CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – application for permission to appeal decision of Commission to refuse extension of time to lodge unfair dismissal application – notice of appeal under s.604 of FW Act must be filed within 21 calendar days of decision to be appealed – notice of appeal filed 775 days late – extension of time must be granted fro appeal to be competent – considerations include whether there is a satisfactory reason for delay, length of delay, nature of grounds of appeal and any prejudice to respondent [Jobs Australia v Eland] – applicant submitted he was in Pakistan at time of decision and did not return to Australia until January 2015, at which time he saw decision for first time – Full Bench not satisfied this was a reasonable explanation for the delay, and did not explain why notice of appeal not filed until December 2015 – delay can only be characterised as lengthy – unlikely that any grounds of appeal being pursued by applicant would be upheld – respondent likely to suffer prejudice if time extended, as employment with respondent ended almost three years ago – notice of appeal incompetent and dismissed. Appeal by Ali against decision of Cloghan C of 10 October 2013 [[2013] FWC 7899] Re: Chandler Macleod Group Limited
February 16, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as security officer at Brisbane airport – dismissed due to security breaches for which respondent claimed she was properly trained – zero tolerance policy towards such breaches – applicant admitted the breach but submitted her dismissal was a disproportionate response – evidence there was no written or oral communication of the zero tolerance policy – zero tolerance policy, carrying with it the very real prospect of dismissal for a single breach, requires unequivocal communication to employees – Commission found no evidence this was done – dismissal harsh and unreasonable – reinstatement appropriate in the circumstances – no order for payment of remuneration lost between dismissal and reinstatement as the conduct was a significant breach of safety requirements – reinstatement to former position, or to another position on terms and conditions no less favourable and restoration of continuity ordered. O’Brian v MSS Security P/L
February 16, 2016
Only four unfair dismissal claims are listed for hearing by the Fair Work Commission today. The full list is: CFC Electrical Pty Ltd (Paap), P&O Concrete Pumping Pty Ltd (MacDonald), Bupa Care Services Pty Limited (Cox) and Next Residential Pty Ltd (Gardiner).
February 15, 2016
The Fair Work Commission is enjoying a ‘no hearings’ mid-month respite day in most regional capitals, and only a handful of complaints are listed for hearing today. The list(s) today include: Compass Group Australia Pty Ltd (Newman) and Churches & Smargiassi (Jackson/Woods).
February 12, 2016
CONDITIONS OF EMPLOYMENT – redundancy – s.120 Fair Work Act 2009 – applicant sought to reduce redundancy pay from 14 weeks to four weeks – respondent employed for five years as part-time sales assistant – respondent made redundant due to store closure – applicant submits it made respondent offer of ‘acceptable employment at another store location – respondent refused redeployment offer due to extra travel time and associated costs – respondent also submitted extra travel time would limit study time required for university studies – whether applicant obtained ‘other acceptable employment’ for respondent – Commission considered additional travel time did not necessarily make redeployment offer unacceptable [Spotless[ – however travel time to new store would double what it was previously – increased travel time represents substantial additional inconvenience – redundancy entitlement reduced to four weeks – order issued. Man to Man P/L t/a Man to Man v Sleiman
February 12, 2016
ENTERPRISE AGREEMENTS – approval – notice of representational rights – ss.173, 174, 181, 185, 186 Fair Work Act 2009 – application for approval of enterprise agreement – concerns regarding pre-approval process in particular notice of employee representational rights and information provided on notice – notice referred to Fair Work Australia website instead of Fair Work Ombudsman as required by sch.2.1 of Fair Work Regulations 2009 – Parliament was clear that Fair Work Ombudsman website was to be referred to in notice – notice must be in form prescribed by the Regulations [Peabody] – Commission found valid notice not given and was not satisfied that agreement was genuinely agreed – application dismissed. Seymour College Inc Enterprise Agreement 2015
February 12, 2016
Lend Lease Services Pty Ltd is in the naughty corner today with seven accusations of unfair dismissal lined up for challenge. The full list in the Fair Work Commission includes: Hickey Food Service (Brown); Werrigar Pty Ltd (Crisp); David Moss Corporation Limited (Lee Anthony); Bam Clough Contracting Pty Ltd (Taylor); Gliderol Garge Doors (Simatovic); Work Placement Pty Ltd (Gadan); Durri Aboriginal Corporation Medical Service (Blanch); ASG Group Limited (Stevens); Tocojepa Pty Ltd (Hardwick); Sunny Sign Company Pty Ltd (Court); Australia Western Railroad Pty Ltd (Lloyd); Melbourne Pathology (Matthiesson); Sundance Racking Pty Ltd (Knop); The Hutchins School (Anders); Transpacific Industries Pty Ltd (Maguire); Dairy Country (Barkho); Milgate Primary School (Heading); Filipino Community Council of Victoria Incorporated (Serrano); KDR Victoria Pty Ltd (Smith); Donlyn Courier Services Pty Ltd (Thurston); RBH Building Group Pty Ltd (Medforth); The Hutchins School (Anders); Presbyterian Care Tasmania Inc (Esam); Miwatj Employment and Participation Ltd (Manns); ACT Government as represented by the Health Directorate (Burdack); Suncorp Group (Donman); Active Hearing Pty Ltd (Birch); Arrium Pty Ltd (Johnston); and Lend Lease Services Pty Limited (Arnold/Dale/Hoyle/Hutchins/Potts/Vaughan/Watt)
February 11, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission found appellant had not served minimum employment period – appellant sought permission to appeal – whether grounds of appeal attract the public interest, where the test is a ‘stringent one’ [Coal and Allied] – GlaxoSmithKline applied – Full Bench held period of employment is calculated from the commencement of employment to the time when notice of dismissal is given or immediately before the dismissal, whichever is the earlier – appellant employed 2 February 2015 – appellant notified of dismissal 31 July 2015 – Acts Interpretation Act 1901 considered – Full Bench held ‘6 months’ in s.383(a) of FW Act means 6 calendar months – held period commencing at the beginning of 2 February 2015 and ending immediately before the beginning of the corresponding day of the following sixth month, being midnight 1 August 2015 – grounds of appeal did not identify any error of law or mistake in fact at first instance – permission to appeal refused. Senaratne v King & Wood Mallesons
