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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
  • Continue reading…

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Redundancy Consultation Cannot be ‘Hollow’

In Belinda Lee v Mission Australia, the Fair Work Commission warned against “hollow” consultation in redundancy, emphasising that it cannot be conducted for mere show and must have value.


In essence:

  • A program manager at Mission Australia alleged that she was made redundant without consultation whilst she was on parental leave
  • Mission Australia wrote to the manager stating she was going to be made redundant as they were no longer delivering their Skills for Education and Employment course and Adult Migrant English Program after Federal Government funding cuts. They stated they failed in their search for redeployment opportunities for her
  • The manager’s request to delay her retrenchment and redeployment period until after she returned from parental leave to see if any further opportunities arose, was rejected by Mission Australia

The Decision

The Fair Work Commission:

  • granted an interim order which prevented Mission Australia from retrenching the manager
  • emphasised that consultation must have a purpose, stating that “if the consultation does not provide [the program manager] the opportunity to influence the decision, it is of no value and the requirement to consult and the consultation is hollow”
  • Continue reading…

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Employment Law – Redundancy Consultation

Employment Law – Background

Currently, there are no specific guidelines on how long employers should or must conduct redundancy consultations under a Modern Award.

Different rules of course may apply to enterprise agreements, under company policies or in some cases under the terms of an employee’s employment agreement.

We understand that employers may want to rush a business restructure in order to continue running the business, however, there are a few tips employers should consider to minimise any possible adverse effects.

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • prioritise good communication to affected employees rather than rushing the process
  • provide a reasonable timeframe for those employees to consider the proposed redundancy
  • give employees time to provide information to the employer for the employer to consider before the employer makes a final decision about the proposed redundancy
  • as a guide, utilise a week for redundancy consultations (however, three days should be seen as the minimum)
  • Continue reading…

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Employment Law – New Financial Year Changes

What every employer MUST know for 1 July 2017

With the commencement of a new financial year, it brings with it important changes and new rates which will apply from 1 July 2017.

NEW! High Income Threshold (HIT)

With the HIT:

  • it is expected to increase to $143,500 (subject to formal confirmation by the FWC)
  • it impacts:
  • who can make a claim for unfair dismissal (for those not covered by a Modern Award or to whom an enterprise agreement does not apply)
  • the maximum amount of compensation payable in an unfair dismissal claim
  • those on a ‘guarantee of annual earnings’ (a Modern Award does not apply to an employee whilstever this guarantee is in place provided it continues to meet the relevant legislative requirements)

NEW! Modern Award Increases

With Modern Awards (including enterprise awards):

  • minimum wages increase by 3% (starting on the first full pay period on or after 1 July 2017)
  • absorption of wage increases into over-award payments is permissible (subject to the terms of the relevant employment agreement and what other amounts are being absorbed into any annualised salary)
  • Continue reading…

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Employment Law – Redundancy and Job Swaps

Employment Law – Background

The Fair Work Commission decision in Skinner v Asciano Services Pty Ltd serves as a warning for employers to consider all redeployment possibilities, including voluntary job swaps, before making an employee redundant.


Employment Law – Facts

In essence:

  • Pacific National was experiencing a reduction in workload due to reduced export grain demand, client loss and the closure of a key site
  • consequently, its national operational requirements changed in its bulk haulage division
  • Pacific National Bulk (PNB) made multiple positions redundant, both voluntarily and forced
  • PNB followed a redeployment process for affected employees, specifically those whose employment was involuntarily terminated, whereby they held consultation meetings and advised of available internal transfer opportunities
  • despite the redeployment process, in the original decision, nine employees who were train drivers before being made redundant filed unfair dismissal applications, arguing that their redundancies were not genuine under the Fair Work Act
  • the Fair Work Commission was initially satisfied that there was a genuine redundancy in each case, and it was not reasonable for PNB to deploy the employees
  • Continue reading…

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Consultation – Essential for a ‘Genuine Redundancy’

Most employers are generally aware that a ‘genuine redundancy’ is a complete defence to an unfair dismissal claim. However, a redundancy is not rendered ‘genuine’ simply because the redundancy is justified or necessary. The Fair Work Act 2009 (‘the FW Act’) requires employers to undertake a consultation process prior to the implementation of redundancies.

The consultation process requires employers to give employees adequate notice of potential workplace changes (i.e. redundancies), and discuss what steps can be taken to mitigate the effects of the workplace changes.

Section 385 of the FW Act provides that a person will be unfairly dismissed if (amongst other things) the “the dismissal was not a case of genuine redundancy”. Section 389(1) of the FW Act provides that a ‘genuine redundancy’ is a dismissal where:

  • the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
  • the employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.
  • Continue reading…

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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.

General Protections risks

The ‘General Protections’ within the Fair Work Act 2009 make it unlawful to dismiss an employee because of the employee’s use of leave. Specifically, it is unlawful to dismiss an employee because he or she is ‘temporarily absent due to illness or injury’. A ‘temporary absence’ is defined as an absence lasting less than three months, supported by appropriate medical evidence. In addition, it is unlawful to dismiss an employee because of the employee’s physical or mental disability, family or carer’s responsibilities, pregnancy status, or religion. As a practical matter, these characteristics may require the employee to take personal/carer’s leave, annual leave, or parental leave from time to time. Any decision to dismiss an employee because of leave taken as a result of these characteristics will be in contravention of the General Protections.

Continue reading…