Employment Articles

Unfair Dismissal at Harley Heaven

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As recently reported in ‘The Advertiser’, a worker unfairly dismissed from his employment at Peter Stevens Motorcycles (‘Harley Heaven’) was awarded substantial compensation by the Fair Work Commission after a contested proceeding. Beger & Co’s Peter Jakobsen acted for the dismissed employee, who was alleged to have hit a fellow employee and subordinate. The employee… Read more »

If you have been thinking about starting a new business, now might be a great time with the introduction of a number of significant small business incentives set out in the Federal Budget for 2015/16 announced on 12 May 2015.   The tax incentives for new business start ups include: Small business tax rate cuts (the 2015/2016 tax… Read more »

In the recent case of Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2), the Court considered whether an employer had taken unlawful adverse action against an employee when he was dismissed for dishonesty after taking sick leave on days previously rejected by his employer. The employee did become… Read more »

Workplace Investigation Confidentiality

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What happens when confidentiality is breached by a support person? When conducting a workplace investigation into alleged employee misconduct, neither the investigator nor participants should speak about the investigation to other employees, including witnesses. Under the unfair dismissal provisions in the Fair Work Act 2009 an employee has the right to a ‘support person’. If an… Read more »

The following sets out some considerations for both employers and employees when considering what constitutes a “harsh, unjust or unreasonable” dismissal. Consideration of unfair dismissal applications is determined according to the principle of “a fair go all round” – Fair Work Act 2009 (“FWA”), s. 381 (2) Section 387 FWA states: “In considering whether it… Read more »

Unfair Employment Contracts

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From time to time, certain States have had laws as to a review of unfair contracts, particularly in an employment setting. These were rarely availed, in part because the difficulty of determining a fairness test, but the national reach of the Fair Work Act 2009 (“the Act”) tackles the issue in another way.  We do not take… Read more »

Mutual Trust and Confidence in the Employment Contract

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In a decision of the Federal Court of Australia on 6 August 2013 (Commonwealth Bank of Australia v Barker [2013] FCAFC 83) the majority stated that an implied contractual term of mutual trust and confidence was part of the law of contract in Australia. A contract is a legal bargain between parties that has various… Read more »

Compensation for Employment Unfair Dismissal

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If an employee is found to have been unfairly dismissed, the Fair Work Act 2009 empowers the Fair Work Commission to award compensation, if reinstatement is inappropriate (as it almost always is) and if compensation is appropriate in the circumstances. The maximum amount is set as the highest amount earned or which the dismissed employee… Read more »

10 Ways to Avoid a Discrimination or Harassment Claim

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Although the Australian Government is considering streamlining Federal legislation in this fertile area, workplaces are, at least at present, subject to: Equal Opportunity Act 1984 (SA); Fair Work Act 1994 (SA); Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth); Sex Discrimination Act 1984 (Cth); Racial Discrimination Act 1975 (Cth); Australian Human Rights Commission… Read more »

Restraints of Trade Too Wide and Too Long

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A fairy floss story: Whizzo had a fairy floss franchise.  It sold its territory in SA and WA to Floyd.  Under the franchise agreement, Floyd agreed not to compete with Whizzo after the end of the franchise period for 10 years anywhere in Australia. At the end of 5 years, Whizzo asked Floyd to renew… Read more »