Recent cases in labour law — June 2019

Welcome to recent cases in labour law — June 2019:

  • The Federal Court of Australia (Wheelahan J) has declined to transfer a proceeding involving, among other things, an alleged denial of reasonable notice of termination, holding that the issue of whether or not a term of reasonable notice can be implied into a contract of employment, in circumstances where section 117 of the Fair Work Act 2009 (Cth) applies to the employment contract, has yet to be squarely determined by a superior court (at [13]). (Munaretti v ASC Fountain Gate [2019] FCA 949)
  • The Full Bench of the Fair Work Commission (Deputy President Sams; Deputy President Gostencnik; Commissioner McKinnon) has upheld an appeal from a Fair Work Commission, holding that the Commission below had erred when it had “automatically” excluded evidence it had deemed to be unlawfully or improperly obtained (at [46]-[47]). The Full Bench acknowledged that, whilst the rules of evidence did not strictly apply to proceedings before the Commission (at [48]), the proper approach to be taken to admitting, or refusing to admit, such evidence should be to consider the relevant factors prescribed under section 138 of the Evidence Act 1995 (Cth) (which relevantly deals with the exclusion of unlawfully or improperly obtained evidence) (at [50]-[53]). (Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch [2019] FWCFB 4258)
  • The Federal Court of Australia (Abraham J) has ordered that a dismissed employee file and serve an affidavit disclosing the “name, location and contact details of any medical, hospital or health provider [the employee] has attended in the last five years” to permit his former employer to issue subpoenas to such persons for the purposes of obtain additional evidence about the employee’s medical history prior to, and during, the course of his employment. Relevantly, the Court held that the employer had a legitimate forensic purpose in seeking such evidence, as it was part of the employer’s case that its former employee had been dishonest in completing a pre-employment health questionnaire (at [19]-[20]) and that such evidence could bear upon, among other things, the employee’s credibility (at [24]) and the appropriateness of ordering the employee be reinstated to his former position (at [26]). (Australian Rail, Tram and Bus Industry Union v Metro Trains Sydney Pty Ltd [2019] FCA 1008)
  • The Federal Court of Australia (McKerracher J) has usefully summarised the principles relevant to whether or not a Court will be satisfied that a party “has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”, thereby justifying an order for summary judgment, pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (Cth) (at [23]). (Zaghloul v Woodside Energy Limited (No 7) [2019] FCA 818)

Monthly bulletin of Australian labour law cases