Dynamics at Work – Autumn 2019 edition

Welcome to the Autumn edition of Dynamics at Work – our first newsletter for 2019.

Happy International Women’s Day for Friday, 8 March! With this year’s theme for #IWD2019 being #BalanceforBetter, it’s a great time for us all to reflect on what that means for us and our communities and what part, no matter how small, we can play in making a difference in achieving gender balance. This is a topic of particular interest and relevance to many of our HR professional clients and we in the Employment Team are always interested in supporting our clients make their business more diverse, inclusive and productive, whilst being legally compliant.

Otherwise, it’s been a very busy start to the year for HR and in-house lawyers. So many issues are on the agenda, from casuals and the problems of double-dipping, to modern slavery, changes to the National Employment Standards, changes to the right to request flexible work arrangements, and the introduction of the much-awaited whistleblowing legislation. Add to that a possible change of Government and labour policy, it’s a lot for HR and in-house legal teams to keep abreast of. The McCabe Curwood Employment Team are always on hand to help you navigate through these issues and many others in the ever-changing employment law landscape, so please reach out if we can be of any assistance.

We also have another breakfast seminar coming up on 28 March on ‘Practical Tips for Managing Ill and Injured Employees’ – it’s always a popular session so please RSVP early to ensure a spot. More details can be found below. We would love to see you there but if you cannot make it and would like us to bring the seminar in-house to you, then just pick up the phone to us to discuss.

Appropriate Workplace Behaviour training – We’ve just done our compulsory training, have you?

As an employer committed to providing a workplace free of all forms of discrimination, bullying and sexual harassment, all McCabe Curwood staff (including our principals) have been required to attend training on Appropriate Workplace Behaviour. Lawyers are not immune! Facilitated by the McCabe Curwood Employment Team, the training covered bullying, discrimination, harassment and WHS. Participants were educated on issues such as, what is the ‘workplace’?; the impact of technology, including social media, on the types of claims we are seeing; and how to call out inappropriate behaviour if you experience it.

It is important that all organisations conduct Appropriate Workplace Training. Not only does it help instil your company’s values into the workforce to support a positive culture, it also ensures employees understand the ramifications that inappropriate behaviour can have on others and it can also mitigate the exposure of the employer if bullying, discrimination or harassment do occur in the workplace.

If your organisation has not conducted Appropriate Workplace Training for 12 months or more, please get in touch with us to discuss how we can tailor a training session or program for you.

Upcoming seminar – Practical tips for managing ill and injured workers

Venue: McCabe Curwood – Level 38, MLC Centre, 19 Martin Place, Sydney
Date: Thursday, 28 March 2019
Time: 8.00am to 9.00am

Please join us for a light breakfast in the McCabe Curwood boardroom from 7.45am.

Topic overview

At some stage, most employers will need to manage ill or injured workers and/or manage extended or repeated absences. Often managing these situations is not straightforward. In one of the most complex areas of employee management to navigate, employers need to understand their own rights and obligations as well as those of the employee. Many issues arise for consideration, including:

  • how to deal with questions around the legitimacy of an illness or injury or its certification;
  • when you can request further medical information;
  • how to manage an employee who goes absent while undergoing performance management;
  • understanding when an employee may be able to return to work and your obligations to make adjustments;
  • when it may be lawful to terminate an employee who has been on an extended absence.
McCabe Curwood’s Employment Team understand the complexities around managing an employee who is suffering from an illness or injury and all the competing interests that go with it. During the seminar we will answer the following questions:

  • What entitlements does my ill or injured employee have?
  • Do I have to accept an employee’s medical certificate as suitable evidence of their illness or injury?
  • Can I send an employee for an independent medical examination?
  • Can I continue to performance manage or investigate an ill or injured employee?
  • Can I terminate an ill or injured employee?
  • What protections are afforded to ill and injured employees?
Following the presentation, we will have some time for questions and discussion.


2019 seminars

As announced in our last newsletter, 2019 seminar dates have been locked in. The upcoming seminars will focus on managing ill and injured workers, the intersection between employment law and workers’ compensation claims and an update on general protection/adverse action claims.

Mark these dates in your diary now to ensure that you can attend.

Our latest articles

We are continuously writing articles for various publications with the aim of keeping employment issues front of mind for those that deal with people management on a regular (or not so regular) basis.

Take a look at our latest work:

Unpaid internships back in the spotlight Unpaid internships are back in the spotlight following comments made by Muffin Break’s General Manager about the willingness of Millennials to perform unpaid work and a penalty of almost $330,000 being ordered against a former Shark Tank contestant.  We report on these events and share a three-part series on unpaid internships to educate employers on this topic.

Do not pass GO, do not collect $200 – Breach of WHS duties met with jail sentences in recent court decisions Two individuals have recently been dealt jail sentences in circumstances where their contravention of work health and safety duties had fatal consequences. The decision to order a custodial sentence in these cases signals an increased willingness to impose harsher penalties on businesses and individuals that breach their WHS obligations.

Fair Work amendments prevent casuals from having their cake and eating it too Amendments to the Fair Work Regulations have alleviated the opportunity for employees, who have been incorrectly classified as ‘casuals’, from double-dipping on their entitlements.  The changes come after a casual employee was awarded compensation with respect to annual leave entitlements, despite the fact he had been paid a casual loading during his employment.

Casual conversion and the National Employment Standards  On 13 February 2019, the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 (Cth) was introduced into the House of Representatives. The Bill seeks to amend the Fair Work Act 2009, enshrining a new National Employment Standard entitlement that will enable eligible casual employees to request to be converted from casual employment to full-time or part-time employment.

Remuneration and how it drives your culture – takeaways for all organisations from the Royal Commission In this article we look at the issues and recommendations in so far as how culture, including how employees are remunerated, has allowed misconduct to occur.  It is clear that many of the areas of concern, the risks and the recommendations identified in the Report could apply far beyond the financial services sector. They can apply equally to any organisation with a sales business.

A tale of two derogatory comments – when is it bad enough to warrant dismissal? Two recent decisions of the Fair Work Commission have considered the issue of when an employee can be dismissed for making a derogatory or insulting comment. As this article highlights, the context in which a comment was said and any past acts of misconduct are relevant to whether dismissal is appropriate in the circumstances.

Our Employment Team assists clients to meet their goals by helping them navigate the heavily-regulated and dynamic employment environment.


Erin Kidd Special Counsel
Elisa Blakers Lawyer