Recent cases in labour law — September 2023

Welcome to recent cases in labour law — September 2023:

• The Full Bench of the Fair Work Commission (Deputy President Saunders; Deputy President Cross; Deputy President Grayson) has held that, where an employee raises the issue of self-defence in unfair dismissal proceedings in support of the assertion that their employer lacked a valid reason to dismiss them, the common law test of self-defence applies, observing that the common law test requires the employee to prove that they subjectively believed their conduct was necessary in the circumstances and that they had reasonable grounds for their belief (irrespective of the employee’s subjective perception of the circumstances) (at [28)-[31]). In so doing, the Full Bench also observed that, though the legal concept of an onus or burden of proof is “somewhat vexed”, an employer, for practical purposes, “bears the evidentiary onus to call evidence to establish the misconduct on which it relies” (at [21]-[22]). (NSW Trains T/A Nsw Trainlink v Wael Al-Buseri [2023] FWCFB 165)
• The Federal Court of Australia (Kennett J) has held that a worker lacks standing to seek a declaration that the worker is or is not an “employee” for the purposes of section 12 of the Superannuation Guarantee Charge Act 1992 (Cth) (at [42]-[43]). (Chiodo v Silk Contract Logistics [2023] FCA 1047)
• The Supreme Court of New South Wales (McGrath J) has helpfully summarised the legal principles relevant to determining the validity or not of a “non-compete” restraint of trade clause in an employment contract (at [74]). (Pellet Experts Pty Ltd v Smith [2023] NSWSC 1170)
• The Federal Court of Australia (Abraham J) has helpfully summarised the legal principles relevant to whether or not a document is the subject of legal professional privilege (at [7]-[14]) and the legal principles relevant to whether or not such privilege has been waived (at [15]-[21]). (Diawara v National Australia Bank Limited [2023] FCA 1048)
• The Supreme Court of New South Wales (Henry J) has usefully summarised the legal principles relevant to ascertaining the terms of an informal contract or oral contract (at [300]-[305]). (Milicevic & Anor v Ferrari East Pty Ltd & Ors (No 3) [2023] NSWSC 1116)
• The New South Wales District Court (Scotting DCJ) has usefully summarised the case authorities that hold that a duty holder under the Work Health Safety Act 2011 (NSW) must have regard not only to the ideal worker, but also a worker who is “careless, inattentive and inadvertent” (at [212]-[216]). (SafeWork NSW v JBS Australia Pty Ltd [2023] NSWDC 382)
• The Federal Court of Australia (Snaden J) has usefully summarised some of the case authorities that have applied the “major and substantial employment test” to be applied when determining if an employee falls within the classification of a particular industrial award or industrial instrument (at [62]-[64]). (Michael v Network Ten Pty Limited [2023] FCA 1091)
• The Full Court of the Federal Court of Australia (Lee J; Button J; Jackman J) has observed that difficulties can arise where a witness is required to give evidence in chief, as opposed to evidence by affidavit, particularly where the witness is “inarticulate, nervous, or poorly educated” (at [24] (Lee J)) and that the requirement imposed on a witness to give evidence in chief can “place a less educated and articulate witness at a substantial disadvantage” (at [278] (Jackman J)). (Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156)