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
October 28, 2015
Termination of employment – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed for breaches of Code of Conduct, Discrimination, Harassment and Bullying Policy, Electronic Usage Policy and employment obligations – respondent conducted investigation into alleged misconduct – respondent scheduled meeting on 20 October 2014 – on 17 October 2014 applicant provided a response to the respondents ‘show cause’ correspondence and presented medical certificate stating he was unfit for work between 13 October 2014 and 13 November 2014 – applicant did not attend meeting on 20 October 2014 – respondent made repeated attempts to contact applicant and on 22 October 2014, dismissed applicant for serious misconduct – applicant submitted decision to terminate his employment was unjust – Commission found applicant could have avoided the consequences of his dismissal if he had a different approach to lawful instructions, complied with policies and resisted the urge to tell colleague what he thought of him – respondent’s investigation was thorough and timely – allegations could be clearly understood and applicant given an opportunity to respond and advised of the findings – Commission satisfied dismissal was not unfair – application dismissed. O’Connell v Wesfarmers Kleenheat Gas P/L t/a Kleenheat Gas
October 28, 2015
Termination of employment – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application lodged on 10 August 2015 – respondent lodged jurisdictional objection that application out of time – respondent submitted dismissal took effect on 2 July 2015 and application 18 days out of time – applicant submitted she became aware of dismissal on 20 July 2015 – Commission considered Bambach, Makenja and Wilson – found applicant reasonably did not consider employment had been terminated on 2 July 2015 and she believed she was on annual leave – respondent failed to convey dismissal to applicant in clear and concise way such that there was no confusion – had applicant not had grounds to believe she was on annual leave the Commission’s decision would have been different – satisfied applicant not aware of dismissal until 20 July 2015 – application made within 21 days after became aware of dismissal – exceptional circumstances existed – extension of time granted. Chitty v HCH (WA) P/L
October 28, 2015
Enterprise agreements – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – particular terms of SVITZER Australia P/L and AIMPE Towage Enterprise Agreement 2013 provide for determination of reasonableness of employer’s proposals to address changed circumstances – dispute regarding compliance with consultation requirements of agreement – dispute as to rostering arrangements of tug crews – Svitzer has not established that the proposals to facilitate expansion of operations in three ports is anything other than reasonable – application granted – terms of any Order to be determined if required. Svitzer Australia P/L v Australian Institute of Marine and Power Engineers
October 27, 2015
The Naval Military and Air Force Club of South Australia Inc has drummed a steward (Sharma) and the Fair Work Commission must decide today if the beat was in tune with accorded procedures. Others on parade today include: Swan Hill Accounting Services Pty Ltd (Monck), Merck Sharp and Dohme (Australia) Pty Limited (French), Pioneer Credit Limited (Simonsen), Eliana Construction and Developing Group Pty Ltd (Moghimi), Glenelg Shire Council (Cannon), Future Employment Opportunities Inc (Power), Lionel Samson Sandleirs Group (Clarke), Target Australia Pty Ltd (Kostov), Goodstart Early Learning (Morris), Sims Group Australia Holdings Ltd (Boyns), Sunco Motors P/L (Morgan), Parmalat Food Products Pty Ltd (Tran), Thomas P Gavaghan Pty Ltd (Shea), Telstra Corporation Limited (Valenzuela), Direct Enterprise Pty Ltd (Wood), Rugs QLD Pty Ltd (Novak), Lenovo Professional Pty Ltd (Fartash), BHP Coal Pty Ltd (Schmidt), Lloyd & Co Pty Ltd (Suttie), Showcall Crewing Pty Ltd (Salamon) and ACES Incorporated (Jackson).
October 26, 2015
Patrick Stevedores Holdings Pty Ltd is the most over-represented entity in Fair Work this morning with five applications (from Freestone/Lucks/Sharp/Sotiri/Wright). Other attendees include: Delaware North Companies Australia Pty Ltd (Seidler), Principals Australia Institute (Pearman), Paul Kirk, Roberts & Co (Connor), Chi Kin Krn Ma (Te Rangipuawhe), Grizzly Energy Services (Jordan), Trelee Pty Ltd (Furnace), St Vincent De Paul Society (Lane), Australian Government (Bebawi), BSI Contracting Pty Ltd (Tsui), Patrick Stevedores Holdings Pty Ltd (Ambrose), Ivvy Pty Ltd (Dunn), Next Residential Pty Ltd (Gardiner), Tremor Group Pty Ltd (Munn), Origin Energy Limited (McDow), The Department of Health and Human Services (Moore), Australian Nuclear Science and Technology Organisation (Purnell), Gourley Transport Pty Ltd (Abbott).
October 23, 2015
New Zealand Aluminium Smelters argued at the Court of Appeal that an Employment Court judgment wrongly interpreted the Holidays Act 1981. A longstanding Tiwai workers’ dispute about lieu days continues after smelter bosses took their case to the Court of Appeal. New Zealand Aluminium Smelters argued on Thursday that an Employment Court judgment was wrong, estimating it could cost the company millions of dollars. In May 2013, 64 Engineering, Printing and Manufacturing Union [rebranded E Tu] members won an Employment Relations Authority case they took against NZAS concerning the accrual of lieu days for 12-hour shift workers at the Tiwai Point smelter in Southland. E Tu lawyer Greg Lloyd said NZAS appealed the Employment Court’s interpretation of section 7A of the Holidays Act 1981 – an Act he said no longer existed. The appeal judges could not overrule an Employment Court decision and could only rule on points of law, he said. He was optimistic about winning the appeal. “Even if the smelter is correct and the judge got the interpretation wrong, I believe it would have little effect in the Employment Court decision. “The worst case scenario if they decide yes, is that the case will revert back to same Employment Court judge to reconsider.” NZAS chief executive Gretta Stephens said: “We await the judgement of the Court of Appeal. As the matter remains before the court, we will not be making any further comment at this time.” NZAS appealed an initial decision in favour of Tiwai workers at a two-day Employment Court hearing held in December 2013. The appeal was rejected in May 2014, and Tiwai Point smelter bosses then lodged an application to the Court of Appeal. The workers embroiled in the dispute were covered by three versions of individual employment agreements at the plant. The EPMU claimed that, since hundreds of employees shifted from eight-hour to 12-hour shifts at the plant about 20 years ago, the company had been incorrectly calculating their lieu day entitlements.
October 23, 2015
Coles Group Supply Chain Pty Ltd is facing an avalanche of s.739 claims (I want to work when it suits me) from an army of flexers (Collins/Medic/Alewyn/Roberts). Other cases include: Piotto Brothers Cement Flooring (Boccaccio), Compumenn National Pty Ltd (Scicluna), Australian Taxation Office (Boyle), Bundaberg Brewed Drinks Pty Ltd (Climas), James Cook University (Fisher), EasyLift (Camilleri), Scripture Union Queensland (Parslow), GrainCorp Operations Limited (Loft), Department of Education & Training, North-Eastern Victoria Region (Somasundaram), Linfox Australia Pty Ltd (Toto), ISS Security Pty Limited (Cawley), Department of Human Services (Maude), Reds Global Pty Ltd (Rota), Shore Hire Pty Limited (Bartlekowski), Daoud Building Group Pty Ltd (Fan), Urban WA Real Estate Pty Ltd (Shannon).
