Case Law - Employment Law Handbook (Page 15)

Case Law

Is work-related swearing a reason to dismiss?

The Case Illawarra Coal Holdings Pty Ltd T/A South 32 (ICH) v Matthew Gosek (2018) ICH had employed Mr Gosek for approximately 11 years. Mr Gosek was also lodge President for the Construction, Forestry, Mining and Energy Union (CFMEU). He represented a member of the CFMEU who had made

Sexual harassment outweighs procedural fairness in dismissal

The Case Carmelo Sapienza v Cash in Transit Pty Ltd T/A Secure Cash (2017) Secure Cash employed Mr Sapienza as a banking courier. On 18 July 2017, Mr Sapienza’s employment was summarily terminated based on complaints from two young female employees. The complainants claimed that Mr Sapienza had:

Disciplinary action must be proportionate to misconduct

The Case Robert Johnson v North West Supermarkets T/A Castlemaine IGA (2017) Mr Johnson commenced employment in October 2008 as a delicatessen assistant at Castlemaine IGA supermarket. On 7 February 2017, Mr Johnson was dismissed for taking two 100-gram samples of smoked salmon, prosciutto, and a ham bone from

Misconduct leads to denial of compensation claim

The Case OneSteel Recycling Proprietary Limited v Workers’ Compensation Regulator (2017) An excavator operator baited and taunted a co-worker over a number of years until, one day, his co-worker snapped and assaulted him in the car park. The excavator operator made a workers’ compensation claim claiming he suffered a soft-tissue

Financial penalties can be paid by individuals

The Case Australian Building and Construction Commission (ABCC) v Construction, Forestry, Mining and Energy Union (CFMEU) & Anor (2018) The ABCC commenced proceedings against the CFMEU and a union official, Mr Myles. The CFMEU and Mr Myles admitted that they had breached section 348 of the Fair Work Act 2009

Uber driver determined to be a contractor, not an employee

The Case Kaseris v Rasier Pacific V.O.F (2017) Mr Kaseris was an Uber driver. In August 2017, Uber (operated by Rasier Pacific V.O.F.) deactivated Mr Kaseris’ Uber driver account due to poor passenger ratings. Mr Kaseris commenced unfair dismissal proceedings in the Fair Work Commission (FWC)

Extension of time applications are worth challenging

The Case Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) Mr Stogiannidis was dismissed from his employment by Victorian Frozen Foods Distributors Pty Ltd (VFF). Mr Stogiannidis then lodged an unfair dismissal claim within 21 days of his dismissal (well within the required time limit)

Care is required when placing employees on gardening leave

The Case Grace Worldwide (Australia) Pty Limited v Steve Alves (2017) Mr Alves, a general manager of Grace Worldwide (Australia) Pty Limited (Grace), resigned his employment to become chief executive officer of a competitor. When Grace originally employed Mr Alves in January 2010, he held the position of National Manager,

Representations made during the recruitment process can result in litigation

The Case Maxutova v Nunn Media Pty Ltd (2017) Ms Maxutova was approached by a recruiter on behalf of Nunn Media Pty Ltd (Nunn Media) for the position of Head of Strategy. Ms Maxutova resigned her position with her employer; however her employment with Nunn Media was terminated in the

Poor disciplinary process results in unfair dismissal finding

The Case Tavassoli v Bupa Aged Care Mosman (2017) Bupa Aged Care Mosman (Bupa) employed Ms Tavassoli. Ms Tavassoli was a refugee from Iran whose English was limited. During 13–15 November 2016, Bupa alleged that Mr Tavassoli had: * after a heated exchange between a nurse and resident, been singing

Maximum term contracts aren’t what they used to be

The Case Khayam v Navitas English Pty Ltd (2017) Navitas English Pty Ltd (Navitas) employed Mr Khayam as a teacher, firstly as a casual employee between 2005 and 2012 and then on a number of maximum term contracts between 2012 and 2016. There was no discernible break in Mr Khayam’

A failure to follow a lawful direction may be reasonable

The Case Parkes v Fat Prophets Pty Ltd (2017) On 22 October 2014, Mr Jeff Parkes commenced employment with Fat Prophet’s Pty Ltd (Fat Prophet) in the financial services industry. Mr Parkes was employed as a Senior Client Advisor in the Sydney office. In September 2016, his wife obtained

Compensation awarded for breach of casual conversion clause

The Case Tomvald v Toll Transportation Pty Ltd (2017) Toll Transportation Pty Ltd (Toll) employed Mr Tomvald as a casual employee for almost 10 years. In the 12-month period prior to Mr Tomvald making his application for permanency, Mr Tomvald had been working 38 hours per week. Toll offered Mr

What constitutes industrial action under the Fair Work Act?

The Case Australian Municipal, Administrative, Clerical and Services Union v Mornington Peninsula Shire Council (2017) Mornington Peninsula Shire Council (MPSC) and the Australian Municipal, Administrative, Clerical and Services Union (the Union) commenced bargaining for a number of enterprise agreements. The Union lodged with the Fair Work Commission (FWC) three protected

Breaching a Fair Work Commission order can result in a prohibition on protected industrial action

The Case Esso Australia Pty Ltd v Australian Workers’ Union; Australian Workers’ Union v Esso Australia Pty Ltd (2017) Esso and the AWU entered into bargaining for a new enterprise agreement. Members of the AWU organised and participated in industrial action against Esso. As part of this process, the AWU