In the recent decision of  Paul Johnson v BHP Billiton Olympic Dam Corporation Pty Ltd  [2017] FWC 4097, Commissioner Hampton found that, although the employee had engaged in misconduct constituting a valid reason for dismissal, the dismissal was nevertheless harsh due to a number of mitigating factors. However, the Commissioner did not consider reinstatement appropriate because the employer had a rational basis for its loss of trust and confidence in the employee given the importance of the need for compliance with safety policy and the maintenance of appropriate discipline in connection with workplace health and safety matters. The employee was instead awarded compensation. The facts The employee was employed by BHPB from 24 May 2001 until his dismissal on 31 March 2017. At the time of his dismissal, the employee was a process specialist, responsible for a team of technicians looking after a flash furnace and other equipment in areas of a smelting facility at an und...

I nvolving a lawyer with experience in enterprise agreements and keeping good notes can ensure your enterprise agreement gets it right. In the 1983 hit "Words", singer F.R. David famously sang "Words don't come easy to me". While that lament was in the context of expressing love, the same problem can sometimes afflict those who draft enterprise agreements. Or perhaps the problem is not in finding the right words, but in putting them together. It's been noted by courts that those drafting enterprise agreements are sometimes more concerned with "expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon" (Kucks v CSR Ltd) While that approach might make sense in the heat of negotiations, and in light of the need for enterprise agreements to be practical, living documents easily understood by management and employees alike, it...

The law, it might be said, too often forgets HR professionals are still human. While the employment law regulatory framework expects calm and rational decision making, HR managers are just as prone to emotive judgment as the rest of us. Recent case law provides an apt reminder that a higher standard is expected when employers elect to terminate employees. Although neither occurred in the APS context, they remain instructive for federal public servants. In  Bellenger v Mid North Coast Local Health District ,  the applicant was found to have had approximately 1,256 emails of a “pornographic, graphic (violence) and generally inappropriate” nature in her work inbox. Among the emails discovered by a forensic audit were 31 emails containing pictures of genitals, four containing images depicting naked children and 11 with cartoons portraying sex. Between 2006 and 2014, the applicant had sent, received and stored these emails in a “funny emails” folder. After the investigation, her...

Running a digital application (app) side-business or working a second job, in addition to working a nine-to-five job, is becoming increasingly common. However, workers holding down a second job can in some circumstances impact a primary employer's business, especially if the worker is fatigued and unable to work safely, or if the job directly competes with the employer's business. In such situations, workers may find themselves in hot water, with employers potentially having the right to exercise performance management or terminate employment. This article looks at the rights of employers and workers, and the actions that can be taken when a second job may be negatively impacting the primary employment, with reference to important cases handed down by the Fair Work Commission (FWC). Fitness for work –  Jacob v WAN In 2016, the FWC held that West Australian Newspapers Ltd (WAN) did not unfairly dismiss Mr Jacob, a night-shift press foreman, who worked a second job a...

Circumstances will sometimes arise in a business where an employer needs to shed staff. The business may be subject to a takeover or amalgamation, or its revenue may contract, for example where the market paradigm changes or perhaps as a result of losing key clients. It is in circumstances such as these, that an employer needs to direct attention to ensuring that employees exiting the business are paid their severance payments in accordance with contractual, statutory and any award obligations. However, equally important is ensuring that the process followed for exiting employees from the business, complies with any applicable statutory requirements. This article looks at this latter issue in light of recent decisions of the  Fair Work Commission  which concern claims brought for unfair dismissal. WHAT IS MEANT BY REDUNDANCY? Redundancy has a number of meanings depending upon the context. Relevantly, in the  Fair Work Act , section 389 defines what the Act sees a...

A former vice-president of the Fair Work Commission says legislative reform is the only answer for protecting employers against unfair dismissal decisions that defy “logic”. In an   opinion article   published by Fairfax this morning, Graeme Watson, who called out the ”dysfunctional” nature of the commission’s processes when he quit his role in January, says the Commission “has departed from the notion of determining whether an employer’s actions were reasonable” in deciding unfair dismissal cases. Comparing Australia’s industrial relations system to international examples, Watson says the UK’s approach of considering whether an employer acted “within a band of reasonable responses” is a more sensible alternative to the Fair Work Commission’s approach, which determines both the fairness of process and whether the impact on an employee is harsh or not. “The result is a series of Catch-22 situations” where despite doing the right thing, employers can be asked ...