Regulation 3.05(6) of the Fair Work Regulations provides that the
value of some benefits other than the payment of money are to be included in
the high income threshold for the purpose of sec 382 of the Act.
“(6) If:(a) the person is entitled to receive, or has received, a
benefit in accordance with an agreement between the person and the person's
employer; and (b) the benefit is not an entitlement to a payment of money
and is not a non-monetary benefit within the meaning of subsection 332(3) of
the Act; and (c) the FWC is satisfied, having regard to the
circumstances, that: (i) it should consider the benefit for the purpose
of assessing whether the high income threshold applies to a person at the time
of the dismissal; and (ii) a reasonable money value of the benefit has
not been agreed by the person and the employer; and(iii) the FWC can
estimate a real or notional money value of the benefit; the real or notional
money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii)
of the Act”.
A hotel chef who
sued his former in the Federal Court for unpaid accrued annual leave as a “civil
remedy provision conferred as a National Employment Standard and under secs 44,
539(1) and 545 of the Fair Work Act 2009, has been ordered to pay almost
$73,000 in “equitable compensation” for damages caused to his employer by his
breach of express and implied terms of his employment contract. The court made
factual findings that the employee had failed to disclose that chicken schnitzels
being brought by the company were being sold at a price above cost by a
business in which he and his wife had an interest, without disclosing either of
these material facts to the employer.
The Federal Court has
granted an interlocutory injunction restraining
a former employee who had been dismissed for breaching his employment
contract by setting up a business in opposition to that of his employer when
his employment contract prohibited him from approaching his former employer’s
clients even though his employment contract did not contain a classic restraint
of trade prohibition. Justice Foster
cited the “springboard principle” as the basis for the order and cited the
following dicta from a leading case as its rationale.
need to ensure that there is a reasonable opportunity for an employee whose employment
is at risk of being terminated for cause, whether a breach of standards or misconduct,
to understand the allegation and to respond to it in a meaningful way is
evident in Dent v Halliburton Australia Pty Ltd (2014) FWC 5692. Fair Work Commissioner Booth said she accepted the employer’s
argument, relying on the Federal Court's 1993 ruling in Schaale v Hoechts that its
"investigation does not need to be without flaw.
That there can be a completely valid reason to
dismiss an employee, yet it may be held to be unfair is extremely well
illustrated by Cannan and Fuller v Nyrstar Hobart Pty Ltd (2014) FWC 5072
delivered on 19 September 2014. This was a case in which the Commission agreed
with the employer that there was a long history of the employees who were
dismissed having been guilty of bullying their supervisor, namely "unpleasant,
abusive, insulting, critical, undermining, persistent demands, obstructive,
mocking, demeaning, belittling [and] humiliating” behaviour,
yet that the dismissal was held to be unfair due to the company having turned a
blind eye to it for many years and a flawed process which denied the employees
procedural fairness. The case is also a warning to employers that despite what
appears to have been great care having been taken by the company, it was still
lumbered with responsibility for objective errors having been made in the
A Full Bench of the Fair Work Commission has ruled
that an employee is not entitled to be accompanied by a support person to an
investigation about an incident and that if it is just that, an investigation
about facts with no conclusion being reached about the implications, sub-sec
387 of the Fair Work Act is not invoked to trigger such an entitlement until
there are discussions relating to a dismissal. Accordingly if an employer
merely launches an investigation to determine relevant facts, and holds an open
mind about the implications for a particular employee until those discussions
are held, the absence of a support person is not relevant.
Sec 332 of the Fair Work Act provides that “the
agreed money value of non-monetary benefits (defined in sub-sec 332(3) as “a
reasonable money value (which) has been agreed by the employer and the employee”)
are included in an employee’s earnings for the purposes of calculating whether
the employee’s earnings exceed the high income threshold. The Fair Work
Commission has held that the value of the
actual private use of a company supplied motor vehicle is not relevant to
determining the agreed money value if, as in that case, the value had been
signed off in a contract of employment by both parties.
A decision of the Fair Work Commission has
concluded that a more objective and thorough investigation into whether a tram
driver had been spotted using his mobile phone whilst driving a tram through an
intersection would have revealed that the driver’s version of events, namely
that his mobile phone and charger had spilled from his bag and he was merely
picking them up was “on the balance of probabilities” likely to be true.
Accordingly the Commission held that a dismissal was unfair. According to the
Commissioner this would have been apparent if the company had conducted a “meaningful
engagement” with the employee in the investigation.
The Fair Work Commission has
awarded a former employee aged 65 years around $29,000 in compensation for
unfair dismissal despite the Commission concluding that his employer had a
valid reason for dismissing him because he had used the company’s intranet in
an attempt to publish an “offensive” anti-Muslim e-mail. "The covering
text of the email is highly offensive to persons of the Muslim faith and I do
not intend to give it any air-play by setting it out in this decision,"
Deputy President Asbury said.
The owners of a restaurant have been ordered to pay $5,000
in compensation for their chef sexually harassing a former kitchenhand. The tribunal found that the chef consistently
made unwanted sexual advances to the kitchenhand and also that there had been a
couple of occasions when the chef made inappropriate and unwanted physical
contact. The owners of the restaurant were of course found vicariously liable
for the chef’s conduct. ABC v DEF Restaurant (2014) NSWCATAD 140.
A Full Bench of
the Fair Work Commission has affirmed that in justifying a redundancy where the
employee puts in issue that the employee should have been redeployed elsewhere,
the evidentiary burden of proof of reasonableness lies upon the employer to satisfy
the requirements of sec 389(2). Once the employer has adduced evidence of the
steps which were taken to consider redeployment, the onus shifts back to the
employee to prove that the measures were not reasonable enough. The case might
also be authority for the proposition that an employer is not bound to consider
dismissing other employees or
contractors as part of the pursuit of redeployment options.
The industrial tort of
intimidation is alive and well in Australia despite a recent attempt to
persuade the Victorian Supreme Court that it is not recognized in Australia.
The nature of the tort
was put thus by Justice Derham.
Ross, the NSW Court of Appeal found "strong authority for the
proposition that if A, intending to injure C, by threatening B that he will
commit an unlawful act against B, unless B refrains from The tort of intimidation is alive and well in
Australian common law, despite a exercising
his legal right to deal with C, induces B to refrain from so doing, A commits a
wrong actionable at the suit of C".
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).
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.
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.
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.
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".
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.
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.
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