Twenty-three unfair dismissal/labour dispute applications are listed for hearing in the Fair Work Commission today. The full list is: Aboriginal Prisoners and Offenders Support Services (Buckskin), Cropping Solutions (Aust) Pty ltd (Roderick), Coles Supermarkets Australia Pty Ltd (Higgins), Anglo Coal (Moranbah North Management) Pty Ltd (Wilson), Skilltech Consulting Services Pty Ltd (Rulewski), Jones and Co Management Pty Ltd (McConnell-Imbriotis), City of Sydney RSL & Community Club Limited (Balgowan), Department of Health and Human Services (Morag), The Trustee for Chaukra Family Trust (Cirillo), Macedon Ranges Shire Council (Hawkey), USG Boral Building Products Pty Ltd (Palmer), Little Moreton Pty Ltd (Rayner), South Pacific Health Club Pty Ltd (Fordham), Grandbridge Limited (Wiburg), City of Darebin (Byrne), Roshana Pty Ltd ATF the C&J Trust & Burswood Care Pty Ltd ATF the Roshana Family Trust (Alahakoon), United Cinemas (Berginc), MMG Australia Ltd (Harding), Federation University Australia (Wong), Kaizen Hospitals (Malvern) Pty Ltd (Vyramuthu), Uniting (Fox), Illawarra Coal Holdings Pty Ltd (McLachlan).
September 1, 2017
The first day of spring brings 20 unfair dismissal/labour dispute applications before the Fair Work Commission. The full list is: PFD Food Services Pty Ltd (Buttar), Wyndham Central Secondary College (Bumpstead), Contact Accountants and Advisors Pty Ltd (De Alwis Seneviratne), Australia JW Trading Pty Ltd & H & Y Brother Investment & Development Pty Ltd (Guan), Macedon Ranges Shire Council (Hawkey), DP World Australia (Piggot), The Nuance Group (Australia) Pty Ltd (Wong), Amber Traffic Design Group Pty Ltd (Chadwick), My Pauls Beer and Wine (Bowen), Ausino West Pty Ltd ATF The Supercrane Unit Trust (Raschilla), Griffin Coal Mining Company Pty Ltd (King), Strata Plan 11104 (Kiely), Undamine Industries Unit Trust Pty Ltd (Trieve), Marisa Sinacori (Sinacori), Technosoft (Australia) Pty Ltd (Das), RR Lifestyle Support Limited (Gibson), Architectural Project Specialist (Nicolaou), Stegbar Pty Ltd (Staniland), Business Risks International Pty Limited (Baker), Ticar Boats Pty Ltd (Christensen).
September 1, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – remedy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant commenced working for respondent in February 2015 as filleter/general hand – promoted to Production Supervisor in September 2015 – employed under terms of Seafood Processing Award 2010 (the Award) – respondent raised objection to application on basis that applicant’s dismissal was genuine redundancy – claimed serious downturn in business so reducing operating costs was only option – respondent decided to reduce labour costs by making three non-production roles redundant – Commission satisfied that there were genuine business reasons associated with downturn in profitability and performance and that role of Production Supervisor no longer existed – held that redundancy not a sham – parties gave evidence about consultation – meeting commenced with parties speaking at cross-purposes – Commission satisfied that most of the meeting concerned missing stock and the restructure was a short conversation – Commission found decision to make applicant redundant was impulsive, insensitive, extreme and unwarranted – applicant heard nothing more about restructure until meeting on 2 June where he was handed a letter advising he was redundant, effective immediately – Commission held that respondent did not consult in any meaningful way and there was no consultation within meaning of clause 8 the Award – failed to meet statutory requirement of consultation and cannot be ‘genuine redundancy’ – Commission further held respondent did not take all reasonable steps to redeploy applicant – jurisdictional objection dismissed – whether dismissal harsh, unjust or unreasonable – Commission found there were genuine operational reasons for business restructure so there was valid reason for dismissal – held dismissal was harsh, unjust or unreasonable notwithstanding valid reason – nature of failure to consult and failure to give reasonable consideration to redeployment were sufficiently serious to deny applicant ‘fair go all round’ – application granted – Commission recommended Member Assisted Conciliation on question of remedy – if process not undertaken or not successful, Commission to make decision on remedy. Buttar v PFD Food Services P/L t/a PFD Food Services
September 1, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by respondent company, who was contracted to Leighton Contractors at the Ichthys Onshore LNG Facilities Project (Project) – worked as Waste Water Treatment Plant (WWTP) Operator on Project – employed under terms of Leighton Contractors P/L Ichthys Onshore Construction Greenfield Agreement (Agreement) – respondent objected to application on basis that dismissal was genuine redundancy arising from direct changes to operational requirements on Project, resulting in four WWTP Operators being reduced to three – further submitted that it complied with Clause 24 of Agreement in relation to consultation – applicant claimed that redundancy was not genuine in that it was not necessary based on operational needs, that selection of applicant as person to be made redundant was unfair, that applicant had not been properly consulted and that applicant should have been redeployed – Commission satisfied that decision of respondent to reduce numbers of its WWTP Operators from four to three was because it no longer required one Operator’s job to be performed by anyone due to changes in its operational requirements – did not consider that consultation was meaningful within meaning of Clause 24 of Agreement and s.389(1)(b) of FW Act as effective consultation did not really commence until 9 January 2017 and applicant advised of dismissal on 11 January 2017 – Commission satisfied that respondent met its redeployment obligations – as s.389(1) of FW Act not satisfied, it followed that applicant’s dismissal was unfair – whether dismissal harsh, unjust or unreasonable – whilst Commission found that dismissal was bona fide redundancy, it was unreasonable – application granted – question of remedy – reinstatement not appropriate – considered that applicant received around $80,000 in redundancy entitlements – ordered compensation equivalent to two weeks’ pay plus 9.5% superannuation – parties to confer as to actual amount and advise Commission within seven days. Alvisio v Ventia P/L
September 1, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant applied for unfair dismissal remedy after being terminated by respondent on 7 April 2017 – basis for termination was serious and wilful misconduct – applicant was a director of the respondent since 16 February 1987 – applicant claimed he had not seen any official profit and loss statements or balance sheets for over 10 years – applicant claimed he was told that the respondent had made a loss on the books over the last two financial years – in October 2016 the applicant and the managing director of the respondent had an argument about a business issue – respondent submitted that the applicant directed obscene language to employees and made threats of physical violence – applicant submitted that he asked the managing director if he could see the company accounts and said if he did not get them he would get a lawyer involved – the applicant met with the respondent’s accountant on 22 March 2017 – shown a spreadsheet which disclosed losses in the last two financial years – the accountant did not provide the applicant with copies of any documents – applicant submitted he was then told by the managing director to resign as the respondent’s financial losses were his fault – on 7 April 2017 an altercation took place involving the applicant and the managing director – the Commission considered the respondent’s reasons for the applicant’s dismissal – found there was no reason why the applicant was not entitled to ask his solicitor to examine the company’s records – the applicant was rude and abusive and used derogatory and racist language towards the respondent’s staff – the applicant’s actions in calling the police on 6 April 2017 was not a valid ground for the applicant’s dismissal – Commission satisfied that on 7 April 2017 the applicant threatened to physically assault the managing director of the respondent – conduct found to be a valid reason for dismissal – found applicant’s dismissal was neither harsh, unjust or unreasonable – application dismissed. Essey v Rafic P/L t/a All-Fect Distributors
September 1, 2017
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – applicant made two applications for protected action ballot orders in relation to certain employees of respondent – both applications heard together – respondent is contract operator of a mine owned by a third party – respondent’s mining services contract due to expire in 30 November 2017 – respondent contended applicant did not genuinely try to reach an agreement in bargaining negotiations – apart from this contested issue there is no dispute between the parties – Commission satisfied statutory requirements otherwise were met – considered JJ Richards & Sons – whether applicant genuinely trying to reach agreement a question of fact to be decided having regard to all of the facts and circumstances of the particular case [Esso] – several bargaining meetings and conversations about the pay increases and other proposed agreement issues occurred – respondent was confident an extension of the contract would be obtained but it was subsequently not successful – some of the content was contested – applicant contended its motivation or purpose was not to place industrial pressure on any third party and was genuinely trying to reach an agreement with respondent to benefit its members – Commission satisfied applicant was aware, amongst other issues, that it would be unlikely to negotiate variations to a related agreement which would be acceptable to the relevant members – some evidence was rejected and accepted – Commission found applicant genuinely tried to reach an agreement with respondent – held protected action ballot orders must be made – orders issued. Construction, Forestry, Mining and Energy Union v Downer EDI Mining P/L t/a Boggabri Open Cut Coal Mine and Anor
September 1, 2017
ANTI-BULLYING – reasonable management action – s.789FC Fair Work Act 2009 – application for order to stop bullying – applicant employed since 2011 – made application against manager and supervisor as persons alleged to have engaged in repeated bullying behaviour since 2014 – applicant alleged bullying occurred in a series of incidents over a number of years – applicant claimed work environment ‘very toxic’ since manager joined – not contested that applicant was suffering from medical condition – employer submitted condition not result of applicant being bullied at work within meaning of s.789FD – employer submitted reasonable management action was carried out at all times – Commission found overall evidence supports conclusion manager took reasonable management action – applicant’s strong perception of being bullied not borne out by evidence – evidence showed conduct of manager and supervisor were at all times reasonable and applicant’s behaviour was inappropriate on a number of occasions – Commission found applicant’s pattern of behaviour sufficient to be satisfied, even in those incidents where manager and supervisor had been unable to recall incident, it is unlikely on balance that applicant’s allegations would have substance – application dismissed. Application by E.K
September 1, 2017
TERMINATION OF EMPLOYMENT – amendment of application – s.586 Fair Work Act 2009 – application for relief of unfair dismissal – applicant named incorrect respondent in application – identity of employer appeared on a number of formal documents such as payslips – other business documents used a different business name – employer representative filed a Form F3 response confirming details in original application – ABN on application was a clear reference to correct respondent employer’s ABN – Commission considered identity of respondent employer was at best unclear – amendment application does not involve revoking or setting aside the originating application – considerations heavily favour granting of application to amend – correct respondent has already been participating in proceedings – application amended to cite ‘Aus Water and Gas P/L’ as the respondent party – application for unfair dismissal to be listed for hearing. Simounds v Streamline Plumbing t/a Streamline Plumbing
