Workplace Law Update For Employers
Record high for general protections claims in 2018-19
According to the Fair Work Commission’s (Commission) annual report, general protections claims reached a record high in 2018-19 of more than 5,600 applications (including, disputes involving dismissal, anti-bullying and unlawful termination). This was a 9% increase from the 2017-18 financial year.
In regard to unfair dismissal claims, the Commission received 13,928 unfair dismissal applications in 2018-19, only slightly higher than the proceeding financial year. 96% of these applications were finalised.
Jetstar pilot suing his employer and payment company Qantas for discrimination
A Jetstar pilot has filed a race discrimination claim in the Federal Circuit Court against the airline and against 8 of its captains as accessories, seeking damages and reinstatement. The pilot accuses Jetstar of allowing his colleagues to keep flying, without having to undergo further training or tests when they made “serious errors”, while treating him less favourably. Further, that some captains unfairly criticised him, wrongly assessed him as not proficient during training and unreasonably held him responsible for an alleged operational incident while preparing to land a plane at Sydney Airport last year that departed from Ho Chi Minh City.
The pilot is claiming $73,400 in past economic loss, reinstatement and at least $125,000 in damages, including for “dislocation of life” and reputational damage, plus an unspecified amount for future economic loss.
Rajesh Sabapthy v Jetstar Airways
Sacked for refusing to work overtime without penalty rates
The Commission has found an employer unfairly dismissed an apprentice, after imposing an ‘extraordinary unreasonable’ requirement for the apprentice to work weekends without receiving penalty rates so the employer could avoid the prospect of liquidated damages.
The employer claimed they had ‘specifically’ warned the apprentice the day before he was dismissed that he would lose his job is he did not work the Sunday shift. The employee claimed he often worked more than 50 hours a week despite his contract specifying only 38 hours and was not paid overtime or penalty rates. After did working the Sunday shift, the employee was dismissed by text message.
Although the Commission acknowledged that the employer was ‘fed up’ with the apprentice, his dismissal was unfair and the employer was ordered to eight weeks’ compensation (plus superannuation).
Mr Troy Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting [2019] FWC 7462
Single act of misconduct justifies dismissal
The Commission upheld the dismissal of a truck driver for a one-off serious mistake that temporarily sidelined a brand new $200,000 Mercedes prime mover, which compromised its warranty. The driver intended to top up the windscreen wiper reservoir with fluid on his Mercedes Benz Actros truck, but instead poured the liquid into the engine oil sump. The employer suspended the errant driver on his return to base and later dismissed him for serious misconduct. The employer had previously barred its drivers from topping up any fluids in the 15 such trucks on its fleet, apart from re-filling the windscreen washer reservoir.
Deputy President Peter Anderson said the 62-year-old driver ‘made a grave error borne of his negligence and recklessness and whilst intensely believing that he was treated unfairly, was not denied a fair go.’ As such, the dismissal was not unfair, and the application was dismissed.
Wayne Wissell v Twentieth Super Pace Nominees Pty Ltd T/A SCT Logistics [2019] FWC 7539
ATO gains ‘unprecedented visibility’ of late superannuation payments
The Australian Tax Office has begun using a new data sources to identify in relative real time’ employers that are later or non-payers of compulsory superannuation contributions. Since implementing this new data source, in October alone, the ATO contacted approximately 2,500 employers that were late in making their 2018-19 Super Guarantee payments and will be sending ‘due date reminders’ to another 4,000 employers.
