TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant took personal trailer to work site and asked two direct report employees to undertake welding and wiring work on trailer – respondent became aware of applicant’s actions and undertook investigation – following investigation and show cause meeting applicant was dismissed – applicant submitted the employees carried out the work of their own free will during their shift breaks and he believed he did not need the respondent’s permission for the work to be done – respondent submitted applicant’s behaviour breached its Code of Business Conduct (Code) which required employees to ‘never use BHP Billiton assets for personal gain’ – claimed misconduct destroyed trust between employer and employee – applicant claimed actions fell within exception of ‘moderate personal use’ provided for in Code – whether dismissal harsh, unjust or unreasonable – Commission found valid reason for dismissal – applicant’s actions breached respondent’s Code and Charter Values – noted approximately 21 years of employment weighed in applicant’s favour but employment record was not unblemished – had been subject to final written warning and verbal counselling regarding behaviour – Commission found no procedural failings – satisfied dismissal not harsh, unjust or unreasonable – application dismissed. Desmond v BHP Billiton Nickel West P/L
April 3, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was employed as Municipal Services Supervisor and was responsible for small fleet of rubbish vehicles – incident occurred in mid-late 2016 which involved damage to rubbish truck which was operated by an unlicensed driver – applicant signed incident report indicating that he himself was the driver – applicant was issued with ‘first and final warning’ letter on 12 September 2016 relating to unsatisfactory performance and lack of care to vehicle cleanliness, paperwork and maintenance – the following day, applicant stated at a meeting that he and a manager of the respondent were aware of unlicensed driving but they did nothing about it – applicant claimed to have felt pressured into signing incident report as if he was the driver – following meeting, respondent held counselling session with applicant to address issues with performance – in the weeks following, respondent undertook investigation of vehicle incident, although applicant was not aware of this and was not given an opportunity to comment on outcome – applicant was subsequently terminated on 11 October 2016 for falsifying critical incident report and breach of code of conduct – Commission satisfied that falsifying the incident report in conjunction with allowing unlicensed drivers to drive vehicles provided valid reason for dismissal – Crozier considered – Commission not satisfied that applicant was advised of reason for dismissal prior to the decision being made to dismiss him – while the ‘first and final warning’ letter mentioned various performance issues, the issue of applicant falsifying report and allowing unlicensed drivers to drive were not put to him – satisfied that applicant was not given opportunity to respond to the reason for his dismissal – in terminating applicant’s employment for misconduct, respondent could not rely on performance issues to justify termination – Commission concluded that although there was a valid reason for dismissal, it was unreasonable in the circumstances – not satisfied reinstatement appropriate – Commission to issue directions for considering compensation as remedy. Lumsden v East Arnhem Regional Council
April 3, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant worked as Office Administrator – respondent submitted termination was genuine redundancy due to significant financial hardship – respondent outsourced applicant’s position along with its entire workforce – respondent engaged third party labour provider to reduce cost and time involved for business – respondent engaged Duzus P/L (Duzus) to provide recruitment and administration services – applicant submitted that she received only two days’ notice of termination and that alternative position offered with Duzus had terms and conditions considerably less favourable to original position with respondent – ‘Ramsay Food Processing’ considered – Commission found arrangement between respondent and Duzus a genuine one – respondent had no discussions with applicant about options, redundancy or redeployment – team meeting was held on behalf of Duzus with potential future employees not between respondent and its current employees and cannot be relied upon by respondent to seek to argue it conducted discussions with its workforce – applicant was not offered redeployment but was being advised of process of applying for position with Duzus – offer from Duzus was not consistent with what applicant had been advised that offers would be ‘no less favourable’ – whilst applicant was offered employment by Duzus, it was not on basis that respondent arranged for redeployment as the applicant was required to apply for role at Duzus – held not case of genuine redundancy – found that dismissal was unfair – ordered compensation of $3,882 gross plus 9.5% superannuation, less tax. Chance v Archer Operations P/L t/a Hervey Bay Nurseries
April 3, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed by respondent to assist in the maintenance of a plant nursery – respondent submitted dismissal was genuine redundancy – respondent is independent Commonwealth statutory authority which relied on grants from other departments – respondent utilised a grant to engage number of casual employees – casual positions were not advertised but rather candidates were identified as suitable by their unemployment status and willingness to undertake short term employment – respondent submitted that applicant fully understood the position was casual and was created by virtue of the grant – applicant’s employment governed by NLC Enterprise Agreement 2011 – in June 2016 the pool of surplus funds used to pay casual employees was exhausted – applicant submits that she was given no forewarning that operation of nursery was to cease, that there was no discussion as to redeployment and she was not afforded an opportunity to participate at Kenbi Ranger meetings – all casual employees in pool were terminated – respondent submitted that that after notifying applicant that her position was being made redundant, she became aggressive and displayed conduct inconsistent with the NLC code of conduct and that her conduct prevented further discussions regarding potential redeployment opportunities – applicant submitted that dismissal was due to her supervisor not liking her – Commission satisfied that respondent’s financial position at time of dismissal, coupled with the impromptu and limited nature of casual employees’ engagements, lent itself to finding that respondent was not in position to continue applicant’s employment – satisfied that respondent no longer required applicant’s job to be done by anyone due to changes in operational requirements – satisfied that respondent was under no obligation to consult about redundancies to the casual staff by reason of specific exclusion of casual employees in enterprise agreement – satisfied respondent complied with obligations under agreement which required respondent to consult with employees over major change – satisfied that redeployment was not reasonably open to respondent – held dismissal was a genuine redundancy – application dismissed. Williams v Northern Land Council
April 3, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant employed as labourer – respondent submitted dismissal was genuine redundancy – operations of respondent altered in October 2016 to prevent double handling of work – work undertaken by applicant was reassigned to apprentices and boilermakers – satisfied of necessary casual connection between the changes in the operational requirements of Gonzalez Steel’s enterprise and the respondent no longer required applicant’s job to be performed by anyone – respondent met with applicant to discuss redundancy and option to undertake training to be redeployed with Algon Steel – Commission satisfied respondent did not comply with consultation obligations under the Manufacturing and Associated Industries and Occupations Award 2010 in relation to introducing changes to the work place in October 2016 – respondent did not provide applicant with written information in relation to changes and did not discuss the effects the changes would likely have on him – applicant not given opportunity to put forward alternative suggestions – Commission satisfied respondent genuinely wanted applicant to be redeployed as they paid for him to undertake training for redeployment however he did not complete course – respondent then terminated applicant’s employment by reason of redundancy – Commission satisfied requirements of s.389(1)(a) and (2) of FW Act were met by respondent however consultation requirements were not met as per the relevant award, therefore dismissal was not a case of genuine redundancy – Commission found that if consultation had occurred in accordance with the award, ‘it would have made no difference to the ultimate outcome’ [Smith v Alice Care Care Centre] – dismissal not unfair – application dismissed. Gay v Gonzalez Steel P/L
March 31, 2017
Fifteen applications involving unfair dismissal/contract disputes will be heard today by the Fair Work Commission. The full list is: CNW Maitland (Roskell), Talking Heads Speech Pathology (Aron), Cosmetic Suppliers Pty Ltd (Sologinkin), Beta Trading Co Pty Ltd (Daines), Southern Metropolitan Cemeteries Trust (Temopoulos), Northern Health (Maharaj), Dorothy Avenue Childcare Centre (Shah), WFI/IAG Group (Taylor), K&S Corporation Limited/K&S Freighters Pty Ltd (Clouvas), Jones Lang LaSalle (Vic) Pty Ltd (Kaufman), Jaycorp Pty Ltd (Kneen-McDaid), Baxter Healthcare Pty Ltd (Portelli), Glass House Holistic Veterinary Services (Hawkins), Ausente Pty Ltd (Reid), Magill Campus and Community Children’s Centre Inc (Edgecomb).
March 30, 2017
A light load faces Fair Work Commissioners today. The list of 17 unfair dismissal and contract dispute claimants is: Sunraysia Murray Group Training (Ryan-Dengate), Tronox Management Pty Ltd (Bajada), Eastern Australia Airlines (Saha), Salvation Army (Nakasone), Qld Prison Health Services & Workpac Healthcare (Pilbrow), Domo Australia Pty Ltd (Malik), Rio Tinto (Ballam), Oscars Restaurant (Duddington), Gladstone Brick Sales and Landscaping Supplies Pty Ltd (Webster), Rio Tinto (Norris), Trintech Technologies Ltd (Eng), Nissan Casting Australia Pty Ltd (Rode), Jaycorp Pty Ltd (Kneen-McDald), Beechworth Montessori Children’s Group (Martin), Bupa Aged Care (Barker), City of Stirling (Oldham).
March 29, 2017
Another twenty-five applications will be heard by Fair Work Commissioner today governing unfair dismissal and labour disputes. The full list is: Startrack Express Pty Ltd (Sims), Crowe Horwath (Aust) Pty Ltd (Carins), Halliburton Australia Pty Ltd (Manjenic), Summit Development Corporation Pty Ltd (Church), Primary Securities Limited (Burke), Fairfax Media Ltd (Lewis), M Webster Holdings Pty Ltd (Gale), Great Southern Electrical (Ballintine), Komatsu Forklift Australia (Finnegan), Toll (Ashdown), St Vincent de Paul Society (Logan), Steve Jarvin Motors Pty Ltd (Al-Khalil), Endeavour Energy (Mcwhirter), Star City Pty Ltd (Zacovich), Goodstart Early Learning Limited (Hughes), Australian Municipal, Administrative, Clerical and Services Union-Queensland Together Branch (Sheppard), The Trustee for SWC Unit Trust (Webb), Spotless Management Services Proprietary Limited (Thompson), The Trustee for Modern Marble Design (Fanani), Northern Health (Maharaj), Subway Restaurant Mount Evelyn (Hale), Foxtel (Angel), The trustee for the Express Parts Trust (Corcoran), National Australia Bank Limited (Selvanayagam).
