The tourism sector is represented today by Jetstar Airways Pty Ltd (Anders) and Griffins Head Hotel Pty Ltd (Rungkat). Other entities facing unfair dismissal assertions include: GM Holden Ltd (Harvey), SACRT Trading Pty Ltd (Fleming), AGL Energy Limited (Poland), United Precast Pty Ltd (Collier), Only Floors (Hall), Dunbrae Pty Ltd (Figgins), Commonwealth of Australia (acting through and represented by the Department of Defence) (Jones), Millenium Coal Pty Ltd (Strack), Hans Setiawan (Thaha), Queensland Bulk Water Authority (Titmarsh), Savannah Nickel Mines Pty Ltd (Crowley), City of Perth (Frost), The Trustee for the Inkster Family (Hooper), YMCA WA (Thomas), Scho Homes Pty Ltd (Stevens), Downer EDI Engineering Power Pty Ltd (Burgess), Minnow’s Early Learning Pty Ltd (Balasupramaniam), EasyLift (Camilleri), Minifie Park Early Childhood Centre (Nicolaou), Commissioner for Public Enjoyment (Smith), MaxiTRANS Ltd (Valenzisi), Catholic Education Office, Archdiocese of Sydney (O’Connell), Endeavour Energy (Ee), New Horizons (Pass) and Pace Farm Pty Ltd (Galea).
November 23, 2015
The care sector is again over-represented in the Fair Work Commission with Eastern Health (Sirdesai) and Healthcare Procurement Partners Pty Ltd (Damms) being accused of unfair dismissals. Other employers facing similar allegations include: White Digital Pty Ltd (Isdale), Hunter Motor Group (Williams), Teys Australia Southers Pty Ltd (Chapman), Gilbarco Australia Pty Ltd (Sweet), Pro Floor (Tylor), Paradigm Cleaning & Professional Services Pty Ltd (Harland), Q Cam Processing Pty Ltd (Roberts), Plantman Equipment (Banda), Open University Australia Pty Ltd (Bianchi), Simplot Australia Pty Ltd (Ponnusamy), JaJa Pty Ltd (Karolczak), Tasmanian Posts Corporation Pty Ltd (Gee), Commissioner for Public Employment (Smith), Clarity CA Pty Ltd (Atkinson), Chi Kin Ken Ma (Te Rangipuawhe), Lakman Fernando Investments Pty Ltd (Brodie), Greencross Operations Pty Ltd (Kadhem), Croyberg Pty Ltd (Stevenson), Commissioner for Public Employment (Smith), Roo’s Consultants Pty Ltd (Dorsett), Signature Training Pty Ltd (Dorsett), Minnow’s Early Learning Pty Ltd (Balasupramaniam), BHP Billiton Cannington Pty Ltd (Turner), Australian Taxation Office (Rahman), Holman Webb Lawyers (Farrell), Southport Surf Lifesaving Club, Main Beach (Condren), A&S Ashen Family Trust (Fitzpatrick), North West Crewing Pty Ltd (Sullivan).
November 20, 2015
CASE PROCEDURES – appeals – OH&S review – cl.81 Offshore Petroleum and Greenhouse Gas Storage Act 2006 – r.53 Fair Work Commission Rules 2013 – application by Sedco seeking revocation of a decision by NOPSEMA to issue Improvement Notice 539 (IN 539) – application made pursuant to clause 81 of Schedule 3, Part 4, Division 5 of the OPGGS Act and rule 53 of the FWC Rules – important to note that Sedco has undertaken the work required under IN 539 – parties did not agree to the approach to be adopted by the Commission in hearing the application, and consequently, the appropriate questions to be determined – Sedco submitted that the Commission was required to consider the OHS Inspector’s decision and exercise of discretion to issue IN 539 as at the date of the hearing – NOPSEMA submitted that the Commission was required when considering the OHS Inspector’s exercise of discretion to issue IN 539, to adopt a ‘historical assessment’ – the nature of the appeal must ultimately depend on the terms of the statute conferring the right [Coldhan] – when exercising its powers a Tribunal required t pay ‘attention to the state of affairs existing at the time the Tribunal makes its decision’ [Shi] – OPGGS Act does not explicitly set out the approach to be adopted by the Commission – appropriate to consider the nature of decisions which can be made by OHS inspectors and the powers of the Commission as a reviewing authority – issuance of an improvement notice is not automatic or mandatory, inspector required to exercise a discretion – Sedco’s approach to the hearing was not whether the inspector had a ‘requisite reasonable belief’, but whether the Commission, at the time of the hearing, is satisfied on reasonable grounds the Sedco was contravening the OPGGS Act – appeal by Sedco not a review in the ordinary sense, but a fresh application for the Commission to determine a matter at the time of the hearing – approach appears to be inappropriate, and somewhat artificial – the Commission was being asked to make a determination on the inspector’s decision on the basis of circumstances which he could not possibly be aware of at the time he made the declaration – Commission has wide powers of determination of the matter – tests for the issuing of an improvement notice must be in accordance with the statute – satisfied that the decision to issue an improvement notice is ‘time specific’ to an inspection being carried out, based on reasonable grounds – satisfied that the Commission, as the reviewing authority, is required to consider an OHS Inspector’s decision at the time it was made – questions for determination will be those set out by NOPSEMA. Sedco Forex International Inc v National Offshore Petroleum Safety and Environmental Management Authority t/a NOPSEMA
November 20, 2015
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – application lodged out of time – applicant submitted application was delayed due to chronic morning sickness – respondent submitted applicant resigned from her employment – Commission found applicant’s illness left her incapable of filing application – on evidence presented, there was a prima facie case applicant did not resign from her employment – exceptional circumstances.
November 20, 2015
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant a ‘Supply Base Operator’ (SBO) performing transport and logistics services on Barrow Island – respondent in joint venture as part of Grogon Project – contract with venture partner provided that respondent held ‘town hall’ session with workforce prior to receiving such direction – found to have satisfied consultation obligation – applicant’s position of Warehouse SBO subsequently made redundant – respondent reviews available positions were unsuitable – applicant informed by telephone – content of telephone discussion disputed by parties – two positions considered, requiring specific licences – applicant conceded did not possess necessary licence for one position- found respondent came to wrong conclusion regarding applicant not holding licence for the other – held on basis of what respondent knew at time this was reasonable conclusion – position required experienced driver and was not a ‘fly-in, fly-out’ (FIFO) role – redeployment would have necessitated relocation to Sydney from Perth – Commission found redeployment not reasonable – dismissal was genuine redundancy – application dismissed. Kloczonek v Toll Energy Logistics P/L
November 20, 2015
TERMINATION OF EMPLOYMENT – extension of time – date dismissal took effect – s.394 Fair Work Act 2009 – application for relief from unfair dismissal made 19 June 2015 – 39 days outside 21 days time limit – whether exceptional circumstances exist [Nulty] – dispute over when dismissal took effect – dismissal does not take effect unless and until communicated to employee who is dismissed [Burns] – applicant only became aware of dismissal on 1 June 2015 – Wilson relevant to communication of dismissal – applicant did not deliberately avoid receipt of termination letter – applicant’s illness weights in favour of being granted extension of time – found exceptional circumstances – Commission found application not out of time, in any case satisfied exceptional circumstances warranted applicant being allowed further period for application to be made. Curtis v Suncorp Staff P/L
November 20, 2015
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for serious misconduct – applicant employed as Train Driver Trainer – applicant failed to c heck whether co-driver was on board following a brief stoppage to check trains breaks – co-driver informed applicant she was going for a toiler break – applicant misinterpreted this to mean she would be using on board facilities – applicant unaware co-driver had left train – applicant could not locate driver after moving off again – co-driver was found walking along track several kilometres away – respondent launched investigation – respondent alleged serious safety breaches by applicant in violation of policies, procedures and Code of Conduct – respondent submitted two primary reasons for dismissal – leaving co-driver behind – speeding – Commission found first allegation not made out – second allegation was ‘one off incident’ – mitigating circumstances – criticism of employer’s handling of investigation – inconsistence treatment as co-driver not dismissed – applicant did not have any disciplinary history in over nine years of service – dismissal unfair – reinstatement sought – reinstatement not impracticable – loss of trust and confidence not established – reinstatement awarded – orders sought for continuity of services and lost remuneration – significant discount for lost remuneration due to breach of respondent’s safety policies – applicant awarded remuneration he would have otherwise earned by for dismissal – less 3-% – continuity of services recognised – orders made. White v Asciano Services P/L t/a Pacific National
November 20, 2015
GENERAL PROTECTIONS – costs – s.365 Fair Work Act 2009 – respondent claims application was commenced without proper basis and without reasonable cause and made vexatiously – respondent also claims that its legal costs were necessary and reasonable – Keep and Church considered – Commission was not satisfied application was made vexatiously – applicant believes the things he sought to assert as workplace rights were exactly that – no party represented in conference – application does not does not meet the criteria for the awarding of costs – application dismissed. Corcoran v Gamma Business Solutions P/L
