A recent decision of Fair Work Australia has highlighted the limits of the Commonwealth's legislative powers in relation to workplace laws. The previous Coalition government extended the scope of workplace laws by utilizing the corporations power to legislate workplace laws in relation to corporations falling within the scope of the constitutional corporations power (so called 'Constitutional Corporations'). This extension survived a High Court challenge and continues in the Fair Work Act, where national system employers include constitutional corporations. National system employers are subject to unfair dismissal laws and obligations.
This case concerned a claim of unfair dismissal arising from allegations about mishandling cash. However, the monitoring and handling procedures of the Respondent were insufficient to sustain the complaint. This case demonstrates the high standard that employers must meet before electing to summarily dismiss an employee for fraud or theft.
This case concerned an application made by the dismissed employee for the costs of his application. Fair Work Australia had previously decided that the employee had been unfairly dismissed by the respondent employer. However, after that decision, the Commissioner held the matter over in relation to an application for costs. The Commissioner considered the legislation and ultimately determined that the Respondents should pay part of the Applicant's legal costs.
Mr Stutsel, a truck driver at Linfox, was dismissed for serious misconduct. His termination came as a result of comments posted on his Facebook profile concerning two of his supervisors, which were racially derogatory and sexual in nature.
Mr Somveer Narwal was employed by Aldi as a Store Manager when he was summarily dismissed for misconduct involving 'dishonesty and theft', after having worked at the company for four years. Narwal subsequently applied for an unfair dismissal remedy pursuant to s394 of Fair Work Act 2009. The crux of the matter was whether Narwal's dismissal was harsh, unjust or unreasonable, according to s385(b) of the Fair Work Act 2009.
The NSW Supreme Court has found EDI wrongly dismissed its managing director on the grounds of misconduct and denied him a substantial bonus.
The company dismissed the managing director following a fall in profits of the company however later claimed that he had been dismissed due to alleged misconduct, based on evidence it had discovered after he left its employment.
The Federal Court of Australia has dismissed an adverse action claim on appeal (Khiani v Australian Bureau of Statistics  DCAFC 109), finding that the fact that there was a temporal connection between the taking of leave by an employee and the taking of disciplinary action against the employee did not necessarily mean that there was a causal connection.
Fair Work Australia has found that an employee previously employed as a manager for a Jenny Craig Weight Loss Centre was not genuinely redundant because the company failed to consult her about the redundancy or offer her another position.
Seven employees who were dismissed by Dairy Farmers for sending, receiving and storing inappropriate emails including pornography have been unsuccessful in their unfair dismissal applications to Fair Work Australia.
Dairy Farmers showed that the dismissed employees had breached several of its policies covering emails and that, following the dismissal of three employees for similar offences in 2006, the employees were trained in key policies including workplace conduct standards for email use.
Unfair Dismissal: Narong Khammaneechan Pty Ltk ATF Nanakhon trading trust T/T Banana Tree Cafe FWA 7891
A recent decision of Fair Work Australia has made some important points about the obligations of an employer when they dismiss an employee who they have reasonable grounds to believe has been stealing from them.
The Federal Court of Australia has recently granted an interim injunction restraining a former employee from canvassing, soliciting or dealing with any client of the former employer, despite the lack of a restraint of trade clause in the employment contract.
A recent decision of the Federal Court of Australia relating to an unfair restraint of trade clause in a contractor’s agreement has found that the Court may have the authority to retrospectively vary a contract. This finding may have a significant impact on employers, leading the way in making compensation payable for an employer’s conduct relating to a contract which was altered retrospectively.
When valuable senior employees resign, carrying with them all their accumulated knowledge and experience with the company, employers may find themselves caught between a rock and a hard place. How best to protect the company’s interests is a vital question which arises.
The Full Federal Court has recently considered whether an agency contractor for Tattsbet Limited was an employee or an independent contractor, finding that a multi factor test must be undertaken to determine the true status of the agent.
The Federal Court of Australia has dismissed a former lecturer’s claims of unlawful sex and pregnancy discrimination after failing to join four academics in the claim, concluding that the proceedings constituted an abuse of process.
The Fair Work Commission has found that spreading misinformation or ill-will against others and criticising or gossiping about employees of neighbouring businesses constitutes workplace bullying if its occurs repetitively. In addition, this case demonstrates that bullying doesn’t have to be carried out by fellow employees but could be carried out by anyone an employee comes into contact with at work.
The Federal Circuit court refused to strike out a claim made an employee, who claims to have been terminated for complaining about company’s potential breaches of the corporations act. In doing so, the court offered a broad interpretation of the meanings of ‘workplace right’ and ‘political opinion’ in the Fair Work Act 2009 (Cth).
A court has held that provision of a company car, mobile phone and iPad could be included in an applicaiton of the 'high income threshold' for protection against unfair dismissal.
Annual leave: Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union  FCAFC 100
The Full Court of the Federal Court has confirmed an earlier decision, finding that annual leave is to be paid out at termination at the same rate the employee would have received had they taken it whilst they were still employed.
A former senior lecturer and professor of Monash University, has been ordered to pay $900K in indemnity costs, after “unreasonably” rejecting a settlement offer.
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- Parental Leave: Scullin v Coffey Projects (Australia) Pty Ltd  FCCA 1514
- General Protections and Unlawful Discrimination: RailPro Services Pty Ltd v Flavel  FCA 504
- Adverse Action: Moore v Slondia Nominees Pty Ltd  FMCA 273
- Adverse Action: Bayford v MAXXIA Pty Ltd  GMCA 202