Does an employee have to be consulted, in accordance with an applicable industrial instrument, about their impending termination? According to a recent decision by the Fair Work Commission, the answer is not necessarily. The decision highlights that there are certain circumstances where an employer may be safe from an unfair dismissal claim if it proceeds to termination without consulting the employee. However, these situations are highly exceptional and should be approached with caution.
The Fair Work Ombudsman recently released advice that all permanent employees are entitled to 10 days of paid personal/carer's leave for each year of their employment. This is a major departure from calculating personal/carer's leave entitlements in hours, which is the approach currently taken by most employers and employees. However, the ombudsman's advice is based on a recent court decision which may not stand.
The Federal Court recently upheld an employee's dismissal, which had occurred after he criticised his law firm's clients in an opinion piece in two newspapers. While the court's decision is not a green light for employers to terminate employees who express political views, it is a reminder for employers and employees that a failure to follow a lawful and reasonable direction may justify termination of employment (depending on the circumstances of the case).
The Full Bench of the Fair Work Commission recently found that the direction given to an employee regarding the solicitation and collection of his biometric data was unlawful because it was inconsistent with the Privacy Act. The decision is a reminder to employers that directions to employees must be lawful and reasonable. If not, dismissal of an employee for failing to follow such direction will likely be unfair.
A recent Full Court of the Federal Court decision is significant in shedding light on what constitutes 'industrial action' as defined in Section 19(1) of the Fair Work Act. Specifically, the decision establishes that industrial action can be taken only by parties to an employment relationship. It also highlights that, under the Fair Work Act, industrial action does not capture instances where a subcontractor's employees down tools on site with the support of their direct employer.