TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant’s employment terminated due to failure to attend apprenticeship training and failure to attend to work on time – respondent contended applicant terminated in accordance with the Small Business Fair Dismissal Code – Commission found applicant’s termination in accordance with Code – application dismissed. Hockley v Salon Inspired Hair & Beauty
September 6, 2016
CASE PROCEDURES – representation – ss.394, 596 Fair Work Act 2009 – unfair dismissal application lodged outside 21 day time limit – respondent sought permission to be represented at extension of time hearing – applicant opposed grant of permission – respondent submitted matter was complex and warranted permission being granted as it would enable matter to be dealt with more efficiently – Commission considered that application was the second made by applicant after first application discontinued in accordance with settlement agreement – satisfied that there was some complexity to matter and granting permission would enable matter to be dealt with more efficiently – noted FW Act operates on presumption that parties will represent themselves – unusual case – requirements of s.596(2)(a) of FW Act met – satisfied appropriate to grant permission to be represented in extension of time hearing – permission granted in extension of time hearing. Murray v Flamestop Corporate Services P/L t/a Flamestop
September 6, 2016
CASE PROCEDURES – discontinuance – ss.394, 586 Fair Work Act 2009 – settlement in unfair dismissal matter reached at conciliation on 29 June 2016 – applicant emailed Commission on 4 July 2016 advising he did not wish to go ahead with settlement and electing to proceed to arbitration – Notice of Discontinuance filed by applicant’s representative on 8 July 2016 – email from representative on 15 July 2016 suggesting they may have filed Notice of Discontinuance in error and confirming applicant’s intention to proceed to arbitration – applicant confirmed in writing of intention to proceed – Commission emailed applicant on 26 July 2016 directing him to file and serve any evidence and submissions in support of application to revoke discontinuance – applicant did not contact Commission nor provide submissions – AB v Tabcorp Holding Limited considered and held to be binding – Commission does not have power to set aside notice of discontinuance – application dismissed. Axelby v Woolworths Limited t/a Masters Home Improvements Upper Coomera
September 6, 2016
TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – applicant lodged an application for unfair dismissal – dispute over whether the applicant was an employee or an independent contractor, whether he earned in excess of the high income threshold and whether he was covered by a Modern Award – applicant submitted he was covered by the Professional Employees Award 2010 – Commission considered the scope of services in the consultancy arrangement between the parties – Commission not satisfied that the applicant was engaged in work that would fall within the classification criteria in the Award – applicant not covered by an Award or enterprise agreement – annual rate of earnings in excess of the high income threshold – Commission satisfied that the applicant was not a person protected from unfair dismissal when he or his company’s services were terminated – unnecessary for Commission to consider whether the applicant was an employee or independent contractor – application dismissed. Forkes v Amristar Solutions P/L
September 6, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – decision concerning form of orders to be issued in relation to matter of Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [[2016] FWC 5028] – that decision dealt with question of whether there was any impediment arising from enterprise agreement to applicant implementing decision to terminate employment of a recruit firefighter – decision of Commission extended probationary period of recruit, required disclosure of criminal history and arrests, and required written warning to be issued to recruit – applicant indicated intention to appeal decision, but requested Commission proceed to determine the matter of orders prior to Full Bench hearing application to appeal substantive decision – parties had been directed to confer on form and substance of orders and seek to arrive at a consent position – differences in orders sought were minimal – applicant sought order in permissive rather than mandatory terms, so that it wasn’t forced into action pending resolution of its application to appeal – respondent sought order in mandatory terms – respondent submitted applicant was seeking the effect of a stay order – Commission satisfied no impediment to permission orders exists – applicant submitted it was not possible for recruit to re-join training process, and that it was only possible for recruit to start training again from the beginning – respondent submitted the recruit was able to take up training where he left it – Commission satisfied length of probation should be the later of a specified date and the time he completes the training course – orders to be issued. Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia
September 6, 2016
TERMINATION OF EMPLOYMENT – contract for specified term – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed before expiry of fixed term employment contract – applicant worked as security officer for a sub-contractor – contract extended on four occasions – during second extended term respondent issued notice to applicant advising primary contractor was renegotiating service contract and respondent unable to predict future staffing levels – applicant’s employment not secure – current employment contract linked to existing service contract – later correspondence extending applicant’s contract highlighted employment would cease on expiry of extension – respondent did not renew applicant’s contract – respondent changed policy adding requirement to meet security license eligibility criteria – applicant assessed as ineligible due to matters disclosed in National Police Certificate – respondent submitted applicant sent away from workplace but paid until contract expired – Commission satisfied applicant sent away from work location in accordance with respondent’s policy and that the underlying contract remained in effect as applicant continued to be paid until such time as his contract of employment expired – application without jurisdiction – application dismissed. Cowan v Wilson Parking Australia t/a Wilson Security
September 6, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as long distance truck driver – failed to activate alarm in client’s warehouse on one occasion and purportedly drove truck with dangerous goods in breach of policies – respondent conducted investigation and dismissed applicant for above reasons as well as damaging respondent’s reputation with client – Commission found no valid reason for dismissal – dismissal harsh, unjust or unreasonable – applicant sought compensation – Commission satisfied reinstatement inappropriate – in assessing compensation, considered period of service, age, mitigation of loss and receipt of workers compensation – ordered compensation of $32,305 less taxation. Humphries v A1 Distributions
September 6, 2016
TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – jurisdictional objections raised on basis applicant not covered by modern award and applicant’s annual rate of earnings exceeds high income threshold – applicant claimed covered by Professional Employees Award 2010 in performing professional engineering duties – whether applicant covered by the Award in performing professional engineering duties as defined by the Award – whether applicant falls within classifications in relevant schedule – to fall within definition of ‘professional engineering duties’ the adequate discharge of duties must require qualifications as/equal to a graduate member of Engineers Australia [Whelan v BMD] – that applicant’s job description requires engineering degree countered by fact that other employees performing similar functions do so without engineering degrees – duties do not require an engineering degree to be adequately performed – duties largely contractual and administrative – engineering qualifications desirable but not essential – principle purpose test applied – applicant not employed to perform work within classification definitions of the Award – held applicant not covered by the Award – whether applicant’s annual rate of earnings less than high income threshold ($136,700) – paid base salary $135,000 p/a plus car allowance of $12,000 and fuel card with expenditure of $8,474.36 – fuel card to be used in calculating earnings – as also in receipt of car allowance must deduct relevant business travel from either fuel card expenditure or car allowance – relevant test to apportion earnings when car allowance provided set out and distinguished from test to determine value of provision of motor vehicle – examination of personal use as opposed to business use appropriate way to determine value of allowance – private usage of car allowance at least $2,807.50 which in combination with applicant’s salary exceeds high income threshold – therefore no need to consider value of fuel card usage – held applicant not protected from unfair dismissal – application dismissed. Sariman v BMD Constructions P/L
