Month in Review – April 2016


An employer was given penalties of $200,000 after the Federal Circuit Court found that he had underpaid two foreign workers by a total of $18,000 in the case of Fair Work Ombudman v Konsolteq Pty Ltd.  The employer’s attempt to conceal these actions behind corporate structure, and his extremely ‘unimpressive’ evidence were both relevant to the imposition of penalty.

Also in the Federal Circuit Court, Judge Manoursaridis made an order of $415,000 in damages, and $50,000 in penalties against an employer for taking adverse action against an employee.  In the case of Cai v Tiy Loy & Co Ltd, the employee had over 20 years service, and was forced to go part time after suffering a workplace injury and making a workers compensation claim.

In the Unfair Dismissal jurisdiction, two positive drug tests, and a failure to attend a third test, was held to justify a sacking.  The worker, who was employed by his brother, was sacked after failing two drug tests for amphetamine substances, and then failing to attend a third test that would have given him the opportunity to prove that he was clean.  In total there were 9 drug tests scheduled over a period of two months.  The Applicant failed to attend six of them.   The employee argued that the disintegration of the relationship with his brother was the true reason for the dismissal.  However Commissioner Wilson held that under the circumstances, the failure to attend the third test was a valid reason for dismissal, and the dismissal was therefore not harsh, unjust or unreasonable.  George Haslet v SuperSealing Pty Ltd [2016] FWC 1622.

James Morphett v Pearcedale Egg Farm [2016] FWC 1940,  involved an egg farm worker who was dismissed for aggressive and threatening behaviour.  The employee’s anger stemmed from the employer’s treatment following a workplace injury where he fell off his ladder and injured his back.  During a meeting to discuss his injury and return to work, the employee stood up, shook his fist, and said that if it weren’t for his injured back he would physically assault the employer. Deputy President Gooley held that while his anger was understandable, his conduct was not.  And while bad language may have been tolerated in that workplace, threatening behaviour was not.  There was therefore no unfairness in the employee’s dismissal.

In Anthony Ellem v Gladstone Area Water Board [2016] FWC 1893 an employer was sacked for inappropriate group emails.  Having been unsuccessful in a job application the employee made complaints to his local member of parliament under the Public Interest Disclosure Act 2010 (Qld).  A complaint commenced by external solicitors.  However Mr Ellem continued to agitate in various ways including numerous emails.  He used a public email address from the employer’s webpage to send an email to the Operations manager accusing him of being a ‘bully boy’.  He also made numerous threats to sue the employer in the Supreme Court of Queensland for $500,000.  Ultimately, his conduct was a breach of confidentiality, and a breach of a reasonable workplace direction relating to his obligations of confidentiality.  He was subsequently summarily dismissed.  While Mr Ellem argued in the Unfair Dismissal proceedings that he was dismissed because of his original complaint, Commissioner Booth found no evidence to support this, and held that the dismissal was an appropriate and proportional response to the employee’s conduct.

While we keenly awaited the outcome in the Fair Work Act General Protections Application from Scott McIntyre relating to his ANZAC day tweets and subsequent dismissal from SBS, we have learned this week that that the hearing has been vacated.  Settlement has been achieved on a confidential basis and the trial will not be continued.  Those of us waiting for a determination on whether the Federal Court would have held McIntyre’s tweets to be ‘political opinion’ under s 351 of the Fair Work Act 2009 (Cth) will have to until the next public twitter workplace scandal.

The tweets, arguably could have been 'political opinion' under Fair Work Act s 351
McIntyre’s tweets, arguably could have been ‘political opinion’ under Fair Work Act s 351

In Industrial relations news, the MUA are threatening strikes in Port Botany in spite of warnings that employees will be locked out.   Tensions between the  CPSU and Australian Border Force continue to rise over the union’s right to Protected industrial action at international airports, with Border Force arguing that the action has increased Australia’s security risk from ‘tolerable’ to ‘unacceptable’.  The union are defending their right to PIA, and claim that the ABF’s claims are exaggerated.

Weighing in on the penalty rates debate, this piece in the Sydney Morning Herald shows some interesting perspective, interviewing some casual employees who would all apparently forego penalty rates in return for full time conditions, such as sick leave or holiday pay.  This speaks very strongly to Bill Shorten’s recent policy announcements relating to Industrial Relations – with a renewed focus on targeting ‘under employment’ in society, moving away from traditional paradigm of employed vs unemployed.  Helen Carter spoke about this here on the blog just under a year ago, when discussing minimum wages.

Here at Workplace Culture Matters this week, Helen Carter wrote this piece on the dangers that Workers Compensation Laws create discrimination.  Lucienne Gleeson wrote this article: ‘The Five Golden Rules of Coaching Uncooperative employees’.

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