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Kidd's Law Publications Blog

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

Fair Work Act – Section 389 (consultation cases)

[2014] FWC 988 Qld Stewart v Amcor Excavations (the A, a labour hire employee, was placed with a client who no longer wanted him – A was surplus to R’s needs. “The Applicant’s skill profile was not in demand at any other site, it was powerless to return the Applicant to the original client and its work site, and the Employer at the same time was reducing its employment levels significantly in other areas in which it had direct employees” @46 – R “no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Employer’s enterprise, as it is broadly conceived” @47 – R claimed that the decision to make A redundant could not be regarded as a ‘major change’ under the relevant Modern Award’s consultation provision arguing “that the redundancy of a single employee alone does not constitute a major change” @19 – the plural ‘employees’ was used in the award, but such held not to negate the application of the award to one employee – R also argued that a “major change is ‘where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology” @26 – according to R, “there was no decision taken by the Employer to introduce a major change that had any significant effects. The Employer encountered a set of circumstances imposed upon it by an external event, and responded at a discrete level, but this could not amount to a major change of the type the consultation clause envisages” @31 – held that “consultation provisions in...

Defamation – Comparative verdicts

See Fernando v Commonwealth of Australia 22/12/14 [2014] FCAFC 181 where Besanko & Robertson JJ’s considered there was a rational relationship between personal injury damages awards and defamation awards. See Cerutti & Anor v Crestside Pty Ltd & Anor 28/2/14 [2014] QCA 33 where Applegarth J carefully explained the proper use of comparable awards at paragraphs...

Dismissal – Union activities

[2014] FWC 9453 Qld Clarito v Hitec Welding (the A was dismissed for refusing to attend a meeting without having a union representative present – if he had attended, he would have received a warning for attempting to get other employees to join the AMWU  – dismissal harsh etc – compensation...

Dismissal – Mobile phones

[2014] FWC 9331 Qld Boal v BHP Coal (the A, who worked on mine site, “knowingly breached the Respondent’s procedure by having a mobile phone in his truck cabin. The procedure is a serious procedure, for the maintenance of health and safety of the Respondent’s employees and operations” @100 – valid reason for dismissal – dismissal harsh etc though, as amongst other things, dismissal decision “relied on broader allegations (than those notified in the show cause letter). The letter also referred to the consideration of a wider set of issues that were taken into account in making the decision to dismiss. These other issues relied on were not communicated with any clarity to the Applicant. There were significant differences to the reasoning in the show cause and the dismissal. This provided a series of procedural discrepancies that made the process unfair for the Applicant”...

Dismissal – Facebook comments

[2014] FWC 9330 Qld Faulkner v BHP Coal (whilst A was in the back of a dump truck which was stationary with its park brake on he discovered his mobile phone in his bag and breached policy by posting a comment on Facebook saying “Zachary J……..your lucky I’m here to get your truck out of the bog you got it into” – the policy was not a ‘zero tolerance’ policy and “the consequences of a breach of the new procedure was not clear, and the evidence demonstrated the introduction of the procedure and training documentation was also not adequate” @98 – valid reason for dismissal, but A’s dismissal was harsh etc for procedural reasons and differential treatment – “at least three issues emerged from the [difference between the] show cause and termination letters in relation to the reasoning for the dismissal decision: the level of risk associated with such; having a mobile phone versus using the mobile phone; and having a mobile phone whilst operating a vehicle, as opposed to the vehicle being stationary. The procedural deficiencies undermined the substantive basis for the termination. There was also no consideration of appropriate alternatives to dismissal” @76-77 – A...
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