TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – employed as contractor from July 2009 to March 2014 – became employee in March 2014 – dismissal effective 20 July 2016 – respondent submitted jurisdictional objections – small business employer and genuine redundancy – applicant and respondent participated in conciliation on 9 September 2016 – settlement reached – Conciliator advised three day cooling off period – neither party withdrew from settlement agreement during cooling off period – applicant advised Conciliator he did not wish to proceed with settlement on 15 September 2016 – matter referred to arbitration – whether existence of binding settlement agreement – McKinnon and Masters considered – Commission found binding agreement existed – appropriate to exercise power to dismiss – application dismissed. Smith v Training Services P/L t/a Line Management Institute of Training
January 17, 2017
TERMINATION OF EMPLOYMENT – misconduct – social media – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as maintenance fitter – dismissed following posts on Facebook – one employee of respondent posted photo of another employee, who had earlier been subject to bullying in respondent workplace, on Facebook – applicant among several employees who commented on photo – applicant had previously received final written warning related to inappropriate conduct – applicant dismissed following investigation into Facebook posts in which respondent determined applicant’s comments intended to belittle the employee, in contravention of its Social Media Policy (SMP) and Code of Conduct (Code) – findings of investigation outlined in summary which also included reference to another alleged issue not raised with applicant prior to dismissal – Commission satisfied of relevant and sufficient connection between out of work conduct and employment relationship [Kedwell] – posts made in context of a photo of employee at workplace and uploaded by another employee – capable of damaging respondent’s interests in community – applicant not trained or briefed in SMP and policy not widely understood in workplace – found applicant did not knowingly breach SMP – Code’s terms and importance of compliance known to applicant but its application to Facebook post outside work context less clear in the absence of understanding of SMP – applicant on notice not to make comments that could distress another employee – not completely open with investigation panel about conduct – Commission found valid reason for dismissal – while applicant notified of principal reasons for dismissal and given opportunity to respond, applicant not notified of other matters that influenced decision maker – in assessing differential treatment Commission must ensure comparing ‘apples with apples’ [Sexton] – significant procedural unfairness in decision making process likely to have impacted fairness of dismissal – found dismissal harsh and unreasonable – dismissal unfair – applicant sought reinstatement – respondent opposed – Commission found maintenance of appropriate discipline at respondent workplace very important – no real appreciation of conduct or contrition – found rational basis for loss of trust and confidence – reinstatement inappropriate – compensation appropriate – 30% deduction for misconduct – $28,471 compensation ordered, pending confirmation of notice payments and earnings. Renmert v Broken Hill Operations P/L t/a Rasp Mine
January 17, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.382, 384, 394 Fair Work Act 2009 – application for relief from unfair dismissal – whether applicant completed minimum employment period of 6 months – applicant’s commencement date in dispute – applicant submitted she was employed from date contract was signed on 14 December 2015, from date she was directed to undertake online ‘on-boarding’ activities prior to specified commencement date between 14 December 2015 and 30 December 2015, or from 30 December 2016 when applicant commenced online training modules – alternatively, applicant submitted that contract was varied by mutual agreement or conduct such that commencement date should be understood to be either 30 December 2015, being date which she began onboarding activities, or from earlier date when she was directed to complete activities – respondent submitted employment commenced on date stated in contract (4 January 2016) and that on-boarding activities did not represent work, service or employment – employment terminated on 30 June 2016 – for applicant to have completed minimum employment period, employment must have commenced on or before 31 December 2015 – Commission considered terms of employment contract and held that performance of on-boarding activities did not lead to earlier commencement of employment as nature of activities were designed as preparation for employee’s first day of work – held that on-boarding activities were more akin to reading through guidebook for new employees than formal training activity – communications from respondent requiring applicant to undertake activities should not be treated as direction to employee with legal consequences but rather be reasonably understood to establish expectation that employee would familiarise themselves in preparation for first day of work – Commission not satisfied employment contract was varied by conduct or that new contract had formed – jurisdictional objection upheld – held minimum employment period not met – application dismissed. Hawkins v ALDI Foods P/L as a General Partner of ALDI Stores (A Limited Partnership)
January 17, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerns casual employee entitlements when performing additional overtime work – parties covered by EnergyAustralia Yallourn Enterprise Agreement 2013 – AMWU submitted 25% casual loading in sub clause 5.3 must first be accounted for to establish employee’s ordinary time rate of pay before double time can be calculated – respondent submitted only obliged to pay casual employee twice the rate of pay applicable for employee’s classification level as set out in Appendix 1 of Agreement – Golden Cockerel considered – Commission not satisfied that sub clause 5.3 intends that casual loading be included in calculation of overtime – specific reference in clause to payment of 25% loading also appears to be confined to ordinary time – application dismissed. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v EnergyAustralia Yallourn P/L
January 17, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.311, 383, 394 Fair Work Act 2009 – application for unfair dismissal remedy – whether applicant met six month minimum employment period – applicant employed with respondent for two months – applicant argued old employer transferred business to respondent and applicant was transferring employee – submitted employment period with old employer should be counted – transfer of business occurs when there is a ‘connection’ between old employer and new employer, evidenced by an ‘arrangement’ between the two to transfer assets – prior to alleged transfer of business, owners of property would not allow respondent to take over old employer’s sub-lease unless property was ‘made good’ by old employer – old employer did not have necessary funds – parties agreed respondent would sell old employer’s stock and use money from sale to make good on property – an arrangement may not be legally enforceable, but it requires communication and an understanding between parties; and some expectation that each party will behave in particular way [Hillie] – Commission concluded arrangement existed between old employer and respondent to use saleable goods in store to make good on property – however Commission not satisfied respondent ever owned or had beneficial use of old employer’s assets – given finding of no transfer of assets, there was no connection between old employer and respondent – no transfer of business – no transfer of employment and applicant’s employment period with old employer did not count towards total employment period – minimum employment period not met – application dismissed. Hawke v Turramurra Supermarkets P/L t/a IGA Telopea
January 17, 2017
TERMINATION OF EMPLOYMENT – misconduct – employer policies – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked as underground truck driver – applicant’s truck made contact with and damaged IT basket made for purposes of carrying large mining tools – dismissed for operating truck in high pedestrian traffic area causing equipment damage, failure to look into cross cut before driving truck inside, failure to preserve scene and failure to notify supervisor immediately – applicant had history of unacceptable performance and safety breaches – received disciplinary action previously – applicant claimed IT basket should have been mounted with flashing lights and reporting incident over radio in crib room sufficient – Commission found applicant had not complied with obligations to preserve scene and make it safe for others after incident – failed to follow policies and procedures – dismissal not harsh, unjust or unreasonable – application dismissed. Harvey v MMG Australia Ltd
January 17, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s. 739 Fair Work Act 2009 – dispute arising under Southern Air (Tas) P/L Enterprise Agreement 2015 (Agreement) – parties in dispute as to whether Agreement provides for employees to accrue credit towards rostered day off (RDO) when on paid leave – Agreement to be read and interpreted in conjunction with modern awards which provide for employees to accrue credit towards RDO when on paid leave – where there was any inconsistency with Agreement and awards, the Agreement was to prevail to extent of inconsistency – Commission adopted principles set out in Golden Cockerel – respondent submitted among other things that employees were not entitled to accrue hours towards RDOs unless they physically worked those hours – applicant claimed as Agreement did not provide guidance regarding calculation of RDO time when on paid leave, the Agreement should be interpreted in conjunction with the modern awards – Commission satisfied during bargaining process, applicant put forward version of Agreement that supported its position, however the Agreement voted upon was Agreement minus the terms applicant sought to insert – Commission satisfied common intention of parties was that employees would not accrue hours towards RDO whilst on paid leave – terms of modern awards inconsistent with terms of Agreement and terms of Agreement prevail – employees not to accrue credit towards RDOs whilst on paid leave. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Southern Air (Tas) P/L
January 17, 2017
The full list of unfair dismissal/labour dispute applicants in the Fair Work Commission today includes: Commonwealth of Australia (Peters), Monash University (Bluzer), Precept Services Pty Ltd (Hanson), Allianz Insurance Australia (Rogers), Transgrid (Adsett), Anglo Coal (Drayton Management) Pty Limited (Medhurst), Territory Glass and Aluminium NT Pty Ltd (Watts), Yirara College of the Finke River Mission Inc (Wapling), Staples Australia Pty Ltd (Rogers, Williams, Wu), Core Integrated Solutions Pty Ltd (Kaye-Smith), A&T Switch Trust (Dulaney), MK Floors ACT Pty Ltd (Soane), Airbus Group Australia Pacific Limited (McLaren), Noosa District Community FM Radio Assn Inc (McRobert), Lifestyle Supports Pty Ltd (Williams), Molly Malones Irish Pub (Crisp), Workforce International Group Pty Limited (Geary), Chevron Glass Pty Ltd (Steer), Street Fleet Pty Ltd (Reece), Genesee & Wyoming Australia Pty Ltd (Harris, Labuschange).
