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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...

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...

Forced resignation?

[2018] FWC 5519 WA Tiller v Relationships Australia WA Inc (the A held personal views and beliefs inconsistent with R’s policies but had not breached the policies – “Asking Mr Tiller during the meeting ‘Where do we go from here?’ even in the context where Ms Reilly had strongly expressed her concern and disagreement with his views and beliefs did not leave him with no other choice but to resign and nor was his resignation the probable result of asking this open-ended question. Mr Tiller could simply have waited to see what RAWA did about the situation” @174-175 – “no evidence that there was an ultimatum given to Mr Tiller during the meeting on 14 March 2018 that he would be dismissed if he didn’t resign or that he should resign in order to preserve his professional reputation. Considering what occurred objectively whilst it was reasonable for Mr Tiller to understand that his employment was precarious his employer’s conduct was not such that his resignation was a probable result. Mr Tiller was not forced to resign; rather Mr Tiller voluntarily exercised a choice to do so”...

Proposed Norfolk Island Award

[2018] FWCFB 4732 4 yearly review of awards – Proposed Norfolk Island Award (application for proposed interim award refused – “s.139(1)(g)(iii) is to be construed as either ‘an exception to the otherwise general operation of s.154 or as a specific statutory provision dealing with a question not sought to be addressed in that section’” @17 – “s.154 … does not require all modern award terms and conditions to operate uniformly throughout Australia; both limbs of s.154(1) are directed to the same general objective — to prohibit differences between entitlements in States or Territories as such, that is, to eliminate ‘State-based’ differences; and s.154(1)(b) ‘prevents the possibility that terms and conditions might apply (ie as a matter of general application) in one or some but not every State or Territory, thereby discriminating (facially at least) against employees in those States or Territories which are excluded’” @18 – “With effect from 1 July 2016, the Territory of Norfolk Island became a Territory within the meaning of s.154(1)(b)” @19 – the Full Bench therefore considered “whether the proposed Interim Award includes any terms and conditions of employment that ‘are expressed to operate in one or more, but not every, State and Territory’” @19 – “a coverage term is a term and condition of employment for the purposes of s.154(1)” @23 – “all the terms and conditions of employment included in the proposed Interim Award are State based difference terms within the meaning of s.154(1)(b) … It is unnecessary for us to express a view as to whether the terms and conditions included in the proposed Interim Award are State-based differences terms within...