ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute arising under the Metropolitan Fire and Emergency Services Board Corporate & Technical Employees Agreement 2013 – dispute about employees working a New Alternative Rostered Day off (RDO) arrangement of an eighteenth day month – Commission satisfied it had jurisdiction to deal with dispute – interpretation of enterprise agreement requires construction of the words of the instrument [Golden Cockerel] – question for determination is the circumstances which respondent should accede to request to work a new alternative RDO arrangement – respondent prepared a Guidance Note after agreement was approved that indicated how decisions would be made on requests for new alternative RDO arrangements – both Guidance Note and Rostered Days Off Application Form were consistent with the decision tests referred to within the clause itself – Commission found the disputed New Alternative RDO Arrangement provision had a plain meaning – held mechanism of sub-clauses of a New Alternative Rostered Day off arrangement of an eighteenth day month could be worked – concluded that the proposed arrangement to maintain or improve productivity or service levels – Commission satisfied respondent currently implementing obligations of the clause – application dismissed. United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board t/a Metropolitan Fire Brigade
March 11, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant dismissed one week after a meeting including a robust conversation with employer concerning allocation of work – following the meeting the applicant confirmed by email that she would accept the employer’s direction – applicant dismissed for misconduct – employer admitted applicant not given opportunity to respond – absence of natural justice heightens the harshness of the dismissal – Commission found that the applicant not dismissed for a valid reason – respondent’s reasons for termination not sound or defensible – termination of employment harsh and unreasonable – reinstatement is the primary remedy – Perkins considered in relation to breakdown in trust – parties invited to make submissions in relation to reinstatement. Luckman v HP Bowral P/L t/a Highlands Property
March 11, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – Applicant worked as a book keeper until dismissed for allegedly transferring money out of company without authorisation of respondent – applicant submitted she was operating under instruction of second manager – respondent dismissed applicant whilst he was overseas by email – email did not provide reasons for termination – applicant was not provided opportunity to respond to accusation – no evidence of any appropriate procedure being followed during applicant’s termination – Commission found applicant transferred money without requisite authority – applicant was not presented with the reason for her termination, nor was she given opportunity to respond – Commission of the view lack of procedural fairness was of such a magnitude to render the termination unjust – Commission held applicant’s dismissal was unjust and harsh only in relation to the questions of process – reinstatement not appropriate as level of trust and confidence cannot be re-established in the circumstances – compensation to the amount of $7,988.40 ordered. Liu v Hit and Bounce P/L t/a FX Zone
March 11, 2016
TERMINATION OF EMPLOYMENT – identity of employer – s.394 Fair Work Act 2009 – two applications for relief from unfair dismissal – first application against Queensland Property Investments P/L t/a Woolworths Ltd (Woolworths) – second application against Manpower made outside statutory time limit – applicant alleged Woolworths terminated employment – Woolworths alleged applicant not an employee of Woolworths – Woolworths argued employee was labour hire employee on assignment through Manpower – this decision considers who was the applicant’s employer – nothing in enterprise agreement to suggest agreement covers labour hire employees – Commission satisfied no employment contract between applicant and Woolworths – nothing to suggest Woolworths has capacity to determine outcome of financial and operating policy decisions – Manpower not an associated entity nor agent of Woolworths – found applicant not an employee of Woolworths – jurisdictional objection upheld – application against Woolworths dismissed – extension of time objection to be determined. Chidiac v Queensland Property Investments P/L t/a Woolworths Ltd and Anor
March 11, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant stood down with pay due to concerns for his welfare following incidents at workplace – applicant suffered from depression and alleged bullying from colleagues – respondent advised applicant he could not return to work until he had attended a medical examination by doctor nominated by them – applicant failed to attend appointment – stood down without pay – given notice that failure to confirm willingness to attend assessment could lead to dismissal – applicant refused and was dismissed – two reasons for dismissal given – failure to comply with direction to attend medical assessment and failure to comply with direction to only communicate with Vice President of Human Resources regarding issue – applicant later advised if provided resignation with no restrictions respondent would pay accumulated leave (including sick leave) to which applicant was entitled upon resignation, and three weeks’ pay in lieu of notice – applicant resigned – submitted actions of employer left no choice but to resign – employer submitted not forced to resign but dismissed due to failure to follow instructions – Commission found applicant dismissed at initiative of employer – considered whether first reason for dismissal was valid – found no prolonged or frequent absences – fact that applicant disclosed he was suffering from depression, and the claim of being victimised and unfairly treated because of that, did not provide a reasonable basis to assume incapable of performing inherent requirements of job – not satisfied failure to agree to attend medical examination constituted valid reason for dismissal – considered second reason – direction to communicate only with Vice President of Human Resources reasonable – applicant communicated with other managers – found limited breaches of direction were not valid reason for termination – found none of the other factors outweighed the harshness and injustice of termination without valid reason – audio recordings made by applicant and post dismissal communications made reinstatement inappropriate – compensation appropriate – 5% deducted for inadequacy of efforts to mitigate loss – compensation amount of $45,907.82 – exceeded six month cap – six month cap applied – order that compensation of $43,906.72 be paid, less appropriate taxation, within 14 days. Cole v PQ Australia P/L t/a PQ Australia
March 11, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – applicant made application for unfair dismissal remedy – at first instance the Commission found applicant had engaged in serious misconduct and his dismissal was not harsh, unjust or unreasonable – the application was dismissed on 9 July 2015 [[2015] FWC 3911] – respondent filed an application for an order for costs on 23 July 2015 – applicant lodged appeal – Full Bench dismissed appeal finding there was no significant error in the findings made by the Commission at first instance and that there was no other public interest ground for granting permission to appeal on 16 October 2015 [[2015] FWCFB 6785] – subsequently applicant commenced proceedings in Federal Court of Australia for judicial review seeking to set aside the order of the Full Bench – applicant discontinued this application on 2 February 2016 – respondent’s application for an order for costs limited to consideration of costs incurred by the respondent in responding to the substantive unfair dismissal remedy application not subsequent applications – basis of costs application was that respondent incurred costs because of a number of unreasonable acts or omissions of the applicant in connection with the conduct or continuation of the proceeding – respondent seeks costs on indemnity basis – Commission satisfied that application made without reasonable cause – held that it should have been reasonably apparent to the applicant that his application was hopeless and was so lacking in merit as to not be reasonably arguable – Commission satisfied the unfair dismissal remedy application had no reasonable prospect of success – satisfied that grounds for a costs order have been made out by the respondent under each of sub-section 611(2)(a) and (b) of FW Act – respondent also submitted that on each occasion the applicant rejected one of the respondent’s offers of settlement, this rejection was an unreasonable act in connection with the continuation of the matter which caused the respondent to incur costs – Commission found applicant was unwilling to or unable to objectively assess the merits of his application – rejecting the various offers was an unreasonable act – satisfied that under s.400A of FW Act the applicant should be ordered to pay the costs the respondent incurred from 5 December 2014 – applicant not required to pay any element of the respondent’s costs twice – order that applicant pay the respondent’s costs on an indemnity basis – directions will be issued requiring the respondent to submit a Bill of Costs. Post v NTI Limited t/a NTI
March 11, 2016
TERMINATION OF EMPLOYMENT – high income threshold – ss.332, 382, 394 Fair Work Act 2009 – application for unfair dismissal remedy – Commission considered whether annual death cover insurance premium should be included in calculation of applicant’s earnings – applicant’s salary was $133,475 at date of dismissal – insurance premium of $7447.45 was also to be paid by respondent for the period from 11 September 2015 to 10 September 2016 – respondent submitted that applicant’s total salary package included insurance premium and that this resulted in applicant’s earnings being above high income threshold – respondent submitted that 11 September 2015 was last day on which premium could be paid and that 2014/2015 premium still placed applicant above high income threshold – respondent submitted that insurance premium fell within s.332(1)(b) of FW Act as it was amount applied or dealt with in any way on applicant’s behalf – further submitted that test to be applied was not that applicant was ultimate beneficiary but that this was amount being applied or dealt with on applicant’s behalf – applicant submitted that insurance premium should not be included in earnings – submitted that premium was payable after date he was dismissed and that he never discussed or made any request for the death cover insurance – applicant also submitted that legislative intention is that there needs to be ability for payments made to be amounts which can be determined in advance – submitted that death cover only payable in the event of death and was not cashable – Commission considered whether insurance premium was amount applied or dealt with on applicant’s behalf – Commission found that death cover insurance premium was not amount applied or dealt with on applicant’s behalf as plan was taken out in the respondent’s name – found that applicant was named beneficiary but respondent was owner of plan – further found that insurance did not form part of wages/work bargain between respondent and applicant but was provided as part of company policy – distinguished from [Tipene] – Commission found applicant earned less than high income threshold – jurisdictional objection dismissed. Crowley v Savannah Nickel Mines P/L
March 11, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – applicant claimed unfair dismissal due to circumstances of his termination by respondent – constructive dismissal – in April 2014 applicant was involved in a motor vehicle accident and did not return to work until February 2015 – on return to work applicant and respondent had discussions regarding a possible exit package and was told to work in an alternate office – applicant objected – a number of conversations and email exchanges took place concerning CPD points, AR status, client issues and exit negotiations – applicant resigned and provided reasons – Commission considered Mohazab and Barkla in making decision – found the actions of the respondent resulted in the termination of the applicant’s employment and had it not occurred the applicant would have remained in an employment relationship – compensation ordered. Foster v FM Financial Group P/L t/a FM Financial
