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A Commonwealth Bank (CBA) employee who was terminated for sending abusive text messages to his manager has been unsuccessful in claiming that his termination was unfair because the text messages were sent outside of working hours. Background The manager received more than 50 messages from the employee in the early hours of the morning and late at night over 6 days in November and December 2024. Initially, the manager dismissed the texts and said that she had “not taken anything personal” and was “fine” to keep working with the employee. However, as the messages became more aggressive the manager explicitly…
Read MoreHave you considered what your business would do if you faced an unfair dismissal or general protections claim? Would you attempt to defend the claim on your own, or opt to seek expert legal assistance? It can be tempting to defend a claim without help, with the hope of cutting costs or ‘sticking it’ to the employee directly. However, self-represented employers often find themselves overwhelmed by the process of the Fair Work Commission (Commission) and face subsequent difficulties in successfully presenting and winning their case. In this article, we will explore the common mistakes made by self-represented employers in the…
Read MoreSignificant changes have commenced as of 26 August 2024, following amendments made to the Fair Work Act 2009 (Cth) (Act) by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. Two of the most pressing changes for employers are the introduction of the right to disconnect, and changes to casual employment. What is the right to disconnect? Before considering what the right to disconnect is, it may firstly be helpful to outline what the right to disconnect is not. The right to disconnect does not prevent employers from contacting their employees outside of the employee’s normal working hours.…
Read MoreIn a decision confirming the strict application of filing deadlines in the Fair Work Commission (Commission), a worker has had her general protections claim rejected for filing her application at 12:01am on 1 May 2024, just 1 minute after the deadline of midnight on 30 April 2024. Background to the case In February 2024, whilst employed at a liquor retailer, the worker had interacted with a suspected shoplifter. The company’s policy is for employees not to engage with suspected shoplifters, and following this incident the worker received coaching regarding the policy. The employer found that the worker again breached this…
Read MoreThe National Research Organisation for Women’s Safety, in collaboration with the University of Sydney and the Australian Retailers Association, have released a report on the prevalence of sexual harassment in the retail industry. The report contains an overview of the types of sexual harassment retail workers face on a day-to-day basis, along with a number of study-backed recommendations that employers can implement to proactively eliminate workplace sexual harassment. Current Legislative Framework In December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 took effect and varied the Fair Work Act 2009 (Cth) to include provisions which outline:…
Read MoreAs part of amendments made to the Fair Work Act 2009 (Cth) (Act) by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, imminent changes will insert a right to disconnect term into modern awards. Mandated by the Fair Work Commission (Commission), all modern awards must include this provision by 26 August 2024 for most employers and by 26 August 2025 for small businesses. This new workplace right enables employees to refuse to engage with employer or third-party communications outside of their designated working hours without fear of adverse consequences, unless their refusal is unreasonable. What is the…
Read MoreAs part of the Secure Jobs, Better Pay (SJBP) reforms to the Fair Work Act 2009 (Cth) (FW Act), section 235 now gives power to the Fair Work Commission (FWC) to make intractable bargaining declarations and determinations. What this means is that the FW Act now contains provisions that enable the FWC to intervene in enterprise bargaining disputes and make orders in respect of enterprise agreements when negotiations reach a stalemate (described as ‘intractable’ or difficult to resolve). Under the current intractable bargaining scheme, where an enterprise agreement is not likely to be reached, bargaining representatives may apply for an…
Read MoreFollowing the introduction of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Closing Loopholes Act), the Fair Work Commission (FWC) has included entitlements for workplace delegates in all modern awards from 1 July 2024. The Closing Loopholes Act also requires enterprise agreements made on or after 1 July 2024 to include a delegates’ rights term. Following consultation with unions and employer groups, a majority decision of the FWC decided that all modern awards will include the workplace delegates’ term from 1 July 2024. A summary of the new delegates rights term is set out below. Right of representation…
Read MoreWhen an employee doesn’t show up to work and is unable to be contacted, termination seems like the next obvious step; however, acting hastily can result in the termination being overturned. Recently, the Fair Work Commission (Commission) held that an employee is entitled to pursue his general protections claim after his employer wrongly determined that he had abandoned his employment. The facts The employee, a cook, had been deemed unfit for work after suffering from a psychological injury since late 2022 and was receiving weekly workers’ compensation payments. By May 2023, the employee was still certified as suffering from severe…
Read MoreWhen an employee behaves inappropriately, a quick termination may seem like a no-brainer. However, acting hastily can result in a finding of unfair dismissal if a proper process and procedural fairness is not adhered to. Recently, the Fair Work Commission (FWC) found that the sacking of bar attendant to be unfair after being dismissed from his employment for bullying, sexual harassment and swearing at his colleagues. Over a period of April 2023 to June 2023, the employer received numerous reports that the bar attendant, Mr Ashburner, was speaking to his colleagues inappropriately including telling them to “get the f*ck out…
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