Latest news in the workplace

Posted July 24, 2023

What’s new this fortnight?

Labour hire operator fined $106K for inadvertent clerical oversight

A labour hire operator has been fined $106,430.63 by the Federal Circuit and Family Court (Court) after finding the employer underpaid staff nearly $50,000 between 2018 to 2020. The Court found the underpayments were a result of the employer’s failure to pay some employees penalty rates, and for charging staff for accommodation and airport shuttles that exceeded the costs to the employer, which ‘to that extent were not principally for the Employee’s benefit’.

While the Court ordered the over $106,000 fines despite accepting that the contraventions were unintentional, were caused by ‘a lack of proper administrative/clerical oversight’, and that the company was no longer trading and was unlikely to reoffend. The Court also considered that while the contraventions related to vulnerable and low paid workers, the employer had cooperated throughout investigations and was appropriately remorseful.

Employers are reminded that even unintentional breaches can attract significant penalties.

FairWork Ombudsman v NQ Powertrain [2023] FedCFamC2G 572 (30 June 2023)

FWC finds employee unfairly dismissed despite heated resignation

The Fair Work Commission (FWC) has awarded an employee $4,402.90 compensation for unfair dismissal despite finding the employee told the employer ‘that he intended to quit his job’. This occurred after a heated conversation with the employee’s supervisor, ‘during a highly emotional discussion’. However, the FWC found that ‘where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise’. employers ‘may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended’.

The employer had not enquired as to whether the employee intended to formally resign, and found that although the employee’s ‘conduct, performance and attitude on the day in question was not appropriate, his dismissal was disproportionate and harsh’.

TaoYang v SAL HR Services Pty Ltd [2023] FWC 1325

Worker that competed in Spartan race while on workers compensation restrictions denied extension of time for unfair dismissal application

The FWC has denied a casual ski instructor an extension of time to apply for unfair dismissal, after being advised he would not be offered a new season’s contract upon learning he had competed in the Trifecta Spartan race, despite being on Work Cover for his work related injury at the time.

While the instructor had received correspondence in October2022 advising ‘We are super excited to welcome you back for another great season in 2023’, the employer discovered he had competed in a race in February2023. He was then advised he would not be offered employment the next season because he ‘had dishonestly participated in the race outside of his certified Work Cover restrictions’.

The employee claimed he was dismissed when he received the notice from his employer. However, the FWC found that he had been employed under a contract for the prior season, and that his employment had actually ended after being taken off the roster four days before completion of that seasonal contract in September 2022. On that basis, there was no dismissal in February2023.

The FWC also acknowledged that had the instructor not beeninjured and ‘continued to work until… all winter operations finally ceased’,his employment would have terminated upon conclusion of the seasonal contract.

IsaacHoward v Falls Creek Ski Lifts Pty Ltd [2023] FWC 1317 (7 June 2023)

We hope you have enjoyed this fortnight’s employment lawnews. See you next fortnight!

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We hope you have enjoyed this fortnight’s employment law news. See you next fortnight!

OWL Team