Prominent NWNF law firm McDonald Murholme (“Winners for Workers”), seems to have set the year off to a poor start, with:

 

  • Costs awarded against Alan McDonald[1] personally because (Mr McDonald),

 

 “…failed to articulate a proper factual and legal basis for it in his pleading, or in particular when sought. Whether he did so with some ulterior motive or purpose, or wilfully closing his eyes to his professional obligations, are not conclusions I am prepared positively to reach on the evidence before me.”

 

And as such:

 

“Mr Humphery-Smith is entitled to be compensated for the legal costs he incurred in relation to this proceeding, during the period he was obliged to retain Hall & Wilcox to represent him, excluding any costs attributable to the application in the Fair Work Commission. Mr McDonald should bear those costs personally. Costs are payable on a party and party basis.”

 

  • Fail in Federal Court (1):

FEDERAL COURT OF AUSTRALIA,  Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

 

In this adverse action matter, the employer wished to change the employee’s job due to restructuring (and poor operational performance of the employee).

 

This case also explores the role of the court in relation to claims of adverse actions.

 

The Applicant viewed this as a demotion despite the only changes to the contract of employment being:

 

  • May be required to work on public holidays;
  • An extension of the notice of termination period from one month to three months’ written notice; and
  • A more onerous restraint of trade clause.

 

The Applicant contended that Dulux breached a “protected right” because he had exercised the following workplace rights:

 

  • The right to a working environment that was safe and without risk to his health;
  • The right to make a complaint; and
  • The right to take paid personal leave on each of 28 and 31 May 2013.

 

In dismissing the claim, the DP stated:

 

“A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome. As Gray, Cowdroy and Reeves JJ said in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:

 

‘A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal.  The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1.  The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.’

 

“In Sperandio v Lynch [2006] FCA 1648 at [91] Jessup J said:

 

‘Turning to s 170CK(2)(a) of the Act, the “reason” to which that provision refers is, I consider, the temporary absence from work.  For an employer to act in breach of the provision, there must be an awareness that the absence was because of illness or injury, and the absence must be the reason for the termination.  Or, to put it defensively, an employer will succeed in avoiding an adverse finding under the provision upon proving either that he or she did not know the reason for the absence or that he or she did not terminate the employment by reason of the absence.  In the present case the respondents have not proved either: indeed, I find the contrary in each case.’”

 

  • Fail in Federal Court (2):

FEDERAL COURT OF AUSTRALIA. Curatolo v Skye Children’s Co-Operative Ltd [2015] FCA 14. VID 367 of 2014. JESSUP J.

 

  • Employee that was dismissed for misconduct claimed that she was dismissed because she was a union member.
  • Failed to convince Judge – application dismissed.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.