TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – whether applicant was forced to resign due to conduct or a course of conduct by employer – Mohazab relevant to test of constructive dismissal – Pawel and ABB Engineering relevant to s.386(1)(b) FW Act – termination at the initiative of employer requires an objective analysis of employers conduct [O’Meara] – applicant was employed as a full-time sales coordinator – applicant was not asked to resign – Commission considered that the applicant’s circumstances, in t hat her mother became seriously ill – respondent willing to provide applicant with flexible working arrangements – Commission found applicant did not attempt to negotiate arrangement with employer – Commission concluded applicant voluntarily resigned her employment – application dismissed. Baker v Total Beauty Network t/a Total Beauty Network P/L.
October 29, 2015
TERMINATION OF EMPLOYMENT – performance – remedy ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant seeking to appeal first instance decision that termination of employment was harsh, unjust or unreasonable, as well as numerous findings of fact – Full Bench found Commission assessed evidence given and was open to it to come to conclusion – number of challenges made to Commission’s order of compensation – claimed Commission failed to deduct payment made in lieu of notice – Commission stated notice would be taken into account, length of service neutral factor, deductions for misconduct more than 40 per cent and opportunity to give fresh evidence not provided on employee’s attempts to mitigate loss – Full Bench found clear inconsistency between statement of Commission and final order for compensation regarding payment in lieu of notice – Commission held to be in error – findings regarding deductions for misconduct made on basis of limited submissions – discretionary and therefore Commission not in error – appellant did not put submissions regarding mitigation efforts by employee during first instance hearing – Commission not in error – permission to appeal granted regarding payment in lieu issue only – directions to be issued. Appeal by Bank of Sydney Ltd t/a Bank of Sydney against decision of Cribb C of 8 July 2015 [[2015] FWC 4571] and decision and order of 21 July 2015 [[2015] FWC 4963] and ]PR569654] Re: Repici
October 29, 2015
Termination of employment – demotion – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected to application on the basis that the applicant had resigned – applicant had taken an extended period of leave following a severe injury – upon returning to work the respondent emailed the applicant and stated that the applicant’s salary would be reduced from $75,000 to $60,000 – applicant advised respondent that he did not accept the reduction – following a further meeting where the respondent discussed an incremental increase the applicant resigned his employment – Commission found that the demotion of the applicant involved a 20% reduction in his remuneration – satisfied this was a significant reduction – satisfied the unilateral reduction of salary was a dismissal of the applicant – no valid reason – Commission found the dismissal unfair – ordered remedy of $37,500 compensation – taxed as an eligible termination payment. Fields v Moscou Holdings P/L atf The Penguin Trust t/a Penguin International
October 29, 2015
A former police officer, Kim Papalia, has been appointed as Western Australia’s first Road Safety Commissioner.
October 29, 2015
Intelligent Property Services Pty Ltd is defending three unfair dismissal claims today (Mitchell, Palmiotto and Kotevich). Other attendees today include: Department of Justice Victoria Corrections (Mulholland), Toll Transport Pty Ltd (Surjan), Australian Islamic College of Sydney (Charaneka), AV Enterprises (Perkins), BevChain Australia Pty Ltd (Bray), TNT Facility Management Pty Ltd (Edge), Chi Kin Ken Ma (Te Rangipuawhe), Bryan & Petersen Ballarat Pty (Ladd), Sureway Employment & Training (Perry), Your Discount Chemist (Khattak), Cook Beaumont Group (Jamieson), Electricity Networks Corporation (Vernon), Energy Resources of Australia (Green), Toll Holdings Ltd (Green), BHP Coal Pty Ltd (Munns), MSS Security Pty Ltd (O’Brian) and Caulfield Grammar School (Pownall).
October 28, 2015
Councils are increasingly being cited by shovel leaners as they seek to downsize. Today’s appearances feature Southern Metropolitan Regional Council. Their tribunal room companions will include: T & J Constructions Pty Ltd (Radogna), Orrcon Pty Ltd (Lockwood), BMD Constructions Pty Ltd (Brandy), Crane Distribution Limited (Rose), Direct Freight (Qld) Pty Ltd (Mulhall), Peninsula Health (Majumdar), Royal Flying Doctors Service (Fisher), Downer Unilities Australia Pty Ltd (Grewal), Australian Taxation Office (Shaw), Royal Equipment Pty Ltd (Fitzpatrick), Australian Postal Corporation (McCann), Australian Aluminium Finishing (Gunaratnam), Open Universities Australia Pty Ltd (Bianchi), NORD Drivesystems (Aust) Pty Ltd (Sculpher), Priceline Pty Ltd (Kapralos), Westrac Cat Pty Ltd (Millis), Electricity Networks Corporation (Vernon), Greenwoods & Herbert Smith Freehils Pty Limited (Watson), Griffith University (Williams-Noonan), Hughes Drilling 1 Pty Ltd (Winkcup), GM Holden Ltd (Newbond), Mt Pleasant Stud Farm Pty Limited (McCormick), Metro Quarry Group Pty Ltd (Ingham) and Smeaton Grange Plasterboard Distribution Pty Ltd (Borg).
October 28, 2015
Termination of employment – misconduct – reinstatement – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as security guard – was dismissed because he left the site at which he was working without authority – Darwin Alcohol Assessment Treatment Services (DAATS) – applicant agreed to work additional shift from 8.00am to 6.00pm – around 5.30pm the applicant left DAATS and shortly thereafter presented to work for another security company at another location – respondent sent applicant letter of allegations in relation to the time he left his shift at DAATS, the times he put on his time sheet for work that day and his working for another security company without permission – applicant called to meeting to respond to allegations – ‘show cause’ letter – in response applicant stated he was sorry and sad that he had let respondent down, promised it would not happen again – he had a wife and child who relied on him, had no other income and would have trouble surviving in Darwin if he did not have a job – expressed regret for the incident – Commission found no basis on which applicant could have assumed it was acceptable to leave the workplace without permission – satisfied that MSS Security Officer Standing Instructions formed part of the applicant’s contract of employment – Standing Instructions prohibit employment with another security company without permission of respondent – found applicant engaged in misconduct – aggregation of issues provided valid reason for dismissal – Commission weighed the existence of a valid reason for dismissal against the impact of that dismissal – satisfied dismissal was harsh – applicant unfairly dismissed – applicant sought reinstatement – loss of trust and confidence [Perkins] – Commission satisfied employment relationship could be re-established – reinstatement with continuity of employment and lost pay equivalent to eight weeks’ pay less any amount earned ordered. Sunder v MSS Security P/L
October 28, 2015
Termination of employment – extension of time – s.394 Fair Work Act 2009 – application lodged 38 days out of time – applicant sponsored to work for respondent on a temporary visa, respondent also sponsored the applicant’s application for a permanent residency – applicant terminated due to redundancy and advised she was not entitled to redundancy pay because she was not a permanent resident – applicant sought new employment – submitted she couldn’t make an application for unfair dismissal whilst she was seeking another job because she might require a reference from the respondent – after the statutory time period expired the applicant became aware her applicant for permanent residency had not been successful due to her dismissal, and that a finding of unfair dismissal might be a factor in any reconsideration of her application – applicant immediately sought legal advice and made her application for unfair dismissal – respondent submitted that the application for an extension of time should fail because ignorance of the law is not an acceptable explanation – Commission accepted the uncontested evidence of the applicant – took into account the misleading statements made by the respondent to the applicant that she was not entitled to the same benefits as a permanent resident – Commission satisfied there were exceptional circumstances – extension of time granted. Kanji v Green Home Green Planet P/L
