Recent Cases

Paid Parental Leave Bill 2010

In May 2010 that Federal Government released its draft of the Paid Parental Leave Bill.

Under the draft Bill, from 1 January 2011, an eligible parent will be able to apply for up to 18 weeks paid parental leave at the national minimum wage, currently $543.78 per week.

Employers will be required to pay parental leave to employees who have been employed for at least 12 months prior to the expected date of birth or placement of adoption.

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Unlawful Discrimination: Stern v Depilation & Skincare Pty Ltd [2009] VCAT 2725

Employers should take into account anti-discrimination legislation when deciding which employees to retrench, as the recent decision of Stern v Depilation & Skincare Pty Ltd [2009] VCAT 2725 illustrates. In this decision, an employee was working part time during pregnancy due on medical grounds. The employer was found to have treated an employee less favourably due to pregnancy when she was selected for redundancy due largely to her part time status.

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Workplace Relations: Endeavour Coal v APESMA

The Federal Court has recently handed down its decision in the long running dispute between Endeavour Coal Pty Ltd (a BHP subsidiary) and the Association of Professional Engineers, Scientists and Managers, Australia. The application concerns APESMA’s application to Fair Work Australia for good faith bargaining orders in relation to its Appin Mine in New South Wales. The Federal Court’s decision is the second appeal in this dispute.

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Workplace Relations: CFMEU v Pilbara Iron Company

The Federal Court of Australia recently handed down a significant decision in relatio to the protections afforded to employees against adverse action by employers. The case is significant because it demonstrates the heavy burden that employers can have managing difficult and cantankerous employees. The principal difficulty is that the burden of demonstrating compliance with the general protections provisions lies on the employer.

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Workplace Relations: Mifsud v Veolia Transport Sydney Pty Ltd [2012] FMCA 167

Mr Misfud was denied redundancy payments owed to him under a collective agreement by his employer, Veolia Transport Sydney, and the issue arose whether they were thus liable to pay a penalty. Mr Misfud also petitioned for indemnity costs, claiming that Veolia's failure to respond to a settlement offer unreasonably furthered his legal costs.

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Executive Remuneration in Australia – Productivity Commission’s Report

On 16 April 2010 the Government released its response to the Productivity Commission’s report, “Executive Remuneration in Australia”.

The Government intends to introduce legislation in 2010 to implement these reforms, with the reforms to take effect on 1 July 2011. Further public consultation will be taken during 2010.

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Workplace Relations: Australian Manufacturing Workers’ Union (AMWU) – WesternAustralian Branch v Airflite Pty Ltd [2010] FWA 1723

Fair Work Australia has made its first scope order under the new industrial regime.The order required an employer to bargain with the AMWU for separate deals to cover its employees in Victoria and Western Australia. Australian Manufacturing Workers’ Union (AMWU) – WesternAustralian Branch v Airflite Pty Ltd [2010]  FWA 1723

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Workplace Relations: FWA refuses to make bargaining orders

The bargaining landscape confronting employers remains uncertain. In rejecting the CFMEU's application to have bargaining orders made against Tahmoor Coal, however, Commissioner Roberts of Fair Work Australia found that an employer is not in breach of its good faith bargaining obligations simply because, after extensive negotiations, the employer concludes negotiations are at an impasse. Commissioner Roberts stated that in this case, having reached this conclusion, the employer was entitled to refuse to meet further with the union.

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Work Health and Safety: Workers Compensation for injury at private party

Is an employer responsible for an employee’s injury which occurs at a private party held on work premises? The NSW Workers Compensation Commission (‘the Commission’) has recently answered “yes” to this question, in circumstances where the injured employee’s attendance at the party was motivated by work.

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Model Workplace Health and Safety Laws

Different occupational health and safety (OHS) laws are currently in place in each State and Territory in Australia. As part of developing a seamless national economy and reforming OHS, the federal government has, with the cooperation of each of the States and Territories, initiated the process of “harmonising” OHS laws. Once the harmonisation process is complete, there will be uniform OHS laws throughout Australia.

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Unfair Dismissal: Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners [2014] FWCFB 8278

The Full Bench of the Fair Work Commission has found that resolving a workplace conflict by dismissing one of the two workers involved in the conflict was not unfair just because the employer could just have easily chosen to dismiss the other staff member.  


The two employees, Mr Lumley and Ms Cook worked together in a small office. In early 2013, there was a total breakdown in their working relationship, which had a direct impact upon the performance of their jobs.

In July 2013, Ms Lumley made a formal complaint alleging bullying on the part of Ms Cook. The complaint was investigated by the employer and found to be unsubstantiated. The employer conducted a mediation to try to resolve the conflict between the two employees. When that was unsuccessful, the employer put in place a procedure in which it was expected that the employees would first go to their manager to report any problems with their co-worker rather than taking it up directly with the other employee.

Issues continued to arise between the employees. In September 2013 Ms Lumley was sent a final warning letter advising that if there was no improvement in her conduct, her employment may be terminated.

In February 2014 a further altercation occurred between the two employees. During a meeting afterwards, Ms Lumley goaded the manager into dismissing one of the two employees, not expecting that it would be her that would be dismissed. The manager then proceeded to dismiss Ms Lumley with immediate effect. Ms Lumley commenced proceedings claiming that she was unfairly dismissed.

Decision

The Full Bench found that Ms Lumley was not dismissed because she was responsible for the conflict. The reason for the dismissal was the existence of an interpersonal conflict in a small workplace which had reached the point where it had become incapable of any resolution and was affecting the performance of work and relationships with customers. The dismissal was therefore valid and found not to be unfair.

The fact that the situation might equally have been resolved by the dismissal of Ms Cook could not render Ms Lumley’s dismissal unfair. 

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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