Employee verbal resignations: what are the risks?
Employment law is a minefield for employers. While there’s plenty of material available about complex situations and law cases, sometimes employers just want to know the basics.
A classic example is the need to understand the issues when an employee resigns verbally. Most employers mistakenly believe that a resignation needs to be accepted, and they enter into discussions about it. Others may not understand the law in this area.
High Court’s decision clarifies casual employment entitlements
On 4 August 2021, the High Court handed down its Judgment in the case of Workpac v Rossato. The decision provides major clarification about casual employee entitlements and is considered a significant victory for employers. In short, the High Court has decided that casual employees can’t claim paid leave entitlements without a firm advance commitment from the employer as to the duration and timing of future engagements.
The decision overturned the Full Federal Court’s Judgments in Skene and Rossato and has put to bed employer’s concerns about double dipping.
Importantly, the Court said that it’s not enough that a casual employee reasonably expects future work. This alone doesn’t make them a permanent employee.
An employee won’t be a permanent employee (and therefore entitled to paid leave) unless the contract of employment is clear that:
The employee is engaged according to the employer’s requirements; and
The employee has the choice to accept or reject each engagement.
Employers should review how their casual workforces are engaged. If unsure, seek legal advice about the wording of the engagements.
It’s critical that casuals are engaged by a written contract. It helps clarify the employer’s intentions regarding the arrangement from the start of the employment relationship.
For more information, contact me on 08 8227 2829 or access a copy of the decision here.
Bradbrook Lawyers 10th Birthday
Ten years ago, in August 2011, Mike Rann was Premier of South Australia. Julia Gillard was our Prime Minister and Quentin Bryce was the Governor-General. The Syrian conflict dominated news reports and Obama was in charge of the United States. Over in the UK, David Cameron was probably just starting to think that a Brexit referendum would be a really super dooper idea.
But closer to home, something more important was happening. Well, for me, at least.
I opened the doors of Bradbrook Lawyers for the first time. I was determined to practice workplace law with a client focus, and took a massive leap to set up on my own. It wasn’t quite a wing and a prayer, but it sure felt like it.
I’ve seen plenty of legal developments during the past decade and found many creative ways to implement solutions. But the thing that hasn’t changed is my commitment to delivering first-class services.
I’m lucky to have worked with so many brilliant clients, and I’m looking forward to celebrating this milestone when current restrictions have eased.
Thanks for the good times. Here’s to the next ten. Bottoms up and chug-a-lug. I wouldn’t change a thing.
News Flash – Workpac Pty Ltd v Rossato (2020) FCAFC 84 – 20 May 2020
Workpac was unsuccessful in getting the Federal Court to reconsider the Skene decision, but it has continued to test the law in an attempt to distinguish work arrangements with another employee, Rossato.
Click here for further information.
A few champagne corks are popping at Bradbrook Lawyers today
For the fifth year in a row, the prestigious Doyle’s Guide has recognised Bradbrook Lawyers – and me – as a leader in workplace safety law and employment law in South Australia.
Doyle’s Guide consults with lawyers, clients and industry bodies when compiling this information, so the recommendations are incredibly humbling.
I’m proud of my client work, primarily because I’ve focused on forming a close relationship with every client and taking the time to develop a detailed understanding of their businesses.
Five years of recognition shows that this consistent approach works, even if it’s a little unusual in legal circles. I’ll keep on keeping on. But for the next few minutes, I’ll be savouring the pop and fizz in my favourite coffee mug with my feet up on the desk and a generous slice of my favourite baked marble cheesecake.
Bradbrook Lawyers and Oak Law are going steady
It’s no secret that Oak Law and Bradbrook Lawyers have a history of cross-referring clients to each other, especially when specialist knowledge is needed.
Well … having now dated for a respectable time, we’ve decided to take our relationship to the next level.
We’re moving in together!
We’re pleased to announce that from Monday, 19 October 2020, Bradbrook Lawyers will share Oak Law’s new premises at Level 8, 50 Pirie Street, Adelaide.
If you haven’t yet had the pleasure of an introduction, Oak Law directors Liam McCusker and Lisa Harrington specialise in Corporate and Commercial law. Jodie Bradbrook is a pre-eminent lawyer specialising in Employment and Safety law. Liam, Lisa and Jodie are all leaders in their respective fields, and their shared philosophy says it all:
Our clients’ businesses are one-of-a-kind. If we’re going to look after them, we need to be one-of-a-kind as well.
“We’re all dedicated to understanding our clients’ businesses and ensuring they receive value for the services provided. We’re confident that our clients are about to experience a level of service and expertise that will be hard to find anywhere else,” said Liam.
To learn more about Liam, Lisa and the Oak Law Team,
please visit: www.oaklaw.com.au/team
To learn more about Jodie and the Bradbrook Lawyers Team,
please visit: www.bradbrooklawyers.com.au/our-people
News Flash – Preedy v RTWSA – Combination of Whole Person Impairment
His Honour Deputy President Judge Calligeros handed down his decision on 19 November 2019 in Preedy v RTWSA  SAET 228.
His Honour found that Mr Preedy’s injuries arose from the same cause and as such his whole person impairment should be combined under the RTW Act.
This decision is significant and will potentially increase the number of workers who will meet the 30% threshold and may significantly increase the monetary payments for economic loss lump sum payments under section 56 of the RTW Act.
Click here for further information.
Psychological and Psychiatric Injury Roundup – Legalwise
Jodie will be presenting on obtaining instructions from an Injured Worker or their Employer: Separating the emotion from the legal issues.
Clients and friends of Bradbrook Lawyers can achieve a discount on enrolment by using the following codes on registration
For full day programs, use the code 1911SPK
For half day programs, use the code 1911SPKHD
I am heading back to my old home, my old firm, Bradbrook Lawyers. I am going to move from a highly resourced, successful legal practice where I am wonderfully supported, to running my own firm, wearing 27 different hats throughout the course of the day from Employment Law supremo, to cash-flow manager, to HR manager, to doing the dishes and taking the rubbish out as any Principal of a small business does. Why? Well, because I am Jodie Bradbrook, that’s why! Some say I’m half a genius, 3 parts mad, and go in 5 directions at once on a noisy jet ski… And, I wouldn’t have it any other way. To quote Frank Sinatra: “I did it my way”. And that’s what I have learned during my time here at DW Fox Tucker who, bless its cotton socks, couldn’t have made me feel any more welcome. So, it’s time to go home… To hang up my shingle again as Jodie Bradbrook, from Bradbrook Lawyers, and to fight hard for my clients, because that’s what I do, and that’s who I am.
Workplace Investigations – Taking the statement and briefing your lawyer!
RSVP By 29 July 2019 at 3pm
Federal Court Converts Casuals to Permanent
On 16 August 2018 the Full Court of the Federal Court handed down a decision which is likely to impact the employment of casual employees in the future. The decision sets out the basis upon which an employee is able to argue that the true nature of their employment is permanent and not casual – despite the way in which they have been engaged or paid. As a result of this decision Employers should review current arrangements with casual employees to determine whether any fall within the category of workers that should be converted to casual. Any one requiring assistance with this task should contact us for further information. The decision can be found at  – FCAFC 131
Unpaid Family & Domestic Violence Leave
From 1 August 2018, modern awards will be varied to give employees access to 5 days of unpaid family and domestic violence leave each year. This entitlement applies to all employees (including casuals) who are covered by an industry or occupation based award. For further information click here.
Combining Whole Person Impairments – Return to Work Act (SA)
The Full Court of the Supreme Court of South Australia delivered its Judgment in the matter of Return to Work Corporation of South Australia v Preedy SASCFC 55 on 15 June 2018.
The Judgment is attached.
Our Analysis of the Judgment is attached.
The Fair Work Commission has approved an increase to all minimum wage base rates as and from the first full pay period starting on or after 1 July. The increase will see the national minimum wage change to $719.20 per week or $18.93 per hour.
Model Domestic Violence Clause
On 26 March 2018 the Full Bench of the FWC ruled on a provisional basis that a model domestic violence clause should be inserted into Modern Awards via s119 of the Act. The effect of this ruling is that employees affected by family and domestic violence will be entitled to take unpaid leave in response to the same without affecting their employment. The clause is in the process of being drafted and the matter has been adjourned until 1 May 2018. Further updates will be provided in due course.
Australia’s First Landmark Conviction for Reckless Conduct under Model WHS Laws
On 26 February 2018 Australia’s first landmark conviction for reckless conduct under Model WHS laws was published. The company was convicted for failing to follow its own safety management plans which resulted in a workplace fatality. The company was fined $900,000 for reckless conduct. For more information see Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon  NSWDC 27 (26 February 2018).
Notifiable Data Breaches Scheme
From 22 February 2018 amendments to the Privacy Act 1988 (Cth) require certain organisations and agencies to notify individuals affected by a data breach that is likely to result in serious harm to any individuals whose personal information is involved in the breach. Notification to the Office of the Australian Information Commissioner is also required. For more information see here.
Labour Hire Providers
From 1 September 2018 all labour hire providers must be licensed. Online applications for a licence can be made from 1 March 2018. Trading without a licence will constitute an offence. It is also an offence to use an unlicensed provider. For further information see here.
Amendments to the RTW Act Regulations with respect to Costs for s18 Applications
On 6 February 2018 the government Gazetted amendments to the RTW Act Regulations with respect to costs for s18 applications. In short, the changes make it clear that a worker who brings a s18 application is entitled to claim counsel fees as a disbursement and the capped amount of $2,464 (indexed) up to a pre hearing conference and thereafter 85% of the Supreme Court Scale. This is a significant change to the previous position. This change will have a significant impact on employers who are involved in s18 applications as they will be responsible for paying legal costs to the worker. The worker will be entitled to costs, unless the Tribunal orders the application was frivolous or vexatious. For further information contact us.
Review of the Operation of the Return to Work Act
On 14 November 2017 Minister Rau announced that the mandated review of the operation of the Return to Work Act will commence on 4 December 2017. The review will be conducted by The Honourable Justice Mansfield AM, a retired Federal Court Justice. The review is required to be completed by June 2018.
Completion of the Review of the Operation of the Return to Work Act
The second review of the WHS Act is complete and was tabled in Parliament on 30 November 2017. The Review found that the Act is operating effectively and that the variations in the South Australian Act have not negatively impacted on its operation. As such legislative changes were not recommended.
The Report of the Review can be found here.
News&Views – To Combine or not to Combine – WPI Assessments
On 21 July 2017, the Full Bench of the SAET handed down its landmark decision allowing the appeal in the matter of Preedy. The Full Bench was asked to determine whether two separate impairment assessments should be combined. The Full Bench construed the meaning of both sections 22 and 58 as follows:
For the purposes of making the assessment under s22, multiple impairments from the same injury or cause are to be assessed together or combined, but in connection with an assessment of non-economic loss under s58, they are only combined if they arise from the same trauma.
To read the full article click here
Fair Work Commission Casual-Conversion Clause
On 5 July 2017 the Fair Work Commission announced that it will introduce a casual-conversion clause into modern awards. This clause will allow casual workers to convert to part-time or full-time employment. The FWC has developed a draft conversion clause which can be utilised if criteria are met. The conversion can be refused by employers in certain circumstances. Further submissions on the topics will be heard before the decision is finalised. When the final decision is published we will provide a further update.
Full Bench Decision
On 4 July 2017 in a landmark decision the Full Bench of the Fair Work Commission indicated its preliminary view that all employees should have access to unpaid family and domestic violence leave and that they should be able to access personal leave for the purpose of taking family and domestic violence leave. The Full Bench declined, to rule that there should be 10 days of paid domestic violence leave as claimed by the Australian Council of Trade Unions. The Commission indicated it would provide opportunities for submissions before issuing its final decision.
South Australian Employment Tribunal Expansion
From 1 July 2017 the South Australian Employment Tribunal had its jurisdiction expanded to include SA employment and industrial disputes, regulation of SA industrial awards, agreements and registers, hear SA WHS related prosecutions and resolve SA equal opportunity and dust disease matters. See: http://www.saet.sa.gov.au/about-saet-3/saet-expansion/.
Increase to High Income Threshold
With effect from 1 July 2017, the high income threshold for unfair dismissal claims increased to $142,000.
Increase to National Minimum Wage
From 1 July 2017 the National Minimum Wage will increase by 3.3% to $18.29 per hour. The FWC statement can be found here.
Anthony Barbaro – Special Counsel
Anthony joined us on 31 January 2017 as Special Counsel. Anthony will work across all practice areas. We are very excited to have him on board and look forward to introducing you all to him in the future.
Penalty Rates Reduced
The Fair Work Commission reduced Sunday and public holiday penalty rates in retail, hospitality, fast food and pharmacy sectors in its decision handed down on 23 February 2017. The Decision can be located here
SafeWork SA has announced statutory review of WHS Act
It is seeking feedback on the operation of the WHS Act. A discussion paper has been published to provide guidance to those who wish to give feedback. Submissions are open until 5pm on 30 November 2016. Anyone who would like a copy of the Discussion Paper or who requires assistance to provide feedback is invited to contact us. The relevant media release can be located here:
Increase to High Income Threshold
On 1 July 2016 the high income threshold applicable to unfair dismissal claims increases to $138,900
Adult minimum wage rises from 1 July 2016
The Fair Work Commission has increased the national minimum wage to $672.70 per week or $17.70 per hour. The change will take effect from 1 July 2015. – View
Training Arrangement wages increase from 1 July 2016
The Minimum wage for juniors and employees under Training Agreements as well as employees with a disability will increase by 2.4 percent from 1 July 2015. – View
Penalty rates case
Labour Hire Companies put on notice
On 12 January 2016, RTWSA put labour hire companies and host employers on notice that it is cracking down on fradulent behaviour. It estimates such behaviour is costing the scheme anywhere between $25 million and $50 million per year – View
Proposed amendments to the Fair Work Act (Cth)
On 3 December 2015 the Federal government introduced a Bill proposing amendments to the Fair Work Act (Cth). The Fair Work Amendment (Remaining 2014 Measures) Bill 2015, addresses the six remaining measures which failed to pass the Senate in last round of amendments. The proposed measures are unchanged from that previously introduced. The progress of the Bill and its content can be viewed here – View
First Anti-Bullying Order Issued
On 30 July 2015 the Fair Work Commission issued its first anti-bullying order. The parties to the proceedings have not been identified. The parties were ordered not to make contact with each other and the company was ordered to provide anti-bullying training and an updated policy and complaints procedures by no later than 1 September 2015 – View
Annual Leave Payment on Termination
On 27 February 2015 the Federal Court of Australia held that payment of outstanding annual leave to terminated employees must be paid at the same rate it would have been paid had the employee actually taken the leave i.e. inclusive of annual leave loading –
Fair Work (Miscellaneous) Amendment Bill
On 12 February 2015 the government reintroduced the Fair Work (Miscellaneous) Amendment Bill into Parliament. The purpose of the Bill is to amend the SA legislation to abolish the statutory office of the Employee Ombudsman and to make changes to the constitution of the Full Commission of the Industrial Relations Commission – View
Greens Push for Industrial Manslaughter Penalties in SA
The South Australian Greens party will introduce a Bill to Parliament in May 2015 to amend the current Work Health and Safety Act 2012 (SA) to introduce penalties for industrial manslaughter. If successful, the maximum penalty for an individual will be 20 years imprisonment, or in the case of a corporation, $1,000,000. An employer is guilty of an offence where the death of a person occurs in circumstances where the PCBU knew or ought reasonably to have known, or was recklessly indifferent as to whether a breach of their obligation under the WHS Act would create a substantial risk of serious harm. Officers of an employer will also be culpable in certain circumstances. – View
Increase to High Income Threshold
On 1 July 2015 the high income threshold for unfair dismissal claims for employees who are not covered by a modern award or enterprise agreement increased to $136,700. Accordingly the maximum amount the Fair Work Commission can order in an unfair dismissal matter is $68,350.
Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill
On 12 February 2015 the government introduced into the Parliament the Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill. The purpose of the Bill is to provide for the Minister to extent the time limit to allow proceedings to be brought under the OHS&W (SA) legislation outside of the previously stated statutory time limit –
Workers’ Compensation – Return to Work Bill
The Return to Work Bill 2014 is in the Legislative Council having rapidly passed the House of Assembly. In the House of Assembly, the Bill was amended to correct minor errors and clarify certain sections. The Legislative Council debate is likely to resume in the week commencing 28 October 2014, with another smooth passage expected.
The Bill has major differences to the current scheme, including a 2 year cap on weekly payments and a cap on medical benefits for all but the most seriously injured workers. The caps will apply to existing claims. When the Bill takes effect on 1 July 2015, it is expected that the average premium rate will drop from 2.75% to 2%. Over time it is expected to reduce further.
Major reforms for WorkCover (SA)
Business groups, minor parties and the Liberal Opposition have cautiously welcomed what the State Government is calling “the most significant reform of workers’ compensation in more than 25 years.”
The Return to Work Bill was tabled in Parliament on 6 August 2014 following extensive consultation. It seeks to replace the old workers compensation scheme with an entirely new Act, and the Government says it will save South Australian businesses more than $180 million per year.
The legislation will be debated when parliament returns from winter break in mid-September. The Bill can be viewed here. View
National work health and safety guidance material released
On 4 July 2014, Safe Work Australia released 9 national guidance material packages intended to support the WHS Act and Regulations. The materials include information sheets designed to assist small businesses and workers to meet their obligations under the WHS laws. View
First prosecution of an Officer under WHS harmonised laws
In the ACT, an Officer has entered a plea of not guilty to a charge of failing to conduct due diligence under the Work Health & Safety Act 2011 (ACT). The officer has been charged with a category 2 offence which carries a maximum penalty of $300,000. The PCB or U has also been charged with a category 2 offence. The charges were laid following the death of a truck driver who died as a result of electric shock injuries at work. The officer was not a director of the PCB or U, Kenoss Contractors but rather a director of a related entity. Accordingly, the question to be determined at trial is whether the director is an Officer of the PCB or U.
Fair Work Amendment
The federal government today (27/2/14) introduced leglisation to amend the Fair Work Act 2009 (Cth) – View
FWC landmark decision on penalty rates
On 14 May 2014, the Full Bench of the FWC handed down a decision which unanimously held that Sunday penalty rates prescribed by the Restaurant Industry Award are excessive and ordered that from 1 July there will be a reduction in pay rates for casual level 1 & Level 2 staff that work on Sundays. These changes will equalise Sunday penalty rates with the Saturday penalty rates for this category of employees – View
Gender Equality Reporting Requirements
On 25 February 2015, the Federal Government removed some of the broader reporting requirements that were due to commence on 1 April 2015 (2015-16 reporting period). Employers who are required to report will no longer have to report on remuneration for CEOs and casual employees, components of total remuneration, requests for extended parental leave and the number of job applications and interviews undertaken. However, as of 1 April 2015 employers will be required to report on appointments, promotions and resignations and the proportion of employees that ceased employment following parental leave in their annual reports. – View
Relevant employers must show in their 2015 reporting that by 1 October 2014 they had in place policies or strategies to achieve gender equality in their workplace. Bradbrook Lawyers can assist employers to establish a Gender Equality Policy specific to their workplace – View
The Workplace Gender Equality Act 2012 requires non-public sector employers with 100 or more employees and registered higher education providers to lodge a report for the reporting period ending 21 March 2014. The reports must be lodged by 31 May 2014 – View
Heavy Vehicle Laws
National Heavy Vehicle law became operational today (10/2/14) – View
National Minimum Wage
On 4 June 2014, the Fair Work Commission Minimum Wage Panel awarded a 3% increase to the national minimum wage. With effect from 1 July 2014 the national minimum wage for a full time employee will be $640.90 per week, or $16.87 per hour. View
The Fair Work Commission has announced a 2.5% increase to minimum wages for employees whose pay rates are set by reference to the national minimum wage, a modern award or certain registered agreements. The new minimum wage as and from 1 July 2015 will be $656.90 per week or $17.29 per hour. – View
Amendments to the Privacy Act 1988 (Cth) come into effect on 12 March 2014 – View
SA Election Results
Labor will hold 23 seats and the Liberals 22 in the new parliament with Independants Such and Brock holding the balance of power (23/3/14)
South Australian Employment Tribunal
The South Australian Employment Tribunal (SAET) replaced the SA Workers Compensation Tribunal on 1 July 2015.
This change coincides with the commencement of the Return to Work Act 2014 (SA). Information about the SAET can be found here.
Stop Bullying Orders
Pre-2014 allegations can be considered by the Fair Work Commission when determining whether to issue a stop bullying order (6/3/14) – View
The Fair Work (Amendment) Act 2013 (Cth) changes apply from today (1/1/14). The changes include; new anti-bullying measures; consulation requirements to changes to rosters and hours of work; protection of penalty rates; right of entry rules – View
On 17 December 2013 the Fair Work Commission launched its dedicated “anti-bullying webpage”. This new jurisdiction starts on 1 January 2014 – View
The Fair Work Act 2009 (Cth) was amended to enable an employee who is bullied at work to apply to the Fair Work Commission for an order to stop the bullying. The amendment will take effect from 1 January 2014 – View
SafeWork Australia has released for public comment a draft Code for Preventing and Responding to Workplace Bullying – View
The Full Bench of the Fair Work Commission has held that a worker must be ‘performing work’ when being bullied in order for it to have jurisdiction to hear an Application – View
On 19 February 2014, the Fair Work Commission clarified the role of a support person – View
Unfair Dismissal and General Protections
From 1 January 2013 the time limit for the lodgement of Unfair Dismissal Applications and General Protections
Dismissal Applications will be 21 days – View
With effect from 1 July 2014, the new high income threshold for unfair dismissal claimants increased to $133,000.
The Return to Work Bill and the Employment Tribunal Bill passed through the South Australian Parliament on 30 October 2014 and will replace the Workers Rehabilitation and Compensation Act 1986 on 1 July 2015.
Proposed changes to WRC Act 1986 (SA) (31/3/14) – View
Work Health and Safety
The first judgment to examine the meaning of ‘due diligence’ under WHS laws was handed down in June 2015. In this case the prosecution failed to establish that the person charged had control or responsibility for the business or undertakings of the company. The performance of his job role was not determined to have elevated his position as employee to that of ‘officer’ under the WHS laws – View
On 28 November 2013 SafeWork Australia released two new Guides to assist in the management of workplace risks:
- Guide for preventing and responding to workplace bullying – View
- Guide for managing the risk of fatigue at work – View
On 13 November 2013 the government announced it will suspend three Codes of Practice relevant to the building industry – View
The Work Health & Safety (Self-Incrimination) Amendment Bill 2013( SA) passed on 28 June 2013 confirming the privilege against self-incrimination applies only to individuals and not to corporations – View
The Work, Health & Safety Act 2012 (SA) commenced on 1 January 2013 – View
Business demands delay on safety bill – View
The Work, Health and Safety Bill passed the Second Reading stage in the Upper House of South Australian Parliament on 6 September 2013. The Bill will be in Committee when Parliament resumes on 18 September 2013
InDaily – SA workplace safety changes out of control – View
Business SA backs government proposal on WHS Bill – View
Labor’s rush job on OH&S does damage – View
Shadow Minister calls for urgent WHS regulatory Impact Statement – View
PWC report on impact of model OHS laws in Victoria – View
Victorian report supports HIA position on harmonisation – View
Libs will move to defeat WHS Bill –View
Safework SA has released a series of Fact Sheets concerning the proposed Work Health and Safety laws – View
Letter to Editor – Workplace Safety Article – View
Advertiser Article – Row over workplace safety Bill – View
Libs delay Work Health & Safety Legislation – View
Safe Work Australia has announced the start of the public comment period for 15 draft model Codes of Practice which support the new model work health and safety legislation – View
From Monday 12 August 2013 we will be operating from new premises located at Level 1, 81 – 89 Hutt Street, Adelaide. Our telephone number has changed – View our new contact details
Mike Hammond commenced consulting to our Work Health & Safety practice on 1 June 2013. Mike is based in Melbourne.
Brooke Marett-Richards commenced as our Practice Manager on 14 October 2014.
Date: Friday 2 August 2019
Registration: 8.00am Start 8.15am Finish 9.45am
Venue: The Science Exchange The Thinking Space
55 Exchange Place Adelaide
Presenter: Jodie Bradbrook
Conducting a workplace investigation or even getting the ball rolling can be a daunting task for business owners and their staff, particularly when doing it for the first time. This seminar is intended to provide you with the basics so that you have the confidence to gather the information and then brief your lawyer in a way that is cost effective and ensures that you can act quickly. Acting quickly is important not just because it ensures you afford all concerned with procedural fairness, but also to minimise the cost to your business, if staff must be suspended and paid while the investigation is on foot.