Recent Cases

Yu v ACT Education Directorate [2022] FCAFC 110 (30 June 2022) (Thomas, SC Derrington and Halley JJ)


Catchwords:


INDUSTRIAL LAW Ð adverse action Ð whether employee exercising a workplace right under s 343(1)(a) of the Fair Work Act 2009 (Cth) Ð where employee claimed to have been exercising her right to take reasonable care of her own health and safety under s 44 of the Work Health and Safety Act 2011 (ACT) when refusing the directions of her employer to prepare a Professional Pathways Plan, to teach under observation and to attend certain meetings

INDUSTRIAL LAW Ð Enterprise Agreement Ð construction of Ð alleged contravention in breach of s 50 of the Fair Work Act 2009 (Cth) Ð whether breach of obligation to place permanent teachers in suitable positions Ð whether employer caused emotional distress Ð whether breach of procedural requirements relating to disciplinary process

INDUSTRIAL LAW Ð National Employment Standards Ð whether contravention of s 44 where final entitlements not paid on date of termination but were subsequently paid in full

PRACTICE AND PROCEDURE Ð trials Ð procedural fairness Ð where applicant gave oral evidence and was cross-examined before trial adjourned part-heard Ð where matter subsequently determined, at primary judgeÕs suggestion, Òon the papersÓ three and half years later Ð where primary judge indicated relevant findings could not be made in the absence of cross-examination of the respondentÕs witnesses Ð where no issue of procedural fairness raised by either party Ð whether primary judge erred in failing to make findings on evidence before him

PRACTICE AND PROCEDURE Ð procedural fairness Ð where primary judge considered and made ÒobservationsÓ or purported preliminary findings adverse to the respondent on legal issues not raised by the parties Ð whether such observations and preliminary findings had any bearing on the primary judgeÕs ultimate conclusions