CASE PROCEDURES – evidence – production of documents – ss.394, 590 Fair Work Act 2009 – application for issue of orders for production of documents against six persons and entities – respondent seeking medical documents – Commission satisfied orders sought by respondent have apparent relevance to matters requiring determination – critical question of whether applicant was under influence of drugs or alcohol at time of dismissal – definition of term “document” provided in Evidence Act 1995 (Cth) considered – consideration of whether orders should relate to records of any drugs, or only synthetic drugs – Commission satisfied material sought could reasonably assist on issues in proceedings – Commission found appropriate in all circumstances for orders to be made to wider class of drugs, not only synthetic drugs. Wright v AGL Loy Yang P/L.
January 18, 2016
Twenty-nine applications (unfair dismissal/dispute/appeals) will be heard today in the Fair Work Commission. The attendees list is as follows: Harbourtown Tyre and Battery Pty Ltd (Gottwald); Metro Express Trransport Group (Harris); Toft Endurance Pty Ltd (Barnard); ALH Group Pty Ltd (Faulkner); Central Queensland University (Potter); Central Queensland University (Potter); MSD Wholesale Pty Ltd (Pithia); MSS Security Pty Ltd (Singh); On Track Community Programs (Bridge); Reddy Security Services (Buckley); Grippsland Group training Ltd t/as Apprenticeship Group Australia (Russell); Ruis Transport Services Pty Ltd (Mahoney); Qube Ports Pty Ltd (Goodwin); Sibelco Australia Limited (Medlicott); PCYC Newcastle (Armstrong); Goulburn Mulwaree Council (Cooper); Central Queensland University (Potter); Flight Attendants’ Association of Australia – International Division (Fed) (Diack); Eastern Health (Armstrong); Commonwealth of Australia (Australian Taxation Office) (Shamir); Spotless (Sheikh-Abdi); Rinnai Australia (Cooke); Graham A Ryan (Di Pietro); Karingal Inc (Carroll); Bendingo Kangan Institute (Dixon); A Whole New Approach Pty Ltd (GM Holden Ltd); GM Holden Ltd (Newbond); Grippsland Group training Ltd t/as Apprenticeship Group Australia (Russell); and Commonwealth of Australia (acting through and represented by the Department of Defence) (Maddison).
January 15, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – applicant summarily dismissed – received three written reprimands regarding work performance – respondent submitted applicant’s employment terminated for dereliction of duty and gross misconduct – further verbal warnings issued to applicant in relation to work performance – Commission considered if dismissal was harsh, unjust or unreasonable – respondent bears onus of establishing serious misconduct that justifies summary termination – test of whether employer can demonstrate reasonable grounds for holding belief employee guilty of misconduct that justifies summary termination – test of whether employer can demonstrate reasonable grounds for holding belief employee guilty of misconduct [Harley] – valid reason is one which is sound, defensible or well-founded but not capricious, fanciful, spiteful or prejudiced [Selvachandran] – issue separate from determination if termination was harsh, just or unreasonable [Toby] – provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly'[Selvachandran] – valid reason required consideration in establishing fairness of termination [Wililo] – Commission found valid reason existed for applicant’s termination – procedural fairness requires employee opportunity to respond before decision to terminate [Crozier] – applicant put on notice with respect to work standard before termination – applicant unaware of two issues that led to dismissal – failure of procedural fairness not found – Commission not satisfied termination of employment was not unfair – determination of dismissal was harsh, unjust or unreasonable notwithstanding the existence of a valid reason involves a weighing process [Australian Postal Corporation] – Commission concluded termination was not harsh, unjust or unreasonable – application dismissed. Cockroft v InterPark Australia P/L t/a InterPark Australia.
January 15, 2016
TERMINATION OF EMPLOYMENT – costs – ss.400A, 611 fair Work Act 2009 – application for costs by respondent in dismissal matter – unfair dismissal application dismissed – applicant sought permission to appeal – appeal refused – respondent submitted it incurred costs because of multiple unreasonable acts by applicant when they failed to accept settlement offers – respondent sought costs – Commission has power to award costs where first party causes other party to incur costs because of an unreasonable act or omission – factors to consider include outcome of application, frequency of offers, whether settlement discussions were made early enough to minimise or mitigate costs and whether first party was advised by other party that they would be seeking costs – Commission satisfied applicant aware employer intended to pursue costs – Commission satisfied applicant unreasonably rejected $25,000 offer – Commission satisfied applicant caused costs to be incurred by employer because of unreasonable act of failing to agree to terms of settlement – Commission not prepared to order applicant to pay all costs – respondent directed to file and serve itemised schedule of costs by 7 December 2015. Nesbitt v Dragon Mountain Gold Limited.
January 15, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 fair Work Act 2009 – respondent alleged applicant stole $200 from safe drop – contended this amounted to serious misconduct justifying summary dismissal – applicant denied theft – submitted during shift they noticed amount in safe was $200 over docket total – applicant informed respondent and was told it should be $400 over – applicant summarily dismissed – not suggested anyone else took money – Pinawin applied – found respondent clearly and unequivocally held belief applicant stole money – respondent’s suspicion applicant was stealing money held to have crystallised into a belief in theft when informed safe drop was $200 over – respondent went to considerable lengths to satisfy itself as to correct amount left in safe, attending shop on night before applicant commenced work – Commission satisfied respondent’s belief reasonable in circumstances – dismissal consistent with Small Business fair Dismissal Code – application dismissed. Glass v Boss J Holdings P/L t/a Foodworks Fuel Bacchus Marsh.
January 15, 2016
Nineteen employers have been summoned to appear in the Fair Work Commission today to answer dispute/unfair dismissal assertions. They include: Veolia Water Solutions & Technologies (Australia) Pty Ltd & Gayan and Others (Dr Crisnay); Department of Immigration and Border Protection (Gallagher); St Johns Park Development (Navan); Independent Community Living Australia Limited & Harvey and Others (Giallussi); Steggles Poultry Processing Pty Limited (Niszczot); Rivalea [Australia] Pty Ltd (Colman); University of Newcastle (Kitanovski); GTF Pty Ltd (Wesley); The Trustee or Peter Wrigley Family Trust (Aarts); Reece Plumbing Pty Ltd (Gallagher); Galaxy Inks & Coatings Australia Pty Ltd (Gracie); Jaja Pty Ltd (Karolczak); Coffee Machine Technologies (Canale); Goulburn Valley Region Water Corporation (Lee); Smartcaller Pty Ltd (McAllister); Build 360 Pty Ltd (Spearman); Department of Immigration and Border Protection (Gallagher); Moonta Health and Aged Care Service Inc (Gresty); and Grogan Nominees Pty Ltd ATF The Grogan Trust (Baker).
January 14, 2016
CASE PROCEDURES – confidentiality – s.394 Fair Work Act 2009 – employer made an application seeking Orders for hearing/s to be conducted in private and that any documents identifying the child, the school, and the name and location of employer be prohibited from publication – primary consideration in seeking Orders was the protection of the emotional well-being and future development of a vulnerable individual – employee opposed the Orders sought – Commission adopted principle of open justice [Seven Network] – satisfied that identification and the location of the employer carried a significant risk that the school and, more importantly, the student, would be open to identification and possibility the student interests would be unfairly damaged – Commission noted grating the Orders would not ‘frustrate the administration of justice’ – satisfied it was appropriate to make the Orders, Butler v Respondent.
January 14, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.386, 394 Fair Work Act 2009 – applicant employed as a real estate agent – applicant contended that a course of conduct by the respondent meant that she was left ‘with no alternative but to resign her employment’ – respondent directed applicant on 7 August 2014 to commence 109 days or 15.6 weeks of long service leave (LSL) from 6 October 2014, a date slightly more than 60 days after the giving of the notice – applicant believed she would have no new earnings, and therefore no income, during the period of leave, and that once she returned to work after the leave she would have no commission income for a considerable period as well – applicant objected to the direction and on 11 August 2014 applied to the Commission in accordance with the dispute settlement procedure of the Collective Agreement – conferences were inconclusive – respondent direction for the taking of LSL from early October 2014 stood unaltered – 6 October 2014 was a public holiday in South Australia and the applicant attended for work as normal on 7 October 2014 – the impasse between the two parties continued over the course of the week – correspondence from respondent set forth that it would deem the applicant to be on LSL from 14 October 2014 – applicant formed the view that her employment had come to an end – Commission found that while her employment did not end through an explicit statement of resignation, the applicant was not prepared to accept the LSL direction and withdrew from employment – found the applicant had alternatives available for her other than resignation – unable to conclude that the applicant’s resignation from her employment was because she was forced to do so because of conduct, or a course of conduct, engaged in by respondent – not satisfied Ms Parsons was dismissed within the meaning of s.386 of FW Act – application dismissed. parsons v pope Nitschke P/L atf Pope Nitschke Unit Trust t/a Pope Nitschke First National.
