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Do Performance Improvement Plans constitute ‘Reasonable Management Action’? - Aug 2018

The recent decision of the Fair Work Commission in Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears [2018] FWC 2906 has shed further light on what constitutes “reasonable management action” in the context of performance management under section 789FD of the Fair Work Act 2009 (Cth).

Ben Motro, Special Counsel and Emily Setter, Law Clerk, discuss the Fair Work Commission's decision

Incoming private-sector whistleblower protection laws – Preparing for the new rules - Aug 2018

Whistle-blower protection laws applying to internal (and some external) disclosures are on the cards.  The amendments will bring a new and aggressive protection regime into the Corporations Act 2001, replacing the relatively limited scheme that currently exists.  Unlike the current scheme, which has not had a significant impact, the new scheme will significantly alter the landscape in favour of claimants arguing that they have been victimised or exposed as a result of having made a legitimate disclosure of misconduct or breaches of the law.  The amendments are contained in a bill currently before the Australian parliament and expected to be passed with bipartisan support, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017.

Tim Lange, Partner and Michelle Cox, Associate, discuss the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017

Commission clarifies law on constructive dismissals - May 2018

Tim Capelin, Partner and Emily Setter, Law Clerk discuss the recent decision in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074 and its implications for employers when handling resignations received from employees. Commissioner Cambridge’s judgment provides important guidance on what conduct will constitute termination at the employer’s initiative.

The judgement arose as a result of a re-hearing on the discrete question of whether the Applicant, who had brought proceedings on the basis that she had been forced to resign within the meaning of section 386(1)(b) of the Fair Work Act 2009 (Cth), was actually dismissed at the initiative of the employer within the meaning of section 386(1)(a) of the Act.

Notice of termination and ordinary and customary turnover of labour - May 2018

In March this year, the Federal Court clarified the requirements for valid notice of termination of employment. The Federal Court also highlighted the limited scope of the “ordinary and customary turnover of labour” exception to the requirement to pay redundancy pay under the Fair Work Act.
Ben Motro, Special Counsel, and Emily Setter, Law Clerk, explore the implications of this decision.

Out of hours conduct: Employee dismissed for explicit private Facebook message - May 2018

In Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174, the Fair Work Commission found that an employer validly dismissed an employee in circumstances where the employee sent a sexually explicit video privately to 19 work colleagues through the Facebook Messenger app (Messenger).

The decision, if followed, would be a significant expansion of the law as it relates to employers regulating out of work conduct. Tim Capelin, Partner and Amrita Howell, Associate, discuss the implications.

Driving to independence: Fair Work Commission finds ride-share drivers are not employees - Feb 2018

In an Australia first, Uber has now had its ride-share app based business tested in the Fair Work Commission. In Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, the Fair Work Commission held that drivers utilising Uber’s ride-share application are not employees within the meaning of the Fair Work Act. Tim Lange, Partner, and John Evans, Lawyer, discuss the Commission’s findings.

Unauthorised employee absences: Full Bench abandons automatic termination - Feb 2018

Michelle Cox, Associate, and Chris Hartigan, Partner, discuss the decision and its impact on employers engaging in enterprise bargaining. In a recent decision of the full bench, the Fair Work Commission has decided to delete the abandonment of employment clauses in six modern awards, and is now seeking submissions from interested parties in relation to a replacement clause.

It’s now more difficult to be protected: The High Court’s latest ruling on protected industrial action, bargaining-related orders and unlawful coercion - Feb 2018

In Esso Australia Pty Ltd v The Australian Workers’ Union; The Australian Workers’ Union v Esso Australia Pty Ltd [2017] HCA 54, the High Court of Australia was called upon to determine two important questions relating to protected industrial action:

  1. 1. whether a union that contravenes a Fair Work Commission (FWC) order with respect to a matter relating to enterprise bargaining is prohibited from taking protected industrial action for the entire bargaining process, even after the relevant order ceases to operate; and
  2. 2. when unprotected industrial action can constitute unlawful ‘coercion’ for the purposes  of sections 343 and 348 of the Fair Work Act 2009 (Cth) (FW Act).

David Ey, Partner, and Irene Nikoloudakis, Law Graduate, explain the decision and its impact on employers engaging in enterprise bargaining.

Pushing unfair dismissal to the outer-limits: Is Saeid Khayam v Navitas a game changer? - Feb 2018

Michelle Cox, Associate and Chris Hartigan, Partner, explain the decision and its effect on the ability of workers on outer-limit or maximum term contracts to bring unfair dismissal claims. 

Can an employer sue its former employee for pre-employment misrepresentations? - Nov 2017

In an interesting twist, an employee in the process of suing his former employer has found himself the recipient of a counter claim for alleged misleading and deceptive representations made in applying for his job. 

Erin McCarthy, partner, and Emily Haar, associate, reviews the interim decision of Carr v Empirical Works Pty Ltd and Anor [2017] FCCA 1813, where the Federal Circuit Court allowed the cross claim to proceed. 

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