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
August 31, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged one day late – applicant employed as Apprentice Plumber – claimed he was terminated for exercising a workplace right – claimed the delay in filing his application was due solely to an error by his legal representative – whether exceptional circumstances existed – Nulty considered – Perry and Robinson considered – Commission accepted applicant was blameless for delay in his application – satisfied applicant’s circumstances were exceptional – application for an extension of time was granted. Duffy v Glen McPherson Services P/L t/a Glen McPherson Services Plumbing
August 31, 2017
ENTERPRISE BARGAINING – protected action ballot – ss.437, 443 Fair Work Act 2009 – applicant made three applications for protected action ballot orders in relation to certain employees of the respondent – application opposed on grounds relating to form and nature of questions – respondent submitted any resulting action to parts of the questions could not be industrial action as defined by FW Act – found that while some communications may be industrial action does not mean that all communications will fall within the definition [Laing] – found that parts of question that involved stoppage of work for a period of time within which certain things must be done may amount to industrial action [Nillimbik] – found that parts of the question that go to wearing of campaign clothing and/or badges or a refusal to wear certain clothing may constitute industrial action [Mornington] – satisfied that three distinct applications for protected industrial action were made – satisfied the applicant was genuinely trying to reach agreement – questions in protected action ballot orders to be amended in accordance with decision – protected action ballot orders will be made. Australian Municipal, Administrative, Clerical and Services Union v Mornington Peninsula Shire
August 31, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – reasons for determination issued 11 August 2017 – dispute in relation to one employee and agreement provision about supplementary labour – limited evidence before Commission – union’s case raised an issue about company’s approach to an employee not be considered by the company for redeployment when the project in which he was engaged completed – Commission did not accept employee given special treatment by union based on his position as union delegate – appeared to be some lack of appetite to meaningfully reconsider redeployment of particular employee – company failed to provide information to union by agreed date – timing and circumstances of company’s provision of certain information was not conducive to productive discussions concerning employee – Company contended situation in relation to employee was a genuine redundancy – company would be well-advised to consult clause 58 (consultation) of Agreement in future – Commission anticipated further proceedings (appeal, adverse action or unfair dismissal) – noted consideration might be given to discussion of a range of potential redeployment options on upcoming projects concerning this and other employees – proceedings concluded. CFMEU v Fulton Hogan Construction P/L
August 31, 2017
TERMINATION OF EMPLOYMENT – unlawful termination – s.773 Fair Work Act 2009 – application to deal with unlawful termination dispute – lack of clarity about entity which relevantly employed applicant – ABN provided by applicant and respondent the same – respondent’s representative confirmed unit trust employed applicant – Commission’s internal research indicated discrepancies with matters concerning ABN numbers including location of respondent – Australian Business Register search for ABN provided entity as The Trustee for Allan Engineering Unit Trust with main business location in Victoria – website appearing to be associated with respondent’s enterprise lists different ABN – possible jurisdictional issues discussed with respondent, who sought legal advice and did not press objections to application – Commission lacked clarity but satisfied that in absence of anything from either party as to jurisdictional appropriateness, certificate could be issued – certificate issued. Williams v The Allan Engineering Unit Trust t/a Allan Engineering P/L
