TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief for unfair dismissal – applicant employed since 19 March 2006 and notified of dismissal on 19 September 2016 with four weeks’ pay in lieu of notice made – respondent submitted applicant dismissed due to unsatisfactory performance and conduct – respondent raised issues of attendance with applicant, given verbal warning in June 2016 – applicant given extensive annual leave in July and August to attend to his personal affairs attendance unsatisfactory upon return to work – warning letter issued on 30 August 2016 and final warning given on 12 September 2016 outlining applicant dismissed due to failing to complete tasks in time and accurately, failing to attend work during 8:30am to 5:00pm and applicant’s tendency to disappear for long periods during the day – principles of determining whether termination was harsh, unjust or unreasonable used from Byrne and Rose v Telstra – Commission satisfied valid reason for dismissal due to applicant’s time keeping and unexplained and sometimes un-notified absences – satisfied applicant notified of valid reason for termination and opportunity to respond – determined dismissal not harsh, unjust or unreasonable – application dismissed. Pham v Professional Investment Services P/L t/a Centrepoint Alliance
April 20, 2017
RIGHT OF ENTRY – non-member records – exemption certificate – ss.483AA, 519 Fair Work Act 2009 – four applicants made application to the Commission for Order allowing access to nonmember records – applicants employees of CFMEU – all hold entry permits – CFMEU also made application for exemption from requirement to provide entry notice under s.519 of the Act – applications sought in respect of work performed by employees of Care Traffic P/L and Care Traffic Services P/L (Care Traffic) under the Building and Construction General On-site Award 2010 – applicants evidence highlighted concerns with Care Traffic’s compliance with award provisions – evidence also given by two others who were knowledgeable about Care Traffic’s employment arrangements – satisfied that orders sought are necessary to investigate whether suspected contraventions of Award by Care Traffic are in fact occurring – as to application made under s.519 – evidence of alterations to sheets recording employee’s hours of work – no evidence lead suggesting Care Traffic had concealed or destroyed records prior to investigation – do not reasonably believe that advance notice of entry might result in destruction, concealment or alteration of relevant evidence – exemption certificate declined. Construction, Forestry, Mining and Energy Union and Ors
April 20, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by Bechtel from March 2016 until September 2016 – summarily dismissed for alleged serious misconduct which occurred during evening of 10 September 2016 at Sun Chalets in Onslow – applicant submitted he was not at work, or rostered for work when incident occurred – submitted respondent played no part in organising or authorising activity – submitted alleged misconduct occurred in private accommodation booked and paid for by applicant and any damage and loss of utility was voluntarily reimbursed – submitted sole reason respondent gave for dismissal was that alleged misconduct constituted serious misconduct for purposes of Community Code – contended that his behaviour did not breach an express or implied term of contract of employment and Code was not a term – submitted that if Code was applicable alleged conduct did not constitute serious misconduct for purposes of Code and not valid reason – submitted that respondent had no right to interfere or attempt to regulate applicant’s private life – Respondent submitted employees must seek approval to stay in Onslow overnight due to sensitive relations between project and local community – applicant’s contract of employment and letter of offer contained commitments to policies and procedures including those relating to local community – submitted applicant and colleague registered at motel as employees of respondent – submitted applicant’s admissions sufficient to be within ambit of Code of Conduct, Community Code and Project Rules – submitted that termination was valid as misconduct was manifestly serious and in clear breach of contract of employment and various policies he had expressly acknowledged – Rose v Telstra cited – submitted the fact that applicant off-site and off-duty is irrelevant given Codes and Rules – submitted that applicant’s payment for damage caused was not indicative of remorse but an ordinary consequence of misconduct – Commission satisfied that content of Codes and Rules not unreasonable in the particular circumstances – considered distinction in Codes between misconduct and serious misconduct – satisfied that noisy behaviour to others or causing a disturbance was misconduct despite respondent’s label of serious misconduct – not satisfied that applicant’s behaviour was wilful nor that it constituted serious misconduct as set out in the Community Code – held that applicant’s behaviour in terms of Codes constituted misconduct but not serious misconduct and should not result in termination of employment – held that applicant should have been subject to disciplinary action but that should not have been termination of employment – considered s.387 FW Act – found that applicant’s conduct and failure to comply with Codes were valid reasons for dismissal – treatment of two employees considered – Jetstar v Ishak considered – Commission found decision to terminate applicant when colleague only received final written warning for comparable conduct was harsh – determined that dismissal was harsh and unjust and unfair – remedy considered – respondent submitted loss of trust and confidence so reinstatement inappropriate – Commission satisfied that reinstatement appropriate – ordered reinstatement to position held immediately prior to dismissal with maintenance of continuity of employment – order for lost remuneration to deduct eight weeks as consequence of misconduct – parties to confer on form of Order. Clarkin v Bechtel Construction (Australia) P/L
April 20, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission found appellant fairly dismissed – on several occasions appellant provided with information about appeal process, including requirement to file Appeal Books and submissions – appellant did not file submissions by time of hearing – did not appear at hearing and was unable to be contacted – as appellant did not appeal at hearing, Full Bench made ex tempore decision refusing permission to appeal – permission to appeal refused. Appeal by Nourfadi against decision and order of Roe C of 20 February 2017 [[2017] FWC 819] Re: Viatek Technology P/L
April 20, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant for unfair dismissal remedy employed as a receptionist on a casual basis at respondent small business – applicant advised respondent that she had taken out an intervention order against one of its contractors owned by her brother in law (contractor) – applicant summarily dismissed for misconduct for allegedly viewing archived emails and invoices of contractor – respondent alleged conduct of applicant in looking at emails after being warned on various occasions not to do so, placed respondent at risk of breaching the Privacy Act – under Small Business Fair Dismissal Code (Code), Commission to consider whether respondent had reasonable belief that applicant’s conduct was sufficiently serious to justify immediate dismissal – Commission found no direct evidence that applicant was accessing archived emails of contractor or had obtained or was intending on using the contractor’s information for any purposes that would breach Privacy Act – to hold a belief on reasonable grounds necessary to have a discussion with employee about the perceived serious misconduct and consider employee’s responses – no such discussion occurred – nothing in evidence suggesting respondent had reasonable grounds to believe there was serious misconduct – not satisfied respondent reasonably formed belief that applicant engaged in conduct that justified immediate dismissal – Commission held dismissal inconsistent with Code – necessary to consider whether dismissal harsh, unjust or unreasonable – not satisfied that applicant received instructions from respondent regarding the handling of emails from contractor – no warnings about accessing archived emails or that such conduct may result in dismissal – not satisfied respondent could be sure applicant was accessing files for reasons that would warrant dismissal – no valid reason for dismissal – applicant notified of reason for dismissal at meeting in which dismissed, after decision to dismiss had been made – not treated fairly in process – respondent’s lack of expertise in human resources not sufficient to outweigh the lack of a valid reason – satisfied dismissal harsh, unjust or unreasonable – Commission found dismissal unfair – reinstatement inappropriate – compensation appropriate – estimated length of employment at least another year – payment of 26 weeks’ compensation plus superannuation, less tax ordered. Wright v Essendon Realty P/L t/a Raine & Horne
April 20, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant commenced employment with respondent on 14 June 2008 – in June 2016 direct manager of applicant accessed metal lockbox in back dock of store that contained respondent’s property and some of the applicant’s personal belongings without first asking the applicant for access – around the same time, after some to and fro of the applicant’s desk and stool being removed from back dock, applicant’s direct manager threw items into garbage – applicant complained to store manager about incident – applicant undertook combination of personal and annual leave from 2 July 2016 until 26 November 2016 – applicant provided a letter of resignation to store manager on 26 November 2016 due to ‘persistent bullying, harassment and intimidation’ – applicant submitted he had been constructively and unfairly dismissed and requested a remedy of two years wages and long service leave – respondent raised jurisdictional objection on the basis the applicant had not been dismissed – submitted applicant chose to resign and clearly had alternative actions available if maintained genuine on-going concern about alleged intimidation, harassment and bullying – s.386(1) FW Act considered – if dismissal is one where the employee did not resign willingly and was forced to do so by conduct of employer, should be treated as dismissal [Mohazab] – Commission considered applicant did not alert employer the period of leave was connected with complaints named by the applicant – considered applicant did not further agitate or elevate his grievance about alleged actions which was said to cause his resignation – considered applicant had legitimate basis for complaint about manager’s conduct however did not amount to egregious breach of employment relationship – determined resignation of applicant was not caused by conduct or course of conduct by the employer – held a constructive dismissal is not established simply because an employee decides to treat the conduct of an employer as the repudiation of the employment – Commission determined applicant not forced to resign – jurisdictional objection by the employer upheld – application dismissed. Fitzgerald v Woolworths Limited
April 20, 2017
CASE PROCEDURES – procedural and interim decisions – ss.789FC, 589(2) Fair Work Act 2009 – application for order to stop bullying – applicant, executive director at Bendigo Kangan Institute (BKI), alleged bullying by senior executives – applicant argued BKI made allegations of misconduct against her only after she made a complaint and subsequent investigation constituted bullying – applicant sought interim order under s.589(2) FW Act – order prevented BKI from continuing with investigation and from taking disciplinary action pending determination of anti-bullying application – applicant unable to work until 23 April 2017 due to being medically unfit – she claimed that without interim orders BKI might dismiss her, thereby denying Commission jurisdiction in respect of her anti-bullying application – respondent submitted the investigation and proposed disciplinary action represented reasonable management actions – respondent argued Commission being asked to prospectively injunct BKI from dismissing applicant – Commission adopted approach taken in Wedderburn i.e. whether applicant had established a prima facie case and the balance of convenience – Commission satisfied anti-bullying application had prima facie merit and sufficient likelihood of success to justify preserving status quo pending further consideration and determination of substantive matter – considered in the absence of interim orders, dismissal a very real prospect – dismissal would significantly compromise, and deny, applicant’s capacity to have anti-bullying application heard and determined – Commission considered potential prejudice caused by interim order for BKI – Commission satisfied balance of convenience in favour of interim order being made – interim order made prevented BKI and other respondents from taking any further steps to finalise investigation of applicant; impose any disciplinary sanctions; and/or terminate her employment – capacity to review or rescind order granted. Ms Bayly
April 20, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by Police Federation of Australia (Victoria Police Branch) (PFAV) to deal with dispute in accordance with dispute settlement procedure in Victoria Police Force Enterprise Agreement 2011 (2011 Agreement) – dispute related to terms and conditions and special arrangements applicable to employees of Victoria Police Force deployed to work at the G20 Leaders Summit held in Brisbane in 2014 – prior to G20, PFAV reached agreement with Victoria Police that, on day employees were to return to Victoria after G20, they would be paid in accordance with 2011 Agreement for time spent travelling as if on duty – this included payment from time of leaving hotel and boarding transport to travel to Brisbane airport, until ceasing duty in Melbourne with minimum payment of eight hours – where travel was not until late in the day, efforts were made with hotels to arrange late checkout for employees – this application related to employees staying in accommodation where late checkout was not available and where they were not required to be ready for transport to the airport until 4.00pm – PFAV submitted that these employees were at work from the time they were required to checkout of their accommodation at 10.00am, even though they were not collected for transport to the airport until 4.00pm, and hence should be paid from this time – if they were entitled to be paid from 10.00am then some of the time spent travelling would be in excess of eight hours and therefore attracted appropriate overtime rates – Victoria Police submitted that employees were not at work from the time they checked out of accommodation and were not entitled to any payment from 10.00am – treatment of six hour period between 10.00am and 4.00pm in contention – PFAV submitted that time spent ‘in transit’ to and from G20 or ‘waiting’ to commence travel should be recognised as time worked – transit time commenced at checkout time of 10.00am – Victoria Police determined that working hours on departure day from G20 deployment would commence from time employees required to board bus for transport to airport – submitted that ‘work’ did not include time where no specific work was performed – further, ‘work’ included travelling where employee was deployed to special event interstate, but at the time in question, employees were only waiting to commence travelling – Golden Cockerel considered by Commission – Clause 37.4 of 2011 Agreement defined ‘work’ and if accepted, Commission not convinced that activity being undertaken by employees between 10.00am and 4.00pm fit said definition – ‘work’ did not include ‘part of any period spent away from employee’s station during which no specific work is performed’ – between 10.00am and 4.00pm employees concerned were not performing any specific work and were not directed to work, nor were they required to hold themselves in any particular state of readiness to return to work at short notice – Commission therefore satisfied employees were not at work – held that whilst travel was considered to be ‘work’, Ponczek did not stand for proposition that all time spent waiting to commence travel was time spent travelling – not satisfied that employees were engaged in travel during period in question – Commission held employees did not have entitlement to remuneration for period between 10.00am and 4.00pm – application by PFAV dismissed. The Police Federation of Australia (Victoria Police Branch) v Victoria Police/Chief Commissioner of Police
