TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant dismissed for alleged serious misconduct – respondent had gone into liquidation and neither the receiver and manager of the liquidator filed any material in opposition to the application – Commission unable to be satisfied that the applicant had committed serious misconduct – found the dismissal was unfair – no valid reason to dismiss and applicant denied procedural fairness – applicant sought reinstatement and payment of five months wages, being the time from his dismissal to the present date, because he has struggled to find work and will continue to struggle to find work because his reputation has been tarnished – found no position with the company to which he could be reinstated – Commission unable to make orders that new owner offer him employment. – reinstatement not appropriate in these circumstances – compensation appropriate – increased by 30% to compensate applicant for the loss of income beyond the sale of the business – ordered compensation of $13,752.96 plus and additional $1,306.53 to his nominated superannuation fund. Roberts v Fraser-Scott Developments P/L (Receivers and Managers Appointed) (In Liquidation)
May 6, 2016
TERMINATION OF EMPLOYMENT – extension of time – date dismissal took effect – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged outside 21 day statutory timeframe – in employer response form respondent contended applicant notified of dismissal on 7 October 2015 – in written submissions respondent submitted applicant was aware of her dismissal on 30 September 2015 – applicant submitted that she only received correspondence advising her of her dismissal on 7 October 2015 – termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated [Burns] – at hearing respondent acknowledged it had originally cited 7 October 2015 as the termination date and stated this had been done in error – material before the Commission indicated the respondent’s letter of 25 September 2015 did not state that employment had been terminated, it advised applicant employment will be terminated if she did not provide the required medical certificates by 29 September 2015 – proposed termination conditional on applicant not doing something within specified timeframe – applicant only received letter on 30 September 2015, though respondent had previously requested the medical certificates – applicant not advised she had been dismissed until email of 7 October 2015 – Commission held effective date of dismissal was 7 October 2015 and her application was lodged within the 21 day statutory timeframe – jurisdictional objection dismissed – application listed for conference. Hunt v Reinforced Concrete Pipes Australia P/L
May 6, 2016
CASE PROCEDURES – representation – s.596 Fair Work Act 2009 – application for relief from unfair dismissal – respondent submitted it was entitled to be represented by Australian Mines and Metals Association (AMMA) without needing to seek or be granted permission – submitted it was a member of AMMA and that AMMA was an association of employers not registered under the Fair Work (Registered Organisations) Act 2009 (RO Act) – FW Act provides that a party to a proceeding may be represented by an association of employers not registered under the RO Act – Commission considered meaning of ‘association of employers’ – satisfied that AMMA an association of employers – witness statement of AMMA Executive Director stated AMMA’s principal purpose the provision of industry advocacy and employment advice and representation for employers in the Australian resources industry, and that respondent a member of AMMA – witness statement unchallenged – Commission satisfied that a purpose of AMMA is the protection and promotion of interests of employers in matters concerning employment – Commission satisfied respondent a member of AMMA – satisfied respondent entitled to be represented by AMMA without needing to seek or be granted permission from Commission. Marrs v Subsea 7 i-Tech Australia P/L t/a Subsea 7
May 6, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – application made 14 days outside the 21 day time limit – applicant submitted she contacted ‘Fairwork’ and a law firm, however neither stated that the lodgment should be made within 21 days – applicant contacted the respondent directly to try to resolve the matter – Commission found applicant took positive steps to determine her rights but for some unexplained reason never sought to ensure that her application was made within time – respondent did not oppose the grant of extension of time – extension of time granted – matter referred to further programing. Raschilla v Ausino West P/L atf The Supercrane Unit Trust t/a Supercrane Engineered Lifting Technology
May 6, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – non-compliance with directions – ss.394, 399A, 587 Fair Work Act 2009 – application for relief from unfair dismissal – applicant directed to file material in support of his application by 21 March 2016 – on 16 March 2016 applicant sent email requesting extension of time to file material – applicant asked to advise how long he was requesting so his application for an extension of time could be considered – on 21 March 2016 applicant advised he sought a six month extension – on 22 March 2016 respondent wrote to Commission noting the applicant’s non-compliance and said there were ‘grounds for the Fair Work Commission to strike out this matter’ – applicant provided with a copy of respondent’s application and asked to respond by 14 April 2016 – on 6 April 2016 applicant advised request for a six month adjournment had been rejected – applicant again requested a six month adjournment – respondent filed submissions in support of its application – applicant did not comply with the directions issued for him to file his material by 14 April 2016 – primary submission was applicant’s claim should be dismissed because he had unreasonably failed to comply with two sets of directions – further submitted applicant will not in the foreseeable future be able to prosecute his claim and provide evidence, that this should give rise to finding that his application had no reasonable prospects of success – applicant did not provide any compelling reasons why he is not able to prepare his case in time normally provided to parties – significant amount of material on Commission’s website to assist unrepresented parties – Commission has discretion to dismiss application because there has been unreasonable non-compliance with directions – role of case management in Ghalloub adopted – Commission not satisfied applicant’s case has no reasonable prospects of success – not satisfied his failure to comply with directions means case is bound to fail – found applicant has not ignored the Commission – not satisfied applicant shown intention not to prosecute claim – Commission not prepared to dismiss applicant’s application – directions for applicant to file his material within 14 days of this decision issued – if applicant does not comply with these directions then his application will be dismissed without further notice. Costello v Queensland Rail Transit Authority t/a Queensland Rail
May 6, 2016
TERMINATION OF EMPLOYMENT – demotion – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a VPS Grade 6.2 from July 2013 – respondent notified the applicant in 2014 that the number of Grade 6 roles would be reduced from three to one – applicant not successful in keeping his Grade 6 role and accepted a job at the lower Grade 5 classification on 27 November 2014 – applicant alleged he was unfairly dismissed because he was demoted – lodged application with Commission on 4 December 2015 – respondent submitted applicant not dismissed – further submitted that if applicant was dismissed then his application was lodged out of time – Commission held applicant not dismissed at initiative of respondent – held he was demoted with his consent when he accepted the Grade 5 position – if Commission had held that applicant was dismissed the dismissal occurred on 27 November 2014 – thus application not lodged within 21 days of the dismissal – Commission held on balance there would have been no exceptional circumstances to warrant an extension of time – application dismissed. Powell v Department of Economic Development, Jobs, Transport and Resources (until recently Department of Transport Planning and Local Infrastructure)
May 6, 2016
CASE PROCEDURES – employer in liquidation – s.394 Fair Work Act 2009 – application for unfair dismissal remedy made in November 2015 – conciliation unsuccessful – matter listed for hearing – in February 2016 Commission received advice from applicant that respondent in voluntary liquidation – advice confirmed by contact of company – in April 2016 Commission wrote to applicant and advised that creditors had passed a resolution to wind up company and a liquidator had been appointed – correspondence sent to applicant and referred to s.500(2) of Corporations Act 2001 indicating that application cannot proceed without leave of the Court – applicant invited to be heard in relation to Commission’s position if applicant disagreed – no response provided – Commission not a ‘Court’ and is therefore unable to grant leave [Smith] – application stayed until leave of the Court granted. Stephens v Global Intellectual Group
May 6, 2016
ENTERPRISE BARGAINING – protected action ballot – ss.443, 437 Fair Work Act 2009 – respondent applied to extend period of written notice from three working days to seven working days – extension opposed by union – Commission considered meaning of ‘exceptional circumstances’ and whether circumstances justified granting extension – respondent submitted it was unable to mitigate adverse impact to public health and safety with only three working days’ notice, but may be able to develop suitable operational responses with additional notice – further submitted more notice required to communicate risk to public health and safety – union submitted that nothing in case unusual or uncommon and Respondent provided no evidence to support claims of public health and safety – Commission found respondent’s evidence about practical difficulties of informing the public of disruptions to be overstated – also found that health risks could be minimised through appropriate planning – respondent failed to identify any authority in waste collection industry where notice period was extended to seven days – Commission found that circumstances not ‘out of the ordinary, unusual, special or uncommon’ – protected action ballot order granted with three working day notice period. Transport Workers’ Union of Australia v SITA Australia P/L t/a SUEZ Environment and Waste Recovery
