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A Full Bench of the New South Wales Industrial Relations Commission has held it was unfair to summarily dismiss an employee who took a photograph of a naked child without parental consent.
While it was inappropriate for the hospital orderly to take the photograph and a breach of his employment contract, it did not involve any sexual or other improper motive and did not cause any harm to the child. Accordingly, it did not constitute repudiation or strike at the heart of his employment contract. It followed that the employee’s actions did not justify summary dismissal.
The Commission ordered that he be reinstated to his position with back pay to the date of termination. This was on the condition that the employee immediately resign, because the hospital had lost trust and confidence in him.
This is a controversial decision. Regardless of whether it is right or wrong, the case illustrates the difficulty in establishing grounds for summary dismissal.
Casari v Sydney South West Area Health Service [2009] NSWIRComm 103
Author
Sean Selleck, Special Counsel
The Australian Industrial Relations Commission has confirmed periods of casual work do not generally count in calculating an employee’s continuous service.
Several employees of La Trobe University had commenced on a casual basis before becoming permanent employees. They sought to have their casual employment recognised for purposes of long service leave and redundancy payments.
Among other things, the Commission had to consider the meaning of the term “continuous service” in the Agreement to determine the employees’ entitlements. The term was undefined. The Commission held, in the absence of a definition to the contrary, “continuous service” excludes casual employment, because casuals are employed on a “series of contracts or engagements”.
National Tertiary Education Industry Union v La Trobe University [2009] AIRC 576
Author
Annamarie Rooding, Senior Associate
A number of significant changes to the Disability Discrimination Act 1992 (Cth) commence on 5 August 2009.
The amendments clarify that employers have a positive duty to make reasonable adjustments for people with a disability. They also shift the burden of proof for indirect discrimination matters, so that an employer must prove the reasonableness of a discriminatory requirement or condition it imposes.
Changes favourable to employers include an expansion of the circumstances in which the defences of “inherent requirements” and “unjustifiable hardship” are available. These defences allow employers to demonstrate the person with the disability is unable to perform the inherent requirements of the job, or that it would cause unjustifiable hardship to act in a non-discriminatory manner.
The Age Discrimination Act 2004 (Cth) has also been amended. An act will now be discriminatory if “one of the reasons” for the act was the employee’s age, even if it is not a dominant or substantial reason. This amendment also commences on 5 August 2009.
Author
David Glasgow, Solicitor
- In its final wage-setting determination, the Australian Fair Pay Commission has decided to maintain minimum wages at their current level of $14.31 per hour. The full decision is available here.
- Fair Work Australia has handed down its first decisions since replacing the Australian Industrial Relations Commission. It has authorised industrial action under the Fair Work Act 2009 (Cth) that had been authorised under the previous Workplace Relations Act 1996 (Cth), and has ordered an employer to stop a lock-out of its employees, on the basis that no industrial action had occurred since 1 July 2009 to which the employer could lawfully respond.
- The Victorian Workers’ Wages Protection Act 2007 (Vic) has been repealed. This means deductions from employees’ wages in Victoria will now be governed by the Fair Work Act 2009 (Cth).