Recent Cases

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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Employment Contract: Qantas Airways Limited v Joyce and Gartside [2014 WAIRC 01192]

 

Qantas has recently won a case which found that two of its employees were not entitled to indefinitely maintain a job sharing arrangement. 

 


 The Full Bench of the Western Australian Industrial Relations Commission recently found that two Qantas customer service employees were not entitled to indefinitely maintain a job sharing arrangement.

The employees, Natalie Gartside and Helen Joyce commenced employment with Qantas in 2003 and 2004 respectively and signed contracts which provided for their employment on a permanent part-time basis, containing a clause that any subsequent positions that they held with Qantas would be governed by the 2004 contract.

In February 2008, Ms Joyce and Ms Gartside were transferred to a job-share arrangement in which they both worked 19 hours per week. After the commencement of their job share roles, Qantas send letters to the employees stating that the job share position was to be on a trial basis for six months with a view of it being extended. However, the employees did not agree with the letter and did not sign it.

There were a number of discussions between Qantas and the Australian Services Union between 2008 and 2012. Qantas was of the opinion that all job-share arrangements were for a fixed term, whilst the Australian Services Union, representing Qantas employees, argued that job share arrangements were ongoing. There was no agreement reached between the parties.

In December 2012, Qantas sent a letter to Ms Gartside and Ms Joyce inviting them to reapply for the job share positions as they were due to expire in February 2013. Qantas advised that their appointment was subject to operational or other business requirements.

The job share arrangements were extended to May 2013. The employees were then advised that Qantas could not offer a further job share secondment and would instead offer them a three month transition period to allow the employees to transition into new roles.

Ms Gartside and Ms Joyce commenced proceedings claiming that their job sharing arrangements were not for a fixed term and were ongoing.

Decision

The Full Bench found that the 2004 contracts of employment of Ms Gartside and Ms Joyce contained a clause that Qantas could provide unilateral notice to change the employee’s hours of duty and therefore could terminate the job share arrangements at any time with 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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Employment Contract: Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCCA 2206

The former head chef of North Wollongong Hotel has been ordered to pay his employer more than $70,000 after it was found that he swindled hundreds of thousands of chicken schnitzels through his wife’s company and profited more than $1.00 on every schnitzel piece. The Federal Circuit Court found that the chef had breached his contractual duty of fidelity and fiduciary duties that he owed to his employer.

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Employment Contract: Keays v JP Morgan

This decision concerned the fate of the employment of an investment banker and one of the world's largest investment banks. It is a decision which illustrates the dangers, particularly for employers, of loose job descriptions and the limited scope of so-called 'entire agreement clauses'. The decision also confirms the difficulty of employers limiting the payment of entitlements by reference to a Deed of Release or attempting to unilaterally alter job descriptions.

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Sexual Harassment: Richardson v Oracle Corporation Australia Pty Ltd

 

A Full Bench of the Federal Court of Australia increased damages awarded to a victim of sexual harassment.  


Decision

A Full Bench of the Federal Court of Australia has found a general damages award of $18,000 to a victim of sexual harassment to be manifestly inadequate and awarded $100,000.

The Full Bench also awarded Ms Richardson $30,000 for economic loss.

 

Facts

Ms Rebecca Richardson had suffered an adjustment disorder with mixed features of anxiety and depression after experiencing humiliating slurs and sexual advances from her co-worker Mr Tucker. The two employees worked together in Melbourne as part of a bid team to secure a project, during which there emerged a “repeated pattern” and “systematic course of conduct” of sexual harassment.

The company was found to be liable as a result of Mr Tucker’s unlawful conduct. The unlawful conduct was found to have diminished Ms Richardson’s sexual relationship with her existing partner. Evidence from Ms Richardson and her existing partner was reliable and credible in demonstrating that a “variety of factors” affected the sexual relationship, one of which was the unlawful conduct of Mr Tucker.  

The judge at first instances has award $18,000 general damages to Ms Richardson and had referred in his decision to the general range of awards in past decisions. The Court found that $18,000 could not be fairly viewed as reasonable compensation for Ms Richardson’s psychological injury, as recent case law has awarded general damages for pain and suffering and loss of enjoyment of life. In support of this decision, the Court determined that it was dangerous to depend on a general range of general damages award in sex discrimination and sexual harassment cases, especially when the community now places a higher value on compensation for pain and suffering and loss of enjoyment of life.

The Court referred to modern cases of personal injury, workplace bullying and harassment to demonstrate how awards of damages accord a substantial value on pain and suffering and loss of enjoyment of life. Judge Besanko commented on how an award falling within the general range for sexual harassment cases may be manifestly inadequate as compensatory damages:

 “Even this cursory overview of the quantum of awards historically awarded in these other fields to successful claimants in situations not wholly unlike Ms Richardson’s reveals a substantial disparity between the level of those awards and the typical compensatory damages provided to victims of sexual discrimination and harassment. Such disparity bespeaks the fact that today an award for sexual harassment, though within the accepted range for such cases, may be manifestly inadequate as compensation for the damage suffered by the victim, judged by reference to prevailing community standards.”

 

 * 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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