Susanna Ma v Expeditors International Pty Limited (2014) NSWSC 859

Notice Payment on Termination


What interests me most about the Susanna Ma v Expeditors International Pty Limited (2014) NSWSC 859 (30 June 2014) a case which has generated much interest, is that the company thought it was a viable idea to apply statutory (NES) notice – 5 weeks pay on a “base” rate which did not include Ms Ma’s bonus. Ms May was on a circa average $750k position with approximately $70,000 salary with the rest of her remuneration package made up of bonuses. Ms Ma’s position was as a CFO in the international shipping firm with 12 people reporting to her. Ms Ma had more than 24 years service and had been held in high esteem. The employer’s story was that they thought Ms Ma had breached conflict of interest requirements (specifically her contractual and fiduciary duties) in authorising payment of invoices and certificates for a cleaning company in which her brother had an interest. The Supreme Court did not accept this story as the company had engaged with the brother during negotiations for the cleaning contract and the Court concluded that Ms Ma had been authorised by the Company to approve invoices from the cleaning firm if they were within the originally agreed amount. Therefore as there was no misconduct found, reasonable notice applied. Ms Ma did not have an employment contract dealing with termination notice although there were letters relating to salary and bonuses. Therefore in the absence of a contractual term relating to notice on termination, reasonable notice had to apply to Ms Ma. The Court applied the principles set out in the Victorian Supreme Court’s decision in Rankin v Marine Power International and therefore took into account Ms Ma’s length of service, her age at termination (a very young 49); her high level of responsibility (as reflected in her remuneration) and the fact that it was likely to take Ms Ma a long time to secure suitable alternative employment (as evidenced by her concerted but failed efforts to do so and hence mitigate her loss. In addition, the Court found that “ordinary pay” under section 3 of the NSW Long Service Leave Act included employer superannuation contributions. This meant her LSL payout increased spectacularly from $28,530 to nearly $300,000. The upshot was that in total, Ms Ma was awarded in excess of a million dollars based on 10 months pay on her average annual remuneration of $750,000, rather than only on her salary component which was a mere $70,000. The company’s original payout had been just over $50,000 in total. Sound employment agreements and advice on terminations is essential.


Final Warnings

If an employee is issued with a final warning, they cannot be dismissed for a further offence or poor performance unless they have been previously warned or at least verbally counselled about the same or similar new offence. So if an employee has received a final warning for swearing in the workplace and then is later found to have failed to wear his safety gear correctly, but has never been warned or counselled for failing to wear safety equipment correctly before (and the offence is not serious enough to warrant summary dismissal), it is highly unlikely that there will be a sustainable termination case.



Lazy Employees



What can a manager do about lazy employees? KMIR is often asked this question. Our first response is always: please give examples and specifics. Often this is difficult to do but it helps to analyse the problem and is essential if a disciplinary track is to be followed. Each case is different, however here are two management tips for you to consider. Tip 1: The lazy employee (let’s call him Jed) needs motivation as soon as he turns up for work. Jed needs to manoeuvred into starting some actual work within 5 minutes of his starting time. Try giving him a specific daily 30 minute task that he must have completed by 9am each morning if he starts at 8.30am. If you do not do that, Jed will still be having his breakfast at his
desk, checking his phone, sending personal texts and putting his shoes on (or taking them off) for the first 30 minutes of each work day. Tip 2: Never ask Jed to do anything. Always instruct him, politely. For example, email him: “Jed, please email me the completed and fully checked Conalt document by 10am today.” KMIR knows such directness makes many of you uneasy, but it is necessary as Jed will always take a request from you as being optional. Which will make you as his manager livid with rage. Accusations will start flying and before you know it, the situation will be out of hand. A clear, firm instruction is not “rude” nor is it bullying. Make sure you are polite and always thank Jed when he does get his work done on time.


Emergency plans and procedures



Does your workplace have an emergency plan and procedures? You must develop one, even if you have a small business. In times of dire emergency, unless they are properly trained, most people do four things: a) freeze b) try and pretend what is happening is not happening and keep going with what they are currently doing c) go along with whatever everyone else is doing rather than face the potential embarrassment of suggesting something else and d) waste critical time asking someone else if they should do something. Employers must consult with staff and develop a simple, easy to understand emergency plan and procedures tailored for the specific major risks of your business. Communicate the plan, practise it regularly, analyse what went wrong at each practice. Then fine-tune, re-write and re-engineer aspects of your workplace if necessary due to unacceptable risk problems. Then practise the emergency procedures again. Contact KMIR if you need any help with this. Simple and practical is best practice.

Leave Loading on termination



Are any of your employees leaving soon and you are paying out their accrued unused annual leave? Then you must also pay out the annual leave loading that would have been payable (under award or agreement) had they taken the leave. Section 90(2) of the Fair Work Act requires this – and you must comply – even if you have an award, agreement or contract which says that you need not pay out leave loading on termination. Another KMIR employment conditions tip that is not automatic common sense. Contact with any queries, please.

Employment agreements and policies



Employment agreements and policies are not better if they are 20 pages long rather than 2. They are not more likely to be accurate or effective if they look complicated or legalistic. Your employment agreements and policies need to comply with the law. They also need to suit your specific business needs, your workplace culture and be able to as individualised. Policy is a very useful tool to shape and influence workplaces. So do not use generic cornflake box rubbish documents sold 100 to the pack that you may find on the Internet. The documents will mean nothing to you and even less to your employees. You will have lost an opportunity and not gained anything at all. Choosing generic internet cornflake policies and agreements is like trying to find lasting nutrition by chewing on cardboard.


Frequent Flyers



“Apparently” (always the word we use before hearsay!) there are many senior managers in Australia who will fly anywhere anytime for their employer to secure Platinum status on their frequent flyer cards.  The question arises, do those senior managers actually own their frequent flier reward points or does the Company whose name is on their business credit card? If the employer produces a policy – properly drafted and communicated – which says that it does, then it WILL own them for all practical intents and purposes – certainly for all points accumulated from the commencement of the policy. But is this a good idea? Few if any senior managers are paid travelling time for any travel that they have to do outside their normal working hours. It is assumed that their salary will cover dragging themselves to the airport to get the 5am red eye. Certainly procurement policies must be strict if employees are retaining their flyer reward points, as it is very tempting to find reasons to choose expensive flights which will reap more points rewards. Some companies force their employees to use their points balance to buy future flights required by the employer. Other employers are happy just to see the points as a motivating factor for their staff to keep flying whenever and wherever.





Employees who are made redundant do not need to sign for their statutory entitlements. Nor do they need to sign that they have “accepted” their redundancy. It is unlawful to make or imply that payment of statutory entitlements is subject to signature. Employees cannot “accept” being retrenched. This common practice is an extremely poor way to treat an employee you have made redundant. Employers need to plan all aspects of redundancy carefully, including respectful and proper treatment of affected employees.


Workspace and the workplace culture



Your employer has stopped you from decorating your desk with your Skylander figurines. Isn’t this an invasion of your private workspace? But a workplace is not your home. You can indeed be told to put your toys away! On the other hand, employees are most effective and productive if they have some privacy in their work location (open plan has finally been debunked by current research) and some sense of ownership of their desk space. Desk wars and “DON’T MOVE THIS STAPLER” are expressions at the very heart of workplace culture. So employers must strike a balance between a tidy, clean, business-like looking work environment versus allowing and encouraging some personalisation of workspace and amenities by employees. So will this Skylander stay or go? And why is the desk made of red sequins?


Issuing a warning



Employers, you cannot issue a warning without having given your employee a fair opportunity to respond beforehand. KMIR keeps seeing very flash looking warnings being issued by employers without ANY opportunity for the employee to respond to the allegations beforehand. This is unlawful and these warnings are invalid. Such warnings compromise any future termination case. KMIR is also observing employers giving an employee an opportunity to respond to some but not ALL of the grounds for the warning. This occurs because extra irritating behaviours/acts/omissions of the employee get thrown into the mix by various managers AFTER the disciplinary meeting has been conducted. So overworked HR (or whoever is writing the warning letter) think no one will notice if they slip in a few extra bits and pieces in the warning letter. Someone WILL notice, and it is highly likely to be a cranky, unimpressed Fair Work Commission Commissioner  during an unfair dismissal arbitration that the employer will consequentially lose. Cutting corners on disciplinary practices is guaranteed to lead to trouble and embarassment for employers. Senior managers, CEOs and General Managers, if something looks wrong on disciplinary documentation drawn up your HR people, please question it before the letter is sent out. Do not just go along with it, hoping for the best. Contact KMIR for advice (and second opinions) on disciplinary management practices. Frequently, KMIR can fix up employer mistakes after the event, but before the event is much better, fairer and cheaper.


Road Transport and Distribution Award

Employers including labour hire agencies who are employing drivers under the Road Transport and Distribution Award should be reimbursing the cost of a work diary if they require their employees to possess one. (Clause 16.3 of the Award). Work diaries should be returned undamaged and intact upon termination of employment although you cannot withhold final payment of accruals until this is done. KMIR knows some employers push the limits on this. Employees, please do the right thing and return your employer’s property promptly when you leave. Clause 16.3 of RTD Award. KMIR recommends that everyone employing under the RTD has a good thorough read of clause 16.3 – Expenses Incurred in the Course of employment – and make sure you are complying, particularly with regard to uniforms. Email Katrina on if you need help with this.


Apprentice notice of termination

Apprentices who have a specified period in their contract are not entitled to notice of termination. The apprentice must still be advised in writing that his or her apprenticeship has been terminated. There must be valid reasons as to why the apprenticeship can no longer continue.


Fair Work Commission Review of Modern Awards for the Road Transport and Distribution Award


KMIR very much enjoyed representing one of our transport and logistics clients as an advocate in the Fair Work Commission Review of Modern Awards for the Road Transport and Distribution Award. The Review took the form of many applications, conferences and finally arbitration before Senior Deputy President Harrison in Sydney. This deals with many vital aspects of the Award including the correct payment and application of overtime rest break (crib break), casual overtime and meal allowance, and will affect every company in the transport and logistics industry in Australia whether covered by an award or an enterprise agreement.


CCTV Myths



Three popular MYTHS about CCTV:

  1. CCTV is an unlawful outright invasion of privacy of workers!
  2. Employers have the right to put CCTV in change rooms to protect against theft;
  3. Employers have the right to put CCTV in toilets to stop people taking too long on their breaks!
  4. It is wrong to view CCTV footage offsite or outside normal work hours!

All these things are UNTRUE. Now some useful (accurate) tips for good CCTV practice for employers:

  1. Develop a clear protocol of which staff can access CCTV and how. Your footage is only as good as the protocols around it. KMIR has been involved in cases where managers tried to tamper with CCTV footage to protect themselves from incrimination.
  2. Have a number of checks and balances in place to protect against fraud and theft – not just CCTV. For example, keeping sound accurate stock records and secure personal ID entry and exit systems to identify who is in any one building or work location at any one time. Contact for advice on CCTV in workplaces.


The bonus of statutory superannuation



Did you know that statutory superannuation must be paid on all Christmas bonuses and performance bonuses? Many employers seem to forget to do this. Superannuation is not payable on genuine overtime – which means outside ordinary hours with a penalty applied. Flat rates attract superannuation on the full amount. All allowances except expense reimbursement allowances must have superannuation paid on them. Nice little nest egg windfall for some! Email if you have any super questions.

Payment for training



Training is just the same as work. Employers must follow the rules properly and pay employees to attend. KMIR was advised of a health practice that decided to give a LOWER pay rate to permanent employees who had to attend an internal training day workshop. The workshop was scheduled during the staff’s ordinary hours. The reason given for the “special rate” was that the practice would have no clients on the training day and hence no income. Seriously? Employers can’t just fabricate unfair rules like this. It is just not cricket. Training is a huge essential benefit for employers as well as employees. If it was not so beneficial (and to your bottom line) then presumably you would not do any training. KMIR wants to emphasise that this case is not about one of our employer clients. We are very proud of all of our employer clients, otherwise they would not be our client. Employers need to play hard but play fair.




Bullying is the topic du jour again. The ghastly thugs are everywhere it seems, all ages, all sizes. The problem is that these workplace creeps will continue to thrive unless other employees have the emotional resilience to beat them off and genuinely not care about what rubbish these people say and do. Such resilience is hard to find as most people prize being liked above all else and hence fall into the bully’s potential prey list. Does this mean as employers and professional associations that we are approaching bullying in the wrong way? Currently we are spending thousands upon thousands on investigating conduct of people who are almost always bald-faced liars (and therefore very difficult to pin down in an investigation). Should we be investing instead in emotional resilience techniques training for the good employees to increase their ability to protect themselves? Plus investing in better, smarter recruitment techniques to keep the bullies out? KMIR thinks this is the better track. Investigations may uncover the truth but often well after the damage is done. Employees need our professional help to develop a reliable, highly effective, protective, resilient shell. KMIR thinks we need to
re-look at bullying and come up with new ways for employers to invest in their good employees to help deal with the problem. If we don’t do this, we force our good employees to become complainants and therefore victims. This is wrong and
in some ways immediately gives the bully the upper hand.

Continuous Service



A period of maternity leave less than 1 year does not break continuous service entitlement to Long Service but that period of time off is not counted as service towards Long Service Leave.


Managing v Bullying



Under the new Fair Work Commission bullying system which started on 1 January 2014, bullying claims will have the same sort of exclusions as workers compensation laws in all jurisdictions. This means that managers can still take ppropriate management action, including dealing with poor performance. They can still take necessary disciplinary action. They can direct and control the way that work is carried out. So for example, if a manager tells you several times that you need to stop making so many personal calls at work as it is interfering with your ability to get the job done and is wasting too much time, this is not likely to be bullying or an unwarranted intrusion into your privacy. It WILL be bullying if the manager is attempting to convey this valid message by (for example) screaming at you, using swear words and staring into your face two centimetres away from your nose. It will also be bullying if a manager (or indeed any employee) is in the habit of saying pleasantries to an employee in private or in public, such as “You are a hopeless case, you are like the proverbial shag on a rock around here, wrong hair, wrong clothes, stupid friends. You don’t fit in, you never did and I don’t understand why you are still standing in front of me.” (Real KMIR story, only slightly altered to protect the innocent.)


Labour hire “worker”



Fair Work Commission released its summary of the case management model for the new anti-bullying jurisdiction which commenced 1 January 2014. The definition of “worker” includes employees of labour hire companies working on an employer’s site. So employers must work in close partnership with their labour hire providers to get ready for the likely wave of bullying cases in 2014. “Host” employers are now directly responsible under the jurisdiction of the new parts of the Fair Work Act and therefore cannot expect labour hire providers to deal with bullying complaints from their casuals in isolation if it relates to activities at your work site. Please seek advice on this from KMIR if you are unsure as to how to proceed. 1 January is not far away. KMIR FB will continue to post on important aspects of bullying in the meantime.


Enterprise Bargaining Bewards



Red tape gone crazy again. Boral Tasmania’s EBA has been knocked back by Fair Work Commission because they attached a pro forma document to their Notice of Representational Rights. Which apparently means they breached the Fair Work Act by way of an errant staple. So for those of you about to start a new EBA, please stick rigidly to the pro forma document that you can download from the Fair Work Commission website. Don’t get creative and add or delete any bits and pieces. And for goodness sake, stay away from the stapler. KMIR sends our sincerest sympathies to Boral Tasmania this morning. Reminds us of the time, many years ago that a big EBA in the meat industry got knocked back for substandard use of commas. KMIR had some sympathy for that Commissioner’s argument, however, although the affected employer and union did not!


Award Coverage



Building empty castles in the sky? Accountants, finance professionals, marketing professionals, legal, human resources, public relations, information technology specialists and dental hygienists are all award free. The vast majority of occupations and jobs in Australia are not. Do you really understand the correct award coverage for all your staff? Are you sure your admin/HR staff know what they are doing and are getting your employee relations structures right? Unfortunately, the correct application of modern awards is about as easy to grasp as clouds. The awards cannot be read in isolation and they cannot be read literally, although at first glance it looks as though they can. Award free staff have special requirements and considerations. You do need experienced, professional advice. KMIR would love to assist your business, organisation or professional association to build solid, accurate employment conditions foundations and systems.





Resignations can be tiresome. This is because there is no mandatory minimum period of notice that a resigning employee must give under the Fair Work Act! So, please check the relevant modern award to see if there is a minimum resignation notice period. For example, the Clerks – Private Sector Award specifies the same notice period as the employer has. Next, check the letter of offer/employment agreement to see what that says on the matter. Employers please remember there is no automatic right to deduct the resignation notice that should have been given from annual leave accrual. There is a common law right to sue for insufficient/unreasonable notice if the lack of notice impacts very seriously on your business leaving you in dire straits. A few things to think about today, not tomorrow, Miss Scarlett?


“Abandonment of employment”



“Abandonment of employment” does not mean a fancy-free young employee having a long weekend bender and then not turning up until Tuesday. If your employee fails to turn up and does not let you know, this is a disciplinary situation. But in the first instance, to comply with the law and to be a nice person, you need to try and track the employee down both by telephone and in writing. You advise them that they must immediately report to work unless they have good reason not to and in which case, they must contact you immediately and tell you what that reason is. Abandonment of employment is not an automatic termination process. There are several necessary procedural steps to be taken first. This lovely old car never made it back to its workplace and decided to live in the forest amongst the moss instead. I don’t think the car’s employer ever tracked it down.


Medica Certificates



If an employer obtains a medical certificate from an employee where the name of the doctor, or the address of the medical practice are sufficiently obscured as to be illegible, the employer can advise the employee that a replacement certificate must be sought. By the employee. This does not include the description of medical condition in the hand writing of the doctor, otherwise no medical certificate from any doctor would ever be acceptable. Is it a tradition, an indication of ersonality type and/or a desire for inscrutability which is the reason why so many doctors have illegible hand writing?


Paid Sick Leave



Surely this woman can’t take paid sick leave to go and see her plastic surgeon again? Yes, she can. This particular Barbie is a permanent employee and so she has a right to use her accrued sick leave (also known as “personal leave”) to attend a medical appointment of any type including her annual medical specialist or associated appointments, such as an ophthalmologist appointment. Many employers wrongly think Barbie needs to schedule such appointments during her annual leave or after hours. Barbie should provide a medical certificate for such medical appointments if she is requested to do so. Barbie can be feeling chipper and cheery and certainly well enough to attend work but even so, she is still eligible for paid personal leave to attend a doctor. This includes a specialist appointment for her elective surgery and that elective surgery itself (including cosmetic surgery). It also includes Barbie’s recovery time provided a medical certificate is
provided if requested by the employer. Her partner Ken will also be entitled to paid carer’s leave (if he is a permanent employee) if he has a certificate to say he is required to look after Barbie after her surgery.


“Inferred Loading”

It is nonsense to suggest that a permanent employment contract has an inferred loading to compensate for all paid annual leave and/or paid personal leave. These are statutory National Employment Standards. To the HR Manager who is out there somewhere in Brisbane “probing the legislation” on this one, if she doesn’t know the answer already as to what the Fair Work Act says on this, she should not be an HR manager. Under the Fair Work Act, a permanent employee’s entitlement to paid annual and paid personal leave CANNOT be bought out in the pay rate. The only way to avoid paying leave is to make the employee specifically a casual with an associated casual loading. A casual loading is in lieu of paid leave, paid notice of termination and employment security in general. Someone needs to cease rummaging aimlessly through their handbag and call KMIR for a spoonful of accurate advice.


Travelling Time



Are you paying travelling time correctly in your workplace? To know whether you are or not, first of all you need to know which award/s or EBAs your staff are covered by. For example, the Food, Beverage and Tobacco Manufacturing Award requires that travelling time is paid for all time reasonably spent by the employee getting to and from work which is in excess of the time he/she normally takes commuting. So if you ask your worker to start work at a different factory to his usual workplace and that takes him an extra 20 minutes to do that compared to his normal commenting time, you must pay him at his ordinary time rate for that 20 minutes plus any excess fares incurred or similar expenses. However, KMIR is not clear how this would be worked out if the means of transportation for the excess travel was a large swan. These matters can be simplified by use of an award flexibility agreement. Even travel by swan.


Pastoral Idyll



“Oh no!” said Farmer Pat. “That Union Man Bill has sent me another right of entry notification for tomorrow lunch time and I have run out of his favourite homemade relish for his usual ham sandwich! What will become of us, Milkmaid Sal, do you think he will try and shut the farm down?” “No, Father,” said Milkmaid Sal, “He would never do that, he’s only trying to help us. Union Man Bill has explained to us over and over that lunch time is the best time of the day to help us and speak to the workers.” “But we don’t have any workers, that’s the thing that puzzles me,” said Farmer Pat shaking his grizzled old head. “It’s for the good of the collective, Dad, Union Man Bill has told us that again and again” said Milkmaid Sal. “He explained to me that it always comes down to the fundamental and intractable division between labour and capital.” Farmer Pat took off his shabby hat. “I think it comes down to him being mighty partial to fresh ham sandwiches and relish,” Farmer Pat said. “Should we charge him $12 for the next ham and relish sandwich? We need to feed the cows.” “No, Father, no!” pleaded Milkman Sal, tearily, “Please don’t upset him! I reckon we are meant to be paying ourselves triple time for working on public holidays and Union Man Bill might already suspect we don’t!”


Post Employment Restraint of Trade



Today KMIR was asked whether a post-employment restraint of trade clause could impose a 12 month restriction on working for any employer in the same profession within a ten km radius of any practice (there are several) of that same employer. With the outcome being that the employee could not work anywhere in the CBD or any inner suburb of that particular city for 12 months. Such a clause is ridiculous and unenforceable as it imposes totally unreasonable restrictions.


“Commission only” in the health sector



Opportunistic health sector employers out there are offering commission-only remuneration to professional employees. I have only one thing to say: what would your patients SAY if they found out that your practice was paying your loyal clinical staff on the basis of how much money they managed to make for you from their patient fees and product purchases? Commission-only in the health sector? Where patients are involved? Perhaps the patients should start leaving a tip (or even a juicy orange) when they leave the practice for their treating clinician just in case that staff member doesn’t make any commission that month. Employers please re-think and change this alarming, unfair practice. Utilise casual, contractor or permanent employment structures instead with decent, fair payment made on the basis of hours worked. Some of you are even saying that you won’t pay your staff their commission until you receive the money from your clients and “sometimes that takes months” – unacceptable, unreasonable conduct.


Award Free



“Award free” does not mean to just forget about the casual loading. Casual award free employees are entitled to a 24% casual loading. Employers who announce that the loading is “included” into the “flat” rate of the employee, if questioned about it, are not doing the right thing. The employer must provide clear documentation to specifiy the permanent rate and the casual loading also clearly set out in the letter of offer or employment agreement. Those employers who are ringing up Fair Work inquiry line to find out whether their employees are award free or not should take the advice they are given with a grain of salt, based on feedback to KMIR of consistently inaccurate advice on this matter. Whether particular employees are award free or not is not commonsense. It requires expert familiarity with key Industrial Relations Commission and Fair Work Commission cases as well as with all the modern awards and current variations. What is simple is that award free employees who are casual are entitled to a genuine casual loading and documentation of this just like any other employee.


Workplace drug and alcohol testing



Workplace drug and alcohol testing is a complex, litigious business. Managers, it is not just a matter of posting a memo on your notice board saying that all employees may be randomly tested at any time. That is not sufficient. Labour hire companies and contracting firms please note that the fact that your client has a random drug testing policy on site, does not mean that your employees are automatically lawfully obliged to submit to random drug and alcohol testing on the client site. Please contact KMIR, BEFORE rather than AFTER implementing anything in this area.


Ferreting The Truth out of a Jumble of Words – Just the Truth M’am, Part 2:



When hearing a verbal employee complaint or conducting an investigation interview, it is easy to be overwhelmed by the torrent of twisted muck that comes out of people’s mouths. Here are a few tips to get you started:

1. Get them to write their complaint instead. The complainant should always sign and date that their statement is an accurate, complete description of their complaint.

2. Keep asking the interviewee to say what happened first, what happened second etcetera. Keep the story in chronological order describing facts, not what they felt about the situation or what someone else felt about the situation.

3. Get the dates of when things happened.

4. People will rarely refer to anyone in any way other than their first name. Make sure you clarify the surname of who they are talking about – there are lots of Micks in every investigation, I find. It gets confusing.

5. Ask direct questions which require yes or no answers. Mix this up with questions that require more expansive answers.

6. Look the person you are interviewing straight in the eye when you are talking to them and they are answering you. This will enable you to sense whether they are telling the truth or not. This means that you may need to pause more often to take notes. Take all the time you need.

7. “I don’t recall” especially when repeated several times is usually a lie. Approach the question later on from a different angle.

8. KMIR has frequently heard people swear like troopers in investigatory meetings whilst still earnestly maintaining that they are “not the sort of person” to swear, as claimed by the complainant. Enough said. Maybe some people can’t hear themselves speak. It can be very hard to be sure that you have made the right assessment. If you use a logical investigation method, stick rigidly to the facts and analyse your material with great care as you go along, looking for consistencies and inconsistencies, you have done all you can. Contact KMIR – happy to help.


Reforming Industrial Relations in Australia



Many Fair Work Commission (FWC) decisions are very inconsistent. Therefore KMIR Facebook page does not bother to follow the essentially pointless traditional IR newsletter discourse method of reporting on the week’s latest FWC case with an “Employers Beware!!” at the end of each case summary. The Government’s idea of an appeals body over the Fair Work Commission is positive, KMIR supposes grudgingly, in that the Government is at least aware there is a problem. But adding another layer of expensive litigation because the first three layers do not work is hardly a practical solution. What is required is:

a) fundamental changes to the Fair Work Act particularly with regard to the preferential treatment given to unions which is grossly disproportionate to their membership and

b) a process for FWC staff to dismiss unfair dismissal and adverse action claims on the papers for applicants who submit insufficient or ludicrous applications and

c) good quality conciliation. Telephone conciliations are a big plus but some conciliators lack the necessary skills and seem a tad disinterested and

d) fair, simple arbitration which genuinely gives all parties a fair go in a consistent, genuine manner with clear practice rules (such as complying with FWC Directions) which MUST be adhered to all parties even unions and

e) retention of the Full Bench appeal which generally does a good job now.

The Government has a clear choice. Do something practical and useful or make IR even more complex, expensive and inconsistently regulatory.





When do you know FOR SURE you are being bullied at work? When you have experienced, at work, several targeted episodes of deliberate cruelty, extreme rudeness or behaviour designed to humiliate, patronise or scare you, eg taunting, malicious pranks. Bullying may include being instructed to do tasks that are not part of your job that would be clearly demeaning to anyone and/or designed to scare you. No one should put up with that. Report it to your manager with all the supporting facts. Do you think this poor fellow is being bullied even though he looks quite calm? KMIR thinks this is a truly ghastly photo. However, KMIR’s beloved husband said there were not enough blokey photos on the FB page. So is this blokey enough then or just ghastly? More cats, I say.


Diminishing Language



Talented mermaids and mermen get left to languish at the bottom of the workplace ocean. Why? They use diminishing language to describe their ideas and work to their managers. A lot of managers do the same when giving instructions to their direct reports. The managers then wonder what the heck happened when their mermaid/mermen team ignore what they were told and swim languidly off. So what is diminishing language? Saying, “Oh by the way, Ariel, it would be really swell if you could get that report to me by the end of the day, if you are not too busy.” As opposed to “Ariel, please get the H2O report done by the end of the day. I need it finished and fully checked by you before 5.30pm please and emailed direct to me. Thanks I really appreciate it.” Another example of an email with diminishing language: “Hi Mr Triton, I know you are really busy, this is probably a really silly idea and you may thought of it anyway. I am still just thinking it all through anyway, and I could be too late already but how would it be if we combined the Selfridge account with the work we have already done on the Betterbridge engineering report and saved approximately $93,000 per annum. I have attached my costings if you get half a sec to have a quick look. Regards, Sebastian” I doubt whether Mr Triton would even bother to read to the end of this email. I wouldn’t. Sebastian has made it clear with his diminishing language that his idea is not worth much. Even worse, he says he may have communicated his idea too late and potentially on an incomplete basis. Naturally, the very worst aspect is using a silly emoticon to accompany what could be a very clever, valuable and insightful report. A better email would be: “Dear Mr Triton, I have developed a new method to combine the Selfridge account with Betterbridge Engineering with a potential saving to us of at least $93,000 per annum. Can I meet with you to discuss the attached report and my ideas for also incorporating the Messons and Toldbridge accounts for further savings? Regards, Sebastian Seaweed 07 3266 3186.” Any nice examples of diminishing language from anyone?


Close Enough is Good Enough and Time to Trash the Job Description?



Is close enough good enough? Not if you are paying good wages for it, no it is not. Is it likely that the lazy road line marker has a detailed Position Description? Yes it is, especially if he is a Government employee or an employee of a Government contractor. What does it take to stop really stupid and slack work? It takes quality training of your employees, using practical examples. Show your line markers photos of unacceptable work practices and sub-standard results and talk about them. Show them pictures and examples of great results and talk about those too. It is not just “common sense” to do the right thing at work. Illustrations and examples always work better than long-winded policies and procedures for employees at all levels. Here is KMIR’s novel thought for this evening – Position Descriptions/Job Descriptions create more workplace problems and confusion than they solve. Position descriptions lull managers into thinking they have it all covered, locked and loaded. You have done the “letter of offer” had it signed and written up a PD, everything is done and dusted. But is it? Employee relations and employment conditions are much more difficult and complex than a couple of cut and paste templates. Investment now in a solid, tailored employee relations infrastructure designed and implemented by an employee relations expert will pay dividends to your business over and over in the future. Email Katrina now on I would love to discuss this with you.

Without Prejudice – What does it mean?



What do the magic words,”without prejudice” mean? Don’t the words mean you can write whatever you damn please, swear, threaten and cajole someone, disclose all your nastiest dirty laundry and not be held accountable for it in any court or tribunal because you wrote “Without Prejudice” across the top of your email/letter in magical letters of sloped bold Helvetica? NO, it does not mean that! “Without prejudice” is no magical incantation to mean that anything you write is exempt from use in any court proceedings. The content of your email or letter must be a genuine attempt to resolve a dispute without resort to litigation, for the magical cloak of invisibility to work at all. And even then, there are exceptions to the rule. If you mention a person who could be used as a witness in your “without prejudice” correspondence, the other side can still call that witness, if the matter proceeds to litigation. You have not drawn a big magical cloak of invisibility or invincibility over that person by using the words “Without Prejudice”. The expression is used to best effect when you want to make a limited time offer to settle a matter without admitting any fault and/or without wanting to be stuck with that offer if something happens that would make you want to withdraw it or lower it. So be careful what you wrap “without prejudice” around or the parcel may come untidily undone. Any questions, anyone?





It is simply awful to make someone redundant. But sometimes it genuninely has to be done. KMIR will address the technical aspects in another post. Today we want to focus on the personal. If the redundancy is genuine, look after the person at the time they are made redundant and especially in the week or so afterwards. Check in on them. Organise a morning tea or put some money on the bar for Friday night drinks for them. Do it quietly, don’t make a big fuss. Don’t throw good money after bad by buying an expensive outplacement package. Stay in contact with the employee and find out what he or she needs. If you have good contacts with a recruitment agency, help the person with this but don’t just refer them to the recruitment agency otherwise they will become just another candidate. Closely follow their progress with the recruitment consultant and make sure they are not palmed off to just anyone. The empathetic human touch is key here. Redundant employees feel shocked, numb and without purpose. Their sense of security in their employment becomes a shattered shell. It is important that this is dealt with empathetically and sensitively. Plan your redundancies and work as a team with whichever managers are involved. for more information and advice.


Cut and Paste from the Internet?



If you could re-build the moon, would you, should you, make it stronger and shinier? What about the dull and creaky parts of your business which are just not up to par? Is it too much back-breaking effort to pull them down and start again? KMIR’s advice is to make a start. Just start. Paint a shiny picture of how you would like your business to look, how your workforce would look, how your ideal customers and clients would like. Then get really, sound expert professional advice from someone who cares to help you on your journey to re-build the moon. Do not build a limp cardboard moon out of recycled bits of junk that you found on the Internet or “borrowed” from your last employer. Chances are what you are cobbling together out of that stuff will be out of date, sub-standard and not suitable. Do you think a NASA astronaut’s motto is “Can’t be bothered changing things or fixing them up properly so let’s just limp along, as is, to the moon and hope for the best?”


Police Report – Get one.



Employers are often reluctant to involve the police when a serious crime such a theft is committed in their workplace. Employers have no hesitation in believing that a thief deserves to lose his or her job but they are oddly reluctant to make a police report. KMIR’s advice is to ensure that managers lodge a detailed police report whenever a crime such as theft, fraud or assault is committed in your workplace. The police may sometimes seem disinterested. However, if you believe the act is serious enough to warrant dismissal, then you should also formally inform the police. Keep the police report number and do not be dissuaded from making a report. The police report will be useful if the employee lodges an unfair dismissal. Make the police report no later than two days after the crime has been committed, preferably sooner.


Unilateral change to Casual



Employers please be very, very clear that you cannot unilaterally change a permanent employee’s status to casual. This includes during the qualifying (probation) period. KMIR is disturbed by observing three cases of this in one week. Not acceptable, unfair and unlawful. Such employers are being silly goats. They will find themselves high and dry and out on a limb as far as any outcome from Fair Work Commission or Fair Work Ombudsman. Expensive mistake.


Recruitment Best Practice Tips



Conducting a recruitment interview today? Have you:

a. Written a profile of the skills and capacities the position needs? Everyone needs to do this – not just HR people;

b. Know with confidence the qualifications and experience you are looking for?

c. Planned some insightful and lawful questions which will show whether the person has the demonstrated ability to do the job? As opposed to being someone who could be your next nice mate?

d. Met with whoever else is interviewing with you to ensure you both agree on what is required for the role?

e. Decided not to offer any role on the spot until you have had an opportunity to reflect, compare and thoroughly reference check?

f. Planned to reference check after the interview?

g. Read the candidate’s application at least twice and analysed it against your position profile?

h. Found an interview room which is not the Coffee Club or ANY coffee shop for that matter?

If not, do NOT interview as you are not adequately prepared. Recruitment is very difficult to do properly and very important. If you have answered NO to more than two of these questions, you need recruitment training now before you make a crucial error that could cost you and your organisation much angst, heartache, lost opportunity and thousands of dollars.


Finding Out the Truth



Just the facts, M’am! KMIR finds that people lie incessantly. Sorry, but we do. Sometimes the lie is meant for malicious or self-serving purposes, often people like to embroider, knead and weave the truth merely to make a better story. So if you are a manager trying to investigate a claim of bullying, harassment or some other type of misconduct or maltreatment in the workplace, or trying to get to the bottom of an employment conditions issue, how do you get around this tendency? The answer is – get the facts. What are facts? Documented facts are the best. Ask to see ALL written material that the the complainant refers to. Copies of EVERY email, screen dumps of the alleged Facebook rant, ALL the scurrilous texts referred to. Not just a carefully selected sample, all of them. If you are investigating a claim of underpayment or some other employment conditions matter, ask to see the letter of offer, all the payslips, all the correspondence.

This is the only way of getting to the truth. You have to peruse the raw data as people fabricate or exaggerate even what is on basic documents like payslips. Is this a time consuming and tedious process for complainants? Perhaps, but investigating takes a great deal of time too. If the complainant does provide all the documentary evidence to back up their claims, then your obligation is to PROMPTLY and logically complete your investigations and resolve the matter. The facts do not always reside in documents, they are often verbal. KMIR’s next Facebook post will guide you on how to ferret the truth out of a huge jumble of words. Did Pinocchio learn how to write during his one day at school?


Talking to your employees – not just your favourites



Managers, are you guilty of only talking to your favourite shopfloor employee or one or two shopfloor employees (rather than, say all forty of them!) and then extrapolating from what they tell you? Talking to one or two of your favourites is NOT walking the floor. It is called “The Pink Umbrella Effect”. It looks pretty, smells pretty, feels comfortable but it is DECEIVING. You are not engaging in genuine workplace consultation or communication because you are only talking to people who are likely to tell you only what you want to hear. You may be sheltered from the truth. Stride out of your pink comfort zone and make sure you are chatting with everyone at your workplace – every day or close to is ideal if you have 30 or fewer employees. The time you invest in genuine communication, one-on-one or in effective daily group meetings is more valuable than gold. Avoid the Pink Umbrella Effect. Contact KMIR for individual coaching for managers in workplace communication and group training in effective communication.

Employment Conditions and Company Growth



What does a Company do which has suddenly, somehow grown to 30 employees, has no employment agreements, no idea about awards, pays everyone flat rates and has now realised that neither their accountant nor their bookkeeper know quite as much about correct employment conditions as they claimed they did. The answer is – ring up KMIR and get started! It may look like a huge, steep mysterious and confusing cliff to scale but it has to be done – you have no choice but to get your employees’ conditions right. There is no convenient off-the-shelf packet of employment agreements and policies sitting on the Internet which can fix your situation. Only charlatans sell that fixed price stuff. You need to sort out your employment conditions in a way that meets the requirements of statute, multiple awards, case law and your operational business needs. It is complex and will take a good while but the process will set your business on the right, safe track for growth and minimise IR risk.





You have NOT been bullied just because your workmate, Ms Jessica Rabbit says you have been. You told Ms Rabbit, in passing, that John Smith was a bit terse with you just now. Now Ms Rabbit is outraged on your behalf and roundly declares that you have been bullied! Ms Rabbit-types will tell you that you must complain to management forthwith. But disagreements occur in every workplace. Workers are sometimes less than 100 per cent polite with each other. Your opinion will not always prevail. The fact that you have been told by your boss that your report is not quite up to scratch or that your colleague says he is too busy to talk right now is NOT evidence of bullying. KMIR has been involved in investigating and/or advising on disciplining the perpetrators of some very serious examples of unrelenting, malicious, calculated cruelty and insidious viciousness in workplaces. If you have been genuinely bullied, you will not have any doubt about it. So before Ms Rabbit’s fatal descriptor of BULLYING is applied to someone’s conduct and the very fast train leaves the station, please make sure you know all the facts and have considered the situation very carefully. Ignore the siren call of lurid hearsay and catch-all descriptors. Bullying investigations are complex, fraught matters. Have a plan, focus on the evidence and get professional help.


Giving Advice on Personal Life



Unless you are your employee’s mother, stay away from giving advice on their love life, their diet, their work-out regime, how to deal with their deadbeat brother-in-law and pretty much everything else personal. The employment relationship does not give you open slather rights to be a crashing bore. The more senior you are, the more important this is. Your employees may think they have to stand there, squirm in silence and listen to your Pearls of Wisdom because they might lose their job if they do not. Even if the personal advice has been solicited, or you think it has been, approach this with great care. We all make this mistake on a daily basis but keep trying! There is a fine but very crucial line between being friendly and caring and being overbearing and patronising. This is one of those areas that managers must work on for life.


My Stupid Boss



“My Stupid Boss, Sheila B. Is an Ignorant Gorilla” – Enough to be sacked? The answer is yes, if you post this on Facebook, your page is public and you have posted enough identifying information about yourself and your employer such that Ms Sheila B., the Gorilla is able to be readily identified. Such an action may be grounds for summary dismissal, particularly if the employer can prove that the remark is damaging to the organisation’s reputation, that it causes harm to the workplace/personnel and that you should have known better. Employers do not have to cover off every possible eventuality in their social media policy, however it makes very good sense to have one. It also makes a lot of sense to train your employees in what they should and should not post on Facebook about their employer, their manager, their colleagues, clients/customers and patients.

People of all demographics get hopelessly lost in the world of Facebook, twitter, Instagram and the like. They can easily fail to understand that they have a fundamental duty of loyalty to their employer and think – wrongly – that they can say whatever they like, including defamatory remarks – because “it is a free country.” Better to prevent the unfortunate Ms Gorilla Facebook post first by training, education and a simple, practical social media. policy.


Flexible Working Hours



The new rules about flexible working conditions are confusing many employers. Do you have to agree to part-time hours? Do you have to agree to employees working at home one or two days a week due to their family/childcare responsibilities? Do you have to agree to employees changing their hours so they can pick up their children from school?

The Fair Work Act requires employers to provide a written response within 21 days of receiving a request for flexible working arrangements. This includes part-time hours and working from home. If you have a sound, fact-based reason why Miss Hoffman (pictured) cannot be permitted to work from home ensconced in her comfortable deckchair one day a week, then you are lawfully able to decline her request. Permissible reasons might be that you require Miss Hoffman, as an integral part of her job, to have constant cat to person or cat to cat contact via meetings with other staff or clients. You may find that you can agree to some but not all of Miss Hoffman’s requests for flexible working arrangements. This is perfectly acceptable. If you need assistance with determining whether your reasons for accepting or declining a request are sufficient or properly expressed, please contact KMIR.


Abandonment of Employment

Friday afternoon tip for stressed managers: An employee stomping off the job in a huff is NOT “abandoning their employment.” Yes, it is most annoying conduct and certainly cannot be condoned. But is not abandonment of employment. The correct course of action is to email the employee immediately (but seek advice first from KMIR – see below) with a detailed factual description of what the employee did, what they said, when and where they did it and why you have a problem with this. Then require the employee to attend a formal meeting to respond to allegations of unacceptable conduct. Keeping a contemporaneous record of exactly what occurred and sending it to the employee, another manager and/or to KMIR as your advisor, is excellent practice. It is an even better idea to let KMIR have a quick look at your email before you press “send.” As usual, never press “send” while you still have steam coming out of your ears. Feel free to ring up Katrina to vent about another weird Friday afternoon at your workplace and benefit from some practical tips, tea and sympathy.


Debunking the Myth – Employee Satisfaction Surveys



Do your employees think you are a fat cat resting on your laurels, sitting back enjoying the spoils of their hard labour, blood, sweat and tears? If you do not know, you have a big problem. Are employee satisfaction surveys the answer? No, they are not. They are yet another silly, off-the-shelf method of management safely disengaging and distancing themselves from talking to their employees whilst congratulating themselves that they are Doing Something for their people. If you really care about your employees, you will want to talk to them, seek their advice, and act positively and practically on at least some of the things they tell you. If you do not not know how to do this, do not despair. Contact Katrina and we will work out a practical plan that suits you, your business and your people. Genuine sincere, respectful dialogue between managers and their staff is the key to business success and a happy work life for everyone. Do not hide from your staff in your office, behind your desk or even on top of a camera like this glum fat cat. Does not work. No joy there.


Shiny Human Cockroach



Is there a charming, pretty, toxic psychopath in your office? A Shiny Human Cockroach? No matter what outrage they commit, what flagrant lie they have just spun their busy tongue around, the office psychopath still bobs up smiling sweetly as if nothing has happened, making their hapless victim feel vaguely guilty, confused and ill-educated on the topic du jour. KMIR has been working on The Shiny Human Cockroach profile series for some years now. Sadly, we are never short of material:


Comply with the Award even if you pay more

Employers please remember that paying over the minimum award pay rate does not mean you can automatically skip award allowances and other award conditions. KMIR has noticed a trend recently to skip meal allowances. Only properly drafted and costed individual flexibility agreements can do this properly and then only with some, not all, award conditions. There is some scope to pick and choose from the award but only if you draft your agreement properly, pay sufficiently over award and if the employee is clearly informed of what they are agreeing to and wish to accept your terms.

Terminating with Four weeks Notice – As easy as That?

One of KMIR’s Brisbane clients inquired about using the clause they had in their standard employment contract for all permanent staff which said: “either party is able to terminate the contract of employment at any time for any reason with the provision of four (4) weeks notice or payment in lieu thereof.” Or words to that effect. KMIR was very glad our client rang before they acted on that clause. Many KMIR clients and colleagues would have seen such blanket clauses hundreds of times. For the most part, even for senior employees, such clauses are entirely worthless. You MUST follow the termination requirements of the Fair Work Act which definitely does not say that anyone can be terminated for any reason, any old time! Beware of off-the-shelf contracts and agreements that can be very misleading – and end up causing enormous friction, upset and cost in your workplaces. Do not cut and paste contracts you “borrow” from other colleagues or that have “fallen off the back of a truck” for the sake of saving some money. It is false economy. Over the years, KMIR has observed that fragments of contracts we wrote in the 1990s (as Kamcorp) reappear, often out of context, in the wrong places and out of date, in employment agreements, many years later. So what might look like easy and straightforward HR practice to employers, really needs professional, tailored, expert advice.


Green with Envy….Employees Who Do Not Get Along with Each Other



What do you do with employees or other members of your association who just do not get on? Who use every opportunity to undermine and oppose each other? Then tearfully maintain it is their manager’s/President’s/Chair of the Board’s responsibility to sort their conflict out? And that they are stressed because it has not been sorted out for them? Two critical things NOT to do if they are employees: a. No formal or informal mediation attempt unless you are a professional mediator b. Do not suspend either employee unless the situation is dire.

The first essential step that you must do is to focus on the FACTS and record them. Find out calmly and objectively “what”, “when”, “where,” “with whom” and “who” saw it. Expert advice, mediation, investigation and coaching help for Green with Envy situations is always available from KMIR.


Probation and Termination – New Ways



The days of dismissing unwanted employees in their probationary period with a simple “sorry, not suitable” are over. To avoid an adverse action claim, smart employers should provide a solid facts-based reason to the employee, which is in no way discriminatory. That means – use real examples! Skills based is best. You must provide a dated letter of termination and give at least one week’s notice or payment in lieu. You cannot safely “extend” the probationary period further than the Fair Work Act six month qualifying period. Use probation wisely.


Are Your Employees Happy?



Are you sure your employees are happy? What have you done today to check? Are your employees happy with their environment, their tools of the trade, where they eat at work and how they are communicated with? Are you relying on factual, first hand information to know how your employees are feeling or do you rely on hearsay?


Pets at Work



Teddy the gorgeous German Spitz puppy says: Everyone loves a new puppy. A special notice board or Pet Page on your company intranet or Facebook page can be fabulous for your employees to post photos of their beloved pets.


Big Brother and CCTV



Big Brother is watching you… CCTV is a useful tool for many employers. Provided employees are fully aware that the cameras are in place and that such cameras are not placed in inappropriate places like staff toilets or change rooms, their use is lawful. If it is used properly and sensitively, CCTV can protect employers and employees with factual, reliable information.

Resistance to Change at Work



Everyone has a natural resistance to change at work, new workplaces, new work systems, new policies, new training, new machinery, new people or new tools. Change at work may seem like contemplating riding a very large horse on a rough farm track with nil prior experience. Managers can wrongly assume that workers want variety in and at their work and will automatically welcome change as a benefit. Managers can wrongly assume that “throwing someone in at the deep end” is motivational or adequate. What can you do to help your staff cope with change and new challenges?