TERMINATION OF EMPLOYMENT – misconduct – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed following two written warning regarding misconduct – reasons for first warning were unauthorised use of computer system and respondent’s vehicle – first warning stated to remain in effect for 12 months and plan for final written warning – allegations of additional misconduct included repeated failures to notify when leaving work early and other unapproved absences – meeting to discuss allegations held and applicant dismissed with immediate effect – received four weeks payment in lieu of notice – respondent submitted pattern of conduct acting contrary to direct instructions from supervisors – applicant submitted acted in manner that was based on past experience and would be considered reasonable – question whether alleged conduct took place and what it involved to be determined by Commission on basis of evidence in proceedings before it [King] – regard to be has to warnings issued to applicant [Sirijovski] Commission found that on basis of evidence and contents of final warning issued to applicant there was valid reason for dismissal – applicant’s failure to obtain approval to leave work early in contravention of final warning – Commission found valid reason – applicant notified of reason and given opportunity to respond – dismissal not harsh, unjust or unreasonable – application dismissed. Gamble v Monash City Council t/a City of Monash
February 24, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant an administrative assistant – respondent emailed staff advising of changes and upcoming redundancies – meetings held with applicant to discuss changes and role – review of positions undertaken – recommendation by respondent to make applicant’s position redundant – consultation occurred – applicant advised position redundant and redeployment could be considered – applicant advised wanted to cease employment immediately – employment ended and entitlements paid – applicant alleged made redundant because made complaint about co-worker – also claimed tasks previously performed were still being performed – respondent claimed genuine redundancy as compiled with obligations under relevant enterprise agreement and not reasonable in circumstances to redeploy the applicant – Commission unable to consider applicant’s contention that made redundant due to complaint unless redundancy not genuine – applicant may have been redeployed but as advised not interested prospect of redeployment not explored – respondent’s reasons for restructure not challenged – Commission accepted there were changes in operational requirements and respondent no longer required applicant’s job to be performed – respondent compiled with obligations to consult – not reasonable to redeploy due to applicant’s disinterest – dismissal was genuine redundancy – application dismissed. Petrov v City of Ballarat
February 24, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application filed outside of 21 day limit – respondent alleged applicant resigned – applicant submitted that if Commission is satisfied she did resign then resignation was forced – applicant submitted dismissal took effect on 11 October when respondent informed her by email she was not to return to work – responded alleged applicant had a telephone conversation with General Manager on 7 September where she resigned by saying with words to the effect ‘you know I’m not coming back’ – applicant did not expressly say she was resigning, she used words that constituted her resignation [Crowther] – during conversation with General Manager applicant stated she expected to be paid out all of her accrued entitlements – General Manager proceeded to pay out balance and provided applicant with a final payment statement – circumstances of conversation constituted resignation – Commission not satisfied applicant was forced to resign because of conduct or a course of conduct engaged in buy her employer – alleged extramarital affair – whether there are exceptional circumstances which is out of the ordinary course, unusual, special or uncommon [Nulty] – applicant’s submission provided no real reason for the delay apart when employment relationship ended – Commission concluded exceptional circumstances did not exist – application dismissed. Applicant v Respondent
February 24, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a Para Planner – respondent argued operational changes were implemented due to a reduction in sales performance – applicant covered by the Banking, Finance and Insurance Award 2010 – award required respondent to consult applicant regarding ‘major workplace changes’ – Commission found the respondent did not comply with consultation provisions under the award – meeting with applicant to terminate employment was conducted by a HR consultant – HR consultant failed to advise obligation to consult – lack of in-house HR had a detrimental impact on the procedure to terminate applicant’s employment – applicant not entitled to severance or redundancy as respondent was a small business – Commission found absence of consultation in accordance with award means redundancy was not a ‘genuine redundancy’ but not a serious procedural deficiency – dismissal found not to be harsh, just or unreasonable – application dismissed. Priest v HFB P/L atf Admin Trust t/a Howe Ford & Boxer
February 24, 2016
GENERAL PROTECTIONS – extension of time – s.365 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant unable to attend work due to injury – employment eventually terminated due to ongoing condition – general protections application lodged 7 April 2015 – date of dismissal disputed – respondent contended applicant advised of dismissal by letter on 21 November 2014 and dismissal took effect 6 January 2015 – submitted application lodged 70 days outside 21 day statutory timeframe – applicant submitted did not receive letter and was unaware of dismissal until returned to work on 17 March 2015 – contended application lodged within 21 day timeframe – termination of employment does not take effect unless and until communicated to employee whose employment is dismissed with effort from 6 January 2015 when delivered to home and therefore outside statutory timeframe – Commission may grant extension of time if ‘exceptional circumstances’ – ordinary and natural meaning of ‘exceptional circumstances’ includes combination of factors which may reasonably be seen as producing situation which is out of ordinary course, unusual, special or uncommon – not satisfied exceptional circumstances warranting granting of further period for making application – application dismissed. Foley v Jaybee’s t/a Pet Store’N’More
February 24, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed full-time as account manager – meeting which led to dismissal arose from email sent by applicant to client which respondent considered inappropriate – termination letter prepared and signed prior to meeting – applicant dismissed ‘due to unsatisfactory work performance’ – performance issues raised included failure to meet monthly targets, failure to arrange sufficient appointments to seek new business, and poor handling of one client – Commission satisfied that inappropriate email combined with poor performance in respect to sales budget and appointments constituted valid reason for termination – procedure utilised particularly unjust and unreasonable and dismissal was a harsh or disproportionate response to performance and conduct matters involved – dismissal harsh, unjust and unreasonable – reinstatement inappropriate – ordered compensation of $8,400, taxed accordingly. Makai v Victorian Radio Network P/L
February 24, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – respondent raised jurisdiction objection that application nine days out of time – date of dismissal in dispute – respondent submitted applicant resigned on 19 January 2015 – applicant submitted dismissed on 10 February 2015 – Commission considered that while text messages sent by applicant on 19 January 2015 suggested resignation on that day, respondent’s actions after 19 January 2015 appeared to implicitly acknowledge that resignation not definite – found applicant dismissed on 10 February 2015 – application lodged within time – jurisdictional objection dismissed – application to be listed for conference. Ludgate v West Australian Rifle Association Inc.
February 24, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on basis that applicant did not meet minimum employment period – applicant employed from 26 February 2015 to 19 October 2015 – casual employment – respondent’s main contention that work prior to 25 April 2015 was not on regular and systematic basis – after considering the evidence the Commission concluded that applicant did have a reasonable expectation of continuing employment on a regular and systematic basis prior to 25 April 2015 – found period of employment was greater than six months – minimum employment period completed – matter referred for further allocation. Findley v Diamond Protection P/L t/a Diamond Protection.
