ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute arising under Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (2010 Agreement) according to applicant – dispute concerned whether applicant should have been provided paid Defence Force Leave during a period he was absent from MFB on approved leave as part of his duties as a member of the Australian Defence Force (ADF) – period of absence was between 31 July 2009 and 13 May 2010 – applicant granted a mixture of paid and unpaid leave during the period – applicant contended that during course of active service, he should have been paid as if he was at work during the period and any paid annual leave should be re-credited – argued that dispute arose under the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2005 (2005 Agreement) – applicant contended dispute brought to Commission due to provisions of 2010 Agreement, with the substantive matter to be determined being an entitlement arising under 2005 Agreement – respondent contended Commission had no jurisdiction to determine application under 2010 Agreement, but would consent to Commission providing an interpretation of 2010 Agreement – Commission satisfied there had been no consistent approach taken to the granting of Defence Force Leave by the MFB – further satisfied clause 63.2 of 2010 Agreement, in its plain meaning, indicated that additional time off is to be leave of absence without pay – concluded applicant not entitled to be paid ordinary wages for period between 29 October 2009 and 14 April 2010 where he was granted unpaid Military Service Leave – further held that MFB is not required to re-credit all annual leave taken by applicant between 3 September 2009 and 28 October 2009. Hester v Metropolitan Fire and Emergency Services Board
October 11, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – whether applicant’s dismissal was a genuine redundancy – applicant employed as long-distance truck driver – applicant informed he faced redundancy due to work practice breaches and company restructure – applicant requested chance to improve but was made redundant – Commission considered s.389 of FW Act – found no person was required to perform applicant’s job due to change in operational requirements – satisfied it was not reasonable for the applicant to be redeployed within the respondent’s enterprise – Honeysett considered – Commission found dismissal was genuine redundancy – application dismissed. Smith v Don Watson P/L
October 11, 2016
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application to stop alleged industrial action occurring at bulk petroleum distribution centre in Altona North and disrupting fuel deliveries to retail outlets – heard at short notice late in evening – NUW not in attendance – employer submitted that industrial action related to disciplinary issue – NUW conducted site meeting between shifts – some employees refused to attend next night and day shift – employer attempted to notify NUW and individual employees about application and short notice hearing – employer submitted industrial action happening and not protected – Commission mindful of limited opportunity for relevant NUW officials and individual employees to provide submissions and evidence in response to application – not appropriate to determine application at this time – given potential impact of the alleged action Commission was satisfied it was appropriate for an Interim Order to be issued – matter listed for further hearing. Linfox Australia P/L v National Union of Workers
October 11, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – continuity of employment – ss.383, 394 Fair Work Act 2009 – applicant lodged application for unfair dismissal remedy – respondent raised a jurisdictional objection alleging applicant did not complete the minimum employment period – submitted employment took place in two distinct periods with a cessation in between – also submitted an ‘end of probation’ meeting was held during which the applicant’s employment was terminated and he was placed on a fixed term contract with an employment break of one day – applicant submitted he was not aware he had been terminated and had been continuously paid throughout the 10 months of his employment – Commission satisfied applicant was unaware the respondent was attempting to terminate his employment – whilst there was a change in the contract of employment, there was no cessation of the employment relationship – as such applicant had been employed for more than six months at the time of his dismissal – jurisdictional objection dismissed – matter to be listed for further programming. Pope v Water Dynamics P/L
October 11, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a primary school physical education teacher – dismissed following certain events and allegations of misconduct – one incident involved applicant ‘grabbing back of blazer of student and lifting him to his seat’ where student was involved in wrestle with other student – respondent made several allegations of misconduct – investigation conducted by Worklogic – respondent advised applicant in show cause letter that following investigation there were 13 allegations of misconduct – misconduct included inappropriate physical force, calling students ‘losers’ and placing student outside classroom – applicant submitted that respondent failed to follow its complaints procedure as he had not been notified of allegations – Commission did not consider reasons for dismissal to be ‘capricious, fanciful, spiteful or prejudiced’ – found valid reason – held that applicant exhibited a pattern of behaviour in his conduct in relation to children and the college that was unacceptable – dismissal not harsh, unjust or unreasonable – application dismissed. James v St Thomas Aquinas College Limited t/a Thomas Aquinas College
October 11, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – failure to prosecute application – ss.394, 587 Fair Work Act 2009 – application for relief from unfair dismissal – filed in July 2014 – respondent in liquidation – in-principle settlement – application not formally discontinued – deed not executed – no application to relist or otherwise deal with matter – application made to list application for arbitration 15 months later after approach to statutory fund unsuccessful – application by respondent to dismiss under s.587 – Carter and Chand considered – Commission found failure to prosecute and abuse of process – appropriate and within powers to dismiss application – unfair dismissal application dismissed. Klemm v Penrice Soda Products P/L (In Liquidation)
October 11, 2016
CASE PROCEDURES – apprehension of bias – ss.394, 589 Fair Work Act 2009 – applicant’s unfair dismissal application made on 23 February 2016 – hearing dates on application’s merits rescheduled on multiple occasions – on 18 August 2016 respondent applied to have current hearing dates vacated and relisted on dates determined by the Commission in consultation with the parties due to witness availability – on 26 August 2016 Commission gave parties two options for hearing dates – Commission had ex-parte conversations with both parties on the setting of hearing dates – parties could not agree – applicant’s representative unavailable on one set of dates – respondents’ senior counsel unavailable on the other set of dates – Commission determined the hearing would be held when the respondent’s senior counsel was unavailable as all 7 witnesses could attend those dates and only 6 witnesses could attend the other set of dates – subsequently respondent applied for the Commissioner to recuse himself from the matter – submitted Commissioner has made decisions and contacted and discussed the matter with parties on an ex-parte basis which demonstrated apprehended bias – applicant submitted they had no concerns about bias, apprehended or otherwise – Commissioner used the reasonable lay observer test from Johnson v Johnson – held that given the circumstances, a reasonable lay observer would not apprehend that the Commissioner was biased – decision made was procedural and administrative to break the impasse between parties and decide when matter would be heard – no basis to conclude decision made in interlocutory proceedings against the respondent’s preferred hearing dates would repeat itself when determining the merits of the case – Commissioner to proceed and hear and determine the applicant’s application. Applicant v Respondent
October 11, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent was small security company and objected to application on basis that dismissal consistent with Small Business Fair Dismissal Code (the Code) – applicant dismissed for serious misconduct but also given one week’s notice of termination of employment, during which he continued to work for respondent – Ryman considered – question whether dismissal can be said to have been made on basis of serious misconduct – Commission felt it difficult to accept reliance on serious misconduct in circumstances where applicant allowed to continue working with respondent for one week period after being notified of dismissal – Commission held that applicant’s alleged conduct cannot be categorised as serious misconduct within meaning of FW Act – applicant and respondent submitted different accounts of events leading up to dismissal – Commission preferred and accepted evidence of respondent – satisfied dismissal was compliant with the Code – application dismissed. Karkun v Zone Security P/L
