TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – eight applications for relief from unfair dismissal – objection by respondent that dismissals were cases of genuine redundancy – submitted it had restructured operations – overall number of jobs or positions or roles within the organisation had decreased – employees given the opportunity to apply for new positions – Commission satisfied respondent no longer required the jobs of the applicants to be performed by anyone – consultation obligations met – redeployment not reasonable – found the applications involved circumstances of genuine redundancy – jurisdictional objections upheld – applications dismissed. McCarthy and Ors v Patrick Stevedores Holdings P/L
April 27, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant was dismissed after investigation into number of allegations made against him – letter of termination advised that three allegations of misconduct had been substantiated – prior history of complaints made by applicant against other employees that had not been investigated – Commission found that there was not sufficient evidence to support first allegation made against applicant on balance of probabilities as only evidence available was hearsay evidence – Commission relied on the evidence of third party in relation to second allegation and also found that there was no evidence to support this allegation – Commission found that third allegation was substantiated – respondent’s decision to dismiss applicant based on their conclusions that all three allegations had been proven – also real inconsistency in which respondent dealt with the complaints made against applicant compared to those made by him – Commission found decision to dismiss applicant was wrong on the evidence – reasonable to assume that perhaps different outcome would have occurred had respondent concluded that only third allegation proven – satisfied that reinstatement was inappropriate – compensation ordered. Sanzana v Activ Foundation Incorporated t/a Activ Foundation
April 27, 2016
TERMINATION OF EMPLOYMENT – demotion – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected to application on basis that applicant had not been dismissed – applicant engaged as Operations Supervisor – Applicant also performed duties of Revenue Protection Officer on ad hoc basis – respondent received complaints about conduct of applicant – applicant stood down pending investigation – applicant demoted to Revenue Protection Officer role full time – applicant took demotion to mean termination despite continued possession of uniform and access to learning management system and employee portal – Commission found that employment not terminated – Commission considered Terence Lollback – Commission found that changing remuneration and duties authorised by employment contract – Commission found applicant not dismissed – respondent’s jurisdictional objection upheld – application dismissed. Singh v MSS Security P/L
April 27, 2016
TERMINATION OF EMPLOYMENT – multiple actions – ss.394, 725 Fair Work Act 2009 – applicant made both unfair dismissal claim and application to Human Rights Commission (HRC) – Commission wrote letter to applicant requesting advice on which application he intended to pursue – letter returned to sender – unable to contact applicant by phone, and voice messages not returned – in absence of evidence that applicant does not wish to pursue HRC claim, Commission found application is the kind referred to in ss.729 and 732 of FW Act – in absence of confirmation applicant does not intend to pursue HRC complaint, application not made in accordance with FW Act – application dismissed under s.587 – order will issue. Mirwais v Integrated Facility Solutions (IFS) P/L t/a IFS
April 27, 2016
CONDITIONS OF EMPLOYMENT – take-home pay order – Sch. 5, Item 13B Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – five applications for take-home pay orders to remedy an alleged reduction in pay suffered as a result of the operation of transitional provisions in the Security Services Industry Award 2010 – applicants employed as security guards under award – applicants entitled to Space Tracking Station Allowance until 31 December 2014 by virtue of award’s transitional provisions – applicants’ employer ceased payment of the allowance – applicants submitted their take-home pay had been reduced as a result of payment of the allowance ceasing – employer submitted that applicants’ hourly rate increased as a result of the operation of the award, and that their take-home pay had actually increased as a result of the creation of the award – Commission not satisfied applicants suffered a reduction in take-home pay – Commission satisfied it cannot make orders sought pursuant to clause 2.4 of the award, as this clause is intended to protect new employees from reductions in take-home pay resulting from the operation of transitional provisions, and the commencement of the applicants’ employment predates the award modernisation process – application dismissed. Owens and Ors
April 27, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance appellant’s general protections application dismissed – application was lodged 49 days out of the time limit allowed – grounds of appeal advanced by appellant included that the Commission failed to take into account the efforts the appellant made to electronically commence an unfair dismissal application arising from the dismissal and that the Commission did not have the entire file – at the hearing of the application for appeal the appellant put forward further grounds for appeal including that his case had been hampered because of the Commission’s defective administration and that he had received misleading advice from the Commission – having considered all of the matters raised by the appellant the Full Bench found that the appeal was without foundation – permission to appeal refused. Appeal by Russell against decision of Lawrence DP of 8 February 2016 [[2016] FWC 832] Re: Gippsland Group Training Ltd t/a Apprenticeship Group Australia
April 26, 2016
ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – application for a bargaining order – AMWU alleged that Wedderburn had breached its good faith bargaining obligations – alleged that the disciplinary action and termination of Mr Caspersz’s employment was capricious and unfair conduct which undermined freedom of association or collective bargaining – Wedderburn denied the allegations and said that both the disciplinary action taken against Mr Caspersz and the dismissal of Mr Caspersz were legitimate and bore no relationship to bargaining or his role as a shop steward or his role in bargaining – AMWU sought reinstatement of Mr Caspersz – Mr Caspersz was a member of the AMWU, a shop steward and a part of the bargaining team – in September 2015, AMWU members employed by Wedderburn took protected industrial action – Wedderburn made allegations of misconduct against Mr Caspersz arising from his conduct on the picket line – Mr Caspersz was issued with a formal warning and advised that if there were any further instance of him failing to comply with directions his employment would be terminated – in February 2016 there was a ban on performing overtime – Mr Caspersz did not finish a job at a site in Emerald because of the overtime bans – Mr Caspersz’s employment was terminated on 17 March 2016 because he had failed to perform the allotted work during the available normal working hours – AMWU submitted that the decision to terminate Mr Casperz’s employment was capricious – Commission satisfied there was an arguable case that the decision to terminate Mr Caspersz’s employment was unfair or capricious – arguable case that his conduct was protected and the decision to terminate someone’s employment, because they took protected industrial action, is not only unfair it is a contravention of the general protections provisions of the FW Act – arguable case that in making the decision to terminate Mr Caspersz, Wedderburn was motivated by its belief that Mr Caspersz was responsible for the industrial action being taken by the employees – satisfied that terminating a shop steward who has been part of the bargaining team since bargaining commenced and who plays an important role in ensuring the views of the employees are conveyed to the union will undermine collective bargaining – satisfied that there is an arguable case that such conduct would undermine freedom of association – balance of convenience weighs in favour of reinstating Mr Caspersz – order made that Mr Caspersz be reinstated to the position he occupied prior to the termination of his employment, or if that position is not available, to another position on terms and conditions no less favourable. ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU) v W.W. Wedderburn P/L t/a Wedderburn
April 26, 2016
ANTI-BULLYING – costs – ss.604, 611 Fair Work Act 2009 – permission to appeal – Full Bench – original decision concerned application for order to stop bullying – applicants made allegations of bullying in relation to disagreement over management of Collie Chamber – applicants withdraw from proceedings due to apparent change in composition in Collie Chamber management – appellants filed costs application – Commission determined application not made without reasonable cause or filed vexatiously – appellants asserted costs decision in error on substantial number of grounds – permission to appeal generally granted where Full Bench concludes sufficient doubt so as to warrant reconsideration of matter or where injustice may result if permission not granted – jurisdictional error generally gives rise to grant of permission – where decision of discretionary nature appealable error must be established [House v King] – Full Bench found Commission referred to number of authorities to power to award costs which clearly established preconditions about which Commission must be satisfied before exercising discretion to award costs – Commission decision also informed by reference to established authorities in determining applicants had strong belief that applications were genuine and not made vexatiously – Full Bench not satisfied original decision attended by jurisdictional error or that it involved error in exercise of jurisdiction available to it – permission to appeal refused. Appeal by Churches and Ors against decision of Bull DP of 25 November 2015 [[2015] FWC 6620] Re: Jackson and Anor
