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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 physics at JCU, was subjected to directions, censure and ultimately dismissal by R for alleged breaches of confidentiality and his expressed views, including to the media, on the state of the Great Barrier Reef – his opinion was the state of the reef had been misrepresented – this conflicted with his peers at R – the R found to have erred by measuring A’s conduct through the lens of the Code of Conduct rather than the intellectual freedom clause, cl. 14, in the EA – “Many aspects of the Code of Conduct cannot sit with the concept of intellectual freedom and certainly contravene cl.14” @297)

WHS Act Subject division – Insurance
[2019] NSWDC 111 SafeWork NSW v Macquarie Milling Co Pty Limited ; SafeWork NSW v Samuels (relevance to penalty of D having insurance considered)

FWA Cth s387(c) – Opportunity to respond
[2019] FWC 1834 SA Mercuri v Green Castle Renmark P/L (two 2-3 minute discussions regarding customer feedback did not constitute an opportunity to respond to allegations – appeal lodged)