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Fixed term contracts no longer as effective in preventing unfair dismissal applications
Unfortunately for employers, the concept of an employee’s employment coming to an end by the “effluxion of time” is no longer a jurisdictional protection against unfair dismissal claims. Up until the handing down of this decision by the Full Bench of the Fair Work Commission in December last year, employers were always able to argue that an employee, who finished up his or her employment on the last day of their fixed term contract, was jurisdictionally prevented from bringing an unfair dismissal application because they did not meet the requirement that the dismissal was “at the initiative of the employer”. Rather, it was argued, that the dismissal came about by the “effluxion of time” in accordance with the operation of the terms of the employee’s fixed term contract. The Full Bench in this case overturned the previous case law that stated an employee had no access to unfair dismissal laws when their employment ended by the &ldqu...
8 December 2017No obligation on employee to provide entire employment history
We’ve all heard of situations where employees have inflated their qualifications or employment experiences to obtain the job. But what happens if an employee deliberately leaves out part of their employment history? The job advert for Mr Findley’s role stated “previous experience of providing security services in a residential, commercial and/or university environment would be a distinct advantage.” In response, Mr Findley referred to his previous employment history with Chubb Security and Wilson Security. The employer alleged Mr Findley had engaged in misconduct by having “deliberately made misrepresentations, omissions and/or false statements in relation to his previous employment for the purpose of obtaining employment.” This is because Mr Findley did not mention his employment with Diamond Protection, another security company. In the decision, the Federal Circuit Court held that an employee answering a generic question about their prev...
24 November 2017Enterprise agreement quashed – no “genuine agreement” by employees
The Federal Court has agreed with the CFMEU to “undo” a two year old enterprise agreement that applied to the employees of One Key Workforce Pty Ltd on the basis that it was not “genuinely agreed” to by employees. Under the applicable legislation, the Fair Work Commission must, before ratifying an enterprise agreement, be satisfied the agreement has been “genuinely agreed” to by the employees covered by it at the time of the approval vote. In some instances, employers seek to make enterprise agreements with a small number of employees who do particular work with the intent of later applying the enterprise agreement to a much broader range of future employees. In this case, the employer asked three current employees who worked exclusively in mining and construction occupations to approve an enterprise agreement that would ultimately cover future employees in 11 occupations including transportation, hospitality and clerical work. The...
8 November 2017