TERMINATION OF EMPLOYMENT – minimum employment period – casual – ss.383, 384, 394 Fair Work Act 2009 – application for an unfair dismissal remedy – respondent objected on basis that the applicant had not satisfied the minimum employment period – submitted that applicant’s period of employment as a casual employee was not on a regular and systematic basis and that he did not have a reasonable expectation of continuing employment, meaning that his period of service as a casual should not count towards the minimum employment period – applicant submitted that he commenced work in approximately June 2010 and that he continued in employment until February 2017 – respondent contended that the commencement of the applicant’s period of employment was only from 2016 – submitted that the applicant had various periods of casual employment with it since 8 May 2010 but that his ‘casual engagements prior to 2016 were occasional, irregular, short and related to a different type of work (non-teaching work) to his 2016 casual engagements’ – Shortland considered – whether or not routinely occurring breaks in the academic year might either explain some of the gaps in the applicant’s employment and not be treated as breaks in continuous service – Commission found the applicant’s continuity of service with the respondent, if there was any, was broken when he completed preparation of the course materials in 2015 – whether the work performed in 2016 was continuous service – Commission held the evidence did not lead to a finding that there was continuous service within the engagements during 2016 – Burke and Ponce considered – found the applicant had not completed the minimum employment period – application dismissed. Calleri v Swinburne University of Technology
June 2, 2017
ENTERPRISE BARGAINING – majority support determination – ss.236, 237 Fair Work Act 2009 – application to make a majority support determination in respect of employees of Top Cut Food Industries P/L and Caterfare P/L – not contested that application met all criteria for issuing the order except s.273(2)(d) of FW Act regarding reasonable circumstances – respondent position that company circumstances were not reasonable – application in relation to Laverton site closing on 1 June 2017 – after this no employees of respondent on site – respondent submitted no time available for bargaining whilst in process of closing site and transferring assets – respondent not able to change its position on terms of a proposed agreement – Commission’s view short time for bargaining clearly relevant to whether or not it is reasonable to make the determination [CBI Constructors] – applicant’s bargaining intent was to focus on enhanced redundancy and redeployment provisions as higher redundancy standards apply in respondent’s other sites – decision given ex tempore – Commission not satisfied tight timeframe precludes making the determination – taking into account all factors Commission not satisfied it is unreasonable to make an order which does not give effect to wishes of a majority of employees – majority support determination issued. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Top Cut Food Industries P/L t/a Top Cut Food Industries and Anor
June 2, 2017
CASE PROCEDURES – no reasonable prospects of success – ss.587, 789FC Fair Work Act 2009 – applicant alleged bullying by two persons at work – employer represented itself and the two respondents – matter subject of private conference – proposal to resolve discussed – applicant considered proposal, did not accept and continued application – employer sought dismissal of application under s.587(1) FW Act – employer submitted alleged bullying was reasonable management action and carried out in reasonable manner by the two respondents – respondent submitted same allegations repeatedly raised and on each occasion applicant provided natural justice – respondent submitted that allegations coincided with performance management – applicant submitted no documentation had been provided regarding any investigations – applicant submitted she suffered psychological injury as result of multiple bullying encounters – applicant submitted most recent WorkCover claim under review – held that matter involves contested facts about the nature of exchanges and would benefit from hearing evidence – not satisfied that application is frivolous or vexatious – not satisfied that application is manifestly untenable or groundless – application under s.587(1) FW Act dismissed – application to proceed. Re: E.K.
June 2, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant commenced as full-time Automotive Engine Reconditioner in 2010 – respondent purchased business in April 2013 and engaged applicant on a casual basis for three months – applicant subsequently engaged full-time until his employment ended on 18 October 2016 – applicant submitted there was no valid reason for dismissal and that he was not afforded procedural fairness or an opportunity to respond – respondent raised jurisdictional objections claiming applicant was not an employee but a sub-contractor – Stevens applied – although there was no employment contract between applicant and respondent, evidence was suggestive of employment on nearly all indicia identified in Stevens – satisfied that applicant was an employee – respondent raised further jurisdictional objection that applicant was not dismissed but had resigned during week of 22 October 2016 – applicant submitted that he was dismissed on 18 October 2016 following text message from respondent which included use of phrases such as ‘you’re a replaceable pawn’ and ‘time has come for u [sic] to part ways’ – evidence suggested that respondent sent message based on belief that applicant had given private information to his ex-wife’s partner – respondent subsequently instructed someone to go to applicant’s house and take his workshop keys – applicant submitted that he attended workshop on 21 October 2016 to discuss issues raised in text message, however, respondent refused to have discussion and told applicant to ‘Get your stuff and get out’ – on balance of evidence, Commission satisfied applicant was dismissed effective 21 October 2016 – jurisdictional objections not established – whether respondent complied with Small Business Fair Dismissal Code (the Code) – respondent put forward several claims against applicant as justification for dismissal, including disclosure of personal information to his exwife’s partner and allegation that applicant offered drugs to another person in workshop – applicant denied disclosing personal information and submitted that allegation that he offered drugs was fabricated – respondent accepted that he had no evidence of what applicant said to his ex-wife’s partner – evidence concerning drug allegation was vague and was not raised with applicant at the time – Commission determined the issue which led to termination of applicant was the belief that applicant disclosed personal information – not satisfied that this issue, nor any other issue raised by respondent, gave reasonable grounds to summarily dismiss applicant – not satisfied that dismissal complied with the Code – no valid reason for dismissal and respondent’s own evidence is that he refused to engage in discussion with applicant following termination, thereby, applicant was not given opportunity to respond – satisfied that dismissal was harsh, unjust and unreasonable – reinstatement not appropriate – Sprigg adopted to calculate compensation – business ceased trading two weeks after applicant’s employment ended – respondent accepted that business would still be trading if applicant was still employed – Commission determined applicant would have continued employment for at least another 16 weeks, equating to $12,800 – deducted $4,840 remuneration received by applicant from casual employment since dismissal – deducted 20% for contingencies given the small nature of the business and that there was a reasonable level of uncertainty about future employment – ordered compensation of $6,368 gross tax plus 9.5% superannuation. Zielke v Pro-built Engine Reconditioning P/L t/a Pro-Built Engine Reconditioning
June 2, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute regarding proper application of clause 5.2 of Bytecraft Systems Employee Enterprise Agreement 2012 – Workshop & Logistics (Agreement) – dispute not resolved at conciliation – dispute within scope of dispute settlement procedure – appropriate steps of procedure followed – decision dealt with two preliminary issues: whether clause 5.2 requires employer to supply to each employee a mobile phone or Pocket PC, and if so what is a Pocket PC – clause 5.2 states ‘mobile phone or pocket PC will be supplied’ – employer submitted clause 5.2 about tools of trade as opposed to employee benefit – Commission found submission not sustainable – clause preamble states tools of trade provided in clause are ‘for the benefit of employees’ – whether supply of property referred to in clause 5 is mandatory or discretionary depends upon clause wording, not on some inherent property of a tool of trade – employer argued there are some circumstances when word ‘may’ has mandatory meaning and some circumstances when ‘will’ not absolutely mandatory [Catholic Regional College Sydenham] – Commission satisfied that generally the word ‘will’ is mandatory – could only be in particular exceptional context that this not the case – no basis to find clause ambiguous – would need to be something in context of legislation, placement of clause in Agreement or surrounding language of Agreement that suggested ‘will’ was not mandatory – wording of clause 5.2 clear and plain – where framers sought to make entitlement discretionary, the word ‘may’ used in Agreement – definition of Pocket PC considered – submissions filed by unions provided number of sources for definition of Pocket PC – necessary to consider what an objective person would have understood by phrase in 2012 – Commission satisfied that considered in context a Pocket PC a hardware specification from Microsoft for a small, handheld computing device that uses the Microsoft Windows Mobile operating system – parties to meet to attempt to reach resolution of remaining issues in dispute – further conference listed. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Bytecraft Systems P/L
June 2, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.385, 386, 394 Fair Work Act 2009 – respondent made a jurisdictional objection on 29 September 2016 – ‘termination is at the employer’s initiative when the employer’s action directly and consequentially results in the termination of employment and had the employer not taken this action the employee would remain employed’ [Mohazab] – respondent submitted applicant’s employment not terminated at the initiative of employer nor was he forced to resign – respondent stated they consulted with applicant regarding possible change to his role during a meeting on 9 August 2016 – applicant had opportunity to raise consideration between that meeting date and meeting on 15 August 2016 – applicant argued respondent unilaterally changed the his job description and without prior consultation – applicant was moved from a driver to a storeperson – applicant raised medical concerns regarding working in the freezer – argued change to role was put to him as an ultimatum – whether respondent was subject to the Small Business Fair Dismissal Code – Commission satisfied applicant was dismissed, dismissal not consistent with the Code and dismissal was not a case of genuine redundancy – found respondent did not have ability to unilaterally change applicant’s position when he did not agree to take on new role therefore no valid reason for constructive dismissal – determined applicant’s dismissal was harsh, unjust and unreasonable – Commission determined reinstatement inappropriate – Haigh v Bradken test considered for remedy of compensation – Commission unable to finalise determination of amount of compensation – requested further information – will order compensation to be paid in instalments once amount of compensation is known – further decision and an order to be issued within two weeks of receipt of requested information. Keogh v French Par-Bake
June 2, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant lodged application for unfair dismissal remedy outside of 21-day time limit – respondent objected on basis of application being lodged out of time and case of genuine redundancy – Commission dealt with extension of time matter first – Commission must be satisfied ‘exceptional circumstances’ for delay [Nulty] – applicant claimed notified of termination while in Japan and evidence went to difficulties gathering thoughts, lack of access to internet and information and inability to obtain advice – emerged during hearing that applicant was not contemplating making application regarding termination while in Japan as believed she had been made redundant and was focused on whether termination payment was in accordance with legal entitlement – applicant only became aware after 21-day period of potential unfair dismissal claim after being advised that casual employee of respondent who was also dismissed was being ‘brought back’ – Commission satisfied applicant only formed view that her termination was not result of genuine redundancy after she conversed with former colleagues upon returning from Japan – once she was told respondent was re-engaging former staff member, short period of time elapsed before she filed applicant for unfair dismissal – honest and reasonably held belief that an earlier redundancy may not have been genuine based on plausible information, may constitute ‘exceptional circumstances’ [Bananacoast] – Commission satisfied test met in this instance, given unusual feature to applicant’s case that it was only on 21st day after termination that she first developed doubts as to genuineness of redundancy – extension of time granted – matter referred for further directions so jurisdictional objection and merits of application could be heard and determined. Okamoto v GBW GAPbuster Worldwide P/L
June 2, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute arising under Appin Colliery & West Cliff CPP Enterprise Agreement 2015 (the Agreement) – application to determine whether the Agreement requires the respondent to pay a shift loading in addition to public holiday penalties to employees covered by the Agreement who perform shift work on a public holiday – Golden Cockerel applied – historically there were separate enterprise agreements for Appin and West Cliff – employees at West Cliff were not paid shift allowances in addition to the public holiday penalties for work on a public holiday, and Appin employees were paid the shift allowances in addition to the public holiday penalty rates – respondent has since ceased that practice, which gave rise to current dispute – applicant submitted that Appendix 3 was fundamental to the resolution of the current dispute, and the clauses within the Agreement are separate and discrete and provided different entitlements for different reasons, particularly that Appendix 3 provided separate and discrete payment rules for shift allowances, weekend penalties and public holiday penalties – respondent submitted that the public holiday provisions of the Agreement were clear and comprehensive, and applied in place of all other allowances or components which might otherwise have been triggered – further submitted that there was no basis for an interpretation of the Agreement which required shift penalties to be paid in addition to public holiday penalty rates – Commission held it was evident from the words in the public holiday clause that payment for a public holiday includes only that which is specifically stated in Appendix 3 – were it otherwise, this would have been explicitly stated within the Agreement, as it has been in other clauses – held it was clear from the language of other clauses within the Agreement that an express basis for the payment of more than one component set out in Appendix 3 may be payable at the same time – application dismissed. Construction, Forestry, Mining and Energy Union v Endeavour Coal P/L
