Pendlebury
workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Dismissal

Adverse Action Claim Costs Ruling

A recent decision chal­lenging the commonly held view that adverse action claims are effectively ‘no costs’ matters under the Fair Work Act 2009 may have significant effect on future claims. In Cugura v Frankston City Council (No.2) FMCA 530, Federal Magis­trate O’Sullivan awarded costs to an employer (the Frankston City Council) from an employee who […]

Brooke Pendlebury
Monday, August 20, 2012
Dismissal, News


Adverse Action Claim Fails

Adverse Action Claim Fails – Incapacitated Employee The Federal Magistrates Court has ruled in late December last year that a federal government department did not take unlawful adverse action against a former employee who was given several opportunities to exercise her workplace right to a re-examination of her retirement on the grounds of incapacity.

Brooke Pendlebury
Friday, January 13, 2012
Dismissal, News


Adverse Action Claim Fails – Employee Just Misbehaving…

The Federal Magistrates Court has found that Queensland Newspapers summarily dismissed one its printers because of repeated misbehavior, rather than his exercising of workplace rights, as was alleged. The printer, Mr. Gofton, had 34 years’ service.  He claimed the Company dismissed him after he sought to access the supplementary personal leave entitlement pursuant to the […]

Brooke Pendlebury
Thursday, March 1, 2012
Dismissal, News


Being Sacked for Facebook Comments

FWA has upheld the sacking of an employee who posted an aggressive rant on his Facebook page about his work from his home computer, outside of work hours.  Deputy President Swan rejected the employee’s unfair dismissal claim and said the fact the comments were posted from his home computer and out of work hours, “does […]

Brooke Pendlebury
Saturday, September 24, 2011
Dismissal, News


Can you dismiss an employee for office gossip?

Is it possible to terminate the employment of a staff member for being the office gossip?  Fair Work Australia recently ruled that if an employer is intending to sack an employee based on workplace behaviour, then there is a need for clear definitions of the workplace behaviours that warrant dismissal or disciplinary action.  Further, the […]

Brooke Pendlebury
Sunday, February 20, 2011
Dismissal


Child care worker loses dismissal case – arrived at work smelling of alcohol

A child care worker summarily dismissed after attending work smelling of alcohol may have successfully challenged her dismissal if not for the previous warning she had received and the fact that she worked with young children. FWA Senior Deputy President Richards said the failure of the child care centre to stand the worker down and […]

Brooke Pendlebury
Wednesday, August 22, 2012
Dismissal, News


Court confirms implied term of ‘confidence and trust’ as part of Australian law

A significant decision was handed down on Tuesday, 6 August 2013, by the full court of the Federal Court, on Australian employment contract law: Commonwealth Bank of Australia –v- Barker [2013] FCAFC 83 (6 August 2013) The Full Court has found that the Commonwealth Bank breached an implied term of ‘confidence and trust’ when it failed […]

Brooke Pendlebury
Thursday, August 8, 2013
Dismissal, News


Duty of care, bullying and harassment, and unfair dismissal: Court decision

It was held that Curtin University did not breach a lecturer’s employment contract or its duty of care by failing to make progress with complaints he lodged against his superiors under the University’s grievance policy. The lecturer activated Curtin University of Technology’s Grievance Policy in May 2002 when he made a formal complaint that he […]

Brooke Pendlebury
Wednesday, May 6, 2015
Dismissal, Harassment at Work, News


Employer unreasonably refused request to work part-time

The Fair Work Commission, in finding that an employer constructively dismissed a female employee when it unreasonably refused her request to work part-time after the birth of her second child, has emphasised that women have the right to “give birth to children without foreclosing their employment.” Hanina Rind –v- Australian Institute of Superannuation Trustees [2013] FWC […]

Brooke Pendlebury
Saturday, July 20, 2013
Dismissal, News


Fair Work Act’s General Protections provisions covered a WIDE range of employment complaints

Workplace Update – Fair Work Act’s General Protections provisions covered a WIDE range of employment complaints In May, the Federal Court ruled that the Fair Work Act’s general protections provisions covered a wide range of employment complaints. However, it found that these were not the reason for a client services manager’s dismissal in the case […]

Brooke Pendlebury
Wednesday, June 11, 2014
Dismissal, General Protection Claims, News


Fair Work Australia: IT manager sacked for deliberately stopping emails from reaching the mobile phone of the organisation’s IR manager.

Fair Work Australia: IT manager sacked for deliberately stopping emails from reaching the mobile phone of the organisation’s IR manager. Fair Work Australia has upheld the St Vincent de Paul Society’s dismissal of an IT manager who deliberately stopped emails from reaching the mobile phone of the organisation’s IR manager.  The dismissal was on the […]

Brooke Pendlebury
Friday, October 14, 2011
Dismissal, News


Fair Work Commission – “bullying” was reasonable management action and rejected a long-serving employee’s bullying claim.

The Fair Work Commission said, “bullying” was reasonable management action, and has rejected a long-serving employee’s bullying claim.  The Commission accepted that the employer, Salvation Army Employment Plus, took reasonable management action when it performance-managed its employee after she resisted changes to workplace practices. Commissioner Lee in a ruling issued 4 June 2015 said the issues raised by the Salvation […]

Brooke Pendlebury
Friday, June 12, 2015
Dismissal, Harassment at Work, News, Workplace Investigations, Workplace Safety


Falsified Medical Certificate Justified Dismissal

Fair Work Australia has recently upheld Westpac’s dismissal of a customer service employee who tendered a falsified medical certificate. Commissioner Deegan said Westpac had no alternative to dismissing the employee after she falsified the medical certificate and then alleged workplace bullying when confronted with the allegation. Commissioner Deegan said she was satisfied there was a […]

Brooke Pendlebury
Friday, March 2, 2012
Dismissal, News


General Protection Claim – Myer proves dismissal NOT linked to workplace right or to gender

General Protection Claim – Myer proves dismissal NOT linked to workplace right or to gender In the decision of Vukovic v Myer Pty Ltd [2014] FCCA 985 (2 June 2014), a Myer sales manager, Vukovic, who did not disclose he had an anxiety condition to his employer, or make any plan to seek workers compensation, has failed to argue […]

Brooke Pendlebury
Wednesday, June 11, 2014
Dismissal, General Protection Claims, News


High Income Threshold Rises to $133,000

High Income Threshold Rises to $133,000 The Fair Work Commission has increased the High Income Threshold to $133,000 effective 1 July 2014. The high income threshold affects how modern awards apply to employees and affects their ability to access unfair dismissal. The high income threshold affects 3 main entitlements: Employees who earn more than the […]

Brooke Pendlebury
Sunday, July 6, 2014
Dismissal, General Protection Claims, News


How to Manage Excessive Absenteeism?

Temporary Absence Due to Illness The FW Act provides that an employer is in breach of the Act if an employee’s employment is terminated because of the employee being temporarily absent from work due to a “prescribed kind of illness or injury“. However, it is NOT a “prescribed kind of illness or injury” if: The […]

Brooke Pendlebury
Sunday, February 20, 2011
Dismissal, Excessive Absenteeism


Managerial Duties were not an “add-on” and the Award does not Apply – FWA Full Bench say in Unfair Dismissal Claim Appeal

Manager fails in arguing his managerial duties were simply an ‘add-on’ to his technical responsibilities, before FWA. A consultant, who became a manager, for a consulting firm, Thomas Duryea Consulting Pty Ltd, has failed to successfully appeal against a FWA decision of Senior Deputy President Drake, that his managerial duties excluded him from the unfair […]

Brooke Pendlebury
Monday, September 3, 2012
Dismissal, News


Not given an opportunity to respond to the allegations against you leads to unfair dismissal

A full bench of the Fair Work Commission has reversed a decision that a boilermaker was fairly dismissed for using an unsafe method to cut a steel plate (The boilermaker had suspended the steel plate from a crane, rather than laying it out horizontally, in order to cut it). The full bench found that he […]

Brooke Pendlebury
Saturday, July 20, 2013
Dismissal, News, Workplace Safety


Performance Management and Dismissal

Performance Management and Dismissal Fair Work Australia has found it was unfair for HJ Heinz Company Australia to dismiss a Sales Manager who refused to be performance managed because he feared it was designed to trigger his dismissal by the Company. In ordering the reinstatement of the former WA Sales Manager, employed by Heinz from 1983 […]

Brooke Pendlebury
Tuesday, March 6, 2012
Dismissal, News


Redundancy and Offers of Alternative Employment: Fair Work Commission decision

A recent decision of the Fair Work Commission may be of some assistance to your business when considering redundancies and offers of alternative employment. On 27 February 2015, the Fair Work Commission awarded full redundancy pay to a general manager who lost his position after his company acquired another, with a ruling that an offer of […]

Brooke Pendlebury
Wednesday, May 6, 2015
Dismissal, News


Redundancy and Other Acceptable Alternative Employment – Is Redundancy Payable?

A recent case before the Fair Work Commission dealt with the issue of redundancy and suitable alternative employment. In Szanto v ISS Facility Services Pty Ltd the Commission clarified the application of sections 119 and 120 of the Fair Work Act 2009 (the Act) in deciding whether a redundancy payment must be made. The Act Section 119 of the […]

Brooke Pendlebury
Thursday, October 16, 2014
Dismissal, Entitlements


Sacked Over Facebook “pub talk” Comments – Reinstatement

Sacked Over Facebook “pub talk” Comments – Reinstatement Fair Work Australia (FWA) has found a Linfox truck driver’s comments about managers, on what he believed to be a private Facebook page, did not justify his dismissal.  FWA has criticised Linfox for failing to keep pace with other large employers that have “detailed social media policies” […]

Brooke Pendlebury
Friday, January 13, 2012
Dismissal


Summary Dismissal by Text Message – Fair?

A retailer, who summarily dismissed a regular casual employee by text message on Boxing Day 2010, has been ordered by Fair Work Australia to pay her almost $10,000 compensation. In Sedina Sokolovic v Modestie Fashion Australia Pty Ltd (ABN: 671444920838) [2011] FWA 3063 (18 May 2011) Commissioner Cambridge said that dismissing the salesperson by SMS deprived […]

Brooke Pendlebury
Wednesday, May 25, 2011
Dismissal, News


The Fair Work Commission has knocked back a ‘trust and confidence’ submission made by an employer.

The Fair Work Commission has knocked back a ‘trust and confidence’ submission made by an employer. The Fair Work Commission reinstated a portable toilet delivery driver who’s employment was terminated with Coates Hire Operations Pty Limited for a safety breach.  The Commission rejected the employer’s claims that the delivery driver should not be returned to the job because it no […]

Brooke Pendlebury
Saturday, June 6, 2015
Dismissal, News, Workplace Safety


Valid Reason for Dismissal but no Procedural Fairness Afforded

The risks for employers in stringing out dismissal processes involving matters of serious misconduct have been demonstrated in Jones v Commissioner for Public Employment [2012] FWA 7069 (17 August 2012) where a Northern Territory Parole Officer failed to disclose during her recruitment that her husband was a parolee. Commissioner Steel said there was a ‘valid […]

Brooke Pendlebury
Tuesday, August 21, 2012
Dismissal, News


What is a Reasonable & Lawful Direction? Fair Work Commission Recent decision

The Fair Work Commission has upheld the dismissal of a BHP Billiton underground mineworker sacked after repeatedly refusing to shave off his beard for the purposes of  ensuring his respirator operated effectively. Commissioner Hampton found the company’s instructions to the uranium mine employee at Olympic Dam to comply with its Clean-Shaven Policy were lawful and […]

Brooke Pendlebury
Wednesday, May 6, 2015
Dismissal, News


When is Redundancy Pay NOT Payable?

Redundancy pay is generally notpayable under the National Employment Standards (‘the NES’) to any of the following: an employee whose period of continuous service with the employer is less than 12 months; an employee of a small business employer (a small business employer, for the purpose of determining redundancy pay under the NES, is an […]

Brooke Pendlebury
Wednesday, August 29, 2012
Dismissal, Entitlements