The unfair dismissal lawlist for the Fair Work Commission today is: Port of Newcastle (McShane), Premium Tyre Service Pty Ltd (Check), United Flashing & Roofing Pty Ltd (Jin), David Newton Real Estate Pty Ltd (Watson), Transport for NSW (Fussell, Hudson), Commonwealth Bank of Australia (Zepidis), The Trustee for the Storehouse Unit Trust (Pelle), Pilbara Iron Company (Service) Pty Limited (Tito), Clinical Laboratories Pty Ltd (Street), Superstop Auto Parts (Ting), Spectrum Migrant and Resource Centre (O’Beirne), Aussie Guard Rail Pty Ltd (Abbott), Golden Lor (Arrnanasco), co Containers (LEith), Latrobe Regional Hospital (Scott), Global Traffic Equipment Pty Ltd ATF (Ede), Scaffoldinghire.com Pty Ltd (Bell), Goulburn-Murray Rural Water Corporation (Davis), Suncorp Group Limited (Lloyd), David Newton Real Estate Pty Ltd (Watson), Shanahan’s Livestock Transport Pty Ltd (Pholi), Olsen Property Inevstments PTy Ltd (Toovey), Anglicare Central Qld (Oberg), Risk Insure Pty Ltd (Kelly).
December 10, 2018
RIGHT OF ENTRY – dispute over right of entry – ss.505, 508 Fair Work Act 2009 – dispute between applicant and respondents about whether CFMMEU had coverage of relevant workers – applicant contended entry permit holders sought to speak to and possibly recruit union members on site – indicated CFMMEU not entitled to represent the industrial interests of certain persons employed at the premises – contended permit holders were not expressly authorised to take photographs or to make video recordings under State OHS law – contended Commission can make orders under s.508 of the FW Act – Commission found no evidence permit holders sought or purported to exercise any right of entry – amalgamation of three unions had taken effect – coverage issue no longer in dispute – digital material tendered – Commission permitted digital material because it was highly probative – noted type of conduct was neither conducive to rational decision making nor to the resolution of disputes – conduct in digital material symptomatic of underlying and central dispute as to coverage – found no evidence that conduct in video material likely to continue – found no standing to make an application under s.508 – s.505 not enlivened – held order unnecessary – application dismissed. Geofabrics Australasia P/L v Construction, Forestry, Maritime, Mining and Energy Union and Ors
December 10, 2018
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – ss.394, 399A Fair Work Act 2009 – application to dismiss unfair dismissal application – respondent submitted that agreement and final settlement to resolve application had already been reached between the parties after a Member Assisted Conciliation had been conducted – Masters v Cameron considered and applied to factual findings – Commission found objective intention was to make a binding agreement to settle unfair dismissal matter – ancillary terms were to be confirmed later in written document – found binding settlement agreement existed – employer undertook to pay agreed amount contingent upon Commission’s finding – settlement amount of $8,000 now due and payable to applicant – application dismissed. Badcock v N & HM Cooper Motor Search (SA) and Anor
December 10, 2018
CASE PROCEDURES – stay order – ss.392, 604 Fair Work Act 2009 – appeal – at first instance Commission found employee to have been unfairly dismissed – awarded $72,000 in compensation to be paid within 21 days – appellant’s primary ground of appeal that the amount of compensation was incorrectly calculated – decision at first instance calculated amount of compensation on basis of earnings at $3,080 per week – the $3,080 was related to the employee’s fortnightly earnings – employee accepted that decision at first instance incorrectly calculated his remuneration – Commission satisfied that permission to appeal would likely be granted – found balance of convenience weighed in favour of the appellant – satisfied that application for a stay order should be granted – stay order to take effect from 22 November 2018 and remain in force until further order of the Commission. Appeal by Australian Crane and Machinery P/L t/a Australian Crane and Machinery against decision of Cribb C of 23 October 2018 [[2018] FWC 6510] Re: Shakotko
December 10, 2018
TERMINATION OF EMPLOYMENT – remedy – compensation – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – Commission found applicant was unfairly dismissed [[2018] FWC 6280] – ordered respondent pay applicant compensation within 21 day time-frame – respondent requested variation of Order to pay compensation in instalments – Commission sought submissions and evidence – needed to be satisfied that respondent’s financial circumstances did not allow for a lump sum payment and could only manage 12 month instalment plan – respondent provided limited information about finances with a request for confidentiality – applicant opposed payment plan – Commission not satisfied variation of the Order supported except for the date of payment – respondent ordered to pay applicant lump sum of $3,025.20 taxed according to law plus 9.5% superannuation within 21 days of this decision. Miller v Urbanite Bikes P/L t/a Urban Pedaler
December 10, 2018
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal of decision dismissing unfair dismissal application – appellant dismissed from employment as security escort for immigration detainees being removed from Australia – allowed supervising employee to access airport lounge in breach of Security Risk Assessment (SRA) – letter of dismissal identified failure to follow detainee’s SRA – Commission rejected appellant’s lack of knowledge and training as reason for non-compliance – grounds of appeal included that appellant had access to Policy and Procedure Manual for International Removals and no exploration of the issues of differential treatment – permission to appeal must not be granted unless in public interest – appellant’s grounds of appeal did not challenge majority of alleged conduct against him – Full Bench not satisfied any denial of procedural fairness of nature to justify grant of permission to appeal – no reasonably arguable case of appealable error – permission to appeal refused. Application by Morgan against decision of Wilson C of 27 September 2018 [[2018] FWC 5835] Re: Serco Australia P/L t/a Serco Immigration Services
December 10, 2018
INDUSTRIAL ACTION – extension of protected industrial action period – s.459 Fair Work Act 2009 – application by NTEU to extend the 30 day period in respect of industrial action authorised by protected action ballot – application made six days after the expiry of the initial period – the respondent opposed the extension due to lack of support from employees and delay in making the extension application – Commission found that there was no evidence to suggest a lack of endorsement by employees – found no evidence to display failure to engage in further bargaining – Commission found delay was not unduly long – satisfied that it is appropriate to make the order sought – period extended by further 30 days.National Tertiary Education Industry Union v Victoria University
December 10, 2018
TERMINATION OF EMPLOYMENT – misconduct – employer policies – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – Applicant dismissed for alleged breaches of the Respondent’s code of conduct and technology code – Respondent determined that eight allegations of email misuse were substantiated following investigation – Commission found the Respondent’s investigation process was deeply flawed – only one allegation of email misuse substantiated with the other seven allegations unsubstantiated or greatly diminished – found valid reason for dismissal – Applicant not afforded the requisite level of procedural fairness – found decision to dismiss harsh and procedurally unfair – found reinstatement appropriate in the circumstances – ordered reinstatement, continuity of employment and 10 weeks’ pay. Deng v Westpac Banking Corporation
