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.
Following a recent Federal Court decision, a power solutions company was forced to reinstate a senior employee who it had fired three years previously and pay him A$1.1 million in back pay. This case serves as a reminder that employers must be aware of the dangers of unlawfully terminating an employee, particularly given that the employee may be reinstated into their position should it be held that they suffered adverse action.
The Fair Work Commission recently considered whether a Coles employee, whose conduct had been found to breach the chain's code of conduct and equal opportunity policy, had been unfairly dismissed. The commission noted that the #MeToo movement had commenced and gained traction in late 2017 and was likely to have encouraged the initial complainant and other complainants to report the employee's conduct.
The Fair Work Commission recently confirmed that it would be inappropriate to reinstate an employee who had tested positive for Nurofen Plus after failing to declare that he had been taking it, as required by his employer's drug and alcohol policy. The decision highlights that non-compliance with a drug and alcohol policy can be a valid reason for dismissal and that employers must closely consider mitigating circumstances before deciding to dismiss an employee.