Employees should have policies that are consistent with the
Employment legislation in the correct jurisdiction. In New South
Wales, the Fair Work Act applies.
Inconsistent policies expose an employer to risks of not
complying with the legislation and incurring penalties.
Scullin v Coffey Projects (Australia) Pty Ltd: No need for the
employee to be a primary caregiver – Employee awarded damages
for a breach of his entitlements.
This case highlights what can happen if an employer follows
In this case the employer had an outdated policy.
The facts of the case were as follows:
A male employee requested 12 months parental leave to assist
his wife with the care of their newborn twins.
The employer's policy prescribed that paternity leave was
only available to a child's primary care giver. The employer
followed their policies and disallowed the employee from access to
The employee took 12 months leave consisting of other forms of
paid and unpaid leave.
On his return from leave the employer was only able to provide
part-time employment following a downturn in business. The employee
agreed to return to work on a part-time basis.
The employee was later made redundant.
The employee brought legal proceedings in the Federal Circuit
Court of Australia.
The employee was successful in his claim that his employer had
breached the national employment standards.
The Court found that the employer had been negligent in
preventing the employee access to unpaid parental leave and thereby
preventing the employee from being able to return to his previous
The Court ordered that the employer pay the difference between
the actual pay he received as a part time employee and what he
would have earned as a full time employee. The court found annual
leave and severance pay should also have been calculated based on
his full time salary.
The amount payable to the employee was
A penalty of $8,250 was also ordered against
the employer for breaches of the Fair Work Act. This penalty was
payable to the employee.
What can an employer do to ensure compliance with the national
It is important for all businesses keep abreast of changes to
Employment Law and update their workplace policies and employment
contracts regularly and as changes occur to ensure they comply with
the relevant Employment standards.
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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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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