Recent Cases

Unfair Dismissal: Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners [2014] FWCFB 8278

The Full Bench of the Fair Work Commission has found that resolving a workplace conflict by dismissing one of the two workers involved in the conflict was not unfair just because the employer could just have easily chosen to dismiss the other staff member.  


The two employees, Mr Lumley and Ms Cook worked together in a small office. In early 2013, there was a total breakdown in their working relationship, which had a direct impact upon the performance of their jobs.

In July 2013, Ms Lumley made a formal complaint alleging bullying on the part of Ms Cook. The complaint was investigated by the employer and found to be unsubstantiated. The employer conducted a mediation to try to resolve the conflict between the two employees. When that was unsuccessful, the employer put in place a procedure in which it was expected that the employees would first go to their manager to report any problems with their co-worker rather than taking it up directly with the other employee.

Issues continued to arise between the employees. In September 2013 Ms Lumley was sent a final warning letter advising that if there was no improvement in her conduct, her employment may be terminated.

In February 2014 a further altercation occurred between the two employees. During a meeting afterwards, Ms Lumley goaded the manager into dismissing one of the two employees, not expecting that it would be her that would be dismissed. The manager then proceeded to dismiss Ms Lumley with immediate effect. Ms Lumley commenced proceedings claiming that she was unfairly dismissed.

Decision

The Full Bench found that Ms Lumley was not dismissed because she was responsible for the conflict. The reason for the dismissal was the existence of an interpersonal conflict in a small workplace which had reached the point where it had become incapable of any resolution and was affecting the performance of work and relationships with customers. The dismissal was therefore valid and found not to be unfair.

The fact that the situation might equally have been resolved by the dismissal of Ms Cook could not render Ms Lumley’s dismissal unfair. 

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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Unfair Dismissal: Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCA 1091

Former Director of Corporate and Government Affairs, Ms Kate Shea, alleged that her employer, EnergyAustralia Servives Pty Ltd, took adverse action against her by terminating her employment. Ms Shea made what she described as several workplace complaints and argued that this was the actual reason for her dismissal, not the stated reason of genuine redundancy.

The Trial Judge dismissed the application. Significantly, applications under the Fair Work Act 2009 (Cth) do not usually attract cost orders as it is a non-costs jurisdiction. EnergyAustralia subsequently brought an application for indemnity costs against Ms Shea. Judge Jessup held that due to several unreasonable acts by Ms Shea, which caused her employer to incur costs, she should be liable to pay those costs on an indemnity basis.

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Unfair Dismissal: Ronald Anderson v Thiess Pty Ltd [2014] FWC 6568

An employee has been awarded almost $30,000 after he was dismissed for sending a work email to colleagues that discriminated and vilified Muslims and incited violence towards them. Whilst the Fair Work Commission (FWC) found that the employer had a valid reason for dismissing the employee, due to the employee’s poor prospects of finding other employment and because he had received no prior warnings, the dismissal was harsh and unreasonable

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Unfair Dismissal: Mark Baldwin v Scientific Management Associates (Operations) Pty Ltd [2014] FWC 5174

The Fair Work Commission (FWC) has found that the summary dismissal of an employee for swearing at a manager was not harsh, unjust or unreasonable. The FWC differentiated between swearing in the workplace and swearing directly at a co-worker. The employee’s dismissal was justified in the circumstances despite the fact that using expletive language was the norm in the workplace.

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Unfair Dismissal: Susanna Ma v Expeditors Pty Limited [2014] NSWSC 859

Compensation was awarded to Ms Susanna Ma, a former employee of Expeditors Pty Ltd because she was not given reasonable notice of the termination of her employment contract. 


Susanne Ma v Expeditors Pty Ltd [2014] NSWSC 859

Decision

Compensation has been awarded to Ms Susanna Ma, a former employee of Expeditors Pty Ltd (Expeditors) after she was not given reasonable notice of the termination of her employment contract by her employer Expeditors Pty Ltd (Expeditors).

Accusation of Misconduct

Expeditors argued that the employee was involved in misconduct that justified immediate termination. This allegation of misconduct was the Ms Ma’s failure to disclose a conflict of interest or related party transaction when she executed financial and corporate certificates and authorised invoices for payment of services to a cleaning company in which her brother had a financial interest.

The Court found that any potential conflict of interest was removed by the Expeditors conduct in engaging with the Ms Ma’s brother during negotiations for the cleaning contract, and in having the employee authorise invoices.

As misconduct was not found, the employer was required to give reasonable notice on termination of employment. As there was no express term in the contract of employment regarding notice of termination and this meant Expeditors was required to provide reasonable notice of termination.

Ms Ma had argued that reasonable notice of termination was 12 months. The Court determined reasonable notice of termination to be ten months. The key factors relevant to this determination were the following:

  • Ms Ma had 24 years ‘service.
  • Ms Ma was 49 years old at the date of termination.
  • Ms Ma had significant responsibility (as reflected in her remuneration); and
  • It was likely to take Ms Ma an extensive period of time to obtain equivalent alternative employment.

There was substantial evidence to show that Ms Ma took reasonable steps to search for alternative employment so there had been no failure to mitigate loss. 

Long Service Leave

Ms Ma also claimed that the accrued long service leave paid to her should have included amounts for substantial bonuses she had received. Expeditors argued that Ms Ma was not entitled to bonuses as she earned over the threshold amount of $144,000 when superannuation contributions were taken into account. The Court found in favour of Ms Ma. The employment contract did not fix an ordinary time rate of pay and so the employee’s ordinary pay is considered to be the average weekly wage earned by the worker. The Court held, as a matter of statutory interpretation that weekly wage does not include superannuation.

 * PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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Unfair Dismissal: Read v Gordon Square Child Care Centre Inc

This case concerned a claim of unfair dismissal arising from a child care workers apparent failure to provide adequate supervision of a child in a child care setting when the worker turned her attention to a ringing phone.  The Full Bench, on appeal, found that the child care worker’s consideration of the phone call did not amount to a lack of ‘adequate supervision’ for the child and, accordingly, found that her dismissal had been unfair.

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Unfair Dismissal: Nangle v Kimberley Division of General Practice T/A Boab Health Services

A recent decision of Fair Work Australia has highlighted the limits of the Commonwealth's legislative powers in relation to workplace laws. The previous Coalition government extended the scope of workplace laws by utilizing the corporations power to legislate workplace laws in relation to corporations falling within the scope of the constitutional corporations power (so called 'Constitutional Corporations'). This extension survived a High Court challenge and continues in the Fair Work Act, where national system employers include constitutional corporations. National system employers are subject to unfair dismissal laws and obligations.

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Unfair Dismissal: Kunce v Deliver Australia Pty Ltd

This case concerned an application made by the dismissed employee for the costs of his application.  Fair Work Australia had previously decided that the employee had been unfairly dismissed by the respondent employer.  However, after that decision, the Commissioner held the matter over in relation to an application for costs.  The Commissioner considered the legislation and ultimately determined that the Respondents should pay part of the Applicant's legal costs.

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Unfair Dismissal: Somveer Narwal v Aldi Foods Pty Ltd [2012] FWA 2056

Mr Somveer Narwal was employed by Aldi as a Store Manager when he was summarily dismissed for misconduct involving 'dishonesty and theft', after having worked at the company for four years. Narwal subsequently applied for an unfair dismissal remedy pursuant to s394 of Fair Work Act 2009. The crux of the matter was whether Narwal's dismissal was harsh, unjust or unreasonable, according to s385(b) of the Fair Work Act 2009.

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Unfair Dismissal: Gillies v Downer EDI Ltd [2011] NSWSC 1055

The NSW Supreme Court has found EDI wrongly dismissed its managing director on the grounds of misconduct and denied him a substantial bonus.

The company dismissed the managing director following a fall in profits of the company however later claimed that he had been dismissed due to alleged misconduct, based on evidence it had discovered after he left its employment.

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Unfair Dismissal: Khiani v Australian Bureau of Statistics [2011] DCAFC 109

The Federal Court of Australia has dismissed an adverse action claim on appeal (Khiani v Australian Bureau of Statistics [2011] DCAFC 109), finding that the fact that there was a temporal connection between the taking of leave by an employee and the taking of disciplinary action against the employee did not necessarily mean that there was a causal connection.

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Unfair Dismissal: Email policy breaches justifies sackings

Seven employees who were dismissed by Dairy Farmers for sending, receiving and storing inappropriate emails including pornography have been unsuccessful in their unfair dismissal applications to Fair Work Australia.

Dairy Farmers showed that the dismissed employees had breached several of its policies covering emails and that, following the dismissal of three employees for similar offences in 2006, the employees were trained in key policies including workplace conduct standards for email use.

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