Cancer Patients Assistance Society of New South Wales is facing a s.394 (Application for unfair dismissal remedy) lodged by an ex-staffer (Pritchard).
July 14, 2017
A Victorian man who posed as a registered psychologist and treated two young siblings has been fined $15,000 for the scam. The counsellor has a Bachelor of Science in psychology and a Masters in counselling, but was never registered to practise as a psychologist. He pleaded guilty to three charges in the Moorabbin Magistrates’ Court on May 30 for treating the patients for nearly four months and was fined $15,000, the Australian Health Practitioner Regulation Agency said in a statement on Thursday.
July 14, 2017
The Australian Workers Union and Avenues Lifestyle Support Association Inc are in the middle of a s.739 (Application to deal with a dispute) before Commissioner Simpson in hearing room 3 in Brisbane.
July 14, 2017
A street cleaner with a gambling habit has been placed under probation after admitting to a swindle. Noel Bonello, 38, lured a 40-year old woman to hand over thousands with which he proposed to secure her social accommodation, bragging about his contacts within the Housing Authority. When no promised accommodation materialized, the woman filed a police report against the man who had allegedly defrauded her out of her savings. Criminal investigations led to Mr Bonello’s arrest and arraignment over charges of misappropriation and fraud.
July 14, 2017
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appellant appealed decision refusing an extension of time to lodge application for unfair dismissal remedy and to dismiss application – filed application with Commission (first application) not on correct prescribed form – became aware wrong application was filed at telephone conciliation conference – discontinued first application and lodged new unfair dismissal remedy application using correct form (second application) 55 days outside 21-day period – appellant submitted Commission failed its duty of care towards him by not confirming correctness of first application – submitted combination of factors could be construed as a situation which is out of the ordinary course, unusual, special or uncommon – submitted administrative error should not prevent Commission from hearing the merits of an unfair dismissal matter particularly in case of unrepresented parties with limited knowledge of relevant processes and terminology – respondent submitted the correct test and matters were identified and regarded to – submitted appeal could not succeed as decision was neither unreasonable nor manifestly unjust – further submitted there was no power to correct, amend or waive the irregularity; there was no power under s.586 of FW Act to change the nature of an application from s.365 application to s.394 application; and s.586 was not procedural provision which allowed applicant to amend application to add or substitute a new claim for relief that arose out of same facts as original claim; appellant bore responsibility for initiating wrong application; advice given by Commission staff member could not be relied upon since it was not the function of Commission to provide advice to litigants – Coal & Allied Mining Services and GlaxoSmithKline considered – found was in public interest to grant permission to appeal – three novel issues had potential wider application – Ioannou considered but inapplicable – proper characterisation of appellant’s first application was on the wrong form and potential for irregularity in that application to have been remedied under s.586 rather than being dealt by discontinuance and a second application were critical to consideration of whether there were exceptional circumstances justifying an extension of time to lodge the second application – House v The King considered – Full Bench found the Commission erred to not have accounted for critical matters identified as relevant considerations – concurred was appellant’s error – found error amounted to irregularity in application form – was not unreasonable for appellant to hold belief correct application lodged – appellant acted promptly by discontinuing the first application, filing second application and rectifying error – found reasons for delay highly unusual and beyond appellant’s control – found matters favoured extension of time be granted as exceptional circumstances existed – no prejudice to respondent – matter could have been rectified without need to make late application – permission to appeal granted – appeal upheld – first instance decision quashed – extension of time granted. Appeal by Hambridge against decision of Kovacic DP of 18 April 2017 [[2017] FWC 2148] Re: Spotless Facilities Services P/L
July 14, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – heard and determined six substantive claims in dispute under Pharmacy Industry Award 2010 – directions issued to file material in relation to claims 1-4 (minimum shift and provisions relating to employment of school students, grades at which junior rates should apply, payment of overtime to casual employees, coverage of annualised salary rate) – Shop, Distributive and Allied Employees Association (SDA) filed a series of draft determinations on behalf of interested parties – accordingly claims not disputed between parties – Pharmacy Guild of Australia advised Commission it did not intend to press its application relating to claim six (annual close down) – claim five (shift length and terms of engagement) listed for hearing – SDA claimed inserting two provisions relating to full-time employees were uncontroversial and self-evident – supporting evidence not submitted – Commission considered implementation of the provisions not self-evident – provisions related to casual and parttime employees distinguished from fulltime employees – SDA’s application for variation dismissed – other variations sought by interested parties by consent were agreed to, straightforward, uncontroversial and appropriate – variations sought were necessary to achieve the modern awards objective – variations given effect on 7 August 2017. 4 yearly review of modern awards – Pharmacy Industry Award 2010
July 14, 2017
CASE PROCEDURES – procedural and interim decisions – s.789FC Fair Work Act 2009 – application for order to stop bullying – applicant employed pursuant to fixed-term contract as Senior Research Fellow of Asia Pacific Centre for Neuromodulation (Centre) – the Centre part of The Queensland Brain Institute at The University of Queensland (University) – commenced role on 11 March 2013 until termination of contract on 10 March 2017 – on 19 January 2017, contract renewed until 31 December 2017 – in 2015, anonymous complaint alleged applicant engaged in research misconduct – University had Research Misconduct Policy setting out principles for managing complaints of research misconduct which required it to undertake preliminary investigation if there is prima facie case that research misconduct existed – ‘Designated Person’ tasked with undertaking inquiries may recommend establishment of internal inquiry panel – Dr Susan O’Brien, Manager of the Office of Research Integrity at the University, was Designated Person with carriage of complaint made against applicant and also the ‘named person’ in application – University established inquiry panel involving Professor Koopman, Professor Hodges and Dr Kamke – on 16 March 2017, inquiry panel provided applicant draft report of its findings which were largely adverse to him – following applicant’s response, inquiry panel issued further draft report dated 26 May 2017 to 30 May 2017 and invited applicant to respond by 14 June 2017 – application made on 2 June 2017 and applicant sought expedition of application – following hearing before Hampton C on 9 June 2017, University agreed that applicant not be required to provide written response until 20 June 2017 – matter listed for urgent hearing before Commission on 15 June 2017 to determine whether interim orders be issued – parties reached agreement to deal with interim issues and no interim orders made – applicant discovered that his contract would not be renewed after 31 December 2017 and sought re-listing of matter – parties agreed at hearing on 30 June to compress timetable to complete inquiry into alleged research misconduct – University submitted it wished to make formal offer to Dr X to accept employment from 1 January 2018 – applicant pressed Commission to make order to prevent University from offering role to any person until substantive application before Commission determined – Commission held that applicant’s rights relevant to substantive application not adversely affected by decision of University to offer new role commencing 1 January 2018 to new person – declined to make interim order sought – University at liberty offer Dr X the role commencing 1 January 2018 – Commission directed University to provide undertaking to commit to timetabling of completing inquiry by 4.00pm 11 July 2017. Dr Subramanian
July 14, 2017
TERMINATION OF EMPLOYMENT – contractor or employee – ss.382, 394 Fair Work Act 2009 – application for unfair dismissal remedy – the applicant worked as a physiotherapist at the respondent’s practice for about 2.5 years – respondent raised a jurisdictional objection, arguing that the applicant was an independent contractor and not an employee – having regard to the indicia of control [Hollis], [Cai] the Commission observed that the respondent did not directly supervise the applicant’s work, and that the applicant and respondent ‘passed like two ships in the night’ with each using the physio room at different times – the applicant was found to have provided services in the name of the respondent’s practice, which was more consistent with an employment relationship – on balance, it was held that, without detracting from the range of competing indicia, the applicant was working within the business environment established by the respondent and the services were provided as part of the business of the respondent – this included that it was the respondent that had the right to make important business decisions – the respondent was found to be able to set and change the context in which the applicant’s services were provided – the respondent took the risks associated with the payment for the provision of those services – the applicant was found to be an employee of the respondent – it was held that the Commission had jurisdiction to hear the application – substantive matter to be heard. Mitchell v Uraidla Physio
