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These are EMA’s pick of the most interesting and relevant cases reported in the last month. Please note that these are summaries only, and should not be relied upon in place of the full judgment. If you would like clarification on any of the judgments, or wish to know how a particular case may apply to a matter you currently have, please contact one of our consultants.

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Australian Nursing and Midwifery Federation v Japara Healthcare Ltd [2018] FWC 3918 (3 July 2018)

Industry: Healthcare

Type: Application to deal with dispute

Summary: Japara made slight amendments to the rostering at one of its facilities without notifying the (two) affected workers. The enterprise agreement covering those workers contained a consultation clause (including consultation for changes to rosters) and a dispute resolution clause. The ANMF brought a claim before the Commission to deal with the dispute.

Outcome: The dispute resolution clause required certain steps to be taken before a matter could be brought before the Commission. All of those steps had not been taken, and therefore the Commission had no jurisdiction to arbitrate the dispute. Application dismissed.

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Papaioannou v CSL Ltd [2018] FWC 3908 (4 July 2018)

Industry: Biotechnology

Type: Unfair dismissal

Summary: Over a period of approximately three years, the Applicant took multiple periods, totally approximately 10 months, off work due to a gastrointestinal condition. The Applicant was covered by an enterprise agreement which included a salary continuance provision for ill or injured employees. The Applicant was dismissed due to an incapacity to perform his work.

Outcome: There was a valid reason for dismissal and the procedure was fair. However, the Applicant had not exhausted his entitlement to salary continuance under the enterprise agreement. This alone rendered the dismissal harsh, unjust, or unreasonable. Ordered reinstatement with compensation.

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Pekaj v AAMG Cleaning Group Pty Ltd [2018] FWC 3401 (6 July 2018)

Industry: Cleaning

Type: Unfair dismissal

Summary: The Applicant was previously found to be an employee, not a subcontractor (see Issue 9, 2018). The Respondent had legitimate concerns about the Applicant’s performance and dismissed her via text message after two days’ personal leave.

Outcome: There was a valid reason for dismissal; however, the Respondent did not notify the Applicant of the reason to terminate, nor give her an opportunity to respond. The decision was found to be unreasonable. Compensation ordered to the amount of $2,343.

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Gibbens v The Commonwealth of Australia (Department of Home Affairs) [2018] FWC 4150 (16 July 2018)

Industry: Government (Airport)

Type: Unfair Dismissal

Summary: The Applicant was employed on an irregular and intermittent basis for approximately ten years. Over a 19-month period, the Respondent received four complaints about the Applicant’s behaviour. The Respondent met with and discussed the complaints with the Applicant on each occasion and informed him that he would no longer be offered work after the fourth complaint.

Outcome: While there was a valid reason and an opportunity to respond to each issue, the Applicant was never warned that further instances of disrespectful behaviour could lead to dismissal. Dismissal held to be unjust. Compensation ordered to the amount of $4,574.04 after discount of 50% for employee’s contributing behaviour.

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BHP Coal Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] FWCFB 4148 (27 July 2018)

Industry: Mining

Type: Payment dispute (Appeal)

Summary: Successful appeal by the employer of previous decision. See summary in Issue 4, 2018. The primary decision found that, based on the wording of the applicable enterprise agreement it was unreasonable to require the employee to perform duties that he was unable to perform due to having no driver’s licence, and that it should have offered him alternative duties.

Outcome: On appeal, the Full Bench disagreed with the primary decision that the enterprise agreement modified the established common law principle that there is no obligation on an employer to modify an employee’s duties or provide them payment if they are unable to perform their duties in full. Appeal upheld.

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Andrawos v MyBudget Pty Ltd [2018] FWC 4288 (31 July 2018)

Industry: Finance

Type: Unfair dismissal

Summary: The Applicant had multiple disciplinary and conduct issues, including out-of-hours dealings with a client who was also a friend. The dealings were financial in nature and were found to be a conflict of interest, which was not disclosed to the Respondent. The Applicant was dismissed with notice based on significant disciplinary record over an 18-month employment history.

Outcome: There was a valid reason for dismissal, but there were some issues with procedural fairness and substantial mitigating factors. Opportunity to respond was found to be given in form but not substance. Dismissal was not found to be unjust or unreasonable; but was found to be harsh overall. Given the two weeks’ pay on termination and the nature of the Applicant’s conduct, no compensation was awarded.

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