on Thursday, 03 December 2015.
A couple of significant legal decisions for employers this week.
Employee or contractor?
All employers need to be familiar with the difference between independent contractors and employees - it's an area of the law fraught with difficulties for employers , particularly those seeking (intentionally or otherwise) to rely on the "contractor" label when in reality a contractor is an employee. The main risk of course for the employer is that the employee who is incorrectly labelled a contractor and treated as such is and remains entitled to the rights of any other employee , including in relation to unfair dismissal, notice of termination and a host of other entitlements.
A recent decision by the High Court has underlined the need for care in this area by employers. The Fair Work Act effectively provides that by telling an employee that he or she is a contractor does not make it so - when the reality is that the employee is an employee. The High Court ruled in the case of two employees engaged as cleaners in a holiday apartment block in Perth . The owner of the apartment block, Quest, had employed two cleaners as employees. However, Crest then attempted to remove their employee status by converting them to independent contractors engaged through a third party labour hire company, Contracting Solutions.
The High Court ruled that the introduction of a third party labour hire company did not take away their status as employees of Crest. They continued to perform exactly the same work , in the same way that they always had done and Crest could not argue that they were no longer employees of theirs , just because of the introduction of Contracting Solutions into the arrangements.
Unfairly dismissed for being too fat ?
A case in the Fair Work Commission considered an employer's rights and obligations in the dismissal of an excessively overweight employee . The employee was a forklift driver with a dairy company, Parmalat and his weight exceeded the safe limit for the nature of his duties . The company had medical reports to support this position. In addition, the medical evidence demonstrated that the employee suffered from sleep apnoea.
The Commission ruled that Parmalat was entitled to dismiss the forklift driver and that an employer is entitled to require an employee to be generally fit and well and suitable to carry out the work for which they are engaged.
Significantly, Parmalat was able to demonstrate to the Commission that their internal policies and procedures were followed, and that they were engaged with and participated in a long period of consultation with the employee prior to dismissing him.This was highly relevant to the finding that the ultimate dismissal was fair.
The lesson here is to make sure that your internal policies are detailed and well thought out , that they are followed and , critically, that an employee is given adequate opportunity to remedy a situation as part of a consultation process.