Termination of employment – remedy – compensation – ss.392, 394 Fair Work Act 2009 – Commission found applicant forced to resign – reasons set out in November decision [[2015] FWC 6519] – Commission concluded that an amount of $9,915.15 gross was appropriate but provided an opportunity for the respondent to provide any submissions on the effect of the order on the viability of the respondent’s enterprise or to seek payment of the compensation by instalment – evidence provided by applicant indicated that his earnings from roofing work were significantly in excess of his previous estimate – found appropriate compensation was $5,966.28. Hocking v Tackle World Adelaide Metro.
February 5, 2016
Termination of employment – termination at initiative of employer – abandonment of employment – s.394 Fair Work Act 2009 – applicant submitted an application for six weeks leave – respondent rejected the annual leave application because of lack of notice – applicant proceeded on annual leave – respondent wrote to applicant advising he had abandoned his employment – Commission found dismissal not harsh, unjust or unreasonable – applicant should have understood how this family company operated and that his role could not be backfilled whilst he was on leave. Chowdhury v LEDA Aluminium P/L.
February 5, 2016
Termination of employment – termination at initiative of employer – s.394 Fair Work Act 2009 – application for relief for unfair dismissal – following disagreement with principal, applicant decided to stand down from position and sent principal an email to that effect – applicant submitted that he was then offered an alternative position, which he accepted – applicant submitted that respondent subsequently withdrew offer of alternative position and advised him the alternative position would no longer be filled – applicant gave evidence that alternative position continued to be advertised – respondent submitted that they chose not to fill the alternative position and that it was never offed to the applicant – Commission satisfied that applicant was offered, and accepted, alternative position, and that it was from this alternative position that the applicant was dismissed – no valid reason for termination existed – Commission satisfied applicant unfairly dismissed – compensation of $11,360.37, plus $1,079.24 superannuation ordered. Turner v Peter Stevens Motorcycle Retail Group P/L.
February 5, 2016
Conditions of employment – redundancy – s.120 Fair Work Act 2009 – application to reduce redundancy pay – transport and distribution services industry – loss of contract – option of remaining employed by the employer or working for new employer – no resignation of employees – no transfer of entitlements – whether redundancy at the initiative of the employer – whether employer ‘obtained acceptable employment’ – meaning of ‘obtained acceptable employment’ – terms of enterprise agreement – interaction of enterprise agreement with National Employment Standards (NES) – no termination of employment – employees and their roles not made redundant – s.120 of FW Act cannot apply – no jurisdiction – application dismissed – alternatively, whether employer ‘obtained acceptable employment’ – same work, rate of pay, location and conditions – whether employer ‘strong and moving force’ – negotiations to achieve wage parity – representations to engage all employees – employer obtained acceptable employment – employees’ choice to accept new employment or remain employed – no pressure or coercion – all employees accepted new employment – redundancy pay would be reduced to nil. DRW Investments P/L t/a Wettenhalls v Richards and Ors.
February 5, 2016
Case procedures – costs – ss.400A, 611 Fair Work Act 2009 – Full Bench – application for costs by GM Holden against Mr Newbond in relation to appeal application and extension of time to lodge appeal – application to extend time dismissed – unreasonable to continue with extension of time application when aware that reasons for delay not compelling and could have been resolved via alternative settlement proposals from employer – jurisdiction established but whether costs order should be made – applications without sound basis consume time, resources and costs of parties – repeated and unreasonable failure to comply with directions – repeated failures should not be excused – continuation of application was unreasonable act – order to pay reasonable costs – parties to confer on the quantum of the costs incurred. Newbond v GM Holden Ltd.
February 5, 2016
Termination of employment – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant was permanent part-time employee of the ABC’s News Division – respondent identified a number of positions to be made redundant in the News Division – applicant submitted casual employees were performing production tasks she previously performed – Commission satisfied applicant’s job was no longer required due to changes to ABC’s operational requirements – ABC Enterprise Agreement 2013-2016 applied to applicant’s employment – Commission accepted ABC discharged its obligations to consult applicant as per agreement – Commission satisfied not reasonable in all circumstances for applicant to be deployed – found applicant’s dismissal genuine redundancy – application dismissed. Tan v Australian Broadcasting Corporation.
February 5, 2016
Termination of employment – valid reason – s.394 Fair Work Act 2009 – applicant commenced employment as the Assistant to the Director of Studies which also encompassed a senior mathematics teaching role – in 2003 the applicant’s position was extended to include all aspects of timetabling, the academic database and the administrative tasks previously overseen by the Director of Studies – extended role became known as Academic Administrator (AA) – in 2013 the applicant became ill and was diagnosed with depression and anxiety, she finished the school year two days early due to her health – in December 2013 she had already applied for, and was granted, long service leave for the first term of the 2014 academic year – letter of termination did not cite reason for dismissal – loss of trust and confidence – extensive evidence led regarding applicants dispute with respondent about additional responsibility of AA role being removed from her duties – evidence led relating to return to work plan and allegations of conflict with colleagues – Selvachandran, Australian Meat Holdings P/L and McVinish considered – Commission found no valid reason for dismissal – reinstatement inappropriate – compensation appropriate – further hearing to be held regarding criteria for compensation. Anders v The Hutchins School.
February 5, 2016
Enterprise agreements – approval – s.185 Fair Work Act 2009 – application for approval of enterprise agreement – Commission concern regarding whether Notice of Employee Representation Rights (NERR) given to employees in the prescribed form; whether employer had taken reasonable steps to explain terms of Agreement and effect of those terms; and whether the Agreement passed the better off overall test (BOOT) – employees provided with two versions of NERR embedded within the text of an email – first version incomplete – second version embedded within other unrelated content – confusing and unclear – employee also attached weblink to NERR within email and within SMS message to employees – Commission found weblink to NERR set out in lengthy and confusing email, did not take employees directly to a copy of the NERR and did not direct their attention to the NERR – NERR not validly given – Commission not satisfied that weblink to a copy of the proposed Agreement and a range of other documents constituted an explanation of the Agreement or the effect of its terms – no genuine agreement – found numerous provisions of the Agreement when compared to Award caused Agreement not to pass the BOOT – application dismissed. Traineeship and Mining Services Enterprise Agreement 2015.
