JH Briefs

JH Briefs is a blog summarising interesting takeaways from cases decided in the past week.

Dolevski & Ors -v- Virgin Australia Airlines Pty Ltd [2022] FWC 903

https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwc903.htm

Underpins the ‘extreme caution’ the Fair Work Commission will take in general protections matters involving dismissal when issuing a certificate stating that an application would have no reasonable prospects of success pursuant to section 368(3)(b) of the Fair Work Act 2009 (Cth) – this even so where the application was ‘poorly drafted’ and did not ‘strongly connect the asserted adverse action of dismissal with the rights they held’ (see paragraphs [19] to [28]).

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

https://eresources.hcourt.gov.au/showCase/2022/HCA/13

The statutory maximum penalty that can be awarded pursuant to section 546 of the Fair Work Act 2009 (Cth) should not be ‘reserved exclusively for the worst category of contravening conduct’, as was often previously considered to be the case (see paragraph [49]).

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia -v- Ausgrid Management Pty Ltd [2022] FWC 963

https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwc963.htm 

Emphasises the importance of understanding “common practices” within the workplace which might differ from written policies and procedures (see paragraphs [86] – [95]) – employers should ensure complacency and bad habits do not creep in, particular with managerial employees.

Mr Alexander James Marriott -v- Baptcare Limited [2022] FWC 300

https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwc300.htm

A rare example of a successful unfair dismissal case for an employee who was unvaccinated – emphasises the importance of ensuring clear directions and not acting “prematurely” (see [41])