Welcome to the August 2023 HR Law Newsletter.  This month, we discuss some upcoming legislative changes and review an unfair dismissal case, in which the Fair Work Commission found that the employee had acted in self-defence and that his employer failed to properly consider this when dismissing him.


On Thursday, 24 August 2023, Workplace Relations Minister Tony Burke announced that he would introduce laws into Parliament next month to explicitly protect workers, who experienced domestic violence, from discrimination or adverse action.

The proposed changes will prohibit employers from taking adverse action against employees subjected to family and domestic violence by making it a protected attribute under section 351 of the Fair Work Act 2009 (Cth) (“FW Act”).

These changes were first flagged in the Stronger Protections for Workers Consultation Paper, in which the Department of Employment and Workplace Relations noted “there is a stigma attached to FDV status, which may preclude victims from seeking flexible working hours or accessing paid FDV leave. Legislating to protect persons subject to FDV from discrimination would complement existing policies seeking to ameliorate this issue”.

HR Law will keep you updated.

To view the Consultation Paper, click on the link here.


In this month’s case brief, we explore a recent unfair dismissal case involving Wael Al-Buseri (“the Applicant”), a 49-year-old train driver from Sydney employed by NSW Trains (“the Employer”) since 2003.

On 29 July 2023, the Applicant commuted to work from Bankstown Railway Station to the Eveleigh train depot.  He was dressed in the Employer’s uniform.  As captured by CCTV and a Snapchat video, the Applicant was tripped from behind upon entering the station by a member of the public (“the Aggressor”).  The Applicant was told to “keep going you c***” when the Applicant asked the Aggressor “why did you do this?”.

When the Aggressor blocked the Applicant’s attempt to move past him, the Aggressor kicked the Applicant in the lower leg, ensuing a physical altercation that lasted about three minutes. The altercation involved the Applicant pushing the Aggressor in the throat, putting him in a headlock, slapping his face and shoving him to the ground as the Applicant was kicked, grabbed, called a “terrorist” and told to “kill me, kill me, I want you to kill me”.  Ultimately, the situation was defused by a bystander’s intervention.

Notably, two of the Employer’s employees, including a station duty manager, observed the incident but chose not to intervene, instead calling the police.  Following the altercation, the Applicant reported the incident to the police and informed one of the Employer’s managers.

Two days later, the Applicant tested positive for COVID-19, attributing it to exposure during the altercation.  On 8 August 2022, when the Applicant was expected to return to work, he was informed by the Employer of his suspension pending a workplace investigation.

The Employer alleged the Applicant had violated its Code of Conduct and other workplace policies during the altercation, leading to a proposed dismissal.  Following the investigation, the Employer terminated the Applicant’s employment for serious misconduct.  In response to his dismissal, the Applicant filed an unfair dismissal claim, seeking reinstatement.

Under the FW Act, serious misconduct can include assault.  Accordingly, physical fighting at work can be considered serious misconduct and warrant a summary dismissal.  The Fair Work Commission (“FWC”) and Australia’s courts have regularly recognised that the physical assault of another person in the workplace is a valid reason for dismissal.

However, the FWC will consider a range of extenuating circumstances to determine if a dismissal for fighting at work is unfair. This includes, for example, the context in which the fight occurred, the length of service and work record of the employee, as well as whether the employee had been provoked and was acting in self-defence.  When taking self-defence into account, the FWC will consider the way in which the employee defended themselves, whether the circumstances necessitated acting in self-defence and whether the employee used proportionate or excessive force.

Ultimately, Deputy President Gerard Boyce concluded that the Applicant had a right to defend himself due to the aggressive and confrontational behaviour of the Aggressor.  He found the Applicant’s actions to be a reasonable response to the situation and determined that the Employer had no valid reason for dismissal.  As a result, the FWC ordered the reinstatement of the Applicant with continuity of employment and backpay.

This case serves as a reminder to flexibly apply policies and procedures in the workplace.  Employers should use a holistic approach to approaching workplace incidents, ensuring they consider all the extenuating circumstances, prior to making any decisions regarding an employee termination.

To read the case, click here.


Professional Employees Award 2020 Changes

Earlier this year, the FWC announced significant revisions to the Professional Employees Award 2020 (“the Professional Award”), including changes to penalty rates and overtime, as well as clarification to the Professional Award’s coverage. 

The changes to coverage came into effect on 23 March 2023, while the introduction of overtime and penalty rates will take effect from 16 September 2023.  The FWC’s amendments regarding overtime and penalty rates aim to provide fair compensation to employees who work extended hours or outside normal work schedules.

HR Law recently wrote an article regarding these changes.  To view the article, click on the link here.

Employers are reminded to prepare for these changes including assessing modern award coverage, reviewing remuneration of relevant employees, updating contracts and updating payroll systems. 

If you have any questions regarding the changes to the Professional Award or would like assistance to prepare for these changes, contact HR Law today.

High Court clarifies vicarious liability

In the recent case of CCIG Investments Pty Ltd v Schokman [2023] HCA 21 (“CCIG Case”), the High Court considered the scope of vicarious liability.  Ultimately, the High Court found that the employer was not liable for the actions of its employee who inadvertently aggravated his colleague’s pre-existing psychological conditions. This case reinforces that when considering whether an employer is vicariously liable for an employee’s wrongful conduct, the scope of the employee’s employment is crucial, including identifying what the employee was actually employed to do.

HR Law recently wrote an article on the CCIG Case.  To view the article, click on the link here.


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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.

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