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
June 2, 2017
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
