TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant submitted she was constructively dismissed due to removal of allocated shifts at meeting with employer – respondent raised jurisdictional objection on basis applicant not dismissed but resigned voluntarily at meeting – applicant warned once previously for cash handling discrepancy – applicant pregnant and planned to resign in July – applicant reported second cash discrepancy of 100 dollars – investigated by HR advisor – applicant called to April meeting with advisor – applicant told all her “change-box” shifts removed leaving only one shift allocated until cash handling retraining completed – considerable divergence of recollections of meeting details – applicant asked to return her uniform at end of meeting – applicant submitted at no stage did she resign and had no intention of finishing her employment until end of July – not asked if she wanted a witness present at the meeting – respondent strongly denied constructive dismissal and claimed applicant clearly resigned in meeting – question to establish involved mixed findings of fact [Mohazab, Allison] and law [Macken’s Law of Employment] – employer relied on alleged verbal resignation – employment ended with the return of uniform – action of employer in reducing shifts changed employment circumstances – applicants’ income reduced by 75 per cent – Commission found no valid reason for termination – applicant entitled to treat reduction as repudiation of contract – Commission found dismissal harsh, unjust or unreasonable – applicant sought three months lost remuneration up to planned resignation end July – no element of past misconduct – $13,566 (16 weeks) compensation ordered. Balgowan v City of Sydney RSL & Community Club Ltd
August 10, 2017
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 604, 611 Fair Work Act 2009 – permission to appeal – Full Bench – respondent’s employment with appellant ceased by way of resignation on 28 July 2016 – respondent contended that he had no choice but to resign and was accordingly dismissed within meaning of s.386(1)(b) of FW Act – on 3 August, respondent entered into settlement agreement with appellant in relation to cessation of employment – respondent filed unfair dismissal application on 23 September 2016 – appellant made multiple jurisdictional objections including: application made out of time, applicant voluntarily entered into settlement agreement and applicant not dismissed – directions issued and submissions lodged accordingly – respondent discontinued application on 31 January 2017 – appellant lodged application for costs on 9 February 2017 – Commission dismissed costs application on 9 May 2017 – appeal filed on 29 May 2017 outlining grounds for appeal with respect to errors as to jurisdiction, exercise of discretion and errors as to fact – appellant submitted Commission erred by dealing with jurisdictional objections separately rather than as a whole in deciding whether application had been made ‘without reasonable cause’ or ‘had no reasonable prospect of success’ – Full Bench not persuaded – held ‘a fair reading of the Decision suggests that the Commissioner did in fact look at the objections as a whole’ – appellant further submitted Commission at first instance committed jurisdictional error in finding reasonable prospects of success should be reasonably apparent to applicant, rather than to a reasonable person – Full Bench disagreed – held passages referred to do not support proposition that Commission applied subjective test – appellant contended Commission at first instance erred in adopting same test for ‘without reasonable cause’, ‘no reasonable prospects of success’ and ‘unreasonable act’ – however, conceded Commission’s approach was consistent with Full Bench authority and Full Bench held that adoption of test posited by appellant would unlikely affect ultimate result – appellant contended Commission erred in determining that there was presumption in FW Act against awarding costs – Full Bench held appellant was making too much of what was ‘merely an infelicitous expression’ – last, appellant submitted Commission erred in consideration of discretion to award costs in: taking into account subjective characteristics of respondent as self-represented litigant, advice given by respondent’s representatives, and amount of costs sought by appellant – Full Bench not persuaded Commission erred in taking into account respondent’s characteristics as a self-represented litigant, or in having regard to advice given by his representative, or that Commission took quantum of costs sought into account in exercise of discretion – permission to appeal refused – application dismissed. Appeal by Baxter Healthcare P/L t/a Baxter Healthcare against decision of Johns C of 9 May 2017 [[2017] FWC 2523] Re: Portelli
August 10, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed as Director of Nursing at aged care facility – summarily dismissed after allegations of serious misconduct, poor performance and failure in duty of care to residents – Commission found allegations of misconduct not proven – collusion between senior nursing staff – motives for collusion, all three stood to benefit from applicant’s dismissal – allegations of poor performance not made out – duty of care reasonable – errors of judgement – contrition and apology – exemplary service, pay rises, commendations, bonuses – procedural unfairness – reasonable opportunity to respond not provided – weight of evidence did not justify dismissal – Commission found no valid reason for dismissal – dismissal harsh, unjust and unreasonable – reinstatement not sought and not appropriate – compensation of $69,450, plus 9.5% superannuation ordered. Adamopoulos v Thompson Healthcare P/L t/a Thompson Health Care
August 9, 2017
Healthcare Australia Pty Ltd is facing a s.394 – Application for unfair dismissal remedy (Sommer).
August 9, 2017
Peninsula Village Limited & Evergreen Life Care Limited and Others have a (s.576(s)(aa) – Promoting cooperative and productive workplace relations and preventing disputes) set for hearing by Deputy President Booth at Evergreen Life care 22-32 Yallambee Ave in Est Gosford NSW 2250.
August 9, 2017
A respected Melbourne doctor and academic has gone to the Supreme Court over claims of bullying and financial impropriety within the powerful Royal Australasian College of Physicians. Professor Paul Komesaroff — a Victorian Australian of the Year finalist in 2014 — has accused his fellow RACP board members of blocking his access to a raft of documents which he claims may also detail possible irregularities with the college’s last presidential elections. Prof Komesaroff chaired RACP’s ethics committee for 18 years, is president-elect of its adult medicine division and was elected to the college’s board last year. He alleges his access to the documents has been blocked by board factions and RACP president Catherine Yelland. In an affidavit filed with the court, Prof Komesaroff says he made repeated oral and written requests since August last year to access the documents. Prof Komesaroff says he made repeated oral and written requests to access the documents. The affidavit says the documents sought include: AT “least four” whistleblower reports, and a compensation settlement agreement with one; INVESTIGATION reports into the whistleblower claims, which Prof Komesaroff believes includes alleged bullying and potential financial misconduct; LETTERS and communications about the conduct of the 2016 election, including a letter of complaint from Professor Brooks and others; CORRESPONDENCE relating to a resolution put to RACP members in May to replace the existing rule that enables 100 members to demand a general meeting of the college be called with a 5 per cent quota, or about 1,200 of RACP’s 24,000 members. COSTINGS of two extraordinary general meetings in December 2013 and July 2015 and a discontinued general meeting and resulting court action in 2014; In a letter to CEO, Linda Smith, whose contract Prof Komesaroff claims he has also been denied access, he claims he alleged the board was driven by factions, some of which appear committed to “frustrating my inquiries and investigations to ascertain certain aspects of RACP’s internal management”, and as a result he anticipated, “regrettably”, having to launch legal proceedings. He claims RACP’s lawyers alleged he wanted to access the documents to pursue legal action that he was already determined to take. Prof Komesaroff denies any present intention to use the documents to institute legal proceedings, claiming he seeks them in order to discharge his duties as a RACP director. He has asked the court for a declaration he is entitled to them.
August 9, 2017
Bupa Aged Care Australia Pty Ltd is set to run a s.604 (Appeal of decisions) before the Fair Work full bench in room 15-1 – level 15 in Sydney at 2pm (Tavassoli).
August 9, 2017
Hunter Primary Care has named Brenda Ryan as its new chief executive officer.
