TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant terminated for engaging in threatening behaviour towards a colleague and for flippant disregard of a colleague’s concerns about bullying and harassment – applicant engaged in aggressive and inappropriate behaviour and was reminded of the need to comply with the employer’s code of conduct – when required to complete an event statement form regarding obscene graffiti, constituting bullying and harassment, the applicant drew obscene drawings on form – applicant confronted a colleague in an aggressive and intimidating manner because he believed the colleague had ‘back-stabbed’ him – misconduct of applicant constituted a valid reason for termination – found applicant’s dismissal proportionate to the gravity of his conduct – dismissal not harsh, unjust or unreasonable – application dismissed. Masoe v MMA Vessel Operations P/L
May 17, 2016
ENTERPRISE BARGAINING – bargaining dispute – s.240 Fair Work Act 2009 – application to deal with bargaining dispute – applicant, AWU and CFMEU (the unions) bargaining for new enterprise agreement – at time of application, applicant and the unions had met on eight occasions to bargain for new agreement – Commission also convened five conciliation conferences – applicant requested Commission make recommendation or express opinion about dispute – the unions submitted that relying on the expired agreement was not an ‘acceptable outcome’ – Commission to express an opinion on two issues – issue 1 related to allocation of work – applicant expressed desire to change way in which work allocated to employees in proposed agreement – the unions expressed desire to maintain current work allocation – Commission of the opinion that applicant had processes at its disposal to introduce change or could adopt a ‘win-win’ approach by increasing share of overall work – applicant adopted the latter – Commission submitted alternative strategies available if impasse not broken – issue 2 related to classification of employees – applicant sought replacement agreement contain a clause that removed restrictiveness of reallocation of work outside employees’ classification – the unions opposed applicant ‘being in a position to work down’ employees – Commission interpreted ‘work down’ to mean that employee can be directed to carry out less skilful work – Commission of the view that if ‘down work’ not disproportionate to time/activities and within employee’s skills and qualifications, direction by applicant to undertake other work consistent with Printing (Newspaper) Award 1979. West Australian Newspapers Limited
May 17, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Patrick Terminals Enterprise Agreement 2012 – 61 individuals affected – applicants were employees with personal grievances arising from a significant workplace change – alleged unfair treatment arising from process respondent adopted in order to select employees who would be made redundant, or redeployed to alternative positions – introduction of automation technology and the associated restructuring of terminal operations (the selection process) – respondent rejected claims advanced by applicants and contended the complaints involved the selection process itself, rather than any misapplication or error attendant with that process – respondent raised three jurisdictional objections – first that MUA had no standing to bring application before Commission – second was personal grievances of applicants was not a dispute that Commission could deal with – third was a specific exclusion contained in company policy that excluded Commission from dealing with issue – Golden Cockerel considered – Commission not persuaded jurisdictional objections established any basis to prohibit Commission from providing a determination of the application – Commission did not find any error, misapplication or other mistakes such that unfairness was perpetrated or visited upon the applicants – application dismissed. Duggan and Ors v Patrick Stevedores Holdings P/L
May 17, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent submitted that applicant had abandoned his employment on or about 26 December 2015 – applicant attended respondent’s business on 28 December 2015 stating that he had had enough and demanded payment of all entitlements – applicant submitted dismissal took effect when he opened his mail after a two week holiday and found a letter from respondent – text message correspondence between parties on 5 January 2016 relating to payment of entitlements and return of shop keys – respondent submitted this was a separation payment – applicant submitted it was his holiday pay – Commission not persuaded that applicant held the belief that his employment was on-going – applicant not dismissed – no basis to pursue an unfair dismissal application – application dismissed. Dower v Beeston Investments P/L t/a Port Butchers
May 17, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was on personal leave and wrote letter to respondent advising of grievances he had regarding entitlements – mediation arranged by respondent – parties engaged in ‘heated’ telephone conversation on morning of scheduled mediation – respondent submits applicant resigned at this point – respondent sent two further emails to respondent accepting resignation – applicant responded that he had not yet tendered resignation – respondent finalised applicant’s wages and entitlements – whether applicant resigned during phone conversation with applicant – Commission held on balance that applicant had no intention of resigning employment – respondent failed to give proper attention to emails sent by applicant – respondent continued to act as if applicant had resigned when applicant had not – respondent did not make further enquiries to ensure resignation was really intended and therefore termination of employment at respondent’s initiative [Ngo] – no valid reason for dismissal – dismissal of applicant unreasonable – dismissal unfair – reinstatement inappropriate – underlying conflict between parties unresolved – facts indicated applicant likely to have worked for four more weeks – maximum amount Commission would have ordered in circumstances – same amount paid out by respondent – no order for compensation issued. Batrick v Wintersun Holdings P/L t/a Suckling Civil & Structural Engineers
May 17, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment – s.394 Fair Work Act 2009 – applicant employed as motor mechanic and accepted employment on basis he was to work six days per week – applicant not entitled to change working hours except by agreement – applicant advised respondent he no longer wanted to work six days per week – respondent advised applicant that he was no longer needed if he would not work six days per week – after conversation applicant left workplace and only returned to collect his tools – Mohazab considered – Commission found nothing in what was said to applicant indicated respondent was terminating employment – respondent did not tell applicant to leave work or give him notice of termination – applicant left employment because he misunderstood what respondent said – Commission satisfied respondent did not terminate employment – not satisfied that respondent’s conduct gave applicant no choice but to resign – applicant not dismissed because termination did not occur at initiative of the employer – application dismissed. Ball v Discount Tyre and Auto Service Centre
May 17, 2016
ENTERPRISE AGREEMENTS – notice of representational rights – ss.174, 185, 186 Fair Work Act 2009 – application for approval of the Transit (NSW) Services P/L, Transport Workers Union and Bus Drivers Enterprise Agreement 2015 – TWU opposed application, claiming no genuine agreement due to misleading communications, failure to take all reasonable steps to explain terms and multiple votes in short period – further grounds of opposition that agreement contained unlawful terms and had deficiencies in the Notice of Employee Representational Rights (NERR) – leave granted for counsel to appear due to complexity of issues raised – TWU submitted employees were misled over incentive payment – held no employee could have reasonably concluded this amount would not be taxed – submitted a failure to translate into other languages meant obligations not complied with – no evidence to support this as all reasonable steps taken, including inviting employees to attend information sessions and ask questions – TWU argued ballots conducted in quick succession implied Transit would not accept ‘no’ to approval – held that as voting processes conducted in accordance with procedural requirements, no reason to conclude it was not genuinely agreed to – no unlawful term held to exist regarding back-pay, following Transit undertaking to remove a precondition of TWU support for approval – TWU finally submitted agreement cannot be approved due to NERR notice conflicting with prescribed notice as per regulations – Transit contended error of referring to incorrect website so insignificant it would not be appropriate to prevent approval – Peabody applied – Commission unable to accept that providing an incorrect website reference could be described as insignificant, minor or inconsequential – as s.181(2) of FW Act not complied with, Commission not satisfied agreement genuinely agreed to – held that no valid NERR was provided – application dismissed. Transit (NSW) Services P/L t/a Transit Systems
May 17, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent raised two jurisdictional objections, the first contending that the application was lodged outside the 21 day statutory timeframe, and the second that it was a small business and the dismissal was consistent with the Small Business Far Dismissal Code (the Code) – applicant dismissed after had heated argument with co-worker – applicant submitted he did not become aware of dismissal until later date – applicant subsequently visited doctor and issued with WorkCover certificate stating unfit for work – applicant submitted that respondent told him to come back to work if showed more respect – unsuccessful workers’ compensation claim lodged – Commission considered whether applicant’s dismissal consistent with the Code – respondent submitted applicant summarily dismissed for reasons including failure to comply with health and safety by not wearing PPE and unacceptable workplace behaviour – submitted applicant became aggressive in incident involving co-worker – in assessing summary dismissal necessary for Commission to determine whether employer genuinely held belief that conduct was sufficiently serious to justify immediate dismissal and secondly whether employer’s belief was based on reasonable grounds [Ryman] – Commission found applicant summarily dismissed – considered meaning of serious misconduct – satisfied applicant’s conduct in intimidating and threatening co-worker sufficiently serious to justify immediate dismissal – found dismissal consistent with the Code – jurisdictional objection upheld – application dismissed. Seffelaar v M & P Painting Contractors P/L
