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
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.
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.
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.
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
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.
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.
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.
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