Employment Practices Liability Employment Practices Liability

Matter Examples

Employment Practices Liability

CONTRACTOR

We acted for an insured contractor facing a general protections claim brought under the Fair Work Act 2009 (Cth) by a former employee.

After investigating the facts of the case and concluding that the contractor had a liability exposure, we recommended that they seek a negotiated resolution.

As a result, we ensured that a favourable settlement was achieved at an early stage. This meant that we avoided ‘full-blown’ proceedings in the Federal Court. Our strategy saved the insurer the costs that would have resulted from further investigations, as well as the expense of defending the matter in court.

 

GENERAL PROTECTIONS

We acted for a local government authority facing a general protections application brought by an existing council employee in the Fair Work Commission.

The employee alleged that the council’s direction that they participate in a performance improvement plan (PIP) constituted unlawful adverse action. More specifically, the employee claimed the PIP was a sham designed to get rid of them because of various complaints they had made about their employment. As a result, the employee claimed that this conduct was in breach of the general protections provisions of the Fair Work Act 2009 (Cth) and sought orders for the PIP to cease.

In preparing the council’s response to the application, we argued that its conduct constituted reasonable management action and that it was acting as a reasonable employer in accordance with its obligations under the relevant enterprise agreement, as well as under work health and safety legislation.

We also denied that the decision to performance manage the employee was in any way related to the employee’s complaints about their employment, which the council had adequately investigated and addressed.

At the conciliation conference, we negotiated a favourable settlement for our client in terms of which the employee would participate in an informal PIP for an agreed period. After that time, the council could proceed with a formal PIP if it considered that the employee’s performance and conduct had not improved to the requisite level.

No money was paid to the employee as part of that settlement.

 

NOT-FOR-PROFIT ORGANISATION

 We acted for an insured not-for-profit organisation facing an unfair dismissal claim brought by a former employed solicitor under the Fair Work Act 2009 (Cth).

We quickly formed the view that the solicitor’s claim lacked merit.

When the solicitor refused to resolve the claim on acceptable terms, we successfully defended the claim in the Fair Work Commission.

At that point, the solicitor appealed to the full bench of the Fair Work Commission. Once again, we successfully defended the claim.

 

UNFAIR DISMISSAL

We acted for a not-for-profit aged-care facility where an employee had lodged an application with the Fair Work Commission alleging that they had been unfairly dismissed.

The employee had been employed as a carer and had worked for the facility for 16 years. They were dismissed for using inappropriate language in the presence of residents. The employee had previously been advised of the importance of complying with the employer’s policies regarding appropriate conduct in the workplace, and warned that they faced dismissal if they did not comply with those policies.

The employee alleged that, when it became clear that the employer was about to dismiss them, a union representative had encouraged them to resign. The employee claimed that they had felt forced to resign and that this amounted to constructive dismissal.

We challenged the employee’s unfair dismissal application by arguing that the employer had issued the employee with clear warnings regarding complying with its policies and code of conduct. In addition, we argued that this process followed due process, and that the employee was granted natural justice. Finally, we claimed that the dismissal was not harsh, unjust or unreasonable.

In addition, we included a jurisdictional objection and submitted two possible interpretations of the events that had occurred. First, the termination of employment was not at the employer’s initiative because the employee resigned voluntarily. Second, the parties had agreed to a mutual separation.

This matter was settled at the conciliation conference stage, with the employee receiving a nominal payment equivalent to their entitlement to pay in lieu of notice.

 

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