TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent company owned by father of applicant’s husband – operated by husband’s family – number of issues to be determined by Commission included date of applicant’s commencement of employment, correct classification of applicant’s position, and whether there was termination at initiative of respondent – that respondent was small business employer not disputed – applicant and husband married in April 2005 – initially employed by husband’s father at another Childcare Centre in or around February 2007 – claimed she commenced working with respondent in early 2009 as Director Level 6.4 under Children’s Services Award 2010 (Award) – separated from husband in September 2015 but continued to work with respondent and maintained good relations with husband’s father – reconciled with husband in December 2015 but relationship deteriorated again – husband divorced applicant on 29 July 2016 – applicant claimed respondent dismissed her two days later – version of events included the respondent removing files, changing locks to building and padlocking entry gate with large chain – respondent told applicant not to return to work until marital problems were sorted – later met with husband’s siblings who demanded applicant hand over staff contact details; advise location of staff files, sign in and out sheets and enrolment forms; advise location of staff group certificates and time and wage books; provide details of grant monies; provide login details for security cameras and computer systems; and hand over all keys, reset computer password and delete all personal files – applicant asked for termination letter but this was refused – believed that because respondent did not want her to return to Centre, she was ‘definitely terminated’ – applicant tendered recordings of conversations with various members of the family – since alleged dismissal, applicant submitted she had been under significant financial stress as she is sole carer of five children and was unable to find work after applying for 14 jobs and attending two interviews – moreover, applicant’s husband withdrew $107,000.00 from joint bank account so she was left with monthly mortgage plus interest on the $107,000.00 – also claimed that respondent owed $21,724.48 in unpaid statutory entitlements and underpayments over at least three years due to difference in pay rates between Director Level 6 and Children’s Services Level 4.2 – respondent also failed to pay outstanding entitlements since termination – respondent submitted that because applicant and husband were in ‘heated situation’ it was in best interests for applicant to have a ‘cooling off’ period so that issues could be settled – had not provided applicant a letter of termination as she had not been terminated, and if there was termination of employment, it was brought about entirely by applicant’s own actions and conduct – intended to pay applicant leave pay until things settled down and she could return to work at the Centre – also submitted that applicant had longstanding issues with performance and had received warnings in the past – that she would often start work late and take Fridays off without explanation – claimed applicant was employed as Nominated Supervisor, not as Director, as only the owner was Director – claimed that locks on the Centre’s gate were changed after respondent’s son warned him applicant intended to steal furniture and money as well as hide documents – submitted that applicant convinced staff to leave and parents to take their children out of respondent’s care following alleged termination – Commission profoundly troubled by exchange between applicant and respondent family members on tendered voice recordings in relation to fees paid by parents for children’s childcare at the Centre – exchange appeared to establish existence of a regular practice to create false records of children’s attendances and employment records – incumbent on Commission to refer issue to appropriate Commonwealth/State authorities – in relation to dismissal, Commission observed that exclusive reliance on direct language to dismiss, whether verbal or written, was not decisive as to whether applicant was dismissed – held that words used by respondent in context of the views he held at the time and the actions taken by him and his family evinced clear intention that respondent no longer wished applicant to remain in employment – respondent’s proposed ‘interim’ solution was not a solution as applicant’s employment was ended until marital relationship was ‘fixed’ in circumstances where the marriage was no longer able to be fixed – Commission gave little to no weight to evidence given by witnesses of respondent due to credibility issues – allegation of poor performance relied upon by respondent occurred three years ago, so was too stale to be of any probative value, let alone serve as ground for dismissal – no evidence of performance issues before or after this time – Commission satisfied that actions of respondent had intention of bringing employment to an end or, at very least, had probable result of bringing employment relationship to an end – jurisdictional objection dismissed – parties invited to file further evidence and/or submissions in relation to whether applicant’s dismissal was unfair and what remedy was appropriate. Sirl v HK Group P/L t/a Buzzbee Long Day Care Centre
March 10, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application made by AMU under dispute resolution procedure of BlueScope Steel Port Kembla Steelworks Agreement 2015 (Agreement) – dispute arose from planned closure by BlueScope of the Unanderra Coil Processing Department (UCPD) of Port Kembla Steelworks and the establishment of new coil processing business within the Hot Coil Processing and Despatch Department (HCPD) – on 12 May 2016, AWU wrote to BlueScope contending that the coil processing work being performed by the UCPD employees would continue to be performed in the new business, that the proposed change was a ‘significant change’ as defined in clause 35.2.2 of the Agreement, that employees required for the new business had to be sourced from the UCPD, that UCPD employees did not have to apply for positions in the new business, and that employees transferring to the business were entitled to rate retention under clause 11.1.1 of Agreement – BlueScope replied on 19 May 2016 – its position was that ‘the closure of UCP is the outcome of a significant capital investment and as such was not significant change for the purposes of clause 35.2.3’ – in respect of the retention of rate issue letter indicated that UCPD employees could apply for roles in the new business prior to the closure of UCPD ‘at the new business’s remuneration rate – no retention applies’, but that rate retention would apply to any employee declared surplus who was redeployed to another part of the Steelworks – BlueScope confirmed position in a presentation to employees on same day – presentation also identified the rates of pay which BlueScope proposed to pay to employees in the new business – AWU submitted that to attract the operation of clause 11.1.1 was a causal link between the appointment of an employee to a classification receiving a lower rate of pay and one of three situations identified in the clause, namely rationalisation of the Company’s operations or the introduction of technological change or changes in work practices – submitted that single condition was satisfied, in that the invitation for expressions of interest for positions in new business was consequence of decision to establish new business using new technology and to close UCPD – BlueScope submitted that clause 11.1.1 was only applicable to employees affected by workplace change who had been made surplus in accordance with clause 34.3 and who were subject to the transition process provided for in clause 34.3.5 – Commission considered whether clause 11.1.1 properly interpreted, required a precondition for employee that had been declared surplus and has been subject to a transition period under clause 34.3.5 – Commission also considered whether the causal link required by clause 11.1.1 existed on facts of case (noting that BlueScope did not contend that establishment of the new business and closure of the UCPD would not constitute ‘the rationalisation of Company’s operations, introduction of technological change, or changes in work practices’) – Golden Cockerel applied – Commission found no express requirement in clause 11.1.1, or anywhere else in Agreement, that employee must have been made surplus as a precondition for the operation of the rate retention entitlement – found the only stated precondition is employee must have been ‘appointed’ to a classification with lower total rate of pay ‘due to’ one or more of the three identified situations – found appointments of four employees to the new business caused by BlueScope’s decision to establish the new business and, eventually, to shut down the UCPD – found that decision at least involved a rationalisation of BlueScope’s operations and the introduction of new technology – not necessary to go much further than the 9 May 2016 letter to reach that conclusion – Commission did not accept Blue Scopes submission that because four employees made their applications voluntarily, the chain of causation was broken – found that clause 34.3.5(a) makes clear, participation in transition process is voluntary since the employee may alternatively decide to leave BlueScope’s employment with a retrenchment package – no party contended that employee’s decision to enter into the transition period under clause 34.3.5 broke the chain of causation between the circumstances which caused the employee to be made surplus and any subsequent appointment of the employee to an alternative lower-paid position – BlueScope in its submissions identified some business policy reasons why clause 11.1.1 should not apply to employees who had not been declared surplus and entered into the transition period contemplated by clause 34.3.5 – those submissions not relevant to the task which is to give effect to the Agreement and not to determine what might be considered to be a just and fair outcome – Commission found four employees entitled to retention of rate benefit in Clause 11.1.1 of Agreement. The Australian Workers’ Union v BlueScope Steel (AIS) P/L
March 10, 2017
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – employed as a Boilermaker at the Saraji Coal Mine (the Mine) – employed for period of 27 years – prior to 2012 applicant had never been formally disciplined – heavily involved in disputation with BHP throughout 2014 to 2015 – dispute with supervisor arose as to the performance of applicant’s duties as an employee representative – CFMEU on behalf of applicant commenced claim against respondent alleging adverse action for seeking to exercise a workplace right as an employee representative – respondent notified applicant that the lowest or second lowest rating would be assigned, however before doing so, would discuss it with Superintendent – applicant noted that in accordance with 2012 enterprise agreement, Supervisors were not allowed to discuss what rating should be given to an employee with another person not party to the performance review – applicant put under a Performance Improvement Plan (PIP) and rated the lowest rating for 2013 – respondent outlined concerns that needed to be addressed – under the PIP, applicant was given a minimum period of six months to demonstrate satisfactory standards – if applicant failed to meet the requirements of the PIP he could face disciplinary action including termination – applicant dismissed after respondent found he had failed to meet the standards expected in relation to his performance, including that he had displayed conduct in breach of the BHP Billiton Code of Business Conduct and the Charter Values – Commission found valid reason for dismissal – did not find dismissal was harsh, unjust or unreasonable – instead of confronting the performance issues raised, applicant made only mild and sporadic attempts to improve upon performance and continued to display what could be described as belligerent behaviour during the PIP process – applicant did not perform to the required performance levels throughout most of the six month period – at the most important time of career with BHP, failed to demonstrate excellent work, relationships and initiative – Commission gave weight to applicant’s lengthy service and the detrimental effect this dismissal had and decided that this consideration was outweighed by applicant’s sustained and systematic failure to perform and improve upon performance in circumstances where offered a robust opportunity to do so by the respondent – application dismissed. Ingrey v BHP Coal P/L t/a BHP Billiton Mitsubishi Alliance
March 10, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – parties covered by the UNSW Australia (Academic Staff) Enterprise Agreement 2015 (Agreement) – issue of whether Agreement permits applicant to advertise roles for ‘teaching focussed academics’, engage such staff for a defined period, or allocate teaching focused duties to academic staff (with agreement) – applicant submitted nothing in Agreement expressly prohibits engagement of academic staff in teaching focussed roles – respondent submitted a teaching focussed position is not a type of appointment stipulated in the Agreement and is inconsistent with the terms of the Agreement – submitted the Agreement requires applicant to employ staff on terms that correspond to the types of appointment – construction of Agreement – Golden Cockerel applied – Commission concluded Agreement and clauses relevant to dispute had plain meaning and were not ambiguous – satisfied objective intention of parties to Agreement was for it to operate as a code, providing predictability and certainty about types of employment – rejected applicant’s submission that because the Agreement does not say it cannot engage teaching focused academics as a condition of appointment, it is able to do so – found the only basis upon which applicant can engage teaching focussed academics is where an employee has already been employed in a category of employment provided for in the Agreement and then agreed to a teaching focussed position for a defined period – dispute determined. The University of New South Wales t/a UNSW Australia v National Tertiary Education Industry Union
March 10, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under Greater Bendigo City Council Enterprise Agreement 2014 (Agreement) regarding appropriate position description (PD) and classification of a Parks Worker – Commission set out four general principles that should be applied in determining the classification of a position – first, classification of a position must be decided on basis of requirements of position as specified in finalised PD – second, occupant of a position may perform some functions at a higher or lower level and a PD does not need to meet all criteria for classification to fall within Band – third, classification of a position should be based on highest functions of position performed regularly and constitute a reasonable component of position, increase in occupant’s knowledge is best recognised through incremental movements, not reclassification of a position – fourth, assessment must be on overall requirements of position, not lowest level or highest level at which a function is required to be performed – Commission based assessment on PD agreed between parties and position classification definitions in Agreement – classification decision based on requirements of position, not on experience of person occupying position – classification must be based on management’s requirements of position – Commission satisfied that the PD is correctly classified at Band 3. Australian Municipal, Administrative, Clerical and Services Union v City of Greater Bendigo
March 10, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant removed compressor from workplace on instruction from a former manager of AHG Newcastle (AHG) – applicant was summarily dismissed in connection with removal of the compressor without authority from AHG – respondent asked applicant to return compressor – on return compressor was damaged – Commission satisfied applicant did not wilfully damage compressor – satisfied applicant did not remove compressor because he wanted to steal or use for his own benefit – found applicant had been asked by former manager to remove compressor from workplace, however applicant did not have approval from AHG to remove its compressor from the workplace – Commission satisfied of valid reason for applicant’s dismissal – satisfied applicant was notified of reasons for dismissal and given opportunity to respond – applicant afforded procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed. Clutterbuck v AHG Newcastle P/L
March 10, 2017
ENTERPRISE BARGAINING – majority support determination – ss.236, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission granted the AWU’s application for a majority support determination – grounds of appeal addressed the ‘fairly chosen’ and ‘distinctiveness’ issues in ss.237(2) and (3A) of the FW Act – appeal can only be granted if ‘an arguable case of appealable error is demonstrated’ – Full Bench granted permission to appeal on public interest grounds – held appeal raised important questions concerning the application of ss.237(2) and (3A) – by treating performance of different role, skill, task or function as operational distinctiveness Commissioner acted on a wrong principle [House v The King] or alternatively, ‘misdirected himself in law’ [Buck v Bavone] – permission to appeal granted – appeal upheld – Decision and Determination quashed – Full Bench intend to make a further Decision re-determining the application for a majority support determination as provided in s.607(3)(b) if the AWU seeks to pursue the application. Appeal by QGC P/L against decision of Simpson C of 24 October 2016 [[2016] FWC 6671] Re: The Australian Workers’ Union
March 10, 2017
ENTERPRISE AGREEMENTS – termination of agreement – ss.225, 604 Fair Work Act 2009 – appeal – Full Bench – the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an appeal against Decision and Order issued by Commission granting application to terminate the Loy Yang Power Enterprise Agreement 2012 – the CFMEU submitted that permission to appeal should be granted because the Commission failed to correctly apply the jurisdictional prerequisites in s.226 of the FW Act, the Commission denied the CFMEU procedural fairness by taking into account matters that were not in evidence, and the decision diminished the CFMEU and its members’ bargaining power and would cause them loss – Full Bench granted permission to appeal for public interest reasons – Grounds for appeal included that the Decision erred in that it did not conduct the weighing exercise required by s.226(b); erred in not taking into account and weighing all the circumstances relevant to the question of the appropriateness of terminating the Agreement; and erred in its construction of Clause 4 of the Agreement – this was a longrunning dispute at important utility which may have significant detrimental community effects if protected industrial action occurs – Full Bench accepted that Commission erred by not considering clause 4 of Agreement beyond the question of its legal efficacy – upheld appeal to limited extent identified – Full Bench found no error in the Decision at first instance apart from the consideration of the clause 4 issue – not necessary to quash the Decision and Order and re-determine AGL Loy Yang’s termination application – undertaking proffered by AGL Loy Yang in the appeal effectively involves adherence to the clause 4 commitment for three years. Appeal by Construction, Forestry, Mining and Energy Union against decision and order of Clancy DP of 12 January 2017 [[2017] FWCA 226], [PR589311] Re: AGL Loy Yang P/L t/a AGL Loy Yang
