TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed as Administration Assistant – allegations of ‘grave’ misconduct – summary dismissal – opposing ‘camps’ who supported or did not support the applicant – allegations of bullying, harassment and inappropriate behaviour – office pranks and nicknames -dysfunctional toxic workplace – Commission found both parties’ witness evidence unreliable, but not relevant – found no valid reason for dismissal – warnings too general and non-specific – inability to respond to general allegations – found dismissal substantively and procedurally unfair – reinstatement inappropriate – compensation of $3,384.60 ordered. Rojas v Beacon Products P/L
August 28, 2018
TERMINATION OF EMPLOYMENT – valid reason – s.394 Fair Work Act 2009 – applicant employed as a concreter – dismissed over Christmas ‘shut down period’ – no reason or explanation provided for dismissal – respondent avoided communicating with applicant – no separation certificate provided – respondent refused to engage with Commission at any stage – respondent failed to comply with Commission’s directions – matter heard ex parte – Commission found no valid reason for dismissal – no procedural fairness – dismissal manifestly unfair – ordered compensation of $23,489, taxed accordingly – Commission reminded respondent that failure to pay compensation can result in criminal prosecution. Rees v NCC Concrete Services
August 28, 2018
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – decision deals with two outstanding items regarding standard clause H ‘Employee leaving during redundancy notice period’ – should be read together with previous decisions and statements in respect of the review of the standard terms – outstanding items relate to the circumstance where an employee is made redundant, and elects to leave their employment before the end of the redundancy notice period – provisional view that all modern awards should be varied to insert a revised standard clause H – consolidated version of the standard clauses set out at Attachment A of decision. 4 yearly review of modern awards – plain language re-drafting – standard clauses
August 28, 2018
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – in a Decision issued on 16 July 2018 [[2018] FWCFB 3566] the Full Bench finalised the payment on termination of employment model term and expressed the provisional view that it was necessary to vary the 86 modern awards which are currently silent in respect of the time period within which termination payments are to be made to insert the model term – submissions received regarding that provisional view – the Alpine Resorts Award 2010, the Pharmacy Industry Award 2010 or the Rail Industry Award 2010 not to be varied at this time – in respect of the remaining 83 modern awards the Full Bench confirmed its provisional view and will accordingly vary these modern awards to insert the model term – as to the remaining 36 modern awards, a series of short conferences were held on 1 and 2 August 2018 in order to ascertain the view of interested parties – Full Bench propose to issue draft variation determinations. 4 yearly review of modern awards – Payment of wages
August 28, 2018
CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – Full Bench – at first instance Commission found dismissal was unfair – application was treated as uncontested as appellant did not respond to Commission correspondence or attend any conferences or hearings – appellant lodged appeal 294 days after the prescribed 21 day time period – appellant submitted that the Commission erred in deciding the application was uncontested because the appellant had not been served with the application or written notification of the hearing – whether there was a satisfactory reason for the delay – Commission’s records confirm that correspondence was sent to appellant via post, email and telephone – appellant claimed that he was regularly out of office and was unaware of the Commission’s decision at the time – Full Bench rejected appellant’s evidence – found it implausible that no correspondence had been received or passed on to appellant – not satisfied that appellant had provided a satisfactory reason for delay – Full Bench satisfied that appellant was aware of the application and chose to ignore it – satisfied that appeal has little prospect of success – not satisfied that it is in interests of justice to extend time to appeal – application dismissed. Appeal by Logan City Electrical Services Division P/L t/a Logan City Electrical against decision of Simpson C of 21 July 2017 [[2017] FWC 3801] Re: Antonarakis
August 28, 2018
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – consultation – s.739 Fair Work Act 2009 – matter heard in accordance with dispute procedure of the Yarra Trams Enterprise Agreement 2015 – Rolling Stock, Infrastructure, Administration, Technical & Professional – introduction to changes of supply chain area – change in reporting lines of some employees to external consultant – creation of 15 new positions occupied by external consultant – whether failure of consultation obligations under Agreement – whether major change – meaning of ‘significant effect on employees’ – Commission satisfied changes to the structure of the supply chain area, service delivery, the organisation, structure of the supply chain area and major restructuring of jobs are significant – satisfied unusual for employees to be reporting to Managers who are employed by another business – satisfied that some steps need to be put in place to remedy the defects that have occurred in the process to date – Commission determined that employer should cease any further implementation of the changes for a period of four weeks – further consultation to occur between parties. Australian Rail, Tram and Bus Industry Union v KDR Victoria P/L t/a Yarra Trams
August 28, 2018
MODERN AWARDS – 4 yearly review – ss.154, 156 Fair Work Act 2009 – application by New South Wales Business Chamber Ltd and the Norfolk Island Chamber of Commerce Inc. for interim award for private sector employers and employees on Norfolk Island – Commission to consider whether proposed interim award included any ‘state based difference terms’ within the meaning of s.154(1)(b) of the FW Act – proposed interim award expressed to operate in one and only one Territory being the Territory of Norfolk Island – proposed interim award sought to exclude employees working in other States and Territories from its coverage based entirely on the fact that they work in those other States and Territories – Commission concluded that terms and conditions of employment in proposed interim award are prohibited by s.154(1)(b) – application dismissed – parties encouraged to engage in enterprise bargaining to meet needs of employers and employees in Norfolk Island. 4 yearly review of modern awards – Proposed Norfolk Island Award
August 28, 2018
CASE PROCEDURES – stay order – ss.392, 394, 604 Fair Work Act 2009 – at first instance the Commission found dismissal was unfair and ordered compensation of $10,951.87, less tax, to be paid within 14 days – found that while a valid reason existed, the employee had not been accorded procedural fairness in the process of dismissal – appellant raised two grounds of appeal regarding the application of s.392(2)(c) of the FW Act – Deputy President found an arguable case, with some prospects of success that the Commission has fallen into error and that the facts and reasoning upon which the Commission relied was an insufficient base on which to conclude that the employee would have remained employed for a period of six months – application for a stay is granted – ordered that appellant pay into the trust account of their legal representative amounts that would otherwise have been payable to the employee as contemplated by the Commission’s order at first instance. Appeal by Hanson Construction Materials P/L against decision of Spencer C of 9 August 2018 [[2018] FWC 4369] Re: Pericich
