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These decisions demonstrate that even though the Fair Work Act has been in place with minimal amendment for the past seven years, uncertainty and inconsistency continue to bedevil employers impacted by decisions of the FWC, leading in some areas to an incoherent and confusing body of case law. Two of the cases referred to above illustrate the point. In the Smarter Insurance Brokers case, the employer lost an unfair dismissal case because it did not have a policy prohibiting pornography in the workplace. By contrast, in the Mt Arthur Coal case, the employer had a very prescriptive policy prohibiting racist and sexist comments in the workplace, but the dismissal was still considered unfair despite clear evidence the policy had been breached!

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