ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute arising under an agreement – applicant did not identify specific agreement in application – respondent acknowledged Group Resources P/L Project Delivery and Asset Services Workplace Agreement 2009 applied to applicant during employment with respondent – applicant asserted entitled to full weeks’ pay as wrongly given notice of termination concurrently with R&R leave – respondent raised jurisdictional objection that applicant not employee since 2013 and subject matter of application not raised with respondent until 15 February 2016 – Commission does not have jurisdiction to deal with dispute in relation to people who are no longer covered by relevant agreement [King] – applicant had no right under Agreement to bring dispute to Commission under dispute resolution procedure – Commission also noted relief through ‘Order to Pay’ involves enforcement of Agreement which is beyond power of Commission – only Federal Court or Federal Circuit Court empowered to make such order – application dismissed. Krajancic v UGL Limited.
April 21, 2016
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant terminated shortly after making complaints against respondent to Fair Work Ombudsman and Department of Local Government and Communities – at no stage did respondent answer to applicant’s unfair dismissal application or comply with Directions issued by Commission – pursuant to s.600 of FW Act, Commission may determine a matter before it, in the absence of a person who has been required to attend before it – Commission satisfied applicant was protected from unfair dismissal and dismissal was harsh, unjust and unreasonable – reinstatement deemed inappropriate – compensation of $7,909.50 ordered. Diaz Gubern v Mimi Family Daycare Service P/L.
April 21, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Manager of IT&T – summarily dismissed for misconduct related to incident at respondent’s premises at Parramatta – applicant is an internationally renowned competitive target shooter – arranged lunchtime meeting with another target shooter to discuss rifle accessories – other target shooter unable to find car park so applicant gave her access to secure parking at resident’s premises – other target shooter removed rifle from car to show applicant accessory – actions witnessed by member of public who called police – police attended site to speak to applicant and other target shooter – applicant not charged – applicant approached by his immediate supervisor for questioning – applicant refused to speak saying he had been instructed by the Police not to discuss the incident – applicant suspended on full pay during internal investigation – respondent determined that conduct breached various company policies and failed to meet expectations regarding safety and security of people and company assets – applicant dismissed after disciplinary meeting – Commission found valid reason for dismissal however applicant’s actions did not justify summary dismissal – compensation of $8,616.00 ordered. Waters v Goodyear Australia P/L.
April 21, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 604, 611 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission dismissed application for remedy from unfair dismissal – decision was appealed and Commission granted permission to appeal [ex tempore decision issued 25 August 2015] – Full Bench received written submissions and upheld appeal, quashed first instance decision, re-determined employees application and dismissed application [[2015] FWCFB 5264] – employer then made application to Full Bench for the applicant to pay its costs for the hearing at first instance and on appeal – employer submitted that both limbs of s.611(2) of FW Act were applicable to both proceedings and that the discretion to order costs should be exercised – submitted employee fabricated version of events to support application that was designed to harass employer and that application was vexatious – argued that employees argument that summary dismissal provisions of Small Business Fair Dismissal Code (the Code) was without merit – argued employer was put to significant inconvenience, stress and expense by proceedings – Full Bench considered the interpretation and application of s.611(2)(a) [Church & Eastern Health] and s.611(2)(b) [Salva Resources] – Full Bench not prepared to accept, having not heard the evidence that employee deliberately fabricated his evidence – Full Bench found employee was ultimately successful on appeal that the summary dismissal provisions of the Code did not apply to his dismissal – found that whilst application was ultimately unsuccessful, it could not be said that his case was unarguable on the merits – Full Bench held that employee did not institute or maintain proceedings vexatiously and employee did not institute proceedings without reasonable cause or without reasonable prospect of success – application for costs dismissed. Appeal by Ryman against decision of Cambridge C of 12 June 2015 [[2015] FWC 3942] Re: Thrash P/L t/a Wisharts Automotive Services.
April 21, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – application lodged seven days out of time – applicant submitted delay was result of representative error – applicant lodged application as soon as she became aware that her application had not been filed by union – Commission found applicant provided clear instructions to union representative to lodge claim and the representative had failed to do so – Commission found applicant’s case was not without merit or lacking in substance – extension of time granted. Turner v CFC Consolidated P/L atf CFC Employment Trust.
April 21, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – s.739 Fair Work Act 2009 – application to deal with dispute in accordance with dispute settlement procedure of University of Newcastle Professional Staff Enterprise Agreement 2014 – term requires dispute relates to ‘interpretation, application or operation of’ provision of agreement – applicant made redundant claims job transfer and terms of consultation paper of employer was not followed – agreement specifically notes ‘policy, code, procedure, guideline or other administrative arrangement’ are not terms of the agreement – dispute does not concern consultation term but outcome of consultation – that employer initially followed dispute settlement procedure is not indicative it applied – no connection found between dispute and ‘interpretation, application or operation of’ the agreement – no jurisdiction – application dismissed. Nantsou v University of Newcastle.
April 21, 2016
MODERN AWARDS – dispute about matter arising under award – s.739 Fair Work Act 2009 – alleged dispute about matters arising under the Joinery and Building Trades Award 2010 and the NES – parties sought a recommendation on how the award applies to their factual circumstances – whether meal break during early afternoon shift is regarded as time worked (and therefore paid) or not – AI Glass employees do not work continuous and consecutive shifts throughout the 24 hours of the day – award does not appear to confer entitlement to crib breaks to workers other than day workers and continuous shift workers – early afternoon shift workers not entitled to a crib break unless continuous shift work is performed. Construction, Forestry, Mining and Energy Union v Adelaide Independent Glass P/L.
April 21, 2016
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.
