TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed from 2 July 1990 and terminated on 2 June 2015 – applicant dismissed when the respondent became aware he was working for another employer, Essential Imaging (EI) – applicant had arranged a meeting for EI to tender a product to the respondent – had not declared his relationship with EI to the respondent – applicant had also received two prior warnings for misconduct – respondent submitted that applicant had a conflict of interest in setting up the meeting with EI and this combined with the applicant’s two previous warnings for misconduct was a valid reason for his termination – applicant submitted his work with EI was not a conflict of interest and thus his dismissal was harsh, unjust or unreasonable – Commission held applicant’s failure to disclose his involvement with EI, when considered with the two warnings previous issued to him, was destructive of the necessary confidence between the employer and employee – found valid reason for dismissal – held applicant’s length of service did not undermine the validity of his dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Liapis v Cryovac Australia P/L t/a Sealed Air
May 17, 2016
ENTERPRISE BARGAINING – scope order – s.238 Fair Work Act 2009 – two applications heard together – both applications seek an order that would pertain to a proposed agreement to cover employees engaged at the Santos GLNG liquefied natural gas processing facility located on Curtis Island, off the coast of Gladstone, Queensland, (LNG Plant) – neither application seeks to cover all employees at the LNG Plant – controversy between the parties as to who should be within the scope of bargaining is confined to the three functional categories of Panel Technicians, Field Team Leaders and Laboratory Technicians – proper approach to two concurrent scope order applications – Kwinana considered – Commission satisfied the applicants in both matters have met good faith bargaining requirements – whether scope order proposed will promote fair and efficient conduct of bargaining – Santos had not made a proposal for separate bargaining for the group excluded from its preferred scope – raised an immediate issue concerning the interests of Field Team Leaders, Panel Technicians and Laboratory Technicians who wished to enterprise bargain – Santos submitted it would not object to bargaining for separate agreements, however it would not initiate bargaining – Commission concluded that making the AWU order would promote the fair and efficient conduct of bargaining, whereas making the Santos order would not – no need to further consider Santos’s application – Santos’s application dismissed – whether the group of employees was ‘fairly chosen’, taking account of geographical, operational or organisational distinctness – found Field Team Leaders, Panel Technicians and Process Technicians operationally distinct and were included in a group who were geographically distinct – satisfied AWU group was fairly chosen – Commission satisfied it was reasonable in all the circumstances to make the order as sought by the AWU. Australian Workers’ Union, The v Santos Ltd; Santos Ltd v Australian Workers’ Union, The and Ors
May 17, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – nine applications for unfair dismissal – two matters discontinued prior to decision – applicants employed as Locomotive Drivers – respondent argued dismissals were cases of genuine redundancy – Commission satisfied that as a result of reduction in customer demand and the loss of multiple sites, a reduction in workload altered the respondent’s operational requirements and resulted in labour rationalisation – satisfied the roles of each applicant no longer required to be performed by anyone – Commission considered the respondent’s duty to consult employees – respondent submitted it had complied with its obligations under enterprise agreement – meeting held with union to provide advance notice followed by written notification to union and employees – respondent held multiple meetings and provided numerous opportunities for employees to respond – Commission satisfied consultation requirements adhered to – none of the applicants lodged an expression of interest for voluntary redundancy or a written expression of interest to transfer to another site – would not have been reasonable in the circumstances to redeploy applicants – applications dismissed. Skinner and Ors v Asciano Services P/L t/a Pacific Bulk National
May 17, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant and three workmates left work before the end of their shift – prior to leaving work applicant did not detach a load of steel from an overhead crane he had been operating – following an investigation into these events applicant was dismissed – respondent submitted applicant breached the National Overhead Crane Operations Standard Operating Procedure & Competency Assessment (SOP) and left work before the prescribed finishing time for his shift without permission – applicant conceded he breached some requirements of the SOP however believed he was leaving the crane in a safe position when he departed work – Commission satisfied applicant’s conduct constituted a patent and substantial breach of the SOP – found valid reason for dismissal – however Commission not satisfied respondent had a valid reason to dismiss applicant in relation to his early departure – employees given permission by Warehouse Co-ordinator to leave, and employees regularly worked back without the payment of overtime to complete work after the conclusion of their shift – found dismissal not harsh, unjust or unreasonable – application dismissed. Marshall v OneSteel Trading P/L
May 17, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed on basis that he breached relevant safe work procedure of operating a dozer (Dozer SWP) in three ways – respondent argued one of the ‘Must Do’ safety rules in the Dozer SWP is ‘obey the 50-30 rule at all times’ – applicant found to have breached procedure in a substantial way – applicant failed to ensure clear precise positive communications used whilst conducting operations – Commission found applicant’s breach of Dozer SWP provided a sound, defensible and well-founded reason for dismissal relating to his conduct – applicant involved in four previous safety incidents during his period of employment – found valid reason for applicant’s dismissal – application dismissed. Garland v Wambo Open Cut P/L
May 17, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – employees took protected industrial action – applicant left abusive message on mobile phone of another employee who he believed not to have participated in the protected industrial action – complaint was made and investigated by respondent – applicant summarily dismissed for misconduct – Commission found valid reason for dismissal, however dismissal a disproportionate response to applicant’s conduct which was as out of character – applicant’s good service and work performance did not appear to be considered – disciplinary outcome appeared inconsistent with other similar matters – found dismissal harsh, unjust or unreasonable – reinstatement appropriate – order that continuity of service be maintained appropriate – no order for lost wages. Treen v Adelaide Services Alliance t/a Allwater JV
May 17, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with a dispute concerning decision by respondent to contract out potato receival operation at Ballarat facility – respondent declared jobs of employees working in potato receival redundant and intended to redeploy employees in into vacancies in other areas of Ballarat facility – AMWU disputed right of respondent to require employee to transfer to other work within Ballarat facility – contended respondent must follow procedures in clause 12 of McCain Foods (Aust) Pty. Ltd. Ballarat Production Enterprise Agreement 2014 – respondent contended clause 12 did not apply because no reduction in the size of the workforce would occur because of the redundancy situation – Commission applied approach outlined in Golden Cockerel to determine whether subject matter of dispute fell within clause 12 of agreement – Commission found applying the plain meaning of the words of clause 12 (without 12.1.2 to 12.1.12) would lead to absurd outcomes – found context in which clause 12 operated strongly lead to a conclusion that the reference to workforce in clauses 12.1.2 and 12.1.3 of agreement was to the number of persons needed by respondent at Ballarat facility – Commission found there had been a reduction in the number of persons needed at Ballarat facility because of the redundancy of potato receival jobs – to give meaning to the terms ‘redundancy’ and ‘retrenchment’ having regard to context and purpose of clause 12 required that the terms be given different meanings in different provisions within clause 12. – to the extent that issues in dispute raised questions as to the application of clause 12.1 then clause 12.1 enlivened in matter – Commission concluded matter in dispute was a matter within the operation of clause 12 of agreement. ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU) v McCain Foods (Aust) P/L
May 17, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – initial decision related to application for unfair dismissal remedy [[2015] FWC 8432] – applicant found to be unfairly dismissed from employment with respondent – applicant made costs application against respondent – incurred costs gaining legal advice in relation to unfair dismissal – submitted required legal assistance due to complexity of case – contended should have been evident to respondent dismissal process deemed unfair – claimed respondent knew this by its offer to settle prior to hearing – claimed costs incurred because of unreasonable acts or omissions of respondent – behaved vexatiously by email sent before hearing indicating respondent would make no further offers when it made two further offers and threatening to make costs application – delays in finalising matter deliberate and to advantage of respondent – reasonable person will determine if and how to respond to offer of settlement after considering all the circumstances of the case including terms of settlement in relation to relief sought [Roy Morgan Research] – Commission found respondent acted in manner directed to having matter dealt with expeditiously but fairly for purposes of s.400A – whether proceeding instituted vexatiously looks to motive of party in instituting proceeding – where predominant purpose in instituting proceeding is to harass or embarrass the other party, or to gain collateral advantage [Holland] – Commission rejected respondent behaved vexatiously or unreasonably for purposes of s.611(2) – fact that respondent may have taken hard line in settlement discussions cannot be taken to be done with predominant purpose to harass or embarrass applicant – also not satisfied reasonably apparent to respondent that its response to application had no reasonable prospects of success – noted applicant sought to recover costs incurred before commencing actions with Commission – application for costs dismissed. Sidney v Employsure P/L
