Refer to CCH Books’ latest Fair Work Act and Employment Law titles for more in-depth information and insights.
UNFAIR DISMISSAL: NOT REASONABLE TO DIRECT EMPLOYEE TO PROVIDE PRIVATE MEDICAL RECORDS
The Fair Work Commission (FWC) found that an employer’s direction that an employee release private medical records was not reasonable and that its conclusion she was unable to perform the inherent requirements of her position was not justified . However, the FWC dismissed the employee’s unfair dismissal application, finding that her aggressive and abusive conduct in a telephone conversation with the employer’s human resources manager, and subsequent dishonest denial of this conduct, were valid reasons for dismissal.
Saloshna (Vanessa) Naicker v Epworth Foundation (2017) 69 AILR ¶102-887;  FWC 4928
UNFAIR DISMISSAL: LABOUR HIRE COMPANY FAILED TO INVESTIGATE REASONS HOST EMPLOYER TERMINATED ENGAGEMENT
The Fair Work Commission granted an unfair dismissal remedy to an employee who was employed on a casual basis by a labour hire agency after it failed to find her further work after her long term assignment ended.
Kumar v Australia Personnel Global Pty Ltd (2017) 69 AILR ¶102-888;  FWC 5661
ENTERPRISE AGREEMENTS: AGREEMENT INTENDED TO COVER HUNDREDS OF EMPLOYEES COULD NOT BE MADE ON THE APPROVAL OF JUST THREE EMPLOYEES
The Federal Court quashed a decision of the Fair Work Commission approving an enterprise agreement on the grounds that the initial agreement of three employees could not satisfy the statutory pre-approval requirements and that the agreement had not been genuinely agreed to. The employer intended that the enterprise agreement would ultimately cover more than 1,000 employees who would otherwise be covered by 11 modern awards.
Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd (2017) 69 AILR ¶102-889;  FCA 1266
ACCESSORIAL LIABILITY: “WHAT MORE COULD I HAVE DONE?” WAS NO DEFENCE FOR HR MANAGER
The Federal Court imposed total pecuniary penalties in excess of $390,000 for failure to pay 85 restaurant employees in accordance with their minimum entitlements and for the falsification of records pertaining to those failures. The penalties were imposed (in addition to compensation) against the corporate entity that conducted the restaurant, its sole shareholder and director, as well as the restaurant’s human resources manager and store manager who were held liable as accessories to those contraventions
Fair Work Ombudsman v NSH North Pty Ltd t/a New Shanghai Charlestown (2017) 69 AILR ¶102-890;  FCA 1301
LEGAL REPRESENTATION: COMMISSION TAKES HARD LINE ON DEFAULT POSITION EXCLUDING LAWYERS AND PAID AGENTS FROM FWC PROCEEDINGS
An employer was refused permission to be legally represented in unfair dismissal proceedings before the Fair Work Commission (FWC). The FWC held that this refusal also prevented any lawyer or paid agent from assisting the employer in the role of a “McKenzie friend”.
Michael Taylor v Startrack Express t/a Startrack (2017) 69 AILR ¶102-891;  FWC 6083
UNFAIR DISMISSAL: WHERE IS THE LINE BETWEEN PERSONAL AND WORK-RELATED COMMUNICATIONS IN CONTEXT OF INAPPROPRIATE, EXPLICIT TEXTS?
The Fair Work Commission found that an employee who sent explicit text messages to his supervisor was not unfairly dismissed. While the text messages did not amount to sexual harassment under the employer’s equal opportunity policy, the employee’s conduct in sending the messages, and subsequently, breached the employer’s code of conduct.
Jay Higgins v Coles Supermarkets Australia Pty Ltd t/a Coles (2017) 69 AILR ¶102-892;  FWC 6137
PENALTIES: ACCOUNTANCY FIRM “KNOWINGLY INVOLVED” IN EMPLOYER’S CONTRAVENTIONS FINED OVER $53,000
The Federal Circuit Court imposed a pecuniary penalty of $115,706.25 upon an employer for underpaying its employees and failing to keep proper employment records. In addition, the Court held that the accountancy firm responsible for the employer’s payroll was liable as an accessory to those contraventions. It was therefore ordered to pay a pecuniary penalty of $53,880.
Fair Work Ombudsman v Blue Impression Pty Ltd & Ors (No 2) (2017) 69 AILR ¶102-893;  FCCA 2797
TERMINATION OF EMPLOYMENT: ELECTRICIAN TAMPERED WITH PERSONAL DIGITAL ASSISTANT TO FOOL GPS AND CHEAT ON TIMESHEETS
The Fair Work Commission held that an employee who fraudulently claimed to have been at work when he was not, was not unfairly dismissed.
Colella v Aroona P&T Pty Ltd t/a Aroona Alliance (2017) 69 AILR ¶102-894;  FWC 5533