TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant dismissed for misconduct – respondent alleged applicant misrepresented himself as a supervisor to a client of the respondent and became privy to information that the client would normally only share with decision makers or supervisors – when confronted with this accusation the applicant responded that he had safety obligations – respondent decided the applicant’s conduct was unacceptable and his employment terminated – Commission satisfied that the applicant represented himself to the client as a supervisor when he was not one – however not satisfied that his conduct warranted a dismissal – no valid reason for the termination of the applicant’s employment – termination was harsh because he was terminated summarily and even if his conduct had been sufficient to justify dismissal it was not of such a character as to warrant summary dismissal – Commission satisfied that applicant’s misconduct contributed to decision to dismiss him and so reduced the amount of compensation payable by 20% – ordered compensation of $9,120.00 and an additional $866.40 to his superannuation fund. Jarvis v Croker Constructions
May 3, 2016
ANTI-BULLYING – likely to continue – s.789FC Fair Work Act 2009 – application for an order to stop bullying – preliminary jurisdictional issue of whether future risk of workplace bullying present – application regards alleged bullying conduct by Managing Director of a business in the online healthcare sector – applicant has not been present in workplace since mid-July 2012 when during an absence from work she was apparently denied access to her work emails – due to this and other factors the applicant considered at the time that she had been dismissed – since this time there has been various forms of litigation including an unfair dismissal application and complaints made by the applicant to the AHRC alleging dismissal from employment – litigation has also included defamation and contempt proceedings taken by the respondent – the applicant also made a workers compensation claim arising from the events in 2012 and this claim has been accepted by the relevant insurer and remains on foot – the applicant sought to rely upon conduct of the employer and its representatives in support of its application under s.789FC – respondent sought that the application be dismissed on grounds of no reasonable prospects of success, contending the applicant was no longer an employee and there was no reasonable basis upon which it was anticipated the employee would return to the workplace – applicant contended she was not dismissed and sought to return to the workplace without the risk of future unreasonable conduct – employer contended that because the applications claiming dismissal initiated by the applicant did not ultimately proceed and reinstatement was not granted, parties have, in effect, conducted themselves in a manner consistent with the absence of any employment (or contractual) relationship – G.C. and Atkinson considered – Commission satisfied that applicant no longer employed by respondent employer – return to work arrangements linked to ongoing employment – no reasonable prospect that applicant returning to workplace as a worker – no reasonable prospects that orders can be made – discretion to be exercised – outstanding matters may be taken up in other forums – application dismissed. Ms KM
May 3, 2016
TERMINATION OF EMPLOYMENT – contractor or employee – termination at initiative of employer – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent raised two jurisdictional objections – applicant not an employee but an independent contractor, and there was no dismissal of applicant by respondent – applicant submitted that the employment relationship started as one of client/independent contractor however that changed and became a relationship of employer/employee – approach to distinguishing between employees and independent contractors considered [Do Rozario] – Commission found applicant was an employee of the respondent at the date of dismissal – found respondent intended to significantly alter the nature of the relationship that had existed – intended change was to convert applicant from a permanent ongoing relationship to an irregular casual relationship – change in relationship unilaterally initiated and implemented by respondent – effect of the unilateral change was to end the ongoing permanent relationship – found applicant was dismissed – Commission satisfied the dismissal of applicant was harsh – reinstatement totally inappropriate – ordered compensation of $7,000 taxed at the appropriate rate. Rohde v Bedlam Enterprise P/L t/a Cola Solar
May 3, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent submitted applicant’s dismissal was a genuine redundancy due to no longer requiring security services on Quill Way site – applicant conceded the requirements in s.389(1)(a) and (b) of FW Act had been satisfied – only issue in dispute was whether respondent had fully explored redeployment opportunities for applicant – respondent submitted it had no obligation to displace contractors to create a vacancy for applicant and it was not reasonable for respondent to explore redeployment outside of Western Australia – submission consistent with decision in Huang – Commission satisfied it was not reasonable in the circumstances for applicant to be redeployed to various casual positions and applicant refused the positions when offered – applicant did not express an interest in interstate or overseas redeployment prior to Determinative Conference and therefore the Commission found it was not unreasonable that respondent did not contemplate interstate or overseas redeployment – at the Determinative Conference the applicant first indicated that he would be prepared to consider interstate or overseas redeployment and that he believed that the respondent’s failure to consider such opportunities made his otherwise genuine redundancy not genuine – as a result of applicant’s failure to comply with the Directions of the Commission there was no evidence before the Commission on which it could find on the balance of probabilities that there was a job, position or other work within the respondent or an associated entity in Western Australia or elsewhere to which it would have been reasonable in all the circumstances to redeploy the applicant – found the dismissal was a case of genuine redundancy – application dismissed. Watson v G4S Secure Solutions P/L t/a G4S Security
May 3, 2016
TERMINATION OF EMPLOYMENT – incapacity – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed the appellant’s application for unfair dismissal remedy – appellant was employed as a Credit Assessment Officer for respondent – respondent became aware that appellant had been banned from engaging in credit activities for a period of five years and having had the Australian credit licence of her company cancelled – at first instance Commission found valid reason for dismissal because it was likely the appellant could no longer perform the inherent requirements of her role and the respondent could no longer have trust and confidence in the appellant – appellant sought permission to appeal – appellant argued public interest enlivened because first instance decision manifested substantial injustice, had a result which was counterintuitive, applied legal principles which were disharmonious with previous decisions of Commission and decision was attended with sufficient doubt to warrant reconsideration – test under s.400 of FW Act is a ‘stringent one’ [Coal & Allied Mining Services] – Full Bench found first instance decision was of a discretionary nature – House v King considered – found first instance decision detailed and well-reasoned – first instance decision addressed relevant statutory factors and made findings available on the evidence – Full Bench found no significant errors of fact – not satisfied grounds of appeal attract public interest – permission to appeal refused. Callychurn v Australia and New Zealand Banking Group t/a ANZ
May 3, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – conversion – s.739 Fair Work Act – dispute concerns application cl.59.5 Murdoch University Enterprise Agreement 2014 – jurisdiction not in contention – cl.109 dispute settlement procedure provides for Commission to arbitrate – applicant employed over four years on four fixed term contracts, with two extensions – agreement allows for conversion to continuing employment after three years – employer submitted conversion process a two-step process – depends on which provision of agreement the fixed term contract is made – Commission considered purpose of conversion clause was to minimise use of fixed term contract – found employee employed under cl.59.5(a) for specific task or project – contract extension extended the contract, it did not vary or replace it – given purpose of cl.59.5 if conversion was not intended to apply to people employed under subclause (a) this would have been clearly stated – no prohibition in subclause – Commission held employee eligible to make application for conversion to continuing employment – application should be considered at time application made and contract employee was on at that time – employee should not be disadvantaged by delay in having application properly considered by employer. Hayes v Murdoch University
May 3, 2016
RIGHT OF ENTRY – revocation of permit – s.510 Fair Work Act 2009 – pecuniary penalty imposed by Federal Circuit Court against permit holder for admitted breach of s.500 FW Act – Director of Fair Work Building Industry Inspectorate (Director) indicated a wish to lodge submissions in relation to s.510 FW Act – the Commission, upon becoming aware of imposition of pecuniary penalty being applied to respondent, obliged to suspend or revoke respondent’s right of entry (ROE) permits and to determine ban period – Director submitted Commission should revoke ROE permits for two years – Director submitted that Commission should have regard to fact that permit holder’s conduct attracted a penalty representing 88% of maximum penalty Federal Circuit Court was empowered to impose, and that in an analogous case Commission had revoked permit holder’s ROE permit for 19 months [Perkovic] – Director also pointed to newspaper article in which permit holder quoted, which Director submitted showed complete lack of contrition – Construction, Forestry, Mining and Energy Union (CFMEU), on behalf of permit holder, submitted actions of permit holder were unique, had not previously occurred in seven years in which he had held permit, and were not likely to be repeated – CFEMU submitted permit holder’s anxiety and depression, for which he was receiving treatment, should be taken into consideration – Commission aware permit holder had been previously ordered to pay court imposed penalty for breach of industrial law, albeit unrelated to ROE matters – Commission mindful that no evidence suggested any remorse expressed by permit holder – permit holder’s behaviour of serious kind – while Commission accepted evidence of anxiety and depression, no evidence led by CFMEU that permit holder’s stressors would be alleviated – Commission satisfied ROE permits should be revoked for two years, after which permit holder may seek to persuade Commission that he is a fit an proper person to hold ROE permit. Director, Fair Work Building Industry Inspectorate v Vink
May 3, 2016
TERMINATION OF EMPLOYMENT – small business employer – ss.23, 394 Fair Work Act 2009 – s.50AAA Corporations Act 2001 – application for relief from unfair dismissal – respondent objected on the bases that applicant had made another claim relative to his employment, and that that it had only one employee at the time of the dismissal – applicant made an application to the Fair Work Ombudsman for underpayment – Commission held underpayment application did not represent an impediment to the pursuit of his unfair dismissal application – no dispute that at the time of dismissal the applicant was the only employee engaged by the respondent – dispute whether another entity which operates in South Africa should be regarded as an associated entity – South African corporation employed 21 people at the time of the applicant’s dismissal – Corporations Act requires that Commission take into account the employees of the related, but overseas operated, corporation – Commission found respondent did not meet the definition of a small business – satisfied applicant has exceeded the requisite minimum employment period – application to be referred for conciliation. Pretorius v Gardens of Italy P/L
