TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – employer a small business – alleged reasons for dismissal included taking unauthorised annual leave, inappropriate use of work computer, making disparaging comments about boss, and making an overpayment to herself – witnesses not reliable – evidence did not support that respondent thought applicant’s conduct significantly serious to warrant immediate dismissal – dismissal not consistent with Code – considered factors in s.387 of FW Act – Commission found valid reason – dismissal unfair – reinstatement not appropriate – prospect of staying in employment long unlikely – compensation appropriate – amount reduced by 10% for misconduct – ordered compensation of $5,892, taxed according to law. Basse v Prestige Paving P/L
May 6, 2016
INDUSTRIAL ACTION – suspension of protected industrial action – endangering life – s.424 Fair Work Act 2009 – application for an order to suspend or terminate protected industrial action (PIA) – decision further to Reasons for Decision issued on 5 April 2016 [[2016] FWC 2090] – application sought orders from Commission that would suspend PIA for a period of three months – whether the interim order made on 3 April 2016 should now be replaced with a final order [PR578646] – protected action ballot order issued by Commission on 8 May 2015 [PR567171] – Commission found the PIA action as notified and taken was very significant, bearing in mind that it was suspended for five days after the Brussels terrorism attacks, and then terminated within a week of it being resumed – PIA had its serious effects because the Australian Border Force (ABF) had the required advance notification of when and where industrial action ‘might’ take place, but not much more – while it satisfies the legislated requirements, the uncertainty surrounding what will occur, and when and where, creates a very large risk for the ABF – Commission satisfied that ABF will have difficulty in properly discharging its functions with a continuation of PIA – increased risk of criminal or terrorist opportunistic behaviours – satisfied the PIA has threatened, is threatening, or would threaten to endanger the life, personal safety or health, or the welfare, of the population or of part of it – appropriate for Commission to make an order suspending the PIA for the period sought by the applicant – the most recent interim order of the Commission to be revoked and replaced with one requiring the suspension of PIA for 90 days from the date of the original interim order. Commonwealth of Australia (represented by the Department of Immigration and Border Protection) v CPSU, the Community and Public Sector Union
May 6, 2016
TERMINATION OF EMPLOYMENT – high income threshold – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision finding employee earnings did not exceed high income threshold for the purposes of determining whether employee was protected from unfair dismissal remedy – appellant submitted Commission erred in determining life insurance premiums paid by appellant were not part of earnings – permission to appeal granted – appeal raised issue concerning jurisdiction of Commission – issue not previously subject of Full Bench decision – Full Bench satisfied Commission erred in finding life insurance premium not an amount applied or dealt with on employee’s behalf – appellant paid premium for benefit of employee – should be taken into account when calculating employee earnings – employee earned more than high income threshold – appeal upheld – decision quashed – employee not protected from unfair dismissal remedy – unfair dismissal application dismissed. Appeal by Savannah Nickel Mines P/L against decision of Cribb C of 4 March 2016 [[2016] FWC 1335] Re: Crowley
May 6, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – Commission satisfied that because of operational reasons it was decided not to have a position of full-time winemaker/wine manager – applicant’s employment not subject to a modern award – Commission held discussions about performance issues and business issues likely to satisfy any award requirements regarding consultation – not reasonable to redeploy applicant in another position within the establishment – determined dismissal was a case of genuine redundancy – application dismissed. Sargeant v McAdam’s Lane P/L t/a Terindah Estate
May 6, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.384, 394 Fair Work Act 2009 – application for relief from unfair dismissal – no dispute respondent took over current business – applicant not given written advice stating prior period of service would not count toward her employment under new ownership arrangement – Commission found applicant had completed minimum employment period and applicant able to proceed further – further jurisdictional objection, made on the basis that applicant was not dismissed at the initiative of the employer, to be considered in concert with the merits of the application. Tomlin v Ashton Avenue P/L t/a Thornlie Square Newspower
May 6, 2016
TERMINATION OF EMPLOYMENT – remedy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission ordered appellant to pay employee sum of $15,189.18 as compensation for unfair dismissal – dispute between parties as to whether they had entered into binding agreement to settle employee’s unfair dismissal claim – Full Bench determined Commission erred at first instance in not holding a conference as required by s.397 of FW Act for contested facts – further erred in proceeding on basis that there was no settlement between parties, and that employee’s employment would have continued for further 34 weeks without providing reasons for finding, and recognising some but not all of income received by employee after dismissal – public interest enlivened by reason of arguable errors in first instance decision and the public interest associated in ensuring that parties be bound by genuine agreements made to settle legal proceedings – permission to appeal granted – substantive appeal to be heard. Appeal by HP Bowral P/L t/a Highlands Property against decision of Riordan C of 14 March 2016 [[2016] FWC 1590] Re: Luckman
May 6, 2016
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for unfair dismissal remedy lodged 22 days late – appeal against decision dismissing application for extension of time – at first instance appellant submitted delay due to lack of clarity of when employment was terminated – test under s.400 characterised as ‘a stringent one’ [Coal & Allied Mining Services] – rarely appropriate to grant permission to appeal unless arguable case of appealable error demonstrated – Full Bench of the view application an attempt to reargue case and seek alternative outcome – held no arguable case of appealable error identified [House v The King] – not satisfied circumstances enliven public interest [GlaxoSmithKline] – permission to appeal refused. Appeal by Reynolds against order of Drake SDP of 4 March 2016 [PR577725] Re: SDA Schools (North NSW) Ltd
May 6, 2016
MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – the July 2015 Award Flexibility decision dealt with a number of claims to vary certain modern awards in respect of time off in lieu of payment for overtime (TOIL) and make up time [[2015] FWCFB 4466] – interested parties provided with opportunity to make submissions in relation to content of provisional model TOIL term and proposition that model TOIL term be inserted in 113 modern awards – decision issued on 6 October 2015 dealt with submissions concerning content of model term [[2015] FWCFB 6847] – submissions filed regarding October 2015 model TOIL term fall into two broad categories: general submissions and award specific submissions – this decision only deals with one aspect of the general submissions and some other issues relating to the form and content of the October 2015 model TOIL term – October 2015 model TOIL term re-drafted in plain language (April 2016 model TOIL term) – 30 modern awards which contain overtime provisions do not presently contain a TOIL term – four of those awards are the subject of award specific submissions – Full Bench satisfied that variation of the remaining 26 modern awards to incorporate the April 2016 model TOIL term was necessary to ensure that each of these modern awards provides a fair and relevant minimum safety net – draft variation determinations to be published – interested parties to be provided an opportunity to comment on the plain language redraft of the model TOIL term – regarding the 21 modern awards that presently contain a penalty basis TOIL term, draft variation determinations will be published and interested parties provided an opportunity to comment. 4 yearly review of modern awards—Award flexibility
