Posts: Federal Circuit and Family Court of Australia

When implementing redundancies, it is critical that the process for selecting employees for redundancy is a transparent and objective one. A skills matrix can assist employers in this regard by creating clear and objective criteria against which employees are to be assessed.

Last year, the Federal Circuit and Family Court of Australia found a HR Manager to be accessorily liable for his involvement in an employer’s unlawful adverse action against an employee after she proposed to exercise a workplace right, being her ability to initiate proceedings under a workplace law.

Earlier this year the Federal Circuit and Family Court of Australia in Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 430 found that an employer breached the Fair Work Act 2009 (Cth) by taking adverse action against an employee who had been diagnosed with silicosis.

As part of any redundancy process requiring a selection of employees, it is critical that employers consider only matters that are objectively related to an employee in their role and not any of the prohibited reasons under the Fair Work Act 2009 (Cth).

The Fair Work Act 2009 (Cth) prohibits employers from dismissing an employee from their employment because they have exercised a workplace right or because of a discriminatory reason, such as physical or mental disability.

The Fair Work Act 2009 (Cth) contains provisions which make it possible for individuals to be found accessorily liable for their involvement in a contravention of a workplace law. In particular, section 550 of the FW Act provides that a person “involved in” a contravention will be taken to have contravened that provision themselves.

Under the Fair Work Act 2009 (Cth), the Federal Circuit and Family Court of Australia (Division 2) is able to determine certain underpayment disputes as “small claims proceedings”.

Under the Fair Work Act 2009 (Cth), employers are prohibited from requesting or requiring full-time employees to work more than 38 hours per week, unless those additional hours are reasonable.

Medical examinations are often used by employers to assess the fitness and capacity of employees, particularly when the employee is returning to work after a non-work-related injury. Issues may arise when employees refuse to attend medical examinations.

A recent decision of the Federal Circuit and Family Court of Australia has reaffirmed the standard of proof that is required to disprove allegations of unlawful adverse action under the Fair Work Act 2009 (Cth).