Articles
Whether it’s a quarrelsome employee, a serial underperformer, or a casualty of automation, the stress of dismissing an employee doesn’t end on their last day of employment. It’s not until 3 weeks (or 21 days) later, when the time limit to file a dismissal claim with the Fair Work Commission expires can an employer experience some relief. However, the story does not always end here. In some very limited and “exceptional” circumstances, the Fair Work Commission may extend this time limit, sometimes months, and allow a claim to proceed. These circumstances are rarely, if ever, within an employer’s control. …
Read MoreThe concept of redundancy is a reasonably straightforward one – the employer no longer requires the particular job occupied by an individual to be done by anyone. Case closed. The Fair Work Act 2009 (Cth) (FW Act) modifies this by adding that a “genuine redundancy” requires two additional elements: that is was unreasonable to redeploy the employee to another role elsewhere in the business; and that any obligation to consult under a modern award or enterprise agreement was met. The overwhelming majority of cases considering whether a dismissal by way of redundancy was unfair focus on the above two points.…
Read MoreThe last major study into mental health in Australia by the Australian Bureau of Statistics confirmed that 15% of Australians had experienced an affective disorder like depression, while 26.3% have experienced an anxiety disorder. The increasing awareness of mental health amongst the general population also means that workers are more aware than ever of the potential for their employers to discriminate against them on the basis of these conditions. So what is an employer to do when it comes to mitigating a potential claim against them for disability discrimination? We are going to step through some of the concepts that…
Read MoreIn the current enforcement climate, it is valuable to note a recent case in which the Fair Work Ombudsman (FWO) was successful in obtaining an increase of fines on appeal to almost five times the initial order, for an underpaying company director. In yet another illustration of how the courts are making an example of companies and accessories involved in underpayments, the appeal of this matter has confirmed the position that multiple contraventions should not be grouped together for the purpose of setting penalties. The original matter involved two now-deregistered Safecorp Security Group companies who were held to have breached…
Read MoreFair Work Commission losing patience over defective workplace investigations By Lucy Harper and Calum Woods, NRA Legal Please note, this decision was quashed by the Full Bench of the Commission on 11 November 2019. The Full Bench found that the Commissioner did not take into account Ms Murphy’s history of domestic violence and associated psychological injuries when deciding whether the dismissal was harsh in the circumstances. In any event, the Full Bench held that there was insufficient evidence of any mental health issues. As such, the outcome was the same and the application was dismissed. The line between employees’ work and personal…
Read MoreWhen getting legless can lead to being jobless: lessons learned from after-work drinks By Thomas Parer and Lindsay Carroll, NRA Legal Employers and employees are starting to realise that grabbing some casual drinks after work could leave them with bigger consequences than just a hangover. In the recent decision, the Full Bench of the Fair Work Commission upheld reinstatement of an employee who was dismissed for drinking to excess at an after work event and her ensuing conduct. This decision illustrates the pitfalls of managing conduct at after work drinks both for workers and employers, and provides some clear guidance…
Read MoreIt has been heralded as the test case on where to draw the line on the freedom to practise religion, and how much say an employer has in their employees’ personal lives. Regardless of where you stand in the debate, there is no doubt that it has touched on many issues that are important to Australians, and perhaps more importantly for present purposes, noteworthy from an industrial relations perspective. The story so far On 10 April 2019, Folau, an outspokenly devout Christian, made a post on his public Instagram account, stating that among other things, “hell awaits” thieves, atheists,…
Read MoreFrom 1 July 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2018 came into effect. A response in part to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, this Act amends several key items of legislation to allow greater protections for whistleblowers who come forward to report misconduct and malfeasance. Protection for eligible whistleblowers With companies being prescribed as regulated entities, any officer or employee of a company who makes a disclosure to ASIC or another regulatory body is an eligible whistleblower protected under the Act. What disclosures are protected? A disclosure by an eligible whistleblower, such as…
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