TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – unfair dismissal application – applicant employed as team leader for City of Perth car parks – dismissed after independent investigation found falsified timesheet on five occasions – Commission found applicant wrongly indicated to respondent on two occasions that he had worked hours he had not worked – 28 minutes on one occasion and 1 hour and 51 minutes on another wrongly claimed – satisfied these actions constituted valid reason for dismissal – respondent undertook full investigation and applicant had full opportunity to respond – subsequent audit of other staff’s actual start and finish times compared to their rostered start and finish times identified some variance including some employees adopting practice of commencing work earlier than rostered start time and leaving earlier than rostered finish time – respondent’s decision not to take any disciplinary action against any staff but rather to only reinforce to them their obligations to adhere to rostered times not consistent with the manner in which it dealt with respondent – considering applicant’s eight years of service, respondent’s more lenient approach to other staff not working strictly in accordance with their rosters and the fact that on occasions applicant would undertake duties outside of his rostered hours, Commission concluded decision to dismiss harsh – satisfied dismissal unfair – noted that had the evidence before Commission supported a finding that all five allegations of wrongly claiming for time not worked were correct the dismissal would not have been unfair – application granted – reinstatement inappropriate – compensation appropriate – 25% reduction for misconduct in wrongly claiming hours – respondent ordered to pay compensation of 3 months remuneration less taxation. Casper v City of Perth.
November 2, 2015
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – applicant dismissed for poor performance no written warning – not summary dismissal – Small Business Fair Dismissal Code did not apply as termination related to performance – Commission not satisfied problems with applicant’s performance – no valid reason for dismissal – considerable underpayment of wages – payment in lieu of notice insufficient to compensate for significant shortfall – termination harsh, unjust and unreasonable – reinstatement not appropriate – compensation appropriate – applicant attempted to mitigate loss – ordered compensation of $15,245.68 less tax. Christie v Kennedy’s Personal Training P/L t/a Kennedy’s Health and Fitness.
November 2, 2015
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as Marketing Manager – respondent asserted dismissal a case of genuine redundancy – whether respondent compiled with consultation requirements – applicant submitted he fell within classification D.1.8 General Staff Level 5 in Educational Services (Post-Secondary Education) Award 2010- whether award applied – Commission found some aspects of applicant’s role administrative and fell within generic descriptors in classification – not satisfied Award applied – found respondent had no obligation to consult about making position redundant – no evidence any enterprise agreement applied – whether reasonable for applicant to be redeployed – what is reasonable has to be determined on case by case basis on objective facts – Commission found redeployment unreasonable – satisfied dismissal was genuine redundancy – application dismissed. Rahimi v Perth Education Group P/L t/a Technical College of Western Australia (TCWA).
November 2, 2015
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – applicant performed duties as printing press operator since 2006 – applicant dismissed due to performance – respondent introduced new type of printing press to its operations in mid-2014 – all Printers given training – applicant received more training than any other Printer – applicant advised that his production was not up to the speed or standard required – applicant asked to be put with a more experienced assistant – respondent discussed setting the minimum acceptable standard as the average to which they would provide reports so t hat the applicant could identify any shortfalls in his performance compared to this standard – further meeting took place to discuss performance and employment – applicant dismissed – Commission found failure to meet the reasonable standard of performance the respondent required was a valid reason for his dismissal – satisfied dismissal was unfair – reinstatement not sought – respondent ordered to pay compensation of $2056, taxed accordingly. Gilbert v Picton Press P/L t/a Picton Press.
November 2, 2015
CONDITIONS OF EMPLOYMENT – redundancy – s.120 Fair Work Act 2009 – employer submitted employee entitled to 10 weeks redundancy pay having been employed for more than five years but less than six years – seeks to reduce employee redundancy entitlement to four weeks on the basis of having obtained ‘other acceptable employment’ – submitted redundancy came about through the non-renewal of the Wollongong outlet lease – further submitted on-going discussions with employee regarding the closure of the shop and discussed possible redeployment opportunities before the Wollongong store closed – employer offered two positions but employee declined both due to additional travel requirements and less responsibility – Hot Tuna considered – Commission found it clear that the employee was not aware her refusal to accept any alternate job offer would affect her redundancy entitlement – nor was she aware that if she secured work with an associated company her accrued entitlements would transfer – employer must demonstrate they have obtained other acceptable employment for the employee – positions offered to employee were acceptable and offered good career prospects but did not reflect full responsibilities of the redundant position and involved potential additional travel – Commission satisfied discretion available to reduce or eliminate its redundancy pay obligations to the employee should be exercised by reducing the entitlement to five weeks redundancy pay – order issued. The Trustee for Gruzin Family Trust and the Trustee for SWJ Investment Trust t/a Pointvale P/L & Performtech P/L v Thomson.
November 2, 2015
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed following an investigation into his company fuel card use which identified that unleaded petrol had been purchased on two occasions over a month, such an occurrence would not have occurred if the applicant was driving diesel vehicle which he was allegedly instructed to drive – applicant denied being told to only drive the diesel vehicle and submitted he drove a multitude of unleaded vehicles and used the fuel card to purchase petrol for those vehicles – applicant admitted to occasionally using the card to purchase fuel for his own vehicle on weekends – Commission found there was a valid reason for dismissal due to the applicant’s breach of the fuel card policy on the weekends – Commission found applicant not provided the appropriate level of procedural fairness on the basis the applicant was not given an opportunity to respond – Commission took into account that the respondent did not enforce a vehicle log book, did not attempt to source CCTV footage from t he relevant petrol station for many weeks after the alleged misuse of the petrol card – found the respondent had not sufficiently made out its accusation of fraudulent behaviour on the two occasions – harsh, unjust and unreasonable – applicant awarded four weeks’ pay plus superannuation. Smith v Buick Holdings P/L t/a DVG Automotive Group – Midland City.
November 2, 2015
Some matters just drag. Sydney Trains is facing a second day within the portals of the Fair Work Commission facing down the accusatory finger of an ex-employee (Yehia). Other attendees today include: Allergen Australia Pty Ltd (Girardi), Indigenous Land Corporation (McCaffrey), Alcamaco Pty Ltd (Parmented), Central Cleaning Supplies (Vurovecz), Serco Citizen Services Pty Ltd (Boyd), Get Qualified Australia Pty Ltd (Lang), Hampton Transport Services Pty Ltd (McMillan), Rock Logistics Pty Ltd (Makbool), Viva Dental Pty Ltd (Bradley), Wingham Beef Exports Pty Limited (Glindemann), Palm Island Community Company Ltd (Wallis), Westside Bus Company Pty Ltd (Armstrong), International Health and Medical Services Pty Ltd (Hucker), P.R. Hepple & Sons Pty Ltd (Snowden-Bassett), Hilti Australia Pty Ltd (Pinar), Mink Property (Brown), Princess Properties Pty Ltd (Clarke), Australian Bill Comparisons Pty Ltd (Hartas), Hampton Transport Services Pty Ltd (McMillan), Bliss Organics Hair Studio (Rubeck), Palm Island Community Company Ltd (Wallis), WorkPac Pty Ltd (Harding), Statewide 1 Pty Ltd (Herewini).
October 30, 2015
TERMINATION OF EMPLOYMENT – extension of time – representative error – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – application lodged on 30 September 2015 and not within 21 days of dismissal – no objection from respondent – exceptional circumstances test as considered in Nulty – ordinary meaning requiring consideration of all circumstances – combination of factors when viewed together may reasonably be seen as producing situation which is out of ordinary course, unusual, special or uncommon – solicitor advised applicant to seek internal review after dismissal and to engage union assistance – solicitor advised union representative of incorrect termination date – applicant dismissed on 8 September rather than 14 September – Robinson applied – conduct of applicant central consideration in deciding whetehr representative error provides acceptable explanation for delay in filing – Commission found applicant was notified of dismissal on 8 September – applicant sought internal review and respondent was aware of dispute – respondent did not dispute evidence provided in support of case – Commission found factors together weigh in favour of exceptional circumstances – reasonable explanation for delay – extension of time granted. Resetar v BHP Billiton Iron Ore P/L.
