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14.01.2022 One of the grounds on which employers cannot take adverse action against an employee or prospective employee is race. in Phillip v New South Wales adverse action on the basis of race was not found. In this case, the potential employee applied for a job to be trained as a police officer. After two telephone interviews the applicant was assessed as having poor English communication skills. Interviewers also made a file note indicating that he had an accent, was difficult to und...erstand, and had become agitated in the second interview. His application for admission was rejected on the grounds that he failed to meet the minimum English communication standards, and his bad attitude. The applicant argued that he was denied employment in the training course because of his ethnic origin, because his accent was related to his ethnic origin. The court held that the decision not to employ the applicant was not because of his race or ethnic origin. Instead, it was because of his failure to demonstrate adequate English communication skills, and the aggressive attitude he displayed during his phone interviews. No discrimination was found and the application was dismissed. The case shows that for a person to make a general protections claim based on racial discrimination, there must be a significant connection between the person’s race or ethnic origin and the adverse action claimed. The adverse action must be taken because of the employee, or prospective employee’s, race or ethnicity.

12.01.2022 Unfair dismissal and Employee Pornography Use In a recent decision, the Fair Work Commission found that an employee had been unfairly dismissed after he used his employer’s work computer equipment to access pornography during work hours. The employee was a general insurance manager at an insurance broking firm. He had worked at the firm for just over a year. When he was dismissed, his employer alleged that his work performance was poor, and that he had been given previous wri...tten warnings. Read more at http://ow.ly/eDcD30bUdAE

11.01.2022 General Protections Claims on the Grounds of Disability One of the grounds on which employees can make a general protections claim is on the basis of disability. A general protections claim can be made where an employee has a reasonable belief that adverse action has been taken against them for a variety of reasons, disability being one of them. Adverse action can include dismissing the employee. Read more at http://ow.ly/Yzmh30bUdLS

03.01.2022 Can an employee be dismissed over an offensive social media post? In this day and age social media is ubiquitous. In recent times, the courts have had to deal with social media’s influence, particularly in the workplace. In the case of Somogyi, an employee posted an offensive comment on Facebook that related to management at the employee’s workplace. ... The post read ‘I don’t have time for peoples arrogance. And your (sic) not always right. Your position is useless; you don’t do anything all day. How much of the bosses xxxx did you suck to get where you are?’. The employee was terminated from his employment without any notification of the reason why he was fired. The employee then brought an unfair dismissal claim against his employer. The Commission found that although the employees post was offensive, the employer had no valid reason to terminated the employee’s employment. The Commission stated that this was because there was not enough evidence to show that the employee actually did make the post during work hours, and not during his break. The fact that the worker was not informed of the social media policy also supported the Commissions finding that the dismissal was unfair. The Commission highlighted that if employers are to have policies it is important that employees are made aware of them. The employee was awarded $6,000 in compensation.

03.01.2022 In Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal v Jodie Goodall (2016), the employee was originally dismissed for making anti-Muslim remarks and sexually explicit comments over a two-way radio system, which many employees at the site heard. The employee commenced an unfair dismissal claim. The Commission decided that the employee’s comments were at the lower end of the scale of seriousness, and that fatigue was a contributing factor to his comments. The employee succeed in the claim and the Commission reinstated the employee to their previous position.