TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – Australia Personnel Global P/L (APG) is a labour provider – applicant assigned to work at premises of Baiada Poultry P/L – APG objected on basis that applicant did not have reasonable expectation of ongoing employment – had not met the minimum employment period – alternatively, dismissal was not harsh, unjust or unreasonable because applicant had attended work late, left work early, did not provide advice of absences – APG lost confidence and trust in applicant’s capacity to carry out tasks – Commission found that applicant was regularly engaged to work at Baiada for five days per week for average of 37.5 hours per week – had been employed on a regular and systematic basis for period exceeding six months – Commission determined that applicant’s work history, frequency of engagement and requirement to advise APG and/or Baiada if she was unable to attend work led to conclusion of a reasonable expectation of continuing employment – minimum employment period met – Commission found APG’s allegations of lateness, leaving work early and issuing of warnings against applicant not supported by evidence – complaints of leaving work early more accurately described as not working as much overtime as other employees – Commission found other incidents not to be a breach of employment obligations – Commission found APG did not investigate reason for termination – evidence did not indicate APG took reasonable steps to engage with Baiada or other employers about alternative assignments – Commission held dismissal was harsh, unjust and unreasonable – compensation of $8,597.31 ordered. Kumar v Australia Personnel Global P/L
November 16, 2017
CASE PROCEDURES – evidence – production of documents – ss.394, 590 Fair Work Act 2009 – application for unfair dismissal remedy – applicant made an application for orders to produce on respondent – respondent submitted documents sought were not relevant to the matter – also the request was vague, wide and appeared to be a ‘fishing expedition’ where some classes of documents sought were confidential or private material and relevantly unconnected to applicant’s case – documents sought must have some apparent relevance to the pleadings as they stand [McIlwain] – Commission considered documents before him had no apparent relevance to the primary matter – each class of documents sought by the applicant were a ‘fishing expedition’ or sought for collateral purpose other than support of his application for unfair dismissal remedy – Commission found disclosure of certain classes of the documents may have been prejudicial to the respondent by drawing into public matters not relevant to these proceedings, but with collateral possibility of consequential prejudice to the interests of the Northern Territory Government or persons employed by it – application refused. McAuley v Northern Territory Government t/a Department of Primary Industry and Resources
November 16, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – decision dealing with 34 separate applications – all applicants employed by Linfox at Regional Distribution Centre – dispute in relation to Clause 5 – ‘Custom and Practice’ of Linfox and Transport Workers’ Union Road Transport and Distribution Centres Agreement 2014 (2014 Agreement) and proposal by Linfox to have all employees in Distribution Centre to perform task of order picking, as required – applicants currently perform certain specific roles only – applicants maintain that custom and practice established over extended period whereby they are only required to perform those certain specific roles – Clause 5 of 2014 Agreement provided that it is not intended to alter an existing custom and practice – Full Bench in Transport Workers’ Union v Linfox Australia P/L considered – decision made clear that any such application of implying a custom and practice into applicants’ employment contracts must be determined having regard to propositions identified by High Court in Con-Stan – Commission not satisfied that in all the circumstances the existence of a custom and practice as claimed by applicants can be found to exist – evidence did not establish a custom and practice in Distribution Centre whereby all, or even majority of employees, only performed a single task or role as it appeared to be a situation that only applied to the 34 applicants – as custom and practice did not exist in terms of Clause 5 of 2014 Agreement, Commission no longer to give further consideration – applications dismissed. Paull and Ors v Linfox Australia P/L t/a Linfox
November 16, 2017
TERMINATION OF EMPLOYMENT – misconduct – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed for more than 11 years as an electrical technician – is the Lodge President for the Construction, Forestry, Mining and Energy Union (CFMEU) at the Dendrobium Mine of Illawarra Coal – dismissed after investigation following telephone calls involving tense and heated discussions about workplace issues, use of inappropriate language and making threats – not in dispute that applicant was under the influence of alcohol at the time of the discussions – also being treated for depression – ABCC v Upton considered – not the role of the Commission to determine appropriate standards of language in the community but to consider language used in the workplace context – Commission satisfied respondent had a valid reason for the dismissal – found applicant was unknowingly under the influence of a strong prescribed drug which, when mixed with alcohol, provided a cocktail which transformed a normally rational and considered human being into an entirely different human being who then acted in a manner which has been unchallenged as being ‘out of character’ – applicant’s conduct was in breach of the South32 bullying and harassment policy – applicant’s conduct was clearly inappropriate however taking into consideration mitigating factors Commission found applicant’s dismissal was harsh, unjust or unreasonable – persuaded that reinstatement was appropriate – ordered applicant maintain his continuity of employment and restoration of lost pay minus a 25% penalty for applicant’s poor conduct. Gosek v Illawarra Coal Holdings P/L t/a South32
November 16, 2017
TERMINATION OF EMPLOYMENT – valid reason – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed at an independent boys’ school – dismissed for failing to attend meeting concerning previous complaint against respondent – applicant notified school she could not attend the meeting on the day because she was unwell – Commission considered if there was a valid reason for dismissal – a valid reason is sound, defensible or well-founded – not capricious, fanciful, spiteful or prejudiced [Selvachandran] – Commission ex tempore found dismissal harsh, unjustified and unreasonable – applicant had a clear reason for not attending the meeting – to characterise non-attendance as serious misconduct was egregious – imposed a completely unjust outcome on applicant – dismissal was unfair – consideration to be given to remedy. Dai v The Camberwell Grammar School t/a Camberwell Grammar School
November 16, 2017
CASE PROCEDURES – procedural and interim decisions – ss.394, 397, 577 Fair Work Act 2009 – application for an unfair dismissal remedy – interim decision regarding the manner in which future proceedings should be conducted – applicant resides in the USA and contended not currently able to return to Australia – Commission considered whether appropriate for substantive hearing to be conducted via telephone or whether matter should be adjourned pending applicant’s return – Commission not satisfied that hearing could be fairly, effectively or efficiently conducted with applicant participating by telephone from USA – Commission considered it not appropriate to conduct hearing via telephone – considered it not appropriate to adjourn matter until applicant elects to return to Australia due to uncertainty about the timeframes or whether that will occur at all – considered it appropriate to set matter down for hearing subject to confirmation that applicant able to return to Australia to attend hearing – if no confirmation, application to be dismissed without further notice or hearing. Sambastian v Australian Postal Corporation t/a Australia Post
November 16, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – on 23 October 2015 a Full Bench issued a decision [[2015] FWCFB 7236] (October 2015 decision) dealing with a number of drafting and technical issues in relation to the Industrial Diving Award – in October 2015 decision the Full Bench made the observation that the distinction between the hours of work for inshore and offshore divers was unusual and warranted further examination as to why the ordinary hours for inshore divers should not be the NES standard of 38 per week, particularly given the comparison with offshore divers – conference was convened – On 9 June 2017 the Group 1 Award stage Full Bench issued a further decision [[2017] FWCFB 3177] (June 2017 decision) addressing a number of outstanding technical and drafting issues, including the hours of work for inshore divers – MUA sought an opportunity to discuss the effects of the decision with the Commission – Full Bench will be constituted to consider the issues raised by the MUA. Professional Diving Industry (Industrial) Award 2010
November 9, 2017
ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – application by Construction, Forestry, Mining and Energy Union (CFMEU) for bargaining order against Oaky Creek Coal P/L (OCCPL) in relation to employees employed at Oaky North Underground Coal Mine (Mine) – CFMEU members constituted all production employees at the Mine and covered by Oaky Creek North Mine Enterprise Agreement 2012 with nominal expiry date of 1 June 2015 – CFMEU and OCCPL have been bargaining for replacement enterprise agreement since May 2015 – CFMEU members commenced protected industrial action in May 2017 – since 20 July 2017, OCCPL implemented employer response action and locked employees out – Mine continued to operate with staff and employees of contractors – OCCPL put proposed agreement to employees in late July, which was rejected as only two employees voted to approve – after result of ballot known, CFMEU withdrew notices of protected industrial action for 15 and 16 July and employees reported for work – upon return to work, swipe cards did not operate and employees directed to remove CFMEU branded shirts previously permitted to be worn – employees also informed they were not permitted to wear those shirts in future – from 17 to 19 July, employees resumed protected industrial action and on 18 July, OCCPL issued letters to 21 employees alleging breaches of policy relating to conduct engaged in on the picket line – five employees also issued letters alleging breaches of social media policy – CFMEU asserted the issuing of allegation letters to be capricious or unfair conduct as it undermined freedom of association and collective bargaining – further asserted that using contract security personnel to take surveillance of CFMEU members and by withdrawing permission for employees to wear CFMEU clothing onsite to be capricious or unfair conduct – Commission found it was objectively capricious or unfair for OCCPL to issue employees with allegation letters in relation to their conduct – satisfied that direction by OCCPL in relation to the wearing of Union clothing was capricious – Commission held that level of security operations and their scope was unfair on basis that it was a disproportionate response to the conduct of CFMEU and its members – satisfied that the unfair or capricious conduct identified above undermined collective bargaining and freedom of association as it occurred at a critical time in the negotiations – satisfied it was reasonable in all of the circumstances to make bargaining orders – Commission issued following orders: OCCPL to withdraw direction to employees that they were no longer permitted to wear clothing associated with CFMEU; OCCPL to cease undertaking surveillance of employees other than in precincts of the Mine or engaged in any picket or other protest activity in the vicinity of the Mine; OCCPL to take no further steps in relation to allegation letters issued; and OCCPL to not rely on the investigation letters. Construction, Forestry, Mining and Energy Union v Oaky Creek Coal P/L
