Contents:
- Pushing unfair dismissal to the outer-limits: Is Saeid Khayam v Navitas a game changer?
- It’s now more difficult to be protected: The High Court’s latest ruling on protected industrial action, bargaining-related orders and unlawful coercion
- Unauthorised employee absences: Full Bench abandons automatic termination
- Driving to independence: Fair Work Commission finds ride-share drivers are not employees
- Hands off: Internal investigation documents and freedom of information
- Notice of termination and ordinary and customary turnover of labour
- Out of hours conduct: Employee dismissed for explicit private Facebook message
- Commission clarifies law on constructive dismissals
Pushing unfair dismissal to the outer-limits: Is Saeid Khayam v Navitas a game changer?
Chris Hartigan, Partner and Michelle Cox, Associate explain the decision and its effect on the ability of workers on outer-limit or maximum term contracts to bring unfair dismissal claims.
For more than a decade, the full bench decision in Department of Justice v Lunn [2006] AIRCFB 756, 158 IR 410 (Lunn) has been accepted as authority for the proposition that where an employee’s employment ends because a fixed-term or outer-limit contract expires, the cessation of employment does not constitute dismissal at the initiative of the employer. This applied equally to fixed term contracts and outer-limit contracts (which, unlike true fixed term contracts, reserve the right of the parties to terminate before the end date), and regardless of whether the contract was one of a series of contracts offered to the employee by the employer or otherwise, unless the arrangement was a sham.
It’s now more difficult to be protected: The High Court’s latest ruling on protected industrial action, bargaining-related orders and unlawful coercion
In Esso Australia Pty Ltd v The Australian Workers’ Union; The Australian Workers’ Union v Esso Australia Pty Ltd [2017] HCA 54, the High Court of Australia was called upon to determine two important questions relating to protected industrial action:
- 1. whether a union that contravenes a Fair Work Commission (FWC) order with respect to a matter relating to enterprise bargaining is prohibited from taking protected industrial action for the entire bargaining process, even after the relevant order ceases to operate; and
- 2. when unprotected industrial action can constitute unlawful ‘coercion’ for the purposes of sections 343 and 348 of the Fair Work Act 2009 (Cth) (FW Act).
Unauthorised employee absences: Full Bench abandons automatic termination
Chris Hartigan, Partner, and Michelle Cox, Associate discuss the decision and its impact on employers engaging in enterprise bargaining. In a recent decision of the full bench, the Fair Work Commission has decided to delete the abandonment of employment clauses in six modern awards, and is now seeking submissions from interested parties in relation to a replacement clause.
Driving to independence: Fair Work Commission finds ride-share drivers are not employees
In an Australia first, Uber has now had its ride-share app based business tested in the Fair Work Commission. In Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, the Fair Work Commission held that drivers utilising Uber’s ride-share application are not employees within the meaning of the Fair Work Act. Tim Lange, Partner, and John Evans, Lawyer, discuss the Commission’s findings.
Hands off: Internal investigation documents and freedom of information
The purpose of the Freedom of Information Act 1985 (Vic) (Act) is to access to information as much as possible. However a recent decision affirms that the exclusions under the Act extend to protecting operational employees’ testimony taken as part of investigations and ensuring future potential witnesses will contribute to internal investigations. John Evans, Lawyer and Tim Lange, Partner discuss the impact of Country Fire Authority v McGregor (Review of Regulation) [2017] VCAT 582 for organisations subject to the freedom of information framework. While “employee records” exemptions exclude many private sector employers, public sector and volunteer workforces are within scope.
Notice of termination and ordinary and customary turnover of labour
In March this year, the Federal Court clarified the requirements for valid notice of termination of employment. The Federal Court also highlighted the limited scope of the “ordinary and customary turnover of labour” exception to the requirement to pay redundancy pay under the Fair Work Act. Ben Motro, Special Counsel, and Emily Setter, Law Clerk, explore the implications of this decision.
Out of hours conduct: Employee dismissed for explicit private Facebook message
In Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174, the Fair Work Commission found that an employer validly dismissed an employee in circumstances where the employee sent a sexually explicit video privately to 19 work colleagues through the Facebook Messenger app (Messenger).
The decision, if followed, would be a significant expansion of the law as it relates to employers regulating out of work conduct. Tim Capelin, Partner and Amrita Howell, Associate, discuss the implications.
Commission clarifies law on constructive dismissals
Tim Capelin, Partner and Emily Setter, Law Clerk discuss the recent decision in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074 and its implications for employers when handling resignations received from employees. Commissioner Cambridge’s judgment provides important guidance on what conduct will constitute termination at the employer’s initiative.
The judgement arose as a result of a re-hearing on the discrete question of whether the Applicant, who had brought proceedings on the basis that she had been forced to resign within the meaning of section 386(1)(b) of the Fair Work Act 2009 (Cth), was actually dismissed at the initiative of the employer within the meaning of section 386(1)(a) of the Act.
