Blog and issues commentary; to subscribe to my blog please scroll down to the orange link above the words 'Recent Posts'
A company, not surprisingly, has lost an attempt
to have an action by an employee for an unfair dismissal remedy thrown out at
an interlocutory basis arguing that a premature birth and subsequent unexpected
hospitalization for post natal complications did not constitute an “unexpected
emergency" the employee under sec 97(b)(ii) of the Fair Work Act even
though the male employee had 4 young children to care for as a result, three of
whom were pre-schoolers.
Johnston v MTGI Trust trading as Macquarie
Technology Group (2014) FWC 7098 delivered on 24 October 2014
The Federal Court has ordered a
former IT manager to pay damages of more than $50,000 for breach of copyright
when he arranged just before resigning to download hundreds of thousands of his
then employer’s files to a hard drive which he claimed was as a “trophy”. That
claim was rejected by the judge who described it as "but deliberately and over a
sustained period of time copied them to his own device, removed them from
the[the company's premises, falsely stated that he had returned all property of
the company, and reviewed them at his leisure and for his own purposes".
Under sec 114 of the Fair Work Act, an employer is
entitled to ask an employee to work on a public holiday but the employee may
refuse the request if the request is not reasonable or the refusal is
reasonable. In determining the reasonableness of the above, a number of factors
must be taken into account including the employee’s personal circumstances
including family responsibilities. For a complete list of the relevant issues,
go to sub-sec 114(4) of the Act.
protections applications including for adverse action may be brought by
employees whose employment is governed by fixed term contracts, both during and
after the termination of them.
Australian Postal Corporation  FCCA 1988 (27 November 2013)
CFMEU v Pilbara Iron Company Services Pty Ltd
(2012) FCA 697
The Fair Work Commission has delivered another
decision to the effect that an error by a representative of a prospective
applicant for an unfair dismissal remedy can be granted an extension of time to
make the application out of time. That the error was by a representative and
that the applicant was blameless could constitute “exceptional circumstances”
where the delay was nominal.
Finlayson v Western Health (2014) FWC 6076
delivered on 20 October 2014
The Fair Work Ombudsman is the
federal government’s industrial relations policemen and in its 2013-2014 annual
return tabled in Federal Parliament has reported that it received over 24,000
complaints and recovered more than $23 million in underpayments from employers. It
also has an increasing role in monitoring visa and employment issues for non
resident workers who are working pursuant to visas.
Sec 120 of the Fair Work Act 2009 enables an
employer to apply to the Fair Work Commission to be relieved of the obligation
to pay statutory redundancy pay if the employer, inter alia, obtains other
acceptable employment for the employee or employees. A Full Bench has
re-affirmed that the employer must be a “strong, moving force” behind the
obtaining of acceptable alternative employment and that the fact that the
employer may play a small or less than meaningful role, for example by
introducing the employees to the prospective employer, is not enough to justify
the original employer being relieved of the obligation to make the payments.
An employee seeking an unfair dismissal remedy has
succeeded in opposing an application by the employer to be legally represented
at the hearing, even though there was a preliminary jurisdictional issue to be
resolved involving a contest as to whether the employee had been dismissed or
had resigned. The Commissioner was of the view that the company’s human resources
team was quite sufficient and that allowing legal representation would
potentially introduce a level of complexity into the proceedings which was
unfair to the applicant who was representing himself.
All too often, I am advised that a person has no
rights to make a claim for an unfair dismissal remedy because they are a casual
employee. This is a nonsense of course, because that is not the effect of the
Fair Work Act. Similarly, many people think that if a business has fewer than
15 employees, not counting casual employees (sec 23 (2), then it is a small business
employer and cannot be sued for unfair dismissal if it has followed the Small Business
Fair Dismissal Code, can only be sued for unfair dismissal if the employee has
been employed for at least one year, or, if the employee is made redundant, the
employer is exempt from having to pay redundancy pay.
Federal Court judge has ruled that the provision of confidential information to
the media by a union and its members engaged in industrial bargaining for a new
enterprise agreement does not constitute “industrial action” for the purposes
of being protected. In doing so the judge opposed a contrary decision of a Full
Bench of the Fair Work Commission. It was common ground that the action threatened
by the employees would have constituted both a breach of their employment
contracts and their employer’s media policy.