It is generally accepted that the common law will imply a term of “reasonable notice” into a contract of employment which makes no provision for termination notice.  However, this general rule was displaced by the case of Brennan v Kangaroo Island Council [2013] SASCFC 151 which found that reasonable notice may not be implied in circumstances where an employee is covered by a modern award which prescribes a period of termination notice.  Recent cases have considered whether s 117 of the Fair Work Act 2009, which prescribes a minimum period of termination notice, should also displace the general rule.  Whilst this was supported by the South Australian District Court in Kuczmarski v Ascot Administration P/L [2016] SADC 65, in the more recent case of McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227 Judge McNab of the Federal Circuit Court of Australia (FCCA) confirmed that s 117 provides minimum periods of termination notice only, and consequently does not displace a right to implied reasonable notice.

The 2015 Budget proposed changes to Paid Parental Leave Act that would stop parents claiming paid parental leave (PPL) from both their employer and from the Federal Government.  Described in an interview on 10 May 2015 by The Honourable Joe Hockey MP as designed to avoid “double dipping”, the changes are intended to represent $1 billion in Budget savings and will affect both private and public sector employees.

The tsunami of stop bullying applications expected to be lodged with by the Fair Work Commission (FWC) after 1  January 2014, was instead a trickle of only 343 application in the first six months of the jurisdiction, according to the FWC’s Annual Report for 2013-2014.

In the six month period ending 30 June 2014, the FWC received more than 100,000 website inquiries and more than 3,500 telephone inquiries relating  to the new workplace bullying jurisdiction. The 103,500 plus inquiries did not however, translate to a high number of applications. Instead, only 343 stop bullying applications were received. Out of those 343 applications 270 anti-bullying conferences/hearings were held and 197 applications were finalised. Of those 197 applications:

  • 59 were withdrawn early in the case management process;
  • 34 were withdrawn prior to proceedings;
  • 63 were resolved during proceedings;
  • 20 were withdrawn after conference/hearing and before a decision;
  • 21 were resolved by way of a decision. Of those 21, 20 were dismissed (3 being dismissed on jurisdictional grounds; 4 dismissed as bullying was not found or there was no risk of bullying continuing; 13 dismissed as the worker didn’t pursue the claim or the claim was not properly made) and only one case resulted in a finding that bullying had occurred and was likely to continue occurring and a stop bullying order was made.

The numbers stand in stark contrast to the unfair dismissal jurisdiction which received 14,797 applications in the same period.

Despite the fact the anti-bullying jurisdiction has received few claims to date, the number of claims being made is increasing and employers should remain vigilant. Workplace bullying is a serious work health and safety issue and can result in adverse consequences for both employers and employees.