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eWISE April 2019                                     
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eWise - April 2019

Updates

The Federal Court of Australia has allowed a suspended University Professor to return to work.  

The Professor claimed her employer failed to comply with the enterprise agreement when standing her down with pay while investigating allegations of misconduct. 

The allegations were made against the Professor by two colleagues, concerned that continued interactions between the parties would create a risk to OH&S, the university sought to suspend the Professor from work on full pay during the investigation. 

The Professor applied to the Federal Court of Australia, arguing that the investigation and her subsequent suspension from work breached the detailed disciplinary clause set out in the University's enterprise agreement. 

The court agreed that there was a serious questions to be tried and granted an injunction to the Professor allowing her to continue working during the investigation. 

This matter is a timely reminder for organisations that enterprise agreements must be strictly followed. Failure to do so creates the risk that an employee has been unfairly dismissed and that the employer has potentially breached the Fair Work Act 2009 (Cth)

Had the University complied with the procedural requirements in the enterprise agreement, it is less likely the Professor's application to return to work during the investigation would have been successful. 

When negotiating enterprise agreements, employers should seek to avoid disciplinary clauses that restrict their ability to effectively manage performance issues or workplace investigations. 

The Fair Work Commission has recently published an updated version of the 'Enterprise Agreements Benchbook'. This benchbook is designed to assist parties who are bargaining and entering into an enterprise agreement.   

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Industrial Relations Minister Kelly O'Dwyer has accepted 'in principle' the 22 recommendations of the Migrant Worker's Taskforce Report this includes introducing criminal sanctions and higher penalties for 'most serious and egregious forms of deliberate exploitation of workers' e.g. underpaying and exploiting workers.  

It was noted that the powers of the Fair Work Ombudsman have also been enhanced. 

Ms O'Dwyer confirmed that this will not affect employers that accidentally or inadvertently do the wrong thing. 

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In a recent court case the Western Australia Supreme Court has ruled that "in an era of twerking" and easy access to pornography, it was not an indecent assault when a police officer pinched a woman's backside. 

previous ruling in 2001 stated for an assault to be indecent there must be a sexual connotation to the activity. It must be an activity which offends community standards of propriety prevailing at the relevant time. 

While the court agreed that this was an assault, but found it difficult to rule if it was 'indecent' assault under Western Australian law. 

The magistrate stated that the act was not indecent because it was not done for a sexual purpose.   

Despite this finding, a person's backside is an intimate part of their body and no-one should have to tolerate unwanted contact for someone else's amusement. The case fails to reinforce this message due to the definition of 'indecency'

It is important for Australian workplaces to make clear that deliberately pinching a person's backside is a form a sexual harassment, and is unacceptable, regardless if done for a sexual purpose or in a poor attempt at humour

Further information regarding sexual harassment can be found on the Human Rights website. 

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If you are interested in reading our blogs regularly they are released weekly on our Facebook, Twitter and LinkedIn social media pages - simply search for WISE Workplace on your chosen social media platform.  


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The Right Mix: Professionalism, Impartiality and Empathy

By Vince Scopelliti

When conducting a workplace, it is essential that there is consideration given to maintaining an appropriate balance between professionalism, impartiality and empathy. 

By ensuring that this balance is maintained, employers are best able to protect the interests of staff, and safeguard against allegations or inappropriate conduct during the investigatory stage.

Read the full article

 
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Legal Professional Privilege and Workplace Investigations

By Vince Scopelliti

When a workplace investigation is required, there may occasionally be good reason to seek legal professional privilege regarding the findings. This is particularly the case in matters that may require criminal investigation, such as fraud, theft or sexual harassment.

So, is it sufficient to engage a law firm when undertaking workplace investigation if you wish to attract legal professional privilege?  

Read the full article

 
   
 
 
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When to Use an External Investigator

By Vince Scopelliti

Using in-house resources to sort out organisational problems certainly makes a lot of sense. HR departments tend to be well equipped to receive and manage internal complaints, facilitating solutions as they go. 

But while sourcing external assistance can seem unnecessary, there are certain serious workplace situations where calling in a specialist investigative expertise will be the preferable solution.

Read the full article

 
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How to Take Action when Employees and Alcohol Mix

By Vince Scopelliti

Alcohol and workplaces never mix well. No matter the sort of work they do, employees should not be in the workplace when they are under the influence or still suffering the effects of alcohol consumption. This includes drinking at work or immediately before starting work, and those who are still impacted by a night night out.

Read the full article

 
 
     
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What's On

 
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Conducting Workplace Investigations - Advanced (3-days)

Location: Hobart
Date: 21-23 May 2019 


Location: Canberra
Date: 12- 14 June 2019 


Location: Brisbane
Date: 10 - 12 September 2019 


Location: Sydney
Date: 16 - 18 October 2019 


Location: Melbourne
Date: 12 - 14 November 2019 



Investigating Workplace Misconduct (1-day)

Location: Sydney
Date: 14 May 2019


Location: Melbourne
Date: 17 June 2019 


Location: Perth
Date: 29 July 2019 


Location: Hobart
Date: 13 August 2019 


Location: Darwin
Date: 16 September 2019 


Location: Canberra
Date: 19 November 2019 


For more information on Investigating Workplace Misconduct

Investigating Abuse In Care (4-day)

Location: Melbourne
Date: 23-26 July 2019 


Location: Sydney
Date: 6-9 August 2019 


For more information on Investigating Abuse In Care

 

 

 

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