TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as forklift operator – dismissed for operating forklift in close proximity to a customer who had entered an exclusion zone – Golden Rules – applicant gave evidence that he shut down forklift and directed customer to move to a safety zone – evidence given for the respondent indicated that applicant continued to operate forklift while customer was in exclusion zone and that applicant would have reasonably viewed customer has being in exclusion zone – customer in question gave evidence that he was instructed by a forklift operator to leave exclusion zone but conceded he could not recall the date of the incident or whether it was the applicant who gave the instruction – factual matrix of respondent preferred by Commission – found valid reason for dismissal – limited future employment opportunities for applicant a factor in favour of finding dismissal was harsh – when all circumstances considered, dismissal not harsh, unjust or unreasonable – application dismissed. Hanley v Stramit Corporation P/L t/a Stramit Building Products – Rockhampton
March 9, 2016
REGISTERED ORGANISATIONS – alteration of eligibility rules – s.158 Fair Work (Registered Organisations) Act 2009 – application for consent to alteration of eligibility rules – applicant association sought consent to change Rule 6 ‘Membership’ – effect of application to extend associate membership to certain bodies not ‘Local Government Councils’ – application gazetted and published on Commission’s website – no objection to application received within prescribed time limit – Commission satisfied compliance with requirements of RO Act and Regulations – found change made under rules of the organisation under s.158(2) – proposed alteration to eligibility rules did not mean there was another organisation to which those who would be eligible because of alteration could more conveniently belong, and that would more effectively represent those members under s.158(4) – Commission consented to changes to eligibility rules sought by association – change to eligibility rules to take effect from 29 February 2016. Local Government and Shires Association of New South Wales
March 9, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected on basis that applicant had not served minimum employment period – small business employer – a period of one year ending at the time of the dismissal should be served – applicant stated there was a transfer of business and they had been employed by the previous employer more than four years – Commission satisfied that there was a transfer of business and transfer of employment within the meaning of the FW Act in relation to the transfer of business – respondent had not informed employees in writing before the new employment started that the period of service with the old employer would not be recognised – Commission found the applicant’s employment with the previous employer counted as part of the continuous period of service with the respondent – applicant protected from unfair dismissal – jurisdictional objection dismissed – matter resolved by conference. Kakoschke v BG & BJ P/L t/a Wantirna South Studfield Newsagency
March 9, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.386, 394 Fair Work Act 2009 – in application applicant identified that the date of dismissal was approximately 14 October 2014 – if correct then application was over a year out of time – applicant engaged as casual employee by respondent labour provider – finished working at site on 14 October 2014 –respondent informed applicant on 19 November 2015 he would not be receiving any further work at Murray Goulburn or with Skilled but that he remained on Skilled’s books – Commission considered s.386 of FW Act and meaning of dismissed – found that while the communication did not constitute express termination, the action on part of the employer was intended to bring employment to an end or have the probable result of doing so – held that applicant’s dismissal took effect on 19 November 2015 – application filed within time. O’Shea v Skilled Group Ltd t/a Skilled Australia
March 9, 2016
TERMINATION OF EMPLOYMENT – high income threshold – ss.382, 394 Fair Work Act 2009 – application for unfair dismissal remedy – jurisdictional objection based on high income threshold and not coverage by modern award – applicant conceded that income above threshold – consideration given to whether applicant was covered by a modern award and if applicant was sufficiently senior to exclude award coverage – classification descriptors in award considered – principal purpose test applied – applicant’s duties and purpose of role considered – criteria applied as to whether senior or middle management role [Currie and Lanteri] – persuaded that applicant had a senior management position – Commission held no modern award coverage – not protected from unfair dismissal – application dismissed. Simonsen v Pioneer Credit Ltd
March 9, 2016
TERMINATION OF EMPLOYMENT – amendment of application – ss.394, 586 Fair Work Act 2009 – application for unfair dismissal remedy – respondent raised jurisdiction objection that application filed before dismissal took effect – applicant then filed further application out of time – submitted that original or subsequent application should be treated as valid and if required Commission may allow a correction to application under s.586 of FW Act – respondent conceded that Commission has discretionary power under s.586 to waive irregularity but contended that discretion should not be exercised because application without merit; no remedy available to applicant; and would be no injustice to applicant if application dismissed – Commission considered Mihajlovic regarding premature applications and determining date of dismissal – found application lodged before dismissal effective – Commission accepted that merits of applicant’s substantive application relevant in considering exercise of discretion under s.586 – in absence of detailed evidence on merits, applicant had arguable case on the face as to merits and remedy – applicant would suffer significant injustice if no opportunity to have substantive application heard – respondent on notice since application filed – satisfied discretion should be exercised by waiving irregularity of filing before date of dismissal and allowing application to proceed. Gee v Tasmanian Ports Corporation P/L t/a Tasports
March 9, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – ss.382, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected on basis that it was a small business and that relevant minimum employment period not met – applicant alleged respondent not a small business at the time of dismissal – Commission found only 14 employees employed at the time of dismissal – respondent a small business within the meaning of s.23 of FW Act – minimum employment period not met – application dismissed. Jaschke v Johnsen Quality Bakeries P/L t/a Australind Bakery
March 9, 2016
INDUSTRIAL ACTION – payments relating to periods of industrial action – s.472 Fair Work Act 2009 – application for an order relating to certain partial work bans – decision issued on substantive matter [[2016] FWC 892] – further hearing conducted – whether proposed reductions reasonable and consistent with the statutory scheme – whether sufficient account taken of other work being performed during partial work bans – refusal to attend meetings or undertake curriculum extension activities – refusal to undertake relief teaching – nature of bans and context of enterprise agreement considered – impact of approach to the assessment of the period of the bans and the normal working day taken into account – proposed reductions unfair in relation to relief teaching – order issued modifying certain reductions – reduction will be five per cent – undertaking noted in relation to notices issued to non-teachers – application granted in part. Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment Society Incorporated (Catholic Education Office)
