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.
Rojas v Beacon Products Pty Ltd  FWC 4317 (16 August 2018)
Industry: Cleaning Product Manufacturing
Type: Unfair Dismissal
Summary: Administrative assistant employed for approximately eight years was dismissed for ‘grave misconduct towards colleagues causing conflict and negativity within the workplace’. The allegations were non-specific and did not identify any specific behaviour that raised concern; and the termination letter did not elaborate on the specific reasons for dismissal.
Outcome: No valid reason for dismissal, coupled with procedural unfairness. Compensation ordered to the amount of $3,384.60.
Key notes: Allegations letters must be specific in order to demonstrate that there is a valid reason to make the allegation and to give the employee a reasonable opportunity to respond.
Somerville v AFS Security 24/7 Pty Ltd  FCCA 2234 (17 August 2018)
Summary: The Applicant alleged that the Respondent had contravened a term of a modern award and engaged in adverse action by ‘retaliating’ against the Applicant for making a complaint about an underpayment. The application contained largely irrelevant facts, and the Applicant adduced little or no evidence to support his allegations.
Outcome: Held that the Applicant’s ‘genuinely held belief’ was not enough to determine whether there was reasonable cause to bring proceedings. At the time of bringing proceedings, the Applicant lacked sufficient evidence and the proceedings therefore were brought with ‘no reasonable cause’. The Respondent awarded costs to the amount of $12,491.50 for professional fees.
Von Erkel v Solar Station Alpha Pty Ltd  FWC 4973 (23 August 2018)
Type: Unfair Dismissal – issue of remedy
Summary: A decision in March 2018 had found that the Applicant was unfairly dismissed for serious misconduct when he made several disparaging comments to and about the business and a director to the director, resulting in the director’s resignation. The comments were not found to constitute serious misconduct.
Outcome: While the comments did not justify summary dismissal, the relationship between the applicant and respondent was beyond repair. Compensation was reduced by 20% due to the Applicant not disclosing the conversation with the director to the General Manager. Compensation ordered to the amount of $8,615.36.
Fair Work Ombudsman v Lycamobile Pty Ltd  FCCA 1892 (29 August 2018)
Type: Contravention of the Fair Work Act 2009 (Cth)
Summary: Employee was employed full-time under the Telecommunications Services Award 2010 as ‘administrative staff’, starting in 2012, and was required to work reasonable additional hours at a starting salary of $33,867.60 (which increased each year). The employee was frequently paid ‘allowances’ and ‘arrears’ in substitution for Saturday penalty rates.
Outcome: The employee was underpaid overtime to the amount of $5,264.27 over four years. The Respondent fully rectified the underpayment and was cooperative throughout the investigation. A total of 26 breaches of the Fair Work Act 2009 (Cth) were identified. A total penalty of $25,000 was imposed.
Key notes: Even a small underpayment can result in a substantial fine if prosecuted. Accidental underpayments and rectifying any underpayments may mitigate the amount of penalty imposed, but do not absolve the employer of the responsibility to be diligent and vigilant in preventing a breach.
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