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Unreasonable conduct by employer proves costly
In matters before the Fair Work Commission (the Commission), the standard rule is that each party bears their own costs. However where: an application is made vexatiously or without reasonable cause; or the application has no reasonable prospects of success; or a party has caused costs to be incurred due to an unreasonable act or omission in the conduct or continuation of a matter, the Commission may make order for costs. Further, if an employer unreasonably defends an unfair dismissal (or other) claim, the employer may be at risk of a costs order being made against them, as outlined in the case summary below. Background David Johnston (the Employee) was engaged by Macquarie Technology Group International (MTGI). The Employee's employment was terminated by MTGI in about January 2014 for allegedly abandoning his employment while on personal leave to care for his four children after the premature birth of his fifth child. ...
22 September 2015Annual leave loading - The beneficial view is confirmed
A Full Court of the Federal Court (the Full Court) has confirmed that if employees receive other benefits when taking annual leave during their employment, such as annual leave loading, they are legally entitled to be paid all those benefits on termination employment together with any accrued but untaken annual leave. Background The CFMEU argued that having regard to the National Employment Standards (the NES), 58 redundant employees were entitled on termination of employment, to also be paid the benefits they would have received had they taken annual leave, which, in this case was the greater of the 20% loading or the employee's weekly rate of pay plus overtime, shift allowance, weekend penalty rates and bonus, notwithstanding that the enterprise agreement did not provide that benefit on termination of employment. At first instance, the Court found in favour of the CFMEU in finding that the enterprise agreement sought to exclude t...
10 August 2015Termination of employee subject to domestic violence not valid
An employer was recently ordered to pay the maximum amount of compensation payable under unfair dismissal laws after it terminated an employee who was subject to domestic violence by her partner who was also a co-worker. In making the determination, the Fair Work Commission found, amongst other factors, the employer had failed to adequately explore workplace options and discuss these matters with the relevant employees. Background The employee was employed as a full time architectural draftsperson by Eliana Construction and Developing Group Pty Ltd (Eliana). She was employed shortly after her graduation in June 2014 and was the only female in the design team. The employee's domestic partner was also employed by Eliana and although the couple worked in an open plan office, there was no requirement for the employee to directly interact with her partner to complete work tasks. Shortly after her return from annual leave which ended on 19 Januar...
6 August 2015