TERMINATION OF EMPLOYMENT – misconduct – employer policies – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant dismissed after failing to comply with site attendance policy – refused to use biometric fingerprint scanners to record site attendance – no consent given by applicant to collection of sensitive information – site attendance policy reasonably necessary for respondent’s payroll and safety functions – Commission found applicant refused to follow lawful workplace policy – given multiple warnings and opportunities to follow site attendance policy – found dismissal not harsh, unjust or unreasonable – application dismissed. Lee v Superior Wood P/L t/a Superior Wood
November 12, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – respondent ceased payment of Remote District Allowance (RDA) to employees covered by Serco Immigration Services Agreement 2015 based in Darwin on 12 November 2017 – applicant contended decision to cease payment of RDA not a reasonable exercise of managerial discretion – sought orders reinstating RDA and back-payment – RDA previously paid under Agreement to employees of Wickham Point – Wickham Point closed 31 October 2016 – a number of employees transferred to Darwin – transferring employees told terms and conditions of employment would not change – Commission found obligation to pay RDA under agreement ceased in November 2016 after closure of Wickham Point – Serco continued to pay RDA until November 2017 – Commission rejected contractual claim as RDA never a contractual entitlement – Commission found no estoppel arose as evidence did not support finding that any representation was made that staff would receive RDA such that any employee relied upon it when agreeing to transfer – Commission not satisfied conduct of Serco gave rise to legitimate expectation RDA payments would continue – cases on managerial discretion indicate Commission should be reluctant to interfere with right of employer to manage its business unless conduct unjust or unreasonable – test is not whether employer could have acted more reasonably [Essential Energy] – Commission not satisfied it was unreasonable for Serco to stop paying the RDA – application dismissed. United Voice v Serco Australia P/L
November 12, 2018
TERMINATION OF EMPLOYMENT – demotion – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – respondent raised jurisdiction objection that applicant was not dismissed – applicant argued that respondent materially altered contract of employment by announcing a decision to demote him – applicant promoted to leading hand position – respondent removed applicant from leading hand position due to alleged poor performance – applicant argued employment terminated on the respondent’s initiative due to demotion and absence of the respondent to offer shifts – respondent argued made no decision to dismiss applicant – did not intend to end the employment relationship – Commission found removing contractual right to be employed as a leading hand and absence of any action by the respondent to offer shifts was removal of fundamental right in contract of employment – applicant’s contract of employment was therefore repudiated by respondent – Commission found dismissal was on the respondent’s initiative when applicant was advised that he would be removed from position as leading hand – concerns held by respondent with performance issues – Commission found performance issues warranted counselling or warning – no valid reason for dismissal – dismissal was harsh, unjust or unreasonable – reinstatement not appropriate in the circumstances – ordered compensation of $2,230.76 taxed according to law and an amount of $211.92 into superannuation fund. Whitfield v Master Tree Ninja t/a Tree Ninja/Adelaide Palm Tree Removal
November 5, 2018
A case load ‘lite’ day awaits the Fair Work Commission. The list is: Hunter Region Cash Converters Pty Ltd (Lynch), Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn (Crowley), The Vintage Cafe (Pradhan), Bidfood Australia Limited (Smith), Murrumbidgee Irrigation Pty Ltd (Heness), Waterside Constructions (Aust) Pty Ltd (Rizk), Macquarie University (Lewer), The Good Guys Discount Warehouse (Australia) Pty Ltd (Wynn), Busways Blacktown Pty Ltd (Tadros), Beaver Tree Services Aust Pty Ltd (Longden), Agnew Gold Mining Company Pty Ltd (Wilkinson), Inkjet’d Car Dealing (Clark), Sunshine Coast Independent Living Service (James), Novita Children’s Services (Martin), Specialist Surgical Supplies (Pethick).
November 5, 2018
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – misconduct – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant summarily dismissed by termination letter – respondent raised Small Business Fair Dismissal Code (Code) objection – referred to written and verbal complaints received against applicant – Commission found termination letter expressly dismissed applicant without notice, with immediate effect – Code considered – respondent initially proposed business solution of modifying hours – applicant neither agreed to initial proposal nor issue with his behaviour – evidence demonstrated respondent held genuine belief applicant’s conduct justified immediate dismissal – no evidence applicant raised matters with respondent that objectively would have caused respondent to doubt legitimacy of a final complaint – Commission found respondent’s belief that applicant’s behaviour caused a serious risk to the safety of a student and imminent risk to the respondent’s reputation was reasonably held – satisfied dismissal was consistent with the Code – applicant not unfairly dismissed – application dismissed. Anderson v Melbin Holding P/L
November 5, 2018
GENERAL PROTECTIONS – extension of time – date dismissal took effect – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged on 24 July 2018 – applicant claimed she was on a period of approved leave when employer sent a termination letter to her house – contended she was not aware of dismissal until 16 July 2018 – dismissal may not take effect prior to being communicated [Australian Tax Office v Wilson] – mere delivery of letter not sufficient – relevant date of dismissal when employee has reasonable opportunity to read letter [Ayub v NSW Trains] – earliest applicant could have known about dismissal was upon her return on 16 July 2018 – no communication of dismissal prior to this date – dismissal took effect on 16 July 2018 – Commission found application made within time – respondent’s jurisdictional objection dismissed. Hawkins v Vet Supersavers t/a Vet Supersavers
November 5, 2018
INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – AWU sent notice of industrial action to Alcoa and text message regarding Change the Rules campaign (Campaign) to AWU stewards on same day – AWU revoked bargaining representatives and appointed new ones as bargaining strategy – Alcoa claimed industrial action was not protected action and its purpose was to support the Campaign – Commission not satisfied AWU disclosed outstanding bargaining claims to Alcoa – Commission found AWU bargaining strategy divisive and AWU was not genuinely trying to reach agreement – found purpose of industrial action was to support Campaign – Order made that the employees of Alcoa at all WA Operations who are members of the AWU, and for whom the AWU is a bargaining representative must immediately stop, and not recommence, engage in or threaten to engage in, indefinite stoppages of work. Alcoa of Australia Limited t/a Alcoa World Alumina Australia v Australian Workers’ Union, The
November 5, 2018
ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – application for a majority support determination – employees want to bargain with employer – application opposed by employer – s.237 of FW Act gives a broad discretion to the Commission to determine whether majority support exists in the workforce – a petition signed by employees can be an appropriate means of evaluating and establishing the intention of employees – may be circumstances where a petition cannot be relied upon – signatures on petition obtained in two different ways – copy of the petition left in delegate’s unlocked car in the carpark – was available to be signed by any employee – other signatures obtained by delegates approaching employees and asking them – no evidence of coercion or duress – comparison carried out by the Commission indicated a clear majority of relevant employees wanted to bargain with employer – Commission satisfied use of petition was valid – satisfied it was reasonable to make the majority support determination – determination issued. Transport Workers’ Union of Australia v MWAV P/L t/a Man With A Van
