TERMINATION OF EMPLOYMENT – genuine redundancy – Small Business Fair Dismissal Code – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant worked at respondent’s warehouse in Port Adelaide – after finishing work on Friday 29 January 2016 he received an email advising of his redundancy on that day – applicant was to be paid one weeks’ pay to ‘… assist [him] in transitioning to another job’ – whether genuine redundancy – applicant’s role still required at alternate site – applicant not offered alternate role due to performance concerns – respondent failed to consult – Commission found no genuine redundancy – whether respondent complied with the provisions of Small Business Fair Dismissal Code (Code) – difficult to determine whether Code applied due to respondent’s failure to provide evidence of staffing – applicant notified of termination by email after leaving workplace – applicant not warned about performance or provided an opportunity to address concerns – in case it applies, Commission determined Code not complied with – whether dismissal harsh, unjust or unreasonable – dismissal procedure callous and insensitive – consideration that respondent a family business with no HR expertise given some weight but does not excuse absence of any semblance of proper procedure – payment of one weeks’ notice does not abrogate responsibility to deal fairly with applicant – found dismissal unfair – compensation of $7,846.45 ordered. Gehlken v Office Furniture Direct P/L
July 12, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as Aviation Screening Officer (ASO) – dismissed due to misconduct – applicant alleged to have removed manicure kit from surrendered items drawer at screening point and put it into her handbag – applicant did not dispute she took the manicure kit, though contended she did so with the permission of the acting Duty Shift Supervisor (DSS) at the time – respondent submitted applicant argument failed for three reasons – firstly, acting DSS denied permitting applicant to take manicure kit; secondly acting DSS was not on shift at the time; and thirdly, even if acting DSS did make the comment, it could not be interpreted as an instruction or the right for applicant to take the manicure kit – Commission found that CCTV footage did not support evidence applicant placed manicure kit in her bag in front of acting DSS and in view of the other ASO’s around at the time – CCTV indicates applicant looked up prior to placing the manicure kit in her handbag and acting DSS was between 1.5 and 2 metres away from her and none of the other staff at the screening point were paying any attention to what the applicant was doing – Commission found valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Palm v Sydney Night Patrol & Inquiry Co. P/L t/a SNP Security
July 12, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute under the AMWU, CEPU and Simplot Australia P/L National Collective Agreement 2014-2017 (the 2014 Agreement) – Commission considered whether 12-hour shift workers at Kelso site entitled to meal allowance from mid-2006 to 2012 – statutory limits meant the claim could only go back to 2008 – Commission held 2014 Agreement not relevant – potential jurisdictional issues raised – Commission considered dispute turned on interpretation of the AMWU and Simplot Australia P/L National Collective Agreement 2011-2014 (the 2011 Agreement) and the Simplot Australia P/L (National Framework) Certified Agreement 2008 (the 2008 Agreement) – applicant submitted shift workers not entitled to meal allowance because the relevant agreements provided a loaded rostered rate intended to cover monetary entitlements for 12 hour shift workers – further submitted no overtime actually worked by employees and history of the relevant Award and negotiations for the Kelso 12 hour shift arrangement supported this interpretation – AMWU submitted meal allowance included in Kelso 12 hour shift rostered rate or that it is excluded from the Kelso 12 hour agreement, hence employees entitled to meal allowance – Commission applied the principles of Golden Cockerel because of the inadequate drafting in 2008 and 2011 agreements and uncertainty created by the intersection of agreements and incorporated Award – Commission held employees did not work the one and a half hours overtime required to be entitled to meal allowance because 12 hour shifts were ordinary hours of work – further held that even if this consideration was incorrect the evidence surrounding the negotiations for Kelso 12 hour shift arrangements established loaded rate intended to compensate employees for paid meal allowance entitlement – claim for payment of meal allowance dismissed. Simplot Australia P/L v ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU)
July 12, 2016
ENTERPRISE BARGAINING – protected action ballot – ss.437, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision at first instance to grant protected action ballot order – grounds of appeal included that respondent advanced substantive claims for non-permitted matters – steps which respondent had taken in relation to negotiations were for sole purpose of securing new enterprise agreement with appellant – respondent was genuinely trying to reach agreement – decision not attended by sufficient doubt such as to warrant appellate review – did not manifest injustice – did not raise any question of general application concerning interpretation or application of s.443(1) of FW Act that would justify granting permission in public interest or on discretionary grounds – permission to appeal refused. Appeal by MMA Offshore Vessel Operations P/L against decision of Watson VP on 17 May 2016 [[2016] FWC 2481] Re: The Maritime Union of Australia
July 12, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application relief from unfair dismissal – applicant’s employment with respondent terminated – respondent claimed applicant dismissed due to declining relief work requirements – respondent argued that applicant had a poor performance record – applicant claimed his position was advertised after his dismissal, therefore the position was not redundant – Commission considered genuine redundancy – held that no new employees were hired and position was redundant – s.389(1)(a) of FW Act satisfied – agreement stated respondent must provide in writing matters likely to affect employees – respondent did not provide writing to applicant – respondent failed to consult terms of agreement – s.389(1)(b) not satisfied – not genuine redundancy – whether dismissal harsh, unjust or unreasonable – dismissal not related to conduct so validity, notification, opportunity are neutral factors [UES (Int’l) P/L] – applicant had not realistic opportunity for a support person indicated unfairness – small size of respondent company could favourably mitigate relief – respondent’s lack of exploration of alternative work for applicant indicates unfairness – respondent’s failure to consult agreement indicates harsh, unjust, or unreasonable termination – dismissal unfair – compensation of $2,865.11 less tax ordered. Bayley v Temples (WA) P/L t/a Temples WA
July 12, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – sessional staff employed by the respondent – lodged applications alleging respondent dismissed them – applicant alleged employees dismissed to prevent them exercising a right under an enterprise agreement – providing that sessional employees could apply for conversion of a position if they met conditions – applicant alleged employees were not offered work to prevent them exercising this right – respondent denied it dismissed employees – respondent alleged the application for two employees were not lodged within 21 days – one employee was not dismissed until 15 March 2016 – applicant did not press application for extension of time – applicant given permission at hearing to be legally represented for matter to be dealt with efficiently given complexity of the matter – respondent did not oppose this – dispute over whether employees were dismissed was not for Commission to decide – applicant conceded an extension of time required – Commission can exercise discretion to extend time in exceptional circumstances [Nulty] – applicant submitted reasons for delay were employees not knowing they had been dismissed or reason for dismissal – applicant required to conduct investigation and obtain legal advice prior to making the application – Commission accepted difficult for casual employee to know if dismissed – reason for delay – able to rely on representative error to explain part delay – in this case cannot rely on representative error – lack of knowledge of alleged dismissal is a reasonable explanation [Gao] – delay was part caused by application to agree to an investigation – applicant not unaware of 21 day time limit for general protections claim – Commission held it was unreasonable for applicant to investigate circumstances – delay caused because seeking legal advice is unreasonable – applicant could have filed applications before seeking legal advice – extension of time granted. National Tertiary Education Industry Union-Victorian Division v Swinburne University of Technology
July 12, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – s.394 Fair Work Act 2009 – application for relief from unfair dismissal remedy – whether two applicants were employed for the minimum employment period – applicants alleged they both commenced employment with business before it was sold in November 2015 – respondent alleged applicants commenced with new employer on 21 January 2016 – applicants were directors of new company and ceased to be directors 5 May 2016 – respondent alleged previous owner of business was sole trader – whether previous owner was a national system employer – whether applicants were employees – whether service with previous employer counted as continuous service with current employer – for directors to be employees of Peloton there must of been an employment agreement – Commission not satisfied there was separate employment agreement with applicants – not satisfied work performed under contract of employment – not satisfied applicants commenced employment prior to January 2016 – employer was small business – applicants did not serve minimum employment period – applications dismissed. Te Raki and Anor v Peloton Sportz P/L t/a Carine and Cottesloe Cycles
July 11, 2016
Twenty-seven applications dealing with labour disputes, unfair dismissal and award issues will be heard by the Fair Work Commission today. The full list is: D&A Mitrevski Pty Ltd (McDonald), Clata Kitchens Home (Lai), Raffles College Pty Ltd (Abad, Coffey, Koegler, Little), Leica Microsystems Pty Ltd (Watters), Inka Surgical Pty Ltd (Antonucci), Sydney Trains (Chand), Australian Catholic University Limited & Ashford-Rowe (Bavaro), Bluetree Solution Pty Ltd (Kim), TNT Australia Pty Ltd (Pavlov), Simmiller Catering Pty Ltd (Anable), Anglicare Victoria (Melone), Citywide Service Solutions (Stone), Toll Personnel Pty Limited & Toll Jalco (Williams), Nissan Casting Australia Pty Ltd (Schmidt), State Orchestra of Victoria (Woods), Pacific Paradise Bowls Club Inc (Hollingworth), Suncorp Staff Pty Ltd (Janssen), The GEO Group Australia Pty Ltd (Seuseu), Place Administration Pty Ltd (Carynny), Broadspectrum Pty Ltd (Johnson), Limestone Coast Health Unit Trust (Paltridge), Taylor Davies Pty Ltd (Dines), Hudson Global Resources (Aust) Pty Limited & Tomich (Erhardt), Sassellas Bar & Tavern (Quinn).
