Stephen Edwards LLB Call now 0427329514   -   Employment Law and Fair Work Consultant
Blog and issues commentary

Racial villification; unfair dismissal

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.

Sexual harassment in the workplace

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. 

Redeployment obligations in redundancies

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.

Industrial torts

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.
In Sid 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".

General protections breach procedures

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).

Swearing too aggressively?; unfair dismissal

The 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.

Unfair dismissal and misconduct

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.

Employer's policies and procedures; enforceable?

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.

Implied terms; Barker's case

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".

Sexual harassment; damages

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.

Foreign offshore workers' status

           

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.

Breach of employment contract

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 occurred?

Misconduct out of hours

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.

Reinstatement orders

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. 

Duty of care; Christmas party

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.

Representation in bullying cases

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.

Adverse action for industrial activity

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.

Interpreting employment contracts

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.

Time limits; extension of time

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.

Social media in the workplace

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 recognized.
RSS

Recent Posts

Racial villification; unfair dismissal
Sexual harassment in the workplace
Redeployment obligations in redundancies
Industrial torts
General protections breach procedures

Categories

Absences from work
Adverse action
Annual leave
Award and agreement free
Award entitlements
Bargaining
Breach of contract
Bringing actions for unfair dismissal
Bullying at work
Casual employees
Compensation for unfair dismissal
Compensation in employment
Compliance
Conditions of employment
Consultation required in the workplace
Contract of employment terms
Costs
Criminal convictions and the workplace
Defamation in the workplace
Demotion at work
Disciplinary action in the workplace
Discrimination at work
Dismissal
Dismissal procedures
Dismissal remedies
Dress codes in the workplace
Drug testing in the workplace
Duty of care
Email policies
Employee incentive scemes
Employee records
Employee rights
Employee rights in a transfer of business
Employment Advice
Employment contracts and the law
Employment remuneration issues
Enforcing employment contracts
Enterprise agreements
Enterprise bargaining
Equal Opportunity
Fair Work Act
Fair Work Commission practice direction
Fair Work Commission procedures
Fair Work procedures
Fair Work remedies
Fair Work time limits
Flexible working arrangements
General protections
Government
Grounds for dismissal
Guarantee of annual earnings
Harassment at work
High income threshold
How workplace rights are protected
Implied terms and conditions of employment
Independent contractors
Individual flexibility arrangements
Industrial action
Industrial awards
Industrial torts
Injunctions
Instructions by an employer
Interesting cases
Internet at work
Interpreting awards and enterprise agreeents
Jurisdiction
Lawful and reasonable directions
Legal issues in employment
Legal Professional Privilege
Loadings
Long service leave
Lying in enterprise bargaining
Managing poor performance
Minimum entitlements
Misconduct out of hours
Mobile phone records
Modern awards
NES paid leave
Notice periods for termination of employment
Offer of alternative employment
Parental and maternity leave
Parental leave
Payment of remuneration
Position descriptions
Privacy in the workplace
Public holidays
Racial villification in the workplace
Recording conversations in the workplace
Recovering entitlements
Redundancy
Redundancy concepts
Reinstatement
Remedies
Remedies in employment law
Representation in the Fair Work Commission
Resignation
Restraints of trade
Rosters and working hours
Salary, wages and remuneration
Settlement deed
Severance payments
Sexual harassment in the workplace
Sick leave
Social media in the workplace
Soicial media in the workplace
Summary/instant dismssal
Superannuation
Termination of employment
Termination of Employment and Probation
Termination of employment by small businesses
Termination of empoyment
The Australian system of employment regulation
Time limits
Transmission/transfer of business
Tribunal procedures
Unfair dismissal
Unfair dismissal and small businesses
Visa laws and the workplace
Visa workng rights
Wages and salary
Western Australian workplace rights laws
Withholding entitlements
Workers compensation rights
Workplace bullying
Workplace health and safety
Workplace Right
Workplace rights
Wrongful dismissal
powered by

Website Builder provided by  Vistaprint