TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – application by unfair dismissal applicant for costs – alleged that respondent caused costs to be incurred due to failure to enter into settlement negotiations and unreasonable act of filing statements which were unsigned and one of which was not authorised by witness – Commission held application made under s.611 made outside of time and must fail – Commission considered application made under s.400A – attendance at conciliation is voluntary and failure to attend not an unreasonable act or omission – s.400A cannot require party to make an offer of settlement or penalise party for failing to do so – after both parties had filed Commission raised with respondent that documents did not appear to establish any valid reason and there was a complete absence of procedural fairness – Commission held should have been reasonably apparent to respondent from this time that defence to claim had little foundation – held continued defence of claim from that point was unreasonable act which resulted in costs being incurred – application upheld – ordered respondent pay applicant’s party/party costs incurred after 24 May 2017 and until 18 August 2017. Knight v Fawcett Plumbing P/L t/a Fawcett Plumbing
October 24, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – application for extension of time due to exceptional circumstances – applicant attempted to lodge application within 21 days via email – application not received, possibly due to outage in Commission email system – Commission considered meaning of ‘exceptional circumstances’ in Nulty – must be out of the ordinary course, need not be unique or unprecedented – Commission accepted action taken to dispute the dismissal – found applicant’s circumstances exceptional – if application received when lodged it would have been within time – application granted. Riley v Outside School Hours Care UT P/L t/a Outside School Care NT
October 24, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerning classification of work performed – applicants employed for several years at Level 3 classification under the Security Services Industry Award 2010 – respondent reclassified applicants to Level 2 on the basis of work performed – applicants submitted they continue to perform duties that entitle them to be classified at Level 3 – Commission applied principles established in Golden Cockerel regarding interpretation of industrial instruments – satisfied that applicants predominately located at Gatehouse location – satisfied work at Gatehouse involves indicative tasks at the Level 3 classification – satisfied that worked carried out by applicants is most accurately described by skills, competencies and tasks referred to in Level 3 classification – dispute determined – appropriate classification of applicants is Level 3 under Award. Stannus and Ors v CPA Group t/a Corporate Protection Australia Group P/L
October 24, 2017
TERMINATION OF EMPLOYMENT – high income threshold – ss.382, 394 Fair Work Act 2009 – jurisdictional objection to application for unfair dismissal remedy – respondent objected on basis that applicant earned more than the high income threshold – Commission considered whether applicant was engaged under the Mining Industry Award 2010 – applicant submitted that he was a Maintenance Fitter and was ‘promoted’ to Mechanical Leading Hand – position title changed to Maintenance Supervisor – Commission found that Maintenance Fitter fell within Level 3 of a Maintenance Trades Employee classification in the Award – found applicant’s classification had not materially changed such that would affect coverage of Award – satisfied applicant covered by modern award at time of termination – no need to determine whether applicant earned more than high income threshold – Commission satisfied applicant was a person protected from unfair dismissal – jurisdictional objection dismissed – directions to be issued in respect of the merits of the matter. Mikic v NT Mining Operations P/L
October 24, 2017
CASE PROCEDURES – representation – s.596 Fair Work Act 2009 – respondent sought permission to be represented by counsel at unfair dismissal hearing – applicant represented by union – Commission refused application – held respondent able to represent itself effectively (s.596(2)(b)). Papaioannou v CSL Ltd
October 24, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent small business – when applicant commenced employment he was in personal relationship with respondent – no formal employment contract in place – applicant dismissed for alleged improper conduct, unsatisfactory work performance and attitude – applicant submitted dismissed following breakdown of relationship with respondent – respondent denied this – Commission found there were legitimate concerns regarding applicants behaviour however these concerns were not raised by respondent in procedurally fair manner – Byrne considered – Commission found dismissal unreasonable on limited basis – applicant did not seek reinstatement – Sprigg adopted to calculate compensation – Commission held compensation should be equal to one week of remuneration – ordered compensation of $865 less tax to be paid within 14 days. Lavender v Electrocity P/L t/a Humphrys Betta Home Living
October 24, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – applicant employed by both Australia JW Trading P/L and H&Y Brother Investment & Development P/L (the respondents) – applicant’s employment terminated by both respondents on basis that applicant sought out and accepted secret commissions, engaged in threatening and inappropriate workplace conduct, took home respondents documents and property and had received warnings that work performance was unsatisfactory – Commission satisfied applicant protected from unfair dismissal – satisfied applicant dismissed without notice or warning – not satisfied respondents belief that applicant’s conduct was sufficiently serious to justify immediate dismissal based on reasonable grounds – Commission found no valid reason for dismissal and not consistent with Small Business Fair Dismissal Code – applicant unfairly dismissed – ordered compensation of $6,316 (net) with superannuation. Guan v Australia JW Trading P/L and Anor
October 24, 2017
A head of steam is building within the unfair dismissal/labour dispute application lists. The Fair Work Commission has 31 cases today: Viterra Operations Pty Ltd (Ross), 208 South Terrace Management (Boswell), Best Masonry Bricks & Pavers (McDermott), Bunnings Group Limited (Kuchel), TAB Staffing Pty Ltd (Smith), Woolworths Ltd (Jacobson), Sakuraya Holding Pty Ltd (Lin), Lutheran Church of Australia Queensland District (Bos), APP Corporation Pty Limited (Grover), Winya Furniture Pty Ltd (Santos), Short & Co Real Estate Pty Ltd (Wilson), JBS Australia Pty Ltd (Blyth), The Salvation Army (Hiah), Whitehouse Institute Pty Ltd (Medved), The Salvation Army (VIC) Property Trust atf Salvation Army (VIC) Social Work (Smart), Toyota Motor Corporation Limited (Nguyen), Wacker Neuson Pty Ltd (Swanborough), Corval Pty Ltd & Conga Foods Pty Ltd (Kruk), Bupa Aged Care Australia Pty Ltd (Tavassoli), Spec Property Developments Pty Ltd (Willie), Medibank Private (Eliot), South 32 Ltd (Mach), State of Victoria [Department of Education & Training] (Freeman), BJ & SL Francis (Moraes), Brendon Penn Nominees (Meyers), Resource People Pty Ltd (Larson), The High Gate Group (Heydon), Sydney International Container Terminals Pty Limited (Colwell), Mezzanine Media Australia Pty Ltd (McWilliam), Southern Youth and Family Services (Griffin), JR & EG Richards Administration P/L (Meta).
