TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged 41 days outside the statutory time limit – reasons for delay in lodgment were ignorance of the law, language difficulties and representational error – applicant’s first, and almost only, language is Oromo – this is a rare language in Australia – not one of the languages for which there is a translation on the Commission’s website – only one qualified interpreter available in Brisbane – Commission found it was more difficult for applicant to obtain information about his employment rights than it is for employees who speak English or languages for which there are translations available, both more generally, and on the website – held that a number of volunteer organisations and individuals sought to assist the applicant however all of them failed to provide the most important piece of advice i.e. to lodge in time – satisfied there were exceptional circumstances which would warrant granting an exception to the statutory time limit – extension of time granted. Muhammad v Labour Solutions Australia P/L
April 26, 2016
The hoons, louts and misfits will crowd the portals of the Fair Work Commission again today protesting over grievances, swearing they are victims, asserting innocence and vilifying employers. And the commissioners will have to separate the facts from the flannel. The full list includes: The Bank Cafe (Hammond), Croft Developments Pty Ltd (Tomlinson), Aurizon Operations Limited (Neven), Neville and Julie Robertson (Archibald), GO Traffic Pty Ltd (Page), Barrier Reef Community Child Care Inc (Townsend), TJ Diner (Tusiupu), Atwood Australian Waters Drilling Pty Ltd (Ashby), St John Ambulance Pty Ltd (Gilbert), Council on the Ageing WA Inc (Millar), National Lifestyle Villages (Campbell), Metwest Steel Pty Ltd (Guo), The Trustee for Ashton Avenue Trust (Ashton Avenue Pty Ltd) (Tomlin), Nabiac and District presco (De Tracy), Tasmanian Water and Sewerage Corporation Pty Ltd (Wright), Sydney Night Patrol & Inquiry Co Pty Ltd (Palm), Ramsay Health Care Australia Pty Ltd (Fitzgerald), Motorcycle Holdings TCO Pty Ltd ATF The Motorcycle Holdings Group Unit Trust (Dore), BHP Coal Pty Limited (McDermott), Little Darlings Early Development Center (Fletcher), Tinamba Turf Co Pty Ltd (Cooper), Feros Care Limited (Heath), Steelcon Pty Limited (Dwyer), Retep Nominees Pty Ltd (Ikking), Indigenous Land Corporation (McCaffrey), Queensland University of Technology (QUT) (Rowe), GEMSA (Hill), Bedford Group Incorporated (Willshire).
April 22, 2016
There is a big crowd in today. The full list at the Fair Work Commission chasing money, vindication or reinstatement includes: Arrium Pty Ltd (Johnston), Karidis Corporation Ltd (Weller), Coles Group Supply Chain Pty Ltd (Clayton), Ajilon Pty Ltd (Niknazar), Bailey Civil Contractors Pty Ltd (Logan), ALSCO Pty Limited (Podesta), Savvy Business Solutions and Sales Reps (Trigg), Clermont Coal Pty Ltd (Richardson), Secure Parking Pty Ltd (Syed), East Coast Car Rentals (Van Dort), Helensburgh Coal Pty Ltd (Cheetham), Wipro Technologies (Prasad), Ensign Australia Pty Ltd (Foulds), CatholicCare Diocese of Broken Bay (Duncan), Council on the Ageing WA Inc (Millar), H+Co Menswear (Ampuero), Smarter Insurance Brokers Pty Ltd (Croft), Nexus (Aust) Pty Ltd (Bonser), Worsley Alumina Pty Ltd (Bream), Fuji Xerox Australia Pty Ltd (Gordon), Allsteel Processing Pty Ltd (Menzies), Rio Tinto Aluminium Limited (Mosby), Complete Education and Touring Australia P/L (Connard), Gosnells Golf Club (Rughoobin), H & M Australia Pty Ltd (Zammit), South Oakleigh Club Incorporated (Fernando), OneSteel Trading Pty Ltd (Marshall), BananaCoast Community Credit Union Ltd (Packer), A.P.S. Group (Garcia), City of Greater Geelong (Stratton), Ray White Tweed Heads (Smith), Stockland Corporation Limited (Pate), Department of Education & Communities NSW (Astridge), Smart Plumbing Solutions (Fletcher), Qantas Airways Limited (Kay & Kibby), Chilmix Pty Ltd (Cooper), ESS Thalanyji Pty Ltd (Hellyer), Illiad Pty Ltd (Hope), David Hartree Design Associates Pty Ltd (Blythe), Electricity Networks Corporation (Boyle), SBG Administration Services Pty Ltd (Sublet), BHP Billiton Minerals Pty Ltd (Coleman), Emirate (Cozaris), Tao Cafe (Cho), Nortec Employment & Training (Bigg), Virgin Australia (Ingall), Woolworths Limited (Ruhland/Wemmerslager).
April 21, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant terminated due to poor financial performance within SA Branch – following applicant’s subsequent unauthorised removal of information confidential to respondent and personal employee information, respondent purported to summarily dismiss applicant – Commission found applicant failed to manage SA Branch in a manner that returned sustainable financial contribution – valid reason for dismissal – Commission noted that while removal of personal and confidential information would ordinarily constitute a valid reason for dismissal, as conduct occurred post termination respondent was not able to rely on it to support its earlier decision to dismiss -found while applicant was on notice that SA Branch performance unacceptable, never warned employment at risk – Commission held respondent’s failure to warn applicant denied him an opportunity to improve or respond to allegation – rendered dismissal harsh, unjust or unreasonable – applicant unfairly dismissed – reinstatement not appropriate – Sprigg principles applied – 60% discount made due to post dismissal conduct – compensation of $4602 awarded. Welsby v Artis Group P/L.
April 21, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 611 Fair Work Act 2009 – applicant’s unfair dismissal application dismissed because she had not served the minimum employment period – respondent applied for costs – submitted it should have been reasonably apparent to applicant that application had no reasonable prospects of success – further submitted application was lodged out of time and applicant not employed for minimum employment period – applicant submitted that respondent could have saved costs if they had responded to claim promptly and that her term of employment was six months – Commonwealth of Australia v Wilson considered – Commission not satisfied application had no reasonable prospects of success given the respondent sent the email dismissing the applicant at 11.41pm on 28 October 2015 when to have been employed for six months she needed to have still been employed at midnight on that day – Commission found it was not reasonably apparent to applicant that lodging application out of time meant that it had no prospects of success – also found not reasonably apparent to applicant that respondent was small business until respondent filed evidence proving such – Commission power to award costs discretionary – Commission considered this an occasion where costs should not be ordered – applicant unrepresented and inconsistent information put forward by respondent – application for costs dismissed. Whitton v Trustee for Rahul Family Trust t/a United Partners Transport and Logistics P/L.
April 21, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under Appendix C and clause 25.5 of Part B of the Siemens Building Technologies/”US” Utility Services and ET Enterprise Agreement 2010-2014 – employees covered by agreement are provided with use of a motor vehicle by respondent known as tool of trade (TOT) vehicle – issue in dispute was whether respondent was precluded by reason of agreement from implementing provision of e-TAGs and reimbursement for toll incurred by TOT vehicles – clause 25.5 of Part B of agreement deals with fair, travel and toll allowances – applicant argued words ‘fair and reasonable use’ contemplates respondent taking financial responsibility for operational cost of the vehicles – respondent submitted they may be required to meet petrol costs associated with ‘fair and reasonable use’ – principles of interpretation applied from Golden Cockerel – Commission did not consider there was anything in Appendix C which would prevent respondent from implementing e-TAG procedure – Commission found phrase ‘fair and reasonable use’ does not include a requirement that respondent be responsible for toll expenditure incurred while using TOT vehicle – dispute is resolved accordingly and no order is necessary. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Siemens Ltd.
April 21, 2016
ENTERPRISE AGREEMENTS – varying agreement – apprehension of bias – ss.577, 604 Fair Work Act 2009 – appeal – Full Bench – appeal of decision to dismiss recusal application alleging reasonable apprehension of bias – permission to appeal granted as it raised important issues concerning practice and procedure of Commission regarding communication with parties – application involved unilateral communication between a Member and one party – applied Ebner – Commission must firstly identify what factors might lead judge to decide question before him other than on merits – then, having identified factors, establish a logical connection between those factors and the fear the judge might not apply proper judicial merit – unilateral communication by party with a judge’s chambers could give rise to a reasonable apprehension of bias [John Holland Rail] – however, Full Bench not satisfied a fair minded observer might perceive logical connection between the communication in this case and a possibility that the Member would not bring an impartial mind – no error in Member’s decision not to recuse himself – appeal dismissed. Appeal by Construction, Forestry, Mining and Energy Union against decision of Richards SDP of 4 January 2016 [[2016] FWC 37] Re: LCR Group P/L.
April 21, 2016
ANTI-BULLYING – bullied at work – ss.604, 789FC Fair Work Act 2009 – permission to appeal – Full Bench – application for an order to stop bullying – decision at first instance found major issues raised by appellant did not constitute unreasonable behaviour – requirements of s.789D of FW Act and considerations in Ms SB not met and order unable to be made – appellant submitted Commissioner erred in findings and was misled by facts – further submitted Commissioner applied incorrect principles in reaching decision – Full Bench found appellant unable to point to findings affected by sufficient error to require permission to appeal to be granted – weight and credit placed on evidence presented by appellant reasonably open to Commissioner – not satisfied Commissioner applied incorrect principles – Full Bench satisfied decision made by Commissioner was reasonably open to him – no basis to grant permission to appeal – permission to appeal refused. Appeal by Hammon against decision of Roe C of 14 August 2015 [[2015] FWC 5565] Re: Metricon Homes P/L t/a Metricon Homes and Ors.
