GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant employed within the service department of AMR Motors P/L – applicant alleged demotion was a result of his absence on sick leave and that the demotion forced him to resign – respondent denied allegations and claimed that the applicant resigned voluntarily and was demoted due to issues with performance – application filed seven days out of time – extension of time required – Commission to consider whether exceptional circumstances exist – reason for delay, being the applicant’s ill health, found to fall well short of establishing exceptional circumstances – no evidence of the applicant disputing the dismissal – respondent would be prejudiced by the time and cost involved in further litigation – merits do not give weight to exceptional circumstances – Commission not satisfied that exceptional circumstances exist to warrant granting an extension of time to file the application – application dismissed. Badolato v AMR Motors P/L
January 27, 2016
TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on basis applicant earned more than $136,700 high income threshold – base salary $125,000 – entitled to fully maintained vehicle – dispute about proportion of costs for vehicle that should be allocated for personal use – evidence applicant used fuel card to purchase fuel for vehicles other than work vehicle not taken into account as applicant not entitled to this benefit – evidence applicant negotiated salary packaging arrangement with respondent when agreed to forgo allowance for fully maintained vehicle not accepted – no evidence of any agreement applicant would meet costs of fringe benefits payable by employer from salary – value of fringe benefit tax not included in earnings – amount does not, when added to salary, cause income to exceed high income threshold – jurisdictional objection dismissed – application referred to arbitration. Bechara v Ashford Homes P/L t/a Ashford Homes.
January 27, 2016
GENERAL PROTECTIONS – extension of time – s.365 Fair Work Act 2009 – application lodged 59 days’ outside statutory timeframe – dispute concerning termination date – application lodged 29 days’ late even if alternative termination date accepted – applicant alleged dismissed due to sexual orientation – respondent alleged dismissed due to performance issues – employee stated reasons for delay due to literacy difficulties, mental condition and unawareness of time limit – difficult to comprehend why applicant did not seek assistance if having difficulty comprehending application form – sought legal advice after statutory time frame expired – mere ignorance of statutory time limit not exceptional circumstance [Nulty] – applicant did not take any action to dispute dismissal prior to lodging application – merits of application do not support existence of exceptional circumstances – no exceptional circumstances warranting further period for making application – application dismissed. Albanese v Miss Mai.
January 27, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – jurisdictional objection – small business – employer followed Small Business Fair Dismissal Code (Code) in effecting termination – applicant employed under Commercial Sales Award 2010 (Modern Award) – respondent alleged genuine redundancy was basis for termination – role ceased to be viable at level of sales achieved – role not replaced – other staff also made redundant – genuine redundancy would have only occurred if Modern Award consultation obligations complied with [Harvey and Escada] – found consultation requirements not followed – not genuine redundancy – alleged performance issues – company financial problems – found valid reason for termination based on operational needs – nothing to support allegation of poor performance or behaviour – no adequate opportunity to respond to reasons for dismissal – no opportunity for support person – length of employment, age and future employment prospects taken into account – found termination harsh as to manner in which it was carried out – ordered one week’s pay. Stirk v Guru Productions P/L
January 27, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – non-compliance with directions – ss.394, 399A Fair Work Act 2009 – application for relief from unfair dismissal – agreement reached at conciliation – applicant contacted Commission advising she was exercising her rights under the cooling off period – directions issued to applicant to file material in support of application – applicant did not comply with directions – respondent notified Commission matter settled and queried if respondent respondent had exercised cooling off rights in time – matter sent to non-compliance hearing and applicant refused to participate – respondent made oral application under s.399A of FW Act for application to be dismissed – Commission has discretion to dismiss unfair dismissal application due to unreasonable non-compliance with directions – applicant submitted medical certificate advising she was a carer for her sick son and she had other obligations – respondent submitted circumstances not sufficient to prevent compliance with directions – approach in Ghalloub adopted – applicant’s reasons for not complying with direction unreasonable – Commission not prepared to exercise discretion to dismiss respondent’s application – applicant directed to file material in support of application by 8 January 2016 – application to be dismissed if failure to comply – applicant able to seek extension of time but must be prior to compliance date and set out substantive grounds in support. Greentree v Woolworths Limited.
January 27, 2016
TERMINATION OF EMPLOYMENT – misconduct – merit – s.394 Fair Work Act 2009 – applicant employed as store manager – applicant employed with respondent since 1994 and had been in a store manager position since 2002 – dismissed for incident where he climbed a stack of 12 pallets on a pallet jack of 12 pallets on a pallet jack to hand promotional material from ceiling – stack in excess of six feet high – incident occurred during busy period with customers and members of public close by – area not fenced off from passers-by – applicant had received recent warnings regarding store audit – valid reason for dismissal based on pallet incident – applicant’s evidence regarding incident displayed disregard for own safety and that of others – fact that no one was injured was fortunate but not a basis to defend his conduct – other warnings applicant received provided contextual basis for dismissal – Commission of view pallet incident was serious misconduct – even if Commission found earlier warning should not have been relevant – in any event, Commission not of view prior warnings were invalid – applicant notified of dismissal – applicant provided opportunity to respond – no procedural deficiencies affecting dismissal – no other significant relevant factors – dismissal not harsh, unjust, unreasonable – application dismissed – order issued. Merlino v Coles Supermarkets Australia P/L
January 27, 2016
ENTERPRISE BARGAINING – protected action ballot – s.459 Fair Work Act 2009 – application to extend period in which industrial action is authorised by protected action ballot by a further 30 days – application opposed – employer claimed Union was stalling finalisation of bargaining – jurisdictional prerequisites in s.459(3) met – exercise of discretion required – Commission to consider relevant criteria in the discretionary exercise – Commission satisfied Union was still genuinely trying to reach an agreement with the employer – employer concerns regarding the Union’s alleged stalling not determinative – no good reason for refusal of extension of protected action period – application to extend protected action period by a further 30 days approved – orders made. Transport Workers’ Union of Australia.
January 27, 2016
REGISTERED ORGANISATIONS – alteration of eligibility rules s.158(1) Fair Work (Registered Organisations) Act 2009 – alteration sought to extend eligibility for membership of VIPA to a President, Vice President, Secretary and/or Treasurer who ceases to be employed as a pilot on an airline service, by an employer prescribed in the rules, within and beyond Australia following an election or appointment – amendment acts to permit persons holding the above positions to remain members despite their appointment/election – applicant gazetted – no objections received – Commission satisfied there are no matters which would excite discretionary power not to approve the application – rule change only effects internal operations and governance – application approved – rule change will come into effect on 15 January 2015. VIPA
