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Employment Law – Poor Response to Parental Leave

Employment Law – Background

A company was found to have taken adverse action against a pregnant employee and were ordered to pay $57,000 in compensation because they made her redundant just days before she took maternity leave.

Employment Law – Facts

In essence:

  • In 2015 the company decided to make several roles redundant as of November 12
  • However, they moved the redundancy date for a pregnant employee forward to two days before she took maternity leave
  • They believed moving the date was in her best interest
  • The employee claimed that she was dismissed because of her maternity leave

Employment Law – Decision

Judge Salvatore Vaster of the Federal Circuit Court:

  • found that the employer had taken adverse action against the employee
  • whilst noting the reasons for the redundancy were genuine, believed that moving the date of the employee’s redundancy amounted to changing her position to her prejudice, on the basis she did not have the chance to discuss the reasons for redundancy or contemplate other appropriate positions in the company
  • noted that “it was a clumsy attempt at trying to balance the perceived needs of the [employer] with the best interests of the [employee]”
  • ordered the employer pay $37,842 in compensation and an additional $20,000 as a pecuniary penalty

The decision is available for you to read through the hyperlink:

Power v BOC Pty Ltd & Ors (No.2) [2017] FCCA 2387 (3 October 2017)

Employment Law – Tips for Employers  [...]  READ MORE →

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Employment Law – Adverse Action against Train Driver

Employment Law – Background

The Federal Circuit Court has determined that Australian Western Railroad took adverse action against a train driver when they cancelled his supervisor training after he refused to work a shift as a result of carer’s responsibilities and fatigue.

Employment Law – Facts

In essence:

  • the driver refused to work a “put-back shift” when a 3pm train he was rostered to drive was delayed by more than 3 hours
  • the driver claimed that he would be unable to work his shift because he would be fatigued, which was the result of his carer’s responsibilities. He argued that his absence should be recorded as carers leave
  • he argued that he had been primary caregiver of his children since 2011 due to compilations in his wife’s pregnancy which left her unable to care for the children
  • the driver claimed that he would be incapable of resting and his children would need to be cared for and would be making noise preventing him from resting
  • Six days after he took carer’s leave, the company cancelled the driver’s operations supervisor training

Employment Law Decision

The Federal Circuit Court:

  • concluded that the company breached s340(1)(a)(i) and (i) prohibitions on taking adverse action because of the exercise of a workplace right under/for discriminatory reasons under s351(1) of the Fair Work Act by cancelling training
  • in addition, held that cancelling the training also constituted an alteration of the driver’s position to his prejudice under s342(1) item 1(c)
  • consequently, believed that the delivery manager’s decision to stop supervisor training and not to reinstate it “was informed by the view” that the driver had a “lack of commitment and poor attitude”, and it was this against the background of the driver exercising his workplace right to carer’s leave which formed the basis of the adverse action and discrimination.
  • held that the delivery manager was wrong in labeling the drivers claims he was exercising his workplace right to carer’s leave as disingenuous

The decision is available for you to read through the hyperlink:

Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954 (18 August 2017)

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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Q&A – Dismissal of employees whilst on leave

A common question raised by employers is whether an employee can be dismissed whilst the employee is absent on personal/carer’s leave or annual leave. The question is common because employees often retreat onto leave when the employment relationship becomes dysfunctional, due to stress arising from disciplinary action, or to delay their dismissal.

There is no universal statutory prohibition on dismissing employees who are absent on personal leave or annual leave. However there are significant risks for doing so. [...]  READ MORE →