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The Supreme Court of New South Wales has turned
back the clock a tad and ruled that clear words in a contract mean what they
say. A bank executive sued ANZ bank for damages for breach of contract (seeking
9 million dollars) when it summarily dismissed him after forming the “opinion”
that he had been guilty of serious misconduct (leaking and adding denigrating
words which embarrassed the bank to a journalist),
rejecting his claim that it had to prove the misconduct of which he was
In an amazing case of the pot
calling the kettle black, the CFMEU has persuaded a company to cop a huge fine
by consent for failing to consult with the union once it had made a decision to
introduce some mass redundancies.
Federal court justice Emmett
questioned the parties whether the
$19,000 penalty, which as she pointed out was about 40 per cent of the maximum
provided for by the legislation, was "manifestly excessive" given that
the employer had no prior contraventions, it had conceded liability, had taken
immediate steps to consult once it decided on the restructure, had compensated
the employees and had cooperated in the joint submission.
An employee who takes unpaid parental leave under
the National Employment standards is entitled to ask his or her employer to
agree to an extension of unpaid parental leave for a further period of 12
months immediately following the end of the available parental leave period
(Fair Work Act 2009, sec 76) The request must be in writing and must be provided
to the employer at least 4 weeks before the end of the available parental leave
period. Like flexible work arrangements, the request can only be declined by an
employer on reasonable business grounds but the employee is not entitled to
extend the period of unpaid parental leave beyond 24 months after the date of birth
of the child.
court has acknowledged that the choice of an employee by an employer for redundancy
following the making of a complaint about bullying and harassment out of an ideological
dispute at a university and for the holding of political views could constitute
unlawful adverse action but in the particular circumstances the evidence did
not establish the allegations.
University if Sydney (2014) FCCA 613 delivered on 14 November 2014
A Federal court decision, admittedly decided
before Barclay's case, contains a particularly useful analysis of the difficulties
faced by an employer in the context of the reverse onus of proof in general
protections applications where the decision maker is not called to give
evidence. The case also demonstrates some of the principles to be applied in
determining whether reinstatement is an appropriate remedy; in this case it
was, in lieu of compensation, considered by the judge to be an adequate remedy in the circumstances, but the employer was fined too.
The Tasmanian Supreme Court has
upheld a 6 month stat wide restraint of trade and in doing so it has rejected a
claim by the former employee that the restraint was void for uncertainty and
Justice Blow held that it was
clear that the employer company had sought to impose a restraint which was to
apply for a maximum of six months, extend throughout the State and prevent the employer,
a former branch manager, working for or being involved in any competing business.
The judge also ruled that the
employment contract provided sufficient detail about time, geographical and
categories of sale activities for him to hold that the clause was not void for
In an interesting decision, a Full Bench of the Western
Australian Industrial Relations Commission has upheld an appeal by Qantas in a
denied contractual benefit claim in which the Commission ruled that it could
imply into the contracts of service of two Qantas employees that they had the
right to share a job. Acting President Smith said that "To satisfy the
test for implication of a term on grounds of custom and usage, the evidence
must establish that the practice relied upon is uniform, notorious, reasonable,
certain, and that the standard of proof required to establish a custom is high.
An employer has been ordered to pay compensation
for unfair dismissal to an employee who was advised that unless she accepted a
substantial reduction in salary she would be regarded as having resigned; even
though the Fair Work Commission concluded that the requirement to accept lesser
remuneration was not of itself manifestly unfair and if handled correctly would
not have constituted unfair dismissal.
Johnson v Zehut Pty Ltd (2014) FWC 7496 delivered
10 November 2014
In a leading Federal Court decision about what
constitutes a workplace right, Shea v TRUenergy Services
Pty Ltd (No 6)  FCA 271,Justice
Dodds-Streeton noted that the Fair Work
Act in its definition of “workplace right” did not contain a definition of the
word “complaint.” Having reviewed the authorities she held that a complaint
could be treated as having been made if the “relevant communication,
whatever its precise form, would be reasonably understood in context as an
expression of grievance or a finding of fault which seeks, whether expressly or
implicitly, that the employer or other relevant party at least take notice of and consider
the complaint”. Her Honour also held that the source of the employee’s ability
to make such a complaint could be founded in his or her contract of employment.
Such a contract could incorporate policies, such as grievance policies, which conferred rights and imposed duties on employees and employers.
The implications for the security of an employee’s
job of a criminal conviction for an offence in no way related to work, or the
work environment, was the issue to be resolved in the following case. The
employee, a very long standing member of the ATO’s staff with more than 25
years’ service, was convicted of two counts of indecency
against a child and was sentenced to imprisonment. His unfair dismissal claim
failed when a senior member of the Commission threw out the case on the basis
that his dismissal was justified give that the conduct which lead to the
convictions had contravened the ATO’s express policy of at all times upholding
the integrity, reputation, values and standing of the ATO.