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
March 17, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by AWU under dispute resolution procedure in Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (Agreement) – dispute concerned entitlement to ‘Walk Time’ for Trade Assistants (TAs) – ‘Walk time’ is a reference to the practise of some Agreement covered employees (including the TAs) being allowed by their Group Leaders to leave their work area (usually their crib room, where employees undertake their toolbox meetings) prior to the scheduled end of their shift in order to walk or drive to the various security gates which control entry and egress to Alcoa’s Pinjarra Refinery – AWU maintained TAs should be released 12 minutes prior to end of shift – Alcoa objected – no provision in Agreement that explicitly permits employees to leave work area prior to scheduled finish time – parties agreed prior to commencement of Agreement TAs were permitted to leave work area six minutes prior to rostered finish time – other employees covered by Agreement have Walk Time of 12 minutes – despite this practise Alcoa asserted entitlement to require employees to remain in their designated work area – AWU maintained recent business restructuring processes, including changes to rosters, increased TAs Walk Time from six to 12 minutes – AWU alleged Alcoa unilaterally varied new arrangements without discharging consultation obligations in clause 21 of Agreement – contrary to Agreement TAs were not treated fairly or equitably as compared to other employees – Alcoa assert the claim TAs are entitled to an additional six minutes’ Walk Time is an ‘extra claim’ in breach of clause 25 of Agreement – Commission held in absence of any reference to Walk Time in Agreement and practise of providing no more than six minutes’ Walk Time for the TAs, a claim for an additional six minutes’ Walk Time is properly characterised as an ‘extra claim’ – application dismissed. Australian Workers’ Union v Alcoa World Alumina Australia
March 17, 2017
REGISTERED ORGANISATIONS – registration – s.18(b) Fair Work (Registered Organisations) Act 2009 – s.590 Fair Work Act 2009 – application to register the Korean Workers Union (KWU) as an organisation – number of unions filed objections (Union objectors) – KWU lodged application for leave to alter rules which Union objectors opposed – pressed objections and raised issues about organisations, allegedly linked to KWU, incorporated under NSW legislation (NSW incorporated entities) – draft Notice to Produce (NTP) lodged by Union objectors containing 50 items related to matters including membership of KWU, employment status of KWU office holders and membership and activities of NSW incorporated entities – KWU agreed to provide some items but generally alleged NTP oppressive – objections based on relevancy and confidentiality – parties agreed NTP objections to be dealt with before application for leave to amend – Commission considered approach to NTP taken in number of authorities including Clermont Coal P/L and Australia Nursing Federation – Commission noted that while draft NTP was broad in scope and detailed in information sought, application for registration of organisation was unusual and may be subject of lengthy and contentious proceedings – Commission to be assisted by early provision of relevant information – as Union objectors intended to challenge a range of technical aspects of the matters relating to establishment of KWU, status of its office holders and membership of KWU, Commission took a flexible approach to NTP – Commission deleted some aspects of draft NTP as lacked relevance and infringed upon legitimate privacy aspects – found reasonable for KWU to disclose membership so can demonstrate compliance with RO Act but only for purpose of proceedings – confidentiality order made restricting use of information to this purpose – information related to NSW incorporated entities to be disclosed with redactions – Commission issued amended NTP – KWU to file and serve application to amend proposed rules by 7 April 2017. Korean Workers Union
March 17, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as fuel delivery driver – dismissed on 4 November 2016 for incident that occurred 14 October 2016 – applicant used mobile phone whilst unloading fuel and failed to establish exclusion zone – applicant claims dismissal harsh, unjust and unreasonable – applicant found to have substantially breached respondent policies and procedures thus valid reason for dismissal – Commission found respondent had sound, defensible and well founded reasons for dismissing applicant on the basis of his conduct – held respondent undertook a detailed investigation into applicant’s conduct and gave him every chance to participate in the investigation and respond to the allegations made against him before the final decision was made to terminate his employment – applicant afforded procedural fairness throughout process – Commission satisfied that dismissal was not harsh, unjust or unreasonable – application dismissed. Drysdale v John L Pierce P/L
March 17, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – continuity of employment – ss.383, 384, 394 Fair Work Act 2009 – applicant applied for unfair dismissal remedies – question was whether applicant had satisfied the minimum employment period such that the Commission had jurisdiction to hear unfair dismissal claim – applicant worked for respondent for extended period of time, ceased to work for respondent for less than a month, then recommenced with respondent – applicant could only establish they met the minimum employment period if applicant’s earlier period of employment could be treated with the later period of employment as continuous service under the FW Act – held the earlier period did not count towards applicant’s period of continuous service – applicant did not meet the minimum employment period – application dismissed. Harris v Laing O’Rourke Australia Construction P/L
March 17, 2017
TERMINATION OF EMPLOYMENT – contractor or employee – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection on basis that applicant was not respondent’s employee – Commission considered indicia in Brodribb Sawmilling to determine whether applicant was employee or independent contractor – respondent controlled manner in which work was performed, location and hours – applicant worked solely for respondent and did not have separate workplace – applicant did not advertise and respondent provided tools and equipment – respondent approved who covered a shift and paid them – applicant could not sub-contract work without respondent’s consent – acted as respondent’s representative by wearing respondent’s uniform – paid a salary by respondent – created goodwill and did not spend remuneration on business expenses – Commission concluded applicant’s contract with respondent was not terminated after applicant signed an ’employment application form’ which only seemed to provide payroll data – as a practical matter applicant was not conducting own business – while terms of applicant’s agreement with employer purported to be an independent contractor relationship, parties could not alter true nature of their relationship by putting a different label on it and deeming their relationship to be something it was not – indicia contradicted terms of agreement and showed that in substance there was an employment relationship between applicant and respondent – jurisdictional application dismissed – reasons for termination were mixed – reasonable attempts to discuss roster not a valid reason – sleeping on the job was a valid reason but there were mitigating circumstances – having regard to those circumstances, absence of procedural fairness, and all other matters, Commission found termination was harsh, unjust or unreasonable – parties given opportunity to put submissions regarding compensation – matters then to be determined on the papers unless hearing requested. Saeed v Allied Security
March 17, 2017
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as IT Administrator – position made redundant on 17 October 2016 when respondent’s IT functions were outsourced to a contractor – jurisdictional objection to application – whether applicant’s dismissal a case of genuine redundancy – evidence of respondent’s difficult financial circumstances – general consultation with entire workforce – offer to discuss voluntary redundancy – offer to make cost savings suggestions – Commission found it would not have been reasonable in all the circumstances for the applicant to be redeployed within the respondent’s enterprise or an associated entity of the respondent – Commission considered whether respondent undertook appropriate consultation – QR considered – applicant and other employees not made aware of their names being identified for redundancy and being confirmed as redundant, until the day of the redundancy itself – no direct consultation with affected employees – Commission concluded that the failure of the respondent to consult the applicant prior to 17 October 2016 would not have changed the decision to dismiss him for operational reasons, directly relevant to its financial difficulties and the outsourcing of all the respondent’s IT functions – however, Commission held that respondent should have at least provided the applicant with the opportunity for response once applicant became aware of respondent’s decision to outsource his role – Commission found on a narrow basis that dismissal was not a genuine redundancy – no final view as to whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ – parties given three weeks for discussions – failing any agreed settlement, Commission will then consider what further steps are necessary to finally conclude the matter. Au v Sing Tao Newspapers P/L
March 17, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent alleged applicant had engaged in stealing and defrauding the business – respondent sent applicant letter regarding termination with immediate effect – respondent stated the applicant assisted a former employee of the respondent to invoice himself Sydney tools equipment for $200 which had retail value of $4500 – Commission determined respondent lacked any evidence to support allegations of stealing and fraud made in termination letter – Commission found termination harsh and unjust – ordered compensation of $12,461.58 plus 9.5% superannuation, taxed appropriately. Small v Sydney Tools
