TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission found the appellant had resigned voluntarily from her employment with the respondent and dismissed her application – appellant’s representative submitted the decision manifested an injustice and the legal principles applied by the Commission were disharmonious when compared with other recent decisions of the Commission dealing with similar matters – asserted errors of jurisdiction, errors of law and significant errors of fact – submitted that the overwhelming weight of evidence supported a finding that the appellant’s resignation was forced upon her – Full Bench held the submissions from the appellant’s representative regarding the jurisdiction of the Commission were misconceived – a number of issues are dealt with by the Commission prior to a merits arbitration hearing – Full Bench unable to identify any error of the kind outlined in House v King – can identify no significant or other error of fact in the decision at first instance – appellant unhappy with the outcome of her application – satisfied the conclusions in relation to the alleged constructive dismissal of the appellant were available to the Commission on the evidence – not satisfied there is any public interest in granting permission to appeal – permission to appeal refused. Appeal by Reynolds against decision and order of Roberts C of 13 April 2016 [[2016] FWC 1187] and [PR577340] Re: Highfields Preparatory and Kindergarten School Ltd t/a Highfields
August 12, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant contended Commission erred in finding there was a valid reason for dismissal – the applicant also contended that the finding in paragraph [86] was a significant error of fact as to the purpose and intent of the letter sent to the applicant on 6 March 2014 – the applicant contends that the Decision was appealable at law because it was not reasonable to conclude on the basis of the facts found that were was a valid reason for dismissal – the applicant also asserted the Commission erred in law because the respondent did not have a valid reason to dismiss the applicant and as the respondent failed to take any action against the applicant for the incident discussed therefore condoned the behaviour and/or waived its rights in relation to it – Commission did not consider that an arguable case of appealable error had been established – Commission does not accept there was any denial of procedural fairness – not satisfied that it is in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Aitken against order of Clancy DP of 29 April 2016 [PR579733] Re: CUB P/L
August 12, 2016
TERMINATION OF EMPLOYMENT – performance – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant sought to appeal unfair dismissal remedy compensation of $17,392.96 – appellant did not appear in original matter – Full Bench satisfied appellant was provided opportunity to file submissions and attend hearing – uncooperative and tardy in appeal application – consistent with original application – ground of appeal no merit – submission self-serving – no error of fact or law put – no failure to provide procedural fairness – not satisfied public interest in granting appeal – permission to appeal refused – employee lodged an Application for Costs and an Application for Security of Costs – pressed his application for costs at the permission to appeal hearing – Full Bench requested employee provide itemised list of costs – no list provided – costs order not granted. Appeal by WCH Services P/L t/a WCH Services against decision and order of Wilson C of 19 April 2016 [[2016] FWC 2454] and [PR579204] Re: Shortland
August 12, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – extension of time – ss.386, 394 of Fair Work Act 2009 – jurisdictional objection – whether applicant was terminated at the initiative of the employer – whether application lodged outside 21 days – applicant employed since 2004 – not disputed that applicant was able to work on respondent’s and others’ jobs at the same time – applicant requested assistance from FWO regarding alleged underpayments in late 2015 – applicant told respondent in November 2015 he would take a break from respondent pending resolution of entitlements dispute – respondent contended that applicant terminated subcontract at that time – told applicant that he had not been sacked – submitted that applicant withdrew this labour in November 2015 and application was out of time – Mohazab and Searle considered – Commission satisfied that applicant voluntarily ceased work in November 2015 and did not request more work from respondent until February 2016 – satisfied that respondent’s failure to respond to applicant’s request did not constitute termination at initiative of employer – applicant not dismissed as per s.386 of the Act and application does not meet requirements of s.394 of the Act – application dismissed. Zosel v The Grace Freeman Nelson Trust t/a Landsculpture Design & Construction P/L t/a Landsculpture
August 12, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with dispute under provisions of the ACT Public Service Education and Training Directorate (Teaching Staff) Enterprise Agreement 2011-2014 – applicant no longer employed by respondent – allegations regarding applicant’s conduct reported in September 2014 – delay in investigation – applicant’s registration with ACT Teacher Quality Institute lapsed on 31 March 2015 – registration a prerequisite to teach in the ACT – applicant submitted she was an employee at the time the misconduct procedures were commenced by respondent and she was entitled to the final stage of those procedures under the agreement – respondent submitted that applicant had no standing to bring her application in accordance with the agreement’s dispute settlement procedure as she was not an employee and had not been since February 2015 – two questions which the Commission needs to determine : whether applicant was an employee at the time she made her application and whether applicant had standing to bring her application – Commission held that as of 1 April 2015 applicant was no longer an employee of respondent – ING considered – found applicant not an employee of respondent at the time she lodged her application – Commission does not have jurisdiction to deal with application – application incompetent – application dismissed. Dayhew v ACT Government as represented by the Education and Training Directorate
August 12, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Thiess Curragh Mine Enterprise Agreement 2013 (2013 Agreement) – dispute related to selection for redundancy of a member of the applicant – respondent brought jurisdictional objection on account that dispute related to ex-employee; was not initiated while employee was employed; and because dispute had not been initiated in accordance with 2013 Agreement – Commission to determine whether employee initiated dispute in accordance with clause 7 of 2013 Agreement – following a meeting with the respondent regarding the redundancy, the employee’s employment ended on 5 November 2015, shortly before applicant filed a dispute with Commission on his behalf on 17 November 2015 – respondent asserted plain meaning of 2013 Agreement required any dispute about redundancy be referred immediately to the Commission and any dispute initiated must be made by a party to the 2013 Agreement – respondent outlined as applicant lodged application with the Commission 12 days after the employee’s employment had ceased, the Commission had no jurisdiction to deal with dispute – in the alternative, respondent claimed meeting between employee and respondent cannot be considered to have been initiation of dispute based on nature, tone and content of discussions – applicant submitted dispute was initiated by employee either questioning redundancy or once agreement could not be reached regarding the redundancy prior to cessation of employee’s employment – Commission did not accept clause 7.3 of 2013 Agreement should be read so that a dispute cannot be found to have been initiated by an employee before an application was made to Commission for resolution of that dispute – Commission further outlined a dispute under clause 7 could be initiated before an application was made to Commission and a former employee who put his or her selection for redundancy in issue before employment ceased had initiated a dispute and could make an application to the Commission after that time – determined employee did put issue of his selection for redundancy in dispute prior to end of employment – Commission found to have jurisdiction to deal with applicant’s application under s.739 FW Act – jurisdictional objection dismissed – matter to be listed so Directions can be issued in relation to it. Construction, Forestry, Mining and Energy Union v Thiess P/L
August 12, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute whether applicant who has less than 12 months continuous service entitled to paid parental leave pursuant to clause 27.5, and specifically, clause 27.5.3, of the City of Wanneroo Salaried Officers Collective Enterprise Agreement 2012 (the Agreement) – applicant submitted he was entitled one week’s paid leave even though he had not completed a year’s continuous service – applicant submitted he was entitled to leave as supervisor initially approved application for one weeks’ leave and plain words of clause enable him to take one weeks’ paid parental leave – respondent asserts applicant was advised of reasons for rejection of application for leave and it has consistently applied the Agreement such that the qualifying service requirement of 12 months must be achieved before any employee is entitled to take paid parental leave – Golden Cockerel considered – Commission not satisfied the Agreement established an entitlement to one weeks’ leave pursuant to clause 27.5 .3 for applicant – not satisfied the approval process adopted by the City was such that, notwithstanding that the Agreement does not provide for access to one weeks’ paid leave in his circumstances, that leave should be granted in these circumstances – clause 27.5.3 provides for an entitlement to paid parental leave which is constrained by a requirement for a minimum period of 12 months continuous service. Truong v City of Wanneroo
August 12, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – applicant dismissed in February – respondent did not attend the hearing however contended that the applicant was negative and failed to follow implemented processes after being shown how to do the work – applicant and respondent had numerous meetings prior to her dismissal with the last meeting being held in December – Commission did not consider that the applicant’s performance and conduct in January and February was unsatisfactory to warrant the termination of her employment – at the time of the applicant’s dismissal there was no valid reason for the dismissal – Commission found that applicant’s dismissal was harsh, unjust and unreasonable – applicant sought reinstatement – appropriate to issue an order that the applicant be reinstated – order also that respondent pay the applicant the amount of remuneration lost as a result of her dismissal – order to maintain the continuity of the applicant’s employment also considered appropriate – separate order to be issued giving effect to the decision. McPartland v Degree Refrigeration P/L t/a Weston Family Trust
