A lengthening queue of unfair dismissal/labour dispute remedy seekers will plead their applications in the Fair Work Commission today. the list is: National Australia Bank Limited (Zhou), MCR Computer Resources Pty Ltd (Koulos), Yeates Betts Solicitors (Cook), SAI Global Limited (Marsh), FOODORA Australia Pty Ltd (Klooger), San ANotnio Da Padova Nursing Home (Robach), ISS Security Pty Ltd (Ebba), Trinity Lutheran College (Wilkinson), GMT Business Services Pty Ltd (Allen), Gippsland & East Gippsland Aboriginal Cooperative Ltd (Ells, Finn, Harvey, Oestamann, Patten), Prosegur Australia (Kukalev), Kilmore Golf Club (Lindsay), The Trustee for Annex Unit Trust (Duncan), Latrobe Regional Hospital (Kays), United The Grand Lodge of Antient Free and Accepted Masons of Victoria (McAnally), Worldmark Pty Ltd (Georges), Australian Unity Group Services Pty Limited (Honore), Australian Laboratory Services Pty Ltd (Ramanananthan), Buildgroup Constructions Pty Ltd (Aljnabi), Alclad Architectural (Collins), Allen’s Freight (Moore), Ink Hotel Pty Ltd (Frisby), TLC Aged Care Noble Manor (Matthew), Kidspace Pty Ltd atf The Trustee for Kidzspace Management Unit Trust & Newman and Another (O’Brien), Shutdown Staffing Services (Prouten), Findex Group Limited (Renison), RefLIVE Pty Ltd (Downey), Mooloolaba Surf LifeSaving Club (Taylor), Ipswich Grammar School (McGrath).
October 12, 2018
Twenty-four unfair dismissal/labour dispute applications will be heard in the Fair Work Commission today. The list is: FOODORA Australia Pty Ltd (Klooger), Thales Australia Limited (True), Caltex (Buckley), Acrturus Nominees Pty Ltd (Jakobs), Austin Engineering Ltd (Hedges), Corridors College Limited (Wallis), St John of God Health Care (Skaines), RAC Distribution Pty Ltd (Perera), Institute for Aboriginal Development (Aboriginal Corporation (Lerossignol), ORC International Pty Ltd (Bastoni), State of Victoria (Tucker), Department of Defence (Geddes), GMT Business Services Pty Ltd (ALlen), King’s Wood International Pty Ltd (Denny), Energy Queensland Limited (Ward), Totally Aussie Security (Qld) Pty Ltd and Associated Entities (Greenslade), Host My Home Pty Ltd (Savimaki), Crossways Lutheran School Ceduna Association Inc (Puccio), Spotless Services (Bull), Totally Aussie Security (Qld) Pty Ltd and Associated Entities (Greenslade), National Australia Bank (Zhou), Viterra Operations Pty Ltd (Pridham, Rose), Norgrove Training Pty Ltd (McCloskey).
October 12, 2018
An application for variation of the Base Fire Protection Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2015-2019 (s.210 – Application for approval of a variation of an enterprise agreement) will be decided by Deputy President Gostencnik in his Melbourne chambers today.
October 12, 2018
TERMINATION OF EMPLOYMENT – performance – procedural fairness – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as a Level C Senior Lecturer – dismissed on grounds of unsatisfactory performance relating to research output – applicant submitted that alleged failure to be ‘research-active’ was beyond the requirements of a Level C position – submitted that respondent failed to apply the relevant disciplinary process under the Flinders University Enterprise Agreement 2014 to 2017 and that the dismissal was harsh as no formal warnings in respect of performance had been issued since 2011 – Commission found that the research requirements of the applicant’s role were consistent with the Agreement – found that applicant was not capable or willing to meet the requirements of a Level C Academic despite recent improvement – satisfied there was a valid reason for dismissal – whether procedural fairness afforded – found that the 2011 warning was referred to the applicant several times before dismissal, however, it did not expressly include or exclude research performance – found the disciplinary process under the Agreement not generally applied – procedural deficiencies impacted on applicant’s capacity to respond and the degree to which he understood his employment was in jeopardy – applicant offered to accept demotion to a Level B position as contemplated as a disciplinary outcome under the Agreement – Commission satisfied that proposed demotion would have been a reasonable and proportionate response – respondent’s failure to consider demotion more fully as an alternative was unreasonable – satisfied that the dismissal was harsh – reinstatement to former position not appropriate – ordered compensation of $65,499 less applicable taxation. Lynd-Stevenson v Flinders University
October 12, 2018
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found that the two appellants had not been unfairly dismissed – the dismissal of the appellants for serious misconduct occurred in a particular industrial context – protest line near the entrance to the Longford site – included very large inflatable ‘Scabby the Rat’ – use of offensive and intimidating language towards employees of contractors – in each of the appeals there are challenges to a number of the Commission’s factual findings – Full Bench mindful of the fact that the evidence at first instance was voluminous and in some respects conflicting – Commission reached conclusions based on favouring one witness over another, or because of the credibility of a witness – Short v Ambulance Victoria considered – in the context of appeals, Full Benches of the Commission have consistently held that findings of fact made by a Member at first instance should stand unless it can be shown that the Member ‘has failed to use or has palpably misused his advantage’, or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’ – Mr Gelagotis’ appeal – grounds of appeal asserted that the Commission made errors of fact – Full Bench held it important to acknowledge the Commission’s observation that Mr Gelagotis was ‘not an impressive witness’ – in conduct cases the assessment of whether there was a valid reason for the dismissal is to be considered in isolation from the broader context in which the alleged misconduct occurred – Full Bench not persuaded that Mr Gelagotis established an arguable case of error in respect of any of the grounds of appeal – not persuaded the Commission made an error of principle or a significant error of fact – Full Bench not persuaded there were any other considerations which enliven the public interest – not satisfied it is in the public interest to grant permission to appeal – permission to appeal refused – Mr Hatwell’s appeal – grounds of appeal asserted that the Commission made errors of fact and that the Commission erred in the fact that he failed to take into account and/or failed to give equal significance to relevant s.387(h) matters in determining whether the dismissal was harsh, unjust or unreasonable; and erred by giving excessive weight to his reasons for concluding there was a valid reason for Mr Hatwell’s dismissal – Full Bench held that the ‘valid reason’ for Mr Hatwell’s dismissal was a single contravention of Esso’s harassment policy – the conduct occurred in the context of a protracted industrial dispute which had resulted in ‘significant tension’ in the workplace and constituted a ‘material change’ in the normal working environment – the relevant decision maker at Esso made it clear that she would not dismiss an employee for a single use of the word ‘scab’ – Full Bench considered that it was in the public interest to grant permission to appeal, and did so on the basis that the decision manifests an injustice – concluded that the decision was manifestly unjust and plainly fell outside the bounds of legal reasonableness as articulated in Li – appeal upheld – decision to dismiss Mr Hatwell’s unfair dismissal application quashed – in rehearing the matter the Full Bench adopted the Commission’s finding that there was a valid reason for dismissal however concluded that Mr Hatwell’s dismissal was harsh – follows that Mr Hatwell was unfairly dismissed – held Mr Hatwell’s conduct warranted a disciplinary response which fell short of dismissal – Full Bench remit the question of whether a remedy should be granted and, if so, the nature of that remedy, to Colman DP for determination. Appeals by Gelagotis and Hatwell against decision of Colman DP of 14 May 2018 [[2018] FWC 2398] Re: Esso Australia P/L t/a Esso
October 12, 2018
ENTERPRISE AGREEMENTS – approval – unlawful terms – ss.185, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission approved the Australian Federal Police Enterprise Agreement 2017-2020 – the appellant was a bargaining representative for the proposed agreement – central to the matter at first instance, and again agitated in the appeal, was the question whether clause 46 of the Agreement is an unlawful term within the meaning of s.194 of the FW Act because it is a discriminatory term as described in s.195 and/or an objectionable term within the meaning of s.12 – clause 46 makes provision for maternity leave, including paid maternity leave in certain circumstances – grounds of appeal included issues of procedural fairness, and whether the Commission erred in being satisfied that the Agreement does not include any unlawful terms – Full Bench did not consider that the absence of an oral hearing resulted in any denial of procedural fairness to the appellant – appellant made comprehensive written submissions and the bases for his objection to the approval of the Agreement were set out therein – the apprehended bias ground of appeal was founded on a comment said to have been made by the Commission during the telephone conference on 18 April 2018 – that maternity leave is by definition for women – appellant contended it was clear during that conference that the Commission was predisposed against the appellant’s discrimination argument – proceeding on the basis that the Commission made a statement or statements as asserted by the appellant, the Full Bench held that the Commission was formulating a proposition so that its correctness could be tested and expressing no more than a preliminary view or an inclination or disinclination towards an argument or conclusion – held that the apprehended bias ground of appeal advanced by the appellant must fail – appellant contended before the Commission, and again before the Full Bench, that clause 46(2) was an unlawful term – whether clause 46(2) is a discriminatory term, and whether it is an objectionable term – the appellant asserted on a number of occasions that the additional leave for which provision is made in clause 46(2) of the Agreement was not maternity leave and was as a matter of fact primary caregivers leave – Full Bench held the entitlement for which provision is made by clause 46(2) of the Agreement is plainly for additional maternity leave – noted the appellant did not lead evidence as to the nature of additional maternity leave as a matter of fact – the Commission can hardly be criticised for not taking into account a ‘fact’ which the appellant failed to establish by evidence, presumably thinking that an appropriate substitute was dogmatic repetition of an unsustainable mantra – Full Bench concluded that the impugned term did not directly discriminate against an employee covered by the Agreement because of or for reasons including the employee’s sex, sexual orientation, family or carer’s responsibilities – the impugned term is not an objectionable term within the meaning of s.12 – the grounds of appeal and contentions directed to this conclusion are rejected – Full Bench not persuaded that the appellant made out a case of arguable error – did not consider that the public interest is enlivened – held that the Commission’s ultimate conclusion at first instance was correct – permission to appeal refused. Appeal by Budd against decision of Kovacic DP of 17 May 2018 [[2018] FWCA 2776] Re: Australian Federal Police
October 12, 2018
CASE PROCEDURES – appeals – person aggrieved – s.604 Fair Work Act 2009 – appeal against decision to approve the FES Coal P/L Greenfields Agreement 2018 (approval decision) – FES Coal applied to have notice of appeal dismissed – FES application supported by CFMMEU – whether appellant is a ‘person aggrieved’ by approval decision – ‘person aggrieved’ capable of extending beyond persons whose legal interest are affected by decision in question – mere intellectual or emotional concern not enough – time for determining standing not fixed but depends on the circumstances – appellant is not, and has never been, an employee of FES or covered by the relevant agreement – was not involved in negotiations for agreement – not a representative of other persons affected – no suggestion that agreement operated to restrain appellant’s legal rights – no basis for concluding appellant has legitimate interest in ensuring Commission acts within its jurisdiction distinct from that of those directly affected by approval decision – appellant has no relevant interest beyond that of ordinary member of the public – appellant did not have standing – appeal incompetent – appeal dismissed. Appeal by Shorey against decision of Kovacic DP of 13 August 2018 [[2018] FWCA 4749] Re: FES Coal P/L; Construction, Forestry, Maritime, Mining and Energy Union
October 12, 2018
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.386, 394 Fair Work Act 2009 – whether applicant dismissed on employer’s initiative – whether employee’s contract of employment repudiated – whether repudiation of contract constitutes constructive dismissal – respondent put new employment contracts with diminished commission arrangements to applicant – each was rejected – respondent continued to pay commission on existing contract terms – Commission satisfied that significant changes occurred in applicant’s work activities – not satisfied applicant’s restricted sales activities and reduced supervisory or managerial duties was repudiation of applicant’s contract – Commission did not find that respondent repudiated applicant’s contract or that employment relationship was terminated on the initiative of the employer on account of repudiation – did not consider that the business restructure was a termination at the employer’s initiative – Commission found applicant resigned – Easling v Mahoney considered – found applicant was dismissed in that he was forced to resign because of a course of conduct engaged in by employer – Commission found business restructure was not valid reason for dismissal – found dismissal unreasonable – dismissal unfair – ordered compensation of $11,535.26, taxed according to law, and $1,238.92 in superannuation contributions. Constable v 4WD Accessory Wholesale P/L t/a Caddy Adelaide
