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Unfair dismissal claim fails due to the calculation of an employee’s earnings
In a recent case, the Fair Work Commission held that an employee (Mr Maloney) was not entitled to bring an unfair dismissal claim as his income had exceeded the ‘high income threshold’ by $315.02. In this case, the employee’s income, as calculated by the Fair Work Commission, included a portion of the employee’s annual leave loading, fuel allowance and mobile phone entitlements. The Fair Work Act 2009 (Cth) says that an employee who is not covered by an award or enterprise agreement does not receive protection from unfair dismissal if their income exceeds the threshold, currently at $145,400 per annum. In this case, the issue was whether the employee’s entitlements to annual leave loading, fuel allowance and a mobile phone were to be included in his earnings. Regarding the annual leave loading, the Commission found that the full amount of annual leave loading should be included in the calculation of earnings in this case. The Commi...
15 May 2019Minor errors in EAs no longer a reason for delay
An amendment to the Fair Work Act 2009, that was passed by Federal Parliament in early December 2018, gives the Fair Work Commission powers to approve an enterprise agreement that has been genuinely agreed to by employees but has “minor procedural or technical errors” provided that “the employees covered by the agreement were not likely to have been disadvantaged by the errors”. This includes minor errors in a Notice of Employee Representational Rights (NERR). In introducing the legislation, the Minister for Jobs and Industrial Relations explained that these amendments will overcome the “unintended, and sometimes absurd, outcomes which have caused lengthy delays” using the example of rejecting an enterprise agreement because the notice to employees at the beginning of the bargaining process was erroneously printed on company letterhead. According to the Minister, “These changes will allow agreements reached betw...
5 February 2019Passage 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 2019