Termination of employment – remedy – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal by respondent to unfair dismissal application in respect of amount of compensation awarded at first instance – Full Bench satisfied Commissioner erred in failing to take into account payment in lieu of notice earned by applicant – permission to appeal granted – Brett Haigh v Bradken Resources P/L t/a Bradken relevant to methodology for calculating compensation – calculation in decision at first instance adopted, but with payment in lieu of notice added to monies earned since termination – compensation of $18,910.90 awarded. Appeal by Bank of Sydney Ltd t/a Bank of Sydney against decision and order of Cribb C of 8 July 2015 and 21 July 2015 ([2015] FWC 4571, [2015] FWC 4963 and PR569654) Re: Repici
December 3, 2015
Modern awards – award modernisation – modern enterprise award – Sch. 6, Items 2, 4, 6 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – Full Bench – application by CSR & Holcim Staff Association (the Association) – Full Bench previously not persuaded to make a modern enterprise award [[2014] FWCFB 7351] – Full Court of Federal Court quashed decision of Full Bench – matter referred back to Full Bench to determine application according to law – CSR Limited and Association relied on submissions and evidence given during original application – further relied on Full Federal Court decision – Full Bench considered objectives of modern awards and minimum wages – referred to the conclusions made by Full Federal Court in Yum – held if proposed award was made Full Bench would not be ensuring that modern awards provide a fair and relevant minimum safety net of terms and conditions having taken into account the factors in s.134(1) of FW Act – held the minimum base salaries and classification structure in proposed award cannot be regarded as tailored to reflect employment arrangements developed in relation to CSR – if award not made likely that collective bargaining would quickly occur between CSR and salaried employees – attempts to persuade Full Bench that was unlikely were not convincing – not persuaded to make a modern enterprise award or the proposed CSR Award 2015 to replace the CSR Staff (Consolidated) Award 2000 – CSR Staff (Consolidated) Award 2000 terminated. CSR Staff (Consolidated) Award 2000
December 3, 2015
Case procedures – representation – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission granted permission for employer to be legally represented in an unfair dismissal matter – appellant not represented in decision at first instance – appellant not represented in decision at first instance – appellant submitted matter should have been adjourned to allow appellant to obtain representation when it became clear his case was not being advanced effectively – respondent submitted appellant did not raise issue in relation to the grant of representation nor his ability to prepare for proceedings – whether adjournment should have been granted to enable representation – no application for adjournment made by appellant – unclear what error is alleged to have occurred in decision at first instance – no appealable error – not in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Lombardo against decision of Drake SDP of 5 August 2015 [[2015] FWC 5324] Re: Tidewater Marine Australia P/L t/a Tidewater
December 3, 2015
A Melbourne architectural and construction business that sacked a domestic violence victim has lost its bid to overturn an unfair dismissal ruling. The Fair Work Commission refused Eliana Construction and Developing Group permission to appeal against the unfair dismissal ruling earlier this month. The alleged domestic violence victim had been employed as a draftsperson at Eliana since June 2014 and her husband was also employed by the business. In January there was an alleged incident of domestic violence. The woman’s phone was taken by her husband and she was left “in fear for her life”. She obtained a Family Violence Safety Notice, which excluded her husband from the family home. The intervention order was amended by a magistrate to allow both the woman and her husband to continue working from the same office but it specified the husband was not to “approach or remain within three metres” of her. She gave evidence that she was comfortable with those arrangements. Magdy Sowiha, a Director of Eliana held a meeting with the woman to discuss her absence from work following the alleged domestic violence incident and “in an attempt to mend relationships between her and her husband to ensure a harmonious work environment”. Sowiha asked the woman if her husband had physically attacked her. “She told me that he had, many times,” Sowiha said. “She told me that the intervention order specified that they needed to remain three metres apart and that her husband could not contact or communicate with her. Given they work in the same department I told her that this was not possible. I told [the woman] that I can’t have them both working in the office in the same department as I cannot protect her from him.” Sowiha told the woman he could not fire her husband and suggested she work from home. The woman said this was not possible because her husband had taken everything and she did not have a home. Sowiha could not explain why he asked the woman to work from home and not her husband. He said she gave him an “ultimatum” that either she or her husband had to leave, and then offered her resignation. But the woman argued that Sowiha told her he had to sack her “because it would not be safe or nice for the employment to continue” and “keeping you both in the office is a no”. At first instance the court found the woman had been unfairly dismissed. However, Eliana appealed against this decision, arguing that too much weight was placed on the issue of family violence committed outside the workplace. The Fair Work Commission refused permission to appeal noting there was no issue of public interest in this case. It found the commissioner made a specific finding that the employee was dismissed because Eliana believed the intervention order directed at her husband meant the employee could no longer work in the office. The Fair Work Commission found there was no issue of general application arising from these findings as they were specific to the evidence and submissions put to the commissioner. Trent Hancock, employment lawyer at McDonald Murholme said it was a clear and reassuring message from the Fair Work Commission that it is prepared to protect employees from being dismissed as a result of domestic violence. “Employers need to make better attempts to understand the position of employees who are victims of domestic violence,” Hancock said. “In this situation they were pretty quick to further victimise her when she had already been a victim of domestic violence.”
December 2, 2015
The Agmaroy Nursing Home is facing a s.739 claim (flexible working arrangement application) from an employee (Turyanova) in Perth. Other appearances today will include: Ostwald Bros Pty Ltd (Moore), Grace Information & Records Management (Khabbaz), P.R. Hepple & Sons Pty Ltd (Snowden-Bassett), GrainCorp Operations Limited (Nichols), Qantas Airways Limited (Rouady) and Scott Page Motor Body Repairs (Baker).
December 2, 2015
The Construction, Forestry, Mining and Energy Union and the ACT Government as represented by the Justice and Community Safety Directorate have a s.739 (application to deal with a dispute) before Fair Work Deputy President Kovacic in Canberra.
December 1, 2015
An army of ex-wharfies reassemble in the Fair Work Commission this morning to allege unfair dismissal by Patrick Stevedores Holdings Pty Ltd (Ambrose, Borg, Clark, Clinton, Frederico, Jensen, Lee, McCarthy, Mok, Moss, Phillips and Tanti). The sideshows include: The RedCliffe Aero Club Pty Ltd (Loughnan), ISS Facility Services Australia Limited (Mannah), Seymour Whyte Construction Pty Ltd (Savage), Transfield Services (Yarnold), Ensign Australia Pty Ltd (Hafer), Khaled El-Sheikh Pty Ltd atf the El-Sheikh Practice Trust (Sika), Extragreen Holidays (Aust) Pty Limited (Wang), ISG Management Pty Ltd (Bowes), PQ Australia Pty Ltd (Cole), Moonee Valley Racing Club (Hinchen), Twilight Aged Care (Qiu), American Express Australia Limited (Herbert), Business Security Management Solutions Pty Ltd (John) and TAFE NSW Sydney Institute (Jackson).
December 1, 2015
General protections – identity of employer – ss.365, 604 Fair Work Act 2009 – appeal – Full Bench – respondent made general protections dismissal dispute application – during the course of the conciliation conference an issue arose as to whether any of the first to third appellants were the true employer of the respondent to the appeal – employee applied to amend application to add fourth appellant as a party to the dispute – in first instance decision the fourth appellant was added – decision and order appealed – grounds for appeal that appellants, in particular the fourth appellant, were not given opportunity to be heard at conciliation conference and thus denied procedural fairness – respondent conceded denial of procedural fairness occurred – appellants preferred a rehearing with the Full Bench – respondent submitted matter should be remitted to a single member for rehearing – Full Bench considered appropriate course was to remit matter for rehearing before a single member – permission to appeal granted – decision at first instance and order quashed – application to amend remitted to Johns C for rehearing. Appeal by Veolia Water Solutions & Technologies (Australia) P/L and Ors against decision of Lawrence DP of 23 September 2015 [[2015] FWC 6573] Re: De Crisnay
