Latest news:

  • The latest Annual Report released by the Fair Work Commission has revealed that in the last 12 months there has been an upwards trend in general protections (involving dismissal) applications, with a 14% increase in this type of claim from 2015-2016.  Out of the 3,564 general protections applications made to the Commission, 73% of them were finalised at the Commission level and 58% were resolved at or after the conciliation conference for monetary and non-monetary terms. The majority of financial settlements appeared to range within the $2,000 to $30,000 range. The Commission’s Annual Report for 2016/2017 can be reviewed here.

Latest decisions:

  • In a recent decision, the Fair Work Commission has dismissed an unfair dismissal application made by a nurse employee despite finding that two of three reasons for dismissal provided by the employer were not valid. The Commission also offered useful commentary in its decision, regarding the extent of an employer’s power to request medical information when determining an employee’s ability to perform the inherent requirements of a role. The Commission ultimately found that the employer’s direction to the employee to provide additional medical records in this case was not reasonable as:
    • the records sought were for a private attendance at the employer’s medical facility during a period where the employee was on leave and not at work;
    • the employee had made allegations that the procedures/tests conducted at the employer’s medical facility were done without her consent and the veracity of these allegations were never investigated by the employer; and
    • the employer never made any enquiries on whether the requested records were required for the independant medical examiner to make a definitive assessment (which they ultimately were not).

We note that this decision has been appealed by the employee. To read the full decision, click here.

  • The Fair Work Ombudsman has been successful in securing penalties against a professional services firm under the accessorial liability provisions in the Fair Work Act. In the recent Federal Circuit Court decision, the Victorian accounting firm was fined $53,880 for knowingly helping one of its clients to underpay two vulnerable employees. The accounting firm was engaged to provide payroll services to its fast food operator client. The Court found that the firm’s involvement in processing payments on behalf of the employer that were not legally compliant, made it a participant to illegal activity and therefore liable for pecuniary penalties under the Fair Work Act. To read the full decision, click here.