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
August 31, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant’s application for an unfair dismissal remedy was lodged 8 months outside statutory time limit – at first instance Commission not satisfied there were any exceptional circumstances that warranted the granting of an extension of time – Full Bench asked the appellant about his general protections application – formed the view that the appellant will require leave of the Federal Court of Australia (FCA) or the Federal Circuit Court (FCC) to correct his application to a general protections application involving dismissal (s.365) – if leave is granted by the FCA or the FCC appellant will have to determine whether to pursue his s.394 or s.365 application – s.725 of the FW Act prevents the appellant from making a s.365 application until after the unfair dismissal application has been withdrawn, failed for want of jurisdiction or failed because the dismissal was a case of genuine redundancy – appellant elected to proceed with s.365 application and requested that no further hearing occur on this matter – appellant requested reasons in relation to his appeal – Full Bench determined the question of permission to appeal – noted permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so – appeals on questions of fact may only be made on the basis that the decision involved a ‘significant error of fact’ – appellant submitted Commission failed to be guided by the rules of fairness and independence – erred by considering the extension of time before considering the minimum employment period and employment status – erred in not finding that there were exceptional circumstances – Full Bench not satisfied that there was an arguable case of error – not satisfied that it would be in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Raza against decision of Dean DP of 23 March 2017 [[2017] FWC 1662] Re: Harbour Roof Tiling P/L
