TERMINATION OF EMPLOYMENT – performance – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – applicant was a cleaner and was terminated due to poor performance and conduct towards other colleagues – applicant warned of poor performance and conduct towards other colleagues in meeting – four incidents occurred resulting in termination – applicant submitted injury he sustained in the workplace caused his standard of work to fall because of the restrictions on his physical ability – certificate specified his capacity to work one hour on and one hour off throughout the working day – Commission found poor performance was a valid reason for his dismissal – dismissal was neither unjust not unreasonable – dismissal was unfair because it was harsh – respondent did not give applicant a reasonable chance to rectify the problem under the Small Business Fair Dismissal Code – reinstatement not appropriate – compensation ordered. Hobson v J.G. Cleaning Contractors P/L
January 19, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application lodged one day out of time – attempted lodgement 4 days prior to final day using e-filing failed – applicant telephoned and informed of lodgement failure by Commission day before final day but not offered telephone lodgement – applicant had informed Commission he did not have access to scanner until day after last day – acceptable reason for delay – applicant made one attempt dispute dismissal after meeting – no prejudice if extension granted – applicant’s case not without merit – extension granted – order issued. Morphett v Pearcedale Egg Farm
January 19, 2016
ENTERPRISE AGREEMENTS – better off overall test – s.185 Fair Work Act 2009 – employer made application for approval of single enterprise agreement – Commission directed applicant to provide clarification about a range of matters – applicant provided responses – Commission continued to have concerns regarding the terms of the agreement and whether they satisfied the requirements of the better off overall test (BOOT) – concerns related to span of hours and hourly rate for a Door Greeter classification – matter proceeded to hearing for further evidence and submissions – Commission found it was not possible to conclude that the agreement met the requirements of the BOOT – not appropriate to explore further undertakings in the circumstances – application dismissed. Security International Services (SIS) Group P/L Retail Security Single Enterprise Agreement – 2015
January 19, 2016
TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as General manager – respondent raised jurisdictional objection on the basis the applicant’s annual earnings exceeded the high income threshold (HIT) – applicant submitted he was covered by the Mining Industry Award 2010 and earned less than the HIT at time of dismissal – principal purpose test in Carpenter v Corona Manufacturing P/L applied – applicant not covered by award as respondent enterprise was not engaged in the mining industry and applicant’s role not covered by the award – not covered by enterprise agreement – Commission found applicant was earning more than the HIT at the time of dismissal – applicant not protected from unfair dismissal – no jurisdiction to deal with the matter – application dismissed. Fitzpatrick v Royal Equipment P/L
January 19, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 fair Work Act 2009 – dispute principally concerns proper application of a public holiday provision within the Coles Group Supply Chain P/L Edinburgh Parks Distribution Centre Enterprise Agreement 2015 (the Enterprise Agreement) – parties agreed that “in the context of Proclamation Day 2015, do the words “actual public holiday” in cl.16.5.4 of the Edinburgh Parks DC Agreement (the Agreement) mean Saturday 26 December 2015 or the day to be “observed as the public holiday” provided for in c.16.5.1 of the Agreement, namely Monday 28 December 2015?” – Commission determined words “actual public holiday” in clause 16.5.4 of the Enterprise Agreement in the context of Proclamation Day 2015 mean Monday 28 December 2015. Shop, Distributive and Allied Employees Association v Coles Group Supply Chain P/L t/a Coles Edinburgh Parks Distribution Centre
January 19, 2016
CASE PROCEDURES – appeals – ss.400, 604 Fair Work Act 2009 – permission to appeal -Full Bench – appeal against decision – date applicant commenced employment in contention – commission found that the applicant had not completed minimum employment period – applicant alleges error of fact in first instance decision – commission found no error is demonstrated in the decision – Commission not satisfied that the appeal raises matters that justify permission to appeal on public interest grounds – application for permission to appeal is dismissed. Appeal by Davies against decision of Bissett C of 7 October 2015[[2015] FWC 6798] Re: ACE Operations P/L
January 19, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – s.394 Fair Work Act 2009 – application for relief from unfair dismissal remedy – respondent objected on basis dismissal was genuine redundancy – dismissal resulted from review of manufacturing process in one part of factory – respondent evidence satisfies requirements of s.389(1)(a) FW Act – consultation obligations under modern award followed – dismissal case of genuine redundancy – application dismissed. Shanmuganathan v bakery Fresh P/L
January 19, 2016
RIGHT OF ENTRY – application for permit – ss.512, 515 Fair Work Act 2009 – application for right of entry permit (permit) for official of AMWU – permit initially refused as Commission not satisfied union official a fit and proper person to hold permit – consistent with Re Maritime Union of Australia, imposition of conditions under s.515 FW Act not considered prior to making determination – since Re Maritime Union of Australia, Fill Court of Federal Court held consideration of whether conditions should be imposed on a permit should occur conjointly with consideration of whether union official a fit and proper person [Maritime Union of Australia v Fair Work Commission] – permission to appeal granted by Full Bench of Commission – union official’s permit had been revoked in 2003 owing to conduct falling short of standard required for permit holders – union official proposed Commission issue permit with number of conditions – AMWU submitted union official no longer given to outbursts that led to initial revocation of permit, and that should be granted a permit subject to conditions – Director of Fair Work Building Industry Inspectorate (Director) submitted union official behaviour demonstrated he was not a fit and proper person to hold permit – Director further submitted should Commission decide to grant official permit, conditions imposed would need to be very strict – Commission not satisfied union official a fit and proper person to hold permit – union official aware of legal obligations but nevertheless behaved in unacceptable manner – application for permit refused. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) – Victorian Bench
