When does faking a sick day to watch a footy game cross the line from a questionable choice to grounds for dismissal? A recent Fair Work Commission (FWC) decision highlights that a fabricated sick leave claim can justify an employee’s summary dismissal. The case of Fuller v Madison Branson Lawyers Pty Ltd [2025] FWC 784 provides valuable insights for employers on managing dishonest conduct by employees and the action that employers can take in response to malingering.
Mr. Fuller, a Melbourne based solicitor, planned an interstate trip for the AFL ‘Gather Round’. Despite booking flights and AFL tickets earlier in the week, he didn’t request leave. Instead, after flying to Adelaide, he emailed work on Friday claiming he was unwell and unable to come in. He then spent the weekend socialising and attending games. While driving home from Adelaide on Monday, he again emailed his employer claiming “discomfort” prevented him from using public transport. He obtained an online medical certificate for Monday and later provided a (false) statutory declaration to support his application for personal leave on Friday. His employer, Madison Branson Lawyers (a small business), later discovered social media photos of his Adelaide trip. Following an investigation where Mr Fuller was evasive, he was dismissed for serious misconduct due to dishonesty.
Deputy President Andrew Bell upheld the dismissal as fair for the following reasons:
Deputy President Bell noted that Mr. Fuller’s conduct and attitude was “utterly incompatible with his ongoing employment as a solicitor at the firm, where integrity and honesty are paramount”. Not only did Mr. Fuller make false representations to his employer, but he was also found to have given false evidence to the FWC.
While the decision has been welcomed by employers, it has also prompted an important discussion about the interplay between neurodiversity, mental health, and leave. While mental health conditions are recognised as a potential ‘illness’ under the Act allowing for personal leave, the employee must be unfit for work because of that illness. Mr. Fuller, who has ADHD (unknown to the employer), made submissions that burnout necessitated a ‘mental health day’. However, the FWC found that feeling stressed or needing time off didn’t automatically meet the Act’s requirements for paid leave, distinguishing this from being incapacitated by illness. The decision underscores that despite the obligations of employers to regarding psychosocial risks, employees must satisfy leave criteria and remain honest.
Managing employee conduct, leave entitlements, and honesty requires careful navigation. The Moores Workplace Relations team provides pragmatic, commercially focused advice to help employers manage these situations effectively.
Please contact us if you would like further information on how we can assist.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.
Spoiler warning!
For those who have been living under a rock, the new hit show Adolescence has everybody talking. Based in the UK, at the centre of story is a 13-year-old boy, Jamie Miller, who is accused of murdering his female classmate, Katie.
The show, with its one-take hour long episodes, has mesmerised viewers and prompted a healthy international debate around the world on the topic of physical violence and online harm.
Watching this show through the lens of someone who works in the child safety and safeguarding space, there were 3 parts of the show that grabbed our attention.
The first point that struck us was the profound detrimental impact the online environment is having on children’s psyche and wellbeing.
In the show, it is revealed that in the lead up to her murder, Katie shared a private topless image of herself with a male classmate, who, without Katie’s consent, distributed the image to his other male classmates. In an engrossing conversation with his forensic psychologist Jamie admits that he pursued Katie romantically because he thought his romantic prospects with Katie were improved because of the harm Katie has suffered to her reputation. In a complicated twist, it is also revealed that following Jamie’s romantic approach to Katie, he is bullied by Katie and his other classmates online, including via Instagram posts which, using emojis, ridicule Jamie and label him as an incel and part of the ‘red pill community’.
It is clear the bullying and toxic online environment have an immense impact on Jamie, Katie and other children at the school. In the episode with the forensic psychologist, Jamie flips chaotically between self-hatred, misogyny and ferocious anger at a world which he perceives as being biased against him and other boys.
The second point that struck us was the utter confusion and lack of understanding shown by every adult in the show about the challenges young people are facing online. This is most powerfully demonstrated in episode 2, when the police detectives try to find answers at Jamie and Katie’s school. The detectives are hopelessly out of their depth and misconstrue the online interactions between Jamie, Katie and their other classmates. They incorrectly believe that Katie was friendly with Jamie online when she was actually bullying him.
Online bullying at the school is rampant, affecting most students. There appears to be no systemic approach to managing the issue of online harm at the school, and the teachers are overwhelmed and ill-equipped to support their students to deal with it. This leads to a defeatist attitude from teachers who throw their hands up in the air because it is all too hard.
The third powerful point in the show for us was the heartbreaking despair shown by Jamie’s parents as they ponder whether there was anything they could have done differently to protect Jamie, see the signs and steer him in a better direction. Jamie’s father recalls buying Jamie a computer and a headset, and thinking he was doing the right this for his child who would be safe in his room at home. Jamie’s mother recalls Jamie being online in his bedroom until 1am every night, and her not realising what was happening to Jamie as he sat in front of his computer night after night.
In Adolescence, Katie’s intimate image was shared online by one of her classmates.
This conduct, if it occurred in Victoria, would be criminal conduct.
Under section 53S of the Crimes Act 1958 (Vic), if a person (A):
The penalty is up 3 years imprisonment. Consent is irrelevant if person (B) is under 18 years of age.
Under section 53T of the Crimes Act 1958 (Vic),if a person (A):
The penalty is up 3 years imprisonment.
These Victorian offences clarify that:
There are also a range of federal offences that may be relevant to this conduct.
For example, under section 75 of the Online Safety Act 2021 (Cth), a person (A) must not post or threaten to post an intimate image online of another person (B) without (B)’s consent. The eSafety Commissioner has the power to issue a removal notice or formal warning and can make a civil penalty order of up to 500 penalty units (currently $165,000).
Under section 474.17 of the Criminal Code 1995 (Cth), it is an offence to use a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive. Under section 474.17A, there is also an offence to target those who use technologies to artificially generate or alter sexually explicit material (such as deepfakes) for the purposes of non-consensual sharing online. These offences are subject to serious criminal penalties of up to six years imprisonment for sharing of non-consensual deepfake sexually explicit material.
It is not enough in today’s world to say that online harm is all too hard to address. Online abuse is not just happening overseas or in fictional TV shows like Adolescence.
In 2023-24, the eSafety Commission received 7,270 reports about image-based abuse and requested removal from more than 947 locations across 191 platforms and services.
In February 2025, two Year 11 students from Gladstone Park Secondary College were suspended pending a police investigation after fake sexually explicit images of up to 60 students from the school were circulated online.
The risks are real, and it is incumbent on organisations that exercise care, supervision and control over children (and parents) to deeply consider ways to empower students to be safe online, and support students to understand their rights and options if they are victims of online abuse.
There are many lessons that could be taken from this show, but for us, two key lessons are:
Our child safety and safeguarding team helps organisations with incidents of online harm between students and can provide support in navigating any investigations that may arise.
Moores can also provide tailored training about online harm for staff and support organisations that provide care, supervision and support to children to develop meaningful strategies for preventing and responding to online harm at their school.
Please contact us for more detailed and tailored help.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
The Victorian government has passed new laws1 to expand the scope of hate speech laws. The new laws amend the Crimes Act 1958 (Vic) and Equal Opportunity Act 2010 (Vic) to expand protection from vilification to people based on disability, gender identity, sex, sex characteristics or sexual orientation in addition to race and religious belief or activity. These new laws will replace the Racial and Religious Tolerance Act 2001 (Vic), with commencement of criminal and civil provisions coming into operation on 20 September 2025 and 18 September 2027 respectively, unless proclaimed earlier.
These laws introduce offences for serious vilification and inciting hatred and threatening physical harm or property damage on the basis of a person’s disability, gender identity, race, religious belief or activity sex, sex characteristics, sexual orientation, or personal association with a person with any of these attributes. Serious vilification includes a broad range of seriously hateful conduct. Prohibiting serious vilification is intended to protect the dignity and health of all people and promote full and equal participation in all social, political, economic and cultural aspects of public life.
The offence of inciting hatred carries a maximum penalty of three years imprisonment whereas the offence of threatening physical harm or property damage carries a maximum penalty of five years imprisonment.
Body corporates can be liable for offences under the new laws, and an officer of a body corporate can be guilty of an offence if they authorised or permitted the conduct or they were knowingly concerned in any way in the commission of the offence.
Additionally, there is a pathway for people to make a complaint about vilification to the Victorian Equal Opportunity and Human Rights Commission. There are exceptions that can apply, such as where conduct was engaged in reasonably and in good faith and:
Bans on conversion and suppression laws have come into effect in South Australia and New South Wales this month.
South Australia
As of 1 April 2025, it is a criminal offence in South Australia to engage in a practice directed to changing or suppressing the sexual orientation or gender identity of another person that causes serious harm.2 The maximum penalty is imprisonment for five years.
What is allowed?
The Conversion Practices Prohibition Act 2024 (SA) (SA Act) contains qualifications and exceptions which significantly narrow the scope of the offence. Specifically, the SA Act states that a conversion practice does not include:
The legislation appears to have been drafted to reduce or limit the impact on religious teachings, prayer, sermons and general discussions of religious beliefs relevant to gender identity and sexual orientation. However, it remains possible that a sermon or discussion about religious belief could contravene the new law if it is found to be directed at an individual and to have a purpose of changing or suppressing the person’s sexual orientation or gender identity.
The SA Act provides the following examples of what does not constitute a ‘conversion practice’:
New South Wales
As of 3 April 2025 in NSW, it is unlawful to engage in a ‘conversion practice’ directed to changing or suppressing an individual’s sexual orientation or gender identity and causes mental or physical harm that endangers their life or is substantial. The Conversion Practices Ban Act 2024 (NSW) (NSW Act) makes conversion practices, which can include ‘conversion therapy’ and suppression practices, a crime punishable by up to five years’ imprisonment.
The NSW Act contains the substantially similar exceptions and qualifications about what is and is not a change and suppression practice as the SA Act.
It is an offence for a person to provide or deliver a conversion practice to an individual with the intention of changing or suppressing the individual’s sexual orientation or gender identity and the practice causes mental or physical harm to the individual that endangers the individual’s life or is substantial. This can include psychological or medical interventions, counselling, or subtle and repeated messages that LGBTQ+ people can change or suppress their sexual orientation or gender identity with faith or effort.The maximum penalty is imprisonment of five years.
It also creates a scheme allowing civil complaints about conversion practices to be made to Anti-Discrimination NSW and complaints can be referred to the NSW Civil and Administrative Tribunal (Tribunal). The Tribunal can order up to $100,000 compensation to a person affected.
Importantly, principals and employers may be liable for the conduct of an employee or agent unless they took all reasonable steps to prevent the contravention.
Both jurisdictions also have offences for taking a person outside of their state with the intention to deliver a conversion practice.
There are several lessons for organisations affected by the reforms:
Our Safeguarding team can provide more information about these reforms or the potential impact on your organisation.
A recent article by ABC News highlights the importance of asset protection where second relationships are concerned.
Millie was aware that she was in a de facto relationship but thought her home was protected because her partner, Paul never paid any bills associated with the property and was not listed on the mortgage. This was not the case.
Millie had previously been in a 10 year marriage and shared a son with her ex-husband. Mille and Paul dated on and off before they commenced a de facto relationship in 2012 when Paul moved into her home. Paul entered the de facto relationship with a tax debt. He also owned a home which he sold during the relationship and applied some of the proceeds of sale toward the family’s living expenses for the benefit of Millie and her son. He built a carport at Millie’s home. Millie maintained that his contribution toward these expenses and labour were in lieu of him paying rent or board. In 2018 Millie and Paul separated.
Millie did not realise that under Family Law, Paul’s tax debt could be considered a joint liability despite being in his name only. The first step in reaching a financial settlement in Family Law is to determine the property pool (assets and resources) available for distribution between the parties. This involves identifying all assets including superannuation and liabilities and financial resources. All assets may be taken into account including those owned jointly, individually, or by a family trust or company. What is ultimately taken into account is at the Family Court’s discretion.
Paul, a sole trader, had not been filing his tax returns. Following the separation, he filed over a decade of returns and in total owed $300,000 to the Australian Taxation Office (ATO). Prior to the commencement of the de facto relationship, Millie helped Paul write a letter to the ATO to be put on a payment plan for a $50,000 tax debt. She maintained that she never thought of it again and did not realise Paul had such a significant tax debt.
Ultimately the Family Court found that Paul’s tax debt was a joint liability which formed part of the property pool available for distribution between the parties, on the basis that Millie was aware of it or at least his reluctance to file tax returns. Millie benefited from expenses paid by Paul. His non-payment of tax enabled him to have more income to meet these expenses. Millie did however receive a 15 per cent adjustment of the net property pool in her favour in recognition of Paul accumulating an ‘unnecessary’ tax debt. Millie was ordered to pay Paul the sum of $500,000. She could not afford to do so, so her home of 27 years was sold to pay Paul out.
It is becoming more common for people in second relationships to enter into a Financial Agreement (also known as a ‘Pre-nup’ or ‘Continuing relationship’ agreements) to protect assets accumulated prior to the relationship.
A Financial Agreement is a private contract entered into by a couple that governs the financial relationship between them. They address how the parties’ property and financial resources are dealt with at separation. Importantly, Financial Agreements remove the power of the Family Court to make orders in relation to all financial matters to which the agreement applies. The common misconception that Financial Agreements ‘are not worth the paper they are written on’ is not the case when drafted correctly and carefully.
If Millie and Paul had agreed to enter into a Financial Agreement, the outcome may have been very different.
A new bill concerning the Victorian education system passed in February 2025 and made amendments to the Education and Training Reform Act 2006 (Act).1
The Act aims to strengthen compliance and enforcement powers of the Victorian Registration and Qualifications Authority (VRQA). It seeks to make it more difficult for unregistered or non-compliant schools to escape scrutiny or consequences of non-compliance.
The changes demonstrate that the VRQA wants to have the ability to keep other bodies including the Commission for Children and Young People (CCYP), the Victorian Institute of Teaching (VIT) and the Fair Work Ombudsman (FWO) informed of developments, including in relation to to staff conduct.
In March this year, the VRQA released a statement about its regulatory focus for 2025, namely that:
A further announcement outlined an agreement with the FWO called an ‘Exchange of Letters’ whereby each body will inform the other of compliance investigations to increase their regulatory oversight.
Key Takeaway: Coupled with the increased powers in the Act, schools and other education providers can be in no doubt that the VRQA will be focussed on child safety, health and wellbeing as its top priority, from Board line of sight to the day-to-day operations. This includes a focus in relation to employee investigations.
Some of the reforms were enacted on the passing of the bill in February and therefore it is important to be mindful of these now. The following two reforms have already been enacted:
In practical effect, this will remove the show cause process involved in the cancellation of the registration of education providers that have ceased to operate. It will also allow the VRQA to share information with a prescribed person or body such as the VIT, CCYP or FWO without receiving express written request from education providers to do so.
This may occur in the process of assessing whether prescribed minimum standards have been met.
Along with the changes already enacted, the Act will implement changes that provide the VRQA with more investigative powers that will come into effect on 1 October 2025. These powers relate to:
In effect, this will allow the VRQA to issue a notice for an education provider to provide any documents that it believes are reasonably necessary.
The changes will grant the VRQA greater authority to proactively disclose information to relevant bodies such as the CCYP without awaiting a written request. It may also request information from such bodies to assist in compliance assessment.
They will also empower the VRQA to issues notices to comply to schools it believes are operating without registration. Non-compliance with these notices can lead to civil penalties outlined below.
It will increase the maximum penalty units for operating an unregistered school or school boarding premises from 10 penalty units to 120 penalty units for an individual and 600 units for a body corporate.
The new reform Act applies to schools and school boarding premises that the VRQA has reasonable cause to believe are required to be regulated from operating without registration or approval. From October 1, the VRQA will have the capacity to require such providers to produce information or documents that are relevant to the health, safety and wellbeing of students. This aligns with the specified regulatory focus of compliance with Ministerial Order 1359.
The Act has been introduced to provide the VRQA with more streamlined methods to assess whether education providers are meeting minimum required standards. The Act provides the VRQA with the power to require education providers to supply relevant documents.
It will allow the VRQA to:
Schools and Education providers may consider doing the following to prepare for the upcoming legislative changes in October.
Contact our Education and Training team for tailored advice on how the Reform Act may impact to your organisation. We can also help to review and develop policies as well as review third party arrangement contracts.
Interdependency relationships play a crucial role in determining eligibility for superannuation death benefits. Many parents assume their children will automatically receive these benefits tax-free after death. However, this isn’t the case. Understanding how these benefits are taxed is essential for estate planning, as tax rates can vary from 0 – 30%.
Children under 18 years are automatically dependants and will receive the money tax free. But for adult children (18 or older), it’s much more complex as the ATO has specific criteria for determining whether an adult child qualifies as a “death benefits dependant” of their deceased parent.
Under the Income Tax Assessment Act 1997 (“Tax Act”), adult children and parents are typically not classified as “dependants” unless they are financially dependent or in an interdependency relationship.
Under Tax Law, key factors in assessing an interdependency relationship include:
In our previous article, we referenced earlier private ATO rulings where in a number of cases, the definition of an “interdependent relationship” was satisfied. However, all but 1 private ATO rulings since January 2024 (to date) failed to demonstrate that a ‘close relationship’ existed between the parent and adult child – a key factor considered in establishing interdependence.
In a publishing of private rulings (PBR) from April 2024, a parent was considered independent with their deceased adult child who suffered from a range of medical conditions and substance abuse. These issues left them with physical and intellectual limitations. Prior to their death, the child was reliant on their parent for personal and domestic care, comprising menial day-to-day and financial support including general living and medical expenses, while paying minimal rent. Furthermore, there were several documentations evidencing the nature of their relationship, including a letter from the deceased’s daughter and their doctor, confirming that the two had lived together for some years before the deceased passed.
In the other examples of PBR’s we reviewed since 2024, where adult children were claiming an interdependent relationship with their deceased parent, all failed. There were a variety of reasons but contributing factors included not living together for long period and unable to show a mutual commitment to a shared life, and in other cases no documentary evidence of financial support being provided.
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will and Enduring Powers of Attorney to ensure that your assets are not only looked after in the event of your death, but in the event of your incapacity to make decisions.
Is your not-for-profit (NFP) contemplating a merger? This is part four of a five-part article series that will offer some practical guidance to your board or merger advisory committee. Subscribe to receive the remaining articles in the series.
Due diligence is the process of obtaining and reviewing information in order to critically evaluate a potential merger partner. The primary purpose of due diligence is to assist the board to identify potential risks and issues that could impact a merger, ensuring that the board can make an informed decision regarding whether or not to proceed with the merger. Due diligence also assists to inform the choice of merger type (discussed in article 2) and identify issues that may need to be prioritised and addressed as soon as practicable following any merger.
The due diligence process should include:
The culmination of the due diligence process is a report that is provided to the board in order to inform and support its decision regarding whether or not to proceed with a merger agreement.
Some of the key considerations that should be taken into account in the due diligence review include:
A detailed analysis of the financial health of the prospective partner should be carried out to determine its ongoing financial viability. A review of donor and grant history as well as projected grant income will help inform the analysis. This work is often carried out as a discrete component of the due diligence process by a financial advisor who is experienced in working with not-for-profit organisations.
A complete list of assets (tangible assets and intangible assets – intellectual property and goodwill) and liabilities (security interests registered on the Personal Property Securities Register and mortgages recorded on any certificates of title) should be reviewed, including conducting appropriate searches.
These are the liabilities that will be transferred from the one entity to another (usually the acquiring NFP or the new merged NFP). Historical liabilities can create significant risks for NFPs in a merger. This is because child abuse liabilities in particular: do not have a limitation period; may be uninsured; and depending on the merger type and jurisdiction, may transfer between entities in a merger. It is important to assess the risk of historical liabilities – this will include reviewing the claims history of the organisation and enquiring about known historical issues. Part five of our article series will address historical liabilities in more detail.
If a merger will result in one or more NFPs closing, it will be necessary to provide for the transition of employees to the acquiring NFP (and for the redundancy of any employees who will not be retained). Ideally terms of employment will be substantially the same as or better than the employee’s current terms of employment. A substantial difference in the employee benefits between the two merging organisations may result in unanticipated costs if parity requires an increase for a number of employees. The acquiring NFP will also need to confirm the current status of leave entitlements, fringe benefits tax exempt benefits (relevant for Public Benevolent Institutions and Health Promotion Charities) and superannuation guarantee contributions. Other employment risks that should be considered in the due diligence process. These include (without limitation) the possibility of a wage underpayment (liability for which may be able to be traced to any parent entity) and any unresolved workplace disputes.
A comprehensive contracts register that tracks key information (including the name of the contract, whole-of-life costs, the supplier, the contract manager, the commencement and termination date and performance and payment milestones) should be prepared. A review of all contracts should be carried out to identify material risks and ascertain whether the contract can be novated or assigned (if appropriate).
Insurance documents will need to be reviewed to confirm that the prospective merger partner is appropriately insured.
The prospective merger partner’s privacy policy should be reviewed to confirm it allows for any disclosure of personal information, health information or sensitive information that is anticipated as part of the merger process. Any risk of significant non-compliance with privacy obligations should be also identified and assessed.
The anticipated efficiencies of a merger may be significantly impacted by an inability to integrate systems and data. An expert IT consultant can assist to review technology systems and data sets to determine how different technology systems might interact post-merger and give a considered assessment of the potential cost and complexity of systems integration.
Once the due diligence report has been prepared and submitted to the board, the acquiring NFP will need to determine whether or not to proceed with a merger agreement. This involves returning to any non-negotiables and merger principles established up front (discussed in article 3) as well as assessing identified risks in the context of the organisation’s risk appetite. It may also involve a review of cultural alignment – have any cultural red flags been identified in terms of the merger partner’s transparency and conduct during the due diligence process? Depending on the nature of the risks identified, it may be possible to choose a merger type and/or include conditions in the merger agreement that will assist to mitigate the risks.
Depending on the complexity of the merger, the due diligence process can be daunting and time-consuming. The Charity and Not-for-profit Law team at Moores can help with developing a fit-for-purpose due diligence strategy or assisting with the due diligence process.
The Workplace Relations landscape is ever changing. In this article we summarise three cases regarding redundancy and employee transfers between entities that were decided in 2024 that employers need to know about.
In Helensburgh Coal Pty Ltd v Bartley & Ors1, a Full Court of the Federal Court of Australia found the termination of 22 employees by way of redundancy was not a genuine redundancy because Helensburgh Coal (HC) could have redeployed those employees to perform work performed by independent contractors.
HC operates a mine extracting coking coal. In 2018 and 2019, it engaged two companies to supply workers to perform a range of services. Early in the COVID-19 pandemic, demand for coking coal fell significantly and HC told its employees that it had decided to implement changes to its operations which would result in a reduction to its workforce.
During consultation, the employees requested HC to mitigate against its decision by decreasing its reliance on contractors. While HC did reduce its contractor workforce by 40%, it proceeded to terminate 47 employees by way of forced redundancy. Twenty two of those employees brought unfair dismissal claims in the Fair Work Commission, claiming the dismissals were not ‘genuine redundancies’. Commissioner Riordan found in two decisions that the dismissals were not a ‘genuine redundancy’ because it was reasonable for HC to reduce the work available to contractors and redeploy the affected employees to perform that work. HC unsuccessfully appealed both those decisions to a Full Bench of the Fair Work Commission and then sought judicial review in the Federal Court.
Under the Fair Work Act, a redundancy will not be ‘genuine’ if it ‘would have been reasonable in all the circumstances for the person to be redeployed within its enterprise’. The Federal Court dismissed HC’s application, finding:
Key takeaways
Employers must therefore consider all redeployment opportunities, including to positions that may not technically be ‘available’ at the time of consideration, or risk a redundancy being found to be not ‘genuine’. This includes those held by independent contractors or a labour hire employee. It would be prudent to consider whether any of those positions will become available in the future.
At the time of writing this article, Helensburgh Coal has received special leave to appeal the judgment to the High Court of Australia.
In Westpac Banking Corporation T/A Westpac2, Westpac successfully applied to the Fair Work Commission to vary the redundancy pay payable to an employee, Ms Dibden, from 7 weeks’ pay to zero.
Westpac’s application was made on the basis that it obtained ‘other acceptable employment’ for Ms Dibden, who was employed as a Senior Customer Service Specialist at a St George Bank branch in Cairns.
Following Westpac’s decision to close the branch Ms Dibden worked in, it offered her what it said was a ‘directly comparable’ position of Personal Banking Specialist (PBS) at a Westpac branch in Cairns. Ms Dibden advised she was not interested in a branch-based position and preferred another position. She asserted the PBS position was different to her customer service position. Westpac’s position was that the duties and responsibilities were the same. In late July 2024, Ms Dibden’s employment was terminated on the basis that she rejected the PBS position.
Under the FW Act, an employer may apply to the Fair Work Commission for a determination reducing the redundancy pay payable to an employee to a specified amount, which could be zero, in the following circumstances:
In the Fair Work Commission, Ms Dibden submitted that a Westpac branch had a ‘different culture and working environment’ than a St George one. Ms Dibden’s main contention, somewhat unusually, was that the positions were not acceptable because working in a St George branch ‘felt different’ than working for Westpac. In coming to the decision to exercise her discretion to reduce the redundancy pay to zero, Commissioner Hunt noted:
This case is a timely reminder to employers that:
In Dupre v Excell Protective Group Pty Ltd3, the Fair Work Commission found Mr Dupre was dismissed by Excell and that the dismissal was harsh, unjust and unreasonable. Excell was ordered to pay Mr Dupre $42,552.06.
Mr Dupre began employment with Excell in 2015 pursuant to a contract of employment. Due to issues with licensing of Excell’s business, it did not trade between June 2015 and July 2017. During that time Mr Dupre was paid by a different entity, SPS Security Service PL. SPS Security was not an associated entity of Excell. Excell began paying Mr Dupre in July 2017.
In March 2024, it was announced that Excell’s management team would be transferred to another company, Zipd. Mr Dupre received a new employment contract, position description and non-disclosure agreement for the transfer to Zipd. Mr Dupre raised a number of concerns about the proposed contract. The next day he was invited to a formal performance review meeting despite having not had any performance issues to date.
Approximately three weeks later, Mr Dupre attended a meeting with a number of his colleagues in which they were advised that if they did not sign the new employment contracts, this would be treated as a resignation, bringing their employment to an end. He did not sign the contract. On 11 April 2024 Mr Dupre attended a further meeting with management and advised he would not sign the contract without amendments and he would not resign. By the end of the meeting, he understood he had been dismissed by Excell.
On 17 April 2024 he received an email from Excell advising its position that he had resigned on 11 April 2024. On 19 April 2024 Mr Dupre responded clarifying he had not resigned and that he wanted to remain employed under his initial contract of employment. He requested Excell confirm that he would do so by 22 April 2024. After he did not receive a response, Mr Dupre confirmed in writing on 23 April 2024 that Excell had repudiated the contract and the employment relationship, and as a result he had been dismissed by Excell.
Deputy President Masson ultimately found Mr Dupre had been dismissed by Excell and he did not resign, there was no valid reason for the dismissal and the dismissal was procedurally unfair.
Employers should:
Who could forget the suite of changes that came into effect in 2024 under the Closing Loopholes reforms? Read our articles below to get up to date on those reforms:
Our Workplace Relations team can provide employers with practical advice and guidance on how to manage redundancies having regard to Helensburgh Coal and where other acceptable employment has been obtained for the employee. The team is well placed to advise on proposed terminations so employers can mitigate the risk of successful claims and compensation orders.
A recent Supreme Court of Victoria decision has changed the game for retail tenancies.
In ALDI Foods Pty Ltd v Northcote Shopping Centre Pty Ltd [2024], the Court held that rent review caps in retail leases are not prohibited under the Retail Leases Act 2003 (Vic), effectively overturning a long history of VCAT decisions indicating that such caps were void. This decision supports tenants, and will provide them with increased financial security when leasing a retail space.
This case concerned a retail lease agreement between ALDI Foods (tenant) and Northcote Shopping Centre (landlord). The main issue was whether the lease agreement permitted a cap on the rent review process.
In retail leases, rent is typically reviewed periodically to adjust for inflation or market conditions. The standard review mechanisms are:
The inclusion of caps or limits on how much rent can increase during these reviews however, has often been a contentious issue in retail leasing due to section 35(2) of the Act, which states that for leases covered by the Act, “The basis or formula on which a rent review is to be made must be one of the following” [emphasis added], and then lists five defined options, including the methods identified above.
The inclusion of the word “one” in section 35(2) has generally been interpreted as having the effect of prohibiting caps on rent reviews, because the cap constitutes a second method of review.
In this case, the lease included a provision that placed a 6% cap on CPI reviews. Northcote Shopping Centre argued that this provision was void, on the basis that the cap was not permitted under section 35(2) of the Act. Northcote Shopping Centre sought to rely on previous VCAT decisions to support their arguments.
ALDI’s position was that the cap was valid, since the Act does not expressly prohibit rental caps. In support of this, ALDI argued that since section 35(3) of the Act expressly prohibits ratchet clauses (i.e. clauses that prevent rent from decreasing during a market rent review), this would indicate that the legislators intended for caps or limits to be permitted.
The court ruled in favour of ALDI, holding that the rent review cap included in the lease was enforceable and a valid clause. The court took the view that rental caps were consistent with retail leasing legislation, going against previous VCAT decisions.
Retail tenants have an opportunity for increased financial certainty following this ruling, being in a strong legal position when and if they decide to negotiate capped increases on their rent. With business expenses rising in many industries, the decision presents an opportunity for retail tenants to better plan for the future.
Landlords should consider how this case may impact future negotiations around rent review processes. Landlords can expect caps to become a regular request from retail tenants, and will need to make a commercial decision in each case whether to agree to the inclusion of a cap to attract and retain long-term tenants.
Moores’ Commercial Real Estate team is ready to assist with all your retail and commercial leasing needs, including expert advice on your rights around rent reviews, lease renewals, and other key leasing matters. Please contact a member of our leasing team if you would like guidance or support in this area, from strategic advice through to preparation of lease documentation.
Sam Kerr, captain of the Australian Women’s Soccer team, has been found not guilty of racially aggravated harassment of a London Metropolitan police officer after calling him “stupid” and “white”. Despite the acquittal, this case has drawn significant attention to whether seemingly unfavourable treatment towards white people can constitute racism and how similar incidents would be handled in Australia.
On 30 January 2023, Sam Kerr and her partner hailed a taxi to take them home after a night out. Both women were allegedly drunk and during that cab ride, Ms Kerr was sick in the taxi. The driver then locked the doors and windows and drove them to the nearest police station on advice of police but without informing the women. Ms Kerr and her partner told the court they feared they were being taken hostage, and shortly before arriving Ms Kerr’s partner smashed one of the taxi windows in an attempt to escape.
Police body camera footage showed police requesting the pair to pay for the damaged window and fare and cleaning fee. During the recorded conversation, Ms Kerr called the officers “f***ing stupid and white”.
The prosecution argued that Ms Kerr’s comments were a deliberate attempt to harm the police officer, were racially motivated and that the police officer felt “humiliated”, “shocked” and “belittled”.
Ms Kerr did not deny calling the police officer “stupid’ or “white”, but told the court she was trying to make a comment about “power” and “privilege” and believed that the officers were treating her differently because of her skin colour on the night of the incident. Ms Kerr is of Indian descent.
The jury unanimously found Ms Kerr not guilty of the charge.
While Ms Kerr has been found not guilty of racially aggravated harassment rather than discrimination, her case has prompted widespread conversation about the myth or existence of “reverse racism”, and whether racism or racial discrimination against white people is permissible under legislation or more socially acceptable.
“Reverse racism” is sometimes used to describe situations where white people believe they are discriminated against or negatively stereotyped because of their whiteness or treated less favourably than people of colour. It is an idea focused on prejudiced attitudes towards a certain racial group or groups, or unequal treatment – namely, discrimination. But it overlooks that power is one of racism’s central indicators.
The Oxford English Dictionary defines racism as “prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior.” According to Mario Peucker, Associate Professor and Principal Research Fellow at Victoria University, the concept of “reverse racism” doesn’t work because racism is more than just prejudice. Prejudice and discrimination are inextricably linked with historically entrenched and institutionalised forms of systemic racism and racial hierarchies, injustices and power imbalance1.
State and federal anti-discrimination laws prohibit discrimination and harassment on the grounds of certain protected attributes in certain areas of public life, and in public with respect to vilification. The Racial Discrimination Act 1975 (Cth) (RDA) broadly prohibits discrimination on the basis of race, colour, descent, national or ethnic origin, as well as acts of racial hatred. Acts of racial hatred include public acts that are reasonably likely to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin. Similar protections exist under state and territory anti-discrimination laws. In Victoria, reforms have been proposed to strengthen anti-vilification laws, which are currently limited to protection from “behaviour that incites hatred, serious contempt, revulsion or severe ridicule for a person or group of people, because of their race or religion”.
White people can be called derogatory names that reference their whiteness. Given this, whiteness may technically be protected from anti-discrimination and anti-vilification laws, and it may be possible for a white person to face discrimination or vilification by people of colour on the basis of their whiteness.
However, while white people may be covered by protections against racial hatred or vilification, there is still a requirement to establish that the alleged conduct was reasonably likely to offend, insult, humiliate or intimidate the complainant. In circumstances where whiteness has existed as the dominant race in Australia and positions of leadership and authority continue to be dominated by white people, this aspect of the legislation is likely to be extremely difficult to substantiate.
Further, there are exceptions under the RDA and state anti-discrimination laws that make otherwise discriminatory conduct lawful, in particular, special measures. Special measures are lawful discriminatory acts aimed at reducing historically entrenched, intergenerational and systemic inequalities. Affirmative action programs are direct responses to structural inequality and an attempt to level the playing field. Positive racial discrimination is based on amelioration, not racial superiority. According to Peucker, regardless of whether positive or affirmative action is lawful or not, the term racism or “reverse racism” would not apply.
While the limits of protection from racial harassment, discrimination and vilification have not been comprehensively tested in Australia’s current social climate, Ms Kerr’s case demonstrates that such claims need to be considered in the context of social, cultural and historical factors that shape individual experiences and responses, not just the letter of the law.
In Ms Kerr’s case, the words were said in the context of:
In both the UK and Australia, legal claims do not exist within a vacuum and as shown in Ms Kerr’s case, these sociopolitical factors can be pivotal in determining the outcome of the case.
Our Safeguarding and Discrimination Team has extensive experience supporting organisations to create safe and inclusive environments for all individuals, as well as navigating complaints and disputes if they arise. We can assist with tailored advice on your discrimination and safeguarding obligations to diverse groups, as well as development and delivery of policies and training to proactively address these issues.