TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – s.5 Disability Discrimination Act 1992 (Cth) – application for relief from unfair dismissal – applicant employed by respondent in intensive care unit for 17 years and held position of ICU Liaison Nurse – in November 2014, applicant received needle stick injury, resulting in three months off work – applicant returned to work following recovery through graduated return to work plan – in May 2015, applicant involved in car accident resulting in injuries that rendered her incapable of returning to work – applicant maintained contact with respondent to advise of her recovery progress – return to work co-ordinator unable to meet with respondent to discuss applicant’s return to work – in September 2016, applicant advised that no return to work program was available for her – applicant terminated from employment via letter dated 14 September 2016 – respondent submitted it had valid reason to dismiss applicant as she ‘had been absent from work for a significant period of time and that she remained unfit now and for an indefinite period to return to her pre-injury duties and hours’ – respondent’s decision to dismiss was based on TAC Certificate of Capacity stating applicant had ‘no capacity for employment’ from 12 September 2016 to 10 October 2016 and that it had not received any communication from TAC that applicant was capable of returning to her role – Commission held that as respondent made no inquiries into applicant’s ability to return to work at time it made decision to terminate her employment, it had no basis on which to conclude that applicant had ‘significant restrictions’ on ability to perform pre-injury job – held that evidence before Commission was that applicant could have returned to pre-injury duties on graduated return to work building up, over time, to normal hours of duty – held no valid reason for dismissal – held that, prima facie, respondent breached s.5 Disability Discrimination Act 1992 – held dismissal unfair – application granted – applicant sought reinstatement – reinstatement ordered. Maharaj v Northern Health
June 30, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.587, 739 Fair Work Act 2009 – application for Commission to deal with a dispute under Enterprise Agreement (Agreement) Dispute Settlement Procedure (‘DSP’) – applicant’s claim concerned alleged refusal of request for carers’ leave, transfer of work location and false allegations of unreasonable behaviour – respondent raised jurisdictional objection that claim could not be considered under DSP in Agreement – respondent submitted that matter be dismissed as application not validly made on following grounds – applicant did not follow DSP in Agreement – carers’ leave issue was resolved prior to application – transfer and bullying investigation were not matters arising under the Agreement or NES – relief sought was inconsistent with Agreement – applicant submitted she had complied with DSP under Agreement – applicant claimed she had been forced to resign – applicant sought reimbursement of lost wages and personal medical expenses of $9,642.00 and that respondent sign deed of release – respondent submitted that ‘lost wages’ and deed of release were not related to issues in dispute and Commission does not have power to deal with these claims – Commission noted valid s.739 dispute application requires dispute which can be properly identified and characterised – subject matter of dispute must be about ‘matters under Agreement or NES’ – parties must follow all DSP steps – Commission must have necessary power to order relief sought by party requesting relief – Schweppes Australia considered – Commission would not ordinarily order relief sought if no practical utility in doing so – Commission satisfied applicant did not correctly progress dispute through all requisite steps of DSP – applicant misunderstood Commission’s powers – no power for Commission to grant monetary payments or order respondent to sign deed of release – carers’ leave issue only matter that could be argued under Agreement or NES but Commission has no power to deal with a resolved dispute – Commission has no jurisdiction to deal with transfer or workplace investigation disputes as neither were matters arising from Agreement or NES – final DSP step not invoked by applicant meaning Commission barred from dealing with matter which had not progressively moved through each step of DSP – applicant resigned meaning no utility in taking action that would have no impact on employee who is no longer employed – Commission satisfied application cannot proceed under s.739 – found Commission had no jurisdiction to deal with dispute – Commission found application had no reasonable prospects of success – application dismissed. Tarasenko v Insurance Australia Group
June 30, 2017
MODERN AWARDS – 4 yearly review – plain language – s.156 Fair Work Act 2009 – Full Bench – decision dealt with review of Pharmacy Industry Award 2010 (Pharmacy Award) arising out of the plain language re-drafting process – Commission observed three outstanding issues arising from amended plain language exposure draft of the Pharmacy Award; coverage of on-hire employees as expressed in clause 4.3 of January exposure draft; drafting of overtime provision in clause 20 of January exposure draft; definition of ‘dispensary assistant’ in Pharmacy Award – agreement reached on overtime provision and draft definition issues – in relation to dispute whether clause 4.3 meant a pharmacy that utilises on-hire workers would be brought under award coverage – Commission’s provisional view was the clause should not be construed to have that effect – Commission invited further written submissions concerning whether clause 4.3(a) of the January exposure draft should be adopted having regard to this provisional view – written submissions must be lodged by Friday 7 July 2017. 4 yearly review of modern awards – Plain language project – Pharmacy Industry Award 2010
June 29, 2017
Kim Teudt has accepted a role with Uniting Care Queensland from July 3.
June 29, 2017
The Health Services Union and Clinical Laboratories Pty Ltd have a s.739 (Application to deal with a dispute) listed for hearing by Commissioner Cribb in conference rooms E & F – level 6 in Melbourne.
June 29, 2017
Geelong Cats chief executive Brian Cook has been appointed chair of Barwon Health, the Andrews Government announced today. Mr Cook, who has been the Cats’ key football administrator since taking over in 1999, will officially step into the role at Geelong’s largest health care provider from July 1.
June 29, 2017
Blooms the Chemist Management Services has to face a s.372 (Application to deal with other contravention disputes) launched by a staffer (Cameron).
June 29, 2017
The Health Services Union and Department of Health and Human Services have a s.739 (Application to deal with a dispute) listed for hearing by Fair Work Deputy President Hamilton in court 4 & conference room C – level 6 in Melbourne.
