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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 Barker’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.
I have blogged extensively about the judicial
controversy about what constitutes a workplace right. Less controversy exists
about what is meant by “adverse action” and in the following case the
respondent employer conceded that a decision not to offer a new contract of
employment when one expired by effluxion of time could constitute adverse
action, so the court did not need to decide whether the failure to offer a new
contract did or did not constitute adverse action. The Federal Court in any
event determined that the actions of the employer were not because of a prohibited
reason under the general protections provisions of the Fair Work Act.
In another welcome explanation
of what the Federal Court will potentially regard as a workplace right for the purposes
of the general protections provisions of the Fair Work Act, Judge Tony Lucev
has refused to throw out a claim on the basis of the employer’s interlocutory argument
that it had no realistic prospect of success being based upon the employee’s
contention that he had been dismissed for questioning the integrity of certain
scientific testing processes required to be followed by his employer.
That a mere change in the attitude from a “boss”
to a pregnant employee can constitute unlawful discrimination, according to a Full
Bench of the Equal Opportunity Tribunal (SA). The conduct, categorized as "in the work context, with an
element of suspicion and distance which had not previously been present between
them" occurred after the manager learned about the employee’s pregnancy. The
employer was ordered to pay compensation.
Halimee v Santarelle (2014) SAEOT 6 delivered on
23 October 2014