GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – if the applicant’s employment ended on either 7 April or 10 April 2017 the application was made within the statutory time limit, however if the applicant’s employment ended on 9 March 2017, the application was made 29 days outside the statutory time limit – respondent disputed whether there was a dismissal at all and if there was a dismissal, the date the dismissal took effect – Commission found dismissal took effect on 7 April 2017 and that therefore the application was made within the statutory period – however, if wrong in this conclusion the Commission considered whether there were exceptional circumstances – Nulty considered – Commission not satisfied that the applicant provided an acceptable reason for the delay – applicant submitted that he provided material to establish a highly meritorious claim – applicant alleged he was dismissed because of his age – alleged the respondent dismissed him in an attempt to engage him as independent contractor – Haining considered – Commission held that the application had considerable merit and weighed in favour of granting the application – Commission satisfied there were exceptional circumstances – application for an extension of time granted. Molony v ATM Logistics P/L t/a ATM Logistics
September 1, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – reinstatement – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant terminated due to her position as General Manger being made redundant – respondent claimed General Manager position was split into 3 distinct new roles; Director, Human Resources Manager, Community Programs Manager – Commission considered whether dismissal harsh, unjust or unreasonable – found role of General Manager included all of the key responsibilities and functions of new Director role and certain functions were removed to create new HR Manager and Community Programs Manager roles – found respondent deliberately created prerequisite requirements for new roles higher than what applicant possessed in order for applicant to be unsuccessful in winning the new roles – not satisfied employer had valid reason to terminate applicant – termination was harsh and unfair – appropriate remedy reinstatement to role of Director – Order that applicant maintain continuity of employment as Director and compensated for all remuneration which has been lost, less any money paid by way of notice and redundancy. Girdler v Western Sydney Community Legal Centre Incorporated t/a Western Sydney Community Legal Centre (WSCLC)
September 1, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – alleged dispute about classifications in the Nilsen (Vic) P/L Enterprise Agreement 2010- 2014 (Agreement) – applicant claimed eight employees were entitled to be re-classified from EW5 to EW6 with appropriate back-pay – whether skills of employees met requirements of EW6 level and whether they were employed to use the skills acquired through the training or experience specified – interpretation of classification descriptions in Agreement – AMWU v Berri applied – on the evidence Commission held six employees had skills required for progression to EW6 – held classification/reclassification provision in Agreement was unambiguous in meaning and provided a very strong mandatory direction in relation to application of classification definitions – held nothing in the evidence indicated the employees had not in the normal performance of their duties exercised the competencies required for EW6 – satisfied the six employees should be reclassified to EW6 level – in relation to back-pay, nothing before Commission which permitted Commission to determine the six employees had met requirements for reclassification to EW6 at any time prior – finding that six employees should have been reclassified does not mean any of them have a continuing entitlement to remain at EW6 – dispute determined. Nilsen (Vic) Pty Ltd Enterprise Agreement 2010-2014
September 1, 2017
ANTI-BULLYING – worker – s.789FC Fair Work Act 2009 – preliminary issues – the applicants lodged applications for order to stop bullying against Mr King the General Manager of Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc) and APY Inc, together they are the respondent parties – the respondent objected to the application on the grounds that the applicants are not ‘workers’ and that the application was vexatious and an abuse of process – applicants alleged amongst other things that Mr King failed to act consistently with the resolutions passed at meetings – the applicants sought for the Commission to determine the validity of the meetings – Commission found that it did not have the jurisdiction to determine whether the meetings were validly convened or whether the resolutions were validly passed and complied with state legislation – Commission also found that it should not attempt to deal with the substance of the application until the issues to do with the legality of the meetings was properly dealt with – application adjourned. Re George and Anor
August 31, 2017
A mere twenty applications governing unfair dismissal/labour disputes are listed for hearing today in the Fair Work Commission. The full list is: Southern Cross Community Healthcare Pty Ltd (Kellner), LT Joint Venture Pty Ltd (Chapman), Pitstop Recharge Pty Limited (Kikiras), Uber (Whitney, Harries), Kimberly Clark Australia Pty Limited (Singha), Endeavour Energy (Grimson), Patrick Projects Pty Ltd (Deeney, Hughes, Park, Seiffert), Australia JW Trading Pty Ltd & H & Y Brother Investment & Development Pty Ltd (Guan), Jo Mercer (Resta), LINX Cargocare Pty Ltd (Martin), Omega Chemicals (Skrzelinski), Berry Street Victoria Inc (Okiya), Brisbane Marine Pilots Pty Ltd (D’Alessandro), Teekay Shipping (Australia) Pty Ltd (Smale), Smithfield Smash Repairs (Ferguson), Australia Personnel Global (Kumar).
August 31, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – rehearing – ss.387, 389, 394 Fair Work Act 2009 – seven applications for remedy for unfair dismissal – all applications, except Mr Pemberton’s, filed on 29 July 2015 – Mr Pemberton’s application filed 9 September 2015 – respondent filed response alleging dismissals were genuine redundancies – applications heard together – Commission dismissed applications on 4 May 2016, on basis that it was satisfied each matter involved a case of genuine redundancy – applicants appealed – on 25 January 2017, Full Bench allowed appeal and quashed initial decision to dismiss and referred matter back to Commission for rehearing – as Full Bench decided that termination of applicants’ employment was not a case of genuine redundancy, Commission required to be satisfied the dismissal of each applicant was harsh, unjust or unreasonable – applicants contended there were four main reasons for unfair dismissal: 1) process that led them being selected for redundancy was unfair, not objective or transparent, and partial in application, 2) reasonable for applicants to be redeployed within respondent’s business, 3) respondent failed to consider redundancy swaps, and 4) respondent completely failed to have any regard to applicants’ personal circumstances – Commission considered the Knowledge and Skills Assessment Process (KSA), which was the process used by respondent in selecting individuals who were to be made involuntarily redundant – KSA process involved development of criteria against which employees were scored from 1 to 5 and have scores totalled and ranked against workforce – lowest scoring workers would be dismissed by reason of redundancy – final criteria that was applied to applicants were: positive attitude, attendance, punctuality and reliability, commitment to customer service, supportive team behaviour towards peers and leaders, is proactive and demonstrates initiative, demonstrates value of ‘home safely everyday’, performance record, driver level, technical qualification, time driving, and experience at multiple locations – Commission considered that almost half of the selection criteria were subjective and noted that whilst there was nothing inherently unfair in including subjective criteria, it must be recognised that an otherwise unobjectionable selection criteria could result in unfair outcome if not applied consistently and transparently – held that evidence supported finding that KSA criteria was not applied consistently and transparently – held that KSA process failed through poor execution – Commission agreed with Full Bench that failure of respondent to consider swaps supported finding that terminations of employment were harsh, unjust or unreasonable – Commission held this was not determinative of question whether terminations of employment were, in all circumstances, unfair – Commission held that respondent confined its considerations to matters provided for in Enterprise Agreement, but considered it relevant for respondent to have regard to personal circumstances of each applicant – held that dismissal of Mr Skinner was unreasonable because it was decided upon inferences which could not reasonably have been drawn from material before respondent – held that dismissal of Mr Pemberton was not harsh, unjust or unreasonable because he had a very low KSA, was not interested in redeployment and was only interested in a move to Brisbane – held dismissal of Mr Ross was not harsh, unjust or unreasonable as he had a very low KSA, did not apply for redeployment, and was unable to be offered a swap as he was still in training – held that dismissal of Mr Lucas was unreasonable as he was experienced driver and scored highly on objective criteria in KSA, so it appeared that it was decided upon inferences which could not reasonably have been drawn from material before respondent – held Mr Hill’s dismissal was not harsh, unjust or unreasonable because he had a very low KSA, and a VR or other redeployment options were less viable as he was still in training – held dismissal of Ms Bryant not harsh, unjust or unreasonable as she had a very low KSA and was not seriously interested in redeployment – held dismissal of Mr Preston was not harsh, unjust or unreasonable as he lacked any interest in redeployment and he had a low KSA score – applications of Mr Skinner and Mr Lucas granted and further hearing for remedy to be convened – applications of Mr Pemberton, Mr Ross, Mr Hill, Ms Bryant and Mr Preston dismissed. Skinner and Ors v Asciano Services P/L t/a Pacific National Bulk
August 31, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for misconduct – applicant alleged no valid reason for dismissal – disputed facts between applicant and respondent – Commission found working environment at respondent disorganised and communications were of a robust nature – use of dismissal as motivational tool was regularly employed by respondent who appears to have set the tone – applicant appeared to follow that lead – applicant’s lateness explained by child care responsibilities – respondent’s issue with applicant’s smoking was that applicant smoked, rather than time spent outside the office – applicant may have acted inappropriately but these concerns not expressed as part of a formal disciplinary process – disciplinary approach appeared inconsistent with approach taken towards other employees – respondent accepted there was an absence of procedural fairness – Commission found the conduct complained of not sufficient to provide a valid reason for dismissal – applicant not advised at the time of reasons for dismissal – no opportunity to respond – no warnings given to indicate her conduct or performance placed her employment in jeopardy – dismissal was harsh, unjust or unreasonable – reinstatement not appropriate – applicant sought to mitigate loss – compensation of $4943 less income earned awarded – order will be issued. Knight v Fawcett Plumbing P/L t/a Fawcett Plumbing
August 31, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for alleged unapproved and unsubstantiated absences and alleged failure to comply with lawful directions – applicant absent from work for medical reasons and provided medical certificates as evidence – made formal complaint about immediate supervisor in which some allegations were substantiated – respondent claimed applicant did not provide reasons for absences, did not communicate the absences and did not comply with directions to attend meetings – whether dismissal harsh, unjust or unreasonable – whether reason for dismissal sound, defensible or well founded – Commission found no valid reason for dismissal related to applicant’s capacity or conduct – dismissal harsh, unjust and unreasonable – reinstatement inappropriate – 8 weeks compensation including a separate amount to his superannuation account, less taxation, ordered. Saunders v CSL Limited t/a CSL
