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
August 31, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – application lodged 22 days after dismissal took effect, that is, application was 1 day out of time – applicant submitted reason for delay was representative error – applicant engaged union official for advice and to lodge application on applicant’s behalf – union official miscalculated the number of days of when the dismissal took effect – letter of termination inferred dismissal took effect on 9 June when in fact dismissal took effect on 8 June – Union official relied on date in letter of termination – Commission considered whether exceptional circumstances existed to warrant an extension of time – found letter of termination inadvertently contributed to representative error – found applicant did not contribute to act or omission to the representative error – satisfied exceptional circumstances exist to warrant extension of time – application for extension of time granted – application will proceed to hearing on the merits unless resolved between the parties – order will be issued. Aunger v Vinpac International P/L
August 31, 2017
CASE PROCEDURES – representation – ss.394, 596 Fair Work Act 2009 – Application for unfair dismissal remedy – applicant and respondent sought permission to be represented by paid agents pursuant to s.596 of the FW Act – neither party objected to the other being represented – Commission not satisfied that the matter was unduly complex – not satisfied that parties would be unable to represent themselves effectively – Commission satisfied that unnecessary formality would be created by the granting of permission – Commission not satisfied that denying permission would lead to a situation of unfairness for either party – permission for representation denied. Guillemain v Woolworths Ltd t/a Melbourne Liquor Distribution Centre
August 31, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant summarily dismissed – respondent alleged applicant had made fraudulent workers’ compensation claim – Commission satisfied that respondent carried out thorough and considered process in dealing with the applicant – Commission also satisfied that the decision to terminate employment was ‘sound defensible and well founded’ – respondent had a valid reason for dismissal – no considerations in s.387 lead to the conclusion that the dismissal was unfair – application dismissed. Willmot v BlueScope Steel Limited
August 31, 2017
CASE PROCEDURES – stay order – ss.604, 606 Fair Work Act 2009 – appeal – appellant sought stay of decision in unfair dismissal matter which found respondent’s annual rate of earnings was less than high income threshold – Commission satisfied there is an arguable case with some reasonable prospects of success in respect of both the question of permission to appeal and the substantive merits of the appeal that the Commissioner did not have regard to all material facts – when assessing respondent’s earnings and considering car allowance, Commissioner failed to take into account payments appellant had made in relation to petrol and tolls – Commission satisfied the balance of convenience favoured granting stay – stay would place temporary pause on requirements for preparation of materials for determination of jurisdictional objections and merits of unfair dismissal application while appellant seeks permission to appeal and Commission deals firstly with that application and then the appeal proper, should permission be granted – Commission decision of 7 August 2017 and directions issued in relation to unfair dismissal matter on 10 August 2017 stayed. Appeal by Sam Technology Engineers P/L against decision of Ryan C of 7 August 2017 [[2017] FWC 3228] Re: Bernadou
August 31, 2017
CASE PROCEDURES – stay order – ss.604, 606 Fair Work Act 2009 – appeal – application for a stay order for the whole decision and orders of Wilson C with directions issued by the Commission – a stay would pause directions requiring preparation of material for unfair dismissal hearing until appeal is determined – original unfair dismissal application lodged 164 days out of statutory time limit – extension of time granted based on the combination of applicants mental illness, lack of knowledge and misapprehension – appellant’s grounds of appeal comprised eight paragraphs – an arguable case was disclosed for both permission to appeal and merits of appeal by the following grounds: (1, 2, 8) Commissioner erred in finding acceptable reason for delay and reached a counter-intuitive and unjust decision, having taken into account irrelevant factors (4) Commissioner erred in finding of date of applicants becoming aware of termination of employment was a neutral factor – also considered Commission erred in failing to consider the entirety of period between expiration of statutory time limit and filing of application – Commission satisfied that the balance of convenience favours granting of a stay – stay order issued for whole of decision and orders of Wilson C and directions issued by the Commission on 8 August 2017. Appeal by Woolworths Ltd against decision and order of Wilson C of 2 August 2017 [[2017] FWC 4019] Re: Lin
August 31, 2017
CASE PROCEDURES – stay order – ss.400, 604, 606 Fair Work Act 2009 – appeal against decision of Hampton C of 20 July 2017 – Commission determined employee’s dismissal unfair as it was harsh and concluded reinstatement was an appropriate remedy – appellant seeks a stay of the whole of the decision pending the hearing and determination of the appeal – employee resumed employment and is currently completing an induction which would enable him to recommence his duties as an driver – appellant pressed stay application with some urgency as not to allow employee to resume driving duties – Commission not persuaded appellant’s argument had reasonable prospects of success and therefore not persuaded the balance of convenience favours the grant of a stay – a stay would deprive the employee of income which would flow to him as a consequence of the reinstatement order – application for a stay order dismissed. Appeal by Reliable Petroleum P/L against decision of Hampton C of 20 July 2017 [[2017] FWC 3552] Re: Murray
August 31, 2017
CASE PROCEDURES – referring question of law – s.608 Fair Work Act 2009 – President delegated function and powers under s.608 of FW Act to Vice President – question sought to be referred to Federal Court concern validity of sections of FW Act pertaining to when a person is protected from unfair dismissal – Vice President satisfied proposed question is one of law however not satisfied the question of law arose in a matter before the Commission – application dismissed. Calleri v Swinburne University of Technology
