Recent Cases

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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Bullying: Applicant v Respondent [2014] FWC 6285

In this bullying case a manger undertaking performance management of a direct report was found by the Commission not to have engaged in bullying. The manager was instead held to be carrying out ‘an ordinary exercise of management prerogative’. 


 The Applicant, a senior employee with a Commonwealth department, applied to the Fair Work Commission for an order to stop bullying against his manager who he believed was malevolently micromanaging and intimidating him to force him to resign.

The Applicant alleged that his manager engaged in bullying behaviour, including:

  • Telling him to ‘go back to where he came from’;
  • Treating him like a ‘slave’;
  • Criticising his every move and speaking to him in a condescending and patronising tone;
  • Fabricating non-existing performance issues; and
  • Making hurtful remarks and intimidating him as a method to force the Applicant to resign.

As a result the Applicant claimed that he suffered high blood pressure, anxiety and insomnia. The Applicant made complaints to senior management and an internal investigation into two particular complaints was undertaken. The Respondent did not find any evidence of bullying. Prior to this, the Applicant had made complaints of bullying against his two previous managers which were unsubstantiated as they were actually genuine performance management actions.

The Applicant’s manager was a senior manager within the department and gave evidence as to several performance related concerns of the Applicant. The Applicant was put on a Performance Improvement Plan (PIP) for a period of five weeks and during this time his manager gave him continuous feedback on his performance. At the end of the process, the Applicant was found to have partially met only one of the five criteria. Notably, several examples of bullying identified by the Applicant related to performance issues contained in the PIP.

Decision

The Applicant argued that his manager micromanaged him in a bullying manner and the Commissioner found that he this was a genuine and honest belief. However, the Commission went on to find that the Applicant was not justified in this belief as the ‘bullying conduct’ was truly ‘an ordinary exercise of management prerogative’ in response to his underperformance. The application for an order to stop bullying was therefore dismissed.

 * 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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Bullying: Applicant v Respondent [2014] PR555329

A recent case in the Fair Work Commission (FWC) highlights how broad anti bullying legislation is, after a male employee was the subject of a number of orders, including refraining from exercising in front of a female employee whilst at work.

A female employee lodged an application for an order for her male colleague to stop bullying her.   The FWC did not publish the names of the employees, the workplace or the history of the matter as the parties remain working together. However, the orders which were made by consent allude to the likely background of the matter.

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Bullying: Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62

A recent decision of Fair Work Australia has highlighted the need for employers to properly investigate employee complaints.

In Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62 an employee was awarded the maximum compensation payable under the Fair Work Act 2009 (Cth) (ie six months salary) after being forced to resign following “a course of harassment” from one of his managers.

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Breach of employment contract: Coghill v Indochine Resources Pty Ltd (No 2) [2015] FCA 1030

 A former employee who was the chairman, company secretary and chief financial officer of mining company, Indochine Resources has been awarded approximately $3.7 million following the company’s breach of his employment contract by failing to pay his salary, superannuation, annual leave, club memberships and reimbursement for business expenses and unlawfully terminating his employment. 

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Transfer of business: Notice under section 130 by NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Eraring Energy re entitlements [2015] NSWIRComm 23 (2)

The Industrial Relations Commission of New South Wales has found that two employees, each with more than 2,000 hours personal leave, did not have their employment transferred to another entity, therefore meaning both employees lost their entitlements. 

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Employment Contract: Bartlett v Australia and New Zealand Banking Group Limited [2014] NSWSC 1662

 

The NSW Supreme Court has ruled that the ANZ Bank did not need to prove that an executive leaked a confidential internal email to the media before summarily terminating his employment; it only had to have formed the opinion that he had. 

 


 

Mr Bartlett was the NSW director of the Institutional Property Group for the ANZ. On 20 June 2012 Mr Bartlett was one of ten ANZ employees to receive an email which stated, amongst other things:

                “No more new lending. We are closed for business. Do not tell the market or our clients.

On 3 July 2012 a journalist based in Brisbane who wrote for the Australian Financial Review received a copy of the email in the post. The journalist advised the ANZ.

At the conclusion of an investigation which included a forensic examination of the handwriting on the envelope, the ANZ was of the opinion that Mr Bartlett had leaked the email because:

  • He was based in Sydney where the letter was posted;
  • He was the only recipient of the email who knew the journalist;
  • He lied about being in contact with the Commonwealth Bank about employment opportunities;
  • He lied about a previous warning he had received;
  • He was reluctant to sign a statutory declaration that he was not the leaker without obtaining legal advice first;
  • The handwriting examination report declared that it was highly probable that the writing on the envelope was his.

Mr Bartlett’s contract contained a clause stating:

ANZ may terminate your employment at any time, without notice, if, in the opinion of ANZ, you engage in serious misconduct.”

Based on the opinion that Mr Bartlett had sent the letter, the ANZ summarily terminated his employment.

Mr Bartlett sued the ANZ for breach of contract alleging that he was not guilty of serious misconduct. He claimed damages of $9 million in respect of lost remuneration and bonuses, calculated on the basis that he would have worked for ANZ for a further ten years. He claimed that the ANZ could only terminate the contract if it could prove that he was actually guilty of serious misconduct, or alternatively, if ANZ could terminate on the basis of its opinion that he was guilty of serious misconduct, such opinion had to be reasonable, correct, formed in good faith and in compliance with various ANZ policies.

Decision

The Court rejected Mr Bartlett’s claim and found that the words “in the opinion of” were “not gratuitous”. The relevant fact was whether, in the opinion of the ANZ, Mr Bartlett was guilty of serious misconduct. The Court was satisfied that the ANZ held the opinion that Mr Bartlett sent the email to the journalist and that this amounted to serious misconduct. Accordingly, the ANZ was entitled to terminate Mr Bartlett’s employment without notice. 

* 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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