TERMINATION OF EMPLOYMENT – misconduct – s. 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a security guard – applicant dismissed due to generators, convertor and oil going missing from a site on 3 October 2016 during period where he was responsible for security – respondent failed to attend hearing – Commission decided it was reasonable to proceed in the absence of respondent as they were aware of hearing and had adequate notice – respondent submitted applicant had withdrawn claim because he entered into a separation agreement and signed a notice of discontinuance – applicant submitted he was led to believe that respondent’s representative had been acting on his behalf as well as on behalf of the respondent – applicant is not fluent in English, was not represented and did not have an interpreter when signing the documents – Commission not satisfied the terms of settlement and notice of discontinuance can be relied upon – respondent submitted applicant was a casual employee who was not employed on a regular and systematic basis – respondent did not provide pay slips or rosters – applicant gave uncontested evidence that he was paid $17 per hour and never received any pay slips – applicant submitted he worked a total of 160-170 hours during the six month period of his employment – Commission satisfied the period of applicant’s employment as a casual employee was on a regular and systematic basis – applicant submitted there was no valid reason for his termination and that respondent wrongly reached the conclusion that generators and compressors went missing from the site when he was responsible for security – applicant submitted he was directly watching the containers and the items did not disappear on his shift – applicant submitted he spoke to the manager who said the items disappeared between 1 and 3 October 2016 – applicant submitted a number of other guards worked between this period – Commission not satisfied there is valid reason for applicant’s dismissal related to his capacity or conduct – Commission accepted applicant’s evidence that he was not negligent in his duties – Commission satisfied lack of a valid reason and lack of procedural fairness mean that the dismissal was harsh, unjust and unreasonable – order for compensation made. Jan v NRS Engineering Solutions P/L
March 27, 2017
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a warehouse forklift driver by respondent – applicant’s dismissal arose from three alleged procedural breaches of safety including two incidents of failing to obtain keys from truck driver and provide driver with ‘hit not’ device prior to loading; and one incident of using mobile phone whilst driving – applicant made aware of alleged breaches one month after the event and provided with 24 hours to respond – applicant was denied access to CCTV footage and witness statement – applicant submitted that dismissal was harsh, unjust and unreasonable – submitted that he was not afforded procedural fairness and disputed the three incidents that led to dismissal – applicant believed that he acted in accordance with loading procedures and that he used a UHF radio microphone, which was permitted, and not a mobile phone as claimed – respondent submitted that the allegations against applicant were substantiated and termination was not unreasonable – respondent claimed CCTV footage confirms at least two of the incidents and that witness evidence corroborates the other incident – Selvachandran requires reason for termination to be ‘sound, defensible or well-founded’ – Commission found that evidence presented did not establish that applicant had breached procedures – found witness evidence was not credible and CCTV footage did not corroborate alleged breaches – Commission found that respondent did not have valid reason to dismiss applicant – respondent’s failure to show applicant with CCTV footage impeded his capacity to respond – Commission satisfied that dismissal was harsh, unjust and unreasonable – reinstatement not sought – ordered compensation of $29,164.57 in lieu of 23.25 weeks applicant would have worked if not dismissed, taxed accordingly. Cornish v ISS Integrated Services
March 27, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Operations Manager since January 2012 – employment terminated 7 September 2016 with immediate effect – applicant’s son employed as apprentice electrician with respondent – applicant approached HR Manager about why he had not been involved in discussion on 20 July 2016 about son’s apprenticeship progress – respondent submitted applicant’s employment terminated due to misconduct in meeting with HR Manager and refusal to participate in meeting to discuss written complaints – alleged applicant had behaved in an intimidating manner – applicant submitted termination was harsh, unjust and unreasonable – Commission found decision to terminate applicant’s employment based on behaviour during discussion on 20 July 2016 despite termination letter citing a number of reasons – in many cases the concepts of harsh, unjust or unreasonable termination will overlap Byrne & Frew – employer must have a valid reason that is sound, defensible and justified on objective analysis Rode – Commission found while applicant’s behaviour unacceptable, not satisfied the Rode test had been established – no valid reason – satisfied dismissal was harsh and unreasonable – remedy – reinstatement not appropriate – compensation – Sprigg applied – Commission satisfied applicant’s employment would have continued for at least a further 26 weeks – 10% deduction for contingencies – 20% deduction for applicant’s misconduct – $27,787.65 compensation (less tax) ordered. Hanson v Precept Services P/L
March 27, 2017
TERMINATION OF EMPLOYMENT – misconduct – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent raised jurisdictional objection claiming dismissal was consistent with Small Business Fair Dismissal Code (the Code) – applicant and respondent worked together as senior hair stylists in same salon – respondent purchased hairdressing business and continued to employ applicant – applicant informed respondent of ongoing Workcover claim – respondent was not aware of claim as it had been made with previous owners of business – warned applicant to stop providing senior discounts beyond those authorised – regular verbal arguments in salon between parties – applicant required surgery for wrist, unfit for work for 4-6 weeks – respondent claimed to have discovered a piece of paper containing details of salon clients – contended client information was never written down as information was contained on client cards – applicant claimed to have requested another colleague to compile client contact details so as to reschedule their appointments – respondent arranged to meet with applicant 45 minutes after incident – applicant dismissed without notice – as a casual employee was not entitled to any payment of notice – respondent characterised reason for dismissal as serious misconduct and alleged applicant intended to ‘defraud’ the business through the theft of its client list for a future financial gain – Commission not satisfied dismissal effected in accordance with the Code – jurisdictional objection dismissed – Commission satisfied dismissal fell into consideration under ‘summary dismissal’ – satisfied respondent held a genuine belief applicant had engaged in conduct sufficient to justify summary dismissal, however not satisfied the belief was based upon reasonable grounds as dismissal effected within 45 minutes of incident – evidence indicated colleague took it upon herself to compile the list of client details to assist applicant in contacting clients – respondent did not undertake satisfactory investigation into matter – not satisfied applicant was dismissed in accordance with the Code – no evidence to support the allegation of theft by applicant – Commission satisfied on balance applicant was not guilty of alleged misconduct – no valid reason for dismissal – applicant not given a proper opportunity to respond to allegations – dismissal harsh, unjust and unreasonable – remedy – reinstatement inappropriate – compensation – Sprigg applied – 25% deduction for effect on viability of respondent – deduction of one week remuneration and a further $100 for earnings since dismissal – respondent to pay applicant $2,331.21 with 9.5% superannuation – payment to be made in six weekly instalments. Walker v CM Iandolo P/L t/a Ballistik Hair and Beauty Studio
March 27, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by Coates Hire under dispute resolution procedure in accordance with terms of Coates Hire Operations P/L National Agreement 2012 (Agreement) – on 20 April 2016, applicant wrote to 10 affected employees and proposed to stagger their commencement times between 7:00am to 9:00am – all affected employees’ ordinary hours were 6:54am to 3:00pm, not including overtime – proposed change would not affect total number of ordinary hours rostered but would create two shifts: 7:00am to 3:00pm and 8:54am to 5:00pm – proposed change would only change the start and finishing times of some of the affected employees – affected employees and respondent maintained applicant could not change commencement time unless it was by majority agreement – Agreement incorporated the Manufacturing and Associated Industries and Occupations Award 2010 (Award) – applicant submitted Agreement was silent on manner in which it could direct employee’s hours of work, however, because Agreement incorporated Award, it was necessary to review relevant provisions of Award – asserted Clause 36.2 of Award contained explicit right for it to exercise discretion as to when hours were worked – contended it had consulted with employees and their representatives in compliance with Clause 9.2 of Award – respondent submitted Clause 36.2 simply granted employer discretion to fix daily quantum of hours, not starting and finishing times – contended Clause 36.5 of Award provided mechanism for arranging ordinary hours of work – interpretation of Award and Agreement – Golden Cockerel applied – Commission found words used clearly stated intention to exclude facilitative provision and flexibility term of Award from Agreement – agreed with applicant that Clause 36.5(a) of Award was facilitative provision and therefore not incorporated into Agreement – held applicant could exercise unilateral right to direct affected employees to work ordinary hours at different times to their current ordinary hours – agreement with majority of affected employees not required – satisfied applicant had undertaken relevant consultation with affected employees and representatives – Commission recommended changes to affected employees not occur until Tuesday, 17 April 2017 to enable arrangements to be made for school pick-up obligations for employees with school-age children – dispute determined. Coates Hire Operations P/L t/a Coates Hire v ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU)
March 24, 2017
Twenty five applications for relief from unfair dismissal or employment contract adjustments will be heard by the Fair Work Commission today. The full list is: Murrumbidgee Turf Club (MTC) (Neander), Australian Federal Police (Hackett), Negus Newsagencies Pty Ltd (Martino), Pharmacy Nutrition Warehouse (Kumar), TressCox Lawyers (Grieve), Delron Cleaning Pty Ltd (Digby), Baker Hughes Australia Pty Limited (Manescu), Imaging Central Management Pty Ltd (Heron), Summit Rural (WA) Pty Ltd (Johnson), Crowe Horwath (Aust) Pty Ltd (Millwood, Carins), Sunraysia Murray Group Training (Ryan-Dengate), McArthur River Mining Pty Ltd (Hill), Celebrate Cleaning (Kaur), Eureka Operation Pty Ltd (Garg), Toll Group (Singh), Palm Beach Soccer Club Ltd (Bundalo), C & J Smith Pty Ltd (Smith), Lawson Worldwide Forwarding Pty Ltd (Ilves), The Community of Cypriots of The Northern Suburbs of Melbourne Inc (Tsakiridou), National Australia Bank Limited (Selvanayagam), Kajiks Showers & Robes Pty Ltd (Lewis), DuluxGroup (Australia) Pty Ltd (Fitz-Walter), Ernest Henry Mining Pty Ltd (Gray), The Trustee for the Malouf Pharm No1 Trust (Hamilton).
March 23, 2017
Over 50 applications for relief from unfair dismissal and alleged contract breach will be heard today in the Fair Work Commission. The full list is: Australian Federal Police (Hackett), Republic of Everyone Pty Ltd (Buffee), City of Stirling (Sayers), Trans Australia Glass Pty Ltd (Van Dyk), Odeum Farms/Freshcorp Farms (Wienand), Ashlane Pty Ltd (Rappold), Toll Energy & Marine Logistics (Sekulovski), RAC Distribution Pty Ltd (Hetherington), The Junction Works Limited (Dolan), 3D Scaffolding (Trialonas), Farstad Shipping (Indian Pacific) Pty Ltd (Rust), Australian College of Sports Therapy Pty Ltd (Enbom), Grain Corp Limited (Van Meel), Sensis Pty Ltd (Babington, Jovcevska, Rachman, Sharma), Farris-White (Aspect), Hay Point Services Pty Ltd (Hayes, Miller), Easitag Pty Ltd (Vassallo), Ham (Dr Allan Clarke), Suez Recycling and Recovery Pty Ltd (Biagini), Tasmanian Ports Corporation Pty Ltd (Gee), Street Fleet Pty Ltd (Reece), Smartstream Technology Pty Ltd (Keswell), Beaumaris Sports Association Incorporated (Doran), Sodexo Remote Sites Pty Ltd (Toulmin), Fairfax Media Ltd (Lewis), Asciano Services Pty Ltd (Forster), Air Liquide Australia Limited (Moffat), Crookston Heavy Haulage Pty Ltd & Trucks Admin Services Pty Ltd (Greenrod), BSA Limited (Islam), TAFE NSW (Cram), Virgin Australia Airlines Pty Ltd (Loiseau), Mindaribba Local Aboriginal Land Council (Heard), Fork2u (Unregistered) (Burtonclay), Australian Federation Of Islamic Councils Inc (Garan), Rural Workforce Agency Victoria (RWAV) (Foster), Richard Spanicek (Javed), Camp Australia (McFadyen), Sunraysia Murray Group Training (Ryan-Dengate), Marillac Ltd (Kiragu), Suez Recycling and Recovery Pty Ltd (Biagini), Jobco Employment Services Inc. (Spilling), The Nuance Group, Dufry Company (Wong), Kindest Care Pty Ltd (Stedman), Bicycle South Australia Inc (Bridge), Street Fleet Pty Ltd (Reece).
March 23, 2017
An application for approval of the Scope Safety Systems (Victoria) Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (s.185 – Application for approval of a single-enterprise agreement) is with Commissioner Gregory in his Melbourne chambers at 11.45am today.
