TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – employer a small business – whether Small Business Fair Dismissal Code (Code) complied with – applicant absent from work for 14 months – allegations of bullying – application for anti-bullying orders dismissed [[2016] FWC 3550] – workers’ compensation claims – applicant’s medical condition prevents contact with supervisor – no reasonable adjustments able to be made by small business – applicant unable to indicate being able to return to work on normal duties – unable to fulfil the inherent requirements of the job – warnings and opportunity to respond – dismissal Code compliant – no unfair dismissal – application dismissed. Samuel v Inner South-West Community Development Organisation t/a ISWCDO
February 1, 2017
TERMINATION OF EMPLOYMENT – unlawful termination – extension of time – s.773 Fair Work Act 2009 – application to deal with unlawful termination dispute lodged 904 days outside time – applicant dismissed in November 2013 – made application to Queensland Industrial Relations Commission (QIRC) in November 2013, alleging dismissal unfair as harsh, unjust or unreasonable and for invalid reason due to temporary absence due to illness – QIRC application dismissed and subject to number of unsuccessful appeals by applicant – applicant lodged unlawful termination application in June 2016 alleging termination because of temporary absence from work due to illness – at time of dismissal s.774 of FW Act required application be filed within 60 days – applicant submitted reason for delay was that respondent and legal advisors advised her to make QIRC application and she did not know of option to make unlawful termination application until advised by Fair Work Ombudsman in June 2016 – under s.774, Commission must be satisfied of exceptional circumstances, such that discretion to extend time is triggered – Commission was not satisfied there were exceptional circumstances justifying exercise of discretion to extend time – applicant did not receive misleading or incorrect advice about options to pursue dispute – applicant not accepting outcome in QIRC and seeking to re-run case only apparent reason for application – no reasons for delay that constituted exceptional circumstances – while applicant disputed dismissal, not a factor weighing in favour of exercising discretion – respondent expended considerable time, cost and effort in defending QIRC application in circumstances where the same dispute as applicant sought to advance in Commission was dealt with to finality – witnesses for respondent no longer employed by respondent – period of time elapsed would prejudice respondent beyond usual prejudice – merits at best neutral and did not outweigh other factors – not appropriate to exercise discretion to grant extension of time – application dismissed. Wanninayake v Department of Natural Resources and Mines t/a Department of Natural Resources and Mines (Simtars)
February 1, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute under the NCI Holdings P/L (Northcote) and National Union of Workers Enterprise Agreement 2015 – NCI manufactured packaging materials and operated manufacturing plants at Northcote and Tullamarine – prior to its closure in 2014 NCI operated a manufacturing plant in Bayswater – number of employees previously worked at the Bayswater were transferred to work at the Northcote plant – NCI further announced plans to close Northcote plant and offered employees choice of relocating to Tullamarine plant or having employment terminated on redundancy grounds – clause 21.6 of Agreement entitled ex Bayswater employees ‘three and one half (3.5) weeks per each year of service part thereof…’ – dispute concerned constituent elements of a ‘week’s pay’ for the purposes of determining the dollar value amount of ‘three and one half weeks’ for each year of service or part thereof that is to be paid to an eligible ex Bayswater employee – NUW maintained that an ex Bayswater employee’s redundancy pay included that employee’s applicable shift loading as it sourced the definition of ‘week’s pay’ from clause 20.3 – NCI claimed that an ex Bayswater employee’s redundancy pay entitlement was to be calculated using the applicable base rate of pay and did not operate together with clause 20 – redundancy entitlement arose out of self-selection and in entirely different circumstances to the entitlement severance payment under clause 20.3 – clause 20.3 arose by reason of an act of NCI, not an election by an employee – Commission found that ‘applicable shift loading’ did not form part of the 3.5 weeks per year of service or part thereof, or the additional one week’s pay for each year of service or part thereof in respect of employee over the age of 45 years redundancy pay entitlements. National Union of Workers v NCI Holdings P/L t/a NCI Packaging
February 1, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application by Victorian Branch of the AMWU for a right of entry permit for official, Mr John Webb – Australian Building and Construction Commissioner filed and served written submission addressing permit qualification matters but not whether an entry permit should be issued – content for application to be determined without hearing – Commission noted relevant statutory provisions and application – considered MUA decision of Full Court of Federal Court of Australia re ‘fit and proper person’ – also CEPU decision of Hatcher VP – statutory declaration filed by AMWU – Commission accepted disclosed information as accurate and correct – declarations disclosed that Mr Webb had previously engaged unprotected industrial action and a proceeding in Federal Court of Australia in relation to that conduct was pending – disclosed that Mr Webb had cooperated and made an admission in respect of conduct in contravention of s.417(1)(a) of FW Act – Tracey J ordered Mr Webb to pay a pecuniary penalty in respect of contravention – Mr Webb filed further statement and provided some context for previous conduct – acknowledged his obligation to comply with the law and gave assurances regarding future conduct – Commission noted assessment of application is not punitive aimed at continuing punishment for past wrongdoings – assessment is whether Mr Webb was fit and proper person to hold entry permit having regard to permit qualification matters – Commission considered Mr Webb to be a fit and proper person to hold permit – unnecessary to consider imposing conditions – application granted. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch
February 1, 2017
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged 11 days out of time – respondent originally objected to the application on the grounds that the application was out of time however this was withdrawn following receipt of report from the Commission’s IT Department – report provided list of email addresses that sent correspondence to Commission email account between 5pm to 7pm on 6 October 2016 – notwithstanding withdrawal of jurisdictional objection Commission to make a determination itself in relation to the extension of time application – applicant submitted delay due to lack of technology – applicant filled out application by hand went to the Port Melbourne Library to lodge application electronically however lodgment failed – applicant filed again in person 11 days later at the Commission whilst noting the previous lodgment – report from the Commission’s IT Department showed email was sent from applicant’s email account – Nulty adopted – Commission found reasons for delay acceptable as applicant made genuine attempt to lodge her application within time when taken together with exceptional circumstances justify granting extension of time – application for extension of time granted – application referred to conciliation. Price v Coles Supermarkets t/a Coles
February 1, 2017
TERMINATION OF EMPLOYMENT – extension of time – date dismissal took effect – s.394 Fair Work Act 2009 – application for relief from unfair dismissal filed 3 August 2016 – respondent raised jurisdictional objection – submitted applicant resigned on 9 June 2016 and termination took effect on this day – submitted application therefore outside of 21-day time limit – applicant submitted resignation took effect on 13 July 2016 when she received her final pay – was confused as to whether she was still employed with respondent and thought she had been on sick leave – submitted she was unable to file application within the 21- day time limit because she was the primary carer for her seriously ill mother and was herself medically incapable – further submitted she had been constructively dismissed by respondent – Commission must be satisfied there are ‘exceptional circumstances’ warranting the extension of time – found the applicant resigned on 9 June 2016 and resignation was effective on that date – held the reasons for delay did not meet the ‘exceptional circumstances’ test in s.394(3) of FW Act – held applicant was not comprehensively prevented by her circumstances from making application – held applicant voluntarily resigned and therefore no termination at initiative of respondent – application dismissed. Hardwick v National Australia Bank t/a National Australia Bank
February 1, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under the TNTTWU Fair Work Agreement 2014-2017 concerning applicant’s ability to perform the inherent requirements of role as a Bulk Freight Delivery Driver – applicant was stood down without pay in 2014 as a result of an injury to right knee – workers’ compensation application was not successful – applicant advised would not be able to continue to perform any duties until fit to fulfil the complete duties of role, and was able to provide a medical clearance that would enable such – applicant underwent a total right knee replacement and on 24 September 2015, obtained a medical clearance from General Practitioner to return to work – respondent advised applicant of request to have a further assessment to ensure fitness was adequate to return to normal role – applicant ‘required’ to attend two medical appointments; a functional assessment with an Exercise Physiologist, and a fitness for duties assessment with an Occupational Physician – on 14 January 2016, the applicant attended a meeting with the respondent and was handed a ‘show cause’ letter – the TWU, on behalf of the applicant, disputed the show cause letter, which was ultimately withdrawn – on 4 March 2016, the applicant attended a further meeting at and provided with a further show cause letter with the subject ‘Outcomes of Fitness for Duties Assessment’ – as a result of report from the Occupational Physician respondent advised the applicant that ‘The results of the assessment indicate that you are unable to safely perform the inherent physical requirements of your current role and impose significant restrictions on the kind of work that you can safely perform at TNT’ – show cause letter indicated the respondent sought to consult with the applicant regarding the assessments and their impact on suitability for continued employment in current position, and any alternative positions the applicant might otherwise be qualified to safely perform – letter advised that should suitable alternative roles not be identified, the applicant’s employment would be terminated as a result of incapacity to safely perform the inherent requirements of the position – Boag considered – inherent requirements for a bulk driver must be considered in combination with the surrounding context of the applicant’s workplace and duties [X v The Commonwealth] – onus is on the employer to demonstrate that the employee cannot meet the inherent requirements of the position – couldn’t be concluded that TNT had established that the ability to lift weights of over 40kg, unaided, was an essential requirement of the position of Bulk Driver – Commission found the evidence did not represent that what was asserted as the inherent requirements of the role of Bulk Delivery Driver were the inherent requirements in practice – satisfied applicant was fit to perform the inherent requirements of the role and should be returned to role immediately with appropriate ‘work hardening’ as recommended by the Occupational Physician. Martin v TNT Australia P/L t/a TNT
February 1, 2017
CONDITIONS OF EMPLOYMENT – redundancy – s.120 Fair Work Act 2009 – application to reduce redundancy pay from four weeks to two weeks – respondent employed under Dalart P/L t/as Charman Roofing Enterprise Agreement 2015 – agreement states that entitlements to redundancy payments will be provided for in the FW Act – offer of redeployment from position of supervisor on $50.00 per hour to tradesman on $35.00 per hour – decrease in wages by 30% and loss of other benefits such as a company phone and fuel card – respondent did not accept the offer of other employment as he ‘cannot afford to live on those wages’ – Commission found that the offered employment was not ‘other acceptable employment’ – no reduction in redundancy pay – application dismissed. Dalart P/L t/a Charman Roofing
