TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – application for relief from unfair dismissal dismissed at first instance – Commission found dismissal was not harsh, unjust or unreasonable – appellant sought permission to appeal – Coal & Allied and GlaxoSmithKline applied – Full Bench discovered parties consented to have matter dealt with on the papers but involved contested facts – respondent also submitted due to security concerns associated with the appellant’s conduct the Commission was not required to hold a hearing or a conference – Full Bench found as the matter involved disputed facts the Commission had a statutory obligation to conduct a conference or hold a hearing in relation to those contested facts – Full Bench further noted a security concern was not a basis to avoid a hearing or a conference – permission to appeal granted – Full Bench found the relevant contested facts were a critical issue in the proceedings – public interest test enlivened – appeal upheld – decision at first instance quashed – matter to be reheard. Appeal by Sekirski against decision of Gregory C of 2 March 2017 [[2017] FWC 1200] Re: Scope (Vic) Ltd
June 2, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed in May 2014 as a Receptionist/Administrator – summarily dismissed for serious misconduct on 27 November 2015 – respondent submitted reasons for dismissal were due to applicant engaging in bullying conduct against two other employees; and engaging in fraud and theft by incorrectly recording her working hours and claiming payment for those hours – applicant denied allegations and stated that all of the records had not been put before her prior to dismissal – matter heard together with application made by applicant’s mother, who was also an employee of respondent, and was dismissed for substantially similar reasons at the same time [[2017] FWC 2573] – respondent referred the basis for the dismissal, in terms of the allegations of fraud and theft, to the Queensland Police Service (QPS) – QPS conducted an investigation into allegations, however it was confirmed several months later that no charges would be laid against either applicant or her mother – whether valid reason for dismissal – Commission found allegations of bullying unsubstantiated – held respondent failed to demonstrate that it conducted sufficient investigations into bullying allegations prior to dismissal – allegations of bullying relied on by respondent did not provide a valid reason for dismissal – elements and standard of proof required to substantiate an allegation of fraud and theft at criminal law (beyond reasonable doubt), differ and are higher than test for misconduct before Commission (on the balance of probabilities) – McKerrow considered – held nature of respondent’s evidence could be described as ‘inexact proofs’ and ‘indirect references’ – whilst respondent may have satisfied evidentiary requirement that misconduct occurred, evidence not sufficiently probative to support a finding that conduct amounted to serious misconduct – respondent ultimately carried responsibility with respect to ensuring accuracy of timesheets and wages paid to employees – to substantiate an allegation of fraud and theft the conduct must be proved to be dishonest – found respondent had not satisfied that, on the balance of probabilities, applicant engaged in misconduct, committed fraud and theft, or was dishonest – inaccuracies in the recording of time and wages provided a valid reason for dismissal – while conduct could not be condoned, it had been undermined by significant procedural deficiencies on behalf of respondent – found dismissal harsh, unjust and unreasonable – not appropriate to order reinstatement – applicant had been employed on a casual basis, and secured alternative employment within a short period after dismissal – held not appropriate in the circumstances to order compensation. Webb v The Trustee for SWC Unit Trust t/a Salisbury Day Surgery
June 2, 2017
ENTERPRISE AGREEMENTS – ambiguity or uncertainty – ss.217, 604 Fair Work Act 2009 – appeal – Full Bench – decision on appeal concerned application by appellant to vary an enterprise agreement to remove ambiguity and/or uncertainty – appellant alleged coverage clause ambiguous – submitted enterprise agreement should be varied to specify covered employees ’employed in Tasmania’ – Commission ordered variation to coverage in enterprise agreement operating prospectively – appeal focused on decision to vary enterprise agreement with prospective rather than retrospective effect – grounds for appeal included that the Commission erred in failing to consider application that variation operate retrospectively and made a jurisdictional error, and that the Commission failed to give any reasons why variation operated prospectively and take into account that common intention of parties was agreement limited to Tasmania – Health Services Union and Australian Nursing and Midwifery Federation made no submissions – Full Bench satisfied that appellant was not given an opportunity to make submissions about the prospective operation of the order – found denial of procedural fairness and appealable error – Full Bench held that an ambiguity existed in enterprise agreement and appropriate to exercise discretion to remove ambiguity – found objective intention of parties from commencement of agreement was to cover employees in Tasmania – Full Bench found that variation should operate retrospectively – permission to appeal granted – appeal upheld – decision at first instance quashed. Appeal by Aged Care Services Australia Group P/L against decision of Wells DP of 2 March 2017 [[2017] FWCA 1201] Re: Health Services Union and Anor
June 2, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant employed as Operations Assistant to the Director of Operations at the Salvation Army conference and recreation centre in Collaroy, New South Wales – dismissed for serious misconduct – dismissal based on three instances of alleged aggressive and intimidating behaviour – applicant failed to comply with reasonable directions during investigations – behaviour inconsistent with code of conduct – conflicting evidence over alleged instances of misconduct – much of applicant’s evidence was an attempt to reconstruct events and circumstances – Commission preferred respondent witnesses’ evidence in case of conflict – found serious misconduct proven – held valid reason for dismissal based on pattern of unacceptable conduct – found no procedural unfairness – case did not involve unsatisfactory performance – applicant had been employed for six years – workplace required higher standard of conduct and behaviour than might otherwise be expected in general community – held valid reason for dismissal – dismissal not harsh, unreasonable or unjust – application dismissed. Nakasone v Salvation Army
June 1, 2017
A s.739 (Dispute resolution) application by Bradley Davidson against Health Communication Network T/A Medical Director has resulted in Deputy President Asbury in Brisbane on 30 May 2017 ruling that Mr Davidson’s work in information technology is covered by the clerks award and not the professional employees award 2010.
June 1, 2017
A man has been arrested after a Melbourne surgeon was bashed at the hospital he worked at and left fighting for his life. Heart surgeon Patrick Pritzwald-Stegmann is the victim of the one punch assault at Box Hill Hospital.
June 1, 2017
A s.185 (Enterprise agreement) application by St John of God Health Care Inc T/A St John of God Health Care for its St John of God Health Care – AMA WA – Medical Practitioners Enterprise Agreement 2016 has been approved by Commissioner Johns in Melbourne on 31 May 2017.
June 1, 2017
The Royal Hobart Hospital (RHH) says it has revised its escalation protocols amid complaints from staff that attempts to ease worsening bed shortages through the use of emergency codes are being ignored by management. But the nurses union says it is yet to see the details of the new measures. On Monday, the hospital’s emergency department (ED) was at triple its capacity – with 75 patients waiting. Requests by RHH staff to use emergency codes were again rejected by senior management, the Labor Opposition revealed in State Parliament on Wednesday. ED staff attempted to call a “code yellow” emergency code on three occasions because it could not manage patient flow, but were denied. Code yellow denotes an “internal emergency”.
