TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on basis applicant did not satisfy minimum employment period – small business employer – applicant employed from 9 February 2015 and dismissed at 7.30am on 8 February 2016 – applicant’s commencement time for work was 8.00am but he submitted that he usually arrived for work half an hour early and commenced work on arrival – respondent submitted applicant was dismissed before he commenced work on 8 February 2016 and thus he only completed work up until 7 February 2016 – Commission held the time and date which employment ends is the date when the employee is given notice of termination – held applicant given notice on 8 February 2016 thus applicant employed for 12 months – minimum employment period satisfied – jurisdictional objection dismissed. Hamilton v Image Car Wash t/a IMO Carwash
April 26, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute in accordance with dispute settlement procedure in Essential Energy Enterprise Agreement 2011 – issue whether the respondent was acting in conformity with clause 3.6(a) of the enterprise agreement when it made 29 Vegetation Officers redeployees – Commission found that respondent identified positions occupied by the 29 employees as no longer required – ‘old’ positions have been identified as no longer required by respondent – employees who have chosen not to become voluntarily redundant had therefore been declared ‘redeployees’ and given the opportunity to apply for one of the ‘new’ positions – those employees who successfully obtained one of these positions would then cease to be a redeployee – found concept of a ‘spill and fill’ is well recognised and accepted method of dealing with a situation where a restructure involves a reduction in the number of similar positions in a part of an organisation – held this was consistent with the obligations imposed on Essential Energy by the enterprise agreement. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy
April 26, 2016
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – Lend Lease made application alleging industrial action by CFMEU that resulted in the stoppage of work by six employees covered by the Lend Lease Project Management & Construction (Australia) P/L/CFMEU Joint Development Agreement Mark 8 2012-16 – further allegation of unlawful stoppage of work by 88 employees of various contractors – alleged industrial action commenced on 11 April 2016 at or around 6.30am, with a return to site at approximately 8.10am – direction made to remove three CFMEU flags hung from cranes on site – at manager’s meeting it was explained the workforce would be ‘out until the flags are reinstated’ – Lend Lease manager informed that site remained open and workforce were expected to remain at work – Commission held industrial action that is not, or would not, be protected industrial action occurred at the site during operational hours on 11 April 2016 – while at time of hearing industrial action not ‘happening’ as required by s.418(1)(a) of FW Act, such action was ‘threatened, impending or probable’ – CFMEU contended it was more probable than not that employees would return to work on 12 April 2016 – this contention not accepted and the issue of Lend Lease allowing or not allowing the flags considered an unresolved issue – authority did not support broad propositions made by CFMEU regarding freedom of association arguments – no evidence that written notice of an intention to hold a meeting at commencement of work issued – as employers did not grant authorisation to attend and required employees to perform their duties, the employee’s attendance would constitute unprotected industrial action – Commission not satisfied CFMEU was ‘organising’ industrial action in circumstances required for an order to be made against them under s.418(1)(c) were met – Lend Lease consequently sought orders against their employees and subcontractor employees – as Commission satisfied industrial action that would not be protected was threatened, impending or probable, order made and issued on 11 April 2016 [PR578979] – order in place until 29 April 2016, with period of nearly three weeks considered suitable for parties to advance discussions and attempt to resolve any dispute. Lend Lease Building P/L v Construction, Forestry, Mining and Energy Union
April 26, 2016
Termination of employment – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for having inappropriate conversation with colleague about personal situation in open work area – held to be valid reason – other matters considered – applicant’s disciplinary history – warnings for interactions with colleagues that were inappropriate, disrespectful and derogatory – period of service of five years not lengthy but not insignificant – proportionality of response – had conduct been isolated incident dismissal would have been disproportionate – conduct was not sufficient for summary dismissal – employer made payment in lieu of notice – personal improvement plan fell short of best practice – on balance given earlier warnings found unlikely would have prevented applicant’s inappropriate behaviour – dismissal not harsh, unjust or unreasonable – application dismissed. McGinnis v BHP Billiton Iron One P/L
April 26, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – in January 2015 applicant requested two periods of annual leave – first period in early March 2015 and second period over Easter 2015 – respondent approved first period but declined second period – applicant pressed the second period of leave again in March 2015 but respondent advised that position remained unchanged – applicant proceeded to take second period of leave – respondent attempted to contact applicant during absence however no response was provided – applicant returned to work in mid April 2015 – respondent advised applicant he was no longer employed because he repudiated employment contract by taking unauthorised leave – applicant argued that respondent never made it clear that absence from employment would amount to resigning – respondent submitted that applicant was advised on multiple occasions that second period of leave would not be approved – Commission to determine whether applicant had abandoned employment or whether it was at initiative of employer – requirement that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end [Searle] – Commission found that no evidence of action on part of employer to terminate employment relationship – found applicant had abandoned employment in accordance with Graphic Arts, Printing and Publishing Award 2010 – jurisdictional objection upheld – application dismissed. Mor Hiam v Jodack P/L t/a Snap Caufield South
April 26, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned interpretation of clause 41.1 of the Independent Distillers Employment Agreement 2011 which deals with cashing out of personal/carer’s leave – employees contended custom and practice regarding the application of clause 41.1 had been since the inception of the clause for an employee to cash out any hours over and above an accrual of 15 days – employer submitted that the clause merely facilitates the ability for an employee to cash out personal/carer’s leave – further submitted clause does not entitle employees to cash out personal cash/carer’s leave by right and that cashing out can only occur by agreement, contending that Asahi could decline a request to cash out personal/carer’s leave at its discretion – Golden Cockerel applied – Commission found clause requires employees to agree in writing to the cashing out of personal/carer’s leave, i.e. the cashing out of personal carer’s leave is not automatic at the request of an employee as employer has the discretion to agree or not to agree to any such request. Employee Representative Committee of Asahi Premium Beverages v Asahi Premium Beverages P/L
April 26, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as primary school teacher – respondent raised jurisdictional objection that applicant resigned – applicant alleged constructive dismissal – applicant submitted she was subjected to harassment and intimidation by parents – further submitted little support offered by respondent – respondent commenced investigation into complaint – Commission held investigation inaccurate as it made findings as to ‘unlawfulness’ – found respondent did not engage in course of conduct designed to force resignation – respondent provided appropriate level of support to applicant – applicant resigned employment voluntarily following legal advice – no dismissal at initiative of respondent – objection upheld – application dismissed. Reynolds v Highfields Preparatory and Kindergarten School Ltd t/a Highfields
April 26, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – employer objected on basis employee made redundant – respondent conceded applicant dismissed – whether role no longer required to be performed by anyone – respondent’s submitted ‘Inventory Manger’ role no longer required accepted – no requirement to consult – whether ‘Materials Coordinator’ position a new job or position to which applicant could have been reasonably re-deployed into in all circumstances – whether timing of commencement of new position deliberately chosen to deprive applicant of redeployment – Commission not satisfied position changed so substantially after termination of applicant’s employment such that new job or position created – not uncommon after job abolished that duties once performance by one person are shared amongst remaining staff – slight change in duties and new job title far from establishing new job created in which applicant could have been reasonably redeployed – would have necessitated another employee’s termination to redeploy applicant – found not reasonable to redeploy applicant – found dismissal a case of genuine redundancy – application dismissed. Quinn v David Moss Corporation Limited t/a Damos
