Recent Cases

Unfair Dismissal: Nangle v Kimberley Division of General Practice T/A Boab Health Services

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.

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Unfair Dismissal: Kunce v Deliver Australia Pty Ltd

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.

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Unfair Dismissal: Somveer Narwal v Aldi Foods Pty Ltd [2012] FWA 2056

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.

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Unfair Dismissal: Gillies v Downer EDI Ltd [2011] NSWSC 1055

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.

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Unfair Dismissal: Khiani v Australian Bureau of Statistics [2011] DCAFC 109

The Federal Court of Australia has dismissed an adverse action claim on appeal (Khiani v Australian Bureau of Statistics [2011] 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.

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Unfair Dismissal: Email policy breaches justifies sackings

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.

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Restraint of Trade: Informax International Pty Ltd v Clarius Group Limited (No 2) [2013] FCAFC 7

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.

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Bullying: Ms Nadia Page [2015] FWC 5955

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. 

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General Protections: Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923

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).

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