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Kidd's Law Publications Blog

The latest news and updates from Kidd Legal Research Services Pty Ltd

A Brief Wrap Up Of Recent Interesting Cases

[2019] FWC 2182 (whilst on duty as a flight attendant, “[c]onsuming on her own admission one quarter of a litre bottle of vodka provided the respondent with a valid reason for her dismissal” @77 – “having regard to the continuing and repeated dishonest approach to the investigation by the applicant, which in no manner can be regarded as a spur of the moment reaction … the applicant’s untruthfulness also provided a valid reason for her dismissal. It was an ongoing course of deception that led the respondent into inquiries over a lengthy period that it need not have embarked upon” @80 – Commission did “not accept that consuming alcohol while occupying a safety sensitive position in breach of the respondent’s policies and the Civil Aviation Regulations is misconduct where a warning ought to first be provided” @88 – A had a long and exemplary record with Qantas – “There may have been a different outcome had Mrs Warr been upfront and honest when it was first alleged she had consumed alcohol from company stores while on duty” @94 – dismissal not harsh etc) Dismissal – Sexual/Pornographic issues [2019] FWC 606 (the A, a male, was lawfully dismissed for sending text messages to a male co-worker of a sexual nature and making declarations of love where no mutual loving relationship existed – a reference to molestation was also inappropriate – it was reasonable for R to conclude the text messages were not welcome – A considered his behaviour a private matter and showed no remorse) Enterprise agreement – Intellectual freedom [2019] FCCA 997 (the A, who was the head of...

No Relationships Work Policy

In [2019] FWC 1533, handed down on 8/3/19, the Fair Work Commission found constructive dismissal where the Respondent had a policy that its workers should not have relationships with each other and that other workers were to dob them in if they did. The consequence of breaking this rule was that workers on visas would be sent home. The Applicant, who was on a work visa, walked away from her job upon realizing she’d been found out. She had no effective or real choice. There was no valid reason for the Applicant’s dismissal and given the consequences of the dismissal for her and her family, her dismissal was harsh, unjust and...

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...