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Employee who was terminated before first day of work brings dismissal dispute
In this case the employer raised a jurisdictional objection to an employee’s general protections application involving dismissal by arguing that it could not have dismissed the worker because her employment had not yet commenced. The facts in the case involved a casual employee who had been “allocated” but not yet worked their first shift and therefore no wages had been paid. The Commission explained whilst the performance of work and payment of wages would generally be relevant considerations in determining the existence of an employment relationship and the absence of either could suggest no employment relationship, these are not the only factors and all of the surrounding circumstances should be taken into account. The Commission considered the following factors, amongst others, pointed towards the existence of an employment relationship: The signed contract of employment made express reference to an ‘employment relationship’ b...
31 July 2023Changes to the unfair dismissal remuneration cap, national minimum wage, minimum award rates and filing fees
Introduction New award rates, unfair dismissal thresholds and other changes in the employment law space have been announced which commence from 1 July 2023. These are some of the main changes. Unfair dismissal threshold (high income threshold) and maximum compensation cap The high income threshold will increase from the previous $162,000 to $167,500 from 1 July 2023. This means employees whose annual rate of earnings is $167,500 (which excludes statutory superannuation) or more, and who are not covered by an award or enterprise agreement, are unable to pursue an unfair dismissal application. The change also means that the maximum compensation that can be awarded for an unfair dismissal claim will increase from $81,000 to $83,750. National minimum wage The national minimum wage will increase to $882.80 per week or to $23.23 per hour (calculated on the basis of a 38-hour week ...
26 June 2023No genuine redundancy where there was opportunity for redeployment with a related entity’s Indian operations despite being overseas and with lower remuneration
Introduction In a recent decision, the Fair Work Commission found an employer was unable to rely upon the “genuine redundancy” defence to an unfair dismissal claim brought by a former full-time Software Engineer. Section 389 of the Fair Work Act 2009 (Cth) (FW Act) sets out the meaning of “genuine redundancy”. All of the relevant elements in that section need to be satisfied for the employer to be able to rely upon the defence. In this case the employer failed to satisfy the consultation obligation and the redeployment obligation so the “genuine redundancy” defence to an unfair dismissal claim was not available to the employer. Job no longer required The Commission found the termination did satisfy s. 389(1)(a) of the FW Act, being that the employer no longer required the employee’s job to be performed by anyone because of changes in the operational requ...
8 May 2023