NEWS HR

TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found that the employee had been unfairly dismissed – appellant sought permission to appeal against jurisdictional decision of March 2018 as well as the merits and compensation decision of June 2018 – jurisdictional appeal lodged 86 days outside of 21 day time limit – Full Bench rejected appellant’s submission that the jurisdictional decision was in the nature of a preliminary or interlocutory decision – application to extend time for filling appeal against jurisdictional decision rejected – Full Bench agreed that appeal of merits and compensation decision raises important matters in relation to employees engaged by labour hire companies – permission to appeal granted – appellant submitted that Commission failed to pay sufficient regard to the Temporary Employment Agreement (TEA) and that the employee’s assignment could be terminated at any time at the discretion of the host employer – submitted that the actions of the employer amounted to a valid reason for termination as employee was unable to perform the inherent functions of their role – appellant also submitted that they intended to find employee an alternative assignment but could not and that the employee had walked away from her employment – Full Bench found decision at first instance consistent with the approach adopted in Adecco, Pettifer and Tasports – found that the TEA contained no assignment or conclusion date and that employee’s assignment was extended twice without any indication when it may end – satisfied that Commission correctly described the employee’s work with the employer host as ‘an indefinite duration’ – rejected appellant’s submission that employee ended her employment – found no substance to appellant’s claim of an alleged failure to provide adequate reasons for decision at first instance – appellant submitted that the amount of $15,000 in compensation was too high in relation to the temporary nature of the appellant’s employment – Full Bench satisfied with Commission’s application of Sprigg given findings of there being no valid reason for dismissal and that the work performed was for an indefinite period – grounds of appeal not made out – appeal dismissed – corresponding stay order to be set aside. Appeal by Spinifex Australia P/L t/a Spinifex Recruiting against decisions of Hamberger SDP of 13 March 2018 [[2018] FWC 1363] and 21 June 2018 [[2018] FWC 3686] Re: Tait

INDUSTRIAL ACTION – order against industrial action – ss.418, 424 Fair Work Act 2009 – two applications made by Broadspectrum (Australia) P/L – s.418 application for order that unprotected industrial action by employees stop – in alternative s.424 application for order to suspend or terminate protected industrial action – parties were in process of negotiating terms of enterprise agreement – protected action ballot order (PAB) issued on 13 June 2018 – prior Suspension Order issued to TWU suspending three forms of industrial action until 13 October [PR609847] – on 11 October 2018 TWU issued notice to applicant of industrial action of Paperwork Ban – on 22 October 2018 TWU issued applicant notice of industrial action for specific employees to stop work for four hours on 26 October 2018 – applicant submitted current and threatened industrial action needed to have commenced on or prior to 14 September 2018 to be authorised – therefore no employee claim action – Suspension Orders significant because primary question for s.418 application was whether Suspension Order extended to 14 September 2018 as current and threatened industrial action could have commenced in timeframe in FW Act therefore protected – Paperwork Ban and Industrial Action-Work Bans different types than in August Notice and Suspension Order – TWU unable to satisfy Commission that order suspending ’employee claim action’ was made resulting in extension of authorisation period in s.429 – Paperwork Ban and Industrial Action-Work Bans not examples of industrial action authorised by PAB – therefore cannot be employee claim action – Paperwork Ban constituted unprotected industrial action and stop order made under s.418 until 30 November 2018 – s.424 application dismissed. Broadspectrum (Australia) P/L v Transport Workers’ Union of Australia

CASE PROCEDURES – interim order – ss.589, 596 Fair Work Act 2009 – application for an order to stop bullying – applicant requested interim order to prevent respondent from taking disciplinary procedures – respondent opposed interim order application – contended no basis for making of interim order – action taken was reasonable management action taken in a reasonable manner – applicant contended undertakings referenced by respondent were insufficient and inappropriate – respondent subsequently confirmed in written undertakings that a disciplinary process would be paused pending resolution of complaints – applicant would be notified of any change to employment and respondent would not take action to implement change until resolution occurred – Bayly principles adopted – Commission found balance of convenience against of making interim order not triggered – complexity and associated efficiency in immediate matter absent – applicant granted liberty to make further application – substantive application assigned to Member for conference to be conducted. D.K.

TERMINATION OF EMPLOYMENT – demotion – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection from respondent that applicant not dismissed – applicant employed as Mechanical Service Technician – applicant remained employed by respondent but in different role with reduced responsibilities and remuneration – respondent contended that they were authorised to demote applicant through clause in contract – changes authorised by contract of employment not relevant to question of whether employee was dismissed – nevertheless contract did not authorise changes made to remuneration and duties – reasonable person would not have understood term in contract to mean respondent could unilaterally demote as a means of disciplining for misconduct – demotion used to discipline not meet business opportunity – respondent contended custom and practice resulted in incorporation of express term in contract – evidence did not establish existence of custom – respondent contended demotion was at suggestion or request – applicant did not make offer of demotion capable of acceptance – no certainty of terms – demotion at respondent’s initiative – jurisdictional objection dismissed – matter to be listed for hearing on merits.Harrison v FLSmidth P/L t/a FLSmidth P/L

TERMINATION OF EMPLOYMENT – misconduct – employer policies – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant dismissed after failing to comply with site attendance policy – refused to use biometric fingerprint scanners to record site attendance – no consent given by applicant to collection of sensitive information – site attendance policy reasonably necessary for respondent’s payroll and safety functions – Commission found applicant refused to follow lawful workplace policy – given multiple warnings and opportunities to follow site attendance policy – found dismissal not harsh, unjust or unreasonable – application dismissed. Lee v Superior Wood P/L t/a Superior Wood

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – respondent ceased payment of Remote District Allowance (RDA) to employees covered by Serco Immigration Services Agreement 2015 based in Darwin on 12 November 2017 – applicant contended decision to cease payment of RDA not a reasonable exercise of managerial discretion – sought orders reinstating RDA and back-payment – RDA previously paid under Agreement to employees of Wickham Point – Wickham Point closed 31 October 2016 – a number of employees transferred to Darwin – transferring employees told terms and conditions of employment would not change – Commission found obligation to pay RDA under agreement ceased in November 2016 after closure of Wickham Point – Serco continued to pay RDA until November 2017 – Commission rejected contractual claim as RDA never a contractual entitlement – Commission found no estoppel arose as evidence did not support finding that any representation was made that staff would receive RDA such that any employee relied upon it when agreeing to transfer – Commission not satisfied conduct of Serco gave rise to legitimate expectation RDA payments would continue – cases on managerial discretion indicate Commission should be reluctant to interfere with right of employer to manage its business unless conduct unjust or unreasonable – test is not whether employer could have acted more reasonably [Essential Energy] – Commission not satisfied it was unreasonable for Serco to stop paying the RDA – application dismissed. United Voice v Serco Australia P/L

TERMINATION OF EMPLOYMENT – demotion – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – respondent raised jurisdiction objection that applicant was not dismissed – applicant argued that respondent materially altered contract of employment by announcing a decision to demote him – applicant promoted to leading hand position – respondent removed applicant from leading hand position due to alleged poor performance – applicant argued employment terminated on the respondent’s initiative due to demotion and absence of the respondent to offer shifts – respondent argued made no decision to dismiss applicant – did not intend to end the employment relationship – Commission found removing contractual right to be employed as a leading hand and absence of any action by the respondent to offer shifts was removal of fundamental right in contract of employment – applicant’s contract of employment was therefore repudiated by respondent – Commission found dismissal was on the respondent’s initiative when applicant was advised that he would be removed from position as leading hand – concerns held by respondent with performance issues – Commission found performance issues warranted counselling or warning – no valid reason for dismissal – dismissal was harsh, unjust or unreasonable – reinstatement not appropriate in the circumstances – ordered compensation of $2,230.76 taxed according to law and an amount of $211.92 into superannuation fund. Whitfield v Master Tree Ninja t/a Tree Ninja/Adelaide Palm Tree Removal

A case load ‘lite’ day awaits the Fair Work Commission. The list is: Hunter Region Cash Converters Pty Ltd (Lynch), Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn (Crowley), The Vintage Cafe (Pradhan), Bidfood Australia Limited (Smith), Murrumbidgee Irrigation Pty Ltd (Heness), Waterside Constructions (Aust) Pty Ltd (Rizk), Macquarie University (Lewer), The Good Guys Discount Warehouse (Australia) Pty Ltd (Wynn), Busways Blacktown Pty Ltd (Tadros), Beaver Tree Services Aust Pty Ltd (Longden), Agnew Gold Mining Company Pty Ltd (Wilkinson), Inkjet’d Car Dealing (Clark), Sunshine Coast Independent Living Service (James), Novita Children’s Services (Martin), Specialist Surgical Supplies (Pethick).