TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act – applicant was granted a period of leave – applicant and respondent had differing understandings of duration of leave – applicant returned earlier than respondent was expecting – arrangements had been made for others to undertake work in his absence – applicant informed there was no work for him at that time and told to wait for a call – applicant proposed he work on a construction site by SMS – no evidence of applicant telling employer he was not allowed to work at construction sites but he later refused construction site work – no evidence of legitimate basis for the applicant refusing work – respondent alleged applicant had abandoned his employment – letter headed ‘Employment termination’ sent to applicant informing his position had been terminated – after dismissal respondent offered applicant option of returning to work at a construction site – applicant refused the work – applicant’s repeated refusal to attend for work as directed a valid reason for dismissal – applicant notified of reason for dismissal in letter of termination – not made clear to applicant before dismissal that he would be dismissed if he did not attend to work – no opportunity to respond – small size of business and lack of HR expertise a factor leading to procedures followed being deficient – three warnings not provided to applicant prior to dismissal as offer of employment letter – dismissal unjust, notwithstanding there being a valid reason for the applicant’s dismissal due to respondent’s failures to give warnings and follow fair procedure – reinstatement inappropriate – held that in all likelihood applicant would have been dismissed a week later if a fair process was followed by respondent – even if applicant had been likely to receive additional remuneration, this amount would be reduced by 50% because applicant’s misconduct directly contributed to the respondent’s decision to dismiss him – considering circumstances no compensation ordered – order to this effect issued in conjunction with decision. Guo v Metwest Steel P/L
August 29, 2016
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant acted as a workplace representative for colleagues – applicant began to charge for representation services, which respondent alleged amounted to a conflict of interest – applicant rejected activities amounted to conflict of interest – respondent’s managers expressed concern about aspects of applicant’s behaviour – respondent conducted investigation and determined that applicant had breached code of ethics – applicant was dismissed – applicant submitted no valid reason for termination existed – Commission satisfied that allegations of misconduct relating to day-to-day work proven – Commission satisfied that implementation of payment system for representation altered the nature of his role as a workplace representative and represented a manifest conflict of interest – while valid reasons for dismissal existed, respondent invoked summary dismissal in circumstances where applicant had not been suspended from duty – respondent deprived of capacity to dismiss without notice in these circumstances – procedural error rendered dismissal unreasonable and unjust – applicant sought reinstatement – respondent’s lack of trust in applicant rendered reinstatement inappropriate – applicant’s failure to mitigate loss considered – compensation awarded. Cook v Australian Postal Corporation t/a Australia Post
August 29, 2016
ANTI-BULLYING – reasonable management action – s.789FC Fair Work Act 2009 – application for an order to stop bullying – applicant submitted he had been bullied by his manager in the course of his employment – applicant submitted that bullying took the form of repeated threats of dismissal, illegal punishments for unspecified transgressions and because he stood up for basic employee rights – Commission found applicant refused to carry out lawful instructions given by his employer and was warned that such behaviour put his employment at risk – Commission not satisfied any evidence existed which demonstrated that, even if the manager’s actions were unreasonable, the applicant’s health and safety was at risk – manager no longer has direct dealings with applicant, so no risk that applicant will continue to be bullied by manager – Commission satisfied manager’s actions constituted reasonable management action taken in a reasonable manner and that, even if such behaviour was unreasonable, no further risk was posed – application dismissed. Gillies
August 29, 2016
ENTERPRISE BARGAINING – majority support determination – ss.236, 237 Fair Work Act 2009 – CFMEU sought majority support determination that majority of employees who would be covered by proposed single enterprise agreement to replace Kane Construction P/L and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 wish to bargain with their employer – CFMEU submitted that it had asked Employer to enter into bargaining for new agreement and the Employer refused – CFMEU filed a confidential petition signed by 43 employees which stated that those employees wanted to bargain for a new enterprise agreement and they wanted CFMEU to represent them – Employer filed a confidential list of employees who would be covered by the proposed agreement and the list contained 53 names – Commission examined petition and list of employees and was satisfied that majority of employees employed wanted to bargain – Commission satisfied that CFMEU was bargaining representative for employees concerned and capable of making application for majority support determination – Commission further satisfied that Employer had not yet agreed to bargain or initiated bargaining for the agreement – Commission accepted that the Employer was willing to commence bargaining but not the same as agreeing to bargain or initiating process – satisfied that group of employees distinct and fairly chosen – Commission satisfied all requirements met and issued determination – Employer directed to take all reasonable steps to issue notice of employee representational rights to each relevant employee – notice to be issued within 14 days of determination being made. B2016/847
August 29, 2016
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – application for protected action ballot order (PABO) – regarding bargaining for proposed enterprise agreement covering employees of statutory authority responsible for provision of metropolitan train services – decision concerns second application made during current round of bargaining – respondent opposed – argued necessary requirements not met – sought extension to notice period in relation to certain forms of industrial action set out in proposed ballot questions – applicant proposed additional notice period applied to some forms of action but not to full extent – eligible to bring action – all other relevant statutory requirements met – ballot order issued 17 August 2015 – included extended notice period in relation to expanded list of proposed industrial action – no direct evidence before Commission as to bargaining position adopted by respondent – applicant contended genuinely trying to reach agreement – opposed granting of extended notice period in relation to additional categories of industrial action – respondent contended if Commission found July 2016 claims met ‘genuineness test’, this allowed applicant to subsequently adopt further, more extensive, log of claims in order to advance position – not in dispute that applicant genuinely trying to reach agreement – s.443 statutory requirements met – proposed PABO modified to reflect Commission’s decision – PABO issued. Australian Rail, Tram and Bus Industry Union v Rail Commissioner
August 29, 2016
TERMINATION OF EMPLOYMENT – misconduct – s. 394 Fair Work Act 2009 – applicant worked on respondent’s glass cutting line – incident occurred between applicant and production manager where respondent alleged applicant was aggressive – applicant did not receive formal warning over incident as showed remorse – applicant involved in another incident with fellow employee – applicant left workplace after incident – applicant contacted production manager by telephone and hung up on him – applicant subsequently dismissed in telephone call – Commission determined whether alleged conduct took place and whether it constituted valid reason on basis of evidence – Commission unable to form definitive view as to whether conduct attributed to applicant (other than leaving workplace) occurred – Commission not satisfied there was valid reason for dismissal – Commission not satisfied that reason for termination was defensible or justifiable on objective analysis of facts – found dismissal unreasonable – Commission did not consider reinstatement appropriate as would make already fractious relationship untenable – ordered compensation in lieu of reinstatement of $11,250 less tax to be paid 28 days of decision being issued. Edwards v Jeld-Wen Glass Australia P/L t/a Jeld-Wen Glass Australia
August 29, 2016
TERMINATION OF EMPLOYMENT – Extension of time – s.394 Fair Work Act 2009 – applicant made redundant in August 2015 – claimed similar role advertised in February or March 2016 – subsequently undertook research before lodging unfair dismissal application 230 days out of time – ignorance of statutory time limit not exceptional circumstance [Nulty] – no obligation on employer to inform redundant employee of rights to dispute dismissal – no adequate explanation for failure to lodge application earlier – applicant did not dispute dismissal until lodging application – no undue prejudice to respondent if extension granted – applicant’s submission that respondent failed to consult in accordance with applicable award not without merit – nonetheless to grant extension may result in unreasonable expectation that terminations due to redundancy can be challenged many months following termination – no exceptional circumstances – application dismissed. Dunn v Professional Investment Services P/L a subsidiary of Centrepoint Alliance Ltd t/a Professional Investment Services (PIS)
August 29, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – s.394 Fair Work Act 2009 – employment terminated following restructure – applicant argued it would have been reasonable to redeploy him into another position and failure to do so meant dismissal was not genuine redundancy – respondent consulted with applicant during restructure – respondent considered applicant for redeployment but applicant did not have necessary skill set and/or qualifications for available roles and was unable to relocate – four positions jointly identified by parties narrowed to two positions of Asset Engineer and Business Engagement role – Commission found gaps in applicant’s experience relative to Asset Engineer requirements could not be overcome with training – Commission found retraining would not enable applicant to fulfil requirement for higher managerial level for Business Engagement role – Commission satisfied applicant was kept informed of restructure – held dismissal was genuine redundancy – application dismissed. Jewell v Broadspectrum P/L
