TERMINATION OF EMPLOYMENT – incapacity – permission to appeal – ss.394, 604 Fair Work Act 2009 – appellant sought permission to appeal first instance decision of Commission that dismissal not harsh, unjust or unreasonable – respondent at first instance identified performance issues related to applicant’s work – Commission at first instance held applicant’s failure to pass competency assessment carried out by respondent valid reason for dismissal – on appeal appellant claimed error of fact in finding that he was sufficiently warned about competency assessment – claimed failure to take into account evidence that competency assessment carried out without any warning provided to applicant that assessment would determine his future employment – whether person has been warned about unsatisfactory performance before dismissal factor Commission must take into account under s.387(e) of the Act – Commission at first instance found number of factual findings including that applicant was aware of respondent’s concerns regarding unsatisfactory performance – seriousness of issues under review in both mentoring program and performance improvement plan – applicant had opportunity to respond during competency assessment which he did not utilise – competency assessment ultimate event in comprehensive process dealing with respondent’s legitimate concerns about applicant performing in safety critical role -existing context of applicant’s employment made any further warning unnecessary – Full Bench found no error of fact significant in decision at first instance – no public interest in granting permission to appeal or matters of importance or general application raised by the appeal [GlaxoSmithKline Australia] – permission to appeal refused. Soper v Teekay Shipping (Australia) P/L
August 19, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for repeated unacceptable behaviour including intimidation, insulting remarks, ignoring or excluding individuals and public criticism – Commission found valid reason for dismissal noting applicant’s long record of repeated inappropriate behaviour, most obviously getting angry and shouting at colleagues – did not accepted that this was simply applicant’s nature or that he had a loud voice – applicant notified of reason for dismissal via general ‘show cause’ letter and notification of meeting to discuss inappropriate behaviour – opportunity to respond given at meeting – support person present, although person not of applicant’s choice – several warnings – respondent had qualified human resources professionals and followed reasonable procedures given its medium size – Commission satisfied applicant engaged in misconduct and was afforded procedural fairness – application dismissed. Diaz v Anzpac Services (Australia) P/L
August 19, 2016
TERMINATION OF EMPLOYMENT – misconduct – application for unfair dismissal remedy – s.394 Fair Work Act 2009 – applicant’s duties involved engaging with disengaged young people in the community, who face, or whose parents faced serious drug and alcohol problems – applicant tested positive to the drug and alcohol test – applicant dismissed – verbal amendments were made to the workplace drug and alcohol policy by respondent to allow instant dismissal for positive testing – applicant claimed that he had no recollection of the amendments made – zero tolerance policy warranted by respondent in the social context – Commission found valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Owens v Bynoe Community Advancement Cooperative Society Limited t/a Bynoe CACS Ltd
August 19, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to have Commission determine dispute under the Pacific National Bulk Rail Enterprise Agreement 2013 (the Agreement) – jurisdictional issue of whether consultation clause and right to arbitration arise under clauses 30 and 31 of the Agreement were wholly dependent on a broader conclusion as to whether the subject matter of the dispute is about the application of the agreement – Commission had to first properly characterise the nature of the dispute (UFU v MFB) – Commission found from the orders sought by applicant and substance of case advanced by both parties that proper characterisation of dispute was a claim by the applicant that both the abolished position and the newly created roles are covered by the Agreement – respondent rejected applicant’s proposition and raised jurisdictional and merit questions as to why the Commission would not only refrain from answering the question, but should not, as a matter of jurisdiction, be able to determine the issue – Commission found abolished position and newly created roles not covered by the agreement and work performed in these roles not equivalent to work performed in a classification in the Agreement – held respondent not in breach of obligations under consultation clause – as dispute did not arise in relation to the application of the Agreement, dispute could not be brought under the Agreement – even if dispute could be brought under the Agreement, the Commission had no power to arbitrate – application dismissed for want of jurisdiction. Australian Rail, Tram and Bus Industry Union v Asciano Services P/L t/a Pacific National
August 19, 2016
TERMINATION OF EMPLOYMENT – inherent requirements – s.394 Fair Work Act 2009 – the applicant was a PUD driver who drove an 8 tonne truck – he was placed on modified duties as the result of a degenerative condition in his foot – employment was terminated on the basis that he could not safely perform the inherent requirements of his job – applicant examined by a TNT doctor as part of his workcover claim – after workcover claim declined, TNT advised it was unable to provide further modified duties and directed him to attend medical assessments to determine his fitness to work – the various reports concluded that he could not safely carry out the inherent requirements of the role without restriction – a show cause letter was sent to the applicant – the applicant provided certificates from his treating doctor stating that he was fit for work – TNT sought further information from the treating doctor who confirmed that the applicant was fit to resume work on a graduated basis – Commission considered what the applicant’s job was and the inherent requirements of that job – TNT were required to weigh up competing medical reports – it was not reasonable for them to allow the applicant to return to pre-injury duties as this would have put him at risk – there was no opportunity for redeployment – accordingly there was a valid reason for dismissal – procedural fairness afforded – dismissal not harsh, unjust or unreasonable – application dismissed. Pavlov v TNT Australia P/L
August 19, 2016
TERMINATION OF EMPLOYMENT – Small business fair dismissal code – s.394 Fair Work Act 2009 – 1.07 Fair Work Regulation 2009 – application for relief from unfair dismissal – employer small business – 3 employees – Small Business Fair Dismissal Code (Code) applied – no need to determine whether dismissal harsh, unjust or unreasonable under s.387 – two step test applied [Pinawin] – at time employee was dismissed employer believed conduct sufficiently serious to justify immediate dismissal – belief was on reasonable grounds – employer investigated matter [Pinawin] – reasonable grounds objective test – investigation does not require allegations be put to applicant – summary dismissal section of Code ‘serious misconduct’ definition aligns with reg.1.07 [Ryman] – conduct was failure to back up data and source code for 2 years – deleting material from computer – conduct serious given senior position in software company responsible for backing up data – reasonable investigation carried out – held termination of employment not unfair as consistent with Code – application for unfair dismissal remedy dismissed. Ma v Lexxe P/L t/a Lexxe
August 19, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant dismissed for misconduct – numerous incidents over a number of years prior to the dismissal – applicant dismissed as a direct result of incidents concerning the unsafe operation of a prime mover and failure to follow proper procedures – applicant disputed the validity of the issues underpinning dismissal – Commission satisfied that the various instances of the applicant’s conduct relied upon by the respondent in deciding to terminate his employment did occur – Commission found that there was a valid reason for the dismissal – applicant was notified of the reasons and given an opportunity to respond to that reason – dismissal was not harsh, unjust or unreasonable – application dismissed. O’Sullivan v Qube Logistics (SL) P/L t/a Qube Logistics
August 19, 2016
CASE PROCEDURES – costs – ss. 394, 400a Fair Work Act 2009 – application for costs by respondent to application for unfair dismissal remedy successful – Commission satisfied applicant should pay all costs, including disbursements, incurred by respondent – Commission directed respondent to provide itemised schedule of costs – schedule unreasonable in four respects: 1. preparation time for solicitor reduced from 13.1 hours to 10 hours, having regard to length of hearing, volume of material and complexity of matter; 2. inappropriate to include items where costs were not incurred as a direct result of actions of applicant; 3. inappropriate to include cost of flight change fees; 4. accommodation and meal expenses claimed were overly generous – Order issued for costs totalling $24,928.50, payable within 28 days of decision. Abdulrahim v QBE Management Services P/L
