by David Kidd | Apr 4, 2015 | Uncategorized
D lost control of his vehicle when he swerved onto incorrect side of the road to avoid hitting kangaroo at 3am in the morning. D collided with P who was coming from the opposite direction. Unclear whether kangaroo came from D’s left or right. “As the animal was in the middle of the road and the impact was with the front nearside bumper-bar … then it does seem that the impact occurred when … [D’s] vehicle was already to a considerable extent on its incorrect side of the road. I am not satisfied that at the time the kangaroo came into the … [D’s] view the [P’s] lights were already visible … and so I would not be prepared to find that he knew or should have known that he was diverging into the [P’s] path … [D] offers no explanation of being on the wrong side of the road when it appears that there was in all the circumstances at least an equally safe course open to him, namely to drive straight ahead or to swerve to the left in order to avoid the kangaroo. In crossing to the incorrect side of the roadway and at the same time failing to avoid collision with the kangaroo … [D] put himself in the position where he was likely to lose control of his vehicle … [and pose a danger to other traffic] … I do not think that … [P] at the time when … [D] came into view … would have been in a position to observe that there was anything untoward [up ahead] … The question remains...
by David Kidd | Apr 4, 2015 | Uncategorized
Dismissal – Face book comments Blake K, ‘Facebook Comments Insufficient to Justify Dismissal’ (2010) 16(6) Employment Law Bulletin 87 Payne C, ‘Facing Facebook Facts’ (2012) 32(3) Proctor 28 [2010] FWA 7358 Vic Fitzgerald v … Escape Hair Design (A made negative comments on Face book about hairdressing industry which may have reflected badly on her employer – A wrote “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]” – comments not found sufficient to justify dismissal – Appeal allowed re remedy (only) at [2011] FWAFB 1422) [2011] FWA 5311 Qld O’Keefe v … The Good Guys (the A was upset about pay discrepancies and from his home computer posted offensive and threatening comments towards the operations manager (Ms Taylor) on his Facebook page – about nine other co-workers had access to his Facebook page, but not Ms Taylor – R had policy against such offensive conduct – conduct provided a valid reason for dismissal regardless of whether there was a policy – dismissal not harsh etc) [2011] FWA 8444 NSW Stutsel v Linfox Australia (the A posted remarks on his Facebook page which were construed as racially derogatory remarks about a manager – FWA did not consider the remarks in context to be so serious – someone else posted inappropriate sexual comments about another manager on A’s page – A mistakenly thought he had maximum security settings on his Facebook page, so that the material was private, and that he was not able to delete comments of others – other employees involved in similar misconduct not disciplined –...
by David Kidd | Mar 22, 2015 | Uncategorized
WCT51/14 Bucket (“As the rostered on call doctor … [W] was expected to re-examine and reassess any new patient he had seen overnight [as part of recall duties], before the end of his on call period the following morning. Fulfilment of this expectation was the established practice. … [W] did not need a specific instruction to do so because he correctly understood it was an expectation of the respondent that he would carry out that duty. He was accordingly authorised by the expectation to carry out this recall duty. The obligation was to attend at either FMC or WCH in the morning depending on where he had examined the patient overnight, and before the start of his normal day shift at FMC” @12 – W was injured in a car accident whilst on the way to perform his recall duty before he started his regular morning shift – R contended that W’s “second journey to FMC, on which he was injured, was for the purpose of an unauthorised or voluntary early start to his normal day shift which included checking on Mr A, but none of this was a recall duty” @30 – “At the moment of injury he was travelling to attend work for the purpose of performing more recall work tasks that arose solely as a result of him being recalled to duty earlier in the same on call period. The only reason he was travelling at that particular time was to perform recall duties. He was also entitled to be paid wages for the whole time spent on the journey, as the recall was deemed by...
by David Kidd | Mar 19, 2015 | Uncategorized
[2009] FWA 779 Vic Lee C v CLS P/L (R argued that FWA had no jurisdiction as worker’s {W} annual earnings exceeded the high income threshold of $108,300 by $833 – s332, which defines earnings, considered – $26,100 of W’s remuneration was in the form of a living away from home allowance {LAFHA} – Acton SDP concluded that the LAFHA “was in the nature of compensation to [W] for the additional accommodation expenses he reasonably incurred because he was required to live in Australia away from his usual place of residence in the United Kingdom in order to perform the duties of his employment with CLS … [and that] more than $833 in LAFHA was not earnings within the meaning of s332 … or for the purposes of s382(b)(iii) … Nor was it other benefits worked out in accordance with the regulations, as described in s382(b)(iii) … In considering the scope of ‘earnings’ within the meaning of s332 … or for the purposes of s382(b)(iii) … it is relevant that s332(2)(b) … provides that reimbursements do not constitute such earnings” @18-20. [2010] FWA 1952 NSW Chang v Ntscorp Ltd (A held to have exceeded the high income threshold as FWA satisfied that “the provision of a motor vehicle for private use, and the payment of a home internet subscription were benefits enjoyed by the [A] in return for her work”@25 – approach to calculating the motor vehicle component of her income and the approach to non-monetary benefits in general considered and Fewings applied) [2010] FWA 2907 WA Atkinson v Midway Community Care Inc (applicant exceeded high income threshold when...
by David Kidd | Jul 27, 2014 | Uncategorized
Pregnancy – Potential problems if gets pregnant See Kaur v Victorian WorkCover Authority 26/11/14 [2014] VSCA 300 where “contention that the judge, having found that the appellant suffered from a discogenic injury in her lower back with resultant permanent pain and restriction, ought to have taken judicial notice of the fact that ‘a woman with disc bulges in the lower back would suffer enhanced pain during pregnancy’ must be rejected” @42. “It is not possible to say that it is inevitable that a woman who becomes pregnant and who has a particular form of disc bulge will thereby have their lower back pain exacerbated. The particular effect of pregnancy upon a woman’s body is variable and, given that variability, if it is to be taken into account, it must be the subject of medical evidence as to what is likely to occur in the circumstances of the particular woman” @44. “The contention that the trial judge denied the appellant natural justice in not warning her that she would not make a finding that pregnancy pain be taken into account because it was not supported by medical evidence cannot be sustained” @49. Night-shift workers See Fraser v Burswood Resort (Management) Ltd 15/7/14 [2014] WASCA 130 re scope of duty owed to night shift worker who lost control of her car and was injured when driving home at 4am. NSW CLA s5 … Ice Skating In Moor v Liverpool Catholic Club Ltd 25/6/13 [2013] NSWDC 93 Levy SC DCJ found that the D breached its duty of care to the P who fell and injured his ankle while descending stairs wearing...
by David Kidd | Jul 26, 2014 | Uncategorized
Transfer of business [2014] FWC 8356 SA Worgan v Bedford Group (“In terms of s.389(1)(a) Bedford’s decision to cease job placement activities and transfer that function to Maxima represents a change in its operational requirements which explains why Mr Worgan could no longer be offered employment as a Bedford employee” @27 – “whilst Mr Worgan identified a number of different reasons for declining the Maxima offer of ongoing employment, his primary reasons for doing so were that he preferred to work with people with disabilities and that he sought a redundancy payment” @24 – the roles were essentially the same – “the arrangement implemented with respect to Mr Worgan, constituted a transfer of business such that as Mr Worgan rejected that employment offer, Bedford was not obligated to make redundancy payments to him” @26) FWA Cth s186(3) – Requirement that group of employees … is fairly chosen [2014] FWCFB 8429 CEPU & AMWU v Main People Pty Ltd (R only had three casual employees at time Agreement made – “FWC must be satisfied that group covered by the agreement was fairly chosen. In determining that matter in a situation where not all employees of the employer are covered by the agreement, FWC must take into account whether the group is geographically, operationally or organisationally distinct. It is in the nature of the scheme established by the FW Act that (a majority of) the employees employed at the time an enterprise agreement is made can agree to terms and conditions of employment that will then bind future employees employed under the terms of that agreement. Nor is there anything in...
