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Restraint of trade unenforceable when the employer's repudiatory breach is accepted by the employee

For the first time in Australia, a superior Court (the Victorian Court of Appeal) in Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181 (see link below) has decided upon the enforceability of post-employment restraints when the employment relationship ends because of the wrongful conduct of the employer. On the facts, the employer sought to change the employee’s position without consultation.    Further, the employer sought to change the conditions upon which the discretionary bonus was payable by not taking into account the personal circumstances of the employee.  The requirements to consult about changes to the position and to take into account the employee’s personal position when determining the discretionary bonus were both express terms of the contract.  The Court found that the employer unilaterally varied terms of the employment contract which went to the heart of the contract and amounted to a repudiation of the contra...

18 August 2017

Don’t run whenever an employee says that they were dismissed because they made a complaint

Recently, the Federal Circuit Court determined that an employee who was dismissed by the Regional Health Care Group was dismissed not because he had made a complaint about his employment but because of his performance and conduct. Background The employee alleged that he was subject to bullying and harassment by his supervisor at the warehouse where he worked for the employer. The employee sought to report the incident to senior management. The employer subsequently investigated the incident while the employee was stood down. The employer dismissed the employee for misconduct arising out of the investigation. The employee alleged the dismissal was because of his complaint. The employer alleged that he was the aggressor in the incident and dismissed him for that reason. Findings The Court considered the evidence and acknowledged there were some inconsistencies in the evidence given by the employer. However, they “only represente...

11 July 2017

Principles for interpreting enterprise agreements updated by FWC

Background Recently, in an appeal lodged by the AMWU (the Union), a Full Bench of the Fair Work Commission (the Commission), which was headed by the President, was asked to consider whether employees covered by the Berri Pty Ltd (Leeton) Enterprise Agreement 2014-2017 (the Agreement) were entitled to be paid a laundry allowance for work clothing provided by the employer.  In the process, the Commission updated the principles it established for interpreting enterprise agreements under the leading Golden Cockerel decision.  The Agreement provided a rate for laundry allowance in a schedule.  However, the Agreement itself did not provide that laundry allowance would be payable. In fact, no laundry allowance had been paid under the Agreement. First instance At first instance, Lawrence DP determined that the clause was ambiguous. The ambiguity arose from the failure...

9 June 2017