Employment law update for employers
Workplace Law is ever-changing whether through decisions of the courts and commissions or changes to the many pieces of State and Federal legislation that regulates the relationship between Employee and Employer. We’ve put together this fortnightly update to assist by giving you easy to understand snapshots of some of the recent changes that affect Employers.
Deferred bonus payments breach Fair Work Act
The Federal Court found in Wollermann v Fortrent Securities Pty Ltd [2025] FCA 103 that a contractual bonus scheme with deferred payment arrangements breached s.323 of the Fair Work Act 2009 (Cth) (FW Act). Specifically, that a contractual term requiring a bonus payment to be deferred for up to seven months and subject to forfeiture if employment ceased during the deferral period, were unlawful because section 323 of the FW Act requires amounts that are payable in relation to performance of work (including incentive-based payments and bonuses) to be paid in full at least monthly.
Employers should review their bonus and incentive arrangements and the wording of the bonus payment clauses, to determine whether their deferral arrangements expose their business to risk implications as a result of this decision (including of underpaid wage claims and civil fines).
Wollermann v Fortrend Securities Pty Ltd [2025] FCA 103
‘Mental Confusion’ raises questions about resignation
The Full Bench of the Fair Work Commission (FWC) has permitted an employee who attempted to revoke a resignation email he sent during a mental health episode a second shot in claiming Hutchinson Ports (employer) unfairly sacked him. The employer had accepted the employee’s resignation sent whilst suffering from ‘paranoid delusions’. The employee later asserted that he did not recall sending the email as he was not ‘thinking straight due to stress’, and that Hutchinson Ports should not have treated his resignation as terminating his employment, rather than clarifying that he genuinely intended to resign.
The FWC upheld the employee’s appeal, quashed the earlier finding the employer had properly accepted his resignation, finding that there is ‘no reason why events occurring after an ostensible resignation cannot be relied upon to establish that a resignation was not voluntary because it was attended by special circumstances’. Further, that the surrounding facts ‘should have placed a reasonable employer on notice that there may have been special circumstances’ relating to the resignation.
Paid agent not promoting efficiency of case
The FWC recently refused leave for an employer to be represented by a paid agent in proceedings before the FWC. The employer had sought to be represented by the paid agent (not a solicitor) in defending a claim by its former sales manager. In considering the application for leave, the FWC noted that after being given four days’ notice of a conference between the parties, the agent asked for an adjournment because of his ‘unavailability’. This request was rejected on the basis that the conference was ‘informal’ and did not require “‘ detailed knowledge of the relevant law or court procedure’. Two hours before the conference was due to begin, the agent advised chambers that the employer would not be attending the conference. Subsequently, a hearing date was set at which the employer sought to be represented by the paid agent.
The FWC found there ‘was no legal complexity’ to the jurisdictional question as to whether the sales manager resigned or was dismissed, , that the agent’s ‘participation in the proceedings had not assisted in enabling the matter to be dealt with more efficiently’. and given both the employer’s owner/managing director and the former employee lacked experience in matters before the FWC, there was no disadvantage to leave to be unrepresented being refused.
It was held that to allow representation would have created unfairness between the parties and therefore leave to be represented was refused.
Mr Nigel Smith v Hawkesford Nominees Pty Ltd [2025] FWC 3473
BHP ordered to reinstate worker at different mine
The FWC has ordered BHP a subsidiary to reinstate and deploy to another mine an unfairly dismissed former employee accused of aggressive behaviour. Specifically, that the employing entity had unfairly dismissed the employee from its Goonyella coal mine, but despite finding the employee had been an ‘aggressive and intimidating’ provocateur during a verbal altercation. In part because the employer failed to consider evidence that a mineworker had provoked the employee and escalated their exchange with his ‘unpleasant comments’.
The FWC ordered the reinstatement despite the employer’s submissions about the absence of vacant positions, employee concerns about his ‘temperamental nature’, and that the former employee could encounter people ‘involved’ in the incident that led to the dismissal. Rather, the FWC found that it would be ‘unfair and inappropriate’ not to reinstate the employee because of the historical disagreements, particularly in circumstances where the issues relied upon to dismiss him were found to be wrongly concluded. The FWC in addition ordered his continuity of employment and period of continuous service be maintained, as well as $35,458.81 compensation.
Mr Karl Mouat v OS MCAP Pty Ltd [2025] FWC 3941 (24 December 2025)
We hope you have enjoyed this fortnight’s employment law news. See you next fortnight!
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