These are EMA’s pick of the most interesting and relevant cases reported in the last two months. 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.
Milam v University of Melbourne  FCA 171 (19 February 2019)
Type: Interpretation of enterprise agreement, defining disciplinary processes
Summary: The Respondent’s enterprise agreement defined ‘serious misconduct’ through a comprehensive list and also set out when an employee could be suspended. The Applicant was suspended based on a preliminary investigation into alleged serious misconduct, which concluded that the employee had engaged in serious misconduct. The Applicant sought an injunction to end the suspension.
Outcome: Injunction granted, ending the suspension, as there was a serious question to be tried as to whether the alleged behaviour was ‘serious misconduct’ as defined by the enterprise agreement, and therefore whether the employer had the ability to suspend the employee.
Key notes: Employers must be wary when defining disciplinary processes and phrases such as ‘serious misconduct’ in their enterprise agreements. Such inclusions may restrict the employer’s rights provided for by legislation and well-established case law.
Tondorf v Impresa House Pty Ltd  FWC 1164 (26 February 2019)
Type: Unfair dismissal, termination at the initiative of the employer
Summary: The Applicant resigned and claimed this was due to the threatening behaviour of the Respondent’s director, who said to the Applicant, ‘I show where your liver’ while pointing at the Applicant’s abdomen in a threatening manner. The Respondent investigated the complaint, suspending the director for one week and disciplined him, but determined there was no genuine risk to the Applicant’s safety.
Outcome: The Respondent confirmed that the Applicant was resigning and accepted his resignation. Held by the Fair Work Commission that the resignation was at the employee’s initiative and that the employer had no intention of bringing the employment relationship to an end. Application dismissed.
Perrin v Pilbara Iron Company (Services) Pty Ltd  WAIRC 00137 (20 March 2019)(1)
Type: Breach of contract
Summary: The Company, in order to save costs, varied the payments of an allowance payable to employees that was set out in a policy. Two of the Applicants had this allowance, and the conditions for payment for the allowance, set out in their contracts of employment.
Outcome: The allowances were not discretionary, but contractual entitlements. By reducing the entitlement, the employer unilaterally varied the terms of the contracts, and therefore breached the contracts.
Key notes: Employers must be careful when drafting contracts and (ordinarily) cannot alter or vary a contract without agreement. Employers who wish to unilaterally vary a contract should seek advice before doing so.
(1) Note: This decision is unpublished.