TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed for 3 years as a Dump Truck Operator – applicant had accident in work vehicle and did not report it – incident reported by another driver – applicant then acknowledged he was responsible for the damage – applicant stood down from work – applicant interviewed the following day – advised in interview that respondent considered the matter serious due to incident and applicants failure to report it – applicant attended disciplinary meeting and was terminated due to breach of safety procedures – applicant asserted termination was harsh, unjust and unreasonable – applicant asserted there was no valid reason for termination or, alternatively, the termination was disproportionate to the incident – applicant asserted termination was procedurally unfair as he was not advised that dismissal was a possible result of the first meeting – applicant gained further alternative employment nine weeks after termination and sought compensation rather than reinstatement – respondent argued it had a rigorous safety regime and policy in place which the applicant had been trained in and applicants failure to report breached this policy – respondent asserted there was a valid reason for termination due to the significant breach – Commission found respondent had a rigorous safety policy in place and the applicant breached this policy – Commission satisfied applicants decision not to report the incident significant – Commission found that although there was a breach of safety policies and practices, this was not a valid reason for dismissal – Commission found termination decision disproportionate to behaviour – Commission found termination harsh and unreasonable – reinstatement not appropriate – Sprigg considered regarding compensation – considered applicant would have been employed for another 6 months – applicant secured other comparable work within 9 weeks of termination – deduction of 50% for misconduct – compensation awarded – order issued. Atkinson v BGC Contracting P/L
June 10, 2016
RIGHT OF ENTRY – misuse of system – s.604 Fair Work Act 2009 – appeal – Full Bench – two previous decisions were made by Watson VP – this appeal related to the second of the decisions to suspend or revoke the entry permits of certain CFMEU officials – prior to the appeal hearing written submissions and authorities had been considered by the Full Bench – the preliminary view was that permission to appeal should be granted and that the first instance decision had not contained sufficient reasons resulting in procedural unfairness – in addition as the CFMEU Queensland had not been a party to the original proceedings the orders relating to that organisation should be quashed – on the basis of the preliminary view the parties reached a consent position upholding the appeal, quashing the relevant decision and orders and remitting the matter to Catanzariti VP – the FWBC had requested that the matter be remitted to Watson VP and this was opposed by the CFMEU – the Full Bench held that it would not be inappropriate to remit the matter to Watson VP but given the strong opposition to this by the CFMEU, it was preferable to remit the matter to another Member. Appeal by Construction, Forestry, Mining and Energy Union against decision of Watson VP of 7 March 2016 in [2016] FWC 811 Re: Director of the Fair Work Building Industry Inspectorate t/a Fair Work Building and Construction
June 10, 2016
MODERN AWARDS – dispute about matter arising under award – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision regarding dispute concerning long service leave (LSL) entitlements – appellant dismissed and applied to Coal Industry Long Service Leave Corporation to access LSL entitlements on basis he was retrenched – denied access to LSL – respondent contended dismissed for reasons not including redundancy – application dismissed at first instance for jurisdictional reasons – appellant submitted Commission erred in exercising powers judicial in nature and ignored original evidence – Full Bench found Commission had jurisdiction to deal with matter under s.39D of Coal Mining Industry Long Service Leave Act 1992 (CLSL Act), not dispute resolution clause under Black Coal Mining Industry Award 2010 – in relation to original evidence, appellant argued Commission did not take into account termination letter; retrenched to make way for new water carts, and position not filled following termination – Full Bench found Commission did consider letter but respondent’s evidence more convincing on this point – Commission’s analysis of water carts correct – new equipment on site does not establish retrenchment – conclusion that rosters and fact that position may have been filled by existing employee does not establish retrenchment a reasonable conclusion based on material – no error by Commission – appellant dismissed for reasons not including redundancy – no entitlement under CLSL Act – original application dismissed. . Appeal by Cowley against decision of Asbury DP of 25 August 2015 [[2015] FWC 2024] Re: Dust-A-Side Australia P/L
June 10, 2016
MODERN AWARDS – award modernisation – modern enterprise award – Sch. 6, Items 2, 4, 6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – Full Bench – application by Indian Ocean Territories Administration – Order issued at hearing making Christmas Island Administration Enterprise Award 2016 – reasons for decision – circumstances that led to making of enterprise instrument rather than an instrument of more general application considered – Full Bench held award to have had a long and distinct history, a factor that weighed in favour of making of modern award – Full Bench also found there was no single award, but for proposed award, that would cover all employees covered by current instrument – content of award and terms both weighed in favour – no opposition to making of modern enterprise award – unique nature of Indian Ocean Territories Administration and lack of any convenient alternative award that would better satisfy modern awards objective considered – Full Bench considered consolidated and modernised enterprise award remained most suitable vehicle for fair and relevant safety net into future – compelling case for making of modern enterprise award – proposed enterprise award made in terms agreed between parties. Christmas Island Administration Enterprise Award 2016
June 10, 2016
ENTERPRISE AGREEMENTS – employee organisation coverage – ss.590, 604 Fair Work Act – permission to appeal – Full Bench – appellant applied for permission to appeal interim decision arising from application for approval of Agreement at first instance – Commission granted standing for unions as interveners in first instance matter – found entitled to appear and be heard in respect of proceedings – appellant claimed decision at first instance inconsistent with Collinsville Coal decision – Full Bench must be satisfied public interest test met – might be attracted where matter raises issues of importance and general application [GlaxoSmithKline] – Full Bench found appeal against interlocutory procedural decision usually deprecated and will not usually be case that permission would be granted – found no reason to think decision will affect prospects of appellant ultimately succeeding in application for approval – Full Bench disagreed with appellant submission that interim decision substantive rather than procedural – Full Bench found decision at first instance consistent with Collinsville – authority for the proposition that union which was not bargaining representative for enterprise agreement did not have right to be heard in relation to application for approval of agreement simply because it had representational rights in respect of employees who might be employed under the agreement in future – decision made in exercise of broad discretionary power – permission to appeal refused. Appeal by Inco Ships P/L against decision of Cambridge C of 16 March 2016 [[2016] FWC 1637] Re: The Australian Institute of Marine and Power Engineers & Anor
June 10, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394, Fair Work Act 2009 – Regulation 1.07 of the Fair Work Regulations 2009 – applicant employed as Assistance Store Manager at various Prouds and Angus & Coote stores – applicant summarily dismissed following investigation in October 2015 into allegations of misconduct – following investigation into number of allegations including creation of laybys without customer being in store, staff discounts to friend and bullying team member applicant dismissed – respondent submitted applicant breached policies and procedures and terms of contract which required compliance with policies and procedures – applicant submitted actions were administrative errors and not serious enough to warrant termination – applicant also submitted that had good work history – Commission considered whether dismissal harsh, unjust or unreasonable taking into account criteria in s.387 FW Act – phrase ‘termination of employment may be unjust because employee was not guilty of misconduct on which employer acted, may be unreasonable because it was decided upon inferences which could not have reasonably been drawn from material… and may be harsh in its consequences for the personal and economic situation of the employee’ [Byrne v Australian Airlines] – Commission considered each allegation separately and found applicant had engaged in misconduct – found applicant notified of reason and provided with opportunity to respond – found respondent did not unreasonably refuse support person – Commission found not necessary to make finding as to whether misconduct of employee fits definition of serious misconduct under reg. 1.07 FW regulations [O’Connell v Wesfarmers Kleenheat Gas] – Commission found dismissal not harsh, unjust or unreasonable – application dismissed. King v Prouds Jewellers P/L
June 10, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant falsified timesheets claiming overtime not worked – applicant not truthful when allegations put to him by respondent – applicant claimed overtime hours on various days and aggregated a claim for overtime payment into single period – found no evidence such system was in place in respondent’s business – applicant unable to put forward consistent explanation about his timekeeping – Commission found valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Lacase v Neon Group P/L t/a Neon Cosmetics P/L
June 10, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – casual – s.394 Fair Work Act 2009 – applicant moved states and sought employment at a Melbourne-based store – applicant stopped receiving casual hours after Christmas and concluded he was dismissed – respondent denied applicant dismissed – Commissioner considered ss.385 and 386 in determining whether applicant dismissed – Commission not satisfied applicant dismissed – fluctuation in hours is common for casuals – the lead up to Christmas is commonly busy in retail sector – Commission acknowledges that applicant no longer trusts business on basis that it has not provided ongoing casual work – however, Commission not confident applicant exhausted all casual opportunities – applicant not dismissed – application dismissed. Longman v QBD The Bookshop P/L t/a QBD The Bookshop
