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
July 7, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked as an Administrative Assistant – a contract for a major client which provided 80% of the work undertaken was lost in January 2016 – respondent advised employees of the contract loss on 29 January 2016 – applicant was absent that day and was advised on 1 February 2016 – applicant informed that the loss of contract was likely to make her role redundant but the full extent of the contract loss was not clear at that time – exact mature of information given to applicant in meeting disputed – respondent advised applicant on 2 February 2016 that her work tasks would no longer be required from 29 February 2016 due to the loss of the contract and a broader national restructure – applicant invited to apply to be made redundant earlier if she should wish to do so – on 4 February 2016 applicant confirmed via email she would accept the redundancy offer and finish work on 5 February 2016 – applicant argued her role covered functions not limited to the contract loss and that her position was still required – asserted the consultation process did not meet requirements set out in the Clerks Private Sector Award 2010 – applicant alleged that she was not able to participate or nominate a preference for an alternative role – only redeployment option offered to her was a car parking attendant which was inconsistent with her skill and experience – Commission satisfied the requirements of s.389(1)(a) of FW Act had been met – considerations in s.389 do not extend to the redundancy selection process [Harvey v UES Int’l] – while it may have been open to the respondent to select someone other than the applicant for redundancy, this did not form a relevant factor – Commission satisfied that respondent had taken appropriate steps to explore reasonable redeployment options – held requirements of s.389(2) had been met – dismissal consistent with definition of genuine redundancy – termination of employment cannot be regarded as unfair – application dismissed. Reid v Asciano Executive Services P/L t/a Patrick
July 7, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.384, 394 Fair Work Act 2009 – application for relief from unfair dismissal – jurisdictional objection – applicant commenced employment with Earth Kids Childcare P/L (Earth Care) on 5 January 2015 – transfer of employment when respondent purchased Earth Care in January 2016 – applicant dismissed in March 2016 – respondent submitted minimum employment period not satisfied because letter of offer provided to and signed by the respondent on 6 January 2016 stated that previous service with Earth Care would only be recognised for Leave Accruals but not for the purpose of calculating period of employment – applicant submitted the respondent did not unambiguously inform him in writing that his previous service with Earth Kids would not be recognised for calculating employment period and hence he had met the minimum employment period – Commission held minimum employment period satisfied because the proposed commencement date with the respondent was unclear, the applicant did not serve a probationary period with the respondent, a letter confirming the details of the applicant’s leave accruals on 23 February 2016 did not mention that the respondent would not recognise previous service, and the respondent provided no evidence the applicant was terminated from Earth Kids in January 2016 – held respondent could not transfer employment for some purposes and/or entitlements and not for others – jurisdictional objection dismissed – application to proceed. Quinlan v G8 Education Limited
July 7, 2016
GENERAL PROTECTIONS – workplace rights – s.372 Fair Work Act 2009 – general protections application not involving dismissal – applicant sought payment for overtime he had accrued during his employment – applicant made workers compensation claim for period he had been allegedly incapacitated for work as a result of stress suffered by him arising from the conduct of respondent – current proceedings cannot resolve issues – Commission made recommendation that applicant should pursue any available remedy in relation to workers compensation or underpayment of wages elsewhere. Jackson v Thermal Mechanical Suppliers P/L t/a MS/Rothwells
July 7, 2016
MODERN AWARDS – 4 yearly review – new award – s.156 Fair Work Act 2009 – Traffic Management Association of Australia filed application to make new modern award Traffic Management Controllers Award to cover employees performing traffic management duties – CFMEU, AWU, United Voice, MBA and HIA opposed making of new award – Commission considered whether making of new award to cover employees performing traffic management duties should be dealt with and determined as a threshold issue, or whether the making of new award and terms should be dealt with and determined at the same time – Commission determined should be dealt with in two stages – first, Commission found it should determine whether new award should be made and second, if Commission decided new award should be made, it should then consider the terms and conditions – found this course of action the most efficient way to proceed due to the requirement on parties to file submissions and evidence in relation to terms and conditions and requirement of Commission to hear and determine matter as a whole – matter referred to Gostencnik DP for conciliation – conciliation to commence dealing with threshold issue of whether new award should be made. Traffic Management Association of Australia
July 7, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a team member dismissed for serious breach of final written warning concerning absenteeism – took personal/carer’s leave to move house – Commission found valid reason for dismissal based on conduct – applicant’s failure to attend for rostered shift without proper reason breached lawful and reasonable directions in final written warning and provisions of agreement – afforded procedural fairness – respondent justified in strictly enforcing personal/carer’s leave requirements due to high absenteeism in workforce and applicant’s appalling attendance record – treated generously as paid notice and long service entitlements where there was arguably serious and wilful misconduct justifying summary dismissal – mitigating factors did not make dismissal disproportionate – held dismissal not harsh, unjust or unreasonable – not unfair – application dismissed. Portelli v Polar Fresh Cold Chain Services P/L t/a Polar Fresh
July 7, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision at first instance that terminations were cases of genuine redundancy – appellants submitted that Commission erred in finding the dismissals were genuine redundancies and had not properly applied s.389 of the FW Act in relation to redeployment – Full Bench found no error in the Commission’s conclusion that the dismissals were genuine redundancies – also found no error in the Commission’s findings on the issue of redeployment – Commission’s findings in the first instance were responsive to the key submissions put by the applicants – no error on the part of the Commission – permission to appeal refused. Appeal by Borg and Ors against decision and order of Cambridge C of 1 April 2016 [[2016] FWC 2039], [PR578585] Re: Patrick Stevedores Holdings P/L
July 7, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision for unfair dismissal remedy – appellant asserted that Commission did not give him an opportunity to provide evidence and be heard in relation to application – permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so – the public interest test is a ‘stringent one’ [Coal & Allied Mining Services P/L] – Commission at first instance found that in principle agreement had been reached and that should end the matter – further found that application had no reasonable prospects of success – submissions of appellant did not articulate any errors in Commission’s findings or approach – no arguable case that decision was in error – Full Bench of the opinion that original decision did not manifest an injustice and no possible bases for finding that the public interest is enlivened – permission to appeal refused. Appeal by Ayaz against decision of Sams DP of 15 October 2015 [[2015] FWC 7098] Re: Transdev NSW South P/L & Veolia Transport (NSW) P/L
