ON 26 AUGUST 1920, the High Court of Australia delivered Mallinson v Scottish Australian Investment Co Ltd [1920] HCA 51; (1920) 28 CLR 66 (26 August 1920).
An employee is entitled to recover the moneys payable to him or her under an award, even if there is no independent express agreement regarding those moneys under their employment contract.
Sydney, Australia
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Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 (23 August 1946).
http://www.austlii.edu.au/au/cases/cth/high_ct/72clr435.html
The dismissal of an employee terminates the employment relationship but not the contract of employment. An employer may unilaterally dismiss an employee but if the employee is wrongfully dismissed, he or she may elect to treat the contract of employment as terminated and sue for the damage suffered by the being deprived of his or her right to provide their services in return for earnings.
The employee does not have the right to insist on continuous employment, nor can he or she sue for wages if the service had not been provided. The employees only option is to treat the employer’s conduct as a repudiation and on that basis terminate the contract and sue for damages for wrongful dismissal.
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ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).
http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html
The plaintiff was a pedestrian who was injured when a bike courier collided with him on a footpath. The defendant was the courier company who engaged the cyclist. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.
The High Court allowed an appeal by the cyclist, holding that the cyclist was not an independent contractor because:
The relevant considerations for determining whether or not a person is an independent contractor include:
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ON 6 AUGUST 2013, the Full Court of the Federal Court of Australia delivered Commonwealth Bank of Australia v Barker [2013] FCAFC 83 (6 August 2013).
http://www.austlii.edu.au/au/cases/cth/FCAFC/2013/83.html
Barker was an executive manager in the Adelaide corporate banking section of the Commonwealth Bank. He had a written contract of employment under which the bank could terminate his contract, without cause, with written notice of four weeks.
On 2 March 2009, Barker was handed a letter advising that his position was to be made redundant but it was the bank’s preference to redeploy him and that they would consult with him with regards to his options. His email and intranet access were cancelled immediately and he was made clear his desk, hand in his keys and mobile phone, and told not return to work.
The human resources department of the bank then made a number of unsuccessful attempts to contact Barker by email and mobile phone about another position that would have been suitable to his skill set. They were not aware until 26 March 2009 that Barker no longer had access to his work email or mobile phone. On 9 April he was advised in writing that his employment was terminated due to redundancy, effective from the close of business that day.
Barker commenced proceedings in the Federal Court against the bank for breach of employment contract and damages under s82 of the Trade Practices Act 1972 (Cth). The trial judge, Justice Besanko, found that the bank had been inactive when complying with its policies following notification of redundancy and that this was a serious breach of the implied term of mutual trust and confidence which entitled him to damages.
Besanko J awarded Barker damages of $317,000 for loss of the opportunity to be redeployed to a suitable position within the bank.
On appeal, the Full Court of he Federal Court of Australia was required to consider (1) whether the employment contract contained an implied term and (2) if there was an implied term, the bank’s breach of its policies constituted a serious breach of the relationship of trust and confidence upon which the term arose.
The Full Court majority (Jacobsen and Lander JJ, Jessup J dissenting) were of the view that even though there is no High Court authority on the issue, there is a significant degree of recognition in England and Australia for the Full Court to accept that such implied terms form part of Australian employment contracts.
The Full Court considered that the term operated after the dismissal so that the bank was required to take active steps to consult with Barker about the alternative available positions and allow him the opportunity to apply.
The Full Court consider the banks’ failure to contact Barker was unreasonable and constituted a breach of the implied term of mutual trust and confidence.
The bank has appealed to the High Court of Australia on the grounds that (1) Full Court made an error in holding that the common law of Australia contains an implied term based on a relationship of mutual trust and confidence and (2) that the Full Court made an error in finding that the implied term required the bank to consult with Barker about his redeployment options.
The decision has since been overturned by the High Court of Australia.
Sydney, Australia
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ON 1 AUGUST 1984, the Commonwealth Sex Discrimination Act 1984 commenced.
http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/
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Saaghy v Bunnings Group Ltd (Civil Claims) [2014] VCAT 951 (29 July 2014)
Sydney, Australia
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ON 26 JULY 1909, the House of Lords delivered Addis v Gramophone Co Ltd [1909] UKHL 1, [1909] AC 488.
http://www.bailii.org/uk/cases/UKHL/1909/1.html
The decision is notable for establishing the general principle that damages for breach of contract do not cover injured feelings, mental anxiety, distress, anguish or frustration.
In cases of wrongful or unfair dismissal, damages are limited to lost earnings during the period of notice and are not to compensate the manner of dismissal; loss of reputation; difficulty of finding other employment; or injured feelings, mental anxiety, distress, anguish or frustration.
Damages for breach of contract are compensatory and the court may not award exemplary damages.
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ON 23 JULY 2014, the Full Court of the Federal Court of Australia delivered Australian Postal Corporation v D’Rozario [2014] FCAFC 89 (23 July 2014).
http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/89.html
Three Australia Post employees were dismissed for sending pornographic material by email from their work email addresses to others including work colleagues.
The employees took their matters to the Fair Work Commission, seeking reinstatement on the basis that their termination was “harsh, unjust and unreasonable”. At first instance, the Fair Work Commission dismissed the applications of two of the workers and ordered that the third receive compensation but not reinstatement.
The workers appealed to the Full Bench of the Fair Work Commission, who ordered reinstatement in all three cases on public interest grounds.
Australia Post appealed the Commission’s decision to the Full Court of the Federal Court of Australia. The Full Court found that there was no appellable error with the Full Bench’s decision with respect to the first two workers and dismissed their appeals. The Full Court quashed the decision of the Full Bench with respect to the third worker on the grounds that the Full Bench failed to consider whether or not it was in the public interest to allow the appeal.
Sydney, Australia
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ON 1 JULY 2014, the Fair Work Commission launched an updated pro bono program in Melbourne. Unrepresented parties in unfair dismissal jurisdictional objection matters will be provided with a free session with a volunteer lawyer in the weeks before their hearing.
Sydney, Australia
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ON 22 JUNE 2012, the Full Bench of Fair Work Australia delivered its final orders in the Equal Remuneration Case [2012] FWAFB 5184 (22 June 2012).
http://www.austlii.edu.au/au/cases/cth/FWAFB/2012/5184.html
Workers in the social, community and disability services industries received an increase in their rates of pay at the commission had determined that such employees were comparatively underpaid.
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