GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged on 8 August 2017 – respondent raised jurisdictional objection on 22 August 2017 on the basis the application was lodged out of time – both parties advised the extension of time issue would be considered at telephone conference on 8 September 2017 – both parties agreed dismissal was on 17 July 2017 – applicant consulted AMWU representative – AMWU industrial officer prepared and lodged a claim on behalf of the applicant and lodged application one day late – Nulty considered – Commission noted application made one day outside 21 day time limit and a general protections application can only be pursued if time limit is extended – satisfied representative error – applicant appropriately followed up claim and provided credible explanation for entire period of delay – merits of application regarded as a neutral factor – extension of time granted and application referred for conciliation – order reflecting this decision to be issued. Michailidis v JB Chung Enterprises P/L t/a Rapid Tune Greensborough
September 28, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – small family-run business – differing accounts as to conversations between applicant and owner’s son leading up to cessation of employment – Commission made factual findings on balance of probabilities that determined outcome of case – satisfied no communications between applicant and respondent constituted express termination of employment – no action by respondent either intended to end employment or had probable result of bringing employment relationship to an end [Barkla] – applicant’s employment was not terminated at respondent’s initiative – not a case in which applicant was forced to resign because of respondent’s conduct – found applicant was not dismissed within meaning of s.386 – application dismissed. Cooper v A and A Excavations & Landscapes P/L
September 28, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed by Coles Express petrol station – applicant dismissed on the basis of acting dishonestly by claiming she put fuel in her car to test the fuel pump and encouraging a co-worker to take fuel – applicant claimed other employees have stolen in the past and have not been dismissed and she was treated differently because she was a member of the Sikh religion – Commission considered whether dismissal was harsh, unjust or unreasonable – found valid reason for dismissal related to applicant’s conduct – found applicant acted dishonestly when she took fuel without paying, claimed to have forgotten to pay for fuel and encouraged coworker to take fuel – found no evidence that religion or culture influenced applicant’s dismissal – dismissal was not harsh, unjust or unreasonable – application dismissed. Garg v Eureka Operations P/L t/a Coles Express Brandon Park
September 28, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as office administrator on casual basis three days per week from 10 May 2011 until dismissal on 31 May 2017 – respondent asserted dismissal genuine redundancy – applicant contended redundancy a sham and dismissal harsh, unjust and unreasonable – application dealt with by determinative conference – Commission to determine whether respondent no longer required applicant’s job to be performed by anyone due to change in operational requirements – applicant offered full-time role within showroom but declined – Commission considered compliance with consultation obligations under clause 8 of Clerks – Private Sector Award 2010 – satisfied respondent complied with obligations – Commission considered if reasonable for the applicant to be redeployed within respondent’s enterprise – satisfied not reasonable for applicant to be redeployed – found dismissal was a case of genuine redundancy – application dismissed. Staniland v Stegbar P/L
September 28, 2017
CASE PROCEDURES – apprehension of bias – ss.365, 372 Fair Work Act 2009 – general protections application to deal with contraventions involving dismissal – heard with concurrent s.372 non dismissal application – respondent agreed to resolve payment of leave and superannuation issues – applicant agreed to settlement – respondent paid settlement amount – applicant notified Commission that matters were not resolved – Commission notified parties stating parties reached in-principle agreement at conference therefore Commission unable to issue certificate – referred parties to decision in McCaffrey – parties directed to file submissions – applicant requested matter be heard by another Member – allegation of actual or apprehended bias based on Commissioner’s knowledge and reference to Workplace Protection Order against applicant entering Canberra Registry – necessary for applicant to demonstrate that a fair minded and informed observer might conclude a real possibility decision maker not impartial – no doubt parties reached agreement in conference – conference falls within first category in Masters v Cameron – irrelevant applicant did not sign terms of settlement – agreement extinguished original course of action and replaced with new course based on agreement – satisfied application resolved by settlement at conference – adopted reasoning in McCaffrey – Commission declined to issue certificate. Hunter v Anthony Costello Automotive
September 28, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed for serious misconduct – involved banned practice of accepting gifts from passing boats – both respondents’ valid reason for dismissal and lack of any significant procedural unfairness weighed against finding dismissal unfair – whether dismissal harsh, unjust or unreasonable – applicant acted in breach of respondent’s policy – constituted valid reason for termination – applicant not explicitly and clearly notified dismissal was possible outcome of performance improvement meeting – applicant given opportunity to respond – decision to terminate not predetermined – other relevant matters including significant impact of dismissal on applicant’s personal and economic situation considered – unlikely to secure alternative employment – unblemished employment history – found summary dismissal a disproportionate response – several mitigating circumstances – applicant unfairly dismissed – reinstatement ordered – continuity of service and partial restoration of pay. Clements v Downer EDI Works P/L
September 28, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant’s request for annual leave in April denied – warned employment may be terminated if she did not attend work during leave request period – applicant did not attend for work on 10 April or any time thereafter – filed unfair dismissal application – Commission found actual reason for applicant’s dismissal was refusal to comply with instruction to attend work – found employer’s refusal approve April leave request unreasonable – employer’s 13 and 21 April communications represented inappropriate and inaccurate notification of dismissal – found no valid reason for dismissal – unreasonable and unjust process – dismissal harsh, unjust and unreasonable – 16 week’s compensation ordered. Stevens v Horsley Park Supermarket P/L t/a Carlo’s IGA Horsley Park
September 28, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as a CNC machinist – role required him to bend over machines for a long time – claimed this had resulted in the significant exacerbation and acceleration of an underlying degenerative disc disease – respondent submitted the applicant had never raised any problems he was having with his back – applicant was given a difficult job that would have required him to bend over a machine for 10 to 12 hours – applicant refused job citing back pain – respondent submitted applicant was seeking more money – said if the applicant was not going to do the job he would ‘have to leave the company now’ – audio recording of meeting between parties admitted into evidence – Commission found applicant did not refuse to perform the task because of the state of his lower back, but because he thought he should be paid more – found applicant was not unfairly dismissed – application dismissed. Zhang v Meeke Engineering
