MODERN AWARDS – 4 yearly review – plain language – standard clauses – s.156 Fair Work Act 2009 – Full Bench – number of clauses identified as ‘standard clauses’ in 15 July 2016 Statement [[2016] FWC 4756], to be re-drafted as part of plain language redrafting – current Statement contained update about status of standard clauses following conferences before Hunt C – Full Bench expressed provisional views in relation to some issues – number of contentious issues identified – interested parties to make submissions regarding whether outstanding issues were accurately characterised in Statement – submissions also invited in respect of provisional views of Full Bench, revisions and amendments by expert, and any residual issues. 4 yearly review of modern awards – Plain language – standard clauses
August 8, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as storeperson and order packer – summarily dismissed following physical altercation with colleague and for failing to comply with employer’s direction – whether dismissal harsh, unjust or unreasonable – applicant had been involved in previous workplace incidents and had been instructed by respondent not to take photographs at the workplace – applicant and colleague became involved in physical altercation after applicant allegedly took photos of colleague while working – respondent submitted summary dismissal was appropriate in the circumstances because applicant had history of poor performance, was on final warning and had behaved in an aggressive manner – applicant denied taking photos of colleague – claimed respondent’s direction not to take photographs was unreasonable on safety grounds – claimed he acted in self-defence and physical altercation did not constitute valid reason for dismissal because of lack of consistency between treatment of him and colleague in relation to the incident -Commission satisfied respondent’s direction to applicant not to take photographs in workplace without approval was lawful and reasonable – satisfied applicant physically assaulted colleague given consistency of witness evidence and applicant conceded his memory of the incident was unclear – not satisfied applicant’s claim of self-defence could be sustained – satisfied respondent had valid reason for dismissal – satisfied applicant was afforded procedural fairness – no other relevant matters raised by applicant made dismissal harsh, unjust or unreasonable – Commission found dismissal of applicant not unfair – application dismissed. Rayner v Little Moreton P/L t/a H-R Products
August 8, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 392, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant worked for the South Oakleigh Club for over four years – was suspended from employment – respondent alleged applicant advised patrons Club had no money; disclosed confidential employment details to a member of the Club; spoke negatively about managers; disregarded lawful instruction; engaged in conversation of sexual nature in relation to teenage girls in Thailand with another staff member and behaved aggressively and disrespectfully to head chef – applicant responded to allegations – applicant dismissed by letter without notice for serious misconduct – applicants evidence it was common knowledge Club had financial trouble – denied disclosing employment details – lawful instruction issue not denied but dealt with earlier – had not engaged negatively regarding managers nor head chef – allegation regarding conversation of sexual nature most likely overheard conversation about a Member’s girlfriend in Thailand and holiday there – in respondent’s evidence from managers and some staff emerged financial difficulties known to patrons and lawful instruction issue had been dealt with – Commission concluded similarity in evidence from staff regarding negative behaviour with other staff evinced collusion but accepted at times the applicant was difficult to deal with – where dispute over evidence preferred applicant’s – much evidence given by respondent’s witnesses ‘was self-serving, inconsistent, nonspecific, based on hearsay and in some cases just not believable’ – of conduct Commission found occurred not satisfied provided valid reason for dismissal – Commission satisfied dismissal was harsh, unjust or unreasonable – applicant unfairly dismissed – Commission satisfied reinstatement not appropriate as applicant no longer had support of managers and staff had given evidence against him – compensation ordered – 20 per cent reduction for contingencies given Club’s financial difficulties – lost earnings exceeded compensation cap – compensation ordered equal to compensation cap plus superannuation. U2017/1177
August 8, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – transport driver – single speeding incident – conduct not deliberate but inattention in breach of policies, road traffic law and reasonable requirements – serious incident and despite immediate recognition and remorse valid reason for dismissal found – no prior counselling and no previous incidents of speeding or other traffic offences in over 39 years of truck driving – incident and responses by applicant not sufficient to objectively lead to loss of trust – Commission found dismissal harsh and unreasonable in circumstances – remedy – remedial benefit of reinstatement – contrition and reasonable basis for future expectation of safe work – insufficient grounds for loss of trust and confidence found – reinstatement appropriate and ordered – six months loss of wages will result and no order for lost remuneration – order for continuity of employment and service. Murray v Reliable Petroleum P/L
August 8, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant almost 27 years continuously employed at Geelong refinery – initially employed by Shell Refining P/L (Shell) and since 2014 by Viva Energy following its purchase of the business from Shell – applicant well known union delegate at workplace – applicant dismissed for conduct employer considered in breach of policies and duties under enterprise agreement – applicant sent email to approximately 170 other operators whilst working night shift – email related to industrial issue at refinery regarding advanced fire training – applicant argued email informed operators of disapproval that some operators undertook training not approved by union and training participants helping company with proposed de-manning, contrary to union resolutions – claimed did not make threats against employees nor identify them – claimed conduct did not constitute valid reason for dismissal – respondent claimed applicant committed serious breach of company policy – considered applicant interfered in company’s right to give lawful and reasonable directions to employees to undertake training – constituted valid reason for dismissal – Commission found email intended to negatively portray employees who had attended training and to disrespect their lawful decision to do so – applicant’s concluding message in email was to invite operators who had undertaken training to identify themselves to him and state their case – Commission found valid reason for dismissal – applicant’s background in union activities and effect of email on workplace attitudes and relationships found not to make misconduct less serious – found apologies proffered belated and expressed in shadow of advanced disciplinary process when dismissal was understood by applicant and support person to be real possibility – found dismissal for sending email contrary to policy, even if seen as single act, was not disproportionate response – satisfied applicant notified of valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Pearse v Viva Energy Refining P/L
August 8, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 396 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed by respondent from March 2011 to December 2016 – respondent objected to application on basis that redundancy was genuine – applicant employed as Senior Siebel Configurator involved in customising and developing Siebel software for LINX project as part of broader business initiative – notified in July 2016 that project funding withdrawn immediately – review of impact of funding of LINX project in October 2016 resulted in Melbourne-based role being made redundant – applicant informed on 3 November 2016 that his position was redundant and if redeployment not suitable employment would cease on 1 December 2016 – respondent submitted that applicant was specifically involved in customising software not used by respondent anywhere else – applicant submitted that respondent replaced him with consultant whose contract was extended following applicant’s dismissal – respondent submitted that work assigned to consultant was different to applicant’s and required skills he did not possess – Commission satisfied role no longer required to be performed because of changes to operational requirements – determined applicant’s redundancy to be genuine – applicant submitted that respondent failed to consult in accordance with Banking, Finance and Insurance Award 2010 – respondent submitted that applicant was not subject to operation of that award by reason of guarantee of annual earnings – submitted that despite this consultation occurred team-wide then more with personal discussions – Commission satisfied that applicant covered by award but that award does not apply as applicant exceeded high income threshold – satisfied that respondent did consult but did not need to consult in accordance with award – applicant submitted he could have been redeployed – respondent submitted that they made attempts to find suitable alternative roles within bank – Commission satisfied that respondent made genuine attempts to find alternative employment opportunities for applicant – found that dismissal falls within genuine redundancy – dismissal not unfair – application dismissed. Konakalla v Bendigo and Adelaide Bank Ltd
August 8, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with dispute under the Healthy Snacks Australia Pty Ltd and National Union of Workers Collective Agreement 2013 – NUW sought ‘declaration’ that certain redundancy entitlements apply to former employees of Healthy Snacks Australia P/L (Healthy Snacks) – alleged dispute about effect of undertaking under s.190 FW Act on terms in Agreement dealing with redundancy pay entitlements – at conference Commission expressed preliminary view that it had no jurisdiction to deal with matter – s.739 confers jurisdiction on Commission to deal with disputes involving employees who are employed at time dispute lodged, even if employment relationship subsequently ends [Construction, Forestry, Mining and Energy Union v Broadspectrum Australia] – position less clear if employment has come to an end before dispute arose – alleged dispute in matter arose approximately six weeks after employment of each affected employee came to end – Healthy Snacks under administration and had been for some time – Commission found at time dispute arose no employee covered by Agreement – no jurisdiction to deal with dispute – recovery of entitlements under Agreement is a separate matter for which remedy exists in another jurisdiction – application dismissed. National Union of Workers v Healthy Snacks Australia P/L (Administrators Appointed)
August 8, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant did not detail commencement date with respondent but advised dismissal occurred on 6 April 2017 – respondent submitted that applicant commenced employment on 10 October 2016 and raised jurisdictional objection on basis that applicant had not met minimum employment period of six months – applicant initially engaged as Customer Service Coordinator at the respondent’s Perth office through labour provider – applicant expected employment by respondent soon thereafter – applicant had discussions with Head of Business Development about being directly employed by respondent as Account Manager – number of draft contracts of employment were exchanged and applicant persuaded respondent to delete obligation to complete probationary period – applicant commenced employment with respondent as Account Manager on 10 October 2016 – found applicant’s service with respondent was insufficient to meet the minimum employment period – found that transfer of business had not occurred between labour provider and respondent – found applicant not protected from unfair dismissal – application dismissed. Paterson v Clariant Australia P/L t/a Clariant
