Today’s full FWC list is: Millon Wines Pty Ltd (Lock), Amtek Corporation Pty Ltd (Young), BHP Coal Pty Ltd (Tomlinson), Bunnings Group Limited (Finucane), Eric Insurance Limited (Sellars), Gladstone Brick Sales and Landscaping Supplies Pty Ltd (Webster), Brisbane Window & Solar Panel Cleaning (Burns), Talking Heads Speech Pathology (Aron), Sodexo Remote Sites Pty Ltd (Toulmin), Subway Restaurant Mount Evelyn (Hale), Pickwick Group of Companies (Acub), RABAR P/L (Slater), Zelena Cafe, Bar and Restaurant (Brewster), Empowered Living Support Services Ltd (Davey), Aurizon (Pearce), HSE Mining Pty Ltd (Christie), V/Line Pty Ltd (Woods).
March 20, 2017
An escalating number of unfair dismissal/employment dispute applicants (36) will be heard by the Fair Work Commission today. The full list is: Wilmar Australia Pty Ltd (Munro), Geoffrey Steward Constructions Pty Ltd (Wilkinson), Artcraft Pty Ltd (Alverson), Oracle Corporation Australia Pty Limited (Lawrence), Westmead Food & Beverage Pty Ltd (Shinebayar), Sing Tao Newspapers Pty Ltd (Au), St Vincent’s Hospital Sydney Ltd (Grygiel), Independence Ulladulla Inc (Pike), Coles Group Supply Chain Pty Ltd (Solitua), Churches of Christ Community Care in NSW (Gordon), The Scots College (Witheridge), Ferngrove Pharmaceuticals Pty Ltd (Ji), RCR Corporate Pty Ltd (Bowness), Aldi Stores – A Limited Partnership (Hayes), L & B Nominees Pty Ltd (Rix), Oasis Patios (Winch), Newmont Mining Services Pty Ltd (Holmes), Australian Glass and Glazing Pty Ltd (Everett), McArthur River Mining Pty Ltd (Hill), Viterra Operations Pty Ltd (Kerley), Galipo Family Trust (Csongrady), The Trustee For Sajasan Trust (Muhlberg), Just Group Ltd (Terry), Interfreight (Bowers), Gaythorne Community Kindergarten and Limited Hours Care Association Inc. (Coade), The Trustee for the Malouf Pharm No1 Trust (Hamilton), Regents on the Lake / Me-n-u Catering (Donovan), BBH Services Pty Ltd (Hipwell), Footscray Family Dental (Pham), Worldwide Hospitality Group Pty Ltd (Newbold), Qantas Airways Limited (Shu), Methven Australia Pty Ltd (Sporton), SJB Drainage and Excavation (Whiley), Steelworks Constructions Pty Ltd (Rafton), Wyllie Tiles Moonah (Dransfield), Rural Workforce Agency Victoria (RWAV).
March 17, 2017
Twenty-eight applications for unfair dismissal/employment dispute resolutions will be heard by the Fair Work Commission today. The full list is: Quad Services Pty Ltd (Cohen), Anglicare NSW South, NSW West & ACT (Herald-Bock), Salvation Army (Nakasone), Australian Retirement Holdings Pty Ltd (Priest), Harbour Roof Tiling Pty Ltd (Raza), Holcim (Australia) Pty Ltd (West), Jim Aitken & Partners No 1 Pty Ltd (Godkin), Granite Transformations Pty Ltd (Johnson), Bill Buckle Autos Pty Ltd (Raymond), Stella Bella Wine Pty Ltd (James-Martin), Halliburton Australia Pty Ltd (Manjenic), Legeneering Australia Pty Ltd (O’Donoghoe), Flinders Island Meat Pty Ltd (Scott), Apple Pty Limited (Black, Cresp, O’Brien, Rich), Freshwater Creek Steiner School and Kindergarten (Kecskemeti), Cosmetic & Microdentistry Centre Pty Ltd (Hooper), 99 Bikes (Edwards), Youth Opportunities (Denti), Lobethal & District Aged Homes Inc (Clarke), New Spot (Holdings) Pty Ltd (Lucia), Drivestar Management Pty Ltd (Ford), JBS Primo Queensland (McCormack), Allity Pty Ltd (Suhr), Inclusive Support Services INC (Sharaga).
March 17, 2017
CASE PROCEDURES – apprehension of bias – ss.577, 578, 789FC Fair Work Act 2009 – application for an order to stop bullying – applicant Chairperson of Executive Board of Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc) – respondent strongly rejected allegations – submitted that applicant not ‘worker’ as defined by FW Act – conduct did not occur in context of applicant being at work – further submitted if allegations may be factually correct, should be regarded as reasonable management action carried out in reasonable manner – submitted application vexatious and abuse of process – Commission conducted two day conciliation conference – agreed by parties that details of discussions at conference would be kept confidential on basis that Commission would subsequently issue summary of any observations and recommendations arising from conference – Commissioner submitted that this was opportunity for parties to raise any concerns about conduct of conference and so Commission would be able to act as conduit for proposals – merit or otherwise of application and responses not discussed and no new proposals, information and concerns advanced by either party – feedback on caucus discussion was summarised by Commission to full conference – Commission subsequently issued comprehensive ‘Statement and Recommendations’ – document made no findings or assessment of merit or otherwise of application or responses – did not canvass jurisdictional objections raised by respondent parties – made recommendations that drew upon apparent implications of APY Act and common objectives revealed by parties during course of conference – submissions sought from parties in relation to various procedural matters – one of those matters was to provide an opportunity for parties to raise concerns about Commission – respondent considered would be more appropriate and fair that another Commissioner hear argument and determined evidence – applicant indicated no reason for Commission not to continue with matter, ‘at very least until the Jurisdiction and the Johnston Withers retainer by APY matters were dealt with…’ – Commission considered whether should recuse from further dealing with application – Metropolitan Fire & Emergency Services Board v United Firefighters’ Union of Australia considered – no principle that Member will always disqualify themselves because of what they may have been said or done at earlier stages of proceedings – likewise no principle that extends to (automatic) disqualification because of what has been said or done in conciliation conferences – Commission found that recommendations dealt with implementation of largely agreed and sound decision-making and governance practices rather than what might be considered to be matters principally directed to the prevention of workplace bullying – Commission found no basis upon which a fair-minded observer might reasonably apprehend that the Commission, as presently constituted, might not bring an impartial mind to the resolution of the questions that the Commission is required to decide – Commission considered not necessary or appropriate to recuse from continuing to deal with application – directions leading to hearing and determination of relevant preliminary jurisdictional objections issued. Yawirki Adamson v King and Ors
March 17, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Business Development and Accounts Manager – dismissed by telephone and dismissal confirmed by letter sent by respondent the same day – applicant not advised of reasons for dismissal in advance of decision being made – no opportunity to respond to reason for dismissal relating to capacity or conduct – no opportunity to have support person – respondent claimed applicant failed to use the business quoting system and consistently underquoted on work – Commission satisfied these issues not raised at performance review and not satisfied to be valid reasons for dismissal – claimed applicant failed to meet contracted sales targets – was warned about poor performance and given an opportunity to improve – Commission satisfied performance failures were a valid reason for dismissal – Commission found dismissal was unfair – was both unjust and unreasonable to dismiss without procedural fairness – reinstatement not sought – applicant unlikely to remain at business due to performance issues – $7,993.44 compensation ordered, taxed according to law. Wigglesworth v Warringah Plastics P/L t/a Warringah Plastics
March 17, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application filed outside of 21 day time limit – Commission examined meaning of exceptional circumstances [Nulty] – Commission found applicant’s diagnosis of a mental illness a relevant factor covering the whole of the period the application was delayed – Commission satisfied of exceptional circumstances in this matter – extension of time granted. Muzinda v Mr and Mrs Jones P/L
March 17, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent raised jurisdictional objection – applicant commenced employment 9 February 2016 – respondent advised applicant by letter of 24 May 2016 of decision to terminate his employment but would not be implemented ‘until a dispute before the Commission concerning the termination has been resolved’ – following determination of dispute, respondent advised applicant by letter of 10 November 2016 of immediate termination of employment – applicant lodged unfair dismissal application 1 December 2016 – respondent submitted 24 May letter was a valid notice of dismissal which satisfied requirement of s.383(a)(i) FW Act – therefore applicant had not met minimum employment period – applicant submitted letter of 24 May 2016 was advice of intention to dismiss and not notice of dismissal because an effective date was not specified – contended notice of dismissal was given on 10 November 2016 – at issue proper meaning and application of s.383(a)(i) – also interaction between ss.117 and 383(a)(i) [Ayub v NSW Trains] and [Fardell v Coates Hire Operations] – Commission found ‘until the dispute between the parties has been resolved’ identified a conditional termination date not expressed with sufficient certainty – effective date dependent upon one or more third parties determining dispute was resolved – date was never capable of being identified by applicant – held letter of 24 May 2016 could not constitute proper notice of termination for purpose of s.383(a)(i) and not proper notice of termination as required by common law – held notice of dismissal given on 10 November 2016 – found applicant had served minimum employment period and is protected from unfair dismissal. Duggan v Metropolitan Fire and Emergency Services Board
March 17, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent business provides day care for dogs and has a large catchment area surrounding Noosa for its customers – applicant was an employee of respondent but also operated ‘Poss’s Pooches’, a dog care provider – applicant accused of conflict of interest due to taking customers from respondent for applicant’s own dog care business – respondent outlined dismissal due to serious misconduct in a letter to applicant on 21 September 2016 – applicant claimed not afforded procedural fairness or adequate opportunity to respond to issues – respondent claimed applicant dismissed for promoting own business to the detriment of the respondent and theft of the respondent’s intellectual property – employees of respondent told only to hand out business cards of overnight dog care providers if approached by clients – respondent alleged applicant handed out cards only of her own business to clients when they had not enquired about dog sitting services – applicant disputed conflict of interest as applicant operated overnight care for animals rather than ‘dog day care’ – Commission found evidence of lack of referrals affecting the respondent’s business goodwill – found no evidence of direct financial loss or theft – respondent alleged applicant downloaded client list – allegation was unsubstantiated – Commission found reason for dismissal valid however dismissal harsh given procedural fairness issues – remedy of compensation appropriate in circumstances – calculation of remedy considered Sprigg – respondent ordered to pay compensation of two weeks wages $1,288.98 – compensation amount discharged notice obligation of respondent. Cameron v Wunderdogs P/L t/a Wunderdogs
