CASE PROCEDURES – representation – ss.394, 596 Fair Work Act 2009 – application by respondent to be represented by a lawyer in hearing of two applications for unfair dismissal remedy – Commission not satisfied that the matter involved complexity beyond that which would ordinarily be found in two, interrelated, unfair dismissal matters – given the size of the respondent’s operation, which included HR specialists and legal staff, Commission not convinced that the employer could not effectively represent itself without external legal representation – issue of fairness between the parties a matter of significance – respondent submitted that it would be grossly unfair if they were unable to be represented as they submitted that there were no suitable HSBC employees who could familiarise themselves with the circumstances of the matters – applicants submitted that, as they were unrepresented, there would an imbalance if the employer was permitted legal representation – Commission influenced by factors regarding fairness between the parties and the requirement for informality [Warrell] – Commission found that unnecessary formality would be created as well as an imbalance between the parties if the respondent was granted permission to be represented – Commission not satisfied respondent unable to effectively represent itself – permission refused. Ahmed and Anor v HSBC Bank Australia Limited
February 1, 2017
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for an order to stop etc. industrial action – failure to be able to get sufficient employees to work overtime – AGL had been unable to return Unit 1 to service – level of unionisation amongst the station operators high – Commission needed to be satisfied that industrial action was occurring – specifically that there was a ban on the performance of overtime contrary to clauses 15 and 73 of the Loy Yang Power Enterprise Agreement 2012 or contrary to custom and practice regarding the performance of overtime – inadequate evidence to establish that any employee had unreasonably refused to work overtime – good reason to be suspicious that the difficulties AGL had in being able to get sufficient workers to work overtime was a response to the decision to terminate the Agreement – satisfied that station operations employees are effectively able to refuse overtime – in the absence of evidence about how directions were given and the reasons given for refusal and that the number of requests and refusals was out of the normal, Commission not able to be satisfied that actions of employees had been contrary to custom and practice regarding the performance of overtime – not satisfied that industrial action was in fact happening or was threatened, impending or probable or was being organised – could not make the order sought – decision in this matter had been a fine balance – should the problem continue or should further evidence emerge the decision might be quite different. AGL Loy Yang P/L t/a AGL Loy Yang v Construction, Forestry, Mining and Energy Union and Anor
February 1, 2017
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for an order to stop etc. industrial action – in a decision of 16 January 2017 the Commission refused to grant an order under s.418 of FW Act [[2017] FWC 306] – further application was made by AGL on 17 January 2017 – AGL sought to rely upon the material in the earlier proceeding – considered appropriate given the allegations and orders sought were similar – AGL provided detailed evidence of the approaches made to individual employees – for nine of the last 11 shifts AGL have been unable to achieve the minimum staffing levels specified in the Loy Yang Power Enterprise Agreement 2012 to operate all four units of the power station – Commission satisfied this is unprecedented – satisfied by the new evidence considered in conjunction with the earlier evidence that industrial action was occurring – satisfied, on the balance of probabilities, that the failure of sufficient employees to agree to work overtime and the extraordinary level of sick leave was a result of collective action – satisfied that not only was there industrial action happening but it was also probable that it would continue – whether or not the CFMEU was organising the industrial action – held that Mr Hardy was acting with the authority or apparent authority of the CFMEU – having found that unprotected industrial action was occurring and was also probable, and having found that it was being organised by Mr Hardy and the CFMEU, the Commission must issue an order that it stop – considered that one month was an appropriate time period for the Order. AGL Loy Yang P/L t/a AGL Loy Yang v Construction, Forestry, Mining and Energy Union and Anor
February 1, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal remedy – applicant performed various tasks for the respondent, including fitting sounds systems and other equipment into motor vehicles – applicant was summarily dismissed by the respondent on grounds of serious misconduct after a series of incidents over a three day period – applicant performed a burnout in the driveway of the respondent’s business; had not installed equipment to an appropriate standard on a customer’s vehicle and subsequently treated the customer in an aggressive and contemptuous manner when they returned the following day to rectify the fitting; and made rude and aggressive gestures to a security camera in the workshop – respondent asked applicant to attend a meeting on 16 August 2016 to ‘Show Cause’ – applicant did not attend the meeting – applicant dismissed on 16 August 2016 on grounds of serious misconduct – the applicant acknowledged each incident but suggested they occurred largely as a result of his frustration with working conditions of the business – submitted that dismissal was a disproportionate response – respondent submitted that each incident, when viewed individually or in combination, demonstrated that the applicant did not intend to have an ongoing role in the business – Commission satisfied that each incident was significant and accentuated by the fact they occurred over three consecutive days – satisfied these incidents provided the basis for summary dismissal on grounds of serious misconduct – dismissal not harsh, unjust or reasonable – application dismissed. Spurr v Valley Retreat Investments P/L t/a Autobarn Melton
February 1, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.385, 386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was working as a marketing specialist – applicant tendered a letter of resignation – subsequently claimed she was forced to resign – respondent contended the applicant had resigned of her own volition – whether or not applicant was ‘dismissed’ within the meaning of the FW Act – applicant had an unhappy and difficult time at work – respondent submitted there were a number of performance issues – applicant wrote resignation letter as she was worried about the possibility of being terminated and having this on employment record – Commission found applicant was not dismissed and had resigned – application dismissed. Iacono v Police Financial Services Limited t/a BankVic
February 1, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute pursuant to the Victoria Police (Police Officers (Excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 – dispute relating to the rostering arrangements for police officers employed within the Water Police Squad (WPS) – whether the provisions of the agreement that would enable Victoria Police to change a ‘variable roster’ arrangement have been enlivened – Victoria Police wanted to terminate the variable roster because service delivery requirements were not being met, and to implement a new roster so that WPS can greatly improve its ability to meet base service delivery requirements – standard roster arrangement presently operating is eight shifts per fortnight of 10 hours duration – dispute between the parties concerns whether the current roster arrangements can be changed to a standardised arrangement of 10 shifts per fortnight of eight hours duration – clause 34.8 (c) of agreement says ‘A variable roster may be terminated … [when] … service delivery requirements are not being met as a result of the variable shift roster’ – Golden Cockerel considered – Commission held that the provisions of the agreement that would enable Victoria Police to change a ‘variable roster’ arrangement have been enlivened. The Police Federation of Australia (Victoria Police Branch) v Victoria Police/Chief Commissioner of Police
February 1, 2017
Vince Scagliotta has had his unfair dismissal claim against Floorpag Pty Limited T/A Harvey Norman Carpet Warehouse Silverwater refused. Scagliotta was dismissed on 22 September 2016 and lodged his application on 25 October 2016. Scagliotta’s application explained the failure to lodge within 21 days from the dismissal as follows: “my father died a couple of weeks before, so I was still grieving, 2 weeks after my dismissal I emailed and then rang Allan Dingwall no response And then 1 week after that I emailed and rang again and still no response And I was not aware of a 21 day rule [sic]”.
February 1, 2017
A s.395 (Application for unfair dismissal remedy) by Glenn Rogers against Allianz Australia Services Pty Ltd has been tossed out by Commissioner Roe in Melbourne.
