TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Store Supervisor – dismissed in December 2016 after transferring approximately $342,000 from account of a deceased person without obtaining certified copy of probate – alleged dismissal was harsh, unjust and unreasonable – respondent claimed applicant’s breach of its Deceased Member Policy and Procedure Manual (Policy) constituted valid reason for dismissal – Policy required certified copy of probate prior to release of funds if balance of account exceeded $20,000 at date of death – this requirement was in the respondent’s Deceased Member Checklist (Checklist) – no dispute applicant used Checklist when dealing with accounts of deceased person – no dispute applicant released approximately $342,000 without witnessing or obtaining certified copy of probate and therefore breached Policy – applicant claimed she was not informed of reasons for dismissal and was not given opportunity to respond – contended respondent failed to take adequate steps to ensure she was fully aware of her obligations under the Policy or inform her breach of the Policy may lead to dismissal – Commission satisfied applicant’s conduct constituted valid reason for dismissal – satisfied respondent notified applicant of reasons for dismissal and gave an opportunity to respond before making decision to dismiss – accepted applicant did not receive training on the Policy but gave this limited weight in consideration of whether dismissal was harsh, unjust or unreasonable – noted applicant’s contract of employment contained an express term stating breach of a policy may result in dismissal – Commission weighed negative consequences of dismissal on applicant against gravity of conduct – found dismissal not disproportionate to gravity of substantial breach of policy – dismissal not harsh, unjust or unreasonable – application dismissed. Murphy v Banana Coast Community Credit Union Ltd t/a BCU
June 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – applicant sought to dispute respondent’s ‘reasonable business grounds’ for rejecting requests for flexible working arrangements – respondent contended Commission did not have jurisdiction to deal with dispute – s.739(2) FW Act provides that Commission must not deal with a dispute to the extent that it relates to whether employer had reasonable business grounds under ss.65(5) or 76(4) – no dispute that request for flexible working arrangements is not a matter specifically dealt with under relevant enterprise agreement – applicant contended that a dispute about a request for a flexible working arrangement is a dispute about ‘the employment relationship (including, for the avoidance of doubt, in relation to the NES)’ – Commission held that the fact that a dispute settlement clause applies to disputes about the ’employment relationship’ including in relation to the NES is insufficient to overcome prohibition imposed by s.739(2)(a) – s.739(2)(a) is specific in its terms – requires written agreement of a particular nature between parties empowering Commission to deal with dispute about whether the employer had reasonable business grounds to reject request for flexible working arrangements – in order to overcome this prohibition there would need to be a specific clause in an enterprise agreement (or other applicable instrument) empowering Commission to deal with such a dispute – Bow v National Offshore Petroleum Safety and Environmental Management Authority considered – Commission satisfied it did not have jurisdiction to deal with dispute – application dismissed. Sims v StarTrack Express P/L t/a StarTrack
June 14, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant terminated on grounds of misconduct on 24 January 2017 but did not receive a letter of termination until 8 February 2017 – unfair dismissal application lodged one day after 21 day period – application sent via express post on 13 February 2017 – applicant submitted that Australia Post informed her it would be delivered by 14 February 2017, 21 days after termination – application was not received by Commission until 15 February 2017 – applicant submitted this occurred because Australia Post did not deliver envelope in accordance with Express Post guaranteed next day delivery – respondent submitted that applicant had failed to establish exceptional circumstances – submitted that applicant was aware of time limit and did not take steps to ensure that application was received within time – principles in On Luck Chinese Nursing Home applied – Commission found there was no option but to be satisfied that applicant provided acceptable reason for delay – found respondent is organisation backed by significant resources and excessive delay in receipt of application did not occur therefore possibility of circumstances being clouded by passage of time limited – found that there was no option but to conclude that exceptional circumstances also existed – satisfied that application would have been delivered to Commission within time if Australia Post guaranteed delivery time had been adhered to – extension of time to lodge application granted – unfair dismissal application to proceed. Garg v Eureka Operation P/L t/a Coles Express Brandon Park
June 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – unions made application to deal with dispute in regards to terms of BlueScope Steel Port Kembla Steelworks Agreement 2015 (Agreement) – dispute concerned proposed changes that were ‘significant in nature’ within meaning of cl.35.2.2(c) of Agreement – employer had undertaken restructuring, including significant redundancies and labour cost-cutting measures – employees and unions had raised concerns about safety arising from changes to work processes proposed by employer for operations in refractory – application before Commission to arbitrate as to balance of matters stemming from parties’ agreement of February 2017 – question to be answered whether in accordance with Agreement there were any new safety issues that arose from reduction of people used to complete tasks that prevent the implementation of the new work practices – unions submitted that employer’s proposed change not ‘safe’ as required by cl.35.2.1(c) of Agreement – unions submitted change clearly ‘significant change’ within meaning of Agreement and that principles concerning management of change in cl.35 of Agreement are thereby engaged including requirements in cl.35.2.1(c) as it concerned proposed changes being ‘safe’ – to comply with cl.35.2.1(c) of Agreement employer must not merely have turned its mind to safety implications – must actually have ensured the change is safe – employer submitted that in decision to change certain work practices in refractory operations it had complied with requirements for introduction of change in Agreement and maintained the change satisfied required tests in cl.35.2.1(c) of being, among other matters, ‘safe’ – Commission noted proposition that workplace safety is matter of most fundamental importance – considered overarching operation of laws concerning workplace safety, proposed changes and practical implications and inevitable increase in concentration of work where number of employee performing tasks reduced – also noted submissions of employer that some arrangements would actually constitute enhancement to workplace safety – ultimately Commission found unions had not discharged onus – determination issued on basis of reduced number of people performing tasks. Construction, Forestry, Mining and Energy Union v BlueScope Steel (AIS) P/L t/a BlueScope Steel
June 14, 2017
CASE PROCEDURES – stay order – ss.394, 604, 606 Fair Work Act 2009 – appeal – at first instance the Commission determined that the employee had been unfairly dismissed and ordered compensation in the amount of $18,323.04, less applicable taxation, to be paid within 21 days – the appellant has sought permission to appeal the decision and has also sought a stay of the whole of the order – grounds for appeal was that the appellant’s director was unable to attend what he described as the ‘rescheduled’ date of the hearing – in deciding whether to exercise its discretion to grant a stay order, the Commission must first be satisfied that the appellant has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal and the balance of convenience must weigh in favour of the order subject to appeal being stayed [Kellow-Falkiner Motors] – Commission has an express power to determine a matter before it in the absence of a person who has been required to attend before it – appellant was not denied an opportunity to defend the unfair dismissal proceeding brought against it – Commission not persuaded the appellant was denied natural justice – not satisfied the appellant had made out an arguable case, with some reasonable prospects of success, as to the merit of an appeal or as to permission to appeal – application for a stay dismissed. Appeal by Zalcom P/L t/a Zalcom against decision of Saunders C of 5 May 2017 [[2017] FWC 2499] Re: Ryan
June 14, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – modern award coverage – ss.382, 389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – jurisdictional objection that dismissal was a genuine redundancy – applicant employed in business now operated by respondent as a geoscientist since 1998 – respondent submitted that restructure resulted in applicant’s redundancy – submitted that it did not accept that applicant was covered by modern award but still engaged in meaningful and genuine consultation when definite decision to restructure was made – submitted that at meeting applicant was given opportunity to ask questions and provide feedback about redundancy – applicant submitted that redundancy not genuine – submitted that he was covered by Professional Employees Award 2010 (the Award) and respondent must comply with Award consultation clause – Commission determined that applicant satisfied Award definition of either Experienced or Professional Scientist and therefore covered by Award – found that respondent did not comply with Award consultation provisions by not providing information in writing and hence did not comply with s.389(1)(b) of FW Act – held that claim of genuine redundancy cannot succeed – held that respondent demonstrated it would not be reasonable to redeploy applicant – found that position occupied by applicant was redundant – found that although respondent did not provide applicant with written advice regarding redundancy it did not cause unfairness to the extent that the redundancy was harsh, unjust or unreasonable – application dismissed. Manescu v Baker Hughes Australia P/L
June 14, 2017
TERMINATION OF EMPLOYMENT – costs – ss.400A, 401, 611 Fair Work Act 2009 – application for unfair dismissal remedy dismissed as minimum employment period not met – respondent subsequently made application for costs against applicant and his legal representatives – Rohan Veal v Sundance Marine P/L cited – relevant principles concerning the interpretation and application of s.611(2)(a) FW Act stated in Church v Eastern Health and Baker v Salva Resources considered – Commission stated the basis on which it decided to dismiss unfair dismissal application is central to determination of costs application – Commission did not decide on jurisdictional points but dismissed unfair dismissal application in relation to the proper construction of a range of FW Act provisions as discussed in primary decision – satisfied that although unfair dismissal application was dismissed, applicant had reasonable prospects of success on basis of his arguments concerning proper construction of relevant legislative provisions – unfair dismissal application not made without reasonable cause – no unreasonable act or omission on part of applicant or his legal representatives which caused respondent to incur costs – respondent’s costs incurred in connection with participation in hearing in which arguable point of law was decided in respondent’s favour – application for costs dismissed. Harris v Laing O’Rourke Australia Construction P/L
June 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant commenced employment as a casual excavator operator in May 2015 – applicant dismissed via text message on 23 December 2016 – business of respondent is the demolition of residential and small commercial buildings and the removal of rubble – respondent claimed applicant caused damage to structure at a number of properties and damage to the respondent’s excavator – evidence of this damage was based solely on oral evidence of the witnesses – Commission found valid reason for dismissal – found complete absence of procedural fairness to the applicant leading to the dismissal and in the dismissal itself – also an absence of documented operating procedures, site reports or other documents providing guidance to the applicant of potential risks – Commission determined dismissal was harsh, unjust and unreasonable – reinstatement inappropriate – remedy of compensation appropriate – ordered payment of $4,750 (gross) as compensation. Kalioros v AC Demolition and Services P/L t/a AC Demolition
