TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent small business – submitted applicant was dismissed because he had committed fraud – applicant did not deny what he was accused of – He submitted this was not the reason he was terminated – Commission considered whether employer held belief at time of dismissal based on reasonable grounds – Commission found application dismissed on basis other then what was stated at the time of dismissal – not satisfied respondent demonstrated it complied with the Code – Byrne and Frew considered – Commission found dismissal was not unfair but unreasonable given the absence of natural justice – applicant did not seek reinstatement – Sprigg adopted to calculate compensation – Commission found remuneration loss was no more than two weeks from the date applicant was dismissed – Commission held compensation not appropriate given circumstances. Humphreys v The Trustee for the Chunys Trust t/a Home Giraffe
September 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant commenced employment with respondent on 24 May 2001 and at the time of termination was working as Process Specialist – respondent conducts underground mine – an explosion occurred at the smelting facility at the site – alleged misconduct in failing to evacuate and conducting inspection of furnace following a serious incident in smelter building – direction from supervisor given not to evacuate – not unreasonable to stay and conduct inspection of explosion, but the manner in which inspection was conducted was unsafe and beyond the instruction given – employment terminated on 31 March 2017 – Commission found there was a valid reason for dismissal by failing to adhere to policies and procedures, however, on balance, the dismissal was harsh in circumstances – Commission found reinstatement was not appropriate due to loss of trust and confidence – Commission considered projected remuneration applicant would have received based on anticipated period of employment to be $99,406 – 30% deduction for contingences – 30% deduction for misconduct – deduction of notice payment – applicant awarded $47,676 in compensation. Johnson v BHP Billiton Olympic Dam Corporation P/L
September 14, 2017
TERMINATION OF EMPLOYMENT – valid reason – misconduct – remedy – ss.387, 392, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by respondent since November 2011 as Warehouse Supervisor – applicant also operated trucking business which respondent utilised on regular basis until recently – applicant sustained back/hip injury in July 2016 and was absent from work until 25 August 2016 – returned to work with limited hours and restricted duties – resumed fulltime hours in December 2016 remaining on restricted duties – on 27 April 2017 applicant called into meeting and asked whether he had played golf on annual leave on 27 September 2016 – applicant confirmed he did – at meeting following morning applicant given show cause letter stating concerns applicant’s golf playing put himself at risk of aggravating his existing injury and affected his return to work plan – applicant responded on 3 May 2017 declining playing modified golf impacted on physical recovery – employment terminated on 4 May 2017 by email on grounds of serious misconduct on basis he deliberately and wilfully breached his return to work obligations by playing golf – whether valid reason for dismissal – Commission not satisfied valid reason as indication any medical advice or opinion sought about whether playing golf as applicant described would conflict with physical limitations and return to work plan – Commission not satisfied evidence supports respondent’s contentions applicant deliberately concealed fact he played golf and acted dishonestly – Commission held applicant unfairly dismissed and dismissal was harsh and unreasonable – applicant not seeking reinstatement – Commission of the view reinstatement not appropriate remedy in all the circumstances – applicant unable to obtain other employment – paid five weeks’ notice – Sprigg considered – Commission not satisfied that misconduct warranted reduction in amount of compensation ordered – considered applicant’s receipt of additional workers’ compensation payments – applicant to provide Commission further information in relation to workers’ compensation payments since dismissal – quantum to be decided at later date. Moody v C.T. Freight P/L
September 14, 2017
RIGHT OF ENTRY – dispute over right of entry – s.505 Fair Work Act 2009 – primary decision published 8 August 2017 and parties given opportunity to file submissions – applicant sought two orders – order requiring respondent to allow permit holders of the applicant to hold discussions with members and potential members under s.484 of the FW Act while they are on an actual break – order requiring respondent to provide a notice outlining respondent’s obligations – whether Commission would be exercising judicial power or arbitral power – whether an application invites use of judicial power depends on circumstances [Re Geelong Grammar School] – Commission must not confer rights on a permit holder that are additional to or are inconsistent with rights afforded under the FW Act [Police and Nurses Credit Society] – ascertainment of legal rights and obligations is classically a judicial function [CFMEU v BHPB] – in primary decision, Commission found permit holder of applicant was seeking to hold discussions with employees on four occasions and respondent prevented him from doing so – Commission noted first order did not seek to create any new rights or obligations – found first order essentially a restatement of provisions of FW Act which did not establish exercise of judicial power was being sought – found second order would assist to reduce right of entry disputes – satisfied making of orders would involve exercise of arbitral power, not judicial power – draft orders, effective for 12 months, given to parties – parties directed to file submissions by 1 September 2017. Construction, Forestry, Mining and Energy Union v Laing O’Rourke Australia Construction P/L t/a Pacific Complete
September 14, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant covered by the Hyne Timber Tumbarumba Enterprise Agreement 2015 (Agreement) – jurisdictional objection raised on basis of genuine redundancy – Commission considered meaning of genuine redundancy – whether respondent complied with consultation obligations under the Agreement – meaning of major change – Commission satisfied respondent had obligation to consult under Agreement – held respondent did not comply with its consultation obligations – Commission satisfied redeployment would have been reasonable – dismissal not a case of genuine redundancy – Commission satisfied dismissal was harsh, unjust and unreasonable – held dismissal was unfair – remedy – reinstatement to applicant’s prior role inappropriate – parties directed to file additional material in relation to reappointment and compensation – order and directions issued. Cepile v Hyne Timber P/L
September 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – Application for unfair dismissal remedy – jurisdictional objection – whether applicant voluntarily resigned or dismissal at the initiative of the respondent – meaning of dismissed per s.386 FW Act – applicant claimed he had been dismissed by a text message which constituted a repudiation of his contract of employment – respondent claimed applicant had been given warnings about absenteeism and failure to notify of his absence – on balance of probabilities, Commission found applicant did not expressly resign from employment – respondent’s text message found not to constitute dismissal at its initiative – found applicant’s employment ended following his failure to attend for work beyond 16 January 2017 and failure to communicate concerns he had following receipt of text message – applicant unreasonably concluded he had been dismissed – no dismissal – jurisdictional objection upheld – application dismissed. Engelbrecht v BMI Group P/L t/a BCC Crushing
September 14, 2017
The Fair Work Commission unfair dismissal/labour dispute application list today includes: Wulguru Meat Market Pty Ltd (Tepania), Potinak P/L ATF Rainbow Motor Inn Unit (Deeb), Wilmar Sugar pty Ltd (Gallbraith), Coastal Broadcasters Pty Ltd (Wallace), Australia National Institute of Business (Jha), Community Based Support Inc (Bentley), MMG Australia Ltd (Harding), OzStaff Holdings Pty Ltd (Greer), Health Services Union-Victoria No.1 Branch (Sanli), Needlework Tours Pty Ltd (Olesen), Vitasoy Australia Products Pty Ltd (Barter), Starfix Pty Ltd ATFT OneAgency South Unit Trust (Dariol), Mt Arthur Coal Pty Limited (Folpp), The Reserve Bank of Australia (Steko), Australian Turf Club Ltd (Steele), Citizen Advocacy Western Sydney Inc (Fraser), South Sydney Junior Rugby League Club Ltd (He), Sydney Trains (Malik), Plaza Premium Lounge Australia Pty Ltd (Poh), Uniting (Fox), Robotic Automation Pty Ltd (Davis), Alsco Pty Ltd (Pawsey), LVMH Perfume and Cosmetics (Taylor), Silver Chain Group Limited (Michnik), TransGrid (Ali), MMG Australia Ltd (Harding), Securecorp Pty Ltd (Boyd, Brambilla, De-Ruiter), The Islamic Society of Victoria Inc (Abou-Eid), Oolong Aboriginal Corporation (Longbottom), Nestle Australia Limited (Booker), Australian Leisure and Hospitality Group Pty Ltd (Hadjifotis), Starfix Pty Ltd ATFT OneAgency South Unit Trust (Dariol), Chelsea Flooring Pty Ltd (McDonald), Navitas English Pty Ltd (Khayam), BHP Coal Pty Ltd (Hayes), Wilmar Sugar Pty LTd (Galbraith), Coal Services Pty Limited (Land), A and A Excavations (Cooper), Prosegur Australia Pty Limited (Kulas), The Arlberg Hotel (Innes), Architectural Project Specialist (Nicolaou), Bupa HI Pty Ltd (Williams), Scope (Vic) Ltd (Sekirski), State of Victoria (Department of Education & Training) (Freeman), Spotless Facility Services Pty Ltd (Issa), Northwest Supermarkets Pty Ltd (Johnson), Needlework Tours Pty Ltd (Olesen), The Local Shack Pty Ltd (Wright), Amber Aviation Academy Pty Ltd (Agarev), Barada Barna Aboriginal Corporation (Dargan, Roos), G8 Education Ltd (Buchanan), Nioa Nominees Pty Ltd (Primrose), TAB Staffing Pty Ltd (Smith), Coastal Broadcasters Pty Ltd (Wallace), One Key Resources Pty Ltd (Olive), ACT Government – Transport Canberra and City Services (Rodger), Nunga Mi: Minar Incorporated (Joy), Clare Castle Hotel (Will).
September 8, 2017
The Fair Work Commission will hear nineteen unfair dismissal/labour dispute applications today. The full list is: BlueScope Steel (AIS) Pty Ltd (Troiano), Illawarra Coal Holdings Pty Ltd (McLachlan), Walga Mining and Services Pty Ltd (Micheluzzi), JB Chung Enterprises Pty Ltd (Michailidis), Fawcett Plumbing Pty Ltd (Knight), Victory Church (Dailly), Superior Wood Pty Ltd (Lee), Brisbane Marine Pilots Pty Ltd (D’Alessandro), Giovenco Industries (Aust) Pty Ltd (Plummer), Pritchard-Gordon Racing Pty Ltd (Cunningham), Manningham City Council (Glenister), Visy Technology Systems Pty Ltd (Bender), Bluebird Horsham (Rowe), MVRC Junction Club (Ellikuttige), Jugiter Pty Ltd (Gavin), Causeway Holdings Pty Ltd (Wingate), Clarke Kann Lawyers (Layton), Westpac Banking Corporation (Mistry), Marisa Sinacori (Sinacori).
