Leef Independent Living Solutions (Trading) Pty Ltd T/A Leef Independent Living Solutions must deal with a s.372 (Application to deal with other contravention disputes) before Fair Work Deputy President O’Neill Video (using Microsoft Teams) in Melbourne (Mclaren)
February 10, 2023
Applied Medical Australia P/L v Monaghan CASE PROCEDURES – costs – lawyers and paid agents – ss.400A, 611 Fair Work Act 2009 – application for costs orders – related to unsuccessful claim under s.394 for unfair dismissal remedy – worker had been dismissed in connection with their status as an ‘unvaccinated person’ – employer applied for costs order under ss.400A and 611(2) Fair Work Act – order seeks that worker pay some of employer’s costs in defending the unfair dismissal application – Commission may order costs against a party if it is satisfied that an unreasonable act or omission caused the other party to the matter to incur costs (s.400A) – Commission may also order that a person bear some or all the costs if an application is made or responded to vexatiously or without reasonable cause or it should have been reasonably apparent that the application or response had no reasonable prospects of success (s.611) – employer submitted that the unfair dismissal application was vexatious, without reasonable cause and had no prospects of success – whether it is ‘reasonably apparent’ that an application or response to an application has no reasonable prospects of success requires an objective test [Baker] – Commission determined the worker did not act vexatiously in their unfair dismissal application – an application ‘is not without reasonable cause just because it fails or is not accepted’ – Commission held unfair dismissal application was not made without reasonable cause – Commission rejected employer’s argument that the unfair dismissal application had no reasonable prospects for success – application for costs under s.611(2) refused – employer then relied upon s.400A – employer argued that worker failed or refused to discontinue their application numerous times, sought last minute adjournments, failed to comply with Commission directions and was combative during proceedings – argued that worker’s failure to comply with directions constituted an unreasonable omission and caused costs to be incurred by the employer – worker argued that the financial, psychological and personal suffering endured during proceedings should persuade the Commission to refuse the costs order – Commission rejected this and concluded in favour of the employer – application allowed – costs order awarded under s.400A. U2022/7842 [2022] FWC 3263 Gostencnik DP Melbourne 15 December 2022
February 10, 2023
E v Australian Association of Social Workers and Ors ANTI-BULLYING – bullied at work – jurisdiction – ss.789FC, 789FF Fair Work Act 2009 – applicant applied for anti-bullying orders against employer and two individuals – name of applicant and two individuals supressed – applicant is director of first respondent – applicant suggested online comments on respondent’s social media were not properly moderated and that second and third respondent had suggested applicant acted unethically as director or acted against applicant out of factionalism – respondents submit none of the conduct occurred at work, that the conduct was not unreasonable and no risk to applicant’s health and safety – third respondent submitted she had no relationship with applicant and that conduct complained of amounted to a single social media post expressing her personal opinion – Commission may make anti-bullying order if satisfied applicant worker has been bullied at work and that there is a risk the worker will continue to be bullied at work – consideration whether bullied at work – observed modern workplace extends to virtual and online world – observed ‘work-related’ online posts will be considered to have occurred ‘at work’ if the post has a rational connection to the work a worker is required to perform – found applicant’s role did not require her to be involved with social media – held conduct did not occur at work – consideration whether conduct was bullying – found posts complained of expressed genuinely held views of those who disagreed with applicant – found post of third respondent did not contain misinformation – found expressions of a point of view, while potentially confronting or upsetting, does not make those expressions unreasonable – held conduct did not constitute bullying – observed other aspects of bullying complained of were single incidents and not repeated unreasonable behaviour causing a risk to health and safety – consideration whether risk to applicant’s heath and safety – observed mere fact someone may be upset, offended, indignant, or even outraged with views of others does not make those views are unreasonable or establish risk to a person’s mental health or safety – held conduct did not create risk to applicant’s health or safety – consideration whether risk applicant will continue to be bullied at work – observed relevant social media pages had been archived and posed no future risk – observed future risk is remote and hypothetical – held purpose of anti-bullying application is to protect a worker’s health and safety, it no protection is needed no order can be made – concluded applicant not bullied at work and not satisfied there is a risk of future bullying at work – application dismissed. SO2022/479 [2022] FWC 3019 Colman DP Melbourne 15 November 2022
February 10, 2023
TERMINATION OF EMPLOYMENT – contractor or employee – identity of employer – s.394 Fair Work Act 2009 – applicant made unfair dismissal application – applicant asserted that she was employed by respondent (Church of Ubuntu) – respondent raised jurisdictional objection that applicant was an independent contractor engaged by Ubuntu Wellness Clinic (Clinic), a separate entity – Vice President of respondent Church is registered as an individual/sole trader and holds a number of business names, including Ubuntu Wellness Clinic – Vice President is owner/operator of Clinic – on 29 August 2022, Commission dismissed respondent’s objection and found that applicant was employed by respondent and that it dismissed her – on 7 November 2022, Commission issued its reasons for its decision of 29 August – beliefs of respondent Church are that receiving a COVID-19 ‘inoculation’ is contrary to God’s teachings and respondent will not hire anyone as contractor or volunteer who has received an inoculation – it is common ground between the parties that applicant’s contract was terminated because she received a COVID-19 vaccination – principles to be applied in distinguishing between employees and independent contractors involve a multi-factorial test [Hempel] – High Court in Personnel Contracting and Jamsek considered multi-factorial test – where parties have comprehensively committed the terms of their relationship to a written contract and validity of contract is not in dispute, their relationship is characterised by reference to contract, rather than by reviewing the history of their dealings [Personnel Contracting] – but where there is no comprehensive written contract or the validity of the contract is challenged, the multi-factorial test is relevant [Hempel] – no written contract between applicant and Church or Clinic in this case – common ground that contract was verbal – Commission considered the factors that may be applied in a multi-factorial test, as summarised in French Accent – Commission found that applicant: had no control over how her work was performed; did not pursue or generate her own client base; did not work independently – purported requirement that applicant be a member of Church and comply with its belief systems was further evidence of control – no evidence that applicant: had a separate place of work or advertised her services to the world at large; provided any tools or equipment necessary to perform the work; or had the right to delegate or subcontract her work to others – no income tax was deducted from applicant’s remuneration – Commission found that evidence that applicant was responsible for conducting her own taxation affairs indicated an intention by Church/Clinic to engage her as a contractor, but did not establish that she actually was a contractor – applicant did not receive paid holidays or sick leave other than an ex gratia payment when she was absent from work due to surgery – Commission found that ‘While this is an indication of the Applicant being an independent contractor it is equally an indication of casual employment. Alternatively, it may be that the Church/Clinic did not provide the Applicant with NES 12 entitlements’ – applicant did not provide invoices after completion of tasks – applicant created no goodwill or saleable assets for her own business and no evidence that applicant spent any of her remuneration on business expenses associated with any business she was running – Commission found that the relevant indicia weighed overwhelmingly in favour of a finding that she was an employee of Church or Clinic – principles applied to identify which entity employs a person were summarised in Gothard – Commission concluded that Clinic was part of, and controlled by, Church and it followed that applicant was employed by Church – evidence of Vice President of Church established that in her capacity as a sole trader, Vice President paid applicant’s wages – no evidence from Vice President as to whether she owned any assets used to conduct the business of the Clinic – matter will now proceed to a hearing on the merits to determine whether there was a valid reason for applicant’s dismissal and whether dismissal was procedurally fair. Chait v Church of Ubuntu U2021/9704 [2022] FWC 2947 Asbury DP Brisbane 7 November 2022
February 10, 2023
Lockton has appointed Sydney-based Lyle Steffensen to lead its Health & Community Services team across Australia’s east coast in a newly-created role. Most recently Marsh Care Solutions Practices Leader Pacific, Ms Steffensen formerly spent five years at Honan and was once Global Insurance Manager at Sonic Healthcare. She also advised Federal Government agencies on their insurance arrangements. She reports to Lockton Health and Community Services National Manager Ian Maybury, who says Ms Steffensen is highly regarded for her leadership in aged care, primary healthcare, retirement living, disability and faith-based community services.
February 10, 2023
Mental health policy specialist Carolyn Nikoloski has been appointed as the new Chief Executive Officer of Mental Health Australia.
February 10, 2023
Medicines New Zealand welcomes two new Board members in 2023. The first of these is the appointment of Dr Peter Jansen (Ngati Hinerangi, Ngati Raukawa) as Independent Chair of the Board. Dr Jansen has extensive experience in leadership and governance across the New Zealand healthcare system and has also worked in senior pharmaceutical leadership roles both in Aotearoa New Zealand and Australia. Vanessa Eparaima (Raukawa, Ngāti Tūwharetoa, Waikato, Te Arawa) has joined the Medicines New Zealand Board as Te Ao Māori Director. She is committed to enabling consistent improvement across the spectrum of holistic well-being for all people of Aotearoa New Zealand and in particular Māori. Vanessa has experience in governance and leadership across various sectors, including health, social services, environment, education, tourism, and Māori and Iwi economic development.
February 9, 2023
Ramsay Health Care Australia Pty Limited T/A Mt Wilga Private Hospital will face a s.394 (Application for unfair dismissal remedy) in front of Fair Work Commisioner Deputy President Saunders at Level 3, 237 Wharf Road, Newcastle (Johnson)
