The light case load faces returning Fair Work Commissioners. Only 16 labour dispute applications are listed for hearing: The High Gate Group (Heydon), BRC Recruitment Pty Limited (Nisha), Degabriele Kitchens NSW Pty Ltd (Squadrito), CPB Contractors Pty Limited (Wilson), Thompson Healthcare Pty Ltd (Adamopoulos), Bendigo Kangan Institute (Michael), Australian College of Optometry (Battista), Searchlight Education Springfield (Mokhondo), Origin Energy Resource Limited (Costelloe), CPB Contractors Pty Limited (Wilson), Prime Enterprise Holdings Pty Ltd (Wang), CPB Contractors Pty Limited (Wilson), WesTrac Pty Ltd (Thay), Sodexo Remote Sites Australia Pty Ltd (Hallam), Woolworths Ltd (Jacobson), Origin Energy Resources Limited (Costelloe).
October 3, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as bus driver – facts of case involved applicant driving with expired driver’s licence – applicant became aware licence had expired when requested to produce it for examination – advised supervisor he was in possession of expired licence and would ask wife for renewed licence at home – applicant left message for wife and then departed depot undertaking driving duties without confirmation that his driver’s licence had been renewed – applicant called into meeting two days later and dismissed – applicant claimed respondent had already determined would be dismissed summarily prior to meeting and respondent not interested in explanation – applicant’s case was put on basis that when advised that his driver’s licence appeared to not have been renewed respondent allowed applicant to complete driving duties for day – was not contacted by respondent asking him to stop driving or return to depot during shift – actions of applicant said to be neither wilful nor deliberate – acted immediately to renew driver’s licence once it was drawn to his attention that it had expired – respondent submitted that applicant was terminated based on valid reason and that he was provided with opportunity to respond to allegation of driving on expired driver’s licence – applicant submitted that Road Traffic Act 1974 (WA) (RT Act) provides an exemption to offence of driving while not authorised ‘because the licence expired’ and grace period of six months to continue driving without committing offence – Commission found applicant’s driver’s licence no longer current until further renewed within six month period with effect from date of renewal – rejected argument that RT Act provides for exemptions or grace period – Commission satisfied valid reason for dismissal – driving motor vehicle without current driver’s licence an offence and therefore amounted to serious misconduct – accepted that decision to drive made spur of moment while applicant was in state of shock rather than action taken designed to destroy employment relationship in wilful manner – found applicant demonstrated remorse for actions – applicant’s unblemished employment record of seven years and age taken into consideration – Commission found despite finding of valid reason, Commission found actions of applicant did not justify summary dismissal – dismissal unfair based on its summary nature – held compensation should be ordered in the amount of payment of five weeks wages. Nieuwpoort v South West Transit Group P/L
October 3, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – casual employee – ss.22, 384, 394 Fair Work Act 2009 – whether periods of absence were ‘excluded periods’ within s.22 FW Act – respondent raised jurisdictional objection before conciliation – respondent not a small business – applicant worked regular and systematic casual roster with reasonable expectation of continuing employment on a regular and systematic basis – employed for six months and 25 days with two periods of absence – suffered foot injury – submitted first period of absence was decided by employer against applicant’s wishes and not ‘unauthorised absence’, ‘unpaid leave’ nor ‘unpaid authorised absence’ – submitted first absence was a ‘stand down’ – submitted second absence was part agreed and part ‘stand down’ – respondent submitted both periods of leave were authorised and either period could be classified as ‘unpaid authorised absence’ or ‘unpaid leave’ – Commission held that absence was authorised as it was known to the employer and occurred with its acceptance and authority – satisfied that period between 18 March and 23 April was not a ‘stand down’ within s.524 FW Act – found that 36 days an ‘unpaid authorised absence’ within s.22 FW Act and therefore an excluded period – jurisdictional objection upheld – application dismissed. De Silva v Murphy Holdings (SA) P/L t/a Murphy Holdings (SA) P/L
October 3, 2017
TERMINATION OF EMPLOYMENT – costs – ss.400A, 401, 611 Fair Work Act 2009 – application for costs – employee lodged unfair dismissal application and discontinued application six days before the matter was listed for hearing – employer claimed that employee should pay its costs because it should have been reasonably apparent that the unfair dismissal application had no reasonable prospect of success – Commission required to determine whether unfair dismissal application had a substantial prospect of success despite discontinuance – found employer had terminated employee’s access to termination server, email address and mobile phone and stopped paying employee while employee was on annual leave – found on an objective analysis, employee faced with similar situation would likely treat themselves as dismissed – employer claimed Small Business Fair Dismissal Code (Code) applied – Code allows employer to dismiss employee without notice or warning if employer believes on reasonable grounds that employee’s conduct is serious misconduct – witness affidavit in proceedings disclosed extensive misappropriations by employee – misappropriations constituted conduct that justifies immediate dismissal, however Code requires positive act of dismissal from employer – employee treated as constructively dismissed – found Code not a defence to unfair dismissal – Commission considered whether employee and employee’s representative engaged in unreasonable act or omission by filing Notice of Discontinuance six days before hearing – found employee and employee’s representative did not engage in unreasonable act or omission – found no jurisdiction to order costs – application dismissed. Versace v Fanissa P/L t/a PJ Pools & Spas
October 3, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant protected person from unfair dismissal – applicant contended dismissal harsh, unjust and unreasonable – respondent contended termination was genuine redundancy as decision made to restructure business – Commission considered whether applicant’s dismissal consistent with Small Business Fair Dismissal Code or whether case of genuine redundancy – evidence provided demonstrated applicant’s employment ended due to allegations of misconduct – Commission found respondent small business employer within the meaning of the FW Act – insufficient evidence that respondent’s belief of misconduct was objective and based on reasonable grounds – considered whether applicant’s dismissal was an unfair dismissal within the meaning of the FW Act – found applicant was unfairly dismissed and dismissal was harsh, unjust and unreasonable – reinstatement inappropriate remedy – compensation appropriate – respondent to pay applicant $5812. Carlin-Smith v Neirbo Real Estate P/L t/a Homes Group Estate Agents
October 3, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission found appellant’s dismissal was not unfair and dismissed unfair dismissal application – appellant advanced there were errors of law and errors of fact – submitted there was reliance on anonymous hearsay evidence; erroneous finding of facts contrary to rules of procedural fairness and Briginshaw standard was not applied – Coal & Allied and GlaxoSmithKline applied – Full Bench found evidence constituted contemporaneous representations about employee’s health, feelings, intention or knowledge or state of mind – hearsay rule did not apply to such evidence – no automatic prohibition in proceeding on reliance on hearsay or opinion evidence – not bound by rules of evidence and procedure but tend to follow rules of evidence – Full Bench not persuaded any arguable appealable error in first instance decision – no arguable case that first instance decision was unreasonable, manifested any injustice or was counter-intuitive – public interest test not satisfied – permission to appeal refused. Appeal by Pearse against decision of Anderson DP of 20 July 2017 [[2017] FWCFB 3817] Re: Viva Energy Refining P/L
October 3, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.595, 739 Fair Work Act 2009 – Construction Forestry Mining and Energy Union (CFMEU) lodged dispute under Stegbar P/L (SA Division) Enterprise Agreement 2014-2017 (Agreement) regarding employment conditions for installers and whether they were engaged by Stegbar as employees or contractors – matter did not resolve at conciliation – CFMEU asked Commission to arbitrate – Stegbar did not consent to arbitration and contended that dispute resolution procedure in clause 15 and appendix A of Agreement did not confer unilateral arbitration powers on Commission – Commission had to determine extent to which it could arbitrate dispute – Stegbar submitted s.595 of FW Act did not give Commission permission to deal with dispute – Woolworths considered – Commission found no express power to arbitrate dispute under Agreement – Commission dismissed application. Construction, Forestry, Mining and Energy Union v Stegbar P/L
October 3, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed by respondent as an Elevated Work Platform Operator – dismissed as a result of refusal to undergo a drug test – applicant claimed that the respondent did not have a valid reason for dismissal and that the dismissal was harsh, unjust or unreasonable – found request made of the applicant to take a blood test was not expressly permitted by the respondent’s drug and alcohol policy and was not a reasonable direction – no valid reason for dismissal – applicant not provided with the opportunity to respond to the dismissal – termination of the applicant’s employment was harsh, unjust or unreasonable – compensation of $8,150.21 ordered. Green v Lincon Logistics P/L t/a Lincon Hire & Sales
