Essential Features of a Contract of Employment
According to the Common law of Australia, there is an essential feature of any contract of employment that it is an implicit duty of employee to carry activities according to the law and by considering the reasonable direction from their employer. In other words it can be said that employee should comply legal and reasonable guidelines provided by employer. It is the duty of employee to comply with all direction that are related with the subject matter of the employment, consist of no illegal and should be reasonable (Vettori, 2016). It is not required that duty should be expressly defined in the employment contract, as it is implicit duty to obey the direction given by employer as and when he/she agrees to perform the job.
In the dynamic and competitive business environment changes the changes in duties may be required for satisfying the operational requirement. These requirements generally create the essentiality to change in the duty of employee to confirm that organization has right skill in place to cope up with competitive market. However, changes should be within the scope of original job. In the legal case of Sensis Pty Ltd v Robert Gundi [2017] FCA 1519, court held that employer will have some flexibility to modification to an duties of employee, subject to that it should be within the criteria of employment (Tamvakologos., & Giuliani., 2018). On the basis of this it can be said that employer is able to changes in duties of employee if the new obligation sustain within the criteria of the original job.
Generally employer used the dress code for the employee to confirm about the safety of employee and ensures that they dressed in a proper manner. However, for establishment of dress code in the organization it must be confirmed by the employer that dress code should not assist towards discrimination. Therefore, it is legal and reasonable for the employers to used dress standards on employee who deal with consumers, subject to condition that dress code should not lead to discrimination of employee.
It is lawful to observe the usage by employee regarding the property of company like, computer, internet, mobile and many others. However, they should monitor by considering theprivacy Act. Thus, it is required by the employer to provide knowledge to the employee of company with respect to the monitoring system (Thornthwaite, 2016). Therefore, it can be said that it is lawful and rational for employer to exercise control the use of their work computer, however employee should aware about the monitoring system.
Flexibility of Employer’s Rights to Modify Employee Duties
In accordance to provision of Fair Act 2009, an employer can direct employee regarding their off-duty comprising social media activity to the extent it is related to employee’s employment (Fair Work Act 2009). Even right to monitor act of employees at workplace comprising social media activities is available with employer. However, it is necessary that direction provided should be reasonable in all perspectives. The employer is having right to express provision in employment contract relating to social media policy or establish adequate social media policy for all the employees. Further, no specific provision exists in relation to protecting social media passwords in Australia. Even right of taking disciplinary action is also available including termination of employment in following scenarios:
- The conduct of employee result to damage the employment relationship.
- It result to damage employer’s interest
- The act is incompatible with employee’s duties as employee.
Thus, it can be concluded that behaviour of employee can be controlled on social media to the extent it affect image of organization or employer.
In case of Starr v Dept of Human Services [2016] FWC 1460, Mr. Starr made several social media post relating to criticism of employer and was eventually dismissed. The employee sued for unfair dismissal and decision was made in favour of employee and he was provided his job back. I do not agree with the reasoning of commission which assets that as the misconduct attempted by Mr Starr did not have any relationship with actual work performance and did not detriment the image of department. Even though no harm to reputation was made to the employer but the conduct of employee was seriously inappropriate and deserved serious punishment. If one employee would be provided chance and not dismiss; other employees would be provoke to attempt same conducts. Thus, the reasoning of commission is not appropriate and employee should have been punished for his attempt to detriment the image of employer and organization.
My organization does have social media policy which asserts ‘Employees can associate themselves with company while commenting or posting on social media but they must ensure that the specified conduct and comments are personal and purely their own’
According to the article establishing social media policy is necessary as it will constitute a valid reason of termination in case employee places inadequate comments on social media. For instance in case of Little v Credit Corp Group Limited [2013] FWC 9642, in which Deputy President analyses employee using Facebook account to criticize third party organization who is having professional dealing with employer (Matthew, 2016.). The organization comprises Code of Conduct which specifies appropriate use of social media. In present case even if code of conduct were not available it would be fair to dismiss employee as the sexual comments made by him were grossly offensive (Australia: Misusing social media – where can employers draw the line?, 2014). Overall in case social media policy exists than an appropriate base is available to dismiss employee on valid grounds. Further the article asserts that employer should assure the following variants:
- Implementation of appropriate social media policy
- Employees should be made aware regarding the policy and trained relating to compliance with same in adequate manner.
- Social media policy should be reviewed on continue basis in order to main currency.
9.
The employer can dismiss Steve for misconduct in case it can be viewed as harsh i.e. it should be capable to hurt employer business. However, the other side could be the decision of case Starr v Dept of Human Services [2016] FWC 1460, where employee is reinstatement as he provide that the comment did not caused detriment to the department and image of employer (Walsh and Walsh, 2019.). Thus, it can be concluded that employer will be able to dismiss only in case he ensures procedural fairness and make defensible specification against the act of employee. In present case as organization does not have any social media policy, the decision of commission would be on specification and evidence provided to prove the attempts made to spoil the image of employer and organization.
The case of Lee v Smith & Ors [2007] FMCA 59 relates to discrimination and sexually harassment case in which Lee has been harassed and raped by other naval officer (Wilson, 2015). I agree with the reasoning of court but not in full manner as the victim was subject to sexual harassment, sex discrimination by other employees, victimization and rape only because of having employment relation with other officer. As the employer breached, Human Rights and Equal opportunity Commission Act and Sex Discrimination act by conducting harassment activities with other employees. Thus, the provision of other legislation should also be considered before evaluating fine or punishment.
References
Vettori, S., 2016. The employment contract and the changed world of work. Routledge.
Thornthwaite, L., 2016. Chilling times: social media policies, labour law and employment relations. Asia Pacific Journal of Human Resources, 54(3), pp.332-351.
Wilson, J., 2015. Lessons from the ghosts of Christmases past: How to avoid getting Scrooged by your employees. Ethos: Official Publication of the Law Society of the Australian Capital Territory, (237), p.18.
Walsh, P. and Walsh, T., 2019. Folau v Rugby Australia: Protecting a business’ brand in the age of social media. Bulletin (Law Society of South Australia), 41(6), p.12.
Matthew, M., 2016. Think twice before venting online. REIQ Journal, (May 2016), p.44.
Tamvakologos., M. & Giuliani., M. 2018. Changing an employee’s duties: Is that a redundancy?. (Online). Available through<https://www.workplacelawandstrategy.com.au/2018/02/changing-an-employees-duties-is-that-a-redundancy/> [ Accessed on 13 October 2019]
Australia: Misusing social media – where can employers draw the line? 2014. (Online). Available through < https://hsfnotes.com/employment/2014/01/15/australia-misusing-social-media-where-can-employers-draw-the-line/>. [Accessed through 13th October 2019]
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