Using Mobile at WorkThe majority of sophisticated workplaces have documented policies with respect to everything from safety issues, to human resources, discrimination and harassment and even use of social media, but if the goal is to protect from any prospect of being exposed to legal liability, then employers need to be aware that the policy itself is only half the battle.

Once a policy is documented and established, an employer has an obligation to instruct and train all staff with respect to the policies and to then ensure that it is implemented in a fair and even handed way.  If the employer fails to do so, then the employer can still be exposed to the risk of litigation.

A good example can be found in the recent case of some employees of BHP who were sacked for using mobile phones at work.  BHP had a Mobile Electronic Device Procedure which precluded mobile phones in the workplace.  When two of BHP’s operators at the Goonyella Riverside Mine were found to have breached the policy, their employment was terminated immediately.  One of the employees gave himself up by posting on Facebook from his mobile device during work hours whilst the other was discovered to have his phone in a work vehicle he was in.

When both workers applied to the Fair Work Commission, their employment was ultimately reinstated because it was found by Commissioner Paul Spencer that BHP had not properly trained workers in the mobile ban, impressed on them the “zero tolerance” nature of the policy, and had not given the employees a chance to respond to the misconduct allegations.  Commissioner Spencer found that the policy had been applied inconsistently as other employees who had been found to have breached the policy had not had their employment terminated.  The Commissioner accepted that the policy was a reasonable one and was justified for safety reasons and found that the reason for dismissal was valid but nonetheless, ordered reinstatement because of these shortcomings in BHP’s application of the policy.

Whilst decisions like this might seem somewhat harsh from the employer’s perspective, the message from the Fair Work Commission seems rather simple; fairness to all requires consistency in the application of policies and all staff need to know exactly where they stand.

Travis Schultz
Practice Group Leader
Schultz Toomey O’Brien Lawyers, Part of the Slater & Gordon Group
Ph: (07) 5413 8900
Fax: (07) 5413 8958


Apple Failed To Trade Mark “APP STORE”

TrademarkApple has failed to trade mark “APP STORE” after the Federal Court rejected its appeal.

Apple has argued saying that when they initially filed the application for the trade mark in 2008 the term “APP STORE” wasn’t a common term used. They also said that they had been using the term before they even filed the application and that was how consumers distinguished that it was an Apple service.

However, the Court has come back saying that the term “APP STORE” is really only an “expression to describe a store” where customers can use the service. The court has also said that the words were only put to use 8 days before the initial application therefore there isn’t enough evidence to suggest that “APP STORE” in that short amount of time could be distinguished as a Apple’s Service.

Apple still has trade marks for “Appstore” and the logo “Available on the App Store”.

Reference Checks are Essential

Reference Checks are EssentialIf ever there was a case that highlights the need to properly reference check applications by prospective employees, it’s the debacle involving Myer’s hiring and then firing of its General Manager of Strategy and Business Development, Andrew Flanagan.  Mr Flanagan was hired by Myer after putting forward a resume that suggested he had been employed by large corporations and in senior management roles but within a week of being hired, his fraud was discovered.

What is remarkable is not that the deceit occurred but that an applicant for such a senior role with a publicly listed company could actually get through the entire recruitment process without his fabricated work history being exposed.

Whilst it is understood that Myer delegated reference checking to a recruitment company when they hired Mr Flanagan and, it seems, that Mr Flanagan may have “arranged” for “referees” to pretend that they were from each of the companies, that doesn’t explain how additional enquiries couldn’t have been made to unearth the true situation.

The whole saga must have been a rather embarrassing one for Myer and whilst they have apparently not ruled out bringing legal action, they certainly are not going to recover any damages for the tarnishing of their corporate brand and reputation.

There is a lesson in this for all of us in business, do your reference checking carefully, especially where a senior level employee is being recruited.

Travis Schultz
Managing Partner
Schultz Toomey O’Brien Lawyers
Ph: (07) 5413 8900
Fax: (07) 5413 8958