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.
November 9, 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 infeasible – 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 9, 2015
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 – employment 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 serious 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 way 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 9, 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 Gorgon Project – contract with venture partner provided that respondent could be directed to demobilise employees – 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 reviewed available positions for redeployment and ultimately determined such 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 t his 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 9, 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 was 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 9, 2015
Woolworths Limited has fallen out with a couple of antagonistic ‘shelf stackers’ (Young/Taito) who have both initiated s.379 (dispute) actions in the Fair Work Commission. Other entities to be paraded for their alleged sins include: Coomera Indoor Sports Pty Ltd (Kruse), Scott Corporation Limited (Boyce), The GEO Group Australia Pty Ltd (Guy), Toll Transport Pty Ltd (Kalfadopoulos/Surjan), Drake International (Kitchener), Commissioner for Public Employment (Berryman), Victorian Building Authority (Mulcahey), A Dalley Holdings (Smith), King & Wood Mallesons (Seneratne), CSL Limited (Tumanovski), Metro Tasmania Pty Ltd (Benson), Commissioner for Public Employment (Berryman), Launceston Heart Centre (Lendvay), Metro Tasmania Pty Ltd (Benson), MAX Solutions Pty Ltd (Clarke), Lenswood Cold Stores Co-op Society (Diotti), Ironfish Pty Ltd (Rosie), Rowe Scientific Pty Ltd (Grivell), ICCU of Flinders Medical Centre (Li), Commissioner for Public Employment (Berryman), University of Western Australia (Dadour).
November 6, 2015
The aged care sector and its healthcare cousins continue to dominate the Fair Work Commission’s unfair dismissal listings schedule. Yesterday it was a perennial visitor (Ian Hardy’s Helping Hand Inc) and today occasional attendees Bass Coast Regional Health (Hall), the Department of Human Services (Raykos) and Monash Health (Bannon). Others submitting to the oath include: SA Water Corporation (Giannakakos), Thermacon Insulation Pty Ltd (Beyan), Laser Bean Pty Ltd (Munckton), Australia Visa Link Pty Ltd (Li), Hadsec Group Pty Ltd (Tokoly), Metropolitan Fire and Emergency Services Board (Watt), M C Herds Pty Ltd (Edwards), Caulfield Grammar School (Pownall), Geelong Kindergarten Association (GKA) (Nilson), Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited (Hart), Doser Freight Forwarding Pty Ltd (Alsford), Officeworks Ltd (Kieruj), Carrera Total Pty Ltd (Saleski), BHP Billiton Iron Ore Pty Ltd (Finch), Mermaid Marine Vessel Operations Pty Ltd (Baker/Harty), Unilever Australia Trading Limited (Larkins), Endless Solar Operations Pty Ltd (Phillips), Ingleburn Veterinary Hospital (Pontinen), Woolworths Limited (Greentree), Santosheema Pty Ltd (Alexander), BIC Services Pty Limited (Anastasiou), DPG Services Pty Ltd (Nalder), Chi Kin Ken Ma (Te Rangipuawhe), HP Bowral Pty Ltd (Luckman).
November 5, 2015
A frequent visitor to the Fair Work Commission is an aged care home help mob in South Australia. Helping Hand Aged Care Inc under CEO Ian Hardy is redefining the phrase ‘hardy annual’. This visit is to defend an accusation of unfair dismissal (Judah). For a small organisation in a backwater, he manages to upset a lot of people, and is close to holding the record for most appearances from the minnow league. Other attendees today include: Big Difference Pty Ltd (Senior), Days Eggs Pty Ltd (Andrews), The Jewellery Group Pty Ltd (Foster), Richards (Green), University of Western Australia (Zarev), Wilson Security Pty Ltd (Loughnan), Kols Cleaning Services (Brown/Corbett), Sarina Russo Job Access (Australia) Pty Ltd (Kevin), The GEO Group Australia Pty Ltd (Ryan), Charles Sturt University (Lawless), BIC Services Pty Limited (Anastasiou), TNT Facility Management Pty Ltd (Edge), Sydney Trains (Yehia), WWRD Australia (Taouk), The Cancer Council NSW (Barr), Toll Transport Pty Ltd (Surjan/Kalfadopoulos), HNZ Australia Pty Ltd (Gorlin) and Geographe Real Estate Pty Ltd (Gillespie).
