It’s commonplace for employers to give undertakings when applying for approval of enterprise agreements. And one employer’s eagerness to get a matter sorted has required a thorny follow-up case to rectify an undertaking that went well beyond what was needed.
An employee lost her unfair dismissal bid because she mistakenly understood her minimum employment period let her through the gate. That period depends on the size of the employer, so will be either six or 12 months, but the principles to determine eligibility are the same.
A recent case of interest to employers who engage interns, student trainees and the like, saw the FWC determine that a trainee was not an employee, so lacked jurisdiction to deal with his grievance. The decision focussed on the primacy of the written contract to determine the relationship.
The last six months or so has seen a flood of unfair dismissal cases where employees have declined to become inoculated against Covid 19 and consequently lost their jobs. The FWC has pointed out some facts attaching to this type of claim.
It has always been available to employers to instantly dismiss an employee and not pay Notice. But the circumstances in which this scenario is supported by the Unfair Dismissal regime under the Fair Work Act have narrowed over the years, as a recent case illustrates.
During the election campaign the then opposition announced several workplace policies with emphasis on the umbrella term “secure work”. Specifically, it indicated it would legislate a test for when a worker can be classified as a casual, provide that labour hire employees receive the same pay as direct hires and widen the FWC’s powers to include “employee-like” forms of work, which could include setting minimum standards for gig workers.
There is established legal precedent that a matter an employer did not know about at the time of dismissal can be relevant to the arguments against an unfairness finding later. Such a situation arose in a case examining if an employer’s main reason for terminating a nurse’s employment was valid. It was related to public health orders and vaccination and that part proceeded on its merits.
A hospitality industry employer has been condemned by the FWC for sitting on a 20 year old agreement which was, by any measure, seriously sub-standard to the award it displaced. The fierce censure was contained in both the FWC reasons for decision and in incidental commentary, highlighting the negative impact on employees and the gross disadvantage at which competitors of the employer were placed.
Ross Clarke has more than a decade’s experience in the enterprise bargaining room.
The knowledge and skill he has acquired in this time has enabled him to develop a highly sophisticated planning and process model for successful enterprise bargaining. This proven methodology delivers results across all industries including distribution, hospitality, banking, retail, manufacturing, telecommunications and gaming.
“Ross’s knowledge of industrial relations and his ability to understand how and when to communicate internally with government; and with the media were instrumental in guiding the Association’s successful response to the campaign.”
Patrick Griffin OAM, Australian Hotels Association
Mobile: 0419 401 702
Email ross@workrelations.com.au
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