TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent lodged jurisdictional objection that dismissal consistent with Small Business Fair Dismissal Code (the Code) – applicant employed as a drainer – summarily dismissed for serious misconduct in becoming aggressive and verbally abusive during phone call with employer – final warning previously issued for aggressive and verbally abusive conduct towards director – in applying Code, necessary to determine whether respondent held a genuine belief that conduct sufficiently serious to justify immediate dismissal and whether belief based on reasonable grounds [Ryman] – Commission held reasonable for respondent to interpret term ‘I’ll fix you up’ used by applicant as a threat which warranted summary dismissal, particularly given first and final warning – in circumstances, absence of further investigation did not diminish reasonableness of belief – dismissal consistent with the Code – application dismissed. Hennigan v Xmplar Building Solutions P/L t/a Xmplar Building Solutions
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed for failure to comply with lawful direction – applicant purchased discounted motor vehicle insurance policy under QBE’s Employee Insurance Program for his father’s motor vehicle – made insurance claim against that policy contending someone had run into his father’s vehicle whilst it was parked in the street – applicant set up a business which had prepared a quote of over $38,000 to repair his father’s car – QBE contended its investigations had determined that 24 motor vehicle claims totalling over $106,000 and two household claims totalling more than $15,000 had been made from applicant’s residential address – applicant refused to participate in interview with investigator from QBE’s Financial Crimes Team regarding insurance claim – requirement to attend interview a lawful and reasonable direction – QBE’s Code of Business Ethics and Conduct required employees to fully cooperate with investigation – legitimate employer concern of potential conflict of interest – dismissal proportionate – wrong doing directly affected employer’s trust and confidence – found valid reason for dismissal – Rode applied – dismissal not harsh, unjust or unreasonable – application dismissed. Abdulrahim v QBE Management Services P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant terminated due to alleged serious misconduct involving disclosure of confidential information – applicant submitted she had been subjected to a gross denial of procedural fairness in relation to her dismissal – respondent genuinely believed applicant was fully aware of the confidential nature of her role and trust that the employer vested in her in this position – Commission found applicant’s conduct was not serious misconduct – found no valid reason for dismissal and significant procedural deficiencies – dismissal harsh, unjust and unreasonable – compensation of $12,456.00 ordered. Meyers v 2evolve P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed due to shortage of work – Commission found the applicant was dismissed for reasons of redundancy but was not a genuine redundancy – found dismissal unfair due to lack of proper consultation and consideration of redeployment – reinstatement not appropriate – ordered compensation of $7,706, less appropriate tax. Flasza v Countrywide Pet Foods P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – performance – ss.388, 394 Fair Work Act 2009 – applicant dismissed for alleged poor performance – respondent a small business – whether dismissal consistent with Small Business Fair Dismissal Code – not disputed respondent told applicant his job was at risk due to poor performance – applicant argued he did not have a reasonable chance to rectify the problem, the reason was not a valid based upon his performance and he did not have reasonable opportunity to respond to the proposal to dismiss him – Commission satisfied performance failures constituted a valid reason for dismissal – not satisfied applicant given a reasonable opportunity to respond to the proposal to dismiss him – Small Business Fair Dismissal Code not complied with – consideration whether dismissal unfair – found dismissal unjust due to procedural unfairness – reinstatement inappropriate as applicant obtained other employment – two weeks’ compensation ordered, taxed appropriately. Sajjad v Dacland P/L t/a Dacland P/L
May 30, 2016
ENTERPRISE AGREEMENTS – notice of representational rights – s.185 Fair Work Act 2009 – application for approval of the Uniline Australia Limited Enterprise Agreement 2016 by Uniline Australia Limited – notification time occurred in April 2014 and last notice of employee representational rights (Notice) issued in February 2016 – Commission adopted reasoning in Hunter Operations that for Notice to be valid, it must be issued in conformity with s.173(3) of FW Act – statutory purpose of Notice not met unless notice given shortly after notification time – Commission found that as Notice issued more than 14 days after notification time, Notice was not issued in conformity with s.173(3) and Commission could not be satisfied that there was genuine agreement as required by s.186(2)(a) – as conditions in s.186 of FW Act not met agreement could not be approved – application dismissed. Uniline Australia Limited Enterprise Agreement 2016
May 30, 2016
ENTERPRISE BARGAINING – protected action ballot – extension of period of notice – ss.437, 443 Fair Work Act 2009 – four applications for protected action ballot orders – respondent applied to extend period of written notice from three working days to seven working days – extension opposed by applicants – Commission considered meaning of ‘exceptional circumstances’ and whether circumstances justified granting extension – respondent submitted that alternate labour supply logistically difficult; expense and risk of shutting down sophisticated machinery substantial; customer relations would be strained and government support was provided to company as part of economic strategy for State – applicants referred to Australian Postal Corporation where expression ‘exceptional circumstances’ considered – Commission found that depending on the industrial action taken, there may be an impact on respondent which would affect profitability and customer relations – held that industrial action generally has such impact – held this did not equate to exceptional circumstances – not enough evidence in this case to satisfy that impact would be disproportionate – no basis to justify extension of notice period – protected action ballot orders granted with three working day notice period. Construction, Forestry, Mining and Energy Union and Ors v Norske Skog Paper Mills (Australia) P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as meat processing worker in 2005 – dismissed for failure to carry out lawful direction and making inappropriate and unwelcome comments to co-workers – respondent met with applicant and provided written warning – Commission not satisfied that conduct regarding comments to co-workers occurred – found applicant refused a lawful and reasonable direction – satisfied there was a valid reason for the dismissal due to the conduct of applicant in refusing the direction, her conduct in the meeting and her refusal to make any concessions about her behaviour – Commission held dismissal unreasonable due to procedural flaws and harsh given the applicant’s good work record – reinstatement not appropriate – ordered compensation of $3,711.61 plus 9.5% superannuation, less tax as required by law. Pham v Somerville Retail Services P/L
