TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant dismissed by text message following verbal altercation over telephone with respondent about unpaid overtime – no issue previously raised about applicant’s work performance – respondent failed to file response, participate in conciliation or file further materials – respondent failed to engage with Commission – respondent represented by employee not employed at time applicant dismissed – respondent business in voluntary administration – application not stayed by Corporations Act – applicant behaved in rude and disrespectful manner towards respondent – Commission found valid reason for dismissal – text message not appropriate mechanism for dismissal – no evidence applicant was substandard employee – applicant not given opportunity to respond – found dismissal procedurally unfair – ordered $828 compensation less tax. Hain v Ace Recycling P/L
May 30, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under Electrix Ply Ltd & ETU Powerline Enterprise Agreement 2013-2016 – dispute concerned interpretation of clause 45.1 of agreement which deals with wage rates – applicant contended respondent incorrectly paid employees back pay based on classification levels under predecessor agreement as opposed to their classification levels under agreement – respondent argued had it included the reclassification based wage increases in back pay calculation it would have been double paying employees who had undertaken leading hand and high-voltage operating duties – Commission considered plain meaning of relevant clauses – no ambiguity arose – no regard to subjective intention – Commission determined employees are entitled to back pay calculated with reference to the wages employees would have received under agreement inclusive of any increases flowing from the reclassification of employees. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electrix P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant commenced casual employment with the respondent on 1 October 2014 – received third and final written warning on 8 July 2015 – all warnings based on customer complaints – after receiving the final warning applicant made a number of serious allegations against the respondent on 11 July 2015 and 12 July 2015 – respondent began to conduct an investigation – while investigations were ongoing applicant sent threatening emails to the respondent and ignored lawful instructions to cease sending these emails – applicant also uncooperative and confrontational during a meeting necessary to the investigations on 16 July 2015 – respondent submitted dismissal based on a failure to follow lawful instruction and allow the investigations to take their course – applicant submitted the three warnings he received were bogus and he was dismissed for making allegations against the respondent – Commission satisfied there was a valid reason for dismissal – held three warnings based on customer complaints – found that respondent’s instruction to cease sending threatening emails was reasonable – application dismissed. Whitham v Apple Marketing t/a Apple Marketing Group
May 30, 2016
TERMINATION OF EMPLOYMENT – amendment of application – unlawful termination – ss.365, 773 Fair Work Act 2009 – r.6, 8 Fair Work Commission Rules 2013 – application to deal with an unlawful termination dispute under s.773 FW Act – as respondent a constitutionally covered entity, applicant sought to amend application to one under s.365 of FW Act – applicant submitted did not initially file under s.365 because did not receive legal advice and thought was using correct form – general requirement under Rule 8(2) of FWC Rules to lodge application using correct approved form – Commission has broad discretion under Rule 6 to dispense with Rules – Commission held applicant attempted to promptly challenge dismissal and was within 21 day timeframe albeit lodging incorrect form – amendment sought at early stage – would not fundamentally alter nature of application – sufficient justification under Rule 6 to dispense with general requirement to comply with Rule 8(2) – Rule 6 invoked – Commission satisfied appropriate to amend application to application under s.365 of FW Act – order reflecting amendment issued. O’Keeffe v Sucasas P/L t/a Tapavino
May 30, 2016
ENTERPRISE BARGAINING – protected action ballot – extension of notice period – s.437 Fair Work Act 2009 – application by Maritime Union of Australia (MUA) for protected action ballot order concerning employees of MMA Offshore Vessel Operations P/L (MMA) – application opposed by MMA – MMA submitted application not validly made as there was no notification period under s.437(2A) FW Act – MMA submitted notification period related to bargaining for enterprise agreements different in scope to current application – Maersk considered – Commission satisfied scope of proposed MUA agreement a subset of MMA’s proposed scope – MMA submitted that MUA contravened interim orders of Cloghan C and was therefore unable to take protected industrial action in support of proposed agreement – Commission not satisfied matter has a bearing on validity of application – MMA submitted Commission could not be satisfied MUA had genuinely tried to reach agreement – Commission acknowledged negotiations long and tortuous but in all circumstances Commission satisfied MUA genuinely trying to reach agreement – MMA submitted that, if Commission were to grant application, notice period should be extended – witness evidence led – witness not cross-examined – Commission satisfied exceptional circumstances justify longer notice period – objections of MMA as to making of order rejected – notice period extended to seven calendar days – protected action ballot order made. Maritime Union of Australia, The v MMA Offshore Vessel Operations P/L
May 30, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a cleaner – applicant dismissed for making a cup of coffee at the premises of a tenant shortly before commencing his shift – respondent argued applicant engaged in theft and had caused a serious and imminent risk to the reputation, viability or profitability of business – respondent did not identify that there was anything adverse to applicant on his employment record – degree of factual dispute about the conduct of Toolbox Talks which had as its topic Serious Misconduct in the Workplace – prior to incident respondent had accepted, and had then consumed a cup of coffee with his supervisor at premises of a tenant – some minor failing or trivial misdemeanour on the part of the employee could not constitute a valid reason for dismissal simply because it was proven to have occurred [Selvachandran] – Commission found conduct upon which dismissal was based was insignificant to the extent that it could not constitute a sound, defensible or well-founded reason for his dismissal – Commission held applicant be reinstated to the position of cleaner he held immediately before his dismissal – ordered payment of $9187.20, less applicable taxation for lost remuneration. Bista v Glad Group P/L t/a Glad Commercial Cleaning
May 30, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant lodged an application for unfair dismissal – respondent advised there could be no unfair dismissal as applicant’s employment was ended by way of a genuine redundancy – applicant submitted that the search for an alternative position for her was not genuinely undertaken by the respondent – Commission found that the consultation process required to be undertaken had occurred – nothing perfunctory about the consultation process undertaken by the respondent – respondent had met all of the requirements of s.389 of FW Act and as such a complete defence to the claim of unfair dismissal was made out – application dismissed for want of jurisdiction. Laudeman v John Crane Australia P/L
May 27, 2016
Twenty-one unfair dismissal/dispute applications are due to be heard today in the Fair Work Commission. The full list is: LEDified Lighting Corporation Pty Ltd (Byrne), WEX Australia Pty Ltd (Vukovac), Department of Health and Human Services (Stubbings), Community Accessibility Incorporated (Collins), Eastbrooke Medical Centres (Renda), Citic Pacific Mining Management Pty Ltd (Kong), Metropolitan Health Service (Eaves), Daromi Pty Ltd (Barron), Pilbara Access Pty Ltd (Roberts), Exact Cleaning & Maintenance Services Pty Ltd (Luey), Embassy of Algeria – Canberra (Kim), Peabody Energy Australia Coal Pty Ltd (Heath), Royal Taj (Restaurant) (Kumar), Marthakal Homeland and Resource Centre Aboriginal Corporation (Milner), The University of New South Wales (Rashidi Nejad), Transdev NSW South Pty Ltd & Veolia Transport (NSW) Pty Ltd (Ayaz), Commonwealth of Australia (Department of Defence) (Bebawi), Frockk Pty Ltd (Tarbuck), Mt Arthur Coal Pty Ltd (Goodall), Hargreaves Services Pty Ltd aft HMP Service Trust (Harris), Anglicare Far North Queensland Limited (Lacy).
