Dismissal during notice period deemed unfair

Brunner v Amalgamated Marketing Pty Ltd [2015] FWC 7837 was a case where a sales executive resigned on a Friday giving three week’s notice and on the following Monday, when she was absent on sick leave, the employer asked her to return the office keys, mobile phone and her uniform, which she did. He then paid the employee a week’s notice because he formed the view the employee having resigned did not intend to return to work.

Senior Deputy President Richards found that the effect of the request was to deprive the employee of her tools of trade preventing her from working the notice period. He awarded the employee compensation for the balance of the notice period being two weeks because there was no valid reason for dismissing the employee and preventing her from working the notice period.

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Workers are Employees not Contractors

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd and others [2015] HCA 45 demonstrates that on arrangement where an enterprise engaged the services of cleaners through a labour hire company and represented to the cleaners that they were contractors not employees, is contrary to section 357 of the Fair Work Act 2009 as sham contracting.

Previously, sham contracting was thought to apply only to misrepresentations the employer made to the worker and not to extend to misrepresentations by a third party, which uses the workers’ services, to the workers status as employee.

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Can an employer change an employee's work roster?

Being penalised for unpredictability is not necessarily adverse action.

CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76 demonstrates that it is not unlawful for an employer to change an employee’s work roster where there is unpredictability in the employee maintaining the original roster even where that unpredictability arises from the employee taking carer’s or annual leave.

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THE FAIR WORK COMMISSION AND WORK PLACE BULLYING

 
It is now just over two years since the Fair Work Commission was granted the ability to make stop bullying orders under the Fair Work Act 2009.

Fair Work Commission statistics for 2014 – 2015 show that the Commission:

• received over 150,000 unique website hits regarding anti-bullying;
• dealt with over 6,300 telephone enquiries;
• processed 694 applications; and
• finalised 60 applications by a formal decision.

In Bowker v DP World Melbourne Limited [2015] FWC 7312, Deputy President Gostencnik made extensive orders to facilitate the return to work of three dock workers he found had been bullied by colleagues and union representatives and to monitor the situation to prevent further bullying occurring. 

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