TERMINATION OF EMPLOYMENT – identity of employer – labour hire – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected on basis that it did not employ applicant, he was employed by a labour hire company Reddy’s General Services (RGS) – whether applicant an employee of respondent – applicant signed a contract with RGS – respondent contracted RGS to provide labour – RGS sent applicant to perform work at Nissan Casting Plant Dandenong, but he could be relocated to other sites – RGS uniform was too small for the applicant so he wore his own clothes on site – employees of the labour hire companies wore different uniforms that were visually distinguishable from employees of respondent – clothing worn by applicant similar to RGS uniform – applicant received payslips from RGS – respondent supervisors directed applicant’s work – RGS texted applicant that respondent did not require him to attend work again – applicant lodged unfair dismissal application – Commission found the signed employment contract was evidence applicant was employed by RGS – RGS’ lack of contact was not unusual for labour hire agreements – respondent supervisor directing applicant’s work was not unusual – Commission not satisfied applicant was employed by respondent – application dismissed. Cresp v Nissan Casting Plant (Australia) P/L
June 29, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer- resignation – ss.385, 386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as truck driver – respondent sought to hold a discussion with applicant about an accident that had occurred in the course of the applicant undertaking his delivery duties on a prior date – respondent contended that when he attempted to speak to the applicant, the applicant became abusive and argumentative – at that juncture, the respondent contended the applicant told him to ‘shove your job I won’t be back’ – applicant claimed respondent terminated his employment – did not present for work for his next shift – gave no reason for absence on a rostered working day – failed to respond to respondent’s frequent and varied efforts to contact him – Commission found there was no dismissal at the initiative of the employer – requirement under s.385(a) not made out – application dismissed. Taylor v AGAS National
June 29, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged after 21 day period – dismissal took effect on 26 April 2016 – Commission can exercise discretion to extend time in exceptional circumstances [Nulty] – applicant tried to file her application online but had difficulties – posted application by express post, from post office, on 16 May 2016 – application addressed to Fair Work Ombudsman (FWO) – delivered to FWO at 5.40pm on 17 May 2016 – forwarded to Commission on 18 May 2016 – Commission held it was not unusual for employees to confuse the FWO and the Commission – applicant overseas from 5 to 10 May 2016 – received termination letter on 5 May 2016 – respondent submitted there was sufficient time before applicant went on holidays and after she returned to lodge her application – not clear that even if the applicant sent her application to the correct address that it would have arrived in time – Commission found applicant had a reasonable explanation for the delay – satisfied it was not unreasonable for her to rely on Australia Post delivery guarantee – time for lodging application extended to 18 May 2016 – application referred to conciliation. Mayne v All Earth Group P/L
June 29, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – application for an unfair dismissal remedy dismissed [[2016] FWC 1029] – respondent made application for costs – alleged that applicant’s unreasonable refusal to accept that he had not been dismissed caused it to incur costs – applicant appealed decision at first instance – Full Bench refused permission to appeal [[2016] FWCFB 2642] – respondent submitted applicant made no genuine attempt to engage in settlement negotiations and sought the payment of monies in excess of the Commission’s jurisdiction – mere fact that applicant unsuccessful in establishing he was dismissed does not mean his non-acceptance of the offer of settlement was unreasonable [Roy Morgan Research Ltd v Baker] – often difficult to determine when a casual employee’s employment is in fact terminated – applicant given one day to respond to settlement offer – Commission held decision to not settle his claim was not unreasonable given the very limited period of time given – found non-acceptance of the offer of settlement not unreasonable – necessary prerequisites for making a cost order have not been satisfied – application for costs dismissed. Kim v ORC International P/L
June 29, 2016
ENTERPRISE AGREEMENTS – employee organisation coverage – application to be heard – s.185 Fair Work Act 2009 – application for approval of a single-enterprise agreement made by DOF Management Australia (DOF) – Maritime Union of Australia (MUA) made application to be heard as a full participant in the matter – DOF objected to MUA being heard in any capacity – Commission noted four avenues for employee organisation to establish standing in relation to agreement approval application – as a bargaining representative; as a matter of procedural fairness if right, interest or legitimate expectation adversely affected; if invited by the Commission; and on appeal if grievance beyond that of an ordinary member of public – Commission found default position of the MUA as bargaining representative ceased when DOF employees appointed bargaining representatives – held no right to be heard as a bargaining representative – Commission found that as proposed agreement specifically referred to the MUA and imposed on it rights and/or obligations to perform in specified ways functions or tasks which would not otherwise exist, the MUA had a right, interest or legitimate expectation that might be potentially affected by decision to approve agreement – as the MUA not a participant in agreement negotiations, ought to be given opportunity to be heard – held MUA had right to be heard as a matter of procedural fairness – Commission has broad power to inform itself under s.590 of FW Act – found that by permitting MUA to make submissions and lead evidence, Commission can properly inform itself in relation to concerns raised by MUA regarding proposed agreement – standing granted to MUA to appear and be heard with respect to the Application including opportunity to scrutinise issues of concern and cross examine witnesses. DOF Management Australia P/L
June 29, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – performance – ss.394, 396 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed on basis of conduct and performance issues – applicant alleged dismissal was due to his injuries – applicant failed to provide any material in opposition to objection raised by respondent that dismissal was consistent with Small Business Fair Dismissal Code – Commission found dismissal consistent with the Code – held dismissal of the applicant was for a valid reason related to his capacity or conduct – dismissal was not unfair – application dismissed. Atlagic v Charlie and Son Electrical Contracting P/L
June 29, 2016
GENERAL PROTECTIONS – costs – ss.372, 375B, 611 Fair Work Act 2009 – applicant stood down by the respondent and resigned on 9 November 2015 – made application under s.372 of FW Act on 13 November 2015 – alleged that respondent did not grant him bereavement leave; harassed, coerced and bullied him when he took carers leave and failed to pay him various entitlements – respondent submitted application was vexatious and instituted without reasonable cause – application for collateral purpose to obtain a review of the payment and calculation of his wages and other entitlements – respondent sent a settlement offer on 3 December 2015 – matter proceeded to a conciliation conference on 4 December 2015 where applicant amended his application to a s.365 application alleging he was constructively dismissed – s.372 application constructively dismissed – respondent agreed to prepare a reconciliation of wages and entitlements at the conference which was received by the applicant on 18 December 2015 – applicant then discontinued his application by email the same day – respondent sought costs on 18 December 2015 under ss.611 and 375B of FW Act – relied on previous submissions about the s.372 application and additionally submitted the continuation of the proceeding caused costs to be incurred due to an unreasonable act or omission – Commission held costs application under s.375B invalid because the original application made under s.372 – held nothing to suggest application’s intention was to annoy or embarrass the respondent and application was not untenable or manifestly groundless – held application not bought for a collateral purpose but to investigate disputed leave entitlements and claims of bullying and harassment as well as a review of entitlements – held not reasonably apparent to the applicant at the time the application was made that there were no reasonable prospects of success – held respondent did not need to attend the conciliation conference if they believed the application was groundless – costs application dismissed. Adams v J A Fillmore and Co
June 29, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment – s.394 Fair Work Act 2009 – applicant had previously been granted an extension of time in an earlier decision of the Commission [[2016] FWC 1482] – applicant alleged that he had been unfairly dismissed – applicant had developed a significant mental illness and had been absent from his workplace for some time – respondent submitted that applicant abandoned his employment as he was not contactable following the completion of his most recent medical certificate – Commission satisfied that the respondent had a valid reason for the applicant’s termination – when it made the decision to dismiss the applicant the respondent had had no contact with him for over two months – applicant not unfairly dismissed within the meaning of FW Act – application dismissed. Kiernan v OM Holdings Ltd t/a OM (Manganese) Ltd
