ANTI-BULLYING – bullied at work – s.789FC Fair Work Act 2009 – application for an order to stop bullying directed to employer and executive office of the employer – applicant raised a number of complaints including unreasonable work demands, failure to deliver a promised pay advance and contact from the employer at his home – the applicant submitted that the bullying was repeated and at risk of continuing – employer submitted there was no evidence of bullying behaviour and that the actions of the employer and members of the Board constituted reasonable management action – each of the instances of alleged bullying were considered by the Commission – on any objective analysis of the evidence there could be no finding of unreasonable behaviour towards the applicant – therefore the applicant could not be considered a worker who was bullied at work – application dismissed. Samuel v Inner South-West Community Development Organisation Ltd t/a ISWCDO and Anor
July 7, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – company vehicle allocated to applicant involved in single vehicle accident – applicant stood down on full pay pending receipt of police report regarding incident – respondent subsequently contacted applicant and advised it was undertaking own investigation rather than await finalisation of police investigation – applicant terminated with notice following investigation – applicant asserted the keys to the vehicle assigned to him were either lost by him or stolen from him and the vehicle had been taken by someone unknown to him and involved in the crash – applicant asserted termination unjust because he did not damage vehicle, unreasonable because respondent had wrongfully assumed losing keys to vehicle was reason for vehicle being damaged, unfair and harsh as it was disproportionate to offence – respondent submitted dismissal was fair due to applicants reckless lack of care for its property, breaching its policies and creating risk to his safety and that of third parties – respondent asserted that applicant was aware of all allegations against him and was give opportunities to provide his own account of events – Smith and Others considered regarding circumstantial evidence – found material points to applicant being driver at time of accident – Commission satisfied dismissal was defensible or justifiable on an objective analysis of the relevant facts – valid reason for dismissal – found dismissal not harsh, unjust or unreasonable – application dismissed. Chisholm v Coates Hire Operations P/L t/a Coates Hire
July 7, 2016
ENTERPRISE BARGAINING – protected action ballot – ss.172, 433, 437 Fair Work Act 2009 – application for a protected action ballot order (PABO) – Laing O’Rourke Australia Construction P/L opposed the PABO on the basis that among other things, the ‘Employment Security Clause’ (ESC) was not a permitted matter pursuant to s.172 FW Act and applicant had not been genuinely seeking to reach agreement as required by s.443 – Commission satisfied applicant was genuinely trying to reach an agreement and that ESC was a permitted matter pursuant to s.172 – Commission further satisfied PABO submitted by applicant complied with requirements of s.443 – protected action ballot order made. Construction, Forestry, Mining and Energy Union
July 7, 2016
TERMINATION OF EMPLOYMENT – high income threshold – ss.382, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed under common law contract – annual salary of $160,000 plus 9.5% superannuation – exceeded high income threshold – applicant submitted employment regulated by Hydrocarbons Industry (Upstream) Award 2010 – applicant further submitted he was classified as an operations and processing employee – respondent submitted no classification covered applicant’s position in modern award – whether applicant’s employment covered by modern award – Commission considered it insufficient that some of applicant’s incidental tasks were within classification structure – held applicant’s position could not be described as an operation or processing employee – not necessary to consider classification level – held modern award did not apply to applicant’s position – applicant not protected from unfair dismissal – application dismissed. Simon v ENSCO Australia P/L t/a ESV
July 7, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant submitted that as he was not provided with anything in writing to confirm his dismissal his application should be considered to have been lodged within 21 days – applicant relied upon reason that he was required to assist with his parents’ and his uncle’s affairs – applicant relied, in part, on representative error to explain why his application was not lodged in time as his solicitor advised him to notify the Commission of a dispute rather than make a general protections application – Commission found applicant had not provided a reasonable explanation for the whole of the delay – having considered factors in s.366(2) of FW Act and drawing on Nulty – Commission found no exceptional circumstances warranting an extension of time – application dismissed. Jones v Motorola Solutions Australia P/L
July 7, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged outside of statutory requirements – applicant stated dismissal took effect 1 March 2016 – applicant contacted the Commission on the same day to obtain unfair dismissal form – applicant contacted Employee Assist to receive representation – Employee Assist advised applicant that it would ‘make [his] application to the Fair Work Commission’ – applicant contacted Employee Assist on several occasions inquiring about application – Employee Assist failed to return calls – applicant contacted Commission to find out status of application – applicant advised application lodged on 12 May 2016 and out of time – reasonable explanation for delay in lodging application and applicant claim is not unanswerable – extension of time granted – matter referred to conciliation. Younger v SRCM P/L
July 7, 2016
TERMINATION OF EMPLOYMENT – remedy – compensation – ss.392, 394 Fair Work Act 2009 – in previous decision Commission found applicant’s dismissal unfair [[2016] FWC 925] – respondent did not file evidence or material regarding remedy but did request to cross-examine applicant – Commission applied calculation of compensation set out in Sprigg – employment period and productive and devoted service considered – no performance concerns – on evidence applicant would have been employed for at least another 12 months but for dismissal – while not a permanent employee, applicant had reasonable expectation of continuing employment – steps taken by applicant to mitigate loss considered – obtained alternative employment – deduction made due to earnings since dismissal – applicant awarded maximum compensation under FW Act – $24,050 compensation ordered. Kool v Adecco Industrial P/L t/a Adecco
July 7, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – application by respondent for costs from defending the unfair dismissal application – application dismissed as Commission found applicant not dismissed in accordance with s.386 of FW Act [[2016] FWC 3078] – respondent submitted applicant made his application vexatiously or without reasonable cause, that it should have been reasonably apparent to the applicant that his application had no reasonable prospects of success, and that there was an unreasonable act or omission of the applicant in connection with the conduct or continuation of the matter – Commission satisfied the applicant genuinely believed, albeit mistakenly, that he was forced to resign and that he had a genuine case for unfair dismissal – found there was no intent to embarrass or harass respondent and that the applicant had no intention to progress his application for any reason other than to seek a remedy for his perceived unfair dismissal – Commission held the application was not made without reasonable cause – did not find that the application had no reasonable prospects of success or that it was reasonable for the applicant to believe that he had no reasonable prospects of success – Commission found no unreasonable act or omission on behalf of the applicant – found no basis in either s.611 or s.400A of FW Act for an award of costs in favour of respondent – application for costs dismissed. Ampuero v H+Co Menswear t/a H’s Menswear
