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Passage of time means employee with a criminal past was unfairly dismissed, despite the revelation of dishonesty
This case concerns an employee who had a criminal record prior to seeking employment with Superior Food Group Pty Ltd (the ‘Company’). The employee omitted some of these convictions on his employment application form, including the most recent and most serious conviction. Significantly, the employee had consented to, and the Company performed, a Police Check which disclosed all of his previous convictions. However, it was over one year later that the Company sought to rely on the employee’s “failure to disclose prior criminal convictions” as a ground for dismissal. The Commission explained that this cannot now be a valid reason for dismissal due to the “passage of time” and the Company’s “failure to act promptly on the information it had available”. The issue of dishonesty was also raised in this case, with it being admitted during the course of the proceedings that the employee had falsified inform...
9 January 2019Employer pays for the dismissal of an employee who made work-related complaints
The Federal Circuit Court found that a Company had contravened s 340 of the Fair Work Act 2009 (Cth) (the ‘Act’) by terminating an employee for exercising the workplace right of making a complaint regarding her employment. The employee was dismissed after five months, which was within the probationary period. The Company did not give the employee a reason for her dismissal. Notably, the Act contains a presumption that the Company terminated the employment because of the employee’s exercise of a workplace right unless the Company proves otherwise. In this case, the Company failed to prove that the termination was due to reason(s) “that did not include as a substantial and operative factor [the employee] having exercised her workplace rights.” The relevant workplace right was the employee making complaints about her employment, including a desire to not be contacted outside of work hours via her personal email ad...
20 December 2018New model award term about requests for flexible working arrangements commences on 1 December 2018
A new model award term in relation to employee requests for flexible working arrangements will be included in all modern awards and will take effect from 1 December 2018. The new clause supplements existing obligations contained in the National Employment Standards (NES). This new provision requires an employer to “discuss the request with the employee and genuinely try to reach agreement” in an attempt to “reasonably accommodate the employee’s circumstances”. There shall be consideration of: the employee’s needs; the consequences to the employee of refusing the request to change the employee’s working arrangements; and “any reasonable business grounds for refusing the request”. An employer is to provide a response in writing to the employee within 21 days of receiving the employee’s request for flexibility. If the request is refused and no agreement with the employee has b...
22 November 2018