TERMINATION OF EMPLOYMENT – misconduct – s.604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found valid reason for dismissal but due to range of ‘other matters’, found dismissal was harsh and unreasonable – ordered reinstatement without any backpay – appellant appealed on four grounds – contended that Commission incorrectly considered and applied concept of harshness; that Commission acted outside of jurisdiction; that insufficient weight to evidence given; and, that order for reinstatement was not supported – Full Bench considered Coal & Allied Mining Services and GlaxoSmithKline Australia – Full Bench satisfied in public interest to grant permission to appeal based Grounds 1.1 and 2 of Notice of Appeal, where respondent contended that Commission incorrectly considered and incorrectly applied concept of harshness – however, Full Bench found test posited by appellant for harshness was contrary to established authority – Full Bench otherwise found that other grounds of appeal did not disclose arguable case of error, and that decision at first instance did not manifest injustice nor were applied legal principles disharmonious – permission to appeal in respect of remaining grounds refused – appeal in relation to Grounds 1.1 and 2 dismissed. Appeal by Reliable Petroleum P/L against decision of Hampton C of 20 July [2017] FWC 3552 Re: Mr. Fraser Murray
November 22, 2017
REGISTERED ORGANISATIONS – cancellation of registration – s.30(1)(a) Fair Work (Registered Organisations) Act 2009 – application by Association to cancel its own registration – application signed by executive director and president – notice of application was gazetted – no objections received within time prescribed – no challenges to application – application complied with regulations 33 and 34 – cancellation to take effect from 13 November 2017. The Timber Merchants’ Association (Victoria)
November 22, 2017
CASE PROCEDURES – failure to prosecute application – ss.394, 587 Fair Work Act 2009 – application for relief from unfair dismissal – applicant failed to attend initial conciliation – application listed for phone conference which applicant again failed to attend – application relisted, applicant advised in writing that failure to attend may result in dismissal of application – when contacted for phone conference applicant advised he could not stay on the phone – applicant reminded of content of email to which he responded ‘fair enough’ – Peter Viavattene v Health Care Australia considered – Commission dismissed application for want of prosecution under s.587 of FW Act. Hooper v ITKM Transport
November 22, 2017
RIGHT OF ENTRY – application for permit – s.512 Fair Work Act 2009 – application for Right of Entry (RoE) permit – ABCC objected to application – whether union official ‘fit and proper person’ – consideration of meaning of ‘fit and proper person’ by reference of suitability to hold an entry permit [MUA v FWC] – Commission to take into account permit qualifications matters in s.513 – official previously ordered to pay a penalty under FW Act on three occasions – CFMEU submitted that these were isolated incidents that do not indicate pattern of improper behaviour and not suggestive of future misconduct – official had RoE permit made subject to conditions on two occasions – ABCC submitted evidence of CFMEU engaging in contraventions – Commission considered that past contraventions by organisation can be relevant to consideration of permit holder’s fitness even where contraventions did not involve permit holder – ABCC submitted evidence of official being susceptible to complying with directions from employer – Commission satisfied evidence suggested some susceptibility to comply with directions of employer with history of repeated breaches – Commission found contraventions so close in time to proceedings suggested lack of genuine contrition and propensity to continue to engage in unlawful conduct – highly relevant to whether ‘fit and proper’ person – Commission not satisfied ‘fit and proper’ person’ to hold entry permit – application dismissed. Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch
November 22, 2017
TERMINATION OF EMPLOYMENT – amendment of application – ss.394, 586 Fair Work Act 2009 – application to amend unfair dismissal application to a general protections application – unfair dismissal application lodged on 19 September 2017 – applicant requested Commission to exercise discretion under s.586 FW Act to amend application to general protections application involving dismissal on 27 September 2017 – submitted he could only receive legal advice about submitting the wrong application after the prescribed time limit expired – respondent submitted Commission did not have the power to accede to applicant’s application and that legal advice had been obtained – Ioannou and Hambridge considered – satisfied applicant intended to make an application in relation to his allegation employment was terminated because he inquired about his pay – satisfied unfair dismissal application was a general protections application made using the wrong form – Commission granted application and amended irregularity in the form filed – application given general protections matter number. Hui v Evanita P/L t/a Paylink Business Services
November 22, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant claimed respondent forced her to resign – respondent raised jurisdiction objection, claiming there was no dismissal as applicant voluntarily resigned – Mohazab and Elgammal considered – respondent’s conduct, viewed objectively, did not show an intention to no longer be bound by the contract – respondent held applicant in regard as an employee and never intended for applicant to resign – applicant not dismissed – applicant voluntarily resigned – application dismissed. Hill v Pathways Australia P/L t/a Pathways Australia
November 22, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant a regular and systematic casual employee – minimum employment period satisfied – applicant submitted he felt forced to resign as a result of the unacceptable working conditions he was subjected to – applicant claimed respondent’s practices included underpayments, pay back schemes, and threats that the applicant would be deported if he complained – Fair Work Ombudsman (FWO) was conducting an investigation into applicant’s allegations – Commission considered whether dismissal at initiative of employer – Commission found that evidence was complicated by family members opposing one another – found insufficient evidence to be satisfied about substance of allegations under investigation by FWO – found applicant tendered a letter of resignation which did not amount to dismissal at initiative of employer – application dismissed. Banda v Mrs Australia P/L t/a 7-Eleven
November 22, 2017
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – reasons given for dismissal included unsatisfactory work performance and misconduct – applicant submitted respondent’s actual reason for dismissal was to avoid having to pay applicant his long service leave – jurisdictional objection raised by respondent on the basis that the dismissal complied with the Small Business Fair Dismissal Code – reasonable belief that applicant had engaged in serious misconduct due to the ‘unsafe and illegal way’ in which he had secured three vehicles on a car carrier – respondent had discussions with applicant about his failure to comply with the business safety policy and procedures – evidence of respondent witness preferred – employer complied with Code – application dismissed. Collins v Elfbill P/L t/a Alfies Towing
