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Drug and alcohol policy too wide

Employers need to watch their drug and alcohol policies are not too wide. In the case of Oliver [2019] SAET 195 the policy was so expansive ‘that an employee who had drunk a glass of wine or beer after work or taken Panadol could be caught by it’. It also allowed the employer to conduct screening just on the suspicion screening was warranted. Further, the employer tried to have the worker undergo screening at a time he was not expected to be working. The policy did not specify the methods of drug testing proposed, nor whether an initial screening will be accepted as finally conclusive or if formal confirmatory lab testing would be ordered in the case of a non-negative result. Although the R’s work environment was a hazardous one, it permitted the employer to test in circumstances that exceeded the maintenance of a safe work environment. The worker responded angrily to the attempt to drug test him after he was accused of being a drug addict. His dismissal for serious misconduct was not...

Associated Entity Case summaries

Associated entities See also Small business employer & Subsidiary companies (issues concerning) for further case summaries [2010] FWA 5374 Qld Adams v Condamine Catchment … Corp. Ltd (A contended that R had associated entities – namely the Landcare Group, such that it was not a small business employer – s50AAA(3) & (6) of the Corporations Act considered – no control or shareholdings – the Landcare Group not associated) [2010] FWA 9329 NSW Ho v Horizon Iris P/L (the A’s employment as a duty manager at the Forbes hotel was terminated after eight months – A “maintained that the real employer was Iris Group Management Pty Ltd, a company which owns and operates a number of other hotels [and that R was therefore not a ‘small employer]. He submitted that the Corporations Act 2001’s definition of ‘associated entities’ was satisfied in that Iris Group Management Pty Ltd (the Principal) controls the associated entity and/or a third entity controls both the Principal and the associate … [R] claimed that Iris Group Management Pty Ltd is a ‘banner’ consultancy company which strengthens the buying power for the Group. It does not own or operate anything” @5-6 – “the entity known as Iris Group Management Pty Ltd is a payroll / administration company which pays all of the employees at the Forbes Hotel from monies which are remitted to it from the operators of the Forbes Hotel, being the shareholders of the company known as Horizon Iris Pty Ltd. As its very name suggests, it is a management company of a Group … I do not accept the characterisation of such a payroll/administration...

Electronic Lodgement Issues Leading to Extension of Time

Electronic Lodgement Issues Leading to Extension of Time [2019] FWC 279 SA Walte v Maylands Dental Trust (“The reasons for the delay was the belief by Ms Waltke that her application had been lodged in time and that the delivery failure email went to her spam file and was unknown to her. Upon becoming aware of that information Ms Waltke promptly lodged her application. Ms Waltke has explained the delay” @17 – extension granted) Recent recommendation for my service: Recommendations “I’m finding your annotated FWAct very useful! I use Kidd’s annotated Fair Work Act regularly to advise clients on a whole range of employment law issues. It’s really helpful when I need to see whether there has been case law on particular provisions of the Act. I also used it last year as a basis for my research for an appeal to the Full Bench of the Fair Work Commission. It is very comprehensive and neatly summarises the case law that has dealt with each section of the Act. I find it a really helpful resource and definitely recommend it.” Best regards, Sean...

Three Dismissal by Demotion Cases in One Week

[2018] FWC 6695 Newcastle Harrison v FLSmidth P/L (the A was demoted “from the position of Service Supervisor to that of Mechanical Service Technician – Experienced (Service Technician). He remains employed by FLS in the position of Service Technician” @ – “The proper characterisation of events is one in which FLS made a number of allegations against Mr Harrison and asked him to show cause as to why his employment should not be terminated, Mr Harrison responded by floating a number of ideas (including demotion) in an effort to remain in employment with FLS, and FLS then decided to demote Mr Harrison and issue him with a written warning. It is therefore apparent that the action of FLS was the principal contributing factor which led to Mr Harrison’s demotion. The demotion was at FLS’s initiative, not Mr Harrison’s … There is no doubt that the demotion involved a significant reduction in Mr Harrison’s remuneration and duties. Accordingly, Mr Harrison’s demotion in his employment with FLS constitutes a dismissal within the meaning of s 386” @70-71) [2018] FWC 6666 SA Whitfield v Master Tree Ninja (the unilateral withdrawal of leading hand responsibilities from A was a repudiation of his contract of employment – A had agreed by contract to work as a ground crew climber – “When Mr Whitfield was promoted to leading hand in March 2018 it was an offer made verbally and an offer accepted verbally” @82 – this was a lawful variation of contract – “unilaterally removing a contractual right to be employed as a leading hand was the removal of a fundamental right under his contract...