TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal remedy filed 2 days out of time – not satisfied acceptable reason for delay for lodging application – consideration of action taken to dispute dismissal weighed in favour of granting application – application has considerable merit and weighs in favour of granting application – satisfied strength of merit case combined with action taken to dispute dismissal sufficient to satisfy Commission that there are exceptional circumstances warranting further period for lodging application – in interests of justice to extend time [Haining] – order issued. Sierra v Comphire P/L
June 10, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – reasons for termination changed between time of dismissal and determination of unfair dismissal application – respondent verbally advised applicant of termination of employment at meeting due to applicant’s performance issues and falling profitability of business – applicant had no support person – after termination respondent alleged termination based on serious misconduct – applicant not given opportunity to respond to allegations of misconduct – applicant not warned about performance issues – Commission held respondent’s allegations of serious misconduct not valid reason for dismissal – Commission found applicant not notified at time of dismissal of reasons relied upon by respondent in proceedings – compensation ordered. . Bolton v Refresh Waters Queensland P/L
June 10, 2016
ANTI-BULLYING – bullied at work – s.789FC Fair Work Act 2009 – application for an order to stop bullying – applicant alleged employees checked up on her and complimented other receptionist and not her, and that she was stared at suspiciously, and no longer received text messages from another colleague about work arrangements – having preference of how things should be done and suggestions not being agreed to by a supervisor not found to be bullying – Commission of the view anti-bullying provisions of the FW Act are to protect bullying behaviour, not substantially a person’s feelings – Commission found no repetition of unreasonable behaviour – application dismissed. Mrs Gore
June 10, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant dismissed after working for respondent for five years – applicant’s employment appeared to be without recorded incident or complaint – applicant called in to the respondent’s place of business on a day she was not rostered to work to attend a meeting with three representatives of the respondent – advised that her position was being terminated because of a serious deterioration in the financial position of the retail operation – respondent submitted that the termination of the applicant was consistent with the Small Business Fair Dismissal Code (the Code) and was a genuine redundancy – Commission found applicant’s dismissal not consistent with the Code as she was not provided with any opportunity to offer alternative suggestions to address the concerns of the respondent – no evidence provided by the respondent upon which the Commission could conclude that the financial difficulties of the respondent necessitated the reduction of one employee – no evidence that the respondent had complied with the requirements of s.389(i)(b) of the Act – abrupt nature of the applicant’s dismissal would fail to provide even the most elementary level of consultation – dismissal not a genuine redundancy – respondent’s initial response document made reference to a number of performance and conduct matters as the basis for dismissal which were not raised at hearing – Commission persuaded that these concerns were the actual basis of the applicant’s dismissal – dismissal harsh and unreasonable because the applicant was not provided with the true reason for her dismissal – the dismissal was implemented in a manner which denied the applicant an opportunity to provide any response to the reasons for her dismissal – compensation appropriate – 25 weeks compensation ordered – order issued. Tarbuck v Frockk P/L t/a Frockk
June 10, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant dismissed for misconduct – various protocol issues and performance based issues – applicant submitted that his behaviour did not amount to misconduct – submitted that there was not a valid reason for his dismissal and that he was denied proper process – Commission found conduct could not be properly construed as inadequate performance or misconduct which could provide sound and defensible reason for dismissal – applicant’s behaviour should have been addressed with some specified identification of particular incidents of concern together with requirement to have the applicant rectify the concerns – instead concerns were generalised and without clear requirements for rectification – Commission considered that the substantive reason for applicant’s dismissal was invalid – respondent’s process for dealing with the applicant’s alleged unsatisfactory performance was severely flawed such that the applicant was denied natural justice – dismissal unjust and unreasonable – compensation an appropriate remedy in the circumstances – applicant made efforts to mitigate the loss suffered – element of established misconduct in the form of retaliatory insubordination – twelve weeks compensation ordered – order issued. Kumar v Consulate General of India, Sydney
June 10, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent places employees with host companies – contract of employment between applicant and respondent specifically referenced the undertaking of work on a project (Pyrenees Venture) – applicants host employer was BHB Billiton Petroleum Inc (BHPB) – incident occurred on 30 October 2015 which BHPB characterised as a ‘near miss’ – BHPB contacted respondent and requested that the applicant be removed from the Pyrenees site and excluded from work associated with the Pyrenees – respondent made endeavours to find an alternative placement for the applicant but none were available – the union in conjunction with the respondent sought expressions of interest from other employees as to a swap/transfer which was unsuccessful – respondent terminated applicants employment – satisfied applicant was a person protected from unfair dismissal – satisfied applicant was dismissed – whether termination was harsh, unjust or unreasonable considered – termination not related to capacity or conduct – applicant was notified of reason – no evidence of unreasonable refusal to all a support person – termination did not relate to unsatisfactory work conduct – found applicant employed specifically to work on the Pyrenees project – commercial contract between respondent and BHPB gave the latter specified rights as to who was permitted to work on the Pyrenees project – respondent made endeavours to find alternative employment – not satisfied dismissal was harsh, unjust or unreasonable – application dismissed – order issued. Pettifer v MODEC Management Services Pte Ltd
June 10, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A and 611 Fair Work Act 2009 – application by respondent for costs against the applicant on indemnity basis – Commission dismissed applicant’s unfair dismissal application on 14 December 2015 – prior to the application being dismissed the respondent made an offer to settle on 12 June 2015 not in a conciliation conference that was ‘without prejudice save as to cost’ – additional settlement offers were made by the respondent in conciliation conferences prior to 14 December 2015 – respondent submits the applicant’s rejection of the settlement offer on 12 June 2015 was an unreasonable act in connection with the continuation of the matter causing the respondent to incur costs – applicant submits his rejection of the 12 June 2015 offer was not unreasonable and that the Commission should also take into account the negotiations and settlement offers made in conciliation conferences for this matter – Commission held that offers in conciliation conferences cannot be considered in costs applications [McKenzie & McDonald] unless the offer is subsequently repeated on an open basis – held the applicant’s refusal to accept the settlement offer on 12 June 2015 was unreasonable and caused costs to be incurred by the respondent – held the applicant had sufficient information to conclude his application had no prospect of success at 12 June 2015 – costs of $13,875.70 ordered on an indemnity basis because applicant’s failure to accept the offer of settlement involved the continuation of proceedings in wilful disregard of known facts and also was an imprudent refusal of an offer to compromise – costs order to be issued. Ferry v GHS Regional WA P/L t/a GHS Solutions
June 10, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.119, 604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision arising under Clause 41 of Nilsen (SA) P/L – Contracting Division Collective Agreement 2013 (Agreement) – at first instance Commission found Clause 41.2(c) provided for pro rata redundancy payments for employees with less than 12 months’ service – Commission found nothing in agreement limited pro rata payment mechanism to employees who had completed at least one years’ service – appellant challenged decision on basis that Clause 41.2(c) did not provide for pro rata redundancy payments for employees who had completed less than one year’s service – Full Bench considered whether appellant’s argument on appeal was correct – considered sub clauses in clause 41 which had three elements – considered clauses against redundancy entitlements as per National Employment Standards under s.119 FW Act and exclusion of obligation to pay redundancy pay under s.121 of the FW Act – Full Bench found that s.121(1)(a) of the Act excluded employee from redundancy pay when they have not had 12 months’ service – Full Bench found that exemption also referred to in last item of Clause 41.3 of agreement – Full Bench found appellant’s arguments not properly advanced before Deputy President who decided matter on written submissions – Full Bench found that appellant never drew Senior Deputy President’s attention to s.121(a)(a) of the FW Act – usual principle is that party should not be permitted to argue case on appeal which was not raised at first instance [Coulton v Holcombe] – where new argument raises pure question of law which could not possibly be affected by any evidence, appellant court may allow the argument as, ‘it is expedient in the interests of justice that question should be argued and decided’ [O’Brien v Komesaroff] – Full Bench found that would be unjust to refuse permission to appeal – Full Bench found that redundant employee with less than 12 months service not entitled to redundancy payments under Clause 41.2(c) – permission to appeal granted – appeal upheld. Appeal by Nilsen (SA) P/L against decision of O’Callaghan of 5 April 2016 [2016] FWC 2095 Re: “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia” (CEPU) v Nilsen (SA) P/L
