TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant resigned – whether applicant’s employment had been terminated by respondent by constructive dismissal – applicant described a number of incidents as bullying and harassment – on 11 December applicant found document on Director’s desk which contained fictional dialogue of possible future events, all focussed on him – applicant submitted that on 17 December that he was ‘too angry to carry on working under those conditions’ and told other Director he was leaving – applicant did not lodge anti-bullying application, did not seek legal advice and did not speak to Directors before resigning – Commission found applicant had other options – held applicant resigned – not constructive dismissal – application dismissed. Diefenbach v Plastic Printing P/L t/a Ink Signs
June 29, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the EnergyAustralia Yallourn Enterprise Agreement 2013 – dispute regarding role of Unit/Production Controllers (UCs) and Operations Team Leaders (OTLs) in performance of role of Outage Coordinator (OC) with respect to clauses 30 and 32.7 of agreement – clauses regarded the roles and responsibilities as well as the provisions for appointment of OCs at Yallourn Power Station – duties and responsibilities of UCs considered – CFMEU defined the issue as being whether the employer is entitled to appoint OTLs in the role of OC for minor outages without the consent or agreement of affected UCs – EnergyAustralia (EA) objected to this and submitted that as there was no basis to distinguish between ‘minor outages’ and other outages in relation to the application of the clauses, the issue has broader application than suggested by CFMEU – further submitted the agreement required a coordinator with appropriate skills in relation to all outages, an OTL will not always be appointed to the exclusion of UCs and that there is nothing in the agreement precluding EA from appointing an OLT to perform the role – Golden Cockerel applied – Commission determined the better interpretation as to the operation of the clauses is that advanced by EA, as there was nothing in evidence to show that position of OC is exclusively the role of UCs – clause 32.7 operates to allow or permit UCs to be appointed as an OC, rather than mandate it – consequently, Commission held that EA was entitled under the agreement to appoint OTLs with appropriate skills in the role of OC without the consent or agreement of UCs – application dismissed. Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn P/L
June 29, 2016
TERMINATION OF EMPLOYMENT – misconduct – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – applicant terminated due to unauthorised deletion of information on company laptop, threatening to delete pre-school’s Facebook page, sharing confidential information and being untruthful through investigation – applicant claimed she only deleted personal and old irrelevant information from laptop before it was returned – applicant submitted decision to terminate was made by staff member and not the committee, therefore there was no lawful decision to terminate applicant taken by the Committee – respondent submitted that staff member had necessary authority to terminate applicant – respondent further submitted conduct was serious misconduct that justified dismissal – Baxter considered – Commission found principal issue was systematic deletion of material from respondent laptop and one of the external hard drives by applicant – after being issued with second show cause letter, applicant spent next three days meticulously deleting information from external hard drive at her house – Commission determined process in terminating applicant was not undertaken in a manner which makes the decision null and void – did not accept evidence that applicant only deleted irrelevant or personal information off laptop computer – conduct of applicant in deleting necessary and relevant information was deliberate and calculated – respondent genuinely believed applicant conduct was serious enough to warrant summary dismissal – termination was consistent with the Code – application dismissed. Leys v Gunnedah Preschool Kindergarten Association Incorporated t/a Gunnedah Preschool
June 29, 2016
Eleven unfair dismissal applications will be heard by the Fair Work Commission today. The full list is: The Trustee for Theo Sourlos Family Trust No. 2 (Baker), Rycki Symons Pty Ltd (Rifai D’Amico), Ultimo Catering and Events (Guilfoyle), Gino’s Automotive Repair Centre Pty Ltd (Brookman), Sydney Trains (Zamojski), Emergency Management Victoria (Allan), Visy Pulp & Paper Pty Ltd (Carr), Coles Group Supply Chain Pty Ltd (Punshon), Vulcan Steel Pty Ltd (Elders), Harsco Metals Pty Ltd (Hoffmann), Northside Community Services (Chandler).
June 28, 2016
Only nine cases of unfair dismissal have been listed for hearing before Fair Work Commission today. The full list is: Scotia Inspection Consultants Pty Ltd (Cunningham), Water Corporation (Batchem), J Blackwood and Sons P/L – Division of Westfarners Industrial and Safety (Burleigh), The trustee for Theo Sourlos Family Trust No. 2 (Baker), Iplex Pipelines Australia Pty Ltd (Ormiston), Toll Personnel Pty Limited (Bentley), Menpara Health Care Pty Ltd (Sara), Compass Group (Australia) Pty Limited (Gilson), Sizetrans Pty Ltd (Krupicka).
June 28, 2016
An application for approval of the Chubb Fire Safety Newcastle Portable Service Enterprise Agreement 2016-2019 (s.185 – Application for approval of a single-enterprise agreement) will be heard by Fair Work Commissioner Roe in his Melbourne chambers today.
June 27, 2016
Twenty-one unfair dismissal cases will be reviewed by Fair Work Commissioners today. The list includes: B.A.R.B Trading (Wilson), Energy Developments Ltd (Barnard), Toll Energy Logistics Pty Ltd (Budd), Peloton Sportz Pty Ltd (Te Raki), Kytec Pty Ltd (Bolivar Bretto), Coles Group Limited (Stephens), Brewarrina Business Coop Limited (Eastwood), M&J Shearing (Murdoch), Holcim (Australia) Pty Ltd (Howe), Berry Sweet Strawberry Farm (Rocchiccioli), Electricity Generation and Retail Corporation (Dunn, Kaurin), Department of Health and Human Services (Morag), Oaky Creek Coal Pty Ltd (Watts), Ray White Real Estate Gladstone (Silvester), The University of Queensland (Schreiber), One QSuper Pty Ltd (Trevithick), Helensburgh Coal Pty Ltd (Cheetham), Sedgman Limited (Hegarty), South East Queensland Hauliers (Shepherd), Virgin Australia Airlines Pty Ltd (VIPA).
June 27, 2016
An application for approval of the Erect Safe Scaffolding (NSW) Pty Limited/CFMEU Greenfields Agreement 2016-2017 (s.185 – Application for approval of a greenfields agreement) will be heard by Fair Work Commissioner Roe in his Melbourne chambers today.
