|This is EMA’s pick of the most interesting and relevant cases reported in the last six 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.|
|Tracey v BP Refinery (Kwinana) Pty Ltd  FWCFB 820 (28 February 2020) Industry: Oil|
Type: Unfair dismissal
Summary: The employee made a parody video, based on a scene from the movie Downfall, after a proposed enterprise agreement was voted down by some 98% of employees. The first allegation was, effectively, that the employee created the video which ‘depicted BP representatives involved in the [enterprise agreement negotiations] as Nazis’. This video was (initially) shared privately on the employee’s Facebook. Outcome: The Full Bench of the Fair Work Commission held that the video did not intend to depict BP representatives as Nazis, but rather (satirically) compared the situation of the failed negotiations with the situation depicted in the Downfall scene. Additionally, the video was shared out of work and had no adverse effect on BP. On this basis, there was no ‘valid reason’ for dismissal.
Key notes: This case shows both the importance of how allegations are drafted and determining where there is a valid reason for terminating employment.
Daccache v BOC Ltd  FCA 485 (16 April 2020) Industry: Gas
Summary: The employee was in a pre-employment car accident and suffered injuries to his right shoulder. The employee was left-handed. A medical assessment requested by the Respondent revealed a lifting capacity to 20kgs. The Respondent terminated the employee on the basis that he had an incapacity to perform his job, which largely involved lifting gas cylinders.
Outcome: The Court found that, based on contrasting medical evidence, the employee was fit to perform his full duties. This was largely because the employee was typically only required to lift loads of around 5 kgs and could do so with his left hand. The Court ordered reinstatement with continuity of service.
Key notes: It is important to ensure that, when assessing an employee’s capacity to perform their work, the assessment is based on the work they actually perform rather than some arbitrary minimum threshold. Knowles v BlueScope Steel Ltd  FWC 1015 (11 May 2020)
Type: Unfair dismissal
Summary: The employee was terminated following an incident where he loaded coils on a crane, allegedly in breach of workplace safety policies, including knocking two coils together (shunting one of the coils) and leaving one of the coils an unsafe distance from the edge of the crane saddle.
Outcome: On a review of the evidence, the Commission effectively found that the Respondent had ‘falsely amplify[ied] safety hazards’ to discipline the employee. The Commission found that the employee had operated within the required safety procedure and his actions posed no risk to workplace health and safety. Reinstatement ordered. Fair Work Ombudsman v HSCC Pty Ltd  FCA 655 (18 May 2020)
Industry: Fast Food
Type: Underpayment, employment records
Summary: The Federal Court found that three corporate entities in the ‘Hero Sushi Group’ and five individual respondents within that Group (including two 50% shareholders) were liable in various employee underpayments, a failure to keep employment records, and providing falsified records.
Outcome: The Court ordered penalties totalling $891,000 across the eight respondents (totalling $600,000 to the corporate respondents and $291,000 to the individual respondents).
Key notes: Employers must keep accurate time and wage records in accordance with the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth). Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd  FCA 931 (6 July 2020)
Type: Adverse action, unlawful termination
Summary: The employee was a workplace health and safety representative, had made a complaint to WorkSafe Victoria, and took a period of personal leave in February 2020. In March, the Respondent terminated the employee’s employment, purportedly as a redundancy based on a rudimentary skills matrix in which the employee scored low.
Outcome: The Court held that the evidence suggested that the employee had a stellar employment history and therefore rejected the Respondent’s claim that the employee was a poor performer, finding that the matrix and the employee’s score were a ‘contrivance … to conceal the real reason’ for the employee’s dismissal. It was determined that the employee was dismissed because of his position as a workplace safety representative, his complaint, and that he had taken periods of personal leave earlier
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