Pendlebury
workplace law

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

News

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


Age discrimination in the workplace – 2015

A national survey by the Human Rights Commission has found that 1/3 of older job seekers abandoned their efforts after they experienced age discrimination. The first national survey to assess the working experience of older Australians found that 1/4 of Australians aged 50 + years have experienced some form of discrimination in the last 2 […]

Brooke Pendlebury
Sunday, May 10, 2015
News


Age discrimination in the workplace – 2015

What Employers Can Do: The first step toward avoiding age discrimination in the workplace is to understand exactly what it is, and identify potential problems within your organisation or company. You can take action now to reduce or eliminate such discrimination. Some effective strategies include an appraisal of your organisation’s culture, preventive training, revision of […]

Brooke Pendlebury
Thursday, May 21, 2015
News


Anti Bullying Provisions

From 1 January 2014, amendments were made to the Fair Work Act 2009 which allow a worker, who believes that they have been bullied at work, to apply to the FWC for an Order to Stop the Bullying. This provision is not limited to employees, but extends to: –                contractors, –                labour hire personnel and –                […]

Brooke Pendlebury
Thursday, March 27, 2014
News


Australian Privacy Principles (APPs) Guidelines APP1 and APP5

Since the introduction of the new Australian Privacy Principles (APPs), there has been speculation as to which sector might be the first to have their privacy practices assessed by the Privacy Commissioner. Industries such as sport, health, and the banking industry were each considered likely suspects for a test-case of the new requirements. The Office […]

Brooke Pendlebury
Wednesday, August 20, 2014
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


Casual Employment

Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321 (30 November 2010).    The Federal Court found in this case that a mining worker (Williams) in Western Australia who was engaged as a “casual”, was not a “genuine casual” employee, and so he was entitled to permanent employment benefits.  The Federal Court ruled that the […]

Brooke Pendlebury
Thursday, March 31, 2011
Casual Employment, News


Changes to Penalty Rates – more than 100 hearing days

The employer bid to change penalty rates is shaping as a massive case in the Fair Work Commission that will run until late next year, with almost 200 witnesses to be called over  The Fair Work Commission’s President, Justice Iain Ross, outlined the scale of the case, and set out the timetable for hearings by […]

Brooke Pendlebury
Monday, December 29, 2014
Casual Employment, Entitlements, News


Changes to Queensland Workers Compensation Legislation – What this means for you!

Following the release in May 2013 of the report of the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme, the Workers Compensation Rehabilitation & Other Legislation Amendment Bill 2013 was passed on 17 October 2013. Significant changes were made to the Queensland Workers’ Compensation and Rehabilitation Act 2003 (‘the Act‘).  The Act was assented […]

Brooke Pendlebury
Wednesday, March 12, 2014
News, Workplace Safety


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


Coles Supermarkets set to deliver 3% annual pay increases nationally in enterprise agreement

For the first time, Coles Supermarkets has included all non-salaried employees in its new national enterprise agreement, which will deliver 3% annual pay increases to more than 75,000 workers. SDA national secretary Gerard Dwyer has said the union is “very pleased” with the agreement, particularly as it provides significant wage increases for 18- and 19-year-old employees.  Dwyer said […]

Brooke Pendlebury
Saturday, May 23, 2015
News


Consultation regarding Changes to Roster and / or Ordinary Hours of Work

  Consultation regarding Changes to Roster and / or Ordinary Hours of Work Recent amendments to the Fair Work Act 2009 (Cth) (“the Act”) provide increased protections for employees, who will be entitled to the benefit of greater consultation in relation to proposed changes to their rosters and hours of work from 1 January 2014.   […]

Brooke Pendlebury
Sunday, October 6, 2013
News


Costs Awarded Against Applicant in Sexual Harassment and Discrimination Case

Claims of discrimination or sexual harassment are not all just high stakes for employers. In a recent Federal Court decision in Dye v Commonwealth Securities Limited (No 2) 1 [2012] FCA 407, Vivienne Dye is now faced with the prospect of having to declare herself bankrupt, having been ordered to pay $5.85 million in indemnity […]

Brooke Pendlebury
Friday, August 31, 2012
Harassment at Work, 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


Court frowns on rewarding workers with Coke and pizza – and issues penalties

Court frowns on rewarding workers with Coke and pizza – and issues penalties Giving teenage employees free and discounted pizzas and soft drink instead of wages has been frowned on by the Federal Circuit Court as a practice belonging “in the dark ages rather than twenty first century Australia,” and has cost a pizza franchise, […]

Brooke Pendlebury
Wednesday, June 11, 2014
News


Directors and Managers Liable under Work Health Safety Legislation NSW

In New South Wales, directors and managers have onerous obligations and personal liability under work, health and safety laws. In New South Wales the obligation of an employer is to ensure the safety of the work environment.  In fact, individuals who are concerned in the management of the corporation, managers, officers or directors of corporate bodies are personally liable […]

Brooke Pendlebury
Friday, October 18, 2013
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 Escaped Liability in Sexual Harassment Case before NSW ADT

 In the most recent case before the NSW Administrative Decisions Tribunal Cooper v. Western Area Local Health Network [2012] NSWADT 39 (9 March 2012) , a male health care worker, who was employed by the Western Area Local Health Network, was fined $10,000 for sexually harassing a colleague. The employer, however, has escaped liability, and was […]

Brooke Pendlebury
Thursday, August 30, 2012
Harassment at Work, News, Workplace Investigations, Workplace Safety


Employer Liable Vicariously for Sexual Harassment of Employee

The Queensland Civil and Administrative Tribunal has found a Gold Coast resort vicariously liable for the sexual harassment of a female employee, further, that its mishandling of her complaint contributed to a psychiatric injury. [McCauley –v- Club Resort Holdings Pty Ltd (no 2) [2013] QCAR 243 (13 May 2013). The Tribunal Member, Jeremy Gordon, found Club […]

Brooke Pendlebury
Thursday, July 25, 2013
Harassment at Work, News, Workplace Investigations, Workplace Safety


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


Employers – When Can Monies be Deducted from Employee’s Wages?

This is a warning to employers to be careful when deducting monies from an employee’s wages, especially in the absence of any specific provision permitting such action under the applicable industrial instrument, federal or state legislation or the contract of employment. Generally, in the absence of a specific statutory provision, an employer is prohibited from […]

Brooke Pendlebury
Monday, March 19, 2012
Entitlements, 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 had no jursidiction to hear after-hours behaviour dispute

Fair Work Australia has held that it has no jurisdiction to hear a dispute over disciplinary action taken against three coal-mining workers for alleged after-hours behaviour. One of the Thiess employees who worked at its Wilpinjong Coal Mine, in the Hunter Valley in NSW, was given a final warning, and the other two employees received […]

Brooke Pendlebury
Friday, August 24, 2012
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


Fair Work Ombudsman Investigation – Unregistered Apprentice and Underpayment

A teenager, employed as a carpenter, was allegedly underpaid more than $8,000 by a construction company in Queensland, according to a further Fair Work Ombudsman prosecution. JDAC Pty Ltd (JDAC), the employer and construction company, allegedly paid the full-time carpenter apprentice rates between June 2008 and February 2009, despite the fact that the employee was not formally registered as […]

Brooke Pendlebury
Friday, March 9, 2012
Entitlements, News, Workplace Investigations


Falsified Medical Certificate Justified Dismissal

Fair Work Australia has upheld Westpac’s dismissal of a customer service employee who tendered a falsified medical certificate.

Brooke Pendlebury
Friday, March 2, 2012
News


Falsified Medical Certificate Justified Dismissal

Fair Work Australia has 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 valid […]

Brooke Pendlebury

News


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

Dismissal, News


Federal Court Decision on Labour Hire Sham Contracting Arrangement – Avoiding Employer Obligations

The Federal Court has found that shifting seasonal workers to a new employer after they had worked 40 hours a week constituted a “sham” contracting arrangement with the purpose of avoiding paying overtime. Her Honour, Justice Collier held that a Queensland fruit farm owned by a family trust was in fact the employer of the workers for the […]

Brooke Pendlebury
Wednesday, June 11, 2014
Entitlements, News


Federal Court Upholds Adverse Action Finding Against Qantas

The full Federal Court has rejected a Qantas challenge to a Federal Magistrates Court decision that it coerced and took adverse action against an aircraft engineer who complained about being underpaid while on an overseas posting. The full court found that Federal Magistrate Raphael was correct in his findings and rejected the Qantas’ contention that […]

Brooke Pendlebury
Thursday, May 10, 2012
Entitlements, News


Federal Government Announces Workplace Bullying Review

Workplace Relations Minister Bill Shorten workplace bullying has announced a review of workplace bullying, to be conducted by the House of Representatives Standing Committee on Education and Employment. The review will cover “the nature, causes and extent of workplace bullying“, and will consider issues such as the prevalence of workplace bullying in Australia, the role […]

Brooke Pendlebury
Thursday, August 23, 2012
Harassment at Work, News, Workplace Safety


FWA Statistics on General Protections & Unfair Dismissals Claims

FWA Statistics on General Protections & Unfair Dismissals Claims FWA has received more than 550 General Protection applications every quarter this financial year, and Unfair Dismissal claims continue to rise, new Fair Work Australia (FWA) data reveals. FWA received 566 General Protections applications in the March quarter, which is in line with the figures for […]

Brooke Pendlebury
Friday, May 27, 2011
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


Get ready for 2.5% wage increase – Fair Work Commission

The Fair Work Commission has announced a 2.5% increase to minimum wages.  The increase will apply from the first full pay period starting on or after 1 July 2015. The increase only applies to employees that get their pay rates from the national minimum wage, a modern award or in some cases a registered agreement. […]

Brooke Pendlebury
Wednesday, June 3, 2015
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


Implied mutual term of trust and confidence – Commonwealth Bank v Barker

There is now an implied mutual term of trust and confidence in about 9 million Australian employment contracts, according to Victorian barrister, Mark Irving, who appeared for the ACTU in the Federal Court case that confirmed the term’s existence.  In a paper on the Commonwealth Bank v Barker decision, Mark Irving presented to a seminar hosted by the […]

Brooke Pendlebury
Sunday, November 3, 2013
News


Implied Term of Mutual Trust & Confidence – Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014)

The High Court has decisively determined that the Australian common law does not imply a term of mutual trust and confidence into employment contracts. The High Court’s decision overturns the previous decision of the majority of the Full Federal Court, which had found that the Commonwealth Bank was in breach of the implied term when […]

Brooke Pendlebury
Sunday, September 14, 2014
News


Independent Contractors or Employees?

Welcome news regarding independent contractors… New Small Business Minister Bruce Billson has engaged in discussions with Treasury officials on sticking “to the letter of the law” in determining whether someone is an independent contractor or employee, and intends to hold similar discussions with other agencies and departments. The Coalition sees the former Labor government as […]

Brooke Pendlebury
Friday, September 27, 2013
News


Job Application Form Discriminatory

Woolworths were found to have discriminated against online job applicants by requiring them to provide their gender, date of birth and proof of their right to work in Australia, as ruled by the Queensland Civil and Administrative Tribunal. The Tribunal said the requirement to provide the information breached the state’s Anti-Discrimination Act, and that Woolworths could […]

Brooke Pendlebury
Monday, December 29, 2014
Casual Employment, General Protection Claims, News


Largest ever Court Imposed Fine for Breaching 457 Visa Sponsorship Obligations

Five weeks after ordering Darwin-based Choong Enterprises to pay the largest-ever court-imposed fine for breaching 457 visa sponsorship obligations, the Federal Court has directed the Company to backpay 7 of the Filipino workers involved, totalling more than $100,000. Justice Mansfield found in April 2015 that Choong Enterprises Pty Ltd (which operates a number of fast food […]

Brooke Pendlebury
Sunday, June 21, 2015
Entitlements, News, Workplace Investigations


LinkedIn Contacts – who owns them? The employer or employee?

LinkedIn Contacts – who owns them?  The employer or employee? The legal question of the ownership of LinkedIn contacts is getting interesting.  Two of Australia’s leading legal recruitment companies are preparing for a court battle on this issue. A Sydney-based legal recruiter, who left a top legal recruitment firm Naiman Clarke a few months ago to join […]

Brooke Pendlebury
Monday, June 13, 2011
News


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


Mediation Tips

MEDIATION Mediation is a process in which a mediator, independent of the disputing parties, facilitates the negotiation between parties, of their own solution to the dispute by assisting them to: –         isolate the issues in dispute, –         develop options for their resolution, and –         reach an agreement which accommodates the interests and needs of all […]

Brooke Pendlebury
Thursday, February 16, 2012
News


Message to the hair and beauty industry from Judge – “it does not pay to underpay workers”

A long history of employee complaints and the need to send a strong message to the hair and beauty industry that “it does not pay to underpay workers” has led to a hairdressing chain being fined $70,000 for short-changing an apprentice more than $8,000. Federal Circuit Court Justice Riley said significant penalties were required to […]

Brooke Pendlebury
Sunday, November 2, 2014
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