TERMINATION OF EMPLOYMENT – costs – ss.394, 400A and 611 Fair Work Act 2009 – applicant incurred costs improperly due to the behaviour of respondent – applicant contended costs associated with the conciliation which was abandoned because respondent kept asserting its jurisdictional objection – first jurisdictional hearing effectively abandoned due to porous nature of evidence of respondent and lack of witness attendance – respondent failed to comply with orders of the Commission which would have resolved the matter without the need for second hearing – Commission found respondent unreasonably caused applicant to incur costs and that it should have been reasonably apparent to respondent that it’s objection arising from the alleged resignation of applicant was bound to fail – costs ordered. Barron v Daromi P/L t/a RMD Tankers
May 17, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as telecommunications technician – dismissed due to on-going issues with his conduct and allegations that his behaviour was ‘toxic’ – given two weeks’ notice however was finished up three days early – applicant asserted he was dismissed because he made safety complaints and took sick leave – respondent a small business – whether dismissal was consistent with Small Business Fair Dismissal Code (the Code) – evidence confusing with voluminous text messages and emails – Commission not satisfied applicant was dismissed for his stated reasons – satisfied applicant’s conduct and the impact it had on workplace was a valid reason for dismissal – however Commission not satisfied applicant given an opportunity to respond to warning and rectify identified problems – found dismissal not consistent with the Code – notice given by respondent in an entirely inappropriate way – satisfied applicant unfairly dismissed – reinstatement not appropriate – ordered compensation of $3,120.00, less taxation. Maris v Australian Telecommunications Solutions
May 17, 2016
TERMINATION OF EMPLOYMENT – valid reason – operational circumstances – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant informed that her position no longer required – advised she was unable to be retained in any other role – respondent subsequently placed in administration – voluntary administrators pressed that application should not proceed – s.440D and s.500(2) of the Corporations Act 2001 considered – found no jurisdictional impediment to application – respondent indicated it did not wish to be heard in relation to the application – applicant asserted that she had not been compensated for hours worked, had not been given reasonable and fair notice of redundancy, dismissal was breach of employers duty of care and there was no prior consultation on the future of the respondent – s.387 of FW Act considered – found issues of underpayment not matters which can be rectified by Commission – respondent effected redundancies quickly and with little notice or consultation – absence of consultation does not render dismissal harsh, unjust or unreasonable – application dismissed. Billing v Aspire College of Education
May 17, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – earlier finding that applicant’s dismissal not a case of genuine redundancy [[2015] FWC 6360] – Commission found applicant’s position as Horse Trainer was redundant as respondent no longer required position of Trainer to be performed by anyone, because of operational requirements, however dismissal not a case of ‘genuine redundancy’ because respondent had not notified or consulted with the applicant in accordance with its obligations under the Horse and Greyhound Training Award 2010 – appeal lodged by applicant – grounds for appeal that applicant did not accept Commission’s finding as to the reasons for his dismissal – applicant insisted he was dismissed due to workplace injury and that other employees were, and had been employed to perform a range of duties he had previously performed on the farm, to which he could have been redeployed – appeal withdrawn during hearing – Commission’s findings in earlier decision remain undisturbed and unable to be challenged – findings not open to reagitation or reconsideration simply because applicant maintained a different point of view – whether applicant’s dismissal ‘harsh, unjust or unreasonable’ – UES v Harvey considered – applicant not prepared to accept earlier decision as to valid reason – lack of consultation relevant – dismissal unreasonable – found reinstatement inappropriate – compensation – application of Sprigg formula – workers’ compensation payments taken into account – other heads of claims rejected – compensation of $2,079.19 ordered. McCormick v Mt Pleasant Stud Farm P/L, No 2
May 17, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed due to absences from work and poor performance – respondent was small business – respondent did not warn applicant of risk of dismissal if he did not improve his performance – Commission found dismissal inconsistent with Small Business Fair Dismissal Code – found absences largely due to illness and not a valid reason for dismissal – however applicant’s poor performance, multiple mistakes and quality of work were a valid reason – Commission held dismissal harsh, unjust and unreasonable because respondent did not warn applicant of unsatisfactory performance before being dismissed – compensation of 6 weeks’ pay ordered. Ruming v Stella Engineering
May 17, 2016
TERMINATION OF EMPLOYMENT – casual – ss.384, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant worked for respondent as relief truck driver on work associated with a contract with Perth Metropolitan Waste Water Treatment Plants – respondent objection on basis applicant was a casual employee who was not a person protected from unfair dismissal – period of continuous service – Smiths Snackfood considered – Commission found applicant worked each week over the period of his employment – found the working hours were of a magnitude and frequency such that applicant was a regular and systematic casual – held applicant was a person protected from unfair dismissal – second preliminary issue of genuine redundancy not addressed by parties – objection dismissed – application to be listed for further hearing. Bayley v Temples (WA) P/L t/a Temples WA
May 17, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked limited hours as sales representative due to a return to work plan after workplace injury – respondent advised redundancy due to restructuring of the business and downturn in sales – applicant alleged bullying upon return to work and redundancy was a sham – further alleged replacement employee was performing her job – respondent submitted agency was contracted to fill sales representative function – Commission found dismissal was genuine redundancy as respondent restructured operations and no longer required role performed by applicant – any allegation of improper treatment of applicant did not make redundancy a sham – found requisite consultation requirements met – reasonable redeployment opportunities not available – Commission satisfied that agent was contracted to undertake sales function and applicant’s role was not replaced by employee – application dismissed. Devitt v Cheeki Holdings P/L t/a Cheeki
May 17, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – frustration of contract – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent contended that employment contract frustrated as applicant was driving work vehicles on suspended licence – respondent further submitted that if contract terminated due to frustration, there was no dismissal of applicant – applicant’s driver’s licence suspended on 28 July 2015 – on 3 October 2015, applicant stopped by police for using mobile phone whilst driving work truck – respondent formally dismissed applicant on 10 November 2015 – Commission found that contract not frustrated – doctrine of frustration applies where an intervening event renders performance of contract as something fundamentally different from that anticipated by parties – Commission of the view that despite licence being suspended in July, respondent maintained benefit of applicant’s work until October 2015 – employment relationship continued after purported frustration – Commission of the view that process of dismissing applicant by respondent in breach of s.387(b)-(g) of FW Act, however reason for dismissal outweighed breach – applicant architect of his own downfall – dismissal not harsh, unjust or unreasonable – application dismissed. Zeiter v Melway Bin Hire & Demolition P/L t/a Melway Bin Hire & Demolition
