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Carer's leave for unexpected emergencies
Fiduciary and other duties in employment; copyright
Being asked to work on public holidays
Fixed term contracts; general protections
Procedures; Extension of time

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Carer's leave for unexpected emergencies

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

Fiduciary and other duties in employment; copyright

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".

Being asked to work on public holidays

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.

 

Fixed term contracts; general protections

General 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.
Stephens v Australian Postal Corporation [2013] FCCA 1988 (27 November 2013)

CFMEU v Pilbara Iron Company Services Pty Ltd (2012) FCA 697

Procedures; Extension of time

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

Fair Work Ombudsman

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.

Redundancy; reasonable alternative employment

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.

Legal representation

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.

Casual employees

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.

What can be protected industrial action?

A 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.
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