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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.

Taulapapa v Toll Personnel Pty Ltd [2018] FWC 6242 (16 October 2018)

Industry: Labour Hire

Type: Unfair dismissal

Summary: Asahi used a labour hire company to engage warehouse staff, including the Applicant. In March 2017, Asahi ended its labour hire agreement and engaged Toll Transport, who solely used the same labour hire company for staff until September 2017, when it began engaging employees from Toll Personnel. The Applicant began employment with Toll Personnel in February 2018 and was engaged by Toll Transport to work at Asahi. The Applicant’s employment ceased in March 2018.

Outcome: Held that the Applicant’s service with the initial labour hire company is recognised with Toll Personnel, as the work performed by the Applicant was the same for both employers and the work had been outsourced from the old labour hire company to Toll Personnel. Therefore, the minimum employment period was met.

Harrison v FLSmidth Pty Ltd [2018] FWC 6695 (29 October 2018)

Industry: Engineering

Type: Unfair dismissal

Summary: The employee was demoted from a Supervisor to a Technician at the same time he received a first and final warning letter, resulting in a pay drop of $4.05 per hour. The Company submitted that this was expressly permitted in the contract, which stated that the employee may be required to ‘perform other duties’ and ‘perform a different role’.

Outcome: There was no term of the contract, express or implied, allowing for unilateral demotion. Regardless of what the terms of the contract were, the demotion involved a significant loss of duties and pay, and was therefore a dismissal within the meaning of the Fair Work Act 2009 (Cth).

Key notes: Employers cannot ‘contract out’ of legislative provisions, unless expressly permitted by the legislation.

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