JH Briefs is a blog summarising interesting takeaways from recently decided cases.
A worker whose union lawyer filed their unfair dismissal application one minute late while unwell with withdrawal symptoms from quitting smoking has been allowed a rare extension of time due to the extenuating circumstances. Deputy President Dean found the ‘high-risk strategy’ of lodging an application on the last day to be an error on the representative’s behalf and that the employee was entitled to rely on their union lawyer to get their application in on time. The Deputy President added that advice to take the full 21 days to make a decision and file just before the deadline should not be given by the union moving forward.
In a rare decision (made using the dispute resolution provisions of an enterprise agreement), Deputy President Bell considered the principles governing requests for flexible workplace arrangements set out in section 65 of the Fair Work Act 2009 (Cth) and the relevant enterprise agreement. The Deputy President noted that the only basis for refusing a flexible workplace arrangement request was for “reasonable business grounds” and that this inquiry did not require “balancing” the “strengths or weaknesses” of the employee’s request in conjunction with the business needs of the organisation. Rather, the inquiry is concerned solely with the impact of granting the request on the business and if doing so is reasonable – not the basis of the employee request and how worthy such a request might be. As a result, an employee’s ability to dispute a refusal of a flexible work arrangement is confined solely to arguing that accepting such a request would create a negligible impact on the business. The worthiness of an employee’s circumstances that gave rise to the request is only relevant to meet the jurisdictional requirement that allows them to make a flexible workplace arrangement request.
A prominent health organisation has been ordered to pay a high pecuniary penalty of $13,320 for contraventions of the Fair Work Act and the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020. The organisation, which contended that the Court should order no penalty or, in the alternative, a penalty at the lowest end of the range of no more than $1,000, was found to have committed two contraventions related to a failure to pay the employee her wages across two weeks.