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Kidd's Law Publications Blog

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

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...

Fair Work Act – Extension of time

Bereavement [2011] FWA 5349 WA Reeve v Ramsey Health Care (the death of A’s grandmother and Family Court proceedings found to be acceptable explanations only for some small part of the delay in A making this application – see Pitrau précis at s366(2)) [2012] FWA 4651 NSW Jansson v Shorefront Enterprises (application a few days late – exceptional circumstances found where “serious and unexpected illness and subsequent death of a close relative … [and where as a result] Mr Jansson also had the primary care of his two young children and the sole responsibility for organising his father-in-law’s funeral” @15 – representational error also contributed to delay) [2014] FWC 7633 WA Moore v S & L Hardware (two days after A’s dismissal, his only surviving immediate relative went into intensive care – he remained at his bedside on a daily basis until his brother died about 10 days later – A then was taken up with funeral arrangements and other related issues for the next two weeks until the funeral – A lodged his application three days later, which was eight days late – exceptional circumstances found) [2015] FWC 780 NSW Nudd v Commonwealth Bank (“the combination of the obvious stress and anguish of her father’s illness and his ultimate death and the understandable confusion arising from errors made by the applicant’s representatives, constitute ‘exceptional circumstances’”...

Fair Work Act – Extension of time

S.394 Overseas travel / applicant overseas [2012] FWA 4954 NSW Thorne v Jura Australia Espresso (extension of time granted when A went overseas immediately after her dismissal – she did not have access to the internet while overseas – upon her return she made prompt enquiries about her position and lodged claim within 13 days (42 days late) despite having received unhelpful advice about her ability to claim) [2013] FWC 1537 Qld Dean-Villalobos v QGC (“That the Applicant chose to remain in the United States while she pursued her application, is entirely a matter for the Applicant and does not constitute exceptional circumstances. Further, any difficulties arising from time differences between Australia and the United States are not exceptional circumstances and are simply matters which should have been taken into consideration by the Applicant and those who represented her given that she was resident in the United States” @124) [2013] FWC 8201 WA Whatmore v Virgin Australia Airlines (extension allowed where application only about six days out of time, where A was actively pursuing an internal review and where he was detained overseas – the latter was not significant, as he had internet access – merits of case were limited) [2014] FWC 8207 SA Badenoch v Flinders Campus Community Services (pre-arranged travel to Nepal (where A had no internet access) a few days after being abruptly told of ‘redundancy’ gave rise to exceptional circumstances where claim two days late)   [2015] FWC 215 WA Parker v Hire Intelligence International (the A was dismissed one day before going overseas on annual leave on a pre-planned holiday – application about six...
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