Stephen Edwards LLB Call now 0427329514   -   Employment Law and Fair Work Consultant
Blog and issues commentary

General protections breach procedures

An allegation of the dismissal of an employee by an employer in breach of the general protections provisions of the Fair Work Act is dealt with by the Federal Court if not first settled by conciliation in the Fair Work Commission. In many ways this is unfortunate because the Fair Work Commission is a much more user friendly place than the Federal Court, where the practices and procedures are very difficult for an unrepresented litigant to navigate. In contrast the Fair Work Commission is expressly commanded by the Fair Work Act (secs 590, 591) not to be bound by the rules of evidence and procedure which apply in the courts and a lawyer or paid agent is required to obtain leave to represent a party in proceedings before the Commission (although in reality this is a formality normally because the members of the Commission by and large very much welcome the participation of experienced advocates because they speed up such proceedings, focus on what is relevant to the case and do not generally become distracted by red herrings).

Swearing too aggressively?; unfair dismissal

The issue whether swearing and boorish conduct at work can constitute mere ribaldry (or as the Fair Work Commission put it “everyday descriptive language”) or misconduct justifying dismissal because it can fairly be described as aggressive and  malicious swearing at a colleague was at the heart of Rikihana v Mermaid Marine Vessel Ops Ltd (2014) FWC 6314 delivered on 12 September 2014. The employee concerned was a maritime worker and although a certain amount of swearing was mundane in such a workplace, the Commissioner said that "I am satisfied from the evidence that neither before nor after the new code of conduct was introduced was it the norm nor was it commonplace for employees to direct swearing at individuals as distinct from using swear words as part of their normal conversations.

Unfair dismissal and misconduct

A Full Bench of the Fair Work Commission has upheld an appeal from a surprising decision which I queried at the time ordering the reinstatement of a captain of a Sydney ferry which crashed after the employee had consumed marijuana contrary to a no tolerance policy to the consumption of illicit drugs by its employees. At first instance the Commission had focussed on the act that there were several mitigating circumstances despite the Commission having then concluded that there was a valid reason for dismissal, including the employee’s length of service and that he had consumed the drug for pain relief.

Employer's policies and procedures; enforceable?

The question whether an employer’s policies and procedures can create enforceable obligations on the employer remains unanswered following the decision of the High Court in Barker’s case CBA v Barker (2014) HCA 32 delivered on 10 September 2014. In that rather tortuous case, the High Court ultimately held that contrary to the common law position which has been created by the English courts, and employment contract in Australia is not to be interpreted on the basis that it contains an implied mutual duty of trust and confidence.

Implied terms; Barker's case

The High Court has definitively ruled that Australian common law should not recognize a term of mutual trust and confidence as an implied term of employment contracts. The leading judgment said the primary question raised by the Commonwealth Bank's appeal was "whether, under the common law of Australia, employment contracts contain a term that neither party will, without reasonable cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between them".

Sexual harassment; damages

Richardson v Oracle Corporation Australia Ltd (2014) FCAFC 82 is an important decision of a Full Bench of the Federal Court which heralds a new approach to the assessment of compensation for sexual harassment and an acknowledgment that contemporary standards require a dramatic increase in awards of damages for proven breaches for non-economic loss, rather than mere tokenism which is a fair description of cases on this point leading up to this decision.

Foreign offshore workers' status

           

Since 30 June 2014, workers engaged in an offshore resources activity are deemed to be in the Australian Migration zone and consequently become foreign offshore workers and thus entitled to minimum employment standards under Australian employment law. This legal change was effected by the Government issuing a directive under the Migration Act.

Breach of employment contract

Very often, particularly for senior executives,  an employment contract will provide that the employer is entitled to terminate the employment of an employee if the employee commits any serious or persistent breach of the agreement and the breach is not remedied within a particular time (generally 14 or 21 days) of the employee receiving a direction of the company (generally through the board of directors) to do so.
What does the law require for the breach to be remedied? What if the conduct has already occurred?

Misconduct out of hours

The Fair Work Commission has repeatedly applied and thus expressed agreement with the principles espoused in Rose v Telstra Corporation Ltd (1998) AIRC 1592 as being those relevant when determining whether conduct our of hours may legitimately be considered in a decision to dismiss an employee. The decision holds that out of work hours conduct which can be relevant must be such than when viewed objectively it is likely to cause serious damage to the relationship between the employer and employee, or it may damage the employer’s interests or the conduct may be incompatible with the employee’s duty as an employee.

Reinstatement orders

It is an appeallable error of law for the Fair Work Commission not to afford an employer an opportunity of addressing the possibility that the Commission is considering an order for reinstatement to a position other than the one occupied at the material time in an unfair dismissal case.  Lyndoch Living v Bolden (2014) FWCFB 5969 delivered on 1 September 2014. 

Duty of care; Christmas party

I never cease to be amazed at the inconsistencies in decision of senior Australian courts about the extent of an employer’s duty of care. In Packer v Tall Ships Sailing Cruises Australia (2014) QSC 212 delivered on 29 August 2014, the Queensland Supreme Court has held that an employer did not breach its duty of care to an employee who was assaulted by a member of another group when the employer organized a Christmas function for its staff which involved a cruise and the consumption of alcohol. Now I do not for one moment quarrel with this decision, which seems palpable correct and wise to me, but there are other cases where the extent of the duty of care upon employers has become ridiculous.

Representation in bullying cases

It is generally more difficult to obtain leave to be represented at a bullying hearing in the Fair Work Commission than, say, an unfair dismissal hearing. However leave can be obtained if the circumstances make it desirable as can be seen from H v Centre (2014) FWC 612828 delivered on 4 September 2014.

Adverse action for industrial activity

It is of curse unlawful for an employer to take adverse action against an employee who is engaged in or proposing to engage in industrial activity (Fair Work Act 2009, sec 346). BHP Coal dismissed an employee who held up an anti-scab sign which read “SCABS, no principles, no guts” at a picket on the ground that the employee’s conduct contravened its policies.  The CFMEU took a general protections breach to the Federal Court and were initially successful, but on appeal to a Full Bench a majority of that court upheld the appeal and held that it was lawful for BHP to dismiss the employee for a breach of its policies. The CFMEU has taken an appeal to the High Court and argued that the actions of its member constituted perfectly lawful industrial action and that it was unlawful for BHP Coal to take adverse action against an employee who does so, irrespective of its policies. The High Court has reserved its decision.

Interpreting employment contracts

A Full Federal Court has upheld an appeal from a single justice who had interpreted a contract on the basis of the parties’ conduct after it. The Full Court ruled that this is not permissible as an interpretation aid. In doing so it also referred to the High Court’s decision in Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) HCA 7 delivered on 5 March 2014 and noted that it is now settled law that a court does not need to first identify an ambiguity before it can legitimately turn to surrounding circumstances to interpret what it means.

Time limits; extension of time

A Full Bench of the Fair Work Commission has ruled that it is more likely to excuse a delay in bringing an application for an unfair dismissal remedy, and grant an extension of time, where the error is made by a lawyer or experienced industrial representative or advocate than where the employee relies upon a member of his or her family for assistance and advice. This may at first glance appear an odd conclusion, until it is understood that the basis for the Commission’s view is that often it is easier to excuse an applicant where he or she is relying upon professional advice and entitled to assume that all is in order.

Social media in the workplace

In re Broadmeadows Disability Services, (2011) FWA 4063 the Fair Work Commission in determining whether under the BOOT test an enterprise agreement should be registered refused to register a clause of a proposed  enterprise agreement which purported to prohibit the discussion of workplace issues in social media. The Commission observed that this was not a restriction which the common law recognized.

Lawful and reeasonable instruction; unfair dismissal

In what I regard as a controversial decision, in the sense that I am unconvinced by its reasoning but acknowledge that it falls within what might be regarded as a discretionary area and not necessarily easily appealable, a Fair Work Commissioner has upheld the dismissal of an employee who refused to answer questions about whether her fiancé, who had been dismissed by the employer, had gone to work with a competitor.
Senior Deputy President Richards said the employee knew "without any ambiguity what the purposes of her employer's inquiries were, and had anticipated such questions might eventually be asked of her, but she refused to provide her employer with any answer to those inquiries, or to cooperate with him at the most elemental level".

Breach of contract; damages

In England the courts have held that, although they will recognize a common law implied contractual term of mutual trust and confidence, the fact that there is a vibrant statutory unfair dismissal jurisdiction means that those courts have declined to award damages for breach of contract if the breach of the implied term occurs in the dismissal. In other words the English courts have refused to step on the shoes of the British Parliament and have recognized that the statutory context should constitute a code for unfair dismissal remedies.

What is a workplace right?

The very vexed question of what constitutes a workplace right has again been illustrated in a Federal Court decision in which the Court was being asked to grant an interim injunction to restrain Queensland prison authorities from continuing the suspension of a prison officer who had granted permission for her to be quoted in the media as raising safety issues in the workplace. Justice Collier pointed out that the conduct of speaking publicly to the media was a contravention of the applicable enterprise agreement and in any event said that he was not “persuaded at this stage” that to do so was the exercise of a workplace right and thus protected from adverse action.

On call entitlements

The Fair Work Commission has clarified that an employee is not required to be on call whilst on annual leave, and that unless the contract expressly provides otherwise, holidays are entitled to be taken uninterrupted. Furthermore an employer does not have the right to direct an employee to work extra hours, once again unless the contract specifies so. In this case an employer was successful in winning an unfair dismissal remedy when an employer terminated his employment for refusing to take calls whilst on leave and declining to work extra hours.
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General protections breach procedures
Swearing too aggressively?; unfair dismissal
Unfair dismissal and misconduct
Employer's policies and procedures; enforceable?
Implied terms; Barker's case

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