EMPLOYEE BASED OVERSEAS WINS SIX FIGURE REDUNDANCY PAYOUT
On appeal, a Federal Court Full Bench has awarded an
overseas-based IT developer almost $600,000 consisting of payment
in lieu of six months' notice of his redundancy, unpaid long
service and annual leave and further salary entitlements.
The employee was employed overseas based on three consecutive
contracts. The employer later decided to eliminate the
employee's position for "commercial reasons" making
the employee redundant. The main controversy, which arose on
appeal, was whether the employee had changed employers when he
signed a new contract in 2008.
The judge at first instance was found on appeal to have wrongly
treated each contract as separate employment agreements to find
that the employee's employment had moved to a Singaporean based
employer. The Full Bench on appeal instead found that the
subsequent contracts supplemented the existing employment contract
as the employee's employment did not end with each contract but
instead continued in terms of his entitlements to long service and
Consequently, the Full Bench allowed the employee's appeal
and ordered the employer to pay $516,830 plus $68,000 in interest
and had costs of the appeal awarded against them.
Cohen v iSOFT Group Pty Limited  FCAFC 49
DID YOU KNOW?
According to statistics released by Fair Work Commission
(FWC), the number of adverse action claims
commenced were at a record high for the quarter ending in March
this year. The FWC received a total of 740 general protections
applications (compared to the last peak of 563 applications) to
deal with a dismissal between January to March 2013. In addition, a
further 148 applications were made to deal with a general
protections dispute not involving a dismissal, taking the
"adverse action" claims to a total of 888 claims to the
FWC in the March quarter.
This escalation in adverse action complaints is consistent with
our experience with more clients facing threats of such claims from
disgruntled employees including potential and former employees.
Care should be taken when making decisions that
"adversely" affect a potential or current employee or
contractor to ensure than none of the reasons for such action are
prohibited by the general protections provisions. If you have any
concerns about potential claims, we recommend seeking legal advice
before making such decisions.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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