Twenty-nine labour related applications are due to be heard by the Fair Work Commission today. The full list is: Asahi Diamond Industrial Australia Pty Ltd (Duffy), Tuggerah Lakes Golf Club Limited (Kennedy), St Basil’s Nursing Home (Tsounias), BlueScope Steel (AIS) Pty Ltd (Cassidy), Canberra Casino Ltd (Warland), ACT Government – Transport Canberra and City Services (Thomas), Onesteel Wire Pty Ltd (Hinds), Mt Arthur Coal Pty Limited (Crebert), MSS Security Pty Ltd (Findley), Action Demolitions and Asbestos Removal (Patterson), PFP (Aust) Pty Ltd (Disselkoen), Faraz Demehri (Ligonis), Artcraft Pty Ltd (Alverson), Challenge Community Services (Barnden), Catholic Parish of Our Lady of Dolours Chatswood (Smith), Orana Incorporated (Thompson), Woolworths Limited (French), BHP Billiton Group (Johnson), Lincoln Logistics Pty Ltd (Moke), The Trustee for the Chunys Trust (Humphreys), Optus Administration Pty Ltd (Falzon), Blockey School Bus Company (Cosgrove), Sandalwood Aboriginal Projects Limited (Conlon), Easitag Pty Ltd (Vassallo), Amtek Corporation Pty Ltd (Young), Buslink Queensland Pty Ltd (McNamee), Australian Brewers Guild (Kinker), Jobco Employment Services Inc (Spilling), The Congregation of Presentation Sisters (WA) Incorporated (Wiener).
June 7, 2017
The Fair Work Commission is lined up to hear twenty-two applications involving unfair dismissal/employment disputes/contract breach and employment conditions enforcement over the next four hours. The full list is: Leeton Preschool Associaiton Inc (Norman), Rail Corporation NSW (Duraisamy), Beecroft LDC Pty Ltd (Jones), Spectrum Community Focus Limited (Valenzuela), CSR Limited (Cui), Invocare (Abboud), Mt Arthur Coal Pty Limited (Crebert), Westpac Group (Pappas), Commonwealth Bank of Australia (Bennett), FBW Gynaecology Plus Pty Ltd (Abela), Invest Blue Support Pty Ltd (Harmer), Garry Crick’s (Nambour) Pty Ltd as The Trustee for Crick Unit Trust (Parker), Origin Energy Resources Limited (Costelloe), The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane) (Lane), Barada Barna Aboriginal Corporation (Roos), HPS (QLD) Pty Ltd (Maher), Horan & Bird Energy Pty Ltd (Gaunt), Yooralla (Shannon), Kentz Pty Ltd (Ketchup, Weekley, Harbrow), BSS Group Pty Ltd (Cooper).
June 7, 2017
Twenty-six unfair dismissal/labour contract dispute applicants are lined up for hearing by the Fair Work Commission today. The current list is: Tasmanian Ports Corporation Pty Ltd (Gee), BHP Billiton Iron Ore Pty Ltd (Foster), Global Care Incorporated (Granitto), Forsight Australia (Mamo), Sydney Trains (Dhillon), Komatsu Australia Pty Limited (Kanti-Paul), ACT Emergency Services Agency (Bourne), Preformed Line Products (Aust) Pty Ltd (Burke), Newcastle Permanent Building Society Limited (Weiss), Mt Arthur Coal Pty Limited (Crebert), TasBulk Pty Ltd (Scott), The Trustee for Delahey Superfresh Unit Trust (Siljanovski), Serco Immigration Services (Anderson), Axios (O’Connor), Kronos Group Pty Ltd (Johnstone), Origin Energy Resources Limited (Costelloe), Qantas Airways Limited (Edwards, Waterhouse), Southern Star Road Pilots Pty Ltd (Gerchow), Passion Q Pty Ltd (Paul), John Flynn Private Hospital (Meredith), NT Handrails Pty Ltd (Puhia), Flight Centre Travel Group Limited (Duke), Deca Constructions Pty Ltd (Duffy), Mercy Education Limited (Murphy), Australian Bureau of Statistics (Murray).
June 6, 2017
Thirty-two unfair dismissal/employment dispute applications are listed for hearing in the Fair Work Commission today. The full list is: Army and Air Force Canteen Service (Shamim), Mt Arthur Coal Pty Limited (Crebert), Grace Information Management (Rasic), Independent Liquor Group Distribution Cooperative (Price), Echuca Community Education Group Incorporated (McAsey), ILSC Brisbane Pty Ltd (Hill), Hyne Timber Pty Ltd (Capile), ACE Operations Pty Ltd (Keighley), Thirty Second Bean Company Pty Limited (Zaboj), Serco Australia Pty Ltd (Kazatsky), CanDo Building Services P/L Consolidated (Doring), Hydraulic Control Pty Ltd (Luong), The GEO Group Australia Pty Ltd (Patel, Reihana, Reilly, Waterfall), Hocking Stuart BBC Pty Ltd (Whelan), DK Thompson Pty Ltd (Kluvetasch), Macrossan and Amiet Solicitors (Porter), Eco Abrolhos (Melville), Perth Market Limited (Beddow), Perth GP Pty Ltd (Roche), Chandler Macleod & Bell (Hobbs), Compass Global Holdings Pty Ltd (Capper), Skyes Australia (Crawford), Zalcom Pty Ltd (Ryan), Staff Australia Payroll Services Pty Ltd (Wills), The Trustee for the Heron Family Property Trust & Oths (Salvemini), Rail Commissioner (Williams), Eco Abrolhos (Melville), Gladstone Ports Corporation Limited (Smith), Randstad Pty Ltd (Belling).
June 2, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent is operator of Gorgon Liquefied Natural Gas Project on Barrow Island (BWI) in Western Australia (Gorgon Project) – applicant employed as Production Technician – two of respondent’s key policies are ‘Chevron Way’ and ‘Business Conduct and Ethics Code’ – these policies articulate respondent’s values and establish standard of conduct with which it expects all of its employees to conduct themselves – policies place highest priority on health, safety and diversity of respondent’s workforce – all employees were provided training in relation to the respondent’s employment policies during induction – at around 5am on 28 September 2016, applicant was on a bus which was transporting workers from accommodation camp on BWI to the Operations Centre Building – during bus ride, the applicant engaged in a conversation with other workers which was offensive and inappropriate – during the conversation the participants broke into laughter (the Incident) – at the time of the Incident, there were at least two workers of Aboriginal heritage on bus – one of these workers informed his supervisor of the Incident by email, alleging that participants in the Incident had made ‘disrespectful derogatory comments directed towards Indigenous Australians’ – worker made a formal written complaint the next day – immediately following receipt of complaint, respondent initiated an investigation into the Incident – applicant interviewed by telephone on 6 October 2016 – admitted to engaging in inappropriate conversation and stated he had apologised to the other worker later on the day of the Incident (28 September 2016), once he became aware that he had caused offence – applicant attended meeting in Perth with respondent on 13 October 2016 during which he was informed of investigation findings and provided with opportunity to provide a response – applicant provided a written response on 14 October 2016 – on 17 October 2016 the applicant attended another meeting with respondent where he was informed that, after considering his response to investigation findings, the decision had been made to terminate his employment with immediate effect, and that he would be paid five weeks’ salary in lieu of notice, as well as any accrued but untaken leave entitlements – Commission held that prior to the Incident the applicant had an unblemished employment record with Chevron – accepted applicant’s unchallenged evidence that over the last 30 years he has had many positive interactions with Aboriginal people as football teammates, workmates, friends and acquaintances and that he has worked in roles where he mentored, managed and coached many Aboriginal people, mostly young men – Commission found that what applicant said amounted to inappropriate workplace behaviour and so under terms of Chevron’s policy this exposed him to possible disciplinary action up to and including the termination of employment – found valid reason for dismissal of applicant because of his failure to comply with Chevron’s Discrimination Policy – that of itself does not necessarily mean that his dismissal was not harsh, unjust or unreasonable – Mt Arthur v Goodall considered – held that whilst what was said on bus had offended and upset other employees, this was result of applicant’s failure to properly consider his surroundings before he spoke, his words were not directed at anyone – his actions were careless rather than involving reckless indifference – these circumstances reduce the gravity of the applicant’s misconduct – applicant was entitled to maintain his view that the story he told in the full context was not offensive and not degrading to women – the fact that the applicant maintained this view on these matters during his interview with respondent was not inconsistent with him being contrite about fact that what he said was heard by others and had offended and upset them – found that respondent should have given consideration to fact that as soon as applicant became aware that he had upset the other employee, the applicant went to some lengths to attempt to apologise to him – Commission satisfied that applicant was genuinely apologetic for having caused upset to other employees who heard what he said – satisfied that the dismissal was harsh and unreasonable – applicant had been unfairly dismissed – applicant sought an order for reinstatement and order for continuity of service – submitted there was no basis to find that his conduct has resulted in a loss of trust and confidence which would make reinstatement inappropriate and impracticable – respondent submitted that Commission should not order reinstatement because of serious nature of applicant’s misconduct, his failure to appreciate his conduct constituted harassment within meaning of Discrimination Policy, his attempts to downplay the seriousness of his misconduct and his complete disregard for Chevron’s values and its approach to workplace conduct as set out in its policies – Commission found it difficult to understand how it can be said that the applicant’s momentary lack of attention to his surroundings as he sat amongst his friends at back of bus at 5am in the morning demonstrates he does not in any way accept Chevron’s values – evidence shows that what occurred was the only instance of speaking inappropriately in workplace in three years of employment – applicant referred respondent to three Aboriginal men who could be character referees for him – held this does not suggest Aboriginal employees are at risk of further abuse by applicant if he was reinstated – no basis to conclude that applicant has not learned his lesson and is likely to repeat this type of behaviour – no reason to believe that respondent’s trust and confidence in applicant cannot be restored – found reinstatement of applicant to position in which he was employed immediately before dismissal was appropriate remedy – applicant’s representative submitted that Commission may consider declining to make an order restoring the lost remuneration since dismissal as reasonable sanction for applicant’s misconduct – further submitted that that would strike balance between respondent’s obligations to provide a workplace free from unacceptable conduct and its right to impose a disciplinary penalty for such behaviour – Commission did not make order for lost remuneration – remuneration lost since October 2016, as penalty for his misconduct, is by any standard a considerable penalty. Solin v Chevron Australia P/L
June 2, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.385, 386, 394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed by the respondent for about 4.5 years as an Assembly Technician – applicant had applied for and been granted a period of unpaid leave as he was experiencing some pain in his hands and neck which he attributed to his work duties – applicant considered that a break from work would help alleviate the pain he was experiencing, and he decided to make plans to visit his adult daughter living in the USA – the applicant spoke with the respondent and requested ‘a few weeks’ leave’ in order to travel to the USA – respondent granted the time off work equal to his accrued annual leave together with a few extra days of unpaid leave – applicant then booked flights that would require him to be off work between 26 February 2017 and 12 July 2017, a period of 4.5 months – by 13 January 2017, the respondent informed the applicant that it would not grant him extended unpaid leave for the period sought – stated that if the applicant did go on an extended break and did not return it would consider that he had abandoned his employment – on 16 January 2017 the applicant left a note on his manager’s desk with the subject ‘Resignation’ – approximately three weeks later, the applicant served the respondent with a letter seeking to withdraw the earlier resignation – the respondent did not accept the withdrawal of resignation – the Commission held that the question was whether there had been a constructive dismissal in that the applicant had been forced to resign when he tendered his resignation [Hardwick], [Australian Hearing] – Commission held that the applicant was not forced to resign because of conduct or a course of conduct engaged in by the respondent, and so the applicant’s employment was not terminated on the respondent’s initiative – application dismissed. Kee v Century Yuasa Battery P/L
June 2, 2017
TERMINATION OF EMPLOYMENT – contract for specified term – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant engaged as a teacher on a casual basis from 2005 to 2012 and then on a number of maximum-term contracts from 2012 to when his employment ended on 30 June 2016 – covered by The Navitas English Enterprise Agreement 2010-2012 (2010 Agreement) and The Navitas English Enterprise Agreement 2013-2015 (2013 Agreement) – contracts of employment clause changed between the 2010 Agreement and 2013 Agreements – applicant claimed there was a continuous employment relationship – submitted none of the contracts he entered into with respondent had been for a specified time because each one contained a clause for either party to terminate by giving notice – claimed 2013 Agreement required respondent to conduct an assessment using clause 11 of the 2013 Agreement to determine if a maximum-term employee would have their contract renewed – claimed respondent should have taken an active step to consider eligibility of applicant and give notice to applicant if contract would not be renewed [Mohazab] – claimed this and obligations of clause 11 of 2013 Agreement imposed a positive act on employer to end employment and therefore termination was at respondent’s initiative – respondent raised jurisdictional objection – claimed no dismissal because applicant was employed on a series of maximum term contracts and his employment ended on the latest contract expiration – submitted applicant’s employment was predominantly linked to government funding expiring on 30 June 2016 – respondent denied it informed applicant his employment was being terminated – respondent’s Area Manager gave evidence that due to fluctuating student numbers it needed to maintain a balance between permanent, maximum-term and casual employees – to achieve this, respondent used a set of criteria from which it was determined which employees would be offered a new maximum-term contract – gave evidence that applicant scored lowest and was informed on 31 May he would not be offered a new contract – submitted applicant’s employment ended by the effluxion of time [Lunn] and no terms in 2013 Agreement affected applicant’s employment ending for that reason – claimed applicant entered into final contract freely with an intention that it had a finite period – Commission satisfied terms of employment contract were clear and unambiguous – found applicant was aware his employment could end by a maximum-term contract reaching its end date – found 2013 Agreement allowed respondent ‘in its absolute discretion’ to determine if applicant was to be offered a new contract – Commission bound by Lunn – no dismissal at initiative of respondent – relevant to s.386(2)(a) FW Act, employment ended due to the effluxion of time – considering s.386(3) FW Act, respondent did not enter into the maximum-term contract for the substantial purpose of avoiding unfair dismissal obligations – government contracts fundamentally linked to its operations – application dismissed. Khayam v Navitas English P/L t/a Navitas English
June 2, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal made 17 days late – not disputed applicant’s employment ended on 16 January 2017 – applicant lodged unfair dismissal application on 23 February 2017 – applicant sought a further period for an unfair dismissal application to be made – Nulty and Diotti considered – Commission considered applicant’s circumstances from the time of dismissal to determine whether there was a reason for delay beyond the 21 day period and if such reason constituted exceptional circumstances – applicant adduced medical evidence to support her contention that she has suffered from significant mental health conditions including adjustment disorder, posttraumatic stress disorder, and depression for a number of years as a result of traumatic events in her life – applicant also submitted that since was forced to move out of the home she shared with her children in February 2015, she has not had stable accommodation – the applicant gave evidence she has moved between the homes of both of her parents, the home of her partner’s parents, friends’ homes, sleeping in her car, and on the floor of her partner’s trade storage unit – applicant submitted her poor financial situation following her dismissal prevented her from getting some things done quickly, for example, the applicant did not have access to the internet or her phone during part of the period between 16 January 2017 and 23 February 2017 – Commission accepted the applicant’s evidence that she was significantly incapacitated by reason of her mental health conditions for some of the days in the period between 16 January 2017 and 23 February 2017 – found applicant had relatively stable accommodation in her friend’s house from about 25 January 2017 until about 21 February 2017 – whilst sympathetic to the applicant’s circumstances, the Commission found the matters relied on for the delay in filing the application were not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon – applicant did not provide an adequate explanation for the whole period of her delay in filing her application – Commission considered Kornicki and adopted the reasoning that the Commission should not embark on a detailed consideration of the substantive case for the purpose of determining whether to grant an extension of time to the applicant to lodge an application – found there were no exceptional circumstances warranting the applicant be granted a further period for an application to be made – application for an extension of time refused – jurisdictional objection upheld – substantive application dismissed. Applicant v Respondent
