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
September 1, 2017
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
