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Employer 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 2018The terms and effect of an EA not properly explained
Further to our previous article, two recent decisions of the Full Bench of the Fair Work Commission have again shown that an employer’s failure to properly comply with the requirement in s.180(5) of the Fair Work Act 2009, relating to the employer taking all reasonable steps to explain an EA and its effect to employees, has proved fatal to the approval of the EA. In Australian Workers’ Union v Professional Traffic Solutions Pty Ltd, the statutory declaration filed with the application to approve the EA contained an answer that stated: “The agreement was explained to all relevant employees at the time that it was handed out, on 24 May 2017. All employees were encouraged to ask questions, and to get back to company management if they did not understand any of the content.” The Commission agreed with the relevant union that there had been a failure by the employer to take all reasonable steps to explain the terms of the EA and their...
16 November 2018