TERMINATION OF EMPLOYMENT – termination at initiative of employer – extension of time – ss.386, 394 Fair Work Act 2009 – applicant worked for respondent on multiple occasions since August 2012 – applicant alleged he was dismissed because he had not been provided with work since 15 December 2015 – respondent submitted applicant was a casual employee who had not had regular and systematic employment with the company – applicant worked for most weeks between 12 June 2015 to 15 December 2015 – no clear pattern or roster of hours but there was a repetitive pattern of being offered and accepting work of 10 or 15 hours of work – Commission held that applicant was dismissed on employer’s initiative and that dismissal took effect on 15 December 2015 – unfair dismissal application lodged on 21 March 2016 – application not lodged within 21 days of dismissal – Commission can extend time for lodgement if satisfied that there are exceptional circumstances – applicant submitted that respondent’s employment policy was that if he had not performed work for them for a period of three months then his employment would be regarded as terminated – stated that the reason for delay in making unfair dismissal application was that termination of employment would be deemed to occur after three months of inactivity – this was denied by the respondent – Commission accepted applicant’s misapprehension about the policy – applicant filed within one week of the date he presumed he had been terminated – Commission found this to form an acceptable reason for the delay – held that there were exceptional circumstances to allow further period for lodgement of unfair dismissal application – extension of time granted until 21 March 2016. Garcia v Toll Personnel P/L t/a Toll People
July 15, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – application filed 8 days outside statutory time limit – respondent opposed extension of time – applicant employed as full-time labourer – respondent asserted employment status had changed from ongoing to casual – applicant disputed change – parties disputed termination date – Commission accepted applicant dismissed on 23 March 2016 – applicant submitted delay due to medical condition – general practitioner certified that applicant not fit to complete legal documents between date of dismissal and 19 April 2016 – Commission found applicant also not fit between 19 and 21 April 2016 – applicant provided with hospital referral – Commission accepted reasons for delay – no undue prejudice to employer if extension of time granted – limited evidence suggests there may be merit to the application – may be unfair to applicant in comparison to other applicants similarly medically incapacitated if extension of time not granted – extension of time granted. Bakhshi v F & J Metal Fabrications (Aust) P/L t/a F & J Metal Fabrications (Aust) P/L
July 15, 2016
ANTI-BULLYING – constitutionally-covered business – s.789FC Fair Work Act 2009 – respondent raised jurisdictional objection – Trade & Investment Queensland (TIQ) submitted workplace not a constitutionally-covered business and therefore application not within coverage of anti-bullying provisions – Queensland Rail considered – whether an authority, established under an act of Parliament of the Queensland Government is a trading corporation – respondent submitted there are marked differences between organisations’ activities and obligations – lead to conclusion TIQ not a trading corporation – applicant contended despite TIQ being declared not a national system employer pursuant to s.145D of Industrial Relations Regulation 2011, the only test to determine was whether TIQ was a trading corporation under para. 50(xx) of the Australian Constitution – Commission determined respondent not a trading corporation and therefore not a constitutionally-covered business within meaning under FW Act – activities undertaken by TIQ pursuant to statutory responsibilities vastly different to statutory responsibilities of Queensland Rail – no jurisdiction to determine application – application dismissed. K.L. v Trade & Investment Queensland
July 15, 2016
CASE PROCEDURES – representation – ss.596, 739 Fair Work Act 2009 – Commission refused an application by Monash University for permission to be represented by a lawyer [[2016] FWC 4437] – Monash University made a further submission seeking that the Commission reverse the earlier decision and grant it permission – grounds relied on included that the material and witness evidence sought to be relied upon by Monash University and this material was extensive and that matter could be dealt with more efficiently with representation – NTEU opposed the application – highly unusual request – large employer with a relatively large human resource department – Monash University not a stranger to matters before the Commission – a party to proceedings in the Commission should not assume that permission will be granted – Commission not convinced the matter would be dealt with more efficiently given the complexity of the matter – not convinced it would be unfair not to allow Monash University to be represented taking into account fairness between the parties – held that Monash University was attempting to portray s.596(2)(a) and (c) of the FW Act as providing a presumption that permission will be granted or that there are relatively simple ways of getting around the presumption that clearly exists – permission refused. National Tertiary Education Industry Union v Monash University
July 15, 2016
CASE PROCEDURES – representation – ss.596, 739 Fair Work Act 2009 – application to deal with a dispute in accordance with dispute settlement procedure in Monash University Enterprise Agreement (Academic and Professional Staff) 2014 – directions issued to parties to file submissions regarding desire to be represented and any objections regarding same – respondent sought to be represented by a lawyer or paid agent – applicant opposed – respondent argued dispute of complex nature and significant uncertainty – representation would enable matter to be dealt with more efficiently – applicant submitted scope of dispute clear and not complex – respondent has adequate internal resources to deal with matter – Commission of the view that dispute before it not complex – materials filed by applicant contained no witnesses, nor voluminous material – matter not sufficiently complex to enliven s.596(2)(a) of FW Act – ss.596(2)(b) and (c) not pursued – respondent has opportunity to brief whomever it chooses on material it proposes to file prior to hearing – request refused. National Tertiary Education Industry Union v Monash University
July 15, 2016
TERMINATION OF EMPLOYMENT – incapacity – s.394 Fair Work Act 2009 – applicant was a qualified plumber and worked as a machine equipment operator in the tank house – experienced back pain at work in 2011 – Neurosurgeon performed a successful L4/5 disc fusion surgery in October 2013 – applicant’s evidence was that he has been pain-free and symptom-free since January 2014 – dismissed after respondent formed the view he presented an unacceptably high risk of re-injury in performance of normal duties, and no reasonable adjustment could manage risk – applicant asserted he had capacity to perform inherent requirements of role of mechanical equipment operator; no valid reason for dismissal on the grounds that he could not perform inherent requirements of his role without accommodations; and no proper assessment by the respondent of the medical evidence or inherent requirements of the role – applicant further asserted accommodations suggested were not only reasonable but also reflect what actually occurs on the job – respondent submitted it was reasonable for it to rely on the medical assessments, and reports establish that the applicant could not safely perform the inherent requirements of the role without accommodations being made, due to the unacceptable risk of re-injury – Boag considered – Commission determined respondent’s decision that applicant could not perform inherent requirements of his substantive role due to the risk of aggravation of his lower back is both defensible and justifiable on an objective basis of the reports available to it – dismissal not harsh, unjust or unreasonable – application dismissed. Dennien v Copper Refineries P/L t/a CRL – Copper Refineries Townsville
July 14, 2016
Twenty-one labour dispute cases will be aired before Fair Work commissioners today. The full list is: Hobart Food Equipment (Dodd), Stefan Hair Fashions Pty Ltd (Osborne), BHP Coal Pty Limited (Crawford), Hills Holdings Ltd (Guest), Yumba-Meta Housing Assoc. Ltd (Middleton-Gala), Norgrove Training Pty Ltd (Schulz), GM Hotels Management Pty Ltd (Coppin), Linfox Australia Pty Ltd (Gough), Primary Health Care Limited (Baycan), BTI Pty Ltd (Kenny), BMS Retail Group Pty Ltd (Rigby), Aldi Pty Ltd (Cant), Lin Jing and Ying Li ATF the Classic Family Trust (Chitarra), Colliers International (Thompson), Promac Pty Ltd (Martin), AGL Loy Yang Pty Ltd (Wright), Cathay Pacific Airways Limited (O’Shaughnessy), Hog’s Breath Cafe (Reedy) and Bishop & Roach & Bruce Consulting Pty Ltd and Another (Hughes).
July 13, 2016
Twenty-four labour dispute cases will be reviewed today by the Fair Work Commission. The full list is: SCP Midwest Pty Ltd (Crane), Reed Global Pty Ltd (Cross), Atlas Group Pty Ltd (Newbey), Master Home Improvement Australia Pty Ltd (Baker), Whitech Pty Ltd (Subsidiary of Fujifilm Australia) (Baychkov), Sort Recycling Limited (Hatton), Telstra Corporation Limited (Kenway), Insight Security Services Pty Ltd (Stark), Metroll Manufacturing Pty Ltd (Spraggon), Qube Ports Pty Ltd (Donovan), Emergency Services Telecommunications Authority (Truong), Deliveroo Australia Pty Ltd (Mitchell), Seller Solutions Pty Ltd (Chamberlin), Reed Global Pty Ltd (Cross), Mount Buller Mount Stirling Resort Management Board (Markwick), Sorty Recycling Limited (Hatton), AECOM Australia Pty Ltd (Brown), Jacaranda Housing (Seidel), Careers Australia Group Limited (Boon), Coles Group Supply Chain Pty Ltd (Clayton), Hutt Street Centre (Sorrell), Kwasi Studios (Demin), Calvary Health Care Adelaide Limited (Hansen), M S Lowry Pty Ltd (White).
