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Does an employer's refusal to permit a return to work part-time amount to a constructive dismissal?
Overview The Fair Work Commission (FWC) has recently found that an employer constructively dismissed an employee when it failed to accommodate her request to work part-time following her return from maternity leave. This is the first time that we are aware of such a finding having been made. The employee brought her application as a general protections dispute and the employer objected to the FWC dealing with the application, on the basis that the employee had not been dismissed from her employment by the Company. The employee's request for part-time work arrangements was made pursuant to the employer's certified agreement, which provided for a right to request part-time work up until the child reached school age, but with the caveat that the employer was able to refuse such a request on "objective business grounds". The employer denied the employees request on the basis the role required a "dedicated full time...
23 August 2013Implied term of trust and confidence confirmed by appeal court
Introduction In a significant recent decision, a full court of the Federal Court of Australia has determined that the implied contractual term of mutual trust and confidence between an employer and an employee has received a sufficient degree of recognition both in England and Australia so as to support its application in Australian employment contracts. Background Mr Barker was employed as an executive manager with the Commonwealth Bank of Australia (CBA) under a written contract of employment. Mr Barker had been employed by the CBA for 27 years. The CBA had in place various policies relating to the bank's employment practices, including a Redundancy, Redeployment, Retrenchment and Outplacement Policy (the Policy). On 2 March 2009, Mr Barker was provided with a letter confirming his current position was redundant and the CBA's preference was to, in consultation with him, redeploy him wit...
23 August 2013Amendment to the Sex Discrimination Act
Introduction to Changes A recent amendment to the Sex Discrimination Act 1984 (SDA) has introduced both new terminology and a corresponding broadening of categories of discrimination that are unlawful. The changes took effect on 1 August 2013. The amendments make it unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status. Same-sex couples are also now protected from discrimination under a new definition entitled 'marital or relationship status'. The introduction of these new protections will particularly apply to lesbian, gay, bisexual, transsexuals, gender diverse and intersex people. However, these descriptors are no longer specified, but are rather incorporated into the new categories. It is important to note that there are some exemptions to the new laws. Complaints jurisdiction People covered by these new categories will now b...
22 August 2013