sydney
A Full Bench of Fair Work Australia has confirmed that it was not harsh, unjust or unreasonable for J Boag and Son Brewing Pty Ltd (Boags) to terminate the employment of a process worker within Boags’ packaging department because the worker had been charged with driving his vehicle with a blood alcohol limit of 0.154.
Boags had a responsible drinking policy. The worker claimed that the policy was unreasonable as it attempted to control his conduct outside of working hours in circumstances where no harm was caused to Boags. Boags claimed that the policy was adopted to safeguards Boags' interests in the promotion of social drinking and to protect Boags' reputation as a supporter of responsible drinking.
The Full Bench upheld the decision of Senior Deputy President Kaufman finding that Boags’ termination of the worker was not in breach of the Fair Work Act 2009 (Cth). SDP Kaufman stated that not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breached that policy will have difficulty making out a claim that there is no valid reason for the termination.
Key lessons for employers
Employers should be aware that in some circumstances they may be able to terminate the employment of employees for their conduct outside of work. Generally, there must be a sufficient connection between the conduct and the employment relationship. Having a policy, like Boags in this instance, will help support the connection.
An exciting announcement from Gadens Lawyers Sydney’s Workplace Relations team
We are happy to announce that Jane Seymour and her team have joined the Gadens Lawyers Sydney Workplace Relations team from 31 May 2010.
Jane has almost 20 years’ experience in workplace law, and was previously the director of the Sydney office of the boutique workplace law firm, Justitia Lawyers & Consultants. Jane established the Sydney practice of Justitia Lawyers & Consultants in 2007. Prior to this, Jane worked for another boutique workplace law firm, and in the workplace law practices of a number of national law firms.
As well as advising on day-to-day employment and industrial issues, Jane’s team has particular expertise in workplace investigations and conducting large scale workplace training projects. Jane also has significant experience conducting post-employment restraint of trade litigation – injunction and damages proceedings – in Supreme Courts around Australia.
This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.