Think emojis don’t count when it comes to defamatory comments online? Think again!

Recently the District Court of New South Wales determined that an emoji could convey a defamatory meaning. In the case of Burrows v Houda [2020] NSWDC 485, proceedings were brought by Zali Burrows against Adam Houda in relation to posts made on Twitter in July 2019 and May 2020.

Ms Burrows made the claim that words and images in the tweets gave rise to defamatory imputations. One of Mr Houda’s tweets linked to an article in the Herald which reported a judge’s suggestion that Ms Burrows’ conduct be referred to the Law Society for potential disciplinary action, which received a number of replies. One of these replies stated “July 2019 story. But what happened to her since?” Mr Houda responded with a ‘zipper-mouth face’ emoji. 🤐

Ms Burrows asserted that the tweet conveyed a range of false and defamatory claims, including that she had been disciplined due to misconduct.

In determining the matter, her Honour Justice Gibson confirmed that:

“As is sometimes the case with social media posts, the meanings may be gleaned from pictures as well as words, and where liability for publication arises from more than one post, from the dialogue which ensues.”

Justice Gibson referred to the online dictionary Emojipedia and said that the zipper-mouth emoji means ‘a secret’ or ‘stop talking’ “in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer.” In the context of Mr Houda’s other tweets, the implication of the emoji that Ms Burrows had acted improperly was pretty clear.

Her Honour noted that “the ordinary reasonable reader of tweets derives the meaning of the imputation from the circumstances surrounding the tweet,” and was satisfied that most social media users would make adverse assumptions about Ms Burrows given that the tweets were accompanied by an article that had the effect that Ms Burrows had acted unsatisfactorily.

This decision is especially notable, not only as it set a precedent that an emoji alone can be defamatory, but also because it is the first instance where an Australian Court has considered an emoji in written communications. Given the increasing use of emojis in day-to-day life, it certainly won’t be the last.

The Burrows matter is a well-timed reminder to pause and consider before posting comments that could be construed as being defamatory on social media, even when comments are limited to an emoji.  

If you believe you have been subject to defamatory comments, with or without emojis 😆, the experienced team at Enterprise Legal can help you to weigh up your options.

Contact us today:

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Fixed term contracts are back in the spotlight after a recent decision of the Fair Work Commission in Michael Nasr v Mondelez Australia Pty Ltd [2021] FWC 2802 (Nasr), where the Commission held that an employee engaged over a 30-month period under eight separate and successive fixed term contracts, was not dismissed within the meaning of section 386(1)(a) of the Fair Work Act 2009 (Cth) when his last contract came to an end.  

Why is this important? Well, as a general rule, employers need to be very careful when engaging workers on rolling fixed-term contracts, even if there are legitimate business reasons to do so, because there is the risk that such contracts build an expectation that the employment relationship (not just the employment contract) will continue following the expiry of the contract, leading to potential unfair dismissal claims when the final contract is not renewed.

The decision in Nasr sheds some useful light on how employers may still be protected under section 386(2)(a) of the Fair Work Act 2009 (Cth) in circumstances where an employee’s employment is terminated at the end of a fixed term contract.

What Happened?

Following a period of casual engagement as a labour hire worker with confectionery and food giant Mondelez, Mr Nasr was subsequently employed directly by the company over a 30-month period under eight separate and successive fixed term contracts (ranging in duration from one month to 12 months), prior to his final contract expiring on 31 December 2020.

Following the cessation of his employment, Mr Nasr subsequently lodged an unfair dismissal claim and sought to be reinstated in his position on the basis that by his eight contract he had a reasonable expectation of ongoing or permanent employment. Mondelez, on the other hand, claimed that there had been no dismissal within the meaning of s386(1)(a) of the Fair Work Act 2009 (Cth) as Mr Nasr’s employment had not been terminated at the initiative of Mondelez. Instead, his employment came to an end at the expiry of his contract, which is excluded from the meaning of dismissal under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

The Decision

The Commission held that Mr Nasr’s application had no jurisdiction to proceed, on the grounds that his employment had not ceased at the initiative of his employer and Mondelez were subsequently protected under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

The Commission relied on the decision of Khayam v Navitas English Pty Ltd which confirms the principles in determining whether a dismissal occurred ‘at the initiative of the employer’ when an employment contract reaches its expiry date. Such principles include (inter alia):

1. where a series of fixed-term contracts exists, the question is whether the parties genuinely agree that the employment relationship in totality (not just the employment contract) would come to an end at the expiry date of the last contract and importantly;
2. where it has been agreed that a contract will end on a particular date the parties have not agreed that the employment relationship would also terminate, it is arguable that there is an expectation of an ongoing employment relationship and therefore the termination of employment at the end of the contract may still constitute termination at the initiative of the employer; and
3. where the terms of a fixed-term contract reflect a genuine agreement that the employment relationship is not to continue following the end of the contract, the relationship is terminated by agreement, not at the initiative of the employer.

The Commission found that each of Mr Nasr’s contracts contained a clear expiry date and expressly stated that Mr Nasr’s employment (not just the contract) would terminate at the end of the relevant period, and also that there was no guarantee of further employment beyond the expiry date. It was also important that Mr Nasr was not working in the same position under each of the contracts, moving between departments and in various roles which further supported the Commission’s views that the contracts were necessary based on the genuine operational requirements of the company and that there was a real indication that Mr Nasr’s engagement was limited to the scope of each contract.

While the Commission recognised that Mr Nasr had been employed under successive fixed-term contracts for a “greater period than is ordinarily the case”, the Commission accepted that there were genuine operational reasons for him to be engaged under the rolling fixed term contracts.

Important Message for Employers

It is encouraging to see the Fair Work Commission recognise and uphold the genuine and useful role fixed term contracts have in the workforce, however it is also a very important reminder to employers that fixed term contracts need to be done right or the exposure could be significant. Had Mondelez’s contract not been well drafted, the company would have no doubt been exposed and the Commission has set the bar for what is required in order to be protected under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

If you’re wanting to have a chat about whether your current fixed term agreements are up to scratch, or if you would like some guidance on the most appropriate way to engage your employees, contact our dedicated Workplace Relations team today:

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What’s your most visited website? If it’s Google or Facebook, you’re certainly not alone with Google accounting for more than 98% of search traffic originating from Australian mobile users in 2018. But as the discussions between the tech giants and the Australian Government over a proposed media code heats up, that all may be about to change. This week, Google has stepped up and threatened to pull Australian access to the search engine if the proposed revenue-sharing media laws go ahead. On the other hand, Australian Treasurer Josh Frydenberg has said that it is “inevitable” that tech giants Google and Facebook will pay for Australian news.

So what is actually going on?

The Legislation

The proposed law states that Australian media outlets can negotiate individually or collectively with Facebook and Google over payment for content used and shared on the tech giants’ sites, with other platforms potentially to be added over time. That’s right, the laws would require the companies to pay Australian media companies to link to the content in searches. Google says that this would “dismantle a free and open service that’s been built to serve everyone.”

ScoMo’s response? “We don’t respond to threats.”

But Why?

It’s no secret that traditional media companies in Australia have been struggling in recent years with hits to revenue streams such as subscriptions and advertising, and part of this is because of Google and Facebook. Shockingly, for every $100 spent on online advertising in Australia, excluding classifieds, nearly one-third goes to Google and Facebook.

In the course of their investigation, the ACCC found that news outlets lack bargaining power when it comes to negotiating with the tech giants over compensation for content publishing, in part because the outlets rely so heavily on Google and Facebook to reach readers.

What Does This Mean for Your Business?

If Google does say "cya" to Australia, it’s going to mean more than saying gday to a new search engine. It could have huge implications for your business.

Digital Advertising:

Many businesses (perhaps even yours) rely heavily on digital advertising through Google, with the digital advertising market for Google search in Australia valued at around $4.3 billion per year. Google now accounts for more than 51% of all online advertising. If Google is gone, the way that businesses advertise is going to have to go through a dramatic change. Your advertising dollars won’t stretch as far, as you’re going to have to channel advertising across multiple platforms.

Software and Hardware:

Do you use Android devices or Google Maps for your business? What about Google Docs or Google Drive? This added reliance on Google could leave your business stranded if Google decides to exit the Australian market.

Business Presence:

If Google were to exit the Australian market, you’re going to have to start over when it comes to establishing your online presence. Not only will you be unable to monitor Google’s content relating to your business, but you’re going to have to start over on other platforms. Think you know how to best optimise your keywords to work with Google? Well you may need to learn how the algorithm works on multiple other search engines.

New Opportunities

It’s not all bad news! If Google exits the Australian market, they will create space for new players to both enter the scene and increase their own business offerings. From developing new platforms to increasing existing business offerings to offer services that help in a new-Google-less world, the opportunities could very well be endless!

What Next?

At the moment as negotiations between the Australian Government,  Google, and Facebook continue, all parties are on a mission to win supporters. Google has raised the ante by including a message and link at the top of every page.

On the other side, the ACCC have announced that they may bring a third lawsuit against Google for misuse of market power in the advertising sector and breaching competition law and the Government have made it clear that they intend to continue the fight.

No matter what side you’re on, there probably will be huge implications for your business as the fight continues to ramp up!

So you have followed our top tips for entering into a commercial or retail lease, but things haven’t exactly gone to plan. How do you know what the next step is?
And how do you know when it is time to get expert lawyers involved?

At Enterprise Legal, it is our view that most disputes are best handled early on before little problems become big problems. Whether you are a landlord or tenant, the best way to resolve a lease dispute is to ensure that it is handled properly from the start.

The following are ‘red flags’ that indicate that it’s likely time to chat with the Enterprise Legal team:

1. A Notice to Remedy Breach Has Been Issued

If you are a tenant and have been issued with a Notice to Remedy Breach, stop what you’re doing and come chat to a lawyer! Breach notices need to be issued in a particular way to be valid under law, and the reality is that most landlords (and even some lawyers) don’t get this right. If a Notice is incorrect, it will likely be invalid. If you engage a lawyer at this point not only can you ensure that any issues with a Notice can be resolved, but you may also find that your lawyer can help you negotiate an outcome with your landlord.

If you are a landlord and need to issue a Notice, don’t go at it alone! It is so easy to make a mistake when preparing and issuing a Notice to Remedy Breach so it is worth engaging a lawyer so that you can ensure that everything is correct. If a Notice is not valid you will ultimately end up spending more time and money than you would have if you had a chat to a lawyer to begin with.

2. You Are Not Getting Along With Your Landlord/Tenant

While disagreements between parties may just seem like straightforward interpersonal concerns at first, we all know that these things can escalate quickly! By chatting to a lawyer early on, you may be able to resolve your concerns, put your mind at ease, and ultimately avoid a prolonged dispute. Sometimes a simple letter from a law firm can make a real difference. If it doesn’t, you will have a record of your concerns and can point to your attempts to resolve issues later on down the track, which will assist your prospects significantly!

3. You Have Been Locked Out (Or You Want to Lock Out Your Tenant)

Landlords - hold your horses! Locking out a tenant is pretty serious, and you need to make sure that you have followed the appropriate steps before you escalate matters. If you don’t, you are at a real risk of ‘repudiating’ the lease (which is bad!) and being liable for the tenant’s damages.

Tenants, if you are locked out, it is time to chat to a lawyer pronto! You do have options here, including obtaining an injunction to regain access to the premises. If you are unlawfully locked out, you may be entitled to claim damages from your landlord or claim that they have repudiated the lease. Either way it is imperative to make sure that you act quickly!

4. You Just Want to End Your Lease

If you want to terminate your lease early, there may be options available to you. If you want to terminate and minimise your risk, you’re going to want to speak with a lawyer first to work out how to properly terminate your lease, minimise your risk, and perhaps even resolve the concerns leading to termination of the lease.

5. Something Just Doesn’t Feel Right But You’re Not Sure What

Maybe something relating to your lease just doesn’t feel right and you want to get a sense as to whether it’s okay or not. The law is a confusing beast, and without the experience and expertise of a lawyer, it might not always be clear if something is okay and if you can proceed. If you are ever unsure, it may be a sign that it is time to chat to the Enterprise Legal team. If something is amiss, we will be able to quickly identify any issues and whether something can be done, or alternatively be able to set your mind at ease.

While you can’t always avoid a dispute, the best way to avoid significant costs and a lengthy legal battle is to act quickly. To resolve your concerns swiftly, engage the expert Enterprise Legal Disputes team to help you with your lease dispute.

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Changes made to the Fair Work Act 2009 (Cth) earlier this year have introduced provisions to provide a pathway to permanent employment for casual employees.

Employers now have an obligation to make an offer to convert a casual employee to either full-time or part-time employment (based on their regular work patterns) in circumstances where the employee:

1. has been employed by the employer for 12 months; and

1. during the last six months, has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part time employee (based on their regular work patterns).

While the obligation does exist, an employer is not required to make an offer where there may be “reasonable business grounds” to not do so. Businesses may rely on reasonable business grounds including:

1. the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;

1. the hours of work which the employee is required to perform will be significantly reduced in that period;

1. there will be a significant change in either or both of the following in that period:
   1. the days on which the employee’s hours of work are required to be performed;
   2. the times at which the employee’s hours of work are required to be performed;

which cannot be accommodated within the days or times the employee is available to work during that period;

1. making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

Employers will need to provide casual employees with notice of their decision to not make an offer within 21 days following the end of the employees first 12 months of employment. Any such notice should indicate that an offer will not be made and provide detailed reasons as to why.

What Does This Mean For Small Businesses?

While small businesses, being those employers who employ less than 15 employees, are not required to offer conversion to casual employees, casual employees are entitled to request casual conversion if they satisfy the grounds to do so.

When Does This Come Into Action?

A six-month transition period is in place, so employers must assess whether casual employees employed before 27 March 2021 are eligible to convert to permanent employment by 27 September 2021.

If you would like assistance with these changes to casual employees, start a conversation with our dedicated Workplace Relations team:

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A childcare worker in Gladstone was dismissed from her role at Goodstart Early Learning (Goodstart) following her repeated refusal to get the flu vaccine, with the Fair Work Commission finding in favour of her former employer in the case of Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156.

Background:

Goodstart had a workplace policy requiring employees to be vaccinated against influenza, stating that vaccines were “mandatory” for employees. Despite this policy, the policy contained an exemption for employees who had medical conditions preventing the administration of the vaccine. Ms Barber repeatedly refused to comply with the policy on the grounds that she suffered from coeliac disease, had suffered an adverse reaction to a previous flu vaccine, and had a “sensitive immune system”.

In attempting to verify Ms Barber’s claims, Goodstart offered to pay for various medical appointments, although following this process, it remained unclear whether Ms Barber was precluded from obtaining the vaccine. In fact, the Commission found that Ms Barber submitted two medical certificates from different medical practitioners, neither providing a “substantive” medical reason justifying her refusal to comply with the policy.

Furthermore, it was noted that Ms Barber was unable to find a doctor willing to complete Goodstart’s pro forma medical certificate which required the doctor to mark a box if they believed her medical condition would place her at an increased risk of an adverse reaction to the flu vaccination. Given that there was an absence of medical evidence to support her concerns, it was held that her refusal to obtain vaccination was more akin to a “conscientious objection” that did not excuse her from the obligation to comply with the policy.

Is a Mandatory Vaccination Policy Lawful and Reasonable?

In her continued refusal to comply with the policy, Ms Barber failed to comply with a lawful and reasonable direction to obtain vaccination. The Commission considered that Goodstart had legal obligations under workplace health and safety legislation to ensure the health and safety of the children in it’s care in addition to employees, with mandatory vaccinations being the most effective way to reduce the risk of transmission of influenza throughout the facility. The Commission also considered that the policy provided employees to be exempt from the vaccination on the provision of sufficient medical evidence, which Ms Barber was unable to do.

The Commission were of the view that Ms Barber worked in a highly regulated industry and was in direct contact with children who did not have fully developed immune systems and were not old enough to be vaccinated. It was relevant to the Commission that the early childhood education industry has a long-standing history of requiring staff to be vaccinated against certain diseases and viruses, and that the vaccination policy implemented by Goodstart was not inconsistent with industry norms.

In determining that Ms Barber’s dismissal was fair, the Commission drew particular attention to the careful process followed by Goodstart in that the process took a number of months and provided the employee with multiple opportunities to provide additional information and to respond to their concerns and requests.

Can Other Businesses Introduce a Mandatory Vaccination Policy?

The Commission’s decision confirmed that lawfulness and reasonableness of a direction for an employee to be vaccinated must be determined on the consideration of a number of factors, including:

1. the type of vaccine that is involved;
2. the type of workplace the employee works in;
3. the nature of the industry; and
4. the individual themselves, including whether any medical exemptions may be applicable.

While such a direction was deemed to be reasonable in the context of early childhood education where hands-on care is provided to vulnerable members of the community, it is unlikely that the decision could be applied more broadly to other industries or workplaces.

If you’re wanting to know whether such a policy would be applicable to your business or if you are considering enforcing or implementing a vaccination in your workplace, contact our dedicated Workplace Relations team today:

Amie Mish-Wills
Principal Legal Advisor – Workplace Relations

Anna Fanelli
Legal Advisor – Workplace Relations

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The High Court has overturned the Federal Court decisions in the WorkPac v Rossato(see our previous article: 'Proposed Changes to Casual Employment') that found that employees who worked regular and predictable shifts over an extended period were not in fact casual employees.

To refresh your memory on the previous WorkPac decisions, the Federal Court had determined that Mr Rossato had been given regular and ongoing shifts and should have been classified as a permanent worker, not casual, and awarded the associated entitlements including annual leave. This decision caused panic for businesses with fears that it would open the floodgates for claims of unpaid leave, despite casual workers already being paid 25% loading to compensate for entitlements. 

This decision provides clarity to employers who can now be satisfied they have certainty when it comes to their casual employees. The High Court expressly stated that casual employment can be long-term with a casual employee working regular and systematic hours.

It was found by the High Court that for an employee to be “other than” casual, there must exist a firm advance commitment to continuing work unqualified by indicia of irregularity, such as uncertainty, discontinuity, intermittency and unpredictability. A firm advance commitment is an enforceable promise, not an ‘expectation’ of ongoing work. Unlike the Federal Court, the High Court took the view that, where an employee’s contract is wholly in writing the terms of the written agreement are construed to determine whether a firm advance commitment exists, rather than looking to post-contractual conduct.

The High Court specifically considered the following aspects of Mr Rossato’s employment agreement provided that:

1. his hours of work “may vary” and were a “guide only”;
2. that WorkPac was not required to offer him any assignment, and assignments could be accepted or rejected;
3. either party could terminate on an hours’ notice;
4. in some of his contracts, Mr Rossato had the right to refuse or cancel shifts;
5. the payment of casual loading;
6. that the employment was to be on a casual basis; and
7. that any offered assignment could be varied on one hour’s notice.

While Mr Rossato did receive his rosters far in advance, the High Court formed the view that this was of limited significance and did not provide a commitment to an ongoing employment relationship. In fact, based on the Agreement, it was clear that WorkPac had avoided making a firm advance commitment to ongoing employment.

What Does This Mean For Employers?

While this decision provides some certainty for employers, it is as important as ever for employers to review any employment agreements to ensure that employment agreements reflect a true casual engagement and that the terms are consistent with the recently introduced definition of “casual employee” in the Fair Work Act 2009 (Cth).

If you’re wanting to have a chat about casual employees and whether your current agreements are up to scratch, contact our dedicated Workplace Relations team today:

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Following on from the successful passing of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth), the Fair Work Commission (the Commission) has commenced reviewing and amending current modern awards to ensure they align with the new definition of casual employees and appropriately include mechanisms for casual conversion.

Starting with stage 1 awards, the Commission has confirmed that the following awards will be amended on 27 September 2021:

• General Retail Industry Award 2020
• Pastoral Award 2020, and
• Manufacturing and Associated Industries and Occupations Award 2020
• Hospitality Industry (General) Award 2020
• Fire Fighting Industry Award 2020
• Educational Services (Teachers) Award 2020.

The Commission has highlighted the importance of ensuring existing awards are appropriately amended to remove outdated terms relating to causal employment as historical definitions including “engaged as a casual”, “paid by the hour” and “day to Day” could cause confusion and give rise to inconsistencies and uncertainty because they are inconsistent with the new definition of casual employee in s 15A of the FW Act.

This is only the beginning of the Commission’s review and there will no doubt be further amendments announced as the work progresses.
If you would like to know more about the changes to the modern awards, the Fair Work Act 2009 (Cth) or the definition of a casual employee,  reach out to our dedicated Workplace Relations team today:

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