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New Fair Work cases handed down over Dec/Jan break

Amusements, Events and Recreation Award 2010 [2018] FCCA 3692 Creed v Jolong Park P/L (classification – the A’s “role was … to supervise the tour guides who ran the horse tours; … insofar as she was responsible for the horse tours, she had general supervisory duties including ensuring that participants completed the requisite pre-ride training, risk forms and the like; and … to undertake basic administration” @38 – A classified as Grade 5) Dismissal – Conflict of interest/disloyalty [2019] FWC 119 Vic Nason v V/Line P/L (Mr Nason suggested to “Mr Kibbis that he and two colleagues work against management as the solution for the lack of shift coverage that Mr Kibbis was complaining about” @26 – by raising his voice during a conversation Mr Nason “behaved in a manner that resulted in Mr McKeown feeling uncomfortable and concerned about the aggression and bullying/yelling down the phone from Mr Nason. Such behaviour can be described as discourteous and disrespectful” @38 – “Mr Nason closed the Coach Booking Office early without authorisation to do so” @68 – valid reason for A’s dismissal found – dismissal not harsh etc) Dismissal – Criminal convictions / offences / charges [2018] FWC 7626 Vic Njau v Superior Food Group (“Njau had a criminal record prior to seeking employment with Superior Food Group and … he did not disclose all of his prior convictions to Superior Food Group in connection with his application for employment … Njau’s failure to declare his criminal history to Superior Food Group occurred in circumstances where he had simultaneously consented to the Police Check. In providing his consent, Njau says...

Worker or volunteer?

[2018] SAET 190 Wieland (it was “likely that when she carried out the duties of Referee Coordination and Score Table Commissioner, Ms Wieland was acting as a genuine volunteer and that the honorariums that she received on account of them were genuinely gratuitous and were not intended to be a quid pro quo for the work done. There was no correlation between the making of the payments and the undertaking of the duties. But in contrast to this, when she worked as a court supervisor and as a referee coach and was paid for that work, there was a direct correlation between the making of the payment and the undertaking of the duties. The money was only paid when she actually worked, and it was paid to her immediately upon completion of the task. She was paid by the hour, or the game, or a combination of the two. The amount that she was paid was not trifling. Although modest, both forms of payment bear resemblance to a casual rate of pay. She did the work regularly. It was demonstrably different work to her work as a Referee Coordination and Score Table Commissioner. … Her performance of these duties involved a regular and serious incursion into her own leisure time. I think she expected to be paid for it and although Basketball SA might not have believed that it was contractually bound to do so, I think it felt obliged to pay her as a quid pro quo for the work that she did. I find that there was a mutuality of obligation. … [T]here was an intention to...

Gastric Bypass Surgery a Reasonable Medical Expense

In the recent case of Schmidt [2018] SAET 182 Ms Schmidt suffered compensable knee injuries. Gastric bypass surgery was considered to be a reasonable medical expense pursuant to s33 of the RTWA given the weight she needed to lose to reduce pressure on her knees. The “gastric bypass surgery was the most effective and sustainable option available out of all the surgical options based on the low percentage risk of failure and side effects”...

Biometric Fingerprint Scanner Policy Objected To By Worker

Employee Lawfully Dismissed For Failing To Use Biometric Fingerprint Scanner to Record Site Attendance In Lee v Superior Wood P/L [2018] FWC 4762 Mr Lee was given several warnings his failure to follow the site attendance policy, which involved using a biometric fingerprint scanner, would result in his dismissal. Mr Lee had privacy concerns. The Commission held the policy was not unlawful but “the manner in which the employer went about trying to obtain consent may have constituted a breach of the Privacy Act” @233 and further Mr Lee’s “objection was unreasonable when taking into consideration the purposes of the Site Attendance Policy, the improvements to payroll and health and safety, and the alternatives that would have been required to have been put in place for him” @245. Valid reason for dismissal found and dismissal upheld as...