TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission found the appellant’s dismissal was not unfair, and dismissed her application for an unfair dismissal remedy – the appellant advanced four grounds for appeal, three of which were related to the findings made by the Commission and her conclusions, and the fourth relating to the decision to permit the respondent to be represented – Full Bench found each of the findings made was consistent with the evidence and was appropriate for the Commission to make – appellant pointed to no part of the evidence that could cause the Full Bench to conclude that the findings at first instance were in made in error – appellant has not identified any issue in the appeal that raises matters of importance or general application that would enliven the public interest for permission to appeal to be given – not in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Ryan-Dengate against decision of Gooley DP of 13 April 2017 [[2017] FWC 2086] Re: Sunraysia Murray Group Training
June 14, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant commenced employment 23 June 2006 – applicant employed as Cargo Manager for the Air/Sea Import & Export department – applicant submitted termination occurred 1 March 2016 – respondent submitted termination occurred 6 February 2016 by hand delivered letter – application lodged 21 March 2016 – respondent lodged objection to application on grounds that application was made outside the 21 days – respondent’s evidence of the termination letter was unsigned and not on company letter head – applicant provided video footage which he submitted showed respondent did not deliver termination letter – Commission found camera was located some distance away from applicant’s letterbox and was obstructed by a tree as such may not have been able to show respondent delivering letter – between 8 February to 1 March the applicant and respondent led separate evidence about text message and email correspondence – applicant submitted his correspondence was in the form of medical certificates and requests for personal leave – respondent submitted correspondence was seeking applicant contact him to discuss termination situation – Commission satisfied applicant’s behaviour of continuing to provide medical certificates and failing to request his personal belongings be returned to him indicated a lack of knowledge of a termination letter – Commission not convinced of respondents submissions that a lack of evidence from the applicant of any illness of inability to check his letterbox was a relevant consideration given applicant submitted he was not aware of any termination letter – Commission not satisfied that if termination letter was delivered that its contents was clear or unequivocal of termination – found intention of termination letter was that the applicant still attend work on following work day in order to receive a formal termination letter – found letter indicated a desire to terminate applicant’s employment but not when termination was to occur as such letter was not unequivocal and clear – not satisfied respondent’s follow up correspondence mentioned termination – Commission found applicant terminated on 1 March 2016 upon reading termination email – satisfied unfair dismissal application made within the 21 days – matter to be set down for hearing. Ilves v Lawson Worldwide Forwarding P/L
June 14, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected on basis that termination was genuine redundancy – respondent notified applicant position was surplus to requirements and applicant entitled to eight week redeployment period – applicant applied for two roles during redeployment process and was unsuccessful in both applications – applicant received notice of termination – applicant submitted respondent failed to meet consultation and redeployment obligations in enterprise agreement – respondent submitted that it fulfilled obligations under agreement – Ulan Coal Mines Limited considered – respondent argued its decision was consistent with Ulan as it was not appropriate to redeploy applicant and applicant not suitable for vacant positions – Commission found that respondent misunderstood the nature of assessment in s.389(2) of FW Act – applicant submitted respondent did not consider applicant for positions below applicant’s classification – respondent submitted it was entitled to redeploy applicant per ‘custom and practice’ to redeploy employees at same classification or one classification lower – Commission found respondent did not provide reasonable explanation for failure to consider applicant for 40 vacant positions – held respondent’s ‘custom and practice’ inconsistent with agreement that contemplates lower level redeployment – found respondent’s view that available positions not appropriate for applicant was not a basis for not putting these positions to applicant to consider – applicant not afforded an opportunity to consider salary maintenance in agreement as positions of lower classification were not put to him – vacant positions were not publicly advertised or accessible to applicant meaning applicant did not have opportunity to ask about positions he did not know existed – Commission found there were a number of positions, many at a lower classification, into which applicant could have been deployed – prepared to infer that applicant likely to be suited for at least one of 40 positions – dismissal of applicant not genuine redundancy – jurisdictional objection dismissed. Pallett v Federation University
June 14, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Quality Assurance Manager – letter of termination said applicant ‘been spoken to a number of times in relation to matters corresponding with QA’ – applicant submitted there was no valid reason for termination – also submitted that there were no prior warnings, a lack of procedural fairness and an inability to bring a support person to termination meeting – applicant’s unchallenged evidence accepted by the Commission – respondent informed Commission it had entered voluntary administration – neither respondent nor administrator appeared for merits hearing – Corporations Act 2001 and Clifford v S & N Constructions P/L applied – ex-parte hearing of merits – Commission satisfied applicant not given opportunity to respond – found lack of human resources management specialists or expertise did not excuse dismissal without warning – found dismissal was absent of procedural fairness and natural justice – Commission satisfied termination was harsh, unjust and unreasonable – ordered compensation of 16 weeks’ pay plus superannuation. Crowe v R and R Poultry P/L t/a R&R Poultry
June 14, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission refused the appellant an extension of the time to lodge an application for an unfair dismissal remedy and dismissed the application – appellant submitted nine grounds of appeal however the grounds only sought to challenge one aspect of the Commission’s consideration under s.394(3), namely the assessment of the merits of his application under paragraph (e) – Full Bench did not consider that anything raised by the appellant in his appeal notice gave rise to any arguable case that the Commission erred in its consideration under s.394(3) – found the appeal did not otherwise raise any issue which attracts the public interest – the matter was decided on its particular facts and raised no issue of principle or general importance – Full Bench do not consider that it would be in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Golding against decision of Platt C of 12 April 2017 [[2017] FWC 2089] Re: Senwill Civil P/L t/a Senwill Civil
June 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant protected from unfair dismissal – no jurisdictional issues – applicant caught departing store with three items without offering or making payment – police called but did not charge applicant – applicant summarily dismissed without notice – clear policies in place against theft or removal of stock without payment – applicant acknowledged and signed policy – applicant claimed supervisor authorised him to take items – difficult personal circumstances, authorisation of supervisor and lack of a full investigation considered – applicant ought to have known authorisation was illegitimate – Commission found removal of stock without payment was a valid reason for termination – termination not harsh, unjust or unreasonable – application dismissed. Johnson v North West Supermarkets t/a Castlemaine IGA
June 14, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – on 18 April 2017, the President issued a Statement [[2017] FWC 2189] (Statement) setting out the 10 matters, other than matter AM2015/1, that were before Full Benches in which former Vice President Watson was the presiding Member, and which appeared not to have been completed prior to his resignation from the Commission – interested parties invited to file submissions by 4:00 pm Friday 5 May 2017, indicating whether they continued to pursue their claims, and whether the Full Bench should be reconstituted in the respective matter – submissions were received from a number of interested parties in respect of each of the 10 matters – no party to the 10 matters has contended that the President does not have power under the FW Act to reconstitute the Full Bench in a matter – satisfied that the FW Act provides the power to reconstitute a Full Bench in circumstances where a matter had not been completely dealt with prior to Vice President Watson’s resignation from the Commission, where the Vice President was the presiding Member of the responsible Full Bench – this is the proposed course of action in respect of six of the 10 outstanding matters – in the remaining four matters a notice of discontinuance has been filed or foreshadowed – a number of those matters (or related matters) will be listed for mention to provide an opportunity for any interested party to advise whether they have a contrary view. 4 yearly review of modern awards-Family Friendly Work Arrangements Clause and Other Matters
June 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench –Commission held at first instance that it could arbitrate dispute in accordance with clause 32 of the CC P/L Enterprise Agreement 2012 (the Agreement) – grounds of appeal included that Commission ought to have found that it had power to mediate or conciliate under clause 32 irrespective of consent of the parties, but only had power to arbitrate with parties’ consent – Commission found that appeal raised important questions concerning construction and application of clause 32 of the Agreement in circumstances where Commission had determined that clause 32 did not limit Commission’s power – found this to be an important matter regarding Commission’s approach in making such a determination therefore, dispute arising in this case was a matter of public interest – Commission can only arbitrate a dispute with express agreement of the parties to that dispute – as clause 32 does not represent an agreement between the parties and there has been no other express agreement, clause cannot be construed so as to allow the Commission to arbitrate dispute – Full Bench held that Commission did not have jurisdiction to arbitrate dispute at first instance as there was no express agreement between parties – permission to appeal granted – appeal upheld – decision at first instance quashed. Appeal by CC P/L t/a Cook Colliery against decision of Spencer C of 13 March 2017 [[2017] FWC 1447] Re: Construction, Forestry, Mining and Energy Union
