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
September 27, 2017
The Fair Work Commission will process twenty unfair dismissal/labour dispute applications today. The full list is: Audi Enterprises Pty Ltd (Caine, Zintchenko), Inco Ships (Lewer), St Augustines Catholic Church Melbourne (Pritchard), Emergency Services Telecommunications Authority (De Lany), Australia Post Corporation (Hachim), Federation University Australia (Wong), Baker Hughes Australia Pty Limited (Manescu), Griffin Coal Mining Company Pty Ltd (King), Lady of Grace Fraternity & Hogarth and Others, Estia Investments Pty Ltd (Laird, Tamvakis), Coal Services Pty Limited (Land), Glencore Coal (NSW) Processing Pty Ltd (Groves), Bulga Coal Management Pty Limited (Newton & Hartcher), Federation Training (Sheehan), Vitasoy Australia Products Pty Ltd (Barter), Are You Cool Enough Refrigeration Contractors Pty Ltd (Nissanka), Australia Post (Sambastian), Land Surveys No Problems Just Solutions Pty Ltd (Rice).
September 26, 2017
The Fair Work Commission will hear nineteen unfair dismissal/labour dispute applications today. The list is: WRL Pty Ltd (Dousset), Australian Criminal Intelligence Commission (Demos), Advantage Pharmacy Pty Ltd (Burford), Holcim Australia Pty Ltd (Alaimalo), Regis Aged Care (Jones), Coles Supermarkets Australia Pty Ltd (Singh), New Leaf Developments (Sim), Programmed Marine Pty Ltd (Reddan), Mission Impossible Cleaning Pty Ltd as trustee for The S & S Samawi Family Trust (Blandford), The Congregation of Presentation Sisters (WA) Incorporated (Wiener), Aussie Mate Pty Ltd (Sullivan), Mawland Quarantine Station Pty Ltd (Walters), MSS Security Pty Ltd (Sullivan), Advantage Pharmacy Pty Ltd (Burford), Walker Australia Pty Ltd (Graham), Sullivan Services Pty Ltd (Karetsian), Westpoint Auto’s (Benson), Programmed Marine Pty Ltd (Reddan), The Australian Capital Territory as represented but the Chief Minister, Treasury and Economic Development Directorate (Martsoukas).
September 25, 2017
Another light day in the life of the Fair Work Commission. The eleven labour dispute applications listed for hearing today include: The Camberwell Grammar School (Dai), Furniture Galore Pty Ltd (Broadhead), Toyota Motor Corporation Limited (Nguyen), Duct Masters (Vic) Pty Ltd (Bantos), NSW Trains (De Giusti), The Hughenden Boutique Hotel (De Castro Correa), Spectrum Community Focus Limited (Valenzuela), Bake Life Pty Ltd (Wales), Outside School Hours Care UT Pty Ltd (Riley), The Trustee for The KG Service Trust (Scott), Walker Australia Pty Ltd (Graham).
September 22, 2017
A mere handful of labour dispute applications are listed for hearing in the Fair Work Commission today. The full list is: Auscold Logistics Pty Ltd (Wells), Prosegur Australia Pty Limited (Kulas), Coastline Mower World (Chandler), Karan Grewal Pty Ltd (Gill), NSS Northern Stevedoring Services Pty Ltd (McNamara), City Tattersalls Club (Dimitrov), Degani Bowen Hills (Rennie), AustralianSuper Pty Ltd (Lim), Ultrabake Pty Ltd (Hovey), D&A Consulting Group Pty Ltd (Basily).
