Snapshots Feb-Mar 2015

22 June 2015

Dismissed attacker fails in adverse action claim

In March 2015 the Federal Circuit Court rejected an employee’s claim that she was dismissed because she refused to work overtime with a co-worker, finding that she had assaulted the co-worker several months earlier.

The employee argued that she was dismissed after exercising her workplace right when she told her supervisor, that for OHS reasons, she could not work overtime when her female co-worker, whom she had assaulted several months earlier, was also working. She said her dismissal could not be linked to the alleged assault because the company had not taken any action in response to it.

The alleged assault was in retaliation to catching her co-worker in a “compromising situation” with her then partner, a male colleague, also employed by the company.

The Judge accepted the company’s evidence that it only became aware of the incident when it was reported by the assaulted employee several months later. After carrying out an investigation, the company decided it had no choice but to dismiss the assailant or risk sending a message to the workforce that “this sort of behaviour was not taken seriously…”.

Verbally abused employee loses bid for employer to treat him with good faith

On 23 May 2014 the Federal Court temporarily reinstated a CFMEU delegate to his position at Anglo Coal’s Dawson mine in Central Queensland pending the hearing of his adverse action claim. It stated that the employer will need to provide the employee with his usual work, in order to comply with its order.

Anglo Coal dismissed the worker because he took sick leave after his request for annual leave was refused. The worker obtained a medical certificate for the two night shifts that he missed on 24 and 25 April 2014.

Anglo Coal in its dismissal letter stated that “… he had made it clear that regardless of the company’s rejection of your leave application, would not be in attendance for your rostered shifts and you then did not subsequently attend your rostered shifts. The company considers that your conduct is in breach of your terms and conditions of employment and has irreparably damaged and undermined the employment relationship”.

The CFMEU immediately lodged an adverse action claim alleging that the company had sacked the worker for exercising his workplace right to take sick leave under s340, for engaging in industrial activity under s246 and for being temporarily absent from work due to illness under s352. The CFMEU asked the court to reinstate the worker pending the July hearing of the claim.

Justice Collier said the balance of convenience favoured reinstating the delegate, relying on his evidence on the importance of “the social and psychological benefits of his work” and also on the inconvenience to him and the union if he was not put back on the job. The Judge rejected Anglo Coal’s claim that reinstatement would undermine discipline at the mine, or inconvenience to the company because of a claimed breakdown in the relationship of trust and confidence.

Lastly, the Judge commented on the company’s threat to stand the worker down, referring to Justice Michael Kirby’s comments in the High Court’s Blackadder decision that “reinstatement is meant to be real and practical, not illusory and theoretical”. The Judge also observed that Justices Callinan and Heydon had further observed in the same case that “to pay an employee but not to put him back in his usual situation in the workplace would not be to reinstate him.”

Unpaid internships prove expensive

In a recent decision of the Federal Circuit Court of Australia, the court ordered a media company, which developed radio and television programs in Victoria, to pay a $24,000 penalty to two former employees for breaching the Fair Work Act 2009.

The company failed to pay two former employees minimum wages, casual loading rates or provide pay slips. The employees had performed unpaid work experience for approximately 3 weeks and were subsequently employed on a casual basis, working as volunteer producers of radio programs. The employees were incorrectly categorised by the company as ‘volunteers’.

Lessons for employers – In situations where an employer assumes its employee will continue to work and not be paid the true measure of their employment by accepting some modest level of return, such as accommodation or other entitlements, is simply incorrect. The court had available at its disposal, a total penalty of $115,000 which could have been levied on the employer. However, the full amount of penalty was not imposed due to the employer’s constructive approach and unblemished record.

Discrimination based on sexual activity is not protected

The question whether sexual behaviour, as distinct from sexual orientation, was protected from discrimination has been addressed in a recent Federal Circuit Court case. …read more

In his decision, Judge Vasta stated that it would be an absurdity if individuals who have extreme sexual behaviour should be protected under the Sex Discrimination Act 1984 (Cth). Judge Vasta concluded that sexual behaviour, rather than being considered part of sexual orientation, should properly be considered as a manifestation of sexual orientation; and as such, was not covered by the Sex Discrimination Act 1984 (Cth).