TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for alleged bullying of colleague – applicant allegedly approached colleagues, requested they join a union and behaved aggressively when colleagues declined – applicant allegedly told one colleague he would isolate him and another colleague he would find a way to have his employment terminated if they did not join union – applicant gave evidence that he had conversations with colleagues about joining a union but he did not pressure them in any way and the exchanges were not heated – colleague made complaint about applicant’s behaviour – respondent conducted preliminary investigation but matter did not resolve – commissioned external investigation which found allegation to be substantiated – applicant’s employment terminated for reason of bullying under definition of the FW Act – whether dismissal harsh, unjust or unreasonable – Commission satisfied on the balance of probabilities from evidence that respondent had valid reason for dismissal – no procedural flaws – no other matters – applicant not unfairly dismissed – application dismissed. King v The Trustee for Bartlett Family Trust t/a Concept Wire Industries
August 10, 2017
TERMINATION OF EMPLOYMENT – contract for specified term – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant alleged she was unfairly dismissed by the respondent – submitted question to be determined was whether cessation of employment was objectively the probable result of conduct – claimed her employment did not end with each engagement and although no guarantee of follow-up engagement, employment did not end until brought to an end by either party giving notice – respondent claimed applicant was not dismissed within the meaning of s.386 FW Act – submitted applicant’s contract of employment ended due to the effluxion of time – whether applicant’s employment terminated at respondent’s own initiative – Lunn applied – Commission found applicant was employed under a series of sessional engagement agreements which had a specific beginning and end – found contracts offered to applicant were for non-ongoing employment and for defined terms – application for unfair dismissal without jurisdiction – application dismissed. Tran v Online Education Services P/L t/a Swinburne Online
August 10, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – s.36 Acts Interpretation Act 2901 – application to deal with contraventions involving dismissal – whether s.36 of the Acts Interpretation Act 1901 (Cth) applied – due to public holiday in Queensland application lodged one day out of time – Commission satisfied application was made within time – no extension required – noted if application of s.36 of the Acts Interpretation Act incorrect Commission needed to consider whether exceptional circumstances existed [Nulty] – reason for delay by applicant included representative error – respondent argued date of lodgement actually 7 June 2017 – Commission satisfied original application lodged on 2 May 2017 contained sufficient information – found delay did not prejudice respondent – held s.36 of the Acts Interpretation Act applied – if not, Commission satisfied exceptional circumstances existed – extension of time granted – application referred for conciliation. Springfield v Hegele Logistics Australia P/L
August 10, 2017
INDUSTRIAL ACTION – order against industrial action – interim order – ss.418, 420 Fair Work Act 2009 – application for orders that industrial action stop, not occur and not be organised – application directed at AMWU and applicant’s employees who were AMWU members, or eligible to be members, and who worked at Dandenong site – applicant had not served employees – AMWU opposed application but needed further instructions – applicant suggested interim orders be made in circumstances – Operations Manager gave evidence that after AMWU delegate expressed concerns about new drug and alcohol policy, employees failed to work rostered overtime – as far as practicable, Commission must determine application for order to stop or prevent industrial action within two days after application is made – if Commission is unable to determine application within two days, it must make interim order – Commission adopted approach to making interim orders expressed in [Fredon] – it is a condition precedent for making interim order that Commission concludes it is unable to determine application in two days – requirements of procedural fairness apply – Commission must deal with unprotected industrial action expeditiously – consideration must be given to whether making interim order would be contrary to public interest – Commission found it was unable to fairly determine application within two days – satisfied that procedural fairness was likely to be denied if matter were determined before employees had been served with application, in circumstances where respondent had not obtained adequate instructions from its delegates or affected members – requirement that Commission deal with unprotected industrial action expeditiously does not displace obligation to afford procedural fairness entirely – Commission satisfied it would not be contrary to public interest to make interim order pending determination of substantive application – interim order issued and hearing listed. Visy Board P/L v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
August 9, 2017
The Fair Work Commission has forty five unfair dismissal/labour dispute applications to work through today. The full list is: Kosseris Investments (Miskulin), Reflex Fencing Pty Ltd (Pearce), Spotless Facilities Services Pty Ltd (Hambridge), Tassal Group Limited (Chapman), Australian Brewers Guild (Kinker), Bunnings Group Limited (Foyster), The Good Guys Discount Warehouse (Australia) Pty Ltd (French), Coles Supermarket Australia (West, Rose), Grovedale Kitchens Pty Ltd (Pearce), National Jet Systems Pty Ltd (Kinnaird), Woolworths Ltd (Mistry), Newspot Holdings Pty Ltd (Moore), Work n Holiday Pty Ltd (Pirie), Avondale Golf Club (Lewis), O’Brien Glass (McMaugh), Carlo’s Super IGA (Stevens), Pharmacy Guild of Australia NSW Branch (Nankivell), Paisley Park Early Learning Centres (Seegers), Rail Commissioner (Williams), Genesee & Wyoming Australia Pty Ltd (Staunton), Australian Personnel Global Pty Ltd (Kumar), Resthaven Incorporated (O’Hara), Invocare Pty Ltd (Crimston), Bupa Aged Care Australia Pty Ltd (Tavassoli), Travels AU Pty Ltd (Jin), Tweed River Agricultural Society Ltd (Stranger), Stables Australia Pty Ltd (Grimes), Community Accomodation and Respite Agency (Van Praet), The Dieri Aboriginal Corporation (Dodd), Independent Pub Group (Cassidy), Gloss Accessories Pty Ltd (Bengel), Townsville Aboriginal and Torres Strait Islander Corporation For Media (Gela), Street Swags Ltd (Madden), Healthcare Australia Pty Ltd (Sommer), Horan & Bird Energy Pty Ltd (Gaunt), University of Canberra (Dewan), Hibiscus Chinese Takeaway and Cafe Food (Chan), Premium Victoria Pty Ltd (Popa), Woolworths Limited (Guillemain), SecondBite (Hatch), Preshafood Pty Ltd (Pearson), MGJV Pty Ltd (Richmond).
August 8, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 392, 394 Fair Work Act 2009 – application for unfair dismissal – applicant dismissed for serious misconduct on basis he engaged in bullying and denied was provided with training about bullying in interview with Workplace Health and Safety Queensland (‘WHSQ’) – respondent claimed it was issued with Improvement Notice by WHSQ due to applicant’s denial he had undertaken training – respondent claimed dismissed applicant on basis of WHSQ investigation findings – respondent provided no documents or evidence from WHSQ to support bullying allegations – respondent relied on evidence from HR Manager who said WHSQ Investigator told her applicant engaged in bullying – respondent concluded applicant engaged in bullying on basis of WHSQ Investigator’s statements and did not conduct internal investigation – applicant denied he engaged in bullying or that statement to WHSQ was incorrect – applicant claimed first notified of bullying allegation when dismissed – respondent claimed applicant dismissed as responsible for breach of worldwide delivery embargo of JK Rowling book – book was delivered a day early – applicant was Depot Manager responsible for staff and drivers who breached embargo – applicant claimed he was not responsible for breach as had trained employees and error with sorting and handling occurred when he was on leave – applicant agreed that freight moved out of embargo area and put on truck on day he was at work – respondent claimed breach of embargo caused significant reputational damage – Commission not satisfied that applicant engaged in bullying – respondent relied on hearsay evidence – HR Manager’s evidence about meeting with WHSQ Inspector not convincing – allegation of bullying is serious matter and not valid reason for dismissal if based on hearsay – WHSQ investigator should have been called as witness – WHSQ documents did not establish applicant engaged in bullying – respondent should have conducted own investigations – no valid reason for dismissal – applicant telling WHSQ Inspector he had not been provided with specific training about bullying was not valid reason for dismissal – breach of embargo was not valid reason for dismissal but was misconduct – respondent entitled to issue applicant warning – applicant was responsible manager at relevant time and that did not cease because applicant on leave – applicant’s failure to accept any responsibility for breach was unreasonable – applicant not given an opportunity to respond to reasons for dismissal – applicant denied procedural fairness – dismissal was harsh, unfair and unjust – compensation appropriate remedy – applicant would have stayed in employment for at least 12 months – compensation should be discounted 20% on account of contingencies – satisfied applicant made reasonable attempts to mitigate loss seeking alternative employment – compensation reduced on basis respondent paid applicant 12.4 weeks’ wages on termination – discounted 25% on account of misconduct – compensation ordered $48,432.69 in wages and $6,555.12 in superannuation. Biffin v XL Express P/L t/a XL Express
August 8, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – applicant dismissed after physical altercation with co-worker on respondent’s property and within working hours – applicant submitted incident was ‘a scuffle’ rather than a fight, he was not the instigator, it was due in part to ‘culture of the company’ and to poor management – found co-worker instigated altercation but applicant’s response was wholly disproportionate and could not be described as act of self-defence – satisfied respondent had valid reason to dismiss applicant – even if applicant’s allegations of deficiencies in management and workplace culture were true they did not lessen applicant’s responsibility for own misconduct – found dismissal was not harsh, unjust or unreasonable – application dismissed. Appenzeller v James Fisher Australia P/L
August 8, 2017
TERMINATION OF EMPLOYMENT – high income threshold – s.604 Fair Work Act 2009 – appeal – Full Bench – employee initially worked as offshore maintenance technician covered by Esso Offshore Enterprise Agreement 2011 – employee commenced in lead instrument and electrical technician role in Malaysia – employee then commenced assignment in Papua New Guinea (PNG) as instrument/electrical technician – PNG assignment terminated – employee returned to Australia whilst employer searched for new role – employee continued to receive base salary from PNG assignment – employee dismissed – at first instance Commission determined employee not covered by agreement but covered by Hydrocarbons Industry (Upstream) Award 2010 at time of dismissal – high income threshold not relevant and employee considered a protected person from unfair dismissal – employer submitted three grounds for appeal – (1) employee held no substantiative role at time of dismissal so not covered by award – (2) if employee held substantiative PNG role the period amounts to a period of ‘garden leave’ – (3) Commission failed to give adequate reasons for the first two grounds – Full Bench held permission to appeal granted as matter of public interest – appeal upheld – Commission found previous decision erroneous – Full Bench found it was not possible for employee to be found to be covered by award whilst not performing any work to fall within a classification – previous decision quashed – Commission found employee not covered by award and was not a protected person – respondent’s application dismissed. Appeal by Esso Australia P/L against decision and order of Cribb C of 14 February 2017 [[2017] FWC 900] and [PR590220] Re: Stephens
