TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked in service station – incident involved unarmed customer who demanded money and cigarettes and threatened to jump counter – applicant did not obey offender’s demands and tried to outsmart offender – respondent had a procedure for employees to follow in the event of an attempted robbery or an armed robbery – Commission satisfied applicant did not comply with important elements of respondent’s procedure – applicant acknowledged respondent’s procedure was not followed because no ‘arms’ were involved – Commission considered applicant’s argument disingenuous – found incident was an attempted robbery and respondent was not unreasonable in expecting applicant to have followed its procedure, at least in general terms – applicant was aware of respondent’s procedure but failed to comply – applicant’s conduct was a valid reason for dismissal – Commission noted applicant had received previous warning for failing to comply with respondent’s Food Safety procedures – previous warning advised applicant further unacceptable conduct could result in termination of employment – Commission also noted that applicant’s continued refusal to accept the error in his actions had destroyed any confidence respondent could have that the applicant had learnt from what occurred and could be relied upon in the future – found dismissal was neither harsh, unjust nor unreasonable – applicant not unfairly dismissed – application dismissed. Mistry v Woolworths Limited t/a Woolworths Fuel
June 21, 2017
TERMINATION OF EMPLOYMENT – extension of time – unfair dismissal – s.394 Fair Work Act 2009 – applicant applied for unfair dismissal remedies in respect of her dismissal by the respondent – the applicant made her application 23 days after her dismissal, which was 2 days over the 21 day time limit – the question was whether there were exceptional circumstances warranting an extension of time under s.394 of the Act – the main reasons that the applicant offered for her delay was that she was ill after her dismissal, including a period where she was admitted to hospital, English was her second language and she could not use a computer and so she found it difficult to lodge an application – the Commission accepted that, although the circumstances that caused the delay were not unusual or rare, the confluence of relatively ordinary matters amounted to exceptional circumstances – the application was granted, and an order granting an extension of time was made. Baltas v ISS Facility Services Ltd t/a ISS Facility Services
June 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute under Boeing Australia Component Repairs P/L Enterprise Agreement 2013 to 2016 (Agreement) – whether an employee was entitled to be reclassified from Aerospace Tradesperson 1 (AT1) to Aerospace Tradesperson 2 (AT2) -issues in dispute were: the proper construction of the accountabilities and requirements of an AT2; whether there was a business need for employee to perform those accountabilities and requirements; and whether he achieved those standards – applicant submitted that employee should have been recognised as performing work at AT2 level from when he applied for reclassification and respondent should make back payment for wage differential between two classifications – Commission identified several accountabilities of AT2 classification that employee was not performing and/or achieving, such as assisting team leaders in carrying out assessments of work to be carried out by Tradesperson 1 employees, assisting in the ongoing Internal Quality Auditing of Boeing processes, and undertaking basic estimating tasks – respondent submitted that clause 5.2.2.1 of Agreement concerning progression application applies only when an employee is performing a role of higher classification because of a business need, and not merely because employee holds competencies which employee is not required to utilise in the regular course of work – respondent submitted that there had been insufficient work to justify the existing AT2s to perform their additional accountabilities in this role – Commission held employee was not and had not been performing the accountabilities required of an AT2 – he was not entitled to be reclassified and his reclassification application had been properly refused – no orders necessary. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Boeing Australia Component Repairs P/L
June 21, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was employed as a primary school teacher – dismissed on 17 January 2017 after multiple allegations of misconduct – respondent alleged applicant made inappropriate physical contact with students; informed students to not divulge certain stories to adults; had previously been spoken to of the importance of appropriate professional boundaries and had breached the Victorian Institute of Teachers Code of Conduct – applicant conceded to some of the allegations but submitted there was valid reason for physical contact with the students – Commission did not accept there was valid reason for applicant’s physical contact with students – Commission satisfied the gravity of applicant’s conduct constituted valid reason for dismissal – noted applicant had a choice and could have declined student’s physical contact – accepted some instances of misconduct occurred but did not accept some of the respondent’s allegations were substantiated – satisfied applicant breached professional obligations – satisfied respondent had previously spoken to applicant about the importance of maintaining appropriate professional boundaries, notified applicant of reasons for dismissal and gave an opportunity to respond before making decision to dismiss – Commission weighed the potential to put respondent’s students at risk from others against the gravity of applicant’s conduct – noted it was not apparent applicant accepted the seriousness of misconduct during the proceedings as the given conduct was not trivial or unimportant – found the termination of the applicant’s employment was not a disproportionate response to applicant’s misconduct – application dismissed. Adams v Department of Education and Training
June 20, 2017
The list for the Fair Work Commission today includes: Siemens (William Royar), JB Hi-Fi Group Pty Ltd (Wilson), Manildra Stockfeeds Manufacturing Pty Ltd & NSW Sugar Milling Co Op Ltd & Parker (Marsh), Whittaker Building Group Pty Ltd (Skuse), Menzies International (Australia) Pty Ltd (Van Tussenbroek), Star Track Express Pty Ltd (Williams), Lynch Manufacturing NSW Pty Ltd (Maciel), Baia the Italian Pty Ltd (Mezino), Falbury Pty Ltd (Layt), Blackham Resources Ltd (Adams), Curtin University (Reynolds), Chevron Australia Pty Ltd (Ghobrial) Golden West Corporate Total Management Pty Ltd (Gordon), Preformed Line Products (Aust) Pty Ltd (Burke), Gandel Metals (Brenac), The Trustee for Lyndhurst Tavern Discretionary Trust (Baranage), ALDI Stores Pty Ltd as General Partner of ALDI Stores (A Limited Partnership), Champion Pictures Group (Russell), Entire Fire Protection Pty Ltd (Wilson), Tele Magic (Polkinghorne), Australian Scholarship Group Friendly Society Limited (Tonellato), Community Living Australia Ltd (Turner), Woolworths Limited (French), SA Mushrooms (Stefan), Jens Hair Design (Petty), St Johns Community Care Ltd (Kross), Mothers Pantry (Moyes), BMI Group Pty Ltd (Engelbrecht), Upstream Production Solutions Pty Ltd (Salina), Coles Supermarkets Australia Pty Ltd (Higgins), Embassy of the Republic of Tunisia (Mejri), The Trustee for Forzpak Unit Trust (Colless), South Oakleigh Club (Gillmore), (Aviation Training Australasia Pty Ltd (Hertaeg), Ventura Bus Lines (Li), Siemens (William Royar), Commissioner of State Revenue (Kerr), Jens Hair Design (Petty), Jase Investments Pty Ltd Australia (Smithers), Colin Joss & Co Pty Limited (Bennett), Ace Traffic Control (Hunter), Fawcett Plumbing Pty Ltd (Knight), Green Valley Grains P/L (Lee), Sprayworx Pty Ltd (Hayward), Suncorp Staff Pty Ltd (Copping), Teys Australia Central Queensland Pty Ltd (Rodrigues), Healthcare Australia Pty Ltd (Sommer), One Care Ltd (Leahy), Optus Administration Pty Limited (Tevita), Star Track Express Pty Ltd (Schuiling), Andrew Kohn Pty Ltd (Scop), BlueScope Steel Limited (Willmot), Thorpe Custom Trucks (Luapo), Cloverdale Admin Services Pty Ltd (Lao), Kingston City Council (Shafai).
June 16, 2017
Forty-seven labour dispute cases are lined up for hearing at the Fair Work Commission. The full list is: BTG Australia Pty Ltd (Evans), On Site Fleet Wash Pty Ltd (Loxton), Fawcett Plumbing Pty Ltd (Knight), Sharrock Trust/Semsley Pty Ltd (Williamson), Para Hills Community Club Inc (Laboutaris), Coles Supermarkets Australia Pty Ltd (Johns), Girudala Community Cooperative Society Ltd (Ive), Airlite Management Services Pty Ltd (Humphries), Buslink Sunshine Coast Pty Ltd (Millar), Catalyst Child and Family Services Ltd (Ruitah), Bank Australia Limited (Raven), Hyne Timber Pty Ltd (Capile), Murdoch University (Howard), Hapag-Lloyd (Australia) Pty Ltd (Simmalavong), T&M Management Services Pty Ltd (Fawal), Adactin Group Pty Ltd (Kapoor), Agrifor Scientific Pty Ltd (Salamakha), BK Chemists (Trevisan), Sydney Trains (Robinson), A and A Excavations (Cooper), Wax Converters Textiles Pty Limited (Nichols), BlueScope Steel (AIS) Port Kembla (Antony), Australian Catering (Chen), Playford City Soccer and Community Club Inc (Fowler), Electrocity Pty Ltd (Lavender), The Glenelg Club (Popplewell), Cabin Services Australia (Wederay), Southern Cross Mining Services Pty Ltd (Carlier), Virgin Australia Airlines Pty Ltd (Ingall), Ascot Capital Facilimate Pacific Hotel Cairns CT (Business) Pty Ltd (Walters), The Alphabet Academy Sydney Pty Ltd (Kelly), Healthcare Australia Pty Ltd (Sommer), Embassy of the Republic of Tunisia (Mejri), Whitehorse City Council (Gardner), Viva Energy Refining Pty Ltd (Pearse), Royal Melbourne Institute of Technology (Zheng), Philcam Pty Ltd (Veltkamp), Royal Automobile Club of Victoria (RACV) Limited (Geary), The Good Guys Discount Warehouse (Australia) Pty Ltd (French), Western Sydney Community Legal Centre Incorporated (Girdler), Consolidated Mining Labour (Lawn), Remondis Australia Pty Ltd (Butterworth), Australian Federal Police (Astley), Airservices Australia (White), Celesty Family Trust Pty Ltd (Allan), Ravensworth Coal Management Pty Limited (Arnull), ASPECT Studios Pty Ltd (Hastings), Army and Air Force Canteen Service (Shamim).
June 15, 2017
Eight applications for unfair dismissal/contract disputes will be heard by the Fair Work Commission this afternoon. The list includes: Roman Catholic Trust Corporation for the Diocese of Townsville (Waterman), Gladstone Ports Corporation Limited (Smith), Rio Tinto (Ballam), BHP Billiton Iron Ore Pty Ltd (Foster), The Trustee for Osterie Unit Trust (Church), DuluxGroup (Australia) Pty Ltd (Fitz-Walter), Target Australia Pty Ltd (Sturgess), Palm Island Aboriginal Shire Council (Simpson).
June 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed employment as a Tug Master – dismissed after grounding of a tug (the Korimul) in the Tamar River – respondent cited a serious breach of safety and a loss of trust and confidence in the applicant’s abilities – repair claim costs for the Korimul were $333,043.91, TasPorts insurance paid $298,043.91 toward those costs – TasPorts paid an excess of $25,000.00 under its insurance claim and received $10,000.00 in scrap value for the propellers – grounding reported to Marine and Safety Tasmania as required under legislation – investigation conducted – at all times the applicant accepted responsibility for the grounding – investigation found that the navigation errors of the applicant directly contributed to the grounding of the vessel – applicant had grounded the tug vessel known as ‘Fullerton Cove’ on Middle Bank in the Tamar River on 3 October 2011 – Commission found that the applicant’s conduct amounted to him not navigating with due care and attention and therefore, did not ‘[t]ake reasonable care to ensure the safety of [himself] and others at all times’ in accordance with TasPorts’ Health and Safety Policy – found that whilst the conduct was not deliberate, it did result in a number of navigational errors and could not be considered a momentary lapse of concentration – found valid reason for dismissal – consideration given to applicant’s length of service – he had been employed continuously for almost 38 years – applicant aged 64 years at the time of his dismissal – Commission found that the termination of the applicant’s employment was not a disproportionate response to his conduct – dismissal was not harsh, unjust or unreasonable – application dismissed. Finnis v Tasmania Ports Corporation P/L t/a Tasports
