TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed for sending confidential and sensitive technical information off-site – applicant sent 30 workplace emails to personal email address – emails included dimensions of bank notes and intellectual property about features and suppliers – emails breached workplace policy – applicant intended to use emails addresses to request review of being denied a senior printing role, and alleged discrimination – applicant not dismissed until 13 days later – Commission found valid reason for dismissal – other matters considered including differential treatment, personal situation, health – found ‘on fine balance’ the dismissal was harsh and unreasonable – considered reinstatement inappropriate – additional information requested by Commission to enable consideration of compensation. Hemmingson v Note Printing Australia Limited
June 30, 2017
TERMINATION OF EMPLOYMENT – contractor or employee – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant engaged as general labourer and scaffolder by respondent from January/February 2016 – applicant considered himself an employee – respondent raised jurisdictional objection – objected to classification of applicant as an employee – applicant received a text message from respondent in mid-March advising that it would not directly employ anyone anymore and would only engage sub-contractors – submitted that on 14 March 2017 his employment was terminated – claimed respondent continued to employ other staff – respondent did not attend hearing – Commission found applicant to be employee and protected from unfair dismissal – applicant provided evidence by way of payslips to show he was an employee – Commission found minimum employment period met – satisfied applicant’s employment terminated at initiative of respondent – applicant given neither reason nor any opportunity to respond prior to decision – dismissal harsh, unjust or unreasonable as no valid reason found for dismissal – Commission found applicant was unfairly dismissed – remedy – reinstatement not sought and not appropriate – compensation of $15,815.85 ordered. Keirl v Myrti P/L
June 30, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Endeavour Energy Enterprise Agreement 2012 – dispute relates to applicant’s accrued long service leave – applicant argued that Endeavour had incorrectly applied clause 15 and Annexure D of the Agreement in its calculation of his accrued long service leave, which resulted in a reduction of his long service leave entitlement – Annexure D to the Agreement is a workplace arrangement known as the Integral Energy Supervisory Employees Workplace Arrangement 2003 (the WA) – applicant employed from 4 March 1986 working 36-hour week – changed from 36-hour week to 40-hour week on 21 January 2013 – Endeavour argued that the applicant’s interpretation of the relevant provisions meant that he was attempting to have his bank of long service leave which had accrued at 36 hours per week recalculated as having accrued as if he had worked 40 hours per week for the entirety of his service with Endeavour – Golden Cockerel considered – Agreement provides ‘applicable award derived long service leave terms’ and the applicant is entitled to long service leave in accordance with those terms – no basis for Commission to have recourse to the Long Service Leave Act 1955 (NSW) in determining this dispute – found that the plain meaning of clause 15 of the Agreement combined with clause 14 of the WA leads to the interpretation contended by Endeavour – the applicant’s long service leave balance for the 36-hour week period (ending on 21 January 2013) remains as it had been accrued in accordance with clause 15 of the Agreement as at that date. McWhirter v Endeavour Energy
June 30, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – small business employer – ss.382, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent made jurisdictional objection to application based on applicant not completing 6 months employment when terminated – applicant employed by Bank Australia on 3 October 2016 as Branch Manager – respondent submitted applicant’s employment was terminated in a meeting on 29 March 2017 – applicant submitted termination did not take effect until she received letter of termination on 5 April 2017 – evidence led by parties as to nature and effect of meeting on 29 March 2017 – respondent submitted at meeting applicant was advised her performance was unsatisfactory and thus was being terminated immediately – applicant handed back keys and collected some personal belongings – applicant was then paid her entitlements and provided confirmation of termination on 3 April 2017 – evidence led that on day of meeting applicant asked to be removed from a social media chat group as a result of termination – applicant submitted respondent did not make it clear in meeting she was terminated but was advised her performance would be assessed over the coming month – applicant submitted no notes taken in meeting – that she left meeting with intention of going to doctor as she was ill – as she knew she would be absent she handed back keys – applicant submitted her discussion around the social media chat was a poor choice of words – applicant also submitted her contract of employment required 4 weeks’ notice of termination thus termination could not have been immediate – Commission satisfied evidence confirmed applicant was terminated at meeting on 29 March 2017 – Commission not satisfied with applicants reasoning for her actions – Commission found applicants contract did not preclude immediate termination during probation – found applicant not a person who is protected from unfair dismissal as had not completed 6 months employment – application dismissed. Raven v Bank Australia Limited t/a Bank Australia
June 30, 2017
TERMINATION OF EMPLOYMENT – contract for specified term – ss.385, 386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – preliminary matter – Commission required to determine whether applicant had been ‘dismissed’ in accordance with s.386 of the Act – applicant commenced employment with the respondent in 2005 – respondent submitted that applicant was employed under a fixed term contract ending 31 December 2016 – issue for determination was whether the applicant was a person employed under a contract of employment for a specified period of time – it was submitted that Conditions of Employment incorporated in the contract suggested that employment was ongoing – relevant clause of the Conditions of Employment was ‘should the incumbent be unsuccessful in obtaining a similar position in the current or any other Catholic school, he/she shall have security if employment’ – respondent submitted that it had no on-going obligations as a consequence of the Conditions of Employment as applicant failed or declined to apply for any other positions – respondent submitted that applicant was eligible to apply for three other positions – applicant submitted that such discussions with respondent were vague and no details were given – Commission satisfied that while applicant was appointed in her role for a specified period of time, the incorporated Conditions of Employment meant that the applicant had an on-going contract of employment if she was not reappointed to such position at the end of the specified period – held that applicant was ‘dismissed’ in accordance with the FW Act – employment terminated on employer’s initiative – application to be relisted to hear substantive unfair dismissal claim. Wiener v The Congregation of Presentation Sisters (WA) Incorporated t/a Iona Presentation College
June 30, 2017
TERMINATION OF EMPLOYMENT – identity of employer – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant made an application for a remedy in respect of his dismissal by his employer, which he identified as ‘3D Scaffolding’ – a Form F3 – Employer Response to Unfair Dismissal Application (Form F3) was filed by Steric Solutions P/L – Steric Solutions filed the Form F3, rather than an entity identified as ‘3D Scaffolding’, because Steric Solutions asserted that, at all relevant times, it was the employer of the applicant – 3D Scaffolding P/L also said the proper employer was, at all relevant times, Steric Solutions – applicant maintained that 3D Scaffolding P/L and not Steric Solutions was his employer – necessary to determine the identity of the applicant’s employer – there were a number of companies that made up the group of companies owned and operated by various members of the Docherty family (Docherty Group Companies) – they were 3D Scaffolding Admin P/L, 3D Scaffolding P/L and Steric Solutions P/L – not surprising if the complex web of arrangements was beyond the comprehension of an unskilled (non-family member) employee of any of the Docherty Group Companies – when there were group company arrangements in place most employees paid little attention to who might be their actual employing entity so long as they got paid each week for the work they did – Commission held that in the corporate labyrinth that was the Docherty Group Companies it was suggestive of a situation where, as between 3D Scaffolding (and its employees and owners) and Steric Solutions (and its employees and owners), there was a sharing of control and supervision of the applicant – consequently, the issue of the possibility of joint employment might arise – Damevski v Guidice and FP Group P/L v Tooheys P/L considered – Commission satisfied that Steric Solutions was, at all times, the real and effective employer of the applicant – Order amending the name of the respondent issued with the decision – matter to be relisted to determine whether the dismissal of the applicant by Steric Solutions was harsh, unjust or unreasonable – directions to be issued. Trialonas v 3D Scaffolding P/L
June 30, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by United Firefighters’ Union (UFU) pursuant to s.739 FW Act 2009 – dispute involved Metropolitan Fire and Emergency Services Board (MFB) investigation of conduct of MFB employee with view to consideration of disciplinary action against him – dispute raised under dispute resolution term in Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (Agreement) – UFU submitted MFB failed to comply with its policies, procedures and practices under the Agreement or alternatively intended to change or amend its policies and procedures without engaging in consultative process – MFB became aware of allegedly offensive Facebook posts alleged to have been made by the employee – on three separate occasions MFB advised employee an investigation had commenced into alleged breaches of Metropolitan Fire Brigades Act 1958 (Vic) (MFB Act) or MFB policies as a result of Facebook comments – MFB advised employee a report for the Chief Officer of findings and recommendations would be prepared and if any allegations were substantiated disciplinary action may be taken against him including formal counselling, an adverse report, or formal charges being laid under s.78B of MFB Act – employee subsequently suspended from duty with pay – MFB submitted formal or informal counselling would have been inappropriate in the circumstances – UFU submitted MFB had not laid charges under disciplinary process thus not complied with MFB disciplinary investigation guidelines by suspending the employee prior to laying of charges under disciplinary process – UFU submitted in dealing with allegations against the employee MFB intended to change or amend its policies and procedures without engaging in consultative process – MFB submitted no intention to change or amend its policies and procedures – Commission satisfied dispute within scope of Agreement’s disputes resolution clause – found MFB did not fail to comply with its policies, procedures and practices prior to commencement of formal investigation to consider/determine whether it was appropriate to formally or informally counsel the employee under Operations Work Instruction, Counselling Procedures – found MFB did not fail to comply with its policies, procedures and practices by suspending employee prior to laying charges contrary to Disciplinary Investigation Guidelines or in dealing with the allegations against the employee – nor did MFB intend to change or amend its policies and procedures without engaging in any consultative process in dealing with the allegations against the employee – application dismissed. United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board
June 30, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.384, 386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection – whether applicant satisfied small business minimum employment period of 12 months – applicant submitted he was a casual employee with respondent from June 2013 until late February 2017 – respondent contended applicant commenced employment from August 2014 – submitted that in November 2016 applicant ceased to work for the respondent, then was re-employed later that month – claimed the break in applicant’s employment meant applicant was not employed for a continuous period of 12 months – Commission held there was no cessation of employment relationship in November 2016 – applicant did not abandon employment as he attempted to communicate with respondent’s General Manager daily from 4 November to 17 November 2016 to determine when he could return to work – nor did applicant resign as no written resignation provided and no evidence of applicant having communicated resignation to others – applicant’s attendance at Centrelink to obtain employment separation certificate did not amount to resignation – held applicant was employed for at least the minimum employment period – respondent’s jurisdictional objection dismissed – matter to be listed for directions hearing. Cooper v A and A Excavations & Landscapes P/L
