Eastern Health is defending a s.394 (application for unfair dismissal remedy) lodged by an ex-employee (Sirdesai) in Melbourne. Other Fair Work attendees today include: Torrens Transit (Franze); Cruising Yacht Club of SA (Molga); Allergan Australia Pty Ltd (Girardi); Lion Dairy & Drinks (Reid); Kingston Estate Wines Pty Ltd (Cavanagh/Ogle); Ella Rouge Skin Gym and Laser Clinics (Munro); Pacific Islands Trade and Invest (Sharma); Toll Transport Pty Ltd (Kalfadopoulos/Surjan); McMah Pty Ltd (Malic); Bridge Consulting and Recruitment Pty Ltd & Sydney Trains (Edmonds); Queensland Rail Ltd (Woodborne); Tick Electrical (Wahabzadah); Goodstart Early Learning (Morris); LEDA Aluminium Pty Ltd (Chowdhury); The GEO Group Australia Pty Ltd (Guy); University of Western Australia (Dadour); Stacks Pancake Bar (Kunal); Peter Stevens Motorcycle Retail Group Pty Ltd (Turner); Metfold Industries (Telley); Metricon Homes Pty Ltd (Hammon); Glenduart Industries Pty Ltd (Lewtas); A & G Lamattina & Sons Pty Ltd (Topali); Vic Dept of Education and Early Childhood Development (Ambani); SG & ET Snowdon (Demaria); Commissioner for Public Employment (Smith); and Sunco Motors P/L (Morgan).
November 9, 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 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 t hat 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 and decision 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 [Coldham] – when exercising its powers a Tribunal required to 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 that 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 delactation- 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 what 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 9, 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 day 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 weighs 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 me made. Curtis v Suncorp Staff P/L.
November 9, 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 regularly – key issue whether pattern of work systematic – Commission adopted approach in Ponce – found evidence of system 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 9, 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 check whether co-driver was on board following a brief stoppage to check train tracks – co-driver informed applicant she was going for a toilet 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 – inconsistent 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 but for dismissal – less 30% – continuity of service recognised – orders made. White v Asciano Services P/L t/a Pacific National.
November 9, 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 sough 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.
November 9, 2015
A Queensland police officer who urinated on a patrol car and gave a colleague dog food has had an appeal against his sacking dismissed. Former constable Anthony Richard Francis was fired from the Queensland Police Service this year for a string of conduct breaches committed while stationed on the Gold Coast between 2006 and 2010.
November 9, 2015
ANTI-BULLYING – reasonable management action – ss.604, 789FC Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed the appellant’s application for an order to stop bullying on the basis that the action taken was reasonable management actions taken in reasonable manner – allegations of bullying were primarily based on the conduct of the appellant’s managers in managing his performance – appellant submitted that permission to appeal should be granted as the Commissioner’s decision involved significant errors of fact and the Commissioner failed to take certain material into account – Full Bench considered Commissioner’s adoption of observations in Re SB regarding whether management action is reasonable – observations represent a helpful outline of the approach – Full Bench found the Commissioner applied the correct statutory test and applied appropriate observations regarding that test from previous cases – evidence of the circumstances was considered in detail and an assessment of the evidence was made in relation to the statutory test – Full Bench not satisfied there was any error of principle, any material mistake of fact, any failure to have regard to a relevant consideration, or any reliance on an irrelevant consideration – did not consider that the result involved a substantial wrong – appellant essentially seeks to recast the circumstances in an effort to establish that a different result should have been reached – no appealable error or error in the exercise of the discretion vested in the Commission – permission to appeal refused. Appeal by Aly against decision of Bissett C of 10 August 2015 [[2015] FWC 4419] Re: Commonwealth Securities Limited and Ors.
