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MONTH IN REVIEW – SEPTEMBER 2016

As we come to the end of the third quarter and fast approach the end of the year, we take a look back at the stories that have made headlines over the past month in the employment law and human resources sphere and how these might affect your business.

In the News

John Howard made headlines after stating that he doesn’t believe that a 50-50 gender representation is ever likely to happen in Parliament as women play a ‘significantly greater part of fulfilling the caring role in our communities, which inevitably will place some limits on their capacity.’ While speaking about the idea of quotas in a parliamentary context, his opinion caused uproar for not acknowledging that parity of gender representation is an ongoing and unacceptable issue across all areas of the workforce.

The latest quarterly Diversity Report by the Australian Institute of Company Directors shows that while the target of 30% women on boards by 2018 is in sight, there are still 22 companies listed on the ASX200 that remain female-free. A global Credit Suisse report has revealed that companies with a higher participation of women in decision-making roles generate higher returns on equity, superior sales growth and more conservative balance sheets.

Analysis of Australian Bureau of Statistics data has revealed that the number of people who work from home has increased from 20% to 30% of the workforce over the past 15 years. Of that number, nearly 50% say that they work from home in order to ‘catch up’ on their heavy workloads. This statistic supports a different study that employees in Australia donate around $110 billion in free labour every year.

A study from Bond University revealed that you are just as likely to come up against a boss with psychopathic tendencies in your office as you are in the prison population, with a statistic of around 1 in 5. Termed ‘successful psychopaths’, their traits include insincerity, a lack of empathy or remorse, egocentric, charming and superficiality. Research such as this is particularly significant in highlighting the argument for a stronger emphasis on job candidate personality over skill and qualification.

Millennial workers are reportedly driving the rise of the ‘work martyr’: people who don’t take holiday time as they feel no one else can perform their role, show complete dedication, avoid being seen as replaceable and feel guilty taking time off.

The US Circuit Court of Appeals has made a controversial decision after finding that a company that refused to employ a woman with dreadlocks had not engaged in unlawful racial discrimination. The Court found that whilst dreadlocks are “culturally associated with race”, they are not an “immutable characteristic of black persons”.

Meanwhile, our own contributor, Alecia Thompson, this month wrote about how difficult it can be to manage informal workplace complaints and the importance of not sticking your head in the sand and instead addressing the complaint in a measured and controlled way.

In the Courts

An employee has been refused workers’ compensation for injuries sustained at a client’s social event after a tribunal found that the employee’s attendance wasn’t required by his employment. The employee was invited to attend an AFL match on ANZAC Day 2015 where he fell and injured his knee, groin and back. The tribunal found that the employee’s attendance at the event was not used to measure his performance, was not a key performance indicator, did not form part of any annual reviews and was not required or encouraged by his employer.

The Federal Circuit Court has found that when an employment contract is silent as to notice, an employer may be required to provide reasonable notice beyond the minimum notice set out in the National Employment Standards. The Court found that it was unlikely that Parliament intended for an employee who had worked for 5 years and another who had worked for 25 years to be provided with the same period of notice under section 117(2) of the Fair Work Act when their contracts made no provision for notice of termination.

A Rio Tinto subsidiary has been ordered to pay an injured mineworker almost $1.3 million in one of the highest awards of compensation ever made for a breach of general protections. The employee had suffered a serious workplace injury of which a workers compensation claim was accepted. In 2013, the employee was awarded $637,000 in common law damages for a back injury and just four days later, Hail Creek stood him down and refused to permit him to return to work. The Court found that the employee had exercised his workplace right to claim compensation for his injury and in response, Hail Creek had taken unlawful adverse action by refusing to allow him to return to work.

In a case highlighting how important it is for employers to have clear contractual provisions and policies in place for bonus and incentive payments, the WA Industrial Relations Commission has ruled against a national sales manager in his attempt to win more than $220,000 in contractual entitlements and bonus payments that were allegedly denied to him over three years after finding that the bonus scheme was clear and unambiguous and that therefore, the employee was not entitled to any bonus payments.

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