Twenty-three companies will today defend claims of unfair dismissal. They include: Zbigniew Woljciech Wilczynski, Ammon Bradley Prebble (Wilczynski), Finance Sector Union of Australia (Jordan), Dairy Country (Barkho), CMS Coffee Machine Services Pty Ltd (Maglicic), Australian Teamwear Pty Ltd (Varma), Nardy House (Perry), Head Mod Nominees Pty Ltd (Christian), ACE Operations Pty Ltd (Davies), Khaled El-Sheikh Pty Ltd (Sika), Westpac Banking Corporation (Harris), Kenyon Family Trust (Smart), The Shed Tavern Pty Ltd (Moloney), Hans Setiawan (Thaha), Mt Pleasant Stud Farm Pty Limited (McCormick), Endeavour Energy (Ee), McNeall Plastics Pty Ltd (Hurtis), IQ Beverages (Australia) Pty Ltd (Slavovic), Artis Group Pty Ltd (Welsby), Cabin Services Australia (Kilishiris), Sonic Innovations Pty Ltd (Fleming), Arrow Energy Pty Ltd (Mower), The Redcliffe Aero Club Pty Ltd (Loughnan) and Griffith University (Buchanan).
December 9, 2015
Modern awards – award modernisation – modern enterprise award – Item 4, Sch. 6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – Full Bench – application by GrainCorp Operations Limited for modern enterprise awards to be made to replace eight enterprise instruments – application was subsequently amended so that the applicant only sought a modern enterprise award to replace the Grainco Australia Limited Award – Queensland 2003, the Australian Workers’ Union – Grain Elevators Board Victoria Award 1999 and The Australian Workers’ Union – GrainCorp Operations Ltd. (Bulk Handling) Award 1999 – Viterra considered – modern awards objective, minimum wages objective and modern enterprise awards objective considered – modern enterprise award made. GrainCorp Country Operations Award 2015
December 9, 2015
Termination of employment – genuine redundancy – ss.389, 394 Fair Work Act 2009 – applicant contended dismissal was harsh, unjust or unreasonable – respondent contended dismissal was genuine redundancy – business across Australia was unprofitable for 12 months prior to applicant’s dismissal – respondent conducted a review of available positions and none of the vacant positions available were suitable for applicant in light of his skills, experience and seniority – Commission satisfied not reasonable in all circumstances for applicant to be redeployed – applicant’s dismissal was genuine redundancy – application dismissed. Valenzisi v MaxiPARTS P/L
December 9, 2015
General protections – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged 24 days out of time – reasons for delay given by applicant included an illness at the time of dismissal supported by a medical certificate, she misunderstood the directions by thinking that time ran from the date of the directions issued by the Commission and the legal representations she thought she had arranged withdrew – ‘exceptional circumstances’ may be comprised of a combination of factors [Nulty] – Commission satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application – extension of time granted. Konda v McWaters Productions P/L t/a Open Slather Foxtel Sketch Comedy Series
December 8, 2015
The healthcare/charity sector is the most represented subgroup in Fair Commission hearings today. The entities appearing include: BGC Contracting Pty Ltd (Young), Barrett Moving Pty Ltd (Murphy), Adelaide Community Healthcare Alliance Incorporated (Moroney), Rosewater Football Club (Farley), Summit Tower Hire (Sodden), Ostwald Bros Pty Ltd (Moore), MSS Security Pty Ltd (Townsend), Royal Equipment Pty Ltd (Fitzpatrick), Savill’s Painting and Property Maintenance Service (De-Abreu), Kitco Transport (Kitchen), Roads Corporation (Forbes), Metro (Singh), Amalgamated Holdings Ltd (AHL) (Tagliano), Caritas Australia (Forde), Australia and New Zealand Banking Group (Callychurn), Daoud Building Group Pty Ltd (Fan), Pambula Merimbula Golf Club (Libbis), Australian Islamic College of Sydney (Charaneka), Lifeline Broken Hill Inc (Fitzpatrick), Cara Inc (Nelpurackal), Postleaf Pty Ltd (Handley), Arrow Energy Pty Ltd (Mower), Glen Industries (Osborne), Virgin Australia Airlines Pty Ltd (Parker), Citywide Solutions Pty Ltd (Pender), P.R. Hepple & Sons Pty Ltd (Raymond), AT-PAC Group (Plyter), Metcash Food & Grocery (VIC) Pty Limited (Jones), Shellharbour Accounting and Taxation Pty Ltd (Burns), American Express Australia Limited (Herbert), Bridge Consulting and Recruitment Pty Ltd (Javed), Imagetec Solutions (Manley), Head Mod Nominees Pty Ltd (Christian) and Khaled El-Sheikh Pty Ltd atf the El-Sheikh Practice Trust (Sika).
December 4, 2015
Termination of employment – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – applicant employed as advertising sales representative – after confrontation on 3 July 2015 with respondent’s owner, applicant resigned – provided three weeks’ notice – on 5 July 2015 applicant saw medical practitioner as was ‘suffering stress and heart was racing’ – medical practitioner provided medical certificate indicating applicant was not fit to perform her duties on 6 July 2015 – on morning of 6 July 2015, applicant claimed that she was telephoned and informed that she was required to hand in work keys and mobile telephone – also submitted that she was required to return work shirts – when returning work keys the applicant was informed that she was not permitted to enter work site – applicant requested the return of personal items – applicant considered she had been dismissed by the respondent – applicant submitted that the respondent’s conduct had been such that she was forced to resign as she had no reasonable alternative – Commission found that it did not appear that the applicant could reasonably have been ‘forced’ to resign her position if she was capable of performing her duties and sustaining the employment relationship for a further three weeks – such circumstances suggested that the applicant had alternative courses of action at her disposal at the time other than resignation – Commission held that applicant was not forced to resign her employment because of the conduct of her employer – Commission found the applicant resigned from employment on 3 July 2015 as provided three weeks’ notice – applicant did so at own volition – Commission found that as respondent took view that applicant would not return to workplace on and from 6 July 2015, the applicant’s employment was taken to have come to an end at the initiative of the respondent and not by the earlier act of resignation – application jurisdictionally competent – merits considered – Commission found no valid reason for dismissal – applicant harshly, unjustly and unreasonably dismissed on 6 July 2015 – remedy – no utility in contemplating reinstatement – compensation ordered of the balance of any notice not paid in respect of the (three week) period of notice. Brunner v Amalgamated Marketing P/L t/a Radio Stations 4AK 4WK
December 4, 2015
Termination of employment – termination at initiative of employer – resignation – ss.385, 394 Fair Work Act 2009 – applicant employed as an employment consultant for an employment and training provider – resigned because of his extended commute to the Warwick office – applicant indicated that he would have preferred to have been employed in the Toowoomba office, which was much closer to his home – Regional Manager of respondent indicated that she would see if there were any vacancies in Toowoomba and if there were, his resignation could be changed to a transfer – applicant took the view that his resignation had been withdrawn from the time of that conversation – respondent advised there were no current 6vacancies in Toowoomba – applicant emailed respondent and indicated that he was ill and sought to withdraw his resignation – respondent advised resignation had been accepted and that he was not required him to work out his notice period, the respondent would pay him nine days’ notice in lieu – evidence adduced did not indicate that the applicant’s resignation was suspended or otherwise put aside by the respondent – respondent was under no obligation to accept the unilateral withdrawal of the prior notice of resignation – Commission found applicant cannot be taken to have been dismissed for purposes of s.385 of FW Act – application dismissed. Clarke v MAX Solutions P/L
December 4, 2015
Termination of employment – contract for specified term – meaning of dismissal – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal remedy – applicant commenced employment as permanent part-time employee under terms of Cheap as Chips (Retail SA/ Broken Hill Staff) Enterprise Agreement 2013 (the Agreement) – applicant appointed to Assistant Store Manager and contract made no reference to Agreement – applicant subject to six month probationary period – correspondence relating to employment did not refer to any end date for position – applicant made workers compensation claim – sought position that enabled her to work 28 hours per week – correspondence referenced conditions of Agreement and provided for probationary period and notice requirements – applicant asserted it was never never highlighted to her that her employment was for a fixed term, but that she would be serving various probationary periods – ‘permanent’ appeared numerous times throughout Agreement – respondent submitted word ‘permanent’ denoted ‘non-casual’ employee without regard to defined or indefinite period of time – Commission acknowledged term could refer to both fixed term and on-going employees – Commission found changes to positions held by employee or position requirements do not mean there is cessation of employment – the termination of a contract of employment does not necessarily result in the termination of the employment relationship between the parties, if the parties have entered a new contract of employment, the employment relationship continues notwithstanding the termination of the prior contract of employment [Lunn] – Commission found that entirety of employment arrangement must be taken into account – found applicant was on-going employee and not subject to contract for specified term – found applicant dismissed at initiative of employer – jurisdictional objection dismissed. Morris v Palcove P/L t/a Cheap as Chips
