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Adverse action from redundancy
Reinstatement for adverse action
Restraint of trade
Interpreting contracts of employment
Unfair dismissal; constructive dismissal

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Adverse action from redundancy

The Federal 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.
Heathcote v University if Sydney (2014) FCCA 613 delivered on 14 November 2014

 

Reinstatement for adverse action

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.

Restraint of trade

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 unreasonableness.
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 uncertainty.

Interpreting contracts of employment

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.

Unfair dismissal; constructive dismissal

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

Workplace right

In a leading Federal Court decision about what constitutes a workplace right, Shea v TRUenergy Services Pty Ltd (No 6) [2014] 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.  

Unfair dismissal; external factors

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.

Adverse action; meaning of

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.

Workplace right explained again (perhaps)

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.

Pregnancy discrimination

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
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