TERMINATION OF EMPLOYMENT – misconduct – employer policies – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for alleged breaches of policy – respondent submitted applicant gave his work mobile phone and sim card to his aunt for her use while applicant was at work – further submitted applicant repeatedly used his personal Gmail account for work purposes – sent a significant volume of customer files and other documents to his personal email – Commission found applicant’s conduct, together with his dishonesty was a valid reason for dismissal – applicant’s decision to transfer large amount of confidential information to his Gmail account occurred in circumstances where he was aware of his obligation to keep customer and bank information secure – applicant was in breach of his duty to both the respondent and its customers – Commission satisfied dismissal was proportionate response to the conduct – process followed by respondent was fair – dismissal not harsh, unjust or unreasonable – dismissal not unfair – application dismissed. Volker v Westpac Banking Corporation t/a Westpac
December 14, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant terminated following breach of respondent’s drug and alcohol policy – failed to notify respondent he was taking Nurofen Plus – applicant submitted he was targeted – drug test not random in accordance with the policy – lower strength painkiller didn’t impair work performance – respondent alleged three breaches of the policy: failure to notify, failure to report and allegedly tampering with salvia test – applicant a senior safety manager in the business – under obligation to ensure he was complying with the policy at all times – Commission found applicant was in breach of policy by failing to report taking Nurofen Plus and failing to complete medication declaration form – third allegation relating to tampering with saliva test not proved – found valid reason for dismissal, however two substantiated breaches of the policy did not amount to serious misconduct – financial consequences of the dismissal were harsh – found dismissal was unfair – reinstatement not appropriate – ordered compensation of $17,795.08, plus superannuation, taxed according to law. Guorgi v Transdev Queensland P/L
December 14, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – original decision overturned on appeal [[2018] FWCFB 2279] – remitted to Commission to rehear and determine – applicant modified company vehicles without authorisation – misuse of assets – breach of Fleet Management Practice and Code of Conduct – respondent incurred costs as result – investigation by respondent not sound and proper – disciplinary meeting denied applicant fair opportunity to respond – any person engaged in misconduct entitled to have case investigated on merits not what is common – applicant had made claim against manager – manager remained part of investigation – conflict of interest – denial of procedural fairness – Commission found valid reason for dismissal – applicant not notified of totality of reason for dismissal – respondent did not adhere to policies and procedures – manager should have stood down from investigation – affected objective fairness of investigation – found dismissal unreasonable – substantial deficiencies in investigation process – lack of appropriate investigation and conflict of interest – procedural issues outweigh finding of valid reason – applicant unfairly dismissed – matter to be listed for telephone mention to determine directions to deal with remedy. Emery v City of Stirling
December 14, 2018
TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 384, 394 Fair Work Act 2009 – application for unfair dismissal remedy – whether applicant satisfied minimum employment period – applicant was engaged as real estate agent on commission only basis – considered a commission only piece worker under Real Estate Industry Award 2010 and not a casual employee – small business employer – Commission satisfied that applicant’s employment as a piece worker was continuous until the employment came to an end – found applicant performed work for respondent at various times spanning a period well in excess of one year – satisfied minimum employment period met – jurisdictional objection to whether applicant satisfied minimum employment period dismissed – matter listed for Directions Hearing for remaining jurisdictional matter and substantive matter. Dunn v Artha Property Group P/L t/a Artha Property Group
December 14, 2018
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant a Personal Lender at bank branch – investigation held following call to anonymous hotline – discrepancies in cash balances identified – number of allegations against applicant included misappropriation of $3,400 cash – investigation report substantiated allegation of misappropriation – respondent asserted misappropriation constituted theft – applicant terminated with immediate effect – provided three weeks’ salary in lieu of notice – applicant denied taking money – claimed no direct evidence and inconsistent witness evidence – argued the required standard not met for allegation to be made out – reinstatement sought – Commission found on balance of probabilities that finding of misconduct and misappropriation of $3,400 was verified – valid reason for summary dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.Zepidis v Commonwealth Bank of Australia
December 14, 2018
TERMINATION OF EMPLOYMENT – contract for specified term – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed under three successive fixed term contracts – employment ended when last contract expired – whether applicant dismissed – applicant presumed further contract would be offered – no further fixed term contract offered – jurisdictional objection raised – respondent claimed no dismissal as employment ended at completion of fixed term contract – issue whether employment was terminated on respondent’s initiative or as a result of contract ending – Navitas considered – Commission satisfied applicant did not enter contract with respondent as result of misrepresentative or misleading conduct – found employment ceased in accordance with agreed terms in contract – termination of employment not at the initiative of respondent – jurisdictional objection upheld – application dismissed. Mateer v International Education Services Limited t/a IES Senior College
December 12, 2018
The unfair dismissal/labour dispute lawlist for the Fair Work Commissioners today is: Central Capital Pty Ltd (Zhou), Gaucho Bros Pty Ltd (Mathieu), Smartscape Pty Ltd (Thong), LOPIGEAR Pty Ltd (Neary), Krav Maga Defence Institute Pty Ltd (Markovitch), City of Stirling (Emery), Nutton 2 lt Pty Ltd (Bailey), Opteon (Kaur), Healthcare Australia (Melo Gaete), Pandjo Trading (Szczygielski), Killara Pines Pty Ltd (Danaher), Coverall Security Pty Ltd (Neumayer), Seljo (NT) Pty Ltd (Tiwari), Australian Federal Police (Burnett), DJ Rash Pty Ltd as trustee for DJ Rash Unit Trust (Pinkistone (nee Quinn)), Artha Property Group Pty Ltd (Dunn), Superior Wood Pty Ltd (Lee), Coles Supply Chain Pty Ltd (Milford), MedRecruit International Limited Partnership (Ownes), Aussie Yachting (Tindal), A Noble & Son Ltd (Mullins), Scavenger Supplies Pty Ltd (Pemberton).
December 11, 2018
The Fair Work Commission lawlist governing unfair dismissal and contract disputes is as follows: Ninas Cleaning Services & Ninas Cleaning Australia (Porter), Steel Central Pty Ltd (Currie), Seljo (NT) Pty Ltd (Tiwari), Spotless Services Australia Ltd (Cook), Jambo Security (Dittman), Wastetech Engineering Pty Ltd (Ferrai), Latrobe Regional Hospital (Scott), GBR Helicopters (Wright), Transit Australia Group (Kainzinger), Australian Postal Corporation (Monaghan), Bacalar Pty Limited (Young), Nationwide News Pty Ltd (Kumar), Lorna Jane Pty Ltd (Keats), WSP Australia Pty Limited (Pye), Australian Radio Towers Management Pty Ltd (Green), Lake Illawarra Pre-School and Kindergarten (Bond), Busways Blacktown Pty Ltd (Tadros), George Weston Foods Ltd (Botha), Busselton Golf Club Incorporated (O’Connell), The West Australian Ballet Company (Way), Parents Without Partners Victoria Inc (Humphris), Laurent Boulangerie Pty Ltd (Hirst), KDR Victoria Pty Ltd (Moran), Islamic Association Western Suburbs Sydney Inc & Cheema and Another (Tahir), Fast Cabinets Pty Ltd (Zhou), Apprentices Trainees Employment Limited t/as ATEL (Nolan), David Jones Pty Ltd & Carafa and Another (McDonald), Mecca Brands Pty Ltd (Sullivan), Monash University (Meaney), Central Cleaning Supplies (Aus) Pty Ltd (Littel), Western Plains Pork Pty Ltd (Semple), Metro Tasmania Pty Ltd (Wolfe), Seljo (NT) Pty Ltd (Tiwari), The West Australian Ballet Company (Way).
