Unfair Dismissal

July 5, 2023

EMPLOYMENT UPDATE
Performance management in the context of unfair dismissals

Misconduct, Performance Management, Unfair Dismissal

This Employment Update examines three cases where performance management processes were not undertaken properly, and so resulted in the employee having a successful unfair dismissal application. When will a dismissal be unfair An unfair dismissal occurs where the employee is dismissed and: the employer did not have a valid reason for the dismissal; the employee […]

October 31, 2022

EMPLOYMENT UPDATE
Reinstatement for employee following guilty verdict on criminal charges overturned

Misconduct, Serious Misconduct, Termination of Employment, Unfair Dismissal, Workplace Investigations

This month we deal with an extremely interesting decision of the Fair Work Commission where despite best practice investigation there was a ruling against the employer. Our key message is this should not detract from an employer seeking to follow best practice in allegations of serious misconduct. Sydney Trains has been ordered to reinstate an […]

June 30, 2022

EMPLOYMENT UPDATE
Employee with questionable “full” capacity medical certification not unfairly dismissed

Managing Ill and Injured Employees, Unfair Dismissal, Workplace Health & Safety

The Fair Work Commission (‘Commission’ or ‘FWC’) has recently found that a teacher whose employment was terminated following a contentious, year-long recovery from a psychological injury sustained at work, was not unfairly dismissed, despite providing the employer with a medical certificate indicating that she had “full” capacity to return to work. Background The unfair dismissal […]

March 31, 2022

EMPLOYMENT UPDATE
50-year-old employee not unfairly dismissed for “ferocious” texting during work time

Unfair Dismissal

The Fair Work Commission (‘Commission’) has recently found that a “mature” employee who “deliberately” failed to follow her employer’s lawful and reasonable direction to turn her personal mobile phone off while at work, and not attend to her private business matters during work time, was not unfairly dismissed. Background In December 2020, the employee was […]

March 3, 2022

What to expect if you receive an unfair dismissal claim

Aitken Legal often assists employers to defend unfair dismissal claims from former employees who have either been dismissed or where they consider they have been forced to resign. In this video, Hamish Procter from Aitken Legal, gives you an overview of what to expect when you first receive an unfair dismissal claim. Typically, an employer […]

January 31, 2022

EMPLOYMENT UPDATE
An employee’s defiance of a public health order was a valid reason for dismissal

COVID-19, Termination of Employment, Unfair Dismissal

In a recent unfair dismissal decision, the Fair Work Commission (‘FWC’) confirmed that a crane company had a valid reason to dismiss a mobile crane operator (‘employee’), who attended an illegal protest in contravention of a Victorian Government public health stay-at-home order (‘PHO’). Significantly, the FWC rejected the employee’s claim that although he had attended […]

October 29, 2021

EMPLOYMENT UPDATE
Confusion about “temporary” absences clarified by the Fair Work Commission

Managing Ill and Injured Employees, Unfair Dismissal

In this Employment Update we deal with the often vexed question of “temporary” absence and the three (3) month period referred to in the Regulations to the Fair Work Act. The Fair Work Commission has considered the meaning of a “temporary” absence in two recent unfair dismissal decisions, both heard by Commissioner Jennifer Hunt. Both […]

July 30, 2021

EMPLOYMENT UPDATE
Resigning employee awarded 14 weeks’ compensation in successful unfair dismissal claim

Unfair Dismissal

In the decision of Mrs Kerri Trail v O’Brien Group Australia [2021] FWC 4048, the Fair Work Commission (‘Commission’) determined that an employee who had tendered a written resignation to her employer was in fact unfairly dismissed and awarded the employee 14 weeks’ compensation ($28,269) minus various deductions. Background The employer is a large privately-owned […]

April 13, 2021

Three key aspects to defending an unfair dismissal claim

What does the Fair Work Commission look at when assessing an unfair dismissal claim? In this video, Hamish Procter from Aitken Legal talks to you about the three key factors that the Fair Work Commission will consider when assessing the merits of an unfair dismissal claim. Note I am not addressing jurisdictional objections that an […]

March 30, 2021

EMPLOYMENT UPDATE
Not an unfair dismissal rules FWC

Termination of Employment, Unfair Dismissal

This month we look at a recent unfair dismissal decision of the Fair Work Commission. Deputy President Sams, in determining that the employee’s termination was not harsh, unjust or unfair, was highly critical of the self-represented applicant who had been dismissed by her employer for a loss of “trust and confidence in her ability to […]

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