TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed the appellant’s application for an extension of time for the lodgment of her application for unfair dismissal – dispute over date dismissal took effect – application for unfair dismissal remedy lodged either 84 or 88 days late – application dealt with ‘on the papers’ – Commission held applicant’s mental illness accounted for part, but not all, of the delay – found no exceptional circumstances to grant an extension of time – appellant sought permission to appeal Commission’s decision – Full Bench held there was an arguable case the Commission erred in making findings on the appellant’s mental illness – held Commission erred in not holding a conference or hearing to determine contested facts significant to the application as per s.397 of FW Act – held it was in the public interest that applications to the Commission are dealt with in accordance with FW Act – permission to appeal granted – substantive appeal to be heard. Appeal by Kaliyaperumal against decision of Kovacic DP of 12 February 2016 [[2016] FWC 979] Re: Commonwealth of Australia as represented by the Australian Bureau of Statistics
May 17, 2016
INDUSTRIAL ACTION – order against industrial action – ss.418, 420, 604 Fair Work Act 2009 – appeal against interim order regarding s.418 application by Fredon Industries P/L (Fredon) – order pursuant to s.420(2) required a scheduled 48-hour stoppage of work not proceed – following the raising of an ‘apprentice clause’ claim in bargaining for a new enterprise agreement, CEPU gave written notice to Fredon of the 48-hour strike – Fredon made an application claiming the strike would not be protected industrial action because it was not ’employee claim action’ as defined in the FW Act – Fredon contended the ‘apprentice clause’ was not a claim that was about, or could reasonably be believed to be about, permitted matters – CEPU submitted the decision of the Commission manifested appealable error in seven respects – Full Bench satisfied of appealable error in an least two respects – firstly, by not disclosing any consideration as to whether making an interim order would be contrary to the public interest, there was a jurisdictional error in that the decision failed to give effect to terms of s.420(3) – secondly, the Full Bench held that CEPU (and Fredon) were denied procedural fairness, due to no indication being given as to the possibility the application could not be determined in a two-day period – held that all of the objective circumstances strongly indicated it would be heard and determined within this period – as parties were denied the opportunity to make submissions about whether an interim order should be made and if making one would be contrary to the public interest, this constituted a further jurisdictional error – Full Bench satisfied that order was demonstrably beyond power – although planned industrial action long past, the appeal was upheld and decision and interim order quashed – in relation to Fredon’s application for further s.418 orders, no evidence suggested any industrial action is happening, threatened, impending, probable or being organised – as the jurisdictional prerequisite for making orders was not satisfied, the application was dismissed. Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Unions against decision of Riordan C of 20 April 2016 [[2016] FWC 2529] Re: Fredon Industries P/L t/a Fredon
May 17, 2016
ENTERPRISE AGREEMENTS – approval – ss.183, 185, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision to include note in decision approving Groote Eylandt Mining Company Enterprise Bargaining Agreement 2015 that CFMEU covered by agreement – appellant submitted that Commission erred on basis that CFMEU did not give employee written notice stating that they wanted to be covered – Full Bench considered whether Commissioner erred by including CFMEU – found appellant put on notice and used opportunity to object to coverage – held that upon receiving application, Commission listed matter for eHearing and advised parties if they wished to be heard, they should contact Commission prior to eHearing – whether in public interest to grant permission to appeal – Full Bench found appeal raised question of jurisdiction as to whether Commission exceeded jurisdiction in noting coverage of CFMEU in circumstances where jurisdictional pre-condition not met – appeal also raised question as to whether Full Bench decision in RotoMetrics correctly decided and should be applied – appellant contended decision in RotoMetrics correctly decided and should have been followed by Commissioner – CFMEU contended decision in RotoMetrics wrongly decided – Commission generally follows Full Bench authority on the ‘issues to be determined, in the absence of cogent reasons for not doing so’ [Cetin v Ripon P/L t/a Parkview Hotel] – Full Bench found reconsideration of Full Bench authority a serious step to be taken and only taken in relation to decision concerning statutory construction where decision is patently in error or has produced unintended or irrational consequences – Full Bench found in public interest to grant permission to appeal – found that cogent reasons to reconsider authority in RotoMetrics and apply s.183(2) of FW Act as natural justice requirement affording employer to resist coverage of organisation – Full Bench found that an appeal to remove employee organisation from s.201 note in decision would only arise where Commission not satisfied that an organisation was not bargaining representative – appeal dismissed. Appeal by Groote Eylandt Mining Company P/L t/a South32 GEMCO against decision of Gregory C of 5 February 2016 [[2016] FWCA 792] Re: Construction, Forestry, Mining and Energy Union
May 17, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for extension of time dismissed at first instance – applicant appealed on grounds she was not advised of when dismissal occurred and that evidence before Commission at first instance was inaccurate – Full Bench referred matter for hearing or conference due to dispute on effective date of dismissal [[2016] FWCFB 2076] – hearing conducted and report made to Full Bench – Full Bench not satisfied Commission erred in relation to date employment ended and from which 21 days calculated – not satisfied Commission erred in finding that criterion in s.394(3)(b) of FW Act weighed against a finding of exceptional circumstances – not satisfied Commission erred in conclusion on merits of application – no other errors identified in appeal – Full Bench accepted that the Commission not conducting a hearing, despite the disputed date of dismissal, would normally be a sufficient reason to grant permission to appeal – having conducted a hearing in relation to disputed facts and considering the evidence, the Full Bench did not consider it in the public interest to grant permission to appeal – apart from error corrected on appeal, decision turned on its own facts and raised no broader issue of law or policy – permission to appeal refused. Appeal by Fletcher against decision and order of Johns C of 13 October 2015 and 10 November 2015 [[2015] FWC 7556] Re: Little Darlings Early Development Center
May 17, 2016
CASE PROCEDURES – representation – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – in decision at first instance the Commission refused appellant opportunity to be heard in relation to applications by each of the respondents to have their enterprise agreements approved – appellant contended that the Commission erred as a matter of law in failing to make the order sought by the appellant – Full Bench considered and distinguished Collinsville (at [60]) as present case had employees of the respondent who were members of the appellant and who were covered by enterprise agreements which would cease to apply to those employees if the new enterprise agreements were to be approved – distinction raised issues of importance and general application such that the public interest was enlivened – permission to appeal granted – appellant of the opinion that a right to be heard existed in relation to an application for approval of an enterprise agreement in circumstances where the union and its members are covered by, and the union allegedly has rights under, an existing enterprise agreement which will cease to apply if a new enterprise agreement is approved – Full Bench of the view that appellant was not a person whose rights, interests or legitimate expectations would be directly affected by any decision to approve the new enterprise agreements – appellant may be affected, indirectly or consequentially, by a decision to approve new enterprise agreements, but such an impact not sufficient to give appellant right to be heard in application for the new enterprise agreements – appeal dismissed. Appeal by Construction, Forestry, Mining and Energy Union against decision of Riordan C of 23 November 2015 [[2015] FWC 7345] Re: MGI Piling (NSW) P/L and Ors
May 17, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – in Annual Performance Review applicant was assessed by his manager as ‘Improvement Needed’ – placed on eight week Performance Improvement Plan (PIP) – based on his PIP performance applicant dismissed – failure to perform the requirements and expectations of his role – Commission found applicant notified of the reasons for dismissal and given opportunities to improve poor performance – dismissal not harsh, unjust or unreasonable – application dismissed. Banadar v Synchronoss Software Australia P/L
May 17, 2016
TERMINATION OF EMPLOYMENT – incapacity – s.394 Fair Work Act 2009 – applicant dismissed for failing competency test – applicant had failed to perform safety critical tasks in accordance with safety management procedures – applicant required to participate in mentoring arrangement and performance improvement plan (PIP) before sitting competency tests – allegations of inadequacy of these mentoring and PIP not substantiated – inadequacy issues had not been raised with respondent – dismissal for failing to demonstrate competency a valid reason – applicant warned about capacity issues – Commission placed no weight on one warning which was withdrawn – no evidence of procedural deficiencies – dismissal not harsh, unjust, unreasonable – application dismissed. Soper v Teekay Shipping (Australia) P/L
May 17, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant sent letter of resignation to respondent but claimed he was forced to do so – applicant then received a ‘letter of termination’ from the respondent – onus on employee to prove that they did not resign voluntarily and that the employer forced them to do it [Australian Hearing] – Commission not persuaded that the applicant had no alternative but to resign – application dismissed. Farshadi v VKHV P/L atf the Vasilios Chronarakis Family Trust t/a Tony and Guy Leichhardt
