Resolve Employment Lawyers

Do your stakeholders have a clear understanding of who the business may need to call to give evidence, and why, in a general protections dispute? In a recent decision of the Federal Court, his Honour Snaden J has helpfully reminded us: [71] …Successful general protections suits sometimes succeed not because there is an evidential basis positively to conclude that adverse action was taken for a reason or reasons proscribed by pt 3-1 of the FW Act; but, rather, because the court is persuaded that, by neglecting to call evidence about the state of mind of someone who is thought to have played some role in taking it, a respondent has failed to rebut the presumption cast against it by s 361(1) of the FW Act. [72] What might or might not suffice as sufficient involvement in the taking of adverse action is not always easy to discern. Rebutting the statutory presumption established by s 361(1) of the FW Act requires that a respondent lead (and that a court accept) evidence as to why adverse action was taken. More accurately, it requires proof of what did not actuate the action in question, which is a task most often discharged by proving what did. In a matter alleging adverse action in contravention of s 340(1) of the FW Act, a respondent must positively establish that an applicant’s possession or exercise of workplace rights did not factor in any substantial or operative way as a reason for its decision to take the action that it took: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 617 (Mason J). The above considerations are a critical part of the risk analysis that needs to be conducted when developing your strategy to deal with a GP dispute. The business needs to have regard, at the outset, to the extent of resources that will need to be expended if an early resolution cannot be reached. If you need help with a general protections dispute, please do not hesitate to reach out to us for an initial consultation. https://lnkd.in/g4yWA6BQ

An article contributed by our Principal, Jason Goyal, has been featured in HR Leader's daily bulletin. https://lnkd.in/guVt_aFU

Are we on the record? 📼 A Full Bench of the Fair Work Commission found that an applicant who reached a settlement agreement during a conference before a member of the Commission cannot apply for permission to appeal the settlement agreement. In a conference before Commissioner Mirabella, to deal with the applicant’s general protections application involving dismissal, the parties agreed to terms of settlement, which were read onto the record by the Commissioner. The Commissioner expressly asked the applicant whether the applicant understood and agreed to the settlement terms, and the applicant responded, “Yes”. The same occurred in respect of the respondent employer. Upon receiving a copy of the written terms of settlement from the chambers of the Commissioner, the applicant did not sign the settlement agreement document, and responded to chambers by advising, amongst other matters, that she: ▪ was reluctant to sign the settlement agreement document; ▪ had felt intimidated at the conference due to her current psychological state and inexperience in the Commission; and ▪ was requesting a further conference to seek a larger compensation sum. In considering the application for permission to appeal the settlement agreement, the Full Bench had regard to the scope of s 604 of the Fair Work Act 2009 (Cth) in that a ‘decision’ of the Commission does not include the outcome of a process carried out pursuant to s 595(2) of the FW Act. The Full Bench found that the settlement agreement that was reached between the parties was the outcome of a process carried out pursuant to s 595(2) of the FW Act (that is, the conference before Commissioner Mirabella), and importantly, it was not a decision of the Commission. Accordingly, the settlement agreement cannot be the subject of an appeal under s 604. If the applicant wishes to propound arguments to contest the enforceability of the settlement agreement (for example, due to incapacity and/or duress), she will need to do so in a court of competent jurisdiction. The decision of the Full Bench highlights the importance of ensuring that the key terms of any settlement agreement reached during a conciliation or conference are read onto the record and confirmed in writing to the parties by the staff conciliator or the chambers of the relevant member of the Commission. If you require advice and/or representation in relation to an application before the Fair Work Commission, please do not hesitate to contact Resolve Employment Lawyers for a free initial consultation.

Our latest Insight takes a closer look at a recent decision of the Fair Work Commission concerning an application by a worker for an order to stop bullying. The decision highlights the importance of ensuring that workplaces have robust systems and controls in place to prevent, investigate, and address inappropriate and unreasonable workplace behaviour. It also provides a useful opportunity to reflect on how workplaces can be proactive in reviewing their existing work systems and processes to ensure managers and their direct reports can benefit from a psychologically safe working environment.

It is far from uncommon that when allegations of misconduct are raised, an implicit pressure can exist for workplace relations practitioners to conduct a workplace investigation into those allegations in an expedited manner.  Relevant stakeholders are eager to be made aware of the relevant investigation findings, take necessary steps to address any findings of workplace misconduct, and return their focus to business as usual. Notwithstanding this pressure, it is vital that workplace relations practitioners conduct, or procure the assistance of a specialist to conduct, a thorough investigation process that will withstand scrutiny and be found to be legally defensible. This Insight shares some practical considerations that workplace relations practitioners can use as a checklist when conducting or overseeing their next workplace investigation. Additionally, employees subject to an investigation process should be cognisant of the matters in this Insight to ensure they are being afforded procedural fairness by their employer. https://lnkd.in/gB65gYsw