During 2022 there were a number of important decisions handed down by Australian Courts and Tribunals that contributed to the ever growing body of workplace law that is essential knowledge for all HR and General Counsel. We summarise seven of the most interesting decisions in this article.

1. Employer penalised for exhausted employee: On 28 October 2022 in the decision Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263, the Federal Court found that a meat wholesaler company had unreasonably required or requested an employee to work 50 hours a week (i.e. 12 hours over and above the 38 hours a week maximum) in contravention of section 62 of the Fair Work Act 2009 (Cth). Section 62(2) provides that an employee may refuse to work additional hours if they are unreasonable. The Court held the additional weekly hours were unreasonable because they posed health and safety risks (the employee often started work at 2 a.m. and worked with knives and machines to cut and dismember meat) and was often tired and exhausted. The employee was also not paid correct overtime in accordance with the applicable award. The employer was ordered to pay civil penalties of $93,000 to the employee.

2. Unconscious bias led to lower salary for female compared to male equivalent: On 11 April 2022 in Tsikos v Austin Health [2022] VSC 174, the Supreme Court of Victoria held that “unconscious bias” (resulting in women being paid less than their male counterparts) can (if proven) result in a finding of unintentional discrimination under Victoria’s Equal Opportunity Act 2010 (Vic). In this case, a manager in the Orthotic and Prosthetic Department at Austin Health complained of discrimination in relation to her remuneration over a period of seven years. She alleged a male colleague was paid far more than her and he had not been required to meet specific revenue targets unlike her. It was also alleged several other men within the Department had been paid more; and that some other women were unsuccessful at negotiating similar outcomes. The Supreme Court of Victoria held that taking all of these matters together, it was open to find the female manager’s sex was a substantial reason why her employer failed to pay her higher rates. The matter was remitted to VCAT to be re-heard. Depending upon the outcome of an appeal, an increase in unconscious bias cases in the future is possible in areas relating to protected attributes under anti-discrimination legislation, including sex; disability; age; sexual orientation and other areas where systemic discrimination is often assumed but cannot be proven.

3. Covertly recording management is misconduct: On 31 March 2022 in Roman v Mercy Hospitals [2022] FWC 711, an unvaccinated employee recorded a workplace conversation that occurred at a meeting without her employer’s knowledge. The covert recording came to attention when the employee extracted aspects of it in a transcript set out it in her unfair dismissal application. The Fair Work Commission held that secretly recording the workplace meeting was a valid reason for dismissal (even though the conduct came to the employer’s attention after the dismissal). The Commissioner stated that “unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction”. The Commissioner held that secret recordings are unfair because the person recorded had no opportunity to choose their words carefully or put their best foot forward, meaning such practices were apt to produce a sense of foreboding in others. This was held to be corrosive of healthy and productive work environments. The secret recording (along with a failure to produce evidence of vaccination status in this case) were valid reasons for dismissal. The case is also a reminder of the value of relying on after acquired misconduct (discovered after dismissal) to justify the original dismissal decision even if not relied upon at the time.

4. Super guarantee for contractors: On 29 June 2022 in a decision that may have implications for many academics in the higher education sector, the Federal Court held in JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 that an academic engaged as independent contractor was entitled to be paid superannuation guarantee contributions because he was considered an employee under the ordinary meaning and “deemed” an employee for the purposes of s. 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) because he worked under contracts that were “wholly or principally” for his “labour”. This is an area often overlooked and misunderstood by employers engaging contractors as individuals to perform services. Employers should audit contractors to determine whether super guarantee liability arises, particularly having regard to the extended definition of “employee” under the legislation. 

5. Simplified test for independent contractors: On 9 February 2022, the High Court of Australia delivered two decisions redefining the legal distinction between employees and independent contractors. In Construction, Forestry, Maritime, Mining And Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations & Anor V Jamsek & Ors [2022] HCA 2, the High Court held that where parties have comprehensively committed the terms of their relationship to a detailed written contract, which is not challenged as a sham or otherwise ineffective under general law, the characterisation of the relationship as one of employment, or otherwise must proceed by reference to the rights and obligations of the parties under that contract. Only where there is no written agreement, or the agreement is ineffective, will the traditional multi-factorial test set out in previous case be required to determine the true nature and conditions of the parties relationship.

6. Vicarious trauma due to traumatic work content: On 13 April 2022, in Kozarov v State of Victoria [2022] HCA 12, the High Court found that an employer had breached its duty of care towards an employee who had suffered a psychiatric injury arising from trauma associated with her role as a solicitor in the Specialist Sexual Offences Unit of the Office of Public Prosecutions. The Court found there had been a failure to implement steps required to prevent injury including encouraging staff to rotate through other areas to minimise exposure to traumatic work. The decision will be of relevance to employers in industries where certain work is considered inherently and obviously dangerous to the psychiatric health of an employee.

7. Implied term of reasonable notice of termination not displaced by statutory notice period: On 19 August 2022, in Daigle v SCT Operations Pty Ltd [2022] NSWDC 364, the NSW District Court held that a senior engineer was contractually entitled to 8 months’ reasonable notice of termination and payment of the final instalment of his performance bonus after being made redundant. The Court held nothing in section 117 of the Fair Work Act 2009 (Cth), which relates to minimum notice payments on termination of employment affects the common law position that the law will imply a term to an employment contract that the contract is terminable by either party upon reasonable notice.

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