This document summarizes a presentation on developments in unfair dismissal law given on June 13, 2018. It provides an overview of legislative changes, trends seen at conciliation and hearings, and updates on key case law regarding costs orders, permission to appear in unfair dismissal matters, treatment of high income earners and casual employees, medical incapacity, health and safety, dishonesty, and other issues. The presentation covers legislative definitions, available remedies, conciliation and hearing statistics, and summaries several important unfair dismissal cases from recent years.
Illegal Dismissal: Consequences for No Due Process. Philippine Labor Law emphasizes the importance of observing due process in case of employee termination. If due process is not observed, the employer could be held liable for illegal dismissal which carry the following consequences: full backwages, reinstatement, separation pay, moral damages, exemplary damages, nominal damages, attorney's fees, joint and solidary liability.
Authorized causes: Valid grounds for downsizing the workforce. The Philippine Labor Code allows the employer to downsize its workforce based on authorized causes: installation of labor-saving devices, redundancy, retrenchment, closing of business, and disease. Authorized cause is part of substantive due process in Philippine Labor Law.
Presentation on Employer obligations (Australia).
The contents of this presentation are for information purposes only and do not constitute legal advice.
If you have any particular concerns or queries, please contact our office for specific advice.
Just Causes: Valid Grounds for Dismissing an Employee. The Labor Code authorizes the employer to dismiss an employee based on just causes: serious misconduct, willful disobedience (insubordination), gross and habitual neglect of duties, fraud, willful breach of trust, loss of confidence, commission of a crime or offense, analogous cause, gross inefficiency. Just cause is part of substantive due process in Philippine Labor Law.
As many are aware, putting an end to the confusion that prevailed among Immigration Practitioners for almost two decades, the Administrative Appeals Office (AAO), through a Precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), clarified that an amended H-1B Petition, with the corresponding LCA, is required to be submitted to United States Citizenship and Immigration Services (USCIS) when there is a material change in the terms and conditions of employment.
Maurice Blackburn provided union lawyers and industrial officers with the opportunity to gather CPD points with content that was relative to their industries. Presenters include Barristers Bob Reed and Cate Hartigan, and Maurice Blackburn Employment and Industrial Section Principal Giri Sivaraman.
Illegal Dismissal: Consequences for No Due Process. Philippine Labor Law emphasizes the importance of observing due process in case of employee termination. If due process is not observed, the employer could be held liable for illegal dismissal which carry the following consequences: full backwages, reinstatement, separation pay, moral damages, exemplary damages, nominal damages, attorney's fees, joint and solidary liability.
Authorized causes: Valid grounds for downsizing the workforce. The Philippine Labor Code allows the employer to downsize its workforce based on authorized causes: installation of labor-saving devices, redundancy, retrenchment, closing of business, and disease. Authorized cause is part of substantive due process in Philippine Labor Law.
Presentation on Employer obligations (Australia).
The contents of this presentation are for information purposes only and do not constitute legal advice.
If you have any particular concerns or queries, please contact our office for specific advice.
Just Causes: Valid Grounds for Dismissing an Employee. The Labor Code authorizes the employer to dismiss an employee based on just causes: serious misconduct, willful disobedience (insubordination), gross and habitual neglect of duties, fraud, willful breach of trust, loss of confidence, commission of a crime or offense, analogous cause, gross inefficiency. Just cause is part of substantive due process in Philippine Labor Law.
As many are aware, putting an end to the confusion that prevailed among Immigration Practitioners for almost two decades, the Administrative Appeals Office (AAO), through a Precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), clarified that an amended H-1B Petition, with the corresponding LCA, is required to be submitted to United States Citizenship and Immigration Services (USCIS) when there is a material change in the terms and conditions of employment.
Maurice Blackburn provided union lawyers and industrial officers with the opportunity to gather CPD points with content that was relative to their industries. Presenters include Barristers Bob Reed and Cate Hartigan, and Maurice Blackburn Employment and Industrial Section Principal Giri Sivaraman.
Philippine Labor Laws
Authorized Causes for Dismissal of Employee
Employee Discipline and Termination
The two most commonly used grounds for termination of employee are the Authorized Causes under Article 283 and 284 of the Labor Code, and the Just Causes under Article 282. Below are the authorized causes for termination of employment.
As maybe broadly defined, authorized causes for dismissal of employee refer to those lawful grounds for termination which in general do not arise from fault or negligence of the employee. “Authorized causes” are distinguished from “just causes” under Article 282 in that the latter are always based on acts attributable to the employee’s own fault or negligence.
Vskills certification for Labour Law Analyst assesses the candidate as per the company’s need for compliance to labour laws and assistance in labour cases. The certification tests the candidates on various areas in industrial relations basics, trade unions, employers’ federation, collective bargaining, employee grievances, discipline, industrial conflict, ILO, labour welfare and social security
The Department of Labor and Employment clarified and modified the rules and regulations on just causes and authorized causes - resulting in stricter implementation of due process. Labor Law compliance is required for valid termination. Non-compliance may result in liabilities, including illegal dismissal.
Eighteen months on from its introduction, the Labor Government’s Fair Work Act continues to create challenges for SME employers, many of whom are still struggling to understand the implication of new National Employment Standards, the new Modern Awards regime and changes to rules around redundancy provisions, unfair dismissal and bargaining.
In this presentation, industrial relations lawyer Patricia Ryan will look at the key areas that SMEs are still coming to grips with, and provide advice on in range of areas.
Unfair Dismissal - Misconduct (2 of 4) Webinar SlidesShorebird RPO
In the second webinar of this series on unfair dismissal, Barrister Helen Gardiner gives us a whistle stop tour of Misconduct and what an employer really should know.
If you would like to view the full webinar, please email marketing@shorebird-rpo.com and we will happily email the recording immediately, or why not join our LinkedIn Webinar Network to access all our archives http://linkd.in/1acZPdh
Disclosures by whistleblowers under the qui tam provisions of the False Claims Act (FCA) have enabled the federal government to recover more than $40 billion. But with strong protections against retaliation, whistleblowers would be reluctant to come forward. This course, presented by Jason Zuckerman, Principal at Zuckerman Law, provides an overview of whistleblower protections for employees of government contractors and grantees, focusing on the whistleblower protection provisions of the FCA and National Defense Authorization Act (NDAA). The course will also offer practical tips and insights for practitioners on how to evaluate potential whistleblower claims and overlapping remedies to maximize damages. In addition, the course will address the challenging issues that arise when a whistleblower simultaneously prosecutes both retaliation and rewards claims.
Philippine Labor Laws
Authorized Causes for Dismissal of Employee
Employee Discipline and Termination
The two most commonly used grounds for termination of employee are the Authorized Causes under Article 283 and 284 of the Labor Code, and the Just Causes under Article 282. Below are the authorized causes for termination of employment.
As maybe broadly defined, authorized causes for dismissal of employee refer to those lawful grounds for termination which in general do not arise from fault or negligence of the employee. “Authorized causes” are distinguished from “just causes” under Article 282 in that the latter are always based on acts attributable to the employee’s own fault or negligence.
Vskills certification for Labour Law Analyst assesses the candidate as per the company’s need for compliance to labour laws and assistance in labour cases. The certification tests the candidates on various areas in industrial relations basics, trade unions, employers’ federation, collective bargaining, employee grievances, discipline, industrial conflict, ILO, labour welfare and social security
The Department of Labor and Employment clarified and modified the rules and regulations on just causes and authorized causes - resulting in stricter implementation of due process. Labor Law compliance is required for valid termination. Non-compliance may result in liabilities, including illegal dismissal.
Eighteen months on from its introduction, the Labor Government’s Fair Work Act continues to create challenges for SME employers, many of whom are still struggling to understand the implication of new National Employment Standards, the new Modern Awards regime and changes to rules around redundancy provisions, unfair dismissal and bargaining.
In this presentation, industrial relations lawyer Patricia Ryan will look at the key areas that SMEs are still coming to grips with, and provide advice on in range of areas.
Unfair Dismissal - Misconduct (2 of 4) Webinar SlidesShorebird RPO
In the second webinar of this series on unfair dismissal, Barrister Helen Gardiner gives us a whistle stop tour of Misconduct and what an employer really should know.
If you would like to view the full webinar, please email marketing@shorebird-rpo.com and we will happily email the recording immediately, or why not join our LinkedIn Webinar Network to access all our archives http://linkd.in/1acZPdh
Disclosures by whistleblowers under the qui tam provisions of the False Claims Act (FCA) have enabled the federal government to recover more than $40 billion. But with strong protections against retaliation, whistleblowers would be reluctant to come forward. This course, presented by Jason Zuckerman, Principal at Zuckerman Law, provides an overview of whistleblower protections for employees of government contractors and grantees, focusing on the whistleblower protection provisions of the FCA and National Defense Authorization Act (NDAA). The course will also offer practical tips and insights for practitioners on how to evaluate potential whistleblower claims and overlapping remedies to maximize damages. In addition, the course will address the challenging issues that arise when a whistleblower simultaneously prosecutes both retaliation and rewards claims.
Simplified Explained Version, REPUBLIC ACT 9485 - ANTI-RED TAPE ACT OF 2007, Report for PAE1-Service Delivery System, College of Public Administration - Tarlac State University
Parties involved in construction disputes must be careful instructing third parties for written and oral advocacy before tribunals. In order that the decision isn’t set aside for fraud the consultant or consultancy should be a reputable one regulated by an industry professional body such as the RICS or CICES or is a unlicensed barrister that is regulated by the BSB and Inns of Court. By using a reputable party to represent them they will get the best value and hopefully an enforceable decision that will not be overturned due to unethical conduct.
Litigating Proxy Fights – Strategic Considerations and Recent TrendsNow Dentons
In this presentation, FMC partner Matthew Fleming reviews strategic considerations and recent trends in litigation arising from proxy battles for corporate control.
CPD Seminar: Ethics, Professional Skills and Practice Management for LawyersMaurice Blackburn Lawyers
Maurice Blackburn's Employment & Industrial Law Section delivered their annual seminar of which lawyers can gain CPD points for three areas: Ethics, Professional Skills and Practice Management. We were delighted to be joined by Melinda Zerner, Barrister; Rohan Tate, Lawyer; and Lauren Marr, Librarian.
This seminar explores the rights of employees when action is taken by an employer for an alleged criminal act outside of work, how to manage competing concerns when your member is faced with both a criminal prosecution and workplace investigation and issues by using recent case law and examples.
Delivered by our Queensland EILS team, this seminar explored the manipulations of investigations by employers and the common issues and deficiencies of investigations. Case studies, tip and traps are covered.
Taking an in-depth look at Practice Management - How to ensure best practice management in a fast paced environment and Advocacy - Essential Skills for appearing in the Commission or Court and Ethics in Arbitration. This presentation is for union officials, Industrial/Legal Officers and Organisers
Taking an in-depth look at the federal and state
discrimination laws and general protections provisions in the
Fair Work Act and comparing the scope of each scheme, procedural elements of each jurisdiction, outcomes available and possible risks. Focusing on recent case law and practical applications for union members. The presentation is for Union Officials, Industrial/Legal Officers and Organisers.
.
In our seminar, we look at the three big r's of workplace change: restructure, redeployment and redundancy, and the obligations of employers under relevant legislation.
Presentation by Maurice Blackburn head of Superannuation John Berrill to the Association of Superannuation Funds of Australia (ASFA) National Conference, Melbourne, 2014.
View John's profile: http://www.mauriceblackburn.com.au/our-people/lawyers/john-berrill/
This seminar, held in August 2014, discussing the pre, during and post stages of workplace investigations, including ways the union can assist a member during the investigative process, how to request and respond to findings, and how to use EBAs to structure investigations.
This session, delivered on March 13, 2014 by the Employment and Industrial Law Section of the Maurice Blackburn Brisbane office, covered the new anti-bullying laws which came into operation on January 1, 2014. It covered various elements including elements required to make an application to the FWC, orders that can be made, and the relationship to existing workers' compensation legislation.
Presentation by Maurice Blackburn employment lawyers Giri Sivaraman and Alana Heffernan to members of the National Independent Education Union, Sydney, 19 November 2013.
Australian legal cases involving social media such as Facebook, Twitter, Instagram and LinkedIn. Tips for teachers about best practice ways of using social media.
http://www.mauriceblackburn.com.au/areas-of-practice/employment-workplace-law.aspx (copy and paste into browser)
Maurice Blackburn's Queensland Employment and Industrial Law Section delivered a seminar on Emerging Issues in Workplace Privacy on August 22, 2013. Topics included Surveillance in the workplace, Privacy Laws, issues surrounding social media and more.
How to deal with workplace bullying remains contentious. This speech by Josh Bornstein, examines the myths and misconceptions about workplace bullying.
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
Visit Now: https://www.tumblr.com/trademark-quick/751620857551634432/ensure-legal-protection-file-your-trademark-with?source=share
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
2. PRESENTATION OVERVIEW
Introduction:
1. Legislative overview
2. Trends at conciliation and hearing
3. Case law developments:
a) Costs orders
b) Permission to appear
c) High income earners
d) Casual employees
e) Fixed term employees
f) Medical incapacity
g) Health and Safety
h) Dishonesty
i) Sexual Harassment
2
Review of Developments in Unfair Dismissal, 13 June 2018
4. LEGISLATIVE OVERVIEW
Definition of ‘unfair dismissal’ (s385 of the Fair Work Act 2009 (Cth)
(the FW Act)) - the dismissal was harsh, unjust or unreasonable
Factors to consider (s387 of the FW Act) – was there a valid reason for
termination, notification of reason, opportunity to respond,
unreasonable refusal of support person, warnings about unsatisfactory
performance prior to dismissal, size and expertise of employer
Application to the Fair Work Commission within 21 days of dismissal
(same time limit for claims in the QIRC under the Industrial Relations
Act 2016 (QLD))
Initially listed for conciliation (usually by telephone)
If not resolved at conciliation, then matter proceeds to a hearing
Available remedies: reinstatement or compensation (capped at 26
weeks pay or $71 000 dependent on salary)
4
Review of Developments in Unfair Dismissal, 13 June 2018
5. LEGISLATIVE OVERVIEW
Review of Developments in Unfair Dismissal, 13 June 2018
5
Section 382 Fair Work Act (“FWA”) - person protected from unfair
dismissal if:
• completed minimum employment period (6 months or 12 months); and,
either
• covered by award or enterprise agreement; or,
• income under high income threshold ($142,000).
Section 385 Fair Work Act (“FWA”) – Person has been unfairly
dismissed if:
• dismissed (terminated on employer’s initiative or constructive dismissal);
• dismissal was harsh, unjust or unreasonable;
• dismissal not consistent with Small Business Fair Dismissal Code (if less
than 15 employees); and,
• dismissal was not genuine redundancy.
6. Review of Developments in Unfair Dismissal, 13 June 2018
6
LEGISLATIVE OVERVIEW
Section 387 FWA - In considering whether it is satisfied that a dismissal
was harsh, unjust or unreasonable, the Fair Work Commission (“FWC”)
must take into account:
a) valid reason related to capacity or conduct;
b) whether notified of that reason;
c) whether given an opportunity to respond;
d) any unreasonable refusal by employer to have a support person present;
e) if dismissal related to unsatisfactory performance -whether had been warned before
the dismissal;
f) degree to which size of employer's enterprise would be likely to impact on
procedures followed in effecting the dismissal;
g) the degree to which absence of dedicated human resource management specialists
or expertise in the enterprise would be likely to impact on the procedures followed
in effecting the dismissal; and,
h) any other matters that the FWC considers relevant.
8. Review of Developments in Unfair Dismissal, 13 June 2018
8
CONCILIATION TRENDS
Unfair dismissal applications have remained steady at around 14,135
between 2016-2017
Almost 4 out of 5 matters resolve at or before conciliation. This has been
consistent for the previous 6 years.
17% of matters resolved prior to conciliation.
63% resolve at conciliation
16% resolve after conciliation and before hearing.
9. Review of Developments in Unfair Dismissal, 13 June 2018
9
UNFAIR DISMISSAL TRENDS AT HEARING
2016- 2017 2015-2016 2014-2015 2013-2014
Application dismissed
- dismissal was fair
125 130 161 175
Application granted-
award of
compensation
135 135 141 112
Application granted-
no remedy
6 7 10 8
Application granted-
reinstatement
10 12 12 9
Application granted- $
and reinstatement
15 18 15 25
11. Review of Developments in Unfair Dismissal, 13 June 2018
11
CASE UPDATES: COST ORDERS
Costs under Part 3.2: Unfair Dismissal
See section 611 and:
Section 400 FWA – FWC can make cost orders if the other party caused those
costs to be incurred because of an unreasonable act or omission in connection
with the conduct or continuation of the matter
Section 401 FWA – FWC can make order for costs incurred by the other party
if:
• a party engages a lawyer or paid agent as their representative; and
• the FWC’s permission is required under s 596 for the representative to act;
and
• costs were caused to be incurred because:
• the representative encouraged the person to start, continue or
respond to the matter and it should have been have been reasonably
apparent that the person had no reasonable prospect of success; or
• of an unreasonable act or omission of the representative in
connection with the conduct or continuation of the matter
12. Review of Developments in Unfair Dismissal, 13 June 2018
12
CASE UPDATES: COST ORDERS
Andrew Portelli v Baxter Healthcare Pty Ltd T/A Baxter Healthcare [2017]
FWC 2523 (9 May 2017):
• the respondent applied for costs after the applicant discontinued claim
• costs refused because respondent’s legal bill was unreasonably high
• Commissioner Johns noted it was "doubtful that all the costs charged
would survive a party-party costs assessment“
• Decision upheld on appeal
Ms Robin Hansen v Calvary Health Care Adelaide Limited [2016] FWCFB
8162 (1 Dec 2016):
• Full Bench held that appeal was so devoid of merit or substance as to not
be reasonably arguable
• costs of $5,000 awarded against appellant in unfair dismissal appeal
13. Review of Developments in Unfair Dismissal, 13 June 2018
13
CASE UPDATES: COST ORDERS
Maria Girdler v Western Sydney Community Legal Centre [2018] FWC 10 (18
Jan 2018):
• reinstated applicant applied for costs because respondent decided at last
minute to drop jurisdictional argument
• application denied because respondent’s actions held to have made
proceedings more efficient
Paola Marafioti v Gonzalez Pty Ltd T/A Mac's Crafts [2018] FWC 2873 (1
June 2018):
• applicant applied for her costs to be paid by the respondent and the
respondent’s lawyer personally because the lawyer failed to inform the
Commission or the applicant that the respondent would not press jurisdictional
objections
• Respondent and lawyer ordered to pay 30% of the applicant’s costs between
them because the lawyer’s actions were “unreasonable” and resulted in the
applicant and the Commission to deal with the jurisdictional objections that
were doomed to fail.
14. Review of Developments in Unfair Dismissal, 13 June 2018
14
CASE UPDATES: PERMISSION TO APPEAR
Section 596 FWA
Representation by lawyer or paid agent generally only allowed with the FWC’s
permission
FWC may grant permission to appear only if:
• it would be more efficient; or
• the person is unable to represent himself, herself or itself effectively; or
• it would be unfair taking into account fairness between the parties
Lawyers and agents are not considered representatives if a bargaining
representative or if employed by the party or an organisation, peak council or
bargaining representative that is representing the party
Exceptions to permission requirement set out in Rule 12 of the FWC Rules
2013
15. Review of Developments in Unfair Dismissal, 13 June 2018
15
CASE UPDATES: PERMISSION TO APPEAR
Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (17 Oct 2017):
• Full Bench found that a law firm's "substantial" preparation of Woolworths'
defence in an unfair dismissal case constituted legal representation at the
hearing for which they required permission even though a lawyer didn’t
appear as the company's oral advocate
Dr Neil Stringfellow v CSIRO [2018] FWC 1136 (21 Feb 2018):
DP Clancy clarified that the Fitzgerald decision ruling does not require
parties to seek permission to engage legal representatives to write
applications and submission, lodge documents and correspond with the
Commission in the lead-up to a hearing although the FWC may make a
direction to disallow such representation
Permission not required to obtain legal advice in the lead-up to hearings.
FWC cannot disallow such legal advice
16. Review of Developments in Unfair Dismissal, 13 June 2018
16
CASE UPDATES: PERMISSION TO APPEAR
Michael Taylor v Startrack Express T/A Startrack [2017] FWC 6083 (20 Nov
2017):
• Respondent claimed their in-house IR team lacked sufficient advocacy
experience to defend case
• Commissioner Ian Cambridge denied permission and distinguished
Startrack Express from a small employer that might have "no staff engaged
in dedicated roles that deal with employment matters"
Mr Michael Knight v Commonwealth of Australia (Australian Criminal
Intelligence Commission) [2017] FWCFB 3896 (25 July 2017):
• Full Bench confirmed that the Australian Government Solicitor can "as a
matter of right" represent all federal agencies, including commissions, in
the tribunal, without having to seek permission
17. Review of Developments in Unfair Dismissal, 13 June 2018
17
CASE UPDATES: HIGH INCOME EARNERS
Section 382 Fair Work Act (“FWA”) - person protected from unfair dismissal if:
• completed minimum employment period (6 months or 12 months); and
either
• covered by award or enterprise agreement; or
• income under high income threshold ($142,000)
Esso Australia Pty Ltd v John Stephens [2017] FWCFB 3783 (20 July 2017):
• Commissioner Cribb held that role fell outside of enterprise agreement but
within classification of Hydrocarbons (Upstream) Award 2010
• full bench quashed decision because employee did not hold a substantive
role at time of dismissal and therefore no classification of role could be
made
Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC
2623 (15 May 2017):
• regional director of a multibillion dollar real estate business
• found to be covered by the Real Estate Industry Award 2010 because his
duties established he was an award-covered sales representative
18. Review of Developments in Unfair Dismissal, 13 June 2018
18
CASE UPDATES: CASUAL EMPLOYEES
Section 384(2) FWA – period of service as a casual does not count towards
minimum employment period (6 months or 12 months) unless:
• the casual employment was on a regular and systematic basis; and
• during the period of casual employment, the employee had a reasonable
expectation of continuing employment on a regular and systemic basis.
Robert Smith v Goldfields People Hire [2017] FWC 6730 (14 Dec 2017):
• Applicant employed as a casual truck driver for ten months by a labour hire
business (Goldfields) and assigned to work for a mining contractor
• a declaration signed by the Applicant said that he understood and accepted
“that with any assignment, there can be no expectation of permanent
employment.”
• Commissioner McKinnon held that s 384(2) elements met because:
• an expectation of continuing employment is different to an expectation of
permanent employment
• the Applicant had worked based on a clear pattern of rostered hours;
• there was no indication that a change in contractor’s requirement would
cause his employment with the Respondent to end
• Language of contracts also did not support an argument that he was
employed for a specified task.
19. Review of Developments in Unfair Dismissal, 13 June 2018
19
CASE UPDATES: FIXED TERM EMPLOYEES
Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 (8 Dec 2017):
• teacher not offered new contract after 11 years of employment on a series
of fixed term “outer limit” contracts
• Respondent argued that teacher had not been dismissed at their initiative
per s 386(1) of the FW Act because the last contract had ended through
the effluxion of time
The Full Bench held that:
• “the analysis of whether there has been a termination at the initiative of
the employer for the purpose of s386(1)(a) is to be conducted by
reference to termination of the employment relationship, not by
reference to the termination of the contract of employment”
• where the employment relationship comprised a series of time-limited
contracts, the analysis may require consideration of the circumstances of
the entire employment relationship, not merely the terms of the final
employment contract
• case sent back for re-determination based on new interpretation of s
386(1)
20. Review of Developments in Unfair Dismissal, 13 June 2018
20
CASE UPDATES: MEDICAL INCAPACITY
CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 (16
February 2018):
• concerned with whether there was a valid reason for dismissal related to
the person’s capacity pursuant to s 387(a)
• in circumstances where there are two conflicting medical opinions about
whether a person meets the inherent requirements of a role, there were
two conflicting approaches:
a) that the resolution of any conflict in medical opinion is to be left to the
employer: per the majority in Lion Dairy & Drinks Milk Ltd v Norman
[2016] FWCFB 4218; and
b) that the FWC is to make findings about the alleged incapacity based
on relevant medical and other evidence: per the Full Bench in Jetstar
Airways Ltd v Neeteson-Lemkes [2013] FWCFB 9075
• the Full Bench held that the tension between Lion Dairy and Jetstar is to
be resolved by the adoption of the approach in Jetstar
21. Review of Developments in Unfair Dismissal, 13 June 2018
21
CASE UPDATES: MEDICAL INCAPACITY
Richard Hyde v Serco Australia Pty Limited [2018] FWC 2465 (8 May 2018):
• Commission upheld a prison officer’s dismissal on medical grounds,
despite the applicant later providing a medical reporting clearing him for
duties
• The applicant’s error was failing to obtain a medical report in response to
the show cause notice issued by his employer (which he requested, and
was granted, an opportunity to do), instead of just providing a written
response.
• It was only after his dismissal that the applicant obtained a medical report,
and as a result, that evidence was "not relevant to the determination of
whether or not there was a valid reason“ for dismissal.
• Commissioner Williams differentiated this matter from Papaioannou
(covered in previous slide): "in this matter at the time the decision to
dismiss was made the opinion of [the physician] had not created any
conflict with the medical opinions available to be considered by Serco
because [the] opinion did not at that point in time exist".
22. Review of Developments in Unfair Dismissal, 13 June 2018
22
CASE UPDATES: HEALTH AND SAFETY
Paul Johnson v BHP Billiton Olympic Dam Corporation Pty Ltd [2017] FWC
4097 (31 Aug 2017):
• worker’s breach of OH&S policy by failing to evacuate from exploding
smelter at a uranium mine found to be valid reason for dismissal but did
not constitute intentional misconduct and mitigating circumstances made it
harsh and compensation awarded
Mistry v Woolworths Ltd t/a Woolworths Fuel [2017] FWCFB 3926 (4 Sept
2017):
• Full Bench upheld appeal against decision that employee’s failure to
follow armed hold up procedure was a valid reason for dismissal
• held that:
-the procedure may not apply since assailant was not armed; and
-essential that OH&S procedures clearly state when they apply
Robert Bennett v Viterra Operations Pty Ltd [2017] FWC 665 (1 Feb 2017):
• employee with unblemished record held to be validly dismissed after he
recorded more than twice the workplace blood alcohol limit after drinking
four glasses of red wine the previous evening
23. CASE UPDATES: DISHONESTY
• Qantas Airways Limited v David Dawson [2017] FWCFB 41 (23 Jan 2017):
• Full Bench quashed DP Lawrence’s decision that dismissal was unfair on
harshness grounds despite him finding that the applicant had given a
false explanation about stealing alcohol from a Perth to Sydney flight
• Deputy President’s finding that the flight attendant merely gave an
"incorrect explanation“ was held to be an error in the exercise of his
discretion
• Travis Hodgson v Bendigo Kangan Institute [2018] FWC 69 (5 Jan 2018):
• employee made statements to employer which were inconsistent with
evidence he provided to Victorian Anti-Corruption commission about a
fraud committed by a third party
• dismissal held not be unfair because his false and misleading statements
constituted serious misconduct even though he was not involved in fraud
Review of Developments in Unfair Dismissal, 13 June 2018
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24. CASE UPDATES: DISHONESTY
• Halina Bluzer v Monash University [2017] FWC 2536 (19 May 2017):
• employee discovered to have falsified medical certificates after a
grammatical error was repeated in the certificates provided to the
employer
• held that a possibly falsified medical certificate was a sufficient concern
to start a disciplinary process
• decision upheld on appeal: [2017] FWCFB 4032
• Emma Valenzuela v Spectrum Community Focus Limited t/as Spectrum
Community Focus [2017] FWC 5007 (4 Oct 2017):
• failure to provide notice to an underperforming employee prior to
dismissal held to be unfair but no compensation awarded because
employee lied about her qualifications on her CV
Review of Developments in Unfair Dismissal, 13 June 2018
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25. CASE UPDATES: OUT OF TIME APPLICATIONS
• Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as
Richmond Oysters [2018] FWCFB 901 (16 February 2018):
• Full Bench overturned Commissioner Platt’s ruling that the applicant
“needs to provide a credible explanation for the entire period of the delay”
• Instead, depending on the circumstances, an extension of time may be
granted where the application has not provided any explanation for any
part of the delay.
• The ‘reason for the delay’ is a factor that the Commission must take into
account in deciding whether there are exceptional circumstances, that is,
having a reason for the delay is not a condition precedent to a finding of
exceptional circumstances
Review of Developments in Unfair Dismissal, 13 June 2018
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26. Review of Developments in Unfair Dismissal, 13 June 2018
26
CASE UPDATES: SEXUAL HARASSMENT
Jay Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC
6137 (21 Nov 2017):
• baker sent explicit images to manager on facebook as a joke
• found that conduct fell short of sexual harassment because manager was
not offended by the messages and at least some of the exchange was
consensual
• however dismissal upheld because conduct still breached code of conduct
especially requirement to act with dignity, courtesy and respect
Michael Renton v Bendigo Health Care Group [2016] FWC 9089 (30 Dec
2016):
• nurse’s misconduct including sharing explicit sexual images with
colleagues on facebook as a joke held to constitute a valid reason for
dismissal
• however, dismissal found to be unfair because it was disproportionate to
the gravity of the misconduct “on fine balance”