TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – extension of time – applicant commenced employment with the respondent as a bus driver on 27 March 2008 – dismissed for misconduct in November 2016 – termination letter dated 17 November 2016 stated applicant’s employment would be terminated taking effect from close of business 18 November 2016 – letter sent by Registered Post, with Australia Post leaving a collection card at the applicant’s home after it unsuccessfully sought to deliver the letter on 21 November 2016 – applicant collected letter from the post office on 25 November 2016 – applicant’s solicitor believed successfully lodged unfair dismissal application on 13 December 2016, relying on the advice relating to payment of the application fee by credit card set out in the Form F2 expecting to be contacted by an officer of the commission regarding payment – in absence of contact from commission, the applicant’s solicitor contacted the Commission on 2 February 2017 and was advised that there was no record of the application – applicant representative resubmitted application on 2 February 2017 – respondent submitted that the date the dismissal took effect was 21 November 2017 and the application should therefore have been filed with the Commission no later than 9 December 2009 – applicant submitted that dismissal took effect on 25 November when he collected termination letter from post office – respondent submitted dismissal took effect on 21 November 2017 when Australia Post unsuccessfully sought to deliver the termination letter to the applicant’s home – applicant relied on various cases to illustrate that dismissal does not take effect until it is communicated to the employee whose employment is being terminated – termination not effective until letter received – Commission found that the applicant’s dismissal took effect on 25 November 2017 – Commission then needed to consider whether a competent application was lodged on 13 December 2016 – no evidence to support that this was the case – Commission needed to consider whether there are exceptional circumstances – applicant submitted that reason for the delay was that applicant had caused application to be electronically filed with Commission on 13 December 2016; relied on the statement contained in the Form F2 that a Commission officer would contact him to pay the filing fee but this did not occur; it was not suggested in the filing fee at the time of lodgement would potentially cause a risk of application being filed out of time and any problems with the filing of his application were not caused by him – respondent submitted that it was not aware of such circumstances but technical difficulties do not amount to an exceptional circumstance – confusion regarding application fee payment arrangements stems from the different approaches to that issue reflected on the Commission’s website regarding the Online Lodgement Service and the Form F2 – Commission determined circumstances of this case are analogous to Anaskovic – Commission considered Nulty and found that here are exceptional circumstances – extension of time granted. Thomas v ACT Government – Transport Canberra and City Services t/a ACTION
July 21, 2017
INDUSTRIAL ACTION – order against industrial action – ss.19, 417, 418 Fair Work Act 2009 – application by Victorian WorkCover Authority t/a WorkSafe Victoria (WorkSafe) for an order that unprotected industrial action not occur and not be organised by CPSU and its members employed by WorkSafe – employees and CPSU covered by Victorian WorkCover Authority Enterprise Agreement 2016-2020 which came into operation on 28 June 2017 – WorkSafe alleged that CPSU circulated newsletter on 5 July 2017 to members employed by WorkSafe indicating intention to take industrial action in several forms – argued that indicated matters should be regarded as industrial action within meaning of s.19 FW Act – argued that indicated matters would reasonably lead to a finding that intimated industrial action was unprotected and that unprotected industrial action was threatened, probable or being organised – CPSU did not contest newsletter, its terms or its circulation to member employees – WorkSafe argued that matters indicated in newsletter would be contrary to usual work practices if implemented and would have serious and negative impact on WorkSafe’s capacity to undertake its work – evidence provided by WorkSafe not contradicted by CPSU – Commission found that items 2 to 6 of CPSU newsletter were industrial action and each was not protected industrial action – noted that CPSU committed to recommending to members on 10 July 2017 that resolutions in newsletter not be implemented until consultation with union was undertaken – noted that no commitment was given relating to the coming weekend and that recommendation of CPSU was not to withdraw notification but to not implement industrial action – Commission satisfied that newsletter advised action to be taken by member employees and encouraged them to pass newsletter on to non-member employees – satisfied that action in newsletter amounted to industrial action within meaning of s.19 resulting in a ban, restriction or limitation on or delay in performance of work by an employee – satisfied that no actions set out in newsletter would amount to preservation of status quo within meaning of cl. 64.3 of Agreement – satisfied that action remains threatened, impending, probable or is being organised – satisfied that application was made by a person who was affected or is likely to be affected by industrial action – satisfied that Commission must make an order that industrial action stop, not occur or not be organised for a period of one month – order made. Victorian WorkCover Authority t/a WorkSafe Victoria v CPSU, the Community and Public Sector Union
July 21, 2017
CASE PROCEDURES – revoke or vary decision – apprehension of bias – s.603 Fair Work Act 2009 – application to revoke decision dismissing application for unfair dismissal relief and Full Bench decision refusing permission to appeal – leave also sought for further appeal to fresh Full Bench – applicant’s father complained that original decision was incorrect in stating he attended meeting as support person – grounds for relief were bias relating to support person reference; apprehended bias on Commissioner’s part; and new evidence – application was referred to Commissioner who made original decision – accusation of bias was characterised as attempt to re-litigate issues already determined and unsuccessfully appealed – Commissioners must determine matters referred to them unless proper basis to refuse to do so – test for bias is whether fair-minded lay observer might reasonably apprehend that Commissioner might not bring impartial and unprejudiced mind to resolution of question to be decided [Ebner] – mere assertion after the fact that Commission was prejudiced does not establish bias – assertion of prejudgment arising from directions hearings unsupported by evidence – disagreement with decision or deflated confidence after adverse finding cannot on its own demonstrate bias – not established that original decision was affected by actual or apprehended bias, nor that there was any proper basis upon which Commissioner should refuse to determine application – power in s.603(1) must be construed not to permit single Member to vary or revoke appeal decision by Full Bench [Grabovsky] – acceding to request to allow new evidence and leave to appeal to fresh Full Bench would undermine statutory appeal process and be inconsistent with public interest that there be finality in litigation – neither decision to be revoked and no re-hearing to be ordered – application dismissed – Commission found error on face of original decision concerning identity of support person – correction of error to issue under s.603(2)(a) on Commission’s own initiative – correction to remedy error did not affect substantive conclusion that there was no unreasonable refusal of presence of support person. Application by Mr O’Connor
July 21, 2017
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – ss.385, 387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was employed as a cleaner for 5 ½ years with respondent – applicant underwent periods of unpaid personal leave to obtain medical treatment – up until dismissal on 6 February 2017, applicant and respondent maintained communication about the medical prognosis – respondent’s internal counsel dismissed applicant by telephone – made own medical determination not based on any proper medical opinion – determined applicant could no longer perform the inherent requirements of the role although applicant received a certificate of fitness to resume duties shortly afterwards – applicant submitted dismissal was invalid and lacked procedural fairness – not afforded opportunity to respond to reason for dismissal nor offered a support person – further submitted respondent’s factual finding was premature, incorrect and invalid – applicant sought reinstatement with no loss of continuity and payment of lost remuneration – respondent contended applicant’s dismissal was valid and it had been previously advised applicant would not be certified fit for pre-injury duties – submitted attempts were made to clarify the appropriateness of the communication medium – criticised applicant’s failure to attempt to regain employment – Commission held dismissal was harsh, unjust and unreasonable – found respondent denied applicant natural justice – found there was no valid reason for dismissal – communication medium ensured applicant had no opportunity to have a support person – no medical basis to conclude the inherent requirements of the role could not be met – noted procedural requirements were not simply matters of technical process but important prerequisites designed to avoid erroneous decision making – found order of reinstatement; order to maintain continuity; and order to restore lost pay appropriate – orders issued separately – order to restore lost pay to be agreed by parties – matter can be listed for further proceedings for Commission to determine the amount. Bennett v Colin Joss & Co P/L t/a Joss Facility Management
July 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to Commission to deal with dispute under Moreland City Council Enterprise Agreement 2015 (‘Agreement’) – dispute concerned decision of respondent to contract out waste collection services – clause 6.2 of Agreement stated parties ‘will strive to maintain, and expand’ the current skills mix and staffing levels – applicant sought orders that respondent: not execute contract of services with contractor, confer with applicant under Agreement and make arrangements for procurement of in-house bid – applicant submitted relevant question to be answered was whether respondent would fail to comply with Agreement if it were to contract with an external contractor – respondent had previously outsourced to external contractor – respondent called for tenders to provide services after expiry of the current contract – no inhouse bid or tender was submitted – respondent raised jurisdictional objection that dispute settlement procedure in Agreement limited to ‘matter arising under agreement’ or NES – Commission satisfied appropriate nexus between awarding contract for delivery of services and clause 6.2 in Agreement – applicant submitted clause 6.2 placed positive obligation on respondent – respondent submitted clause 6.2 only dealt with potential job losses where services were currently provided inhouse – respondent submitted clause 6.2 ‘strive to maintain’ aspirational only – Commission satisfied clause is ambiguous and susceptible to more than one meaning – Commission satisfied clause 6.2 places clear positive obligation on respondent and not aspirational only – Commission found time of contract renewal was entirely appropriate time to consider obligation imposed by clause 6.2 and how or if it could be met – Commission observed obligation may be met by engaging parties in processes that precede recommendations to further contract out the work – Commission found respondent has obligation to not prematurely close off options for the meeting of the obligation – Commission found respondent would fail to comply with Agreement if it were to contract with an external contractor – Commission not satisfied has powers to issue a declaration or orders sought by applicant – Commission issued declaration that respondent engage with other parties with view of giving effect to clause 6.2 – declared respondent make arrangements for procurement of an in-house proposal or bid for provision by respondent employees – application adjourned. Australian Municipal, Administrative, Clerical and Services Union v Moreland City Council
July 21, 2017
CASE PROCEDURES – stay order – civil penalty privilege – ss.394, 589 Fair Work Act 2009 – application for stay in part of application for unfair dismissal remedy – respondent sought to have application stayed in part pending hearing and determination of general protections matter filed by applicant in Federal Court – respondent submitted there were similar facts and circumstances in both matters, which posed risk of inconsistent findings of fact and law in respect of same issues – further submitted that people & culture manager would be able to lawfully refuse to give evidence on basis of civil penalty privilege – Commission considered privilege against self-incrimination and noted that its applicability to Commission proceedings in relation to civil penalty provisions remained unclear without binding authority – prepared to adopt position that privilege against exposure to civil penalties should apply to Commission’s formal proceedings – in considering whether stay application should be granted, referred to principles in McMahon v Gould – Commission not satisfied respondent demonstrated real risk of injustice sufficient to deny applicant right to hearing in ordinary course – applicant’s right to prompt hearing of claim should not lightly be interfered with – applicant entitled to have application heard and determined as soon as practicable – staying unfair dismissal application in part may increase possibility of achieving perfect justice in evidentiary sense for respondent in Federal Court matter, but would involve potential of further delay in final disposition of application before Commission – Commission held there was no right for a stay in part or in whole of unfair dismissal proceedings – stay application dismissed – matter to be listed for directions and hearing. French v The Good Guys Discount Warehouse (Australia) P/L t/a Good Guys O’Connor
July 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision relating to dispute over meaning of ‘the structured training course’ in enterprise agreement – at first instance Commission found wording had a plain meaning which required appellant to provide an employee a two week cross-stage training course – Full Bench found arguable case of error – permission to appeal granted – grounds of appeal related to ruling that certain evidence was inadmissible, refusal to admit certain evidence amounting to a denial of natural justice, Commission’s construction of clause and application of its conclusion about the construction – Full Bench found Commission admitted and considered evidence of context and surrounding circumstances and other evidence – in light of this no denial of procedural fairness – Full Bench found Commission erred in construction of clause that two phrases ‘the structured training course’ and ‘a structured training course’ referenced the same course – appellant submitted they are different in that the first refers to a course occurring before the existence of the agreement and the second refers to a future course – in relation to application of principle, Berri is relevant to interpretation of agreement – principles of interpretation pertaining to intention, objectives, and purpose must take into account position of employees and their understanding of proposed agreement leading up to, and immediately prior to, vote to approve agreement – Full Bench concluded clause ambiguous and open to more than one meaning – appeal upheld – first instance decision quashed – application remitted to Commission for rehearing and determination. Appeal by EnergyAustralia Yallourn P/L t/a EnergyAustralia against decision of Clancy DP of 27 April 2017 [[2017] FWC 2298] Re: Construction, Forestry, Mining and Energy Union
July 21, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent a small business – objected to application on basis that dismissal was consistent with Small Business Fair Dismissal Code (Code) – respondent submitted applicant was dismissed because she acted dishonestly – respondent admitted at time of termination only had suspicions and not conclusive proof of dishonesty – considered whether employer held belief at time of dismissal, based on reasonable grounds, that conduct was sufficiently serious to justify immediate dismissal [Steri-Flow Filtration Systems] – Commission not satisfied emails tendered were evidence of misconduct let alone serious misconduct – not satisfied respondent had reasonable grounds for believing applicant’s personal disapproval impacted performance seriously enough to justify immediate dismissal – no reasonable explanation why applicant not given opportunity to respond to allegations and test their veracity – not satisfied respondent conducted investigation into grounds relied on to dismiss applicant – clear that respondent was aggrieved by conduct of others – majority of respondent’s evidence dealt with this conduct rather than applicant’s – respondent under significant financial, emotional and legal strain before dismissal which may have coloured decision making – Commission the dismissal not consistent with Code – parties strongly recommended to explore possibility of settlement – in absence of parties’ willingness to attend further conciliation, matter will be listed for merits hearing. Wiburd v Grandbridge Ltd
