Pub­li­ca­tions

Aug 15, 2018

Resign­ing from your employ­ment — can you with­draw your res­ig­na­tion? — Lat­est developments

In recent times there has been a string of deci­sions from the Fair Work Com­mis­sion direct­ed to whether and in what cir­cum­stances, an employ­ee can assert that a res­ig­na­tion giv­en in the heat of the moment which is with­drawn, may not be relied upon by their employer.  To those fol­low­ing the titan­ic strug­gle…

Aug 7, 2018

The ​“Wein­stein Clause”: What is it? Could it be com­ing to Australia?

What is the ​“Wein­stein Clause”? The dis­turb­ing rev­e­la­tions about Har­vey Wein­stein and oth­er enter­tain­ment lumi­nar­ies have put sex­u­al harass­ment firm­ly on the agen­da, embold­en­ing vic­tims to come for­ward to share expe­ri­ences and pur­sue claims, lead­ing to the rise of the #MeToo and #Time­sUp move­ments inter­na­tion­al­ly, and #NowAus­tralia locally.  The lat­est con­se­quence of…

Aug 1, 2018

Do you have to pay an employ­ee where their own con­duct has pre­vent­ed them from per­form­ing their job?

An employ­er might be for­giv­en for think­ing that where an employ­ee’s con­duct has ren­dered them unable to per­form their role, then there is no oblig­a­tion to pay them wages for the rel­e­vant peri­od of down­time. How­ev­er, this ques­tion is one which is now the sub­ject of a Full Bench deci­sion of…

Jul 26, 2018

Dis­miss­ing employ­ees on grounds of inca­pac­i­ty where the employ­er is alleged to have caused the incapacity

One of the most chal­leng­ing issues employ­ers face is deal­ing with employ­ees who are not well enough to per­form their duties.  There some­times comes a point where – when faced with an employ­ee who has been on an extend­ed peri­od of sick leave — the employ­er con­sid­ers the pos­si­bil­i­ty of ter­mi­nat­ing the employment…

Jul 12, 2018

Every­one lies in their job appli­ca­tions… so can I fire them?

There is a com­mon per­cep­tion that most peo­ple lie in their résumés and job appli­ca­tions. Whether it be the exag­ger­at­ing the senior­i­ty of a role, extend­ing the length of time you actu­al­ly worked in a par­tic­u­lar posi­tion or describ­ing a par­tic­u­lar epoch as ​“time spent trav­el­ling” to avoid dis­clos­ing a short but ill-fat­ed peri­od of…

Jul 9, 2018

The AHRC and Crim­i­nal Record Dis­crim­i­na­tion: A Tooth­less Tiger

The recent AHRC report into dis­crim­i­na­tion in employ­ment on the basis of crim­i­nal record, BE v Sun­corp Group Ltd [2018] AusHRC 121, has gar­nered sig­nif­i­cant media atten­tion and com­mu­ni­ty debate. What it serves to high­light is that the Aus­tralian Human Rights Com­mis­sion (AHRC) is a ​“tooth­less tiger” when it comes to dis­crim­i­na­tion…

Jun 26, 2018

Sala­cious facts, impor­tant principles

The atten­tion an unfair dis­missal case receives is some­times pro­por­tion­ate to how sala­cious the under­ly­ing facts con­sid­ered in the case are as opposed to the impor­tance of any legal prin­ci­ples that emerge. Hav­ing said that, an inter­est­ing fac­tu­al matrix (which some­times results in a ​“tabloid” or ​“click­bait” treat­ment of a case)…

Jun 5, 2018

Break­ing up is hard to do — Com­mu­ni­cat­ing ter­mi­na­tion of employment

HARD CON­VER­SA­TIONS Two of the hard­est con­ver­sa­tions to have with any­one are end­ing a rela­tion­ship and ter­mi­nat­ing employment. On the for­mer, the eti­quette guide Debret­t’s gives this guid­ance on the appro­pri­ate method of communication: “Always meet up with your (soon-to-be-ex) part­ner; email and text are a sav­age and bru­tal mode of rela­tion­ship tor­ture”…

May 8, 2018

“Your employ­ee offend­ed me. What are you going to do about it?”: Employ­ee Social Media Conduct

A Com­plaint is Made It’s hard­ly a start­ing or nov­el obser­va­tion that social media plat­forms like Twit­ter and Face­book are not always exem­plars of cour­te­ous, respect­ful dis­cus­sion and debate. Exchanges can often descend into insults and crude ad hominem attacks. On occa­sion these exchanges will end with one of the par­ties threat­en­ing…

May 7, 2018

Five employ­ment law cas­es that shook the world: #1 Can notice and annu­al leave run together? 

As part of a series of arti­cles we are exam­in­ing five employ­ment law cas­es that shook the world (or at least mem­bers of the Aus­tralian HR community). A mat­ter that fre­quent­ly caus­es con­fu­sion in the sphere of employ­ment law is the inter­play between notice and annu­al leave. For exam­ple, if an employ­ee is…