Recent cases in labour law — October 2023

Welcome to recent cases in labour law — October 2023:

• The Full Court of Federal Court of Australia (Rares ACJ; Katzmann J; Colvin J) has held that, in respect of damages in contract law for repudiation of a contract of employment, the burden of proving that an employee was unable to work and thus earn income rested with the employer on the basis that those matters fell within the employer’s general burden to prove the employee had failed to mitigate their loss (at [223]-[232]). (Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163)
• The New South Wales Court of Criminal Appeal (Beech-Jones CJ at CL; Walton J; McNaughton J) has held that, in a prosecution involving a failure to comply with a health and safety duty under the Work Health and Safety Act 2011 (NSW), such a duty is contravened where there is a failure to take particularised measures to prevent an identifiable risk eventuating (at [164]-[172] and [177]). (Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261)
• The Federal Court of Australia (Abraham J) has helpfully summarised the case law regarding “reasonable adjustments” under section 5(2) of the Disability Discrimination Act 1992 (Cth), observing that a reasonable adjustment is an “an alteration ‘for’ the person, “which operates on the person’s ability to do the work she or he is employed or appointed to do” but does not require an adjustment to the particular work she was required to perform or the position that the person occupies”” and also must be “sufficiently identifiable as to enable the employer and, if required, the Court to determine whether making the adjustment will impose unjustifiable hardship on it, within the meaning of the DD Act” (at [15]-[16]). (Gordon v St Vincent’s Hospital Sydney Limited [2023] FCA 1188)
• The Federal Court of Australia (Katzmann J) has held that actions that caused feelings of embarrassment, offence, humiliation and distress constituted “detriments” within the meaning of section 94 of the Sex Discrimination Act 1984 (Cth) (at [449]-[450]). Further, the Court also usefully summarised the legal principles governing the definition of “sexual harassment” under section 28A of the Sex Discrimination Act 1984 (Cth) (at [43]-[53]). (Taylor v August and Pemberton Pty Ltd [2023] FCA 1313)
• The New South Wales District Court (Russell SC DCJ) has held that, in the context of sentencing a defendant in respect of a prosecution under the Work Health and Safety Act 2011 (NSW), has usefully summarised the legal principles relevant to determining if a defendant’s conduct in fact caused the death of a person (at [26] and [39]). Further, the Court also hellpfully summarised the principles applicable to the discount to be provided for a guilty plea in such proceedings (at [92]). (SafeWork NSW v BSA Limited (№3) [2023] NSWDC 417)
• The Full Court of Federal Court of Australia (Katzmann, Snaden, and Raper JJ) has held that a judgment that deals with the liability of a respondent for contraventions of the Fair Work Act 2009 (Cth), separated from the relief to be granted to the applicant, is an interlocutory judgment for the purposes of section 24(1A) of the Federal Court of Australia Act 1976 (Cth) and, as such, requires leave to appeal (at [27]-[46]). (Monash Health v Singh [2023] FCAFC 166)
• The New South Wales District Court (Adronos SC DCJ) has helpfully summarised the legal elements required to establish a claim on the basis of the common law count of money had and received, in circumstances where a plaintiff employer sought to recover the monies of the employer that the defendant employee had advanced to themselves ([132]-[150]). (Australia Successful Holdings Pty Limited v Shen; Shen v Australia Successful Holdings Pty Limited [2023] NSWDC 440)
• The Fair Work Commission (Deputy President Easton) has held that the redundancy of an employee’s job, for the purposes of section 389(1)(a) of the Fair Work Act 2009 (Cth), is a reference to “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at [127]), and that the test to be applied is not whether the functions or duties of the “job” continue, but whether or not the “job” itself survives (at [136]). In so doing, the Commission observed that the dismissal of an office assistant/administrator was a genuine redundancy within the meaning of section 389(1)(a) of the Fair Work Act 2009 (Cth) in circumstances where the employer’s decision was made to meet strategic goals (at [160]). (David Kelly v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2023] FWC 2669)
• The Federal Court of Australia (Thomas J) has held that the a worker has standing to seek a declaration regarding their own status under section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (at [248]-[252]). Further, the Court also held that, by reason of section 79 of the Judiciary Act 1903 (Cth), it has jurisdiction to deal with claims for unpaid long service leave under the Long Service Leave Act 2018 (Vic) (at [284]-[285]). (Scarati v Republic of Italy [2023] FCA 1264)
• The Full Bench of the Fair Work Commission (Vice President Asbury, Deputy President O’Neill, Commissioner Bissett) has usefully summarised the legal principles regarding when an employee’s “out of hours” conduct will touch sufficiently on their employment so as to give rise to a valid reason for dismissal for the purposes of section 387(a) of the Fair Work Act 2009 (Cth) (at [90]-[101]). (Ventia Australia Pty Ltd v Martin Pelly [2023] FWCFB 201)
• The Federal Court of Australia (Wheelahan J) has usefully summarised the key principles regarding the imposition of civil penalties as essayed by the joint judgment in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (at [13]). (Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781)
• The New South Wales Civil and Administrative Tribunal (Senior Member M Tibbey and General Member J Herberte) has usefully summarised the legal principles relevant to a claim of racial discrimination under section 7 of the Anti-Discrimination Act 1977 (NSW) (at [22]-[31]) and the legal principles relevant a claim for victimisation under section 50 of the Anti-Discrimination Act 1977 (NSW)(at [32]-[35]). (Ferguson v Shoalhaven City Council [2023] NSWCATAD 276)
• The Federal Circuit and Family Court of Australia (Division 2) (Judge Given) has helpfully summarised some of the features comprising a solicitor’s duty of formality before the Court (at [9]-[20]). (Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949)