- Launch of Online Unfair Dismissals Benchbook
The Fair Work Commission has launched an interactive online version of the unfair dismissal benchbook on 24 April 2018. This is a helpful resource for businesses as it explains key principles of unfair dismissal case law in plain English and case summaries applying relevant principles. To review the benchbook, click here.
- Family friendly working arrangements
The Australian Council of Trade Unions (ACTU) made a submission to the FWC to create a new set of employee entitlements, including: An employee with parenting or caring responsibilities would have a right to access “Family Friendly Working Hours” upon giving their employer “reasonable notice”. Notwithstanding that the Full Bench agreed with the ACTU that s 65 of the Fair Work Act lacks an “effective enforcement mechanism” if the employer refuses to grant an employee’s request for flexible working arrangements, the Full Bench held that it “could not confer on an employee a unilateral right to determine their hours regardless of the operational consideration of the employer”. Nevertheless, the Full Bench proposed a provision model term to supplement the National Employment Standards, but is different from the original term sought by the ACTU. To read a summary of the decision, click here.
- 12-month amnesty for underpayments of superannuation
The Treasury Laws Amendments (Superannuation 2018 Measures) Bill 2018 has been introduced by the Turnbull Government in a bid to recover billions of unpaid superannuation contributions. The ATO estimates approximately $2.85 billion of underpaid contributions in 2014-15 which could exceed $23 billion by 2027. Complying with the amnesty offer which runs for 12 months from 24 May 2018, will see penalties for late payments set aside, however even harsher penalties will be implemented for non-compliance, including 50% of the super owed in addition to payment of the withheld monies. To read the full report, click here.
To read the explanatory memorandum, click here.
- Accepting a distressed employee’s resignation may be a dismissal
In a recent appeal decision, the Full Bench has held that an employee was dismissed at her employer’s initiative as it was unreasonable to accept the distressed employee’s resignation. Whilst attending a training session at her workplace, Ms Tavasolli was advised by a co-worker that her employer received a serious allegation of theft against her and that she needed to await further direction. During the two hours that she waited for further direction, she asked a colleague to help her draft a resignation letter which was accepted by her employer, Bupa. The following day, Ms Tavasolli attempted to rescind the resignation but the request was refused. She subsequently filed an unfair dismissal claim.
The Full Bench had to consider whether the resignation was handed in the ‘heat of the moment’ and whether any special circumstances existed for Ms Tavasolli who was a refugee and had limited English. Commissioner Cambridge found on appeal that Ms Tavasolli’s mental state at the time was irrational which was "reflected in her impulsive preparedness to resign with immediate effect” and her irrational behaviour can "be attributed to ethnic and cultural factors, associated with the shame that allegations which she thought involved theft would bring upon her”. His Honour held that in these circumstances “it was unreasonable for the employer to assume that the resignation was genuinely intended”, and the employer failed to check with Ms Tavasolli the following day, whether she still intended on resigning. To read the original decision, click here.
To read the appeal decision, click here.
- Farting not considered workplace bullying
A former employee has sought $1.8 million in damages for psychiatric and physical injuries resulting from being allegedly bullied at the workplace during his 11 months on the job as a contract administrator. Mr Hingst claimed that he was bullied at work by being excluded from meetings, being subjected to ‘horseplay’ around the office and flatulent incidents with his immediate supervisor whom he coined “Mr Stinky” which allegedly caused Mr Hingst irritable bowel syndrome.
Her Honour Zammit relevantly defined bullying pursuant to WorkSafe’s guidance note (Victoria), which reflects the position of the FW Act in s789FD: Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety. Mr Hingst was unable to establish negligence on the part of the former employer and the Judge held that the employer had no way of knowing that the former employee was at risk of mental harm. To read the full decision, click here.
- Efforts to improve employees’ performance not considered bullying
Mr Blagojevic, who was an experienced and hard-working engineer, argued that the performance improvement plans, put in place by his employer, AGL Macquarie Pty Ltd constituted bullying as the plans were “not reasonable management action carried out in a reasonable manner” pursuant to s789FD of the FW Act. Mr Blagojevic contended that the 3 out of 5 areas identified by the Employer as a concern, did not form part of his role as an asset engineer. Commissioner Saunders however, found that any unreasonableness from the employer “must arise from the actual management action in question rather that Mr Blagojevic’s perception of it”. Furthermore, the Commissioner held that the plans were put in place as a “genuine attempt to improve Mr Blagojevic’s performance” and subsequently dismissed the bullying application.
To read the full decision click here.