TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy lodged 22 minutes late – applicant attempted to lodge application using incorrect email address – applicant re-submitted application shortly after receiving rejection email – Commission held reason for delay consistent with an exceptional circumstance [Nulty] – Commission of the view application would have been lodged within time had it not been sent to incorrect email address – exceptional circumstances established – extension of time granted – application to be referred for conciliation. Houston v ID Fabrication.
April 27, 2016
Jones Lang Lasalle (NSW) Pty Ltd is one of twenty-three entities to appear in the Fair Work Commission to defend their action (or inaction) in regard to various staff members. The full list includes: Jones Land LaSalle (NSW) Pty Limited (Whatling), Gunnedah Preschool Kindergarten Association Incorporated (Leys), Coles Supermarkets Australia Pty Ltd (Brumfield), Quality Bakers Australia Pty Ltd (Mutimer), Toll Energy Logistics Pty Ltd (O’Dea), Curtin University of Technology (Aoun), Claremont and South Port Aged Care Ltd (Badugodahewa), Dairy Country (Barkho), Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited (Hart), The Salvation Army Australia Southern Territory (Sager), Golridge Pty Ltd (Solman), The Ethnic Communities Council of Queensland (Sutehrland), Planet Plumbing (Qld) Pty Ltd (Zanda), KDR Gold Coast Pty Ltd (Lahey), Beaumont Care Pty Ltd (Robertson), AGA Assistance Australia Pty Ltd (McKenzie), Trans North Bus & Coach (Doyle), Southern Cross Group Services (Grobbelaar), Transdev Brisbane Ferries Pty Ltd (Metcalfe), Yeast2west Bakeries Pty Ltd (Skinn), Kwasi Studios (Demin), Calvary Health Care Adelaide Limited (Hansen), Robern Menz (MFG) Pty Ltd (Brittan).
April 27, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked as Breakfast Chef for Morris Corporation at Karratha mining resources camp – applicant engaged under sub-class 457 visa – applicant acknowledged that number of performance issues were raised with him – issues generally related to manner of applicants relationship with other employees – these incidents were subject of disciplinary discussions with applicant – applicant disputed manner in which discussions occurred and contended discussions were unfair and breached policy position promoted by employer – applicant asserted that the final warning respondent contended was given, was never given to him – applicant contended no valid reason for termination of employment – applicant also contended termination process was unfair and applicants concerns about behaviour of other employees were not properly investigated – respondent asserted that applicants’ repeated intimidation and aggression directed at other employees constitute valid reason for termination and that process of termination was fair – Commission found valid reason for termination of employment – termination of employment unjust as Commission not satisfied that allegations against applicant were sufficiently specified so that applicant was able to properly respond to them – termination of applicant was unreasonable as extent of any other employee contribution to his behaviour was not properly established to Commission – applicant unfairly dismissed – reinstatement not appropriate – compensation ordered. Reposar v Morris Corporation Ltd
April 27, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant was employed as a security guard at a detention facility – applicant was given duty of maintaining constant watch of a detainee who subsequently escaped – respondent argued applicant had engaged in serious misconduct because he had been negligent in the conduct of his duties – applicant commenced his shift without checking that his radio was working properly – respondent submitted applicant failed to maintain at least an arm’s length distance from detainee – applicant failed to ensure that the equipment he had been given was fully operational – Commission of the view applicant’s non-compliance with requirement to maintain at least an arm’s length distance from detainee was a significant matter – Commission concluded the dismissal was not harsh, unjust or unreasonable – application dismissed. Haidari v Serco Group P/L t/a Serco Immigration Services
April 27, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – ss.394, 399A Fair Work Act 2009 – member assisted conciliation took place but only applicant representative appeared and applicant was not contactable – applicant contacted Commission and sought 28 day extension to hearing date on the basis applicant representative unavailable – respondent strongly opposed application and Commission refused applicant request – respondent applied for s.399A application on basis applicant failed to attend conciliation and was put to unnecessary costs and time by needlessly preparing for conciliation – applicant contended application should not be dismissed as he would be denied natural justice – further contended he did not attend as he had looked at the wrong Commission form and made an honest mistake – Commission satisfied applicant unreasonably failed to comply with a direction of the Commission – found mitigating circumstances, including in particular, the substantial representative error that led to him not filing his required materials – Commission did not consider it appropriate to exercise discretion to dismiss the unfair dismissal application – application to be heard – directions to be issued. Johnston v Onesteel Manufacturing P/L t/a Arrium
April 27, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was a Senior Land Officer dismissed summarily for misconduct – applicant submitted dismissal was reprisal for lodging a complaint resulting in Queensland Crime and Corruption Commission investigation (QCCC investigation) – respondent submitted dismissal due to conduct breaching respondent’s directions requiring absolute confidentiality in respect of the QCCC investigation and not to communicate about the investigation or make disparaging comments about colleagues via general email and breaching respondent’s code of conduct (code) – Commission satisfied that directions given to applicant not to communicate except to named persons, and not to use the general email for contentious communication, were lawful and reasonable – directions clearly communicated to applicant and he either knew and understood them, and consequences of breach, or ought to have – Commission satisfied applicant’s conduct was deliberate in breaching directions and code – found valid reason for dismissal – summary dismissal proportionate to conduct as conduct deliberate, unacceptable and had potential to cause considerable disruption in workplace – held dismissal not unfair – application dismissed. Ellen v Gladstone Area Water Board
April 27, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on basis dismissal was case of genuine redundancy – applicant argued dismissal not genuine redundancy as it would have been reasonable to be redeployed within the respondent’s business – respondent contended that due to decline in business redeployment not possible – Commission found that respondent’s decision to make applicants position redundant was genuine – satisfied that the position made redundant was created in failed restructure of the company by the then Managing Director, who later resigned – found decision to make position redundant was because of changes in the operational requirements of the company – dismissal case of genuine redundancy and not unfair – application dismissed. Johnston v Andy’s Earthmovers (Asia Pacific) P/L t/a Andy’s Earthmovers
April 27, 2016
CASE PROCEDURES – appeals – extension of time – ss.394, 400, 604 Fair Work Act 2009 – Full Bench – application for extension of time to lodge appeal – application lodged 124 days out of statutory time limit – application for unfair dismissal remedy dismissed at first instance – Full Bench found no satisfactory explanation for delay of lodgment – appellant provided no evidence of his claim of mental illness – while appellant was outside the country at time decision at first instance issued did not prevent him using technology to pursue his rights given his education and skills – no arguable case for appealable error – no case put of apprehended or actual bias – Full Bench found no public interest in appeal – application for appeal out of time – is not competent – permission to appeal refused. Appeal by Mohapatra against decision of Roe C of 2 September 2015 [[2015] FWC 5976] Re: Acciona Energy Australia Global P/L t/a Acciona Energy
