TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – application by respondent for costs against applicant on indemnity basis under ss.400A and 611 of FW Act – Commission held failure of applicant to discontinue application following conciliation not unreasonable act – reasonable for applicant to reject settlement offer – respondent did not incur costs for applicant’s failure to comply with orders and/or directions – application for costs under s.400A must fail – applicant’s case never ‘so obviously untenable that it cannot possibly succeed’ [Church] – fact that applicant lost case did not itself mean applicant made application without reasonable cause or that it should have been reasonably apparent had no reasonable prospects of success – application for costs under s.611 must also fail – application dismissed. Barkho v Dairy Country P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – high income threshold – ss.332, 382, 394, Fair Work Act 2009 – application for unfair dismissal remedy – applicant operations supervisor – written offer of employment provided gross salary of $120,000 per year plus $15,600 vehicle allowance – also entitled to single health cover under company scheme – applicant submitted dismissal unfair – applicant submitted respondent restructured department he managed to financially support the relocation and redeployment of employee based in South Africa – respondent submitted dismissal case of genuine redundancy – further submitted applicant’s earnings exceeded high income threshold as car allowance and health insurance premiums constituted ‘earnings’ – premiums in offer of employment were applied or dealt with on behalf of applicant – applicant submitted that premiums paid for under company scheme – further submitted policy in his name and issued membership card – applicant submitted health insurance premiums not part of his earnings as did not obtain benefit of policy and entitlement was not sought – Commission considered whether health insurance premiums ‘earnings’ under s.332 of FW Act – found that s.332 does not impose requirement that amounts applied on employee’s behalf or direction deliver some benefit to employee – found health insurance premiums to be ‘earnings’ for the purposes of s.332 applying Tipene v Norton Goldfields – Commission considered whether vehicle allowance ‘earnings’ – found that car allowance formed part of applicant’s wages as travel was incidental to role – distinguished from Davidson – Commission found that company policy provided for applicant to separately seek reimbursement for private use of car and paid separately to vehicle allowance – found vehicle allowance included in ‘earnings’ – earnings exceeded high income threshold – applicant not protected from unfair dismissal – application dismissed. Pasznicki v Expro Group Australia P/L
May 30, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – dispute arising under Qube Ports P/L and Maritime Union of Australia Enterprise Agreement 2011 (the Port of Bunbury) – MUA submitted dispute settlement procedure had not been followed and Commission did not have jurisdiction to hear and determine dispute – night shift employees were required to commence wash-down of loading area after loading Trans Friendship 1 – Commission satisfied had jurisdiction to hear and determine the substantive dispute and dismissed MUA’s objection – Golden Cockerel considered in relation to interpretation of subclauses 1.7(b) and (c) of agreement – Commission interpreted employees can conduct wash-down on night-shift on three conditions: imminent berthing of a vessel, berth at which vessel has to be cleaned, and that there has been no prior opportunity to complete the task of cleaning before the berthing of the vessel – found that in event of dispute application should be dealt with pursuant to clause 45 of agreement. Qube Ports P/L t/a Qube Port, Qube Bulk, Qube Ports and Bulk v Maritime Union of Australia
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – dismissed due to number of concerns including interactions with staff and swearing – respondent evidence preferred – summary dismissal followed swearing and related commentary – circumstances surrounding dismissal reflective of an almost immediate response in small workplace to what unfolded following swearing incident – not satisfied applicant established case of unfair dismissal – application dismissed. Koleski v Renito P/L t/a Hair Health and Beauty Professional
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was employed as a Detention Services Officer – applicant allegedly terminated because he did not maintain positive control of a detainee and the detainee escaped – applicant submitted his termination was unfair because the circumstances of the escape were dynamic and fluid and required rapid decisions which were consistent with applicable policies – further submitted Escort Operational Order for this detainee was not satisfactory, any misbehaviour on his part was not wilful or deliberate, the incident investigation process was deficient and lacked procedural fairness and his termination was disproportionate to the incident itself – respondent argued applicant did not comply with mandatory escort procedures, did not comply with clear instructions relating to the escorting of the detainee and failed to seek guidance over how the escort should be escorted – Selvachandran applied – Commission satisfied that the reason for employment termination primarily related to failure to comply with the required procedure – held dismissal was not unfair – application dismissed. Nadeem v Serco Australia P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as Business Manager at respondent’s Newstead dealership – respondent objected on basis applicant repudiated his contract of employment – applicant ceased to present for work or respond to any communications from respondent after 19 November 2015, following meeting with applicant regarding performance and conduct related processes – at the meeting respondent proposed a new contract of employment as a performance management tool that essentially sought to change the location of applicant’s employment and change of title from Business Manager to Relief Business Manager – applicant concerned new contract might result in his remuneration being reduced by an amount between 50% and up to 90% – applicant asserted that if he did not sign the new contract he would lose his job – contended that in offering new contract respondent had terminated his employment – Commission found applicant’s employment came to an end at the initiative of the respondent – no valid reason for dismissal – held dismissal was harsh, unjust and unreasonable – reinstatement not appropriate – ordered compensation of $50,119.80 gross, subject to applicable taxation. Dore v Motorcycle Holdings TCO P/L atf The Motorcycle Holdings Group Unit Trust t/a Morgan & Wacker Harley Davidson
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – on day prior to dismissal applicant left work without attending ‘huddle’ meeting – applicant claimed was feeling unwell and did not hear manager articulate direction as he left premises – applicant claimed had already clocked off at time of huddle – applicant dismissed following meeting held the next day between applicant, Manager and General Manager – employer claimed applicant’s conduct constituted gross misconduct for failing to follow lawful instrument from Manager – Commission found photographic material led by employer demonstrated applicant had not clocked off at time of huddle but had clocked off at time manager communicated intention to convene huddle – applicant conceded in cross examination aware of huddle and requirement to attend – one instance where applicant subject to written warning previously – no other warnings or disciplinary action – Commission found employer might reasonably have reservations about applicant’s conduct in this instance but conduct when considered in full circumstantial matrix not valid reason for dismissal – applicant not provided satisfactory notice that he faced dismissal for conduct – not extended opportunity to have support person present at meeting – Commission held dismissal harsh and unreasonable – employer ordered to pay $8,541.28 compensation. De Sola v ECB P/L t/a East Coast Bullbars
May 30, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.386, 394 Fair Work Act 2009 – applicant employed as a salesman – resigned from his employment but said that he was forced to do so – respondent had concerns about the applicant’s sales figures and established a new remuneration structure for the applicant – applicant unhappy with new remuneration structure – believed that respondent had sabotaged him by reducing stock levels so that he could not meet his sales targets –Mohazab and AABB Engineering considered – Commission found applicant’s poor sales results were not attributable to any stock level issues – new remuneration structure designed to encourage applicant to achieve better sales – applicant would not have suffered any financial loss as long as he maintained his average sales for the previous two years – respondent’s conduct not intended to, nor would have had the probable result of, bringing the employment relationship to an end – found that the applicant resigned from his employment and was therefore not dismissed – application dismissed. Ampuero v H+Co Menswear t/a H’s Menswear
