TERMINATION OF EMPLOYMENT – high income threshold – ss.332, 382, 394 Fair Work Act 2009 – application for relief from unfair dismissal remedy – jurisdictional objection – applicant not covered by award or agreement – whether income exceeds high income threshold – applicant sold business to Artis – Artis employed applicant as manager – applicant submitted earnings were $120,000 base salary subject to business performance plus retention bonus – discussions and correspondence between parties prior to sale agreement not taken into account – payment which is contingent on future performance cannot be determined in advance [Jenny Craig] – retention bonus not part of applicant’s earnings for purposes of s.382(b)(iii) of FW Act – contents of alleged verbal discussion and pre-purchase emails cannot be taken into account in determining non-cash benefits – office, overhead costs and car park not properly characterised as non-cash benefits – even if characterised as non-cash benefits, earnings would not exceed high income threshold – not satisfied applicant’s annual earnings exceed high income threshold – jurisdictional objection dismissed. Welsby v Artis Group P/L.
January 14, 2016
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – applicant employed as Account Manager – role was to source new accounts for the respondent, he was required to identify and develop new printing opportunities in Victoria – applicant dismissed for poor performance for failing to meet sales targets – applicant says he was never provided with written sales targets, was never informed he was failing to meet his targets, was not issued any formal warnings with respect to not meeting his purported targets and not provided with any substantive assistance to assist him in performing his job – Commission not satisfied respondent ever clearly set targets for applicant – given that targets were never specifically provided it is difficult to find that dismissal for failing to achieve something he did not know about provides a valid reason for his dismissal – found no valid reason for dismissal – satisfied termination of employment was harsh, unjust or unreasonable – applicant sought reinstatement – Commission not convinced reinstatement appropriate – compensation – not convinced applicant had been seriously attempting to mitigate his loss – amount of lost remuneration reduced by 50% – an amount of $9,500 plus 9.5% superannuation compensation ordered. O’Brien v The Trustee for Print Warehouse Australia Tryst t/a Print Warehouse.
January 14, 2016
TERMINATION OF EMPLOYMENT – high income threshold – ss.332, 394 Fair Work Act 2009 – objection by respondent on grounds applicant earned more than the high income threshold of $136,700 and was not covered by an award or agreement – earnings disputed – applicant says that his guaranteed earnings to be $125,217.40 whilst respondent estimates annual earnings to be $171,708.83 – amounts earned in respect to overtime hours and travel time are not earnings which should be included for the purpose of calculating the annual rate of earnings – Commission found annual earnings approximately $130,380 – does not exceed the high income threshold – satisfied that the work undertaken by applicant was covered by the Manufacturing and Associated Industries and Occupations Award 2010 – applicant therefore protected from unfair dismissal – matter to be listed for hearing. Banda v Plantman Equipment
January 14, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.311, 384, 394 Fair Work Act 2009 – applicant employed by respondent from 1 February 2015 after purchase of business from Australind Cleaning Services P/L (Australind) – applicant employed from July 2014 by Australind – respondent sent employees letter on 23 January 2015 stating that ‘… all employment associated wages and entitlements, including any leave will start afresh as of the 1st February 2015. If you have any approved leave prior to change of management please ensure that you complete a leave request and return to the office’ – Commission satisfied that there was a transfer of business between Australind and the respondent – not satisfied respondent informed applicant in writing that her period of service with Australind would not be recognised consistent with s.384(2)(b)(iii) of FW Act – correspondence sent ambiguous – legislation is quite specific that an employee must be notified in writing that a period of service with the old employer will not be recognised – satisfied applicant’s service with Australind counts towards the period of continuous service for the purposes of determining whether or not she meets the minimum period of employment to be protected from unfair dismissal – applicant protected from unfair dismissal – merits to be considered. Harland v paradigm Cleaning & Professional Services P/L.
January 14, 2016
TERMINATION OF EMPLOYMENT – small business fair dismissal code – serious misconduct – ss.394, 604 Fair Work Act 2009 – appeal – full bench – permission to appeal granted – dismissal accompanied by payment in lieu of notice and occurred weeks after misconduct upon which it was based – appellant submitted his dismissal was not a summary dismissal in accordance with the Code – alternatively, submitted respondent did not ‘genuinely hold belief’ that dismissal sufficiently serious to justify dismissal – considered ‘serious misconduct’ in context of the Code – not possible to arrive at interpretation of the ‘summary dismissal’ section of the Code that neatly resolves difficulties and inconsistencies which arise – therefore, full bench to give effect to intention of drafters of the Code so far as it can broadly be discerned – types of serious misconduct identified are not an exhaustive list – considered Pinawin – full bench of view appellant’s dismissal was a summary dismissal within meaning of the Code – full bench considered the respondent’s desire that the appellant attend work on 22 and 23 December to perform work that ‘only he could do’ cannot be reconciled with holding belief that appellant had committed serious misconduct justifying immediate dismissal – Commissioner erred in failing to consider this evidence – code not applied correctly – full bench considered factors in s.387 – full bench found valid reason for dismissal – appellant not notified and had no opportunity to respond – procedures effecting dismissal affected by size of business and lack or HR expertise – also considered appellant’s 3.5 year employment history and otherwise good record – dismissal not harsh, unjust unreasonable – finding would have been different in a larger business where impact of non-attendance would have fewer consequences – appeal upheld – decision quashed – unfair dismissal application dismissed – order issued. Appeal by Ryman against decision of Cambridge C of 12 June 2015 [[2015] FWC 3942] Re: Thrash P/L t/a Wisharts Automotive Services.
January 14, 2016
CASE PROCEDURES – appeal s- ss.186, 604 Fair Work Act 2009 – appeal – Full Bench – application for permission to appeal against decision of Fair Work Australia in 2010 to approve Scaffolding P/L/CFMEU Collective Agreement (ACT) 2010-2012 (Agreement) – applicant submitted agreement not genuinely agreed to – applicant submitted that Commission had been misled as to facts, as employer’s declaration incorrect and obtained via improper means, and that Agreement should never have been approved – notice of appeal must be filed approximately four years and eleven months after decision – extension of time required – permission to appeal required – permission to appeal must be granted if appeal is in public interest – applicant currently defending proceedings in Federal Circuit Court of Australia concerning breaches of Agreement alleged by respondent – powerful public interest considerations exist as to why extension of time should not be granted – to allow employer who has previously made or supported an application for approval of an agreement to appeal the agreement’s approval after the employer has been subject to court proceeding alleging breach of that agreement would tend to undermine the stability of whole system of enterprise agreements – Commission of the view that granting extension of time and permission to appeal would prejudice respondent, as witnesses on both sides would no longer have a recollection of key events – respondent’s capacity to defend appeal has been unfairly compromised – Commission not satisfied that applicant was unaware of employer’s declaration and its purpose at the time Agreement approved – extension of time refused – application for permission to appeal dismissed. Appeal by MPR Scaffolding P/L t/a MPR Scaffolding against decision of Cartwright SDP of August 2010 [[2010] FWAA 6435] re: Construction, Forestry, Mining and Energy Union.
January 14, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant awarded four week’s wages as compensation after finding of unfair dismissal – appellant sought to challenge quantification of compensation – appellant submitted evidence incapable of supporting the finding that she would have not been employed beyond the two or three week period it would have taken Academy to comply with the consultation provisions in the applicable enterprise agreement – Deputy President erred by not taking into account the degree of probability that appellant would have been employed beyond the consultation period had it occurred and quantifying compensation in accordance with that degree of probability – Commission found that approach taken by the Deputy President in assessing compensation was orthodox, and the outcome was supported by the evidence – permission to appeal refused. Appeal by Cvejic against decision of Hamilton DP of 7 October 2015 [[2015] FWC 5905] Re: Academy Services P/L. <>/strong
January 14, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision of single member of Commission – leave entitlements in RACV Roadside Assistance Centre Enterprise Agreement 2014-2017 (Agreement) expressed in hours rather than days – existing practice was to deduct 7.6 hours for each day of leave taken, irrespective of actual number of hours of leave taken – Commission at first instance found that this interpretation was not inconsistent with Agreement and should remain – on appeal, Full Bench found that existing practice was inconsistent with Agreement – as NES entitlements – separate issue arose of whether shiftworkers under Agreement entitled to five weeks of annual leave – Agreement did not expressly define shiftworkers for purposes of the NES – Full Bench found that definition of shiftwork in the Clerks – Private Sector Award 2010 was incorporated by reference – RACV submitted that employees would not receive less than NES leave entitlement, as Agreement specifically stated that it would not operate such as to provide a detrimental outcome for employees as compared to the NES, effectively providing a provision that was ‘self-correcting’ in the event of a potential inconsistency – Full Bench satisfied that highlighted provision’s effect wast hat Agreement could not lead to a result whereby an employee’s entitlements under Agreement were less than their entitlements under the NES – appeal upheld – method for deducting leave from employee balances determined. Appeal by RACV Road Service P/L against decision of Roe C of 16 October 2014 [[2014] FWC 7241] Re: Australian Municipal, Administrative, Clerical and Services Union.
