TERMINATION OF EMPLOYMENT – remedy – compensation – s.394 Fair Work Act 2009 – Commission found applicant was unfairly dismissed – decision in transcript – unable to determine appropriate remedy due to insufficient material – advised respondent to provide views on reinstatement – statisfied reinstatement inappropriate – order for payment of compensation considered appropriate – adopted approach taken in Haigh – applicant provided evidence to find alternative employment – Commission found applicant made reasonable efforts to mitigate loss – ordered $9702 compensation. Dang v Multisteps P/L.
October 30, 2015
TERMINATION OF EMPLOYMENT – extension of time – representative error – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged outside 21 day time limit – applicant relied on union representative to lodge claim on his behalf – applicant unable to make sufficient contact with representative prior to expiry of 21 day time limit – question whether exceptional circumstances existed to warrant an extension of time [Nulty] – Commission held there was a reasonable explanation for delay – applicant was entitled to rely on representative to lodge application [Robinson] – applicant took reasonable steps to contact representative – merits of applicant’s case not strong but not unarguable – extension of time granted. Barfield v Temples (WA) P/L.
October 30, 2015
Colorpak Limited is providing today’s entertainment with its defence to a s.739 (application to deal with a dispute) lodged by an army of its staff (Bryant/Easdon and others). Other companies on parade include: AMP Ltd (Lees); Sydney Trains (Yehia); Asciano (White); Combined Communications Pty Limited (Wyborn); Sherpa Kids SA/NT (Trigg); Tilt Trays Australia Pty Ltd (Takats); The Association of Professional Engineers, Scientists and Managers, Australia (Schlumberger); Victorian Building Authority (Mulcahey); Principals Australia Institute (Pearman); Lardner Mechanical Repairs Pty Ltd (Morton); TAL Services Limited (Craven); RGC Brands Pty Ltd (Walia); The Australian Olive Oil Supplies (Grazia); The Attoh Family Trust (Bridger-Darling); Melissa Cakes (Buzi); Spotless Services Australia Ltd (Renike/Muraleedharan); and Polevine Pty Ltd (Baron).
October 29, 2015
TERMINATION OF EMPLOYMENT – application to dismiss by employer – ss.394, 587 Fair Work Act 2009 – application by respondent for dismissal of application – applicant previous employed as a bus driver – Commission notified application settled after directions for filing submissions were issued – vacated hearing dates and set aside directions in anticipation of filing of notice of discontinuance – over 12 months later, Commission wrote to applicant seeking the unfiled notice of discontinuance – applicant did not file and alleged he was pressured by representative into accepting agreement – respondent opposed application being relisted on the basis that it would have no reasonable prospects of success, owing to prior settlement of the claim – Commission sought submissions on whether a settlement was reached, and on the issue of the applicant’s alleged failure to prosecute his case in a timely manner – applicant had contacted the Commission several times over the 12 month period to advise that no settlement had been reached – Commission’s file notes showed applicant had contacted Commission and had been told to put his request for further directions and a listing in writing but had failed to do so – Commission satisfied that settlement, of the type contemplated in Masters v Cameron, was reached between parties and that, pursuant to the decision in McKinnon v Eventide, this is binding upon the parties – Commission further satisfied that applicant failed to prosecute application in a timely manner and that there would be significant prejudice to respondent if it were allowed to progress – application to dismiss unfair dismissal application granted. Ayaz v Transdev NSW South P/L.
October 29, 2015
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed the appellant’s application for unfair dismissal – Commission accepted evidence of witness and help valid reason for dismissal – appellant sought permission to appeal Commission’s decision – submitted significant error of fact – no direct evidence that identified appellant was driver of tram – alleged Commission failed to apply test in Briginshaw – Full Bench held the uncertainty of exact times given by witness did not result in evidence being given in error – held Commission did apply test in Bringshaw – Commission considered seriousness of termination for appellant – Full Bench held no significant error in decision – no grounds to attract public interest – permission to appeal refused. Appeal by Soares against decision of Lewin C of 3 July 2015 [[2015] FWC 4472] Re: KDR Victoria P/L t/a Yarra Trams.
October 29, 2015
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed the appellant’s application for an extension of time for the lodgement of his application for unfair dismissal – appellant sought permission to appeal to Commission’s decision – whether in public interest – appellant’s submissions did not address the requirements of the FW Act with respect to appeals – submissions dealt with a number of matters relating to events that occurred at work – Full Bench satisfied appellant had demonstrated any error of fact or injustice – not consider in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Carruthers against oral decision of Lee C of 30 June 2015 Re: Johnson.
October 29, 2015
ANTI-BULLYING – likely to continue – ss.604, 789FC Fair Work Act 2009 – permission to appeal – Full Bench – appellant lodged two appeals against decisions of Commission to dismiss applications for orders to stop bullying – applications at first instance dismissed on the basis that they had no reasonable prospects of success – appellant sought permission to appeal the Commission’s decisions – appeals dealt with together and without holding a hearing – grounds of appeal that the applications should not have been dismissed as the appellant wanted the Commission to make a summary instead of an order and this was not considered – appellant further submitted the Commissioner erred in deciding he could not exercise his discretion under s.789FF of FW Act to make an order to stop bullying, particularly in circumstances where his employment was terminated subsequent to him making the applications – Full Bench concluded no error in finding that the pre-requisite of risk that employee will continue to be bullied ‘at work’ was not met as appellant’s employment had been terminated prior to him making his applications – found that the Commission at first instance correctly held that there were no reasonable prospects that the applications could succeed – not persuaded the appellant was denied procedural fairness or that the decisions of the Commission in Shaw and Obatoki were plainly wrong – not persuaded it was in the public interest to grant appeal – Full Bench not satisfied they should otherwise grant permission to appeal – permission to appeal refused. Appeal by Atkinson against decisions and orders of William C of 23 July 2015 [[2015] FWC 4980] and [[2015] FWC 5038] Re: Atkinson v Killarney Properties P/L t/a Perm-A-Pleat Schoolwear and Ors.
October 29, 2015
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed the appellant’s application for unfair dismissal – appellant submitted there was not sufficient evidence to conclude that he had breached his contract of employment, or took no action to comply with directions from his employer – further submitted that Commissioner did not consider the evidence of witnesses – Full Bench found the Commissioner did take account of evidence of five witnesses – held it was open to the Commissioner to conclude that there was a conflict or potential conflict of interests in decision at first instance – no significant error made by Commissioner – no other public interest grounds for granting permission to appeal – permission to appeal refused. Appeal by Post against decision and order of Williams C of 9 July 2015 [[2015] FWC 3911] Re: NTI Limited.
