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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.

Duncan v Peter Kingsley Plumbing Pty Ltd[2019] FWC 1454 (9 May 2019)

Industry: Plumbing

Type: Unfair dismissal, small business

Summary: The Applicant took annual leave to cover a period that his driver’s licence was suspended.  During this period of leave, the Applicant was told over the telephone that his position was no longer needed and that he was being made redundant.  No written confirmation was provided.  The Respondent alleged during proceedings that the reason for termination was poor performance and work ethic.
 Outcome: The Respondent provided no reason for dismissal to the employee and had no basis to terminate employment.  The Respondent was ordered to pay $6,642.00 (gross) to the Applicant as compensation.

Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd (No 2) [2019] FCCA 1295 (17 May 2019)

Industry: Retail

Type: General protections, adverse action, penalty

Summary: The Applicant claimed before the Federal Circuit Court that she was dismissed because she had raised a complaint about her employment.  The Applicant had not completed her probationary period and was dismissed without any reason.

Outcome: The Respondent did not have sufficient evidence to prove that the Applicant’s dismissal was for a reason other than the complaint she had made.  The Respondent was ordered to pay $20,000 for contravening the Fair Work Act 2009 (Cth).

Key notes: In general protections claims, the onus is on the employer to prove that adverse action was taken for a reason that does not include a proscribed reason.  Therefore, while there is no requirement to provide a reason for terminating an employee within their probationary period, employers must keep records and evidence of their reasons for terminating all employees.  Even in the probation period, employers cannot dismiss employees for any unlawful reason.

Hill v Hughes [2019] FCCA 1267 (24 May 2019)

Industry: Legal services

Type: Sexual harassment

Summary: The Applicant was employed as a paralegal while undergoing a family court mediation.  Her employer, the Respondent, offered to represent, which began a four-month string of inappropriate and unreciprocated emails from the Respondent to the Applicant.  The Applicant asked the Respondent to stop multiple times.  The Applicant initiated proceedings for sexual harassment.
 Outcome: The Respondent was found to have sexually harassed the Applicant and was ordered to pay damages (inclusive of aggravated damages for ‘despicable acts’ indulged by the Respondent) to the sum of $170,000.

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