The case load for the Fair Work Commission is rising. Today 28 unfair dismissal/labour dispute applications are listed for hearing. The full list is: Aurrum Pty ltd (Hoppenbrouwer), Workforce Variable Pty Ltd (Thiruvasan), Broadspectrum (Australia) Pty Ltd (Petch), The Star Pty Limited (Banerji, Wickramatilake), Dominelli Group Pty Ltd (Zhang), Gunnedah Leather Processors Pty Ltd (Goodacare), IBS Software Services Private Limited (Golwara), Allianz Australia (Zackey), Move Well Pty Ltd & The Arena Practice Trust & The N and L Cliff Family Trust (Nazzari), Curtin University of Technology (Lichtenzveig), Schwing Concrete Constructions (Downes), RBA Architects and Conservation Consultants Pty Ltd (Le), Australian Criminal Intelligence Commission (Demos), Mallee District Aboriginal Services Limited & Kirby (Connelly), JM Golden Care Pty Ltd (Anderson, Wardill), Moonee Valley City Council (Piscitelli), Conlon Murphy (O’Byrne), BMI Group Pty Ltd (Russell), RSL Care Limited (Gwak), York Territory Realty (Rogers), Workforce Variable Pty Ltd (Thiruvasan), Gateway Lifestyle Residential Parks Pty Ltd (Blackburn), Australian Personnel Global Pty Ltd (Hussein, Mohammadi, Phuaprasert), Mental Illness Fellowship of South Australia Incorporated (Griffith).
October 9, 2017
Twenty unfair dismissal/labour dispute applications are listed for hearing in the Fair Work Commission today. The full list is: Epworth Foundation & Ching (Chang), The Camberwell Grammar School (Dai), Health Services Union – Victoria No 1 Branch (Sanli), Cabrini Health Limited (Velesquez), Murray Goulburn Co-Operative Co Ltd (Rooney), Furniture Galore Pty Ltd (Broadhead), Watterhalls (Taurima), Condobolin RSL Club Ltd (Glen), Westpac Banking Corporation (Grant), Yoogalu Pty Ltd (Kariotakis), Westpac Banking Corporation (Tandon), State Government of Victoria (Pender), Mater Health Services (Mater Misericordiae Health Services Brisbane Limited) (Graham), Hitsol Pty Ltd (Walton), Townsville Aboriginal And Torres Strait Islander Corporation For Media (Gela), Rivex Crane Hire Pty Ltd (Anderson), Sunshine Hair Studio Pty Ltd (Dale), TRG Administration Pty Ltd (Ward), Aldi Foods Pty Limited (Gillman), Kimberley College Ltd (Ford).
October 6, 2017
Another case load ‘lite’ day faces the Fair Work Commission. The twenty labour dispute applications are: Aus Water & Gas Pty Ltd (Simounds), Lutheran Church of Australia Queensland District (Bos), ISS Facility Services (Turner), Australia Postal Corporation (Bird), CPC Services NQ Pty Ltd (Green), Suncorp (McTavish), Allied Rubber Technologies (Australia) Pty Ltd (Kelly), Royal Canin Australia Pty Ltd (Wright), KLS Martin Australia Pty Limited (Lingford), Reward Hospitality (Barin), CFC Employment Trust (Carberry), KDR Victoria Pty Ltd (Tan), KinCare, In-home Carers (Dennehy), PAC Perth Pty Ltd (Stoney), Department of Human Services (Cooke), Sydney Trains (Malik), Western Sydney Community Legal Centre Incorporated (Girdler), Regis Aged Care Pty Ltd (Wang), Lockin Pty Ltd (Ware), Artisan Wine Storage Pty Ltd (Oldfield).
October 6, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.117, 383, 394, 400, 604 Fair Work Act – appeal – Full Bench – appeal against decision dismissing appellant’s jurisdictional objection that respondent had not served minimum employment period – letter dated 10 May 2016, appellant informed respondent of decision to terminate his employment, but would ‘not implement this decision until the dispute between the parties is resolved’ – dispute concerned s.739 application appellant regarding respondent’s employment – dispute determined by Full Bench in decision of November 2016 – appellant subsequently sent letter to respondent terminating his employment with immediate effect – at first instance, Commission found there was a valid notice of dismissal but letter dated 24 May 2016 did not meet requirements under s.117(1) of FW Act because date of dismissal lacked sufficient certainty – Commission found respondent had served minimum employment period and was protected from unfair dismissal – appellant submitted Commission erred in these conclusions – powers on appeal only exercisable if there is error on part of the primary decision maker – whether in public interest, where test is a ‘discretionary one involving a broad value judgement’ [Coal & Allied] – Full Bench found interrelationship between notice of termination requirements under s.117 and giving of notice of dismissal in accordance with s.383(a)(i) are an issue of importance and had not been previously considered by a Full Bench of the Commission – found first instance decision was, in part, erroneous and should be corrected – Full Bench satisfied in public interest to grant permission to appeal – found Commission in first instance was wrong to conclude that a notice of dismissal for the purpose of s.383(a)(i) FW Act must also meet requirements of s.117 – found that s.383(a)(i) does not make any reference to s.117 nor does it state that the notice has to be in writing or inform the recipient ‘of the day of termination’ as required by s.117 – employer is obligated to meet notice requirements under s.117 or contract in order to avoid unlawful dismissal – an unlawful dismissal does not invalidate termination of employment relationship, as distinct from employment contract – accordingly, Full Bench found that a notice of termination which did not comply with s.117 FW Act may be effective to bring about termination of employment relationship – Full Bench found part of the purpose of s.383(a)(i) is to provide certainty to both employer and employee as to whether the employment relationship is to be ongoing, or if not, when that relationship will come to an end – agreed with Commission in first instance a ‘notice of dismissal’ must either specify a time when termination is to take effect or that time must be ascertainable – held letter of 24 May 2016 did not specify a time when termination was to take effect, or made that time ascertainable – respondent could not have ascertained when dispute would be resolved and outcome of dispute uncertain – agreed with first instance decision letter of 24 May 2016 did not constitute a ‘notice of dismissal’ within the meaning of s.383(a)(i) – upheld decision in first instance to dismiss the appellant’s jurisdictional objection – appeal dismissed. Appeal by Metropolitan Fire and Emergency Services Board against decision of Ryan C of 7 March 2017 [[2017] FWC 1197] Re: Duggan
October 6, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench proposed variations to the Broadcasting and Recorded Entertainment Award 2010 (Award) as part of 4 yearly review of modern awards – application to vary Award to expand coverage to types of roles not currently covered and clarify roles covered – applicants, Community and Public Sector Union (CPSU) and Media, Entertainment and Arts Alliance (MEAA), tended witness statements in support of variation and data set showing breakdown of adult and junior employees employed by cinema representatives as at 30 March 2015 and their respective classifications within Award – Screen Producers Association of Australia (SPA), also party to matter, expressed concerns about potential effects of specific wording set out in MEAA’s proposal to extend coverage of Award to include dancers in principle – no alternative proposal provided – no other submissions received opposing other aspects of variations – Penalty Rates Case decision adopted – Commission held would be inconsistent with modern awards objective for employees in new roles to remain awardfree, save for the Miscellaneous Award and a lone enterprise award – agreed that Award was most appropriate Award to cover these employees – fact that no opposition to CPSU’s proposal also considered – found necessary to extend coverage of Award to include new roles – MEAA proposal also considered necessary to meet modern awards objective by making Award ‘simple, easy to understand, stable and sustainable’ – Commission found current wording in exposure draft should be retained – determination varying Award to be made and comments sought from interested parties within four weeks of decision. Broadcasting and Recorded Entertainment Award 2010
October 6, 2017
CASE PROCEDURES – appeals – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against unfair dismissal decision – held at first instance dismissal not unfair – at first instance found appellant harassed and/or intimidated colleagues and breached respondent’s standard and behaviour code – appellant alleged 20 grounds of appeal for errors of law and significant errors of fact – Coal & Allied considered – not persuaded any grounds of appeal relied on raised issue of importance or general application nor persuaded appellant disclosed arguable cases of error – noted no requirement, though desirable, to separately identify particular parts of evidence of individual witnesses relied on in first instance – found public interest not engaged – found most conduct was admitted by the appellant – held Commission entitled to take into account prior disciplinary history at first instance – not required to expressly refer to behaviour regarded as harassment – public interest not enlivened – first instance conclusion was not unreasonable nor manifested by any injustice and not counter-intuitive – no basis to justify the grant of permission to appeal or otherwise – permission to appeal refused. Appeal by Larcombe against decision and order of Platt C of 18 July 2017 [[2017] FWC 3764 and PR594631] Re: Bis Industries Limited
October 6, 2017
TERMINATION OF EMPLOYMENT – valid reason – ss.391, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent alleged applicant’s employment contract had been frustrated as a result of loss of Working with Children Check Clearance (Clearance) and operation of relevant legislation – respondent’s view that employment had terminated when applicant had been summonsed to attend Court – Court decision issued by Court in February 2017 – charges against applicant dismissed – applicant submitted contract of employment was not frustrated and that decision to dismiss was without valid reason and unfair – respondent submitted employment ended as a consequence of losing Clearance as applicant could no longer perform role – Commission found applicant not given opportunity to respond to reasons for dismissal and other matters – found applicant’s employment not frustrated and he was dismissed – found loss of Clearance was valid reason for dismissal but dismissal was harsh and unreasonable – found dismissal unfair as applicant only charged, not convicted of a criminal offence – lack of procedural fairness also weighs in favour of dismissal being unfair – reinstatement order with continuity of employment – income reinstated from date of Court decision less income earned from work performed in relevant period. Toohey v White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney
October 6, 2017
TERMINATION OF EMPLOYMENT – valid reason – ss.385, 387 394, 396 Fair Work Act 2009 – application for unfair dismissal remedy – applicant submitted dismissal harsh, unjust and unreasonable due to personal and economic impact and it being a disproportionate response – applicant dismissed for serious misconduct –allegations of falsification of timesheet, fraudulent completion of attendance record, dishonest dealings with subcontractor – applicant provided opportunity to respond – applicant failed to address concerns and breached instructions by respondent not to interfere with investigation – constituted valid reason for termination – dismissal was not harsh, unjust or unreasonable – application dismissed. Balkan v securecorp P/L t/a securecorp
