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Month in Review – March 2016

Another busy and exciting week in the world of employment.

An employee’s successful unfair dismissal was overturned by the Full Bench in Lion Dairy and Drinks Milk Limited v Peter Norman [2016] FWCFB 1887.  The case concerned a worker who had been injured in a skydiving accident.  The factual issue at hand was whether the employee was able to fulfil the inherent requirements of the role.  Disputing medical evidence had been offered.  While one doctor believed that the worker’s osteoarthritis would not prevent him from climbing ladders as required by his role, further evidence suggested that this failed to take into account the functional effect of the osteoarthritis on an ongoing basis.  At first instance, the Deputy President preferred the first doctor’s evidence.  It was held by the Full Bench that this was a significant error of fact, and the decision was overturned.

Also in the Unfair Dismissal jurisdiction, the ATO have been criticised by the Fair Work Commission for dismissing someone for being a ‘square peg in a round hole’, in the case of  Ron Shamir v Commonwealth of Australia (Australian Taxation Office) T/A Australian Taxation Office [2016] FWC 1844.  Commissioner Ryan held that despite the difficulties faced by the employee in achieving suitability for a new role that he was given, it was ‘harsh’ to dismiss someone for being a ‘square peg in a round hole’, especially when the employee was specifically hired to be a ‘square peg in a square hole.’  The employee was reinstated.

Also at the Commission, in the case of Mr Paul O’Connell v Cathotlic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752, it was held by the Full Bench not to be mandatory under the Child Protection (Working with Children) Act 2012 (NSW) to dismiss an employee immediately from employment who is disqualified from working with children under that act.  It is only mandatory for the person to be removed from any ‘child-related work’.  While technically this appears to be a correct interpretation of the law, this would appear to put significantly onerous burdens on employers to find alternative work for employees.

In the Industrial relations news, the ACTU have made a submission for a $30 per week increase to the minimum wage.   The CPSU prepare to resume strikes at the international airports, and the ETU prepare to strike at NSW energy provider Essential Energy.

In Canberra, Malcolm Turnbull continued his bid to pass the IR bills through senate, by attempting to enlist the support of the cross bench and avoid a double dissolution of parliament, specifically targeting the help of Senator Bob Day.

Here at Workplace Culture Matters,  our contributor Lucienne Gleeson published this piece on Stopping Gossiping at Work in its Tracks.

 

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