TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – unfair dismissal application – applicant employed as apprentice butcher in final year of apprenticeship – applicant charged with being an accessory after the fact to murder – later granted bail – employer telephoned applicant’s mother to advise applicant’s employment was terminated – employer claimed employees would resign if required to work with applicant and customers would boycott store – employer claimed dismissal was consistent with Small Business Fair Dismissal Code because applicant had engaged in conduct that caused series and imminent risk to the reputation, viability or profitability of business – Commission accepted, at time of dismissal, employer believed applicant’s actions were sufficiently serious to justify immediate dismissal – not satisfied employer had reasonable grounds to form this belief – dismissal not consistent with Code – no presumption that a criminal conviction alone is a valid reason for termination – considered the shop was located in a small country town and applicant was the only named offended in the media – held there was a valid reason for dismissal but that the process of dismissal was at best deficient – applicant two-thirds of his through apprenticeship and had not secured alternative employment – although valid reason for dismissal applicant not afforded procedural fairness – reinstatement not appropriate – held dismissal was unfair – ordered compensation equivalent to six weeks’ wages. Deeth v Milly Hill P/L
November 20, 2015
TERMINATION OF EMPLOYMENT – minimum employment period – ss.384, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed around May 2012 as casual bus driver pursuant to written contract – respondent raised jurisdictional objection that applicant had not completed minimum employment period – Commission noted applicant received work properly described as regular – key issue whether pattern of work systematic – Commission adopted in allocation of work during applicant’s employment – satisfied employment regular and systematic – per approach in Shortland, breaks in employment not during school holidays held not to count towards minimum employment period but periods when work allocated did count and could be added such that applicant completed six months regular and systematic employment – satisfied applicant had reasonable expectation of ongoing employment, notwithstanding express term to the contrary in written contract – minimum employment period completed – jurisdictional objection dismissed. Burke v Marist Brothers St Joseph’s College t/a St Joseph’s College
November 20, 2015
TERMINATION OF EMPLOYMENT – misconduct – ss.391, 394 Fair Work Act 2009 – team leader for rail related services organisation dismissed for serious and wilful misconduct including removing copper pipes without appropriate authorisation and using company time to do so – suspicion applicant had been preparing to steal copper pipes – employer must establish misconduct on balance of probabilities [Briginshaw] – dispute over extent to which employees should have engaged in work breaking down items – Commission satisfied applicant’s role allowed a level of discretion and judgement – satisfied when applicant undertook removal of copper pipes from test rig he was acting in manner considered properly within his discretion – satisfied no significant time pressure on employees – Commission not satisfied applicant’s conduct merited anything more than counselling or a warning – dismissal harsh, unjust or unreasonable – applicant reinstated – parties to agree on compensation amount for remuneration lost. Chandra v UGL Rail Fleet Services Ltd
November 20, 2015
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application lodged 105 days out of time – whether exceptional circumstances exist – applicant suffered difficult personal circumstances – affected by mental illness – hospitalised for 20 day period – marriage broke down – applicant made several attempts to find accommodation – meaning of ‘exceptional circumstances’ considered [Nulty] – test for granting extension involves both broad discretion and high hurdle of exceptional circumstances [Lombardo] – applicant aware of statutory requirements – Commission prepared to accept 20 day period of hospitalisation amounted to exceptional circumstances however Commission found no other reasonable explanation for additional long periods of inactivity – applicant admitted to inappropriate and disrespectful conduct towards end of employment – applicant denied poor performance – Commission found case not without merit however no reasonable explanation why applicant did not lodge within first 11 days of dismissal – no exceptional circumstances found – application existed [Nulty] – extension of time granted. Shannon v Urban WA Real Estate P/L
November 20, 2015
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – applicant dismissed for excessive personal use of phone and subsequent refusal to agree to repayment plan – international call costs incurred totalled $22,630 – Commission accepted applicant not aware of Acceptable Use Guideline but he was aware of IT policy – IT policy made argument that applicant had unlimited personal international phone calls untenable unfeasible – applicant originally warned rather than dismissed – respondent dismissed applicant when relationship reached point of breakdown – applicant’s refusal to repay money unreasonable – respondent had suggested a three year repayment plan but indicated openness to discuss alternatives – unreasonable of applicant not to enter into repayment agreement – valid reason for dismissal – applicant notified of reason and given opportunity to respond – no procedural deficiencies affected dismissal – Commission accepts that had applicant been notified earlier of excessive use he would not have accrued such a significant debt – respondent had attempted to negotiate over a nine month period – respondent acted reasonably in relation to matter while applicant’s position in relation to matter hardened – dismissal not unfair – applicant dismissed. Applicant v NBN Co Limited t/a NBN
November 20, 2015
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – ss.394, 399A, 587 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on grounds applicant was not dismissed and had instead entered into settlement arrangement, which included a provision that she withdraw and fully discontinue any applications against the respondent – applicant lodged two workers compensation claims against respondent – applicant entered into deed of settlement and release between herself, the respondent and the insurer – applicant understood that settlement involved a voluntary resignation and signed a resignation letter – Commission satisfied that in signing deed of release applicant agreed to withdraw and fully discontinue any applications against the respondent – Commission could not ignore what parties agreed to in the deed and allow the application to proceed – application dismissed. Little v Anfield Muirs P/L t/a Good Guys
November 20, 2015
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commissioner determined he had no jurisdiction to further deal with an application (October 2013 application) lodged by the appellant under the dispute resolution procedure in the North Goonyella Underground Mine Collective Enterprise Agreement 2012 related to compulsory redundancies – no jurisdiction for Commission to deal with a dispute pursuant to a dispute resolution procedure in an enterprise agreement if the dispute in initiated under the procedure at a time when the persons who are said to be in dispute with the employer are in fact no longer employed – the October 2013 application was dismissed – in the decision the Commissioner indicated he would list a related s.739 application lodged by the appellant (August 2013 application) for the Commission to deal with a dispute with North Goonyella for further hearing – in this appeal the appellant contended that the Commissioner erred in determining there was no jurisdiction to continue to deal with the October 2013 application – August 2013 application will not proceed to the further hearing until appeal determined – Full Bench determined to refuse permission to appeal for two reasons: first, they were satisfied that the Commissioner’s conclusion on the issue of jurisdiction was correct and, second, they considered that in any event the appeal lacked practical utility – little that would be achieved by granting permission to appeal – permission to appeal refused. Appeal by Construction, Forestry, Mining and Energy Union against decision of Lewin C of 15 May 2015 [[2015] FWC 1138] Re: North Goonyella Coal Mines P/L
November 20, 2015
REGISTERED ORGANISATIONS – representation rights – ss.236, 505, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision of Commission to ballot employees at Lifestyle Bakery P/L (Lifestyle) in respect of a majority support determination application by the NUW, and against finding that the NUW had ‘coverage’ of employees at Lifestyle and Daycone P//L atft Daycone Trust t/a Tucker’s Natural (Tucker’s) – appeals heard together – Tucker’s and Lifestyle (the appellants) submitted that NUW did not have coverage of the relevant employees pursuant to its rules – at first instance, broad approach to interpretation of NUW’s eligibility rules adopted [Metal Trades Industry Association of Australia v Electrical Trades Union of Australia and Ors] – NUW rules made eligible those involved in the ‘manufacture or preparing for sale of…cereal foods, and all other articles, goods and preparations usually or commonly known as Grocers’ sundries’ – Commission adopted Oxford dictionary definition of ‘cereal foods’ – adopted definition of ‘grocer’s sundries’ from Food Preservers Union of Australia v Manufacturing Grocers’ Employees Federation of Australia – at first instance Commission found that employees of appellants eligible to be covered under NUW rules – Commission adopted approach in Re Food Preservers Union t hat, even if products of Tucker’s were not cereal food, they should be regarded as grocer’s sundries – on appeal. Appellants submitted that their products were not cereal food or grocer’s sundries, and that the interpretation at first instance was too broad – appellants also submitted that a product cannot be a cereal and a sundry, that the Commission erred in applying the Oxford dictionary definition of ‘cereal foods’ and erred in applying Food Preservers Union of Australia v Manufacturing Grocer’s Employees Federation of Australia and Re Food Preservers Union – Full Bench satisfied that first instance decision gave ‘cereal food’ the full breadth of its ordinary meaning – cereal a significant component of appellants’ products – no error of fact or law demonstrated – permission to appeal refused. Appeal by Lifestyle Bakery P/L and Anor against decisions of O’Callaghan SDP of 14 July 2015 [[2015] FWC 4720 and [2015] FWC 2144] Re: National Union of Workers
