Employment & Benefits updates

Australia

Contributed by Lander & Rogers
Get your hands off my… data! Employer's request for biometric data deemed unlawful
  • Australia
  • 07 August 2019

The Full Bench of the Fair Work Commission recently found that the direction given to an employee regarding the solicitation and collection of his biometric data was unlawful because it was inconsistent with the Privacy Act. The decision is a reminder to employers that directions to employees must be lawful and reasonable. If not, dismissal of an employee for failing to follow such direction will likely be unfair.

Court rules that industrial action must be taken by parties to employment relationship
  • Australia
  • 31 July 2019

A recent Full Court of the Federal Court decision is significant in shedding light on what constitutes 'industrial action' as defined in Section 19(1) of the Fair Work Act. Specifically, the decision establishes that industrial action can be taken only by parties to an employment relationship. It also highlights that, under the Fair Work Act, industrial action does not capture instances where a subcontractor's employees down tools on site with the support of their direct employer.

The untouchable employee and dangers of playing office politics
  • Australia
  • 15 May 2019

Following a recent Federal Court decision, a power solutions company was forced to reinstate a senior employee who it had fired three years previously and pay him A$1.1 million in back pay. This case serves as a reminder that employers must be aware of the dangers of unlawfully terminating an employee, particularly given that the employee may be reinstated into their position should it be held that they suffered adverse action.

#MeToo inspires employees to act: Fair Work Commission upholds dismissal of Coles manager
  • Australia
  • 17 April 2019

The Fair Work Commission recently considered whether a Coles employee, whose conduct had been found to breach the chain's code of conduct and equal opportunity policy, had been unfairly dismissed. The commission noted that the #MeToo movement had commenced and gained traction in late 2017 and was likely to have encouraged the initial complainant and other complainants to report the employee's conduct.

Worker sacked for taking Nurofen Plus – how does your drug and alcohol policy stack up?
  • Australia
  • 10 April 2019

The Fair Work Commission recently confirmed that it would be inappropriate to reinstate an employee who had tested positive for Nurofen Plus after failing to declare that he had been taking it, as required by his employer's drug and alcohol policy. The decision highlights that non-compliance with a drug and alcohol policy can be a valid reason for dismissal and that employers must closely consider mitigating circumstances before deciding to dismiss an employee.


Austria

Contributed by Graf & Pitkowitz Rechtsanwalte GmbH
New 'daddy month' strengthens paternal bonding early on
  • Austria
  • 31 July 2019

Parliament recently passed a new law that grants fathers a legal entitlement to one month off work following the birth of their child. Dubbed the 'daddy month' by the media, this entitlement seeks to fill a gap that puts fathers at a disadvantage when it comes to childcare immediately following the birth of their child.

Supreme Court on hairstyles and discrimination
  • Austria
  • 08 May 2019

An employee recently sued for damages and compensation for gender discrimination when his job application was rejected because he had long hair. Originally unsuccessful, when the employee learned that the defendant's employee handbook contained rules on employees' outer appearance, he sued again and succeeded, as the Supreme Court found that the employee handbook was prima facie evidence of gender discrimination.

ECJ rules on Austria's Good Friday dilemma
  • Austria
  • 27 February 2019

The European Court of Justice advocate general recently confirmed that the Austrian regulation which sets out that Good Friday is a paid public holiday only for members of four specific churches is discriminatory. Further, the advocate general concluded that each affected employee could claim holiday pay for past periods, unless such claims were already time barred, in which case claims could be brought against the Austrian state.

Strikes and right to strike
  • Austria
  • 12 December 2018

It is widely understood that the Austrian concept of 'social partnership' (ie, the system for cooperation between the two sides of industry) has largely contributed to peaceful industrial relations. The social partnership recently agreed on a new collective bargaining agreement for the metal industry. However, negotiations in several other trades and industries have followed, and in a less constructive atmosphere, further strikes may be forthcoming.

Good Friday and direct discrimination on religious grounds
  • Austria
  • 03 October 2018

Under Austrian law, Good Friday is a paid public holiday only for members of four churches. An employee who belonged to none of these churches took issue with this and sued his employer. The case eventually reached the Supreme Court, which requested a preliminary ruling by the European Court of Justice (ECJ). In his recently issued opinion, the ECJ advocate general delivered what will likely also constitute the court's position on the matter.


Bermuda

Know your rights when made redundant
Carey Olsen Bermuda
  • Bermuda
  • 06 March 2019

Bermuda's reinsurance market has not been immune to changes in the world's economic market. A rise in mergers and acquisitions has led to an increase in redundancies within the Bermuda workforce. Employees should be aware of their rights when made redundant and should always seek legal advice to ensure that their redundancy is both lawful and fair.


Brazil

First impressions: labour reform one year on
  • Brazil
  • 07 November 2018

Almost one year on from the enactment of Law 13467/17 (the labour reform), early feedback suggests that the reform has proved to be an effective and positive change. In particular, the reform has increased the use of remote workers, reduced the imbalance of power between employers and employees, made union contributions voluntary and reduced the number of labour-related lawsuits.

Supreme Court upholds labour reform's ban on mandatory union contributions
  • Brazil
  • 12 September 2018

When the labour reform came into force, it amended the provision requiring employees to pay annual contributions to relevant unions, instead making union contributions optional. After the reform was enacted, more than 15,000 lawsuits were filed to challenge union contribution-related matters. The Supreme Court recently ruled that the end of mandatory union contributions was constitutional.

Arbitration now permitted for employment disputes
  • Brazil
  • 18 July 2018

The recent labour and employment reform enacted in Brazil has introduced important changes to labour and employment relations. One of the principal changes is the introduction of arbitration for the resolution of employment disputes. Although the changing law requires a change of mindset, employers should take advantage of it and begin to consider the possibility of instituting arbitration for certain employment contracts.

How to avoid overtime costs: overview of compensatory time off agreements
  • Brazil
  • 23 May 2018

In Brazil, employees who work overtime are entitled to statutory premium pay at one-and-one-half times the regular rate. In the past, the courts often voided compensatory time off agreements and granted overtime payment claims to employees on the grounds that their employer had failed to comply with legal requirements. However, the 2017 labour reform introduced more flexible requirements, which should curb litigation on compensatory time off agreements and encourage their use.

Impact of labour reform on awards paid to employees
  • Brazil
  • 07 February 2018

The discussion regarding the legal nature of awards is not new to Brazilian labour courts, especially because amounts paid as awards could be considered salary, obliging the employer to include the award in the employee's salary and pay him or her every month or include this amount as a basis for determining the employee's labour rights. The legislative branch has tried to clarify this matter, defining the legal nature of awards, as well as the concept and legal criteria for their application.


Canada

Contributed by Fasken
Constructively dismissed? Maybe, but get back to work
  • Canada
  • 18 September 2019

A recent decision reaffirms that employees must return to work following a constructive dismissal to mitigate the damages that they caused where doing so would not be embarrassing, humiliating or degrading. In such cases, employers should consider whether it is appropriate to re-offer an employee the opportunity to return to work following an allegation of constructive dismissal, as this could greatly limit the damages and their potential liability in litigation.

Please hold the line: what to do when receiving calls from employment insurance officers
  • Canada
  • 11 September 2019

An adjudicator considering allegations of unjust dismissal under the Canada Labour Code recently ruled that an employer was prohibited from asserting dismissal for misconduct since the issue had already been decided by an employment insurance officer. The decision reminds employers to proceed with caution when communicating with employment insurance officers after a termination. They should also consider the potential ramifications of not appealing an officer's decision.

Unintentional discrimination is still discrimination
  • Canada
  • 04 September 2019

The Human Rights Tribunal of Ontario recently held that a law firm discriminated against an applicant because of his age and race, and by failing to investigate his discrimination complaint. This decision is an important reminder for employers to be careful in how they assess and treat candidates during the recruitment process. Among other things, employers should be courteous in their communications with all candidates and avoid engaging in arguments with them.

Is sex addiction a disability?
  • Canada
  • 28 August 2019

Can a unionised employee be fired for masturbating at work or is there a duty for employers to accommodate this conduct as a sex addiction? These were the novel questions considered in a recent case. The decision does not end the dispute about whether a sex addiction is a recognised medical condition that could be a disability, but it does reinforce the importance of progressive discipline in upholding a cause termination.

Does desire to work prevent employers from terminating employees who can't work?
  • Canada
  • 21 August 2019

Many employees struggle to manage disability leave. This is particularly difficult when an employee wants to work but their doctor says that they cannot do so for the foreseeable future. A recent decision provides guidance to employers dealing with this situation. For example, they should proactively manage disability leave by, among other things, staying up to date on an employee's potential to return to work.