by David Kidd | Sep 25, 2018 | Annotated Fair Work Act
[2018] FWC 4991 Qld Star v WorkPac P/L (“Ms Star’s dismissal was brought about by the response of WorkPac to the directive from BMA [host employer] to remove her from the Goonyella Riverside Mine site. … Ms Star’s dismissal related to conduct. That conduct was not a valid reason for dismissal. There is no evidence of any other reason – valid or otherwise – for a directive to be issued by BMA requiring the removal of a longstanding labour hire employee from the Goonyella Riverside Mine site. The dismissal was also unfair on the basis that there was no discussion with Ms Star about the decision to remove her from the site and the consequential termination of her employment prior to the termination being effected. The BMA directive was accepted by WorkPac managers as a fait accompli and there was no attempt made to discuss the directive with a relevant manager of BMA or to confirm the reason for the directive or whether the contractual provisions between BMA and WorkPac with respect to unsatisfactory performance by WorkPac personnel applied. The dismissal of Ms Star was harsh because of its consequences for her personal and economic situation and because there was no conduct sufficient to justify her dismissal. The dismissal was also unreasonable because it was decided on inferences which were not reasonably open to WorkPac on the basis of the information it had or which it could reasonably have obtained from BMA” @105-107 – in [2018] FWC 5745 reinstatement to the same position at BMA ordered against WorkPac despite no surety BMA will allow it – no purpose would...
by David Kidd | Sep 6, 2018 | Fair Work Law & Annotated Act
[2018] FWC 5519 WA Tiller v Relationships Australia WA Inc (the A held personal views and beliefs inconsistent with R’s policies but had not breached the policies – “Asking Mr Tiller during the meeting ‘Where do we go from here?’ even in the context where Ms Reilly had strongly expressed her concern and disagreement with his views and beliefs did not leave him with no other choice but to resign and nor was his resignation the probable result of asking this open-ended question. Mr Tiller could simply have waited to see what RAWA did about the situation” @174-175 – “no evidence that there was an ultimatum given to Mr Tiller during the meeting on 14 March 2018 that he would be dismissed if he didn’t resign or that he should resign in order to preserve his professional reputation. Considering what occurred objectively whilst it was reasonable for Mr Tiller to understand that his employment was precarious his employer’s conduct was not such that his resignation was a probable result. Mr Tiller was not forced to resign; rather Mr Tiller voluntarily exercised a choice to do so”...
by David Kidd | Aug 30, 2018 | Damages assessments - Recent cases
See Smith v State of Victoria 27/8/18 [2018] VSC 475 where Dixon J dismissed D’s application for summary dismissal of P’s claim of breach of duty by police officers toward family members named in intervention orders. D claimed there was no duty of care owed by police officers to prevent family violence by repeat offenders. “Australian common law has not affirmatively recognised that a police officer can never owe a duty of care. Whether a police officer does owe a duty of care in the terms identified in the amended statement of claim must necessarily be determined on a close analysis of the facts bearing on the relationship between the plaintiffs and the putative tortfeasor for whom the defendant is responsible”...
by David Kidd | Aug 20, 2018 | Fair Work Law & Annotated Act
[2018] FWCFB 4732 4 yearly review of awards – Proposed Norfolk Island Award (application for proposed interim award refused – “s.139(1)(g)(iii) is to be construed as either ‘an exception to the otherwise general operation of s.154 or as a specific statutory provision dealing with a question not sought to be addressed in that section’” @17 – “s.154 … does not require all modern award terms and conditions to operate uniformly throughout Australia; both limbs of s.154(1) are directed to the same general objective — to prohibit differences between entitlements in States or Territories as such, that is, to eliminate ‘State-based’ differences; and s.154(1)(b) ‘prevents the possibility that terms and conditions might apply (ie as a matter of general application) in one or some but not every State or Territory, thereby discriminating (facially at least) against employees in those States or Territories which are excluded’” @18 – “With effect from 1 July 2016, the Territory of Norfolk Island became a Territory within the meaning of s.154(1)(b)” @19 – the Full Bench therefore considered “whether the proposed Interim Award includes any terms and conditions of employment that ‘are expressed to operate in one or more, but not every, State and Territory’” @19 – “a coverage term is a term and condition of employment for the purposes of s.154(1)” @23 – “all the terms and conditions of employment included in the proposed Interim Award are State based difference terms within the meaning of s.154(1)(b) … It is unnecessary for us to express a view as to whether the terms and conditions included in the proposed Interim Award are State-based differences terms within...
by David Kidd | Aug 15, 2018 | Fair Work Law & Annotated Act
A decision of the Full Bench of the Fair Work Commission was just handed down relating to two issues under the Legal Services Award 2010. In [2018] FWCFB 4709 the Full Bench rejected a proposal that 26 weeks be ‘the specified period’ over which hours of work be averaged because there was no probative evidence whether the current Award provision allowing for the averaging of ordinary hours over 28 days was insufficient and whether the 26 week period was necessary. The Law Firms had submitted that employees under the Legal Services Award work side-by-side with qualified and admitted lawyers who are not covered by the Award. Therefore, they argued, it is reasonable and desirable that employees covered by the Award should be permitted to average hours of work over a 26 week period. Regarding leave entitlements of law graduates, a new clause 39 was substituted adequately and appropriately accommodating the various study leave requirements of PLT students and supervised training as well as those undertaking a graduate diploma. It reads: Special conditions of employment—Law graduate 39.1 A law graduate is entitled to paid study leave not exceeding a total of 20 days in any 12 month period to attend a course of instruction, and prepare for and attend examinations that relate to the practical legal training required for their admission to practise as an Australian lawyer. 39.2 Paid study leave may be taken for a period or periods agreed between the employer and employee. The employer will not unreasonably refuse to agree to a request by the employee to take paid study leave in accordance with this...
