GENERAL PROTECTIONS – extension of time – s.365 Fair Work Act 2009 – application to deal with contraventions involving dismissal made outside 21 day statutory timeframe – applicant complained bullying at work caused medical condition – medical report supported finding medical condition impacted ability to lodge application in time – Commission satisfied severe medical condition explained delay – lack of prejudice to respondent weighed in favour of a finding of exceptional circumstances – satisfied there were exceptional circumstances – extension of time granted. McDonald v D&A Mitrevski P/L t/a Stockdale Leggo Bayswater
July 28, 2016
ANTI-BULLYING – bullied at work – unreasonable behaviour – s.789FC Fair Work Act 2009 – application for an order to stop bullying – applicant is a teacher and is also OH&S representative – alleged she has been bullied at work by the Principal of the College – Principal appointed in 2013 with a mandate from the Board of Mercy Education to effect change and arrest declining enrolment – some staff were resistant to change and preferred the status quo – applicant gave evidence that she became increasingly concerned about Mercy Education’s bullying policy and in May 2013 raised the issue of bullying and the need to update the policy – Business Manager agreed to review the bullying policy by the end of the year – this did not eventuate – issue raised again in April 2014 – no Deputy Principal at the College – Deputy Principal had resigned after Principal had been appointed – Deputy Principal continued to be listed in the outdated bullying policy as the complaints officer – bullying policy revised and re-issued in 2015 after applicant filed complaints in December 2014 – applicant identified a number of incidents occurring from late 2013 and continuing after her return from LSL in mid-2015 which she maintained were together repeated unreasonable behaviour by the Principal – Amie Mac adopted – Commission concluded that four of the incidents about which the applicant complained, taken together, amounted to repeated unreasonable behaviour – found conduct was likely to have caused applicant distress – behaviour created a risk to the health and safety of applicant – found applicant was bullied at work – what orders (if any) should be made – held relationship between applicant and Principal is an obviously tense one involving some mutual animus – interpersonal relationship disputes are best resolved through the efforts of the parties and perhaps assisted by some form of facilitation or mediation – any orders made would likely favour one side over the other – some form of reconciliation is much more likely to produce a lasting positive improvement in the working relationship between the parties than any order – proposal that the parties engage with each other in a series of mediated or facilitated meetings with the aim of repairing their relationship and engaging in a dialogue that will accommodate an ongoing professional working relationship and a safe working environment – if parties unwilling to engage with each other then they can request the expeditious hearing and determination of the question whether orders should be made. Purcell v Ms Mary Farah and Mercy Education Ltd t/a St Aloysius College
July 28, 2016
MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – Full Bench – July 2015 Award Flexibility decision dealt with a number of claims to vary certain modern awards in respect of make up time and time off instead of payment for overtime [[2015] FWCFB 4466] – make up time claim rejected – interested parties provided with opportunity to file written submissions in relation to the content of the provisional model term and the proposition that the model term be inserted in 113 modern awards – October 2015 decision dealt with submissions concerning the content of the model term [[2015] FWCFB 6847] – April 2016 decision proposed further changes to the form and content of the model TOIL term [[2016] FWCFB 2602] – interested parties given opportunity to comment on the plain language redraft of the model term – 8 July 2016 decision dealt with submissions received in relation to the proposed plain language model term and finalised the model term and associated template agreement [[2016] FWCFB 4258] – this decision deals with the 49 modern awards which contain existing ‘time off in lieu of overtime’ (TOIL) provisions, but which are not the subject of an award specific submission – Full Bench propose to vary the 44 modern awards set out at Attachment D to insert the model term and the associated schedule containing the template agreement – existing TOIL terms in these 44 modern awards should be deleted – satisfied the variation of these 44 modern awards to incorporate the model term is necessary to ensure that each of these modern awards provides a fair and relevant minimum safety net, taking into account the s.134 considerations – April 2016 decision provided for the variation of 26 modern awards – 70 of the 122 modern awards will now contain the model term and associated schedule – regarding the other five modern awards – the Mobile Crane Hiring Award 2010 and the Amusement, Events and Recreation Award 2010 – provisional view of Full Bench that the two existing provisions do not achieve the modern awards objective – these awards will be listed for further hearing at 9.30 am on 24 August 2016 – the Book Industry Award 2010 – our provisional view that the TOIL term in this award does not provide a fair and relevant safety net and on that basis does not achieve the modern awards objective – Full Bench will publish a draft variation determination in respect of this award and list the matter for further hearing on 24 August 2016 – the Supported Employment Services Award 2010 and the Children’s Services Award 2010 – provide a limitation on the amount of overtime that can be the subject of a TOIL agreement – provisional view that if the existing provisions were replaced by the model term then such a limitation may be unnecessary – Full Bench propose to adopt the provisional view that these two modern awards should be varied to delete the existing TOIL provisions and insert the model term and the associated schedule – interested parties will have 14 days to comment on the draft variation determinations – directions for the further hearing of this matter to be listed in due course. 4 yearly review of modern awards – Award flexibility
July 28, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission held that the appellant had been unfairly dismissed – found valid reason for the appellant’s termination but considered the dismissal was harsh, unjust or unreasonable due to a procedurally flawed and unfair termination process – held applicant 75% responsible for his termination and awarded reduced compensation based on this finding – appellant expressed general dissatisfaction with the Commission’s decision and sought permission to appeal – submitted he worked for the company honestly, he had been treated badly and did not engage in the conduct found to have occurred – Coal & Allied considered – held appellant’s appeal was a statement of dissatisfaction with the Commission’s conclusions and he had failed to demonstrate any error on the part of the Commission – appeal not in the public interest – permission to appeal refused. Appeal by Weldemichael against decision of Roberts C of 10 March 2016 [[2016] FWC 164] Re: Carbridge P/L t/a Easycart Australia
July 28, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal of unfair dismissal application in respect of the decision and amount of compensation awarded – at first instance Deputy President held that the applicant was unfairly dismissed and ordered an amount of compensation in lieu of reinstatement – Croker submitted permission to appeal should be granted as it raised important issues of general application and because the decision is not in the public’s best interests – several grounds were relied on by the appellant, including that the Deputy President did not exercise ‘proper discretion’ – onus was on Croker to establish a valid reason for the dismissal related to Mr Jarvis’ capacity or conduct – at first instance it was submitted by Croker that Mr Jarvis misrepresented himself in attempts to obtain sensitive information in a ‘corrupt and deceptive manner’ – Full Bench held that the Deputy President’s findings made it clear that Croker did not make out its case in relation to this alleged motivation for conduct – while the Deputy President found that Mr Jarvis misrepresented himself as a supervisor, on the evidence before them they were not satisfied this was done with any malicious or corrupt intent – Croker did not direct the Full Bench to any specific errors made by the Deputy President – Full Bench not satisfied of any error and considered the findings of the Deputy President to be open to her on the evidence – not satisfied it was in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Croker Constructions against decision of Gooley DP of 19 April 2016 [[2016] FWC 2377] Re: Jarvis
July 28, 2016
TERMINATION OF EMPLOYMENT – performance – casual employee – ss.383, 394 Fair Work Act 2009 – applicant employed as heavy duty fitter in Darwin – first engaged as a casual employee on 11 August 2015 and became a full-time permanent employee of the company on 9 November 2015 – advised of need for him to be available for periodic work at the Old Pirate Mine, 1600km from Darwin – respondent submitted applicant failed to follow fatigue management requirements by driving long distances without breaks or sufficient breaks – submitted applicant drove entire distance to Darwin in single day – no evidence of disciplinary action or warning – respondent further submitted that applicant agreed to be available at mine, refused and failed to live up to his side of agreement – further submitted that applicant put respondent in difficult position by failing to go as did not have another person to go to site – both parties agreed that on 2 March 2016 applicant was approached with a firm request to go to the Old Pirate Mine site and applicant refused – also agreed that applicant then handed letter of dismissal – Commission considered whether applicant served minimum employment period – whether employed on regular and systemic basis and whether had reasonable expectation of continuing employment – in assessing whether employment on regular and systemic basis, Commission looks for employment to have been on regular and systemic basis, not hours worked – clear pattern or roster of hours may be strong evidence – while term ‘regular’ implies repetitive pattern, does not mean frequent, often, uniform, or constant’ [Yaraka Holdings] – Commission found applicant employed on casual basis but letter of offer anticipated that after successful trial period would be offered permanent position – found at no stage continuous service broken and applicant completed minimum employment period – Commission unable to find that refusal to attend site amounted to valid reason for dismissal – found applicant was dismissed and dismissal was unfair – ordered compensation of $15,162, less taxation, and $1,440 to be paid to his superannuation. Malsen v Titan Plant Hire P/L
July 28, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant claimed he was unfairly dismissed following a heated conversation with his supervisor his absences from work, after which he left the workplace and remained away from work for the balance of the day – respondent alleged applicant voluntarily resigned from his employment – considered resignation given in ‘special circumstances’ [Ngo] – Commission satisfied there were ‘special circumstances’ in existence at the time – respondent waited until after the close of business before sending its letter to applicant at 5:11pm, accepting his resignation – applicant did not contact, or attempt to contact, supervisor or any other person from respondent between his departure from the workplace at about 10:00am and his voicemail message for supervisor at 6:42pm – held respondent allowed a reasonable period of time to lapse before informing applicant it had accepted his resignation – attempt by applicant to withdraw his resignation the next morning was too late – Commission satisfied applicant resigned at his own initiative – applicant not dismissed within the meaning of s.386 of FW Act – application dismissed. Mallinson v Algon Steel P/L
July 28, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as hairdresser on 1 June 2011 by Queen Street Palladeum Trust (Palladeum) – business sold to respondent on 30 June 2015 – applicant commenced working with respondent on 1 July 2015 – dismissed for misconduct regarding ‘rent-a-chair’ arrangements and not paying for use of salon products – respondent raised two jurisdictional objections – it was a small business and dismissal consistent with Small Business Fair Dismissal Code (Code) – minimum employment period not met as applicant a transferring employee notified for purpose of s.384(2)(b) of FW Act in sale agreement – applicant submitted her prior service with Palladeum formed part of service with respondent as notification that the period of service with Palladeum would not be recognised not provided under s.384(2)(b) of FW Act – dismissal inconsistent with Code – Commission found applicant a transferring employee – found business sale agreement did not inform applicant that prior service would not be recognised so applicant had met minimum employment period – termination letter indicated dismissal with immediate effect as a result of respondent’s belief applicant engaged in serious misconduct – two step test [Pinawin] – no evidence of serious misconduct – belief not on reasonable grounds – no valid reason for dismissal – found dismissal harsh, unjust and unreasonable – reinstatement not appropriate – ordered compensation of $4007.70, taxed accordingly. Wheare v Houndstooth P/L t/a The Palladeum Hair
