INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application to stop industrial action – question whether proposed industrial action is protected action – definition of term ‘relief lessons’ clear in enterprise agreement and accords with ordinary meaning – notice requirements of s.414 of FW Act met – proposal to stop work for 30 minutes not in excess of industrial action proposed by protected ballot – unable to find action is unprotected – application dismissed. Catholic Church Endowment Society Inc t/a Catholic Education Office v Independent Education Union (South Australia) Incorporated
February 11, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed for 23 years – respondent restructured its Academic division in 2014 – no longer required applicant’s job to be performed by anyone because of changes in the operational requirements – applicant declared a ‘detached’ employee – whether it would have been reasonable in all the circumstances for applicant to be redeployed – Ulan Coal considered – Commission satisfied that respondent considered redeployment for the applicant, wherever possible, to avert or minimise potential redundancy – satisfied that applicant did not have the skills and experience necessary to perform alternative roles either immediately or within a reasonable period of retraining – satisfied that it would not have been reasonable in all the circumstances for applicant to be redeployed within the respondent’s enterprise – found dismissal was a case of genuine redundancy – applicant was not unfairly dismissed – application dismissed. Kitanovski v University of Newcastle
February 11, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal lodged five days late – applicant made redundant – applicant attempted to lodge her application with the Fair Work Ombudsman (FWO) within the 21 day period – FWO referred applicant to Commission – applicant incorrectly addressed envelope to Commission which required the person in receipt of the letter to readdress the letter – applicant used the mail service as she does not have a computer – Commission considered meaning of exceptional circumstances [Nulty] – circumstances must be out of the ordinary course or unusual – Johnson v Joy Manufacturing considered – Commission found bona fide attempt to make real time application – acceptable reason for delay – applicant took action to dispute her dismissal within days of her dismissal with the FWO – extension of time granted. McAllister v Smartcaller P/L t/a Smart Caller
February 11, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief of unfair dismissal – applicant employed as a full-time pick-up delivery driver – dismissed after an investigation determined that he engaged in theft of a box containing a laptop at Townsville depot – a complaint was made by email regarding some missing freight – complaint reported other freight that had gone missing over time – respondent conducted investigation – viewed CCTV footage – footage unable to identify who box was stolen by – applicant not shown CCTV footage despite asking – respondent organised meeting to discuss alleged misconduct – applicant did not attend meeting, provided medical certificate that morning – respondent terminated the applicant – for reason to be a valid reason within meaning of s.387(a) of the FW Act it must be sound and defensible or well founded [Selvachandran] – respondent not able to discharge the onus upon it to satisfy the Commission on the balance of probability that the applicant engaged in the alleged conduct – Commission found it would have been appropriate for the applicant to see and respond to the CCTV footage – satisfied the dismissal was unjust and unreasonable – applicant did not seek reinstatement – order for payment of compensation – applicant took reasonable steps to mitigate his loss including applying for jobs and achieving new causal employment – Commission ordered compensation of $25,468.13. Mulhall v Direct Freight (Qld) P/L t/a Direct Freight Express
February 11, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – applicant dismissed for poor performance – following a restructure of the respondent’s enterprise, the applicant’s position as Senior Property Officer was made redundant – applicant was offered the position of Property Specialist, at the sane rate of pay and on the same terms and conditions – applicant accepted position and did not suggest any alternative positions – new role substantially the same as the previous role – following the hiring of a new team leader, Property Specialist position description amended to include ‘commercial and financial analysis’ – following this amendment applicant’s performance suffered – applicant subsequently terminated for poor performance – Commission found valid reason for dismissal – while respondent entitled to restructure business and to amend position descriptions, respondent obliged to ensure adequate training or existing staff members affected by amendment – training provided by respondent insufficient to equip applicant for new requirements of position – Commission satisfied applicant unfairly dismissed – matter to be relisted on issue of remedy. Vernon v Electricity Networks Corporation t/a Western Power.
February 11, 2016
The ACT Government/Health Directorate is facing a s.739 dispute notice in the Fair Work Commission today at 3pm. The full list for today’s hearings is: Barbera Fresh Pty Ltd (Sheppard/Hannay), Rainbow Beach Hotel (Carey), Nudgee Golf Club (MacPhee), Filipino Community Council of Victoria Incorporated (Serrano), KDR Victoria Pty Ltd (Smith), Austin Health (Stavrou), St Vincent’s Hospital Melbourne (Baumgartner), Green Travel Service Pty Ltd (Tanzania), Nardy House (Perry), PQ Australia Pty Ltd (Cole), BG & BJ Pty Ltd (Kakoschke), Moonee Valley Racing Club (Hinchen), Wambo Open Cut Pty Ltd (Garland), Sydney Trains (Ocampo), Transfield Services (Australia) Pty Limited (Crosby), Work Placement Pty Ltd (Gadan), Frockk Pty Ltd (Tarbuck), Menai Variety Discounts Pty Ltd (Lockwood), Werrigar Pty Ltd (Crisp), Perth Education Group Pty Ltd (Rahimi), St Michaels Association Inc (Barclay), EG Melky and Sons Real Estate Pty Ltd (Kniese), Tyco Fire & Security (Byrne) and Mitolo Group Pty Ltd (Nawaz & Singh and Others).
February 10, 2016
The Fair Work Commission unfair dismissal list today has 22 miscreants listed. The FWC must determine whether it is the applicant or the respondent. The full list is: McDonald’s Australia Limited (Shaw), Sydney Local Health District (Gordon), AJ & T PulbrookPty Ltd (Guthrie), TD & F Marciano Pty Ltd (Lee), Bedlam Enterprise Pty Ltd (Rohde), Ananda Aust Pty Limited (Park), Complete Glass Supply Pty Ltd (Rewell), Leeman Investment Pty Ltd (Grant/Muir), Buick Holdings Pty Ltd (Smith), North West Crewing Pty Ltd (Sullivan), Kimberley Ports Authority (Ward), KDR Victoria Pty Ltd (Smith), Melbourne Cricket Club (Louka), Carrera Total Pty Ltd (Saleski), Diamond Protection Pty Ltd (Findley), Monochromatic Engineering Pty Ltd (Farzady), Verizon Australia Pty Ltd (Saunders), Gladstone Area Water Board (Ellem), University of Queensland (Frijters), GM Holden Ltd (Harvey), JSC Montessori Pre-Schools (Verduyn).
February 9, 2016
The Transport Workers’ Union of Australia is having a crack at the Dyson Group of Companies. The s.739 (Application to deal with a dispute) will be heard by Fair Work Commissioner Gregory.
