UNFAIR DISMISSAL: HEAT OF THE MOMENT RESIGNATION COULD NOT BE ACCEPTED
The Fair Work Commission held that an employer could not accept a letter of resignation from an employee where it was given in the “heat of the moment”. It followed that the employer’s acceptance of that letter amounted to dismissal at the initiative of the employer for the purposes of an unfair dismissal application.
Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli (2018) 70 AILR ¶102-931;  FWC 1074
GENERAL PROTECTIONS: NO WORKPLACE RIGHT TO REFUSE DIRECTIONS WHILE ON SICK LEAVE
The Federal Circuit Court of Australia has held that the exercise of the workplace right under s 97 of the Fair Work Act 2009 (Cth) to take personal leave, does not include a right not to work. As such, an employee did not have a workplace right to refuse an employer’s direction to attend an Independent Medical Assessment while she was on personal leave.
Swanson v Monash Health (2018) 70 AILR ¶102-932 ;  FCCA 538
WORKPLACE INJURY: BETWEEN SHIFT CRICKET INJURY WAS COMPENSABLE
The South Australian Employment Tribunal held that an employer did not advise, require or encourage one of its employees to participate in a cricket match. However, it did impose a workplace policy that stipulated that its workers were to manage their rostered time off to prevent the effects of fatigue from impacting on their ability to perform their work. It followed that because the employee was playing in the cricket match in order to stay awake to prepare himself for the transition to a day shift pattern, the injury he sustained was compensable.
Backhouse v Return to Work SA (2018) 70 AILR ¶350-170 ;  SAET 40
MODERN AWARDS: UNIONS FAIL IN CLAIMS TO AMEND PUBLIC HOLIDAY PROVISIONS
A full bench of the Fair Work Commission has unanimously rejected three claims for variations of modern awards relating to public holiday provisions. Another two claims were deferred pending resolution of related Commission proceedings.
4 yearly review of modern awards – Public Holidays (2018) 70 AILR ¶102-927;  FWCFB 4
LEGAL REPRESENTATION: FAILURE TO NOTIFY APPLICANT WAS NOT FATAL TO COSTS APPLICATION
The Fair Work Commission has held that an employer could seek the costs of a “paid agent” in its defence to an unfair dismissal application despite not having put the employee on notice that it had engaged a representative or that it might incur costs.
Taiepa v Shinsen Taijutsu Pty Ltd t/a MMA247 (2018) 70 AILR ¶102-928;  FWC 1358
UNIONS: SUPER UNION MERGER NOT TO BE STOPPED BY PENDING CIVIL CASES
The Fair Work Commission has held that civil penalty proceedings and a contempt proceeding pending against two unions were “civil proceedings” for the purposes of the statutory criteria determining whether those unions and one other union could amalgamate. As a result, a date for the amalgamation of those unions could be set.
Re CFMEU, MUA and TCFUA (2018) 70 AILR ¶102-929;  FWC 1017