TERMINATION OF EMPLOYMENT – discontinuance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – on 17 November 2015 the respondent advised the Commission that the parties had reached an in principle settlement and on the same day , the applicant filed a notice of discontinuance – on 19 November 2015 the applicant advised the Commission that he had filed the notice of discontinuance by mistake and under extreme duress – he said he was not in a fit or proper state of mind when he filed the notice of discontinuance and asked that his application be reopened – Commission does not have the power to set aside a notice of discontinuance and that any such application would need to be made to the Court [AB v Tabcorp Holding Limited] – filing a notice of discontinuance does not preclude the filing of a further unfair dismissal application [Narayan] – application to set aside the notice of discontinuance dismissed. McCaig v DP World Melbourne Limited t/a DP World Melbourne.
December 11, 2015
A Christchurch woman who was accused of shopping online on company time has been awarded $8000 in lost wages and compensation. Victoria Self was employed by consultancy firm Receivables Management Limited (RML) in 2014, but was unjustifiably dismissed by her employer just over a month later. Her 90-day employment trial was cut short after colleagues reported to managers that she was “always” on Trade Me and personal internet sites. Following her dismissal, the case was taken to the Employment Relations Authority which found the company breached conditions of trial provisions and has since been ordered to pay compensation on the grounds of humiliation and to make up lost wages. Self claims she was denied a “dignified exit” and “humiliated in front of other staff members” following an unexpected termination letter. She said her manager Ross Fleming forced her to pack up her belongings and leave the company premises after a brief meeting. Self, who worked with the consultancy firm in 2014 between July and August, said she was unjustifiably disadvantaged as the company failed to comply with its human resources policy. RML denied this, adding that Self did not sign an IEA employment contract when she started the job.
December 11, 2015
A university has allegedly let two staff ‘go’, and now the pair are seeking continued tenure via an application to the Fair Work Commission. Other entities on parade today include: Queensland Rail Limited (Engeln), ISS Integrated Services Pty Ltd (Vandenheuval), Inghams Enterprise Pty Ltd (Wong), Savannah Nickel Mines Pty Ltd (Wallis), Golden Dragon Palace (Hui), BBX Australia (Jones), Ron Finemore Transport Services Pty Ltd (Singh), Brandison Pty Ltd (Andrews), Reinforced Concrete Pipes Australia (Hunt), Carrera Total Pty Ltd (Saleski), Zest Pty Ltd (Scolyer), The University of Western Australia (Ardagh), Serco Australia Pty Ltd (William), Professionals Australia (Schlumberger), Manbulloo Ltd (Bransby), Absolute Caulker Pty Ltd (Georgeson), The University of Western Australia (Zarev).
December 10, 2015
Enterprise agreements – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application concerning a dispute as to the performance of duties by employees in senior staff positions – relevant agreement the Schweppes Australia Huntingwood (NSW) Enterprise Agreement 2013-2016 – Schweppes maintained that while the ‘Manufacturing Supervisor’ position is not covered by the Agreement, relief machine duties may be performed in order to ensure that line operation is continuous – submitted that nothing in the Agreement prevents this – United Voice submitted the Commission should stop the performance of such work as it is covered by the Agreement and should only be performed by Agreement covered employees – contended this is consistent with the intention of parties as well as custom and practice on site – Schweppes submitted that the Commission did not have jurisdiction to arbitrate the dispute as it concerns work of employees not covered by Agreement – Commission satisfied it has jurisdiction to make an order to settle dispute – Wanneroo and Golden Cockerel applied – Commission found that while the Agreement does not apply to managerial staff, it also does not describe or restrict work done by them – no provision that only Agreement covered employees can perform production work – held that while the delineation between agreement covered work and managerial staff work may have changed, it has not been substantiated as contrary to the Agreement – given the content of the Agreement, Commission not satisfied the order sought by United Voice is appropriate – application dismissed. United Voice v Schweppes Australia P/L
December 10, 2015
Case procedures – costs – ss.375B, 604, 611 Fair Work Act 2009 – application for costs by respondent – applicant made application for Commission to deal with a general protections dispute involving dismissal – application was dismissed as it was filed outside of statutory time limit and no exceptional circumstances existed – application sought permission to appeal – matter listed for hearing on whether permission should be granted – applicant requested, and was granted, an extension of time in which to file submissions – applicant subsequently discontinued application – respondent sought costs – respondent submitted that neither of the errors of fact cited by the applicant were errors of fact – respondent submitted that the fact the appeal was discontinued two days prior to hearing is evidence that appeal had no prospects of success – applicant submitted she sincerely believed application had merit and was in public interest – applicant submitted she discontinued application because of cost of legal representation and deteriorating mental health – Commission not satisfied that application for permission to appeal made vexatiously or without reasonable cause – Commission not persuaded costs were incurred because of an unreasonable act or omission – application for costs dismissed. Noronha-Barrett v Australian National University
December 10, 2015
Termination of employment – genuine redundancy – ss.389, 394 Fair Work Act 2009 – respondent submitted that applicant was terminated because of inability and/or unwillingness to learn other duties and because there was no need for a full time employee doing the job that the applicant had been doing – respondent contended that the decision was taken after the applicant broke her ankle and was absent on personal leave – during applicant’s leave other employees performed applicant’s role in addition to their own jobs – respondent decided that applicant was not needed on that basis – applicant submitted that her job still existed despite it being spread around other employees – applicant submitted that a new staff member was employed to perform her role – Ulan Coal Mines considered – if there was no longer any function or duty to be performed by that person, his or her position becomes redundant – Commission satisfied that applicant’s role became redundant – applicant covered by modern award – respondent failed to comply with consultation requirements of modern award – respondent’s failure to consult meant that dismissal was not a case of genuine redundancy – Commission satisfied that termination unjust, as applicant denied an opportunity to discuss redundancy of her position and alternatives to termination – respondent ordered to pay applicant compensation of $5,472 taxed at the appropriate rate. Wright v Victorian Container Management P/L
December 10, 2015
Termination of employment – performance – s.394 Fair Work Act 2009 – applicant employed as a Crane Operator/Deck Pusher for 25 years – was operating a crane on an offshore drillship the Deepwater Millennium when another member of his work group was injured – the master link, weighing 32kg, fell approximately 60cm onto the worker’s foot – respondent investigations concluded that the root causes of the incident were that there was a failure to identify relevant hazards because there was no adequately risk assessment of the task, a simple lift checklist was not completed as required, and planning and communication was inadequate and ineffective – applicant dismissed – Commission found the applicant did not comply with the respondent’s safety policies as he was required to – two prior instances where applicant had been warned about unsatisfactory performance relevant – found valid reason for dismissal – dismissal not harsh, unjust or unreasonable – dismissal not unfair – application dismissed. Sakadakis v Sedco Forex International Inc
December 10, 2015
Anti-bullying – costs – ss.402, 611, 789FC Fair Work Act 2009 – respondents claimed costs on the ground that the applicant’s anti-bullying application was vexatious and without reasonable cause – applicant submitted well within her rights to make s.789FC application – reasonable clause to instigate application – Commission considered question of self-represented parties being entitled to costs – referred to decisions in Baker and Keep – Commission held it was entirely appropriate that applicants discontinued their applications given respondents were no longer on management committee and did not have cause to come into contact with applicants – although merits of application not finally determined applicants demonstrated applications were made with reasonable cause – not reasonably apparent that no prospect of success – considered meaning of vexatious – Commission not satisfied applications were made vexatiously – discretion to make order for costs not enlivened – application dismissed. Woods and Anor v Collie Chamber of Commerce and Industry Inc. t/a Collie CCI and Ors
