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
May 17, 2016
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
