Welcome to the first edition of the Holman Webb Workplace Relations Bulletin December 2014.

In Byrne v People Resourcing (Qld) Pty Ltd & Anor [2014] QSC (Byrne), Carmody CJ held that WorkCover Queensland (WorkCover) was required to indemnify the plaintiff’s employer, People Resourcing (Qld) Pty Ltd (PRQ) a labour hire company in relation to a contractual indemnity that PRQ had provided to one of its clients/host employers, Thiess John Holland (TJH).

On 23 October 2014 the Federal Court of Australia handed down a decision that dealt with the downloading of software by an employee immediately before his departure from that firm and his taking up employment with a competitor.

Despite the court’s finding that the employee received no material benefit from use of the information, and his new employer had no access to the information, significant monetary compensation was payable by the employee.  The facts are as follows.

Despite what some might call ‘hysteria’ that prevailed at the time of the introduction of the anti-bullying laws and the expectation of the Fair Work Commission (the Commission) that it may receive some 3,500 bullying related applications per month the reality is that far fewer complaints of bullying have been received by the Commission and it has not stopped employees resorting to other avenues of redress such as workers compensation and adverse action. These other avenues are likely to be more attractive as a potential financial remedy is available.

The High Court has unanimously held that there is no implied term of mutual trust and confidence in Australian employment contracts.

In August 2013, a majority of a full court of the Federal Court found that all Australian employment contracts had an implied term of mutual trust and confidence.  Specifically, the Court held that an employer had breached the implied term of mutual trust and confidence, when it made an executive manager redundant for failure to consider redeployment opportunities in accordance with its policies. 

A recent SA District Court defamation case has raised some interesting OHS concerns (Tassone v Kirkham). Both Mr Tassone and Mr Kirkham were prison officers. The case concerned a work email that was purportedly sent by Mr Tassone to his workplace colleagues stating: “Hello people, just a note to say that I am homosexual and I am looking for like minded people to share time with.” 

Mr Kirkham, after making the admission that he actually sent the email, sought to retract this confession. He then argued that the email had been clearly communicated in jest and that there was no damage done as a consequence to Mr Tassone’s character or reputation.

Two recent judgments of the Full Federal Court and Federal Circuit Court have resulted in awards of significant damages to employees in cases involving claims of sexual harassment, discrimination and adverse action (Richardson v Oracle Corporation Australia Pty Ltd; Sagona v R & C Piccoli).

Who is an employee?

An employee performs work under the ‘control’ of another person in exchange for payment for the services he or she provides. A contract of employment may be express or implied, oral or in writing, but preferably in writing.

A decision of the Industrial Court of NSW has reiterated the need for labour hire employers to take a proactive approach to ensuring the safety of workers when lent on assignment to host employers (Inspector McGrath v Edmen Recruitment Pty Ltd [2012] NSWIRComm 108).  

Tim Trezise recently presented a paper at the Employment Law Essentials seminar at the New South Wales Law Society. The paper canvassed the growing issue of the standard of proof required to make defensible findings in workplace investigations. This has become a hot topic following a recent case that significantly broadened the scope of the level of proof required in such endeavours.