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Employer terminated a casual employee by removing the employee from a WhatsApp group used to allocate shifts
Introduction In this case, the Fair Work Commission considered whether removing a casual employee from a work WhatsApp group on which rosters were distributed constituted a dismissal at the employer’s initiative for the purposes of the employee accessing unfair dismissal laws. Reasoning Deputy President Millhouse explained there may be a dismissal pursuant to s.386(1)(a) of the Fair Work Act 2009 (FW Act) at “the employer’s initiative” if the circumstances show that the employer’s action is the principal contributing factor leading to the employment termination. It was held the Company’s action in removing the employee from the WhatsApp group was the principal contributing factor which brought the employee’s employment to an end on 10 August 2022. The Deputy President’s reasoning included: The WhatsApp group is the primary means by which shif...
3 April 2023Federal Court imposes penalties totalling $70,000 on Company for failing to consult
Facts In a recent Federal Court decision, the court imposed two $35,000 penalties on Airservices Australia (Airservices) for contravening section 50 of the Fair Work Act 2009 (Cth) (the Act) due to Airservices failing to comply with consultation and other obligations in their enterprise agreement. The issue arose in the context of a dispute between the Civil Air Operations Officers’ Association of Australia and Airservices around the implementation of a remote overnight arrival and departure service for the Rockhampton/Mackay sector (Service) by air traffic controllers at Cairns. One of the contraventions of s. 50 of the Act arose as a consequence of Airservices developing a plan for the Service without fulfilling consultation obligations required by the enterprise agreement. Another s. 50 contravention was due to Airservices’ non-compliance with consultation obligations under th...
16 March 2023Union succeeds in two Federal Court general protections claims against host employer in labour hire scenario
In two recent Federal Court decisions, the CFMMEU has been successful in its general protections claims brought against the BHP Mitsubishi Alliance coal mine as the host employer in a labour hire scenario. The two cases are as follows: Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345 (11 November 2022) (November 2022 Case); and Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30 (30 January 2023) (January 2023 Case). The November 2022 Case In this case a labour hire employee was employed by WorkPac Pty Ltd (WorkPac). WorkPac had a commercial relationship to supply labour to BM Alliance Coal Operations Pty Ltd (BMA/the principal) at a mine. The employee exercised workplace rights whilst working at the mine where: s. 2...
15 February 2023