Profile cover photo
Profile photo
MKI Legal
163 followers
163 followers
About
Posts

Post has attachment
In Veronica Bennett v Colin Joss & Co Pty Ltd, an employer’s manner of handling the dismissal of an employee was highlighted by the FWC, warning against dismissing employees with the same indifference one would a “dirty rag”.

Veronica Bennett had, for over half a decade, worked as a permanent part-time cleaner for Colin Joss, a cleaning and maintenance business that handled various contracts for cleaning services for the New South Wales government.

In 2014, Ms Bennett had undergone surgery on her right ankle, requiring her to be on unpaid medical leave for two and a half months. Two years later, similar yet more complicated surgery was conducted on her left ankle, and she had to be out for longer periods of time in order to properly recover. In each instance, Ms Bennett had provided her employer with proper medical certificates.
Four days prior to the appointment with her doctor, Ms Bennett received a phone call from the employer’s Injury Department Manager and Internal Legal Counsel, again inquiring as to her recovery and probability of resuming work, and during the same call, informing her that since she is unable to return to her duties, her employment had been terminated. Written notice of termination was sent the day after the phone call. Two days later, at the scheduled medical appointment, Ms Bennett’s physician cleared her and declared her fit to return to work.

Commissioner Cambridge’s words “employees are human beings and not human resources”, where he explains that people should not be disposed of like office machinery.

Needless to say, Ms Bennett was successful in her claim and was granted reinstated of her employment.
Photo
Add a comment...

Post has attachment
The recent case of Steven Biffin v XL Express Pty Ltd T/A XL Express [2017] FWC 3702 highlighted a number of issues of substance and procedure in validly dismissing an employee.

Steven Biffin was a long-standing employee of XL Express, having worked a total of 24 years with the company, the final eight years in a managerial role as Depot Manager for the distribution business. The apparent reason for the dismissal is the error of Mr Biffin in allowing copies of the new J.K. Rowling novel ‘Fantastic Beasts and Where to Find Them’ to be distributed to a retailer a day earlier than expected.

The FWC, through Deputy President Asbury, determined that there was no valid basis for the dismissal, and that the actual manner of the dismissal was severely lacking in fairness.

The FWC noted that the embargoed delivery of the novels was indeed misconduct, but it found that Mr Biffin was not solely at fault, and that could not be a valid ground to dismiss him.

The employee was awarded $48,400 in lost wages and $6,560 in superannuation contributions
Photo
Add a comment...

Post has attachment
Can an employee be dismissed over an offensive social media post?

In this day and age social media is ubiquitous. In recent times, the courts have had to deal with social media’s influence, particularly in the workplace.

In the case of Somogyi, an employee posted an offensive comment on Facebook that related to management at the employee’s workplace.

The post read ‘I don’t have time for peoples arrogance. And your (sic) not always right. Your position is useless; you don’t do anything all day. How much of the bosses xxxx did you suck to get where you are?’.

The employee was terminated from his employment without any notification of the reason why he was fired. The employee then brought an unfair dismissal claim against his employer.

The Commission found that although the employees post was offensive, the employer had no valid reason to terminated the employee’s employment. The Commission stated that this was because there was not enough evidence to show that the employee actually did make the post during work hours, and not during his break.

The fact that the worker was not informed of the social media policy also supported the Commissions finding that the dismissal was unfair. The Commission highlighted that if employers are to have policies it is important that employees are made aware of them.

The employee was awarded $6,000 in compensation.
Photo
Add a comment...

Post has attachment
One of the grounds on which employers cannot take adverse action against an employee or prospective employee is race.

in Phillip v New South Wales adverse action on the basis of race was not found. In this case, the potential employee applied for a job to be trained as a police officer. After two telephone interviews the applicant was assessed as having poor English communication skills. Interviewers also made a file note indicating that he had an accent, was difficult to understand, and had become agitated in the second interview. His application for admission was rejected on the grounds that he failed to meet the minimum English communication standards, and his bad attitude. The applicant argued that he was denied employment in the training course because of his ethnic origin, because his accent was related to his ethnic origin.


The court held that the decision not to employ the applicant was not because of his race or ethnic origin. Instead, it was because of his failure to demonstrate adequate English communication skills, and the aggressive attitude he displayed during his phone interviews. No discrimination was found and the application was dismissed.

The case shows that for a person to make a general protections claim based on racial discrimination, there must be a significant connection between the person’s race or ethnic origin and the adverse action claimed. The adverse action must be taken because of the employee, or prospective employee’s, race or ethnicity.
Photo
Add a comment...

Post has attachment
General Protections Claims on the Grounds of Disability

One of the grounds on which employees can make a general protections claim is on the basis of disability. A general protections claim can be made where an employee has a reasonable belief that adverse action has been taken against them for a variety of reasons, disability being one of them. Adverse action can include dismissing the employee.

Read more at http://ow.ly/Yzmh30bUdLS
Add a comment...

Post has attachment
Unfair dismissal and Employee Pornography Use

In a recent decision, the Fair Work Commission found that an employee had been unfairly dismissed after he used his employer’s work computer equipment to access pornography during work hours.

The employee was a general insurance manager at an insurance broking firm. He had worked at the firm for just over a year. When he was dismissed, his employer alleged that his work performance was poor, and that he had been given previous written warnings.

Read more at http://ow.ly/eDcD30bUdAE
Add a comment...

Post has attachment
In Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal v Jodie Goodall (2016), the employee was originally dismissed for making anti-Muslim remarks and sexually explicit comments over a two-way radio system, which many employees at the site heard. The employee commenced an unfair dismissal claim.

The Commission decided that the employee’s comments were at the lower end of the scale of seriousness, and that fatigue was a contributing factor to his comments. The employee succeed in the claim and the Commission reinstated the employee to their previous position.
Photo
Add a comment...

Post has attachment
Australia Post was found to have discriminated against an employee on the basis of disability in the case of Stephens v Australian Postal Corporation. Here, Australia Post argued that the employee was dismissed due to a pick up that he missed.

However, the Court found that the real reason for the employee’s dismissal was because of the employee's disability. The employee had sustained a work-related lumbar spine injury. It was held that the physical injury, along with the mental symptoms it caused, constituted a disability. Australia Post was ordered to pay the employee $25,000 as a pecuniary penalty.
Photo
Add a comment...

Post has attachment
Termination Of Employment: Was It Unfair Or Justified?

In late 2015 while working for Murray’s Australia, Mr Soomro sent inappropriate text messages to a female co-worker, Ms Tsakos. The text messages Mr Soomro sent to Ms Tsakos were constant, unwelcome and inappropriate in nature. Ms Tsakos on many occasions asked Mr Soomro to stop sending the text messages to her, but he would not stop. Ms Tsakos made a complaint to her employer and an investigation of the allegations took place by Murray’s Australia.

Read more here: http://ow.ly/7Hof30bUdxl
Add a comment...

Post has attachment
One of the grounds on which employers cannot take adverse action against an employee or prospective employee is race.

in the case of Shackley v Australian Croatian Club Ltd, an employee alleged that she was dismissed from her employment with the club because she was not Croatian. The court found that this was the case, and the club was ordered to pay the employee $12,100 for the loss suffered.
Photo
Add a comment...
Wait while more posts are being loaded