TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a full-time office manager – claimed her dismissal was harsh, unjust and unreasonable – Director of respondent appeared at a directions hearing on 7 March 2017, he informed the Commission that he intended to call about eight witnesses to defend the unfair dismissal application – respondent did not attend hearing – applicant the only person to give evidence at the hearing and the case was decided on that evidence – in its Employer Response, the respondent contended it had nine employees at the time the applicant was dismissed and her dismissal was consistent with the Small Business Fair Dismissal Code (the Code) – applicant gave evidence, which was accepted, that the respondent did not have fewer than 15 employees at the time of her dismissal – Commission found respondent was not a small business employer at that time – however, even if respondent was a small business employer at the time it dismissed the applicant, Commission satisfied that respondent did not comply with the Code in relation to the dismissal – found no valid reason for dismissal – satisfied dismissal was harsh, unjust and unreasonable – ordered compensation in the sum of $18,323.04. Ryan v Zalcom P/L t/a Zalcom
May 12, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant lodged unfair dismissal claim – application lodged one day out of time – whether exceptional circumstances to warrant extension of time – applicant had workplace injury and was absent on leave without pay for a period of seven months – respondent claimed that applicant failed to comply with notification obligations under enterprise agreement about absence – respondent received medical certificate further extending absence – respondent terminated applicant’s employment on basis applicant had no intention to engage in a return to work process in any capacity and was not reasonable or practicable to allow applicant to continue taking leave without pay – applicant’s unfair dismissal application posted on 28 December 2016 and received by Commission on 4 January 2017 – Commission considered whether credible reason for the whole period that the application was delayed beyond 21 day period – 21 day period started on the day following the dismissal – if final day of 21 day period is national public holiday or weekend then the timeframe extended until next business day – public holidays and weekends during the 21 day period will not extend the period of lodgement – applicant submitted that delay was due to lawyer advising it was not the time to pursue claim – under impression that application posted on 28 December would arrive in time – Commission found exceptional circumstances as applicant had been advised not to proceed with application, had poor literacy skills and needed assistance from his partner to fill out form and post application – whether limited evidence discloses a likely unfair dismissal – considered Kyvelos – Commission not required to make finding of fact as to evidence brought forward on the merits of application – Commission held insufficient material to draw conclusions about the prospect of success – Commission granted extension of time. Ninyette v BGC Contracting P/L
May 12, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute in accordance with the dispute resolution procedure of the Australia Post Enterprise Agreement 2013 – whether the position in dispute in the Customer Contact Centre was correctly classified at Level 3 or whether it should be classified at Level 4 – Commission not satisfied that the work of the team as a whole fits the Level 4 descriptor – however satisfied that highly experienced members of the team who meet certain characteristics should be classified at Level 4 – given the finding that only some of the team members are likely to meet the criteria some further process is required to finalise the dispute – Australia Post to provide its proposal, together with its rationale, as to which members of the team meet the requirements within 14 days – CEPU may respond to the Australia Post proposal within a further seven days – conference to be convened on 26 May 2017 at 10am to finalise the matter. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v Australian Postal Corporation t/a Australia Post
May 12, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – applicant wanted to utilise a number of labour hire employees to cover a spike in workload at its Westernport facility – contended that despite the opposition from its employees and the respondent that it was able to utilise labour hire under clause 13.1 of the Agreement – Golden Cockerel and Paper Australia considered – Commission held that applicant had considered the appropriateness of the use of contractors as an alternative to the use of full-time employees – however, held it was also clear that applicant had not considered the appropriateness of the use of fixed term employment as an alternative to the use of either full-time employment or the use of contractors – Commission could not be satisfied that the use of contractors was an appropriate alternative arrangement – issue in dispute remains unresolved – appropriate that the parties be given an opportunity to make further submissions having regard to the contents of this interim decision. BlueScope Steel Limited t/a BlueScope v Australian Workers’ Union, The
May 12, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – submissions sought by Commission on options to resolve dispute after determination was made that first written warning issued to CFMEU delegate, the applicant, pursuant to clause 29 of the Energy Australia Yallourn Enterprise Agreement 2013 (agreement), be withdrawn – Commission considered how respondent’s failure to act in accordance with clause 29 of the agreement impacted on the applicant – considered that the dispute settlement procedure of agreement meant the penalty imposed cannot be backdated and that the dispute resolution term provided wide discretion to the employer to resolve disputes and thus their views should be an important consideration – Commission not satisfied that no further action should be taken given the short comings of the process adopted by the respondent – ordered first written warning effective 1 May 2017 expiring 17 June 2017. Construction, Forestry, Mining and Energy Union v Energy Australia Yallourn P/L
May 12, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – applicant notified Commission of a dispute arising under the terms of the BlueScope Steel Western Port Enterprise Agreement 2014-2017 (the Agreement) – applicant wanted to engage labour hire provider to provide four workers to meet short-term increase in workload which was opposed by respondent which wanted increased workload to be covered by overtime – respondent raised jurisdictional objection – contended Commission did not have jurisdiction to deal with alleged dispute – submitted jurisdiction of Commission to deal with a dispute was dependent on applicant complying with each step of the dispute resolution process in clause 11 of the Agreement – further submitted subject matter of the dispute was about the operation of clause 13.1.3 of the Agreement which was not the subject of discussion between the parties – applicant submitted dispute could be referred to the Commission because it had met the necessary requirements of the dispute resolution procedure in the Agreement – considered construction of clause 11 of the Agreement – Commission found clause 11.9 of the Agreement unambiguously provided for unresolved disputes to be referred to the Commission – whether applicant could refer a dispute to the Commission if the procedure set out in clauses 11.5, 11.6 and 11.7 had not been followed and followed in sequence – whether applicant engaged in discussions which met clauses 11.6 and 11.7 – Commission held discussions which took place met requirements of clauses 11.6 and 11.7 – found contention of respondent that operation of clause 13.1.3 was not material – satisfied applicant followed procedural steps of clause 11 as far as was possible in relation to subject matter of dispute – held Commission had jurisdiction to deal with the dispute – jurisdictional objection dismissed – matter to proceed to arbitration. BlueScope Steel Limited t/a BlueScope v Australian Workers’ Union
May 12, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was employed as Payroll Officer – applicant submitted she was unfairly dismissed and her termination was not a genuine redundancy – during time of applicant’s transition to new role of PEO HR Coordinator, respondent was considering operational requirements of business across three offices – respondent recently lost some substantial Perth-based contracts – decided it had too many people involved in the PEO process resulting in inefficiencies – applicant’s responsibility of providing PEO services – applicant had some miscommunications with Sydney due to time zones – respondent decided only one full-time HR Manager position was required – respondent held three meetings with applicant in October and November – Commission satisfied that duties applicant had been doing would be distributed to other fulltime Payroll Officers and that her duties would be performed by new full-time HR Manager job based in Sydney office – Commission satisfied respondent no longer required the applicant’s job to be performed by anyone – respondent complied with obligations to consult once it had made a definite decision to change its staffing arrangements – applicant offered opportunity to apply for the HR Manager role in Sydney on numerous occasions – applicant did not apply as she did not want to relocate or work full-time for family and financial reasons – no redeployment opportunities available – dismissal was genuine redundancy – application dismissed. Wrzoskiewicz v Easy Payroll Perth P/L
May 11, 2017
It’s still a listless list of applicants seeking redress from unfair dismissal and employment contract adjustment in the Fair Work Commission today. Twenty-five are scheduled to appeal: Banana Coast Community Credit Union Ltd (Murphy), Qantas Airways (Delaney), Broometown Holdings Pty Ltd ATF The Nelen Family Trust (Rowland), Nulsen Haven Association (Inc) (D’Vauz), Qantas Airways Ltd (Jeffs), Shade Solutions (Marriott), Jim Aitken & Partners No 1 Pty Ltd (Godkin), Quirindi Retirement Homes Limited (Ryan), Talking Heads Speech Pathology (Aron), Affinity Diamonds Pty Ltd (Park), Western Sydney Community Legal Centre Incorporated (Girdler), The Returned and Services League of Australia (New South Wales Branch) (Kolomeitz), Coca-Cola Amatil Limited (Braughton), Multicap (Keating-Jones), Stumpf, Eric Simon (Costin), Bluestone Mines Tasmania Joint Venture Pty Ltd (Goodsell), Fullers Bookshop (Andrews, Tilsley), Serco Australia Pty Limited (Ndou), CSL Limited (Saunders), Brockman House Inc (Reilly), Fluor Rail Services Pty Ltd (Goerke), Sealing Australia Pty Ltd (Akhurst), Coles Group Supply Chain Pty Ltd (Ly), Estia Health (Brackley).
