REGISTERED ORGANISATIONS – alteration of eligibility rules – s.158(1) Fair Work (Registered Organisations) Act 2009 – application to amend eligibility ‘membership’ rule – notice published in Government Gazette and Commission website in accordance with RO Regulations – no objection to application received within prescribed timeframe – material filed in support and responses provided at hearing considered – Commission held requirements under the RO Act and RO Regulations satisfied – consent to the changes to the eligibility rules sought – change to take effect from 2 September 2016. The Association of Independent Schools of South Australia
September 13, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as groundsman – respondent claimed applicant’s termination followed series of poor behaviours and failure to follow basic instructions – failed to comply with reasonable instructions regarding attendance and leave arrangements – applicant advised of dismissal in text message – dismissal occurred on a summary basis – Commission found respondent had a valid reason for dismissal, however found dismissal unfair as gravity of applicant’s misconduct was disproportionate to summary dismissal – applicant not adequately warned about performance or behavioural issues – no opportunity to improve, respond or request support person – Commission found reinstatement inappropriate – compensation reduced by one third due to misconduct – ordered compensation of two week’s pay, less tax. Hayes v Mechanical Vegetation Solutions P/L
September 13, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed for 17 years as a foreman – made threat to harm another employee – incident occurred four days after performance discussion at which applicant was told violence or threats of violence were not tolerated or consistent with supervisory position – applicant received previous warning in 2014 that further violence would result in dismissal – Commission noted that duration of effectiveness of warning is affected by seriousness of behaviour and nature of warning given – to be valid, reason for dismissal must be sound, defensible and well-founded [Selvachandran] – threatening physical harm against another employee was valid reason – applicant’s behaviour was inconsistent with obligations as employee and as supervisor – Commission took into account warnings of 2014 and fact that performance discussion made it clear threats of violence were as inappropriate as violence itself – although ‘robust’ language was commonplace in work environment, dismissal was not due to use of foul language and workplace did not accept violence or threats of violence – found dismissal not harsh, unjust or unreasonable – dismissal based on appropriate assessment of circumstances, not inferences – dismissal not unfair – application dismissed. Maile v Inception WA P/L atf the Araminta Trust t/a Jackson Asphalt
September 13, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant employed in an administration role and performed duties out of employer’s Gladstone office – respondent objected on basis of genuine redundancy – after a review of the employer’s business in Gladstone, and due to declining market, the number of office administrators required by the respondent at the Gladstone office decreased – some of the duties performed by the administration staff were able to be transferred to alternative positions and therefore it was then possible to combine the two roles into one – new position not identical to prior positions – applicant had to re-apply for position – applicant indicated she did not understand why she had to apply for her former position – applicant informed respondent she would not be applying for the position – Commission found it was not reasonable for the respondent to redeploy applicant directly to the new position as there was another employee who was also qualified to perform the new role – held respondent reasonably applied a selection process to the available position and invited each employee whose position had been made redundant to apply – found no error on the part of the respondent in requiring applicant to apply for new position – respondent discharged its obligations under s.389 of FW Act – application dismissed. Mossman v Veolia Environmental Services
September 13, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed applicant’s unfair dismissal application – found appellant had engaged in serious misconduct – notice of appeal alleged a number of significant errors relating to findings of fact including issues relating to evidence – appellant’s representative submitted that the finding of theft and subsequent finding of serious misconduct by the Commission were not available as the surrendered item had been abandoned and was destined for disposal – Full Bench held Commission took an orthodox approach to the matters in s.387 of FW Act – findings made concerning the key facts were supported by evidence – no case that the Commission erred in concluding that there was a valid reason for dismissal – not satisfied the grant of permission to appeal in the public interest – permission to appeal refused. Appeal by Palm against decision of Kovacic DP of 30 June 2016 [[2016] FWC 4292] Re: Sydney Night Patrol & Inquiry Co P/L t/a SNP Security
September 13, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission satisfied binding settlement agreement reached and appellant acted unreasonably in failing to discontinue application – respondent’s application to dismiss upheld – appellant sought permission to appeal identifying 23 errors of fact or finding or failures on the part of the Commission including failure to acknowledge evidence of particular file note – whether in public interest, where test is ‘a discretionary one involved a broad value judgment’ [Coal & Allied] – public interest not satisfied simply by identification of error or preference for different result – rarely appropriate to grant permission to appeal unless an arguable case of appealable error demonstrated, as appeal cannot succeed in absence of appealable error [Wan] – even if Commission made an error, not necessarily sufficient basis to grant permission to appeal [GlaxoSmithKline] – Full Bench not satisfied appellant established denial of procedural fairness – not satisfied appellant demonstrated arguable case of error by Commission – no basis to grant permission to appeal – not in public interest – permission to appeal refused. Appeal by Kong against decision of O’Callaghan SDP of 4 July 2016 [[2016] FWC 4290] Re: Citic Pacific Mining Management P/L t/a Citic Pacific Mining
September 13, 2016
CASE PROCEDURES – stay order – ss.237, 604 Fair Work Act 2009 – appeal – at first instance Commission granted Union’s application under s.236 of FW Act and issued majority support determination (Determination) – employer appealed and sought stay of Determination – to grant stay, Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, regarding leave to appeal and substantive merits of appeal; and that balance of convenience favours stay [Kellow-Falkiner Motors P/L v Edghill] – Commission held that grounds of appeal concerning s.237(d) of FW Act, if successfully made out, could provide basis for allowing appeal – found arguable case with some reasonable prospects of success regarding leave to appeal and merits of appeal – balance of convenience favoured granting stay as Commission unable to conclude employer would not suffer disadvantage if decision not stayed – stay order appropriate – first instance decision and Determination stayed pending hearing of appeal. Appeal by Blue Lake Milling P/L against decision of Ryan C of 18 August 2016 [[2016] FWC 5857] Re: National Union of Workers
September 12, 2016
Thirty-six unfair dismissal/labour dispute claims will be heard before the Fair Work Commission today. The hearing list includes: Spotless Group Limited (Cross), Epic Industry Training Board & Frazer (De Jong), BUPA Australia (Kalsi), ATF Sri Balaji Supermarkets Unit Trust Pty Ltd (Walton), Queensland Rail Limited (Nest), Sunco Motors Pty Ltd (Dunham), HSE Mining Pty Ltd (Ball, Bounden, Smith), The Australian Capital Territory as represented by the Chief Minister, Treasury and Economic Development Directorate (Cargill), Australian Nursing a& Midwifery Accreditation Council (Fogarty), Airservices Australia (Roneberg), Terrex Seismic Pty Ltd (Keat, Lewis), Wilson Security Pty Ltd (Davis), Monadelphous Engineering Associates Pty Ltd (Bailey), Liddell Colleries Pty Limited (McKenzie), Bendigo Health Care Group (Logan), Anglican Retirement Village (Fu), Sargents Pty Ltd (Mulcahy), Cement Australia Pty Limited (Perceval), Toll Holdings (Pirko), The Trustee for the Roman Catholic Church for the Diocese of Parramatta (Ramsey), Ignite Vision for Health and Vitality Pty Ltd ATF M and J Charlton Family Trust (Cox), Fisherman’s Wharf Narooma Pty Ltd (Brice), Cootes Transport Group Pty Ltd (Culpan), Project Air Conditioning Pty Ltd (Harry), University of New England & Duncan (MacKenzie), Uniting Church in Australia New South Wales Synod (Davidson), Toll Holdings (Bintoro), Qantas Airways Limited (Dawson), Truck Centre WA Pty Ltd (Powell), Momentum Wealth Pty Ltd (Hughes), Lawton McIvor Pty Ltd (Sullivan), Project Air Conditioning Pty Ltd (Harry), National Investigation Services of Australia Pty Ltd (Hobson).
