TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.385, 386, 394 Fair Work Act 2009 – application for unfair dismissal – applicant employed since 2009 as a casual gym instructor – since September 2016 he had been working one shift each weekend of 5.5 hours – a new roster in January 2017 provided him a Saturday shift every weekend of 3 hours – applicant objected to this reduction in hours – applicant emailed respondent advising of his ‘involuntary resignation’ because of what he characterised as the respondents ‘refusal to abide by the agreed 5.5 hours per weekend shift agreed in September’ – applicant claimed he was forced to resign because of the conduct of his employer – respondent objected to the application on the grounds that the applicant was not dismissed – Commission found no evidence that the respondent’s conduct was intended to bring the applicant’s employment to an end – applicant had a number of other options rather than resigning – found resignation was voluntary – applicant not forced to resign because of the conduct or the course of conduct engaged in by his employer – applicant has not been dismissed within the meaning of s.386 and so cannot have been unfairly dismissed – no jurisdiction for the Commission to deal with this application – application dismissed. Wilson v Town of Victoria Park t/a Town of Victoria Park
June 23, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – at first instance, Commission issued decision [[2016] FWC 5568] and held there was no jurisdiction to deal with application – decision overturned on appeal by Full Bench [[2017] FWCFB 143] – appeal decision remitted matter to back to Commission – applicant employed by respondent as Locomotive Driver since 6 February 2012 – on 29 August 2015, applicant worked as a driver assisting with driver Mr Enslin on train number 7721 – train passed signal at red, also known as SPAD (signal passed at danger) – respondent conducted disciplinary investigation and suspended both applicant and Mr Enslin from duty without pay for one week – applicant lodged with respondent a Resolving Differences Notification Form under subclause 45.15 of Aurizon (Western Australia) Rail Operations Enterprise Agreement 2014 (Agreement) – dispute not resolved at workplace level and applicant referred dispute to Commission in accordance with subclause 45.4 of Agreement – applicant disputed disciplinary measure taken against him and sought declaration from Commission that disciplinary measure was unfair, unreasonable and harsh in the circumstances – also sought order for wages lost as result of suspension from duty without pay – question for Commission was whether disciplinary sanction imposed on applicant unjust or unreasonable – XPT Case considered – Commission held that SPADs varied in seriousness depending upon circumstances and that disciplinary sanctions imposed by respondent took into account seriousness of SPAD and other factors – accepted that driver and driver assisting were equally responsible for train’s safe operation, even if they have different roles – held it was not unjust or unreasonable that applicant, as the driver assisting, received same disciplinary sanction as driver – application dismissed. Lloyd v Australia Western Railroad P/L t/a ARG an Aurizon Company
June 23, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was dismissed by respondent, which was a small business restaurant – respondent submitted that its grounds for dismissal included that applicant was allegedly the subject of complaints from customers and staff and shouted at the restaurant owner – applicant submitted that he was dismissed because he inquired about superannuation and holiday pay that he had not received – Commission found that, where the applicant’s and respondent’s evidence conflicted, the applicant’s evidence was to be preferred – held that applicant was summarily terminated and that the reason provided for this termination did not meet the test in the Small Business Fair Dismissal Code (the Code) – held that the occasions where the applicant directed the respondent to leave the restaurant amounted to a valid reason for dismissal, however this was not sufficient for the dismissal to be deemed fair [Toby] – found the dismissal was unfair having regard to the lack of notice and the lack of reasons given for dismissal – parties provided with seven days to make submissions in relation to compensation. Duddington v Mario and Clara Enterprises P/L and Anor
June 22, 2017
A s.185 (Enterprise agreement) application by Victorian WorkCover Authority T/A WorkSafe Victoria for its Victorian Workcver Authority Enterprise Agreement 2016-2020 has been ratified by Commissioner Cirkovic in Melbourne on 21 June 2017.
June 22, 2017
Twenty-eight labour dispute applications will be heard by the Fair Work Commission today. The full list: Kanandah Retirement Limited (McDade), Star Track Express Pty Ltd (Williams), Challenge North Shore, Precision Assembly (Bakri), PFD Food Services Pty Ltd (Burns), A Little Rei of Sunshine (Harris), YDC Port Macquarie Pty Ltd (Ross), Illawarra Coal Holdings Pty Limited (Gosek), Baker’s Delight – Belmont Citi Centre (Cobbin), Tasmanian Country Club Casino Proprietary Limited (Curtis), Forest Hill Outside School Hours Care Inc (Guy), Woodside Energy Pty Ltd (Barthram-Kidd), Woolworths (Marshall), Adelaide Dental Solutions (Damin), Broadspectrum (Australia) Pty Ltd (Timms), Sodiia Evelina Kemp (Halpin), TechnologyOne Limited (Meikle), Guide Dogs for the Blind Association of Queensland & Jackson and Others (Evans, Ferguson, Ingram), Pollock (Titasey), Spencers Amcal Pharmacy (Photopoulos), RACV Cape Schanck Resort (Trembath), Entire Fire Protection Pty Ltd (Wilson), Department of Justice and Regulation (Litchfield), Compass Group (Australia) Pty Ltd (Lomas), Scotch Oakburn College (Kypriotis), Royal Childrens Hospital (Krakowsky).
June 21, 2017
An application for approval of the Victorian WorkCover Authority Enterprise Agreement 2016-2020 (s.185 – Application for approval of a single-enterprise agreement) will be heard by Commissioner Cirkovic in his Melbourne chambers at 2pm.
June 21, 2017
An application/notification by Australian Security Industry Association Ltd (s.158(1) RO Act – Application for alteration of eligibility rules) will be determined by Senior Deputy President Hamberger in hearing room 14-1 – level 14 in Sydney (2pm).
June 21, 2017
Thirty-seven labour dispute applications are scheduled for hearing before the Fair Work Commission. The full list is: Open Minds Australia Limited (Armstrong), Buslink Queensland Pty Ltd (McNamee), Business Risks International (Victoria) Pty Ltd (Cessario), New Brighton Golf Club (Stapleton), Pilbara Meta Maya Regional Aboriginal Group (Crabtree), Integrated Facility Solutions (IFS) Pty Ltd (Bell), Pickwick Group Pty Ltd (Chisari), Boral PlasterBoard Pty Limited (Te Namu), Pinnacle Hospitality People Pty Ltd (Moore), Transgrid (Adsett), Martin Hunter Pty Ltd and the Trustee for DanJam Family Trust (Hollywood), Newspot Holdings Pty Ltd (Moore), Liamsans Pty Ltd (Ferguson), MSS Security Pty Limited (Hygonnet), Donnik Pty Ltd (Christie), Excelcare Australia Ltd (Hughes), Rent My Property (Quinn), FWR Pty Ltd (Power), Bynoe Community Advancement Cooperative Society Ltd (Douglas), TechnologyOne Limited (Meikle), The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (Lane), Lash U Lashes Pty Ltd (Davey), South Oakleigh Club (Gillmore), Aviation Training Australasia Pty Ltd (Hertaeg), Bakers Extra Pty Ltd (Digiaro), Viva Energy Refining Pty Ltd (Pearse), Hairhouse Warehouse (Trifiletti), Northern Health (Mason), Metro Scaffold Hire (Gullotti), Sydney Trains (Singh), Commonwealth Bank of Australia (Rayner), No 1 Riverside Quay P/L (Rajwani), SecureCorp Pty Ltd (Boyd, Brambilla, De-Ruiter), SecureCorp (SA) Pty Ltd (Kitching), Newspot Holdings Pty Ltd (Moore).
