Recent Cases

Adverse Action: Moore v Slondia Nominees Pty Ltd [2012] FMCA 273

Ms Moore filed an underpayment application against her employer. Shortly after she was terminated, with the employer saying it was a result of a ‘slowdown in  business’. This case illustrates the court’s willingness to support an employee’s adverse action claim in circumstances where they are singled out for termination of employment, provided there is a link between their dismissal and their exercise of a workplace right.

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Adverse Action: LHMU v Arnotts Biscuits Limited

Adverse action claims under the Fair Work Act 2009 are becoming increasingly popular. Recent authorities have demonstrated that it is important that employers are able to demonstrate the reasons behind any potential adverse action taken against employees and to show that there is not a causal connection between that action and the employee’s workplace right.

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General Employment: Goodstart Early Learning Enterprise Agreement [2012] FWA 2408

This matter concerned an application pursuant to s185 of the Fair Work Act 2009 to determine whether an enterprise agreement by Goodstart Early Learning Limited was consistent with the National Employment Standards (NES). The issue at hand was whether employers are required to pay leave loading for annual leave upon termination of an employee.

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File sharing and copyright infringement in the work place

Recently, much attention has been drawn to the issue of file sharing and copyright infringement. Legislation has been suggested in many places that targets “pirates” who illegally download and share multimedia such as music and films.

This gives rise to the question - Who is legally responsible for what an employee downloads or shares using a work computer, internet connection or other hardware?

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Identifying a Workplace Bully

It has been estimated that one in thirty people, both male and female, is a bully. Whilst the term “bully” can cover a number of different personality disorders, there are a number of behavioural traits which are said to be common to the workplace bully. As well as looking at these behaviour traits, we will also discuss whether there are ways to avoid recruiting bullies into your organization.

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Tips for managing Generation Y employees

There has been much talk about the particular challenges that Generation Y employees bring to the workplace. Gen Y – the 4.5 million Australians born between 1978 and 1994 - is the second largest Australian generation and already constitute a significant force in the workplace.

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General Employment: Moss v. Lowe Hunt & Partners Pty Ltd [2010] FCA1181

Employer’s positive duty not to mislead or deceive potential employees

In a recent decision before the Federal Court of Australia, the Court considered the significance of representations made by employers, or directors on behalf of employers relative to inducements made to potential employees and consultants, to enter into a contract of service with the employer.

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General Employment: Legal update on the implied duty of good faith and confidence

A recent decision of the Western Australian Supreme Court has examined the application of the  implied term of good faith and trust and confidence in employment contracts. Justice Stephen Hall reviewed the Australian and English authorities and confirmed that the cases establish that an employment contract will generally include an implied term of good faith and confidence. Such a term applies to conduct during the currency of the employment, but does not apply to dismissal or the manner of dismissal.

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Enterprise Agreements Rejected

It is essential that the technical requirements for enterprise agreements set out in the Fair Work Act 2009 are met as a recent decision of Fair Work Australia (FWA) illustrates (see [2010] FWA 1769).

Applications for approval of a number of single-enterprise agreements were made by the bargaining representative for the relevant employers. All of the applications were rejected because they failed the “no disadvantage test” and concern was expressed that the statutory declarations supporting the applications were not properly witnessed and were “misleading”.

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The Corporations amendments

The Corporations Law now contains important restrictions on a corporation's ability to make very large termination payments to outgoing executives. Shareholder approval will now be required for executive termination payments in excess of one year's salary. The new provisions will apply to employment arrangements entered into after 24 November 2009.

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National Employment Standards now in effect

Employers must ensure that they have a good understanding of the operation of the National Employment Standards, which came into effect on 1 January 2010, particularly when recruiting new employees. Non compliance with the National Employment Standards or an attempt to enter into an arrangement with an employee which does not comply with the National Employment Standards would expose employers to penalties for breach of the Fair Work Act 2009.

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Social Media: Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA 735

In certain circumstances out of hours use of social media by an employee may justify termination of their employment.

The case of Rose v Telstra established the principle that an employee may be validly dismissed for out of hours conduct if the conduct if likely to cause serious damage to the relationship between the employer and the employee, damage to the employer’s interests, or is otherwise incompatible with the employee’s duties.

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