CASE PROCEDURES – appeals – ss.365, 372, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant lodged two general protections applications – application made under s.365 [C2015/7291] closed by the Commission on 27 June 2016 (2015 Application) – appellant had advised he did not intend to make the application under s.365 of FW Act and that he no longer wished to proceed with that application – application made under s.372 [C2016/4278] closed by the Commission on 5 July 2016 (2016 Application) – appellant advised that respondent refused to participate in a conference – appellant applied for permission to appeal the decisions of the Commission to close the applications – grounds for appeal included the delay caused by the Commission Canberra Registry staff in progressing his 2015 Application; the provision of misleading information by Commission staff which led him to discontinue his 2015 Application and lodge his 2016 Application; and the actions taken by Commission staff to close the two matters – Full Bench did not consider there was any ‘decision’ in relation to the 2015 Application which may be the subject of an appeal under s.604 of FW Act – considered discontinued in accordance with appellant’s communication that he did not wish to proceed with it – even if there was an appealable decision Full Bench did not consider that appellant had demonstrated any arguable case that the Commission erred in treating his 2015 Application as discontinued – in relation to the 2016 Application the Full Bench did not consider that the Commission made any decision capable of being appealed under s.604 – appellant made aware that if he wished to agitate his 2016 Application, he could make an appropriate application to the Federal Court of Australia or the Federal Circuit Court of Australia – Full Bench found appellant failed to demonstrate any arguable case that the Commission erred in closing matters C2015/7291 and C2016/4278 – not in public interest to grant permission to appeal – appeal incompetent because no appealable decision had been identified – permission to appeal refused. Appeal by Dyczynski against action taken by the Commission to close matters C2015/7291 and C2016/4278 Re: Remede P/L t/a Remede Wellness Medicine
November 4, 2016
CASE PROCEDURES – stay order – s.400, 604, 606 Fair Work Act 2009 – application for stay order – at first instance Commission ordered reinstatement of employee to position occupied immediately prior to dismissal by appellant – before stay order is granted, Commission required to be satisfied that arguable case exists with some reasonable prospects of success in respect of both question of leave to appeal and substantive merits of appeal and that balance of convenience favours granting of stay – Edghill considered – consideration of whether appeal was arguable with reasonable prospects of success must take into account its prospects of obtaining permission to appeal under s.400(1) of FW Act – appellant submitted that Commission erred by failing to find that kissing patient was serious misconduct and that reinstatement was inappropriate – submitted that issues were in public interest – satisfied arguable case existed and reasonable prospect for permission to appeal to be granted – satisfied stay order appropriate on balance of convenience – ordered operation of part of decision [[2016] FWC 6780] and order [PR585427] be stayed pending decision of appeal or further order of Commission. Appeal by Bendigo Health Care Group against decision of Ryan C of 14 September 2016 [[2016] FWC 6780] Re: Logan
November 4, 2016
ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – two applications for protected action ballot order (PABO) by ANMF and HSU (the Applicants) in relation to negotiations with HammondCare for an enterprise agreement – respondent objected to form of questions proposed by the Applicants and further sought longer notice period due to exceptional circumstances should PABO be made – respondent argued questions to be put to employees involved composite yes/no regarding various forms of industrial action rather than option of a yes or no response to each form of industrial action – Commission of view question in current form was clear and concise and was not ambiguous – Commission followed approach taken in John Holland in determining approach taken by Applicants did not render applications invalid – regarding respondent request for a longer notice period, the Applicants argued respondent failed to provide any evidence suggesting statutory norm was inadequate for purpose of making reasonable contingency plans – respondent relied on risk to residents and staff if replacement staff were not properly trained in the HammondCare model – Commission not persuaded circumstances relied upon by respondent justified an extension of the period of notice in all the circumstances of this case – respondent’s objections rejected and protected action ballot orders made. Australian Nursing and Midwifery Federation and Anor v HammondCare
November 4, 2016
ENTERPRISE BARGAINING – single interest employer authorisation – s.248 Fair Work Act 2009 – VHIA made application for single interest employer authorisation concerning new enterprise agreement to cover registered nurses, registered midwives and enrolled nurses employed by employers specified in application – application specified 125 employers intended to be covered by new enterprise agreement – employers involved in provision of public health services and specified in Declaration made by Minister under s.247 of FW Act – application also specified group of employees who will be covered by new enterprise agreement including registered nurses, registered midwives and enrolled nurses involved in provision of services in Victorian public health sector – Commission satisfied employers freely agreed to bargain together – satisfied there was no coercion – satisfied employers specified in application were also employers specified in Declaration made by Minister under s.247 – single interest employer authorisation made and came into operation on date of decision – authorisation ceases operation on day which proposed new enterprise agreement is made or 12 months from day of authorisation, whichever comes first. Victorian Hospitals’ Industrial Association
November 4, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as receptionist – patient who had been previously married to applicant’s father left handbag at medical centre – applicant dismissed for not investigating who had left handbag, not taking action to return handbag promptly and not giving truthful responses to respondent’s investigation – respondent alleged applicant knew who owned handbag and did nothing to return it for 11 days – Commission found applicant failed to take reasonable action to return handbag to owner – provided conflicting accounts concerning her conduct – acted in manner which, combined with previous allegations of misconduct, led to loss of trust and confidence – found respondent had valid reason to dismiss the applicant and dismissal was not harsh, unjust or unreasonable – application dismissed. Paltridge v Limestone Coast Health Unit Trust t/a Robe Medical Centre
November 4, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – application for permission to appeal against decision where Commission found appellant’s dismissal a case of genuine redundancy and dismissed application – respondent a not-for-profit organisation – appellant was only employee – at first instance Commission found clear that respondent’s debts exceeded financial assets at time of dismissal – satisfied decision to dismiss was because no longer required job to be performed by anyone because of changes in its operational requirements – consultation requirements in Social, Community, Home Care and Disability Services Award 2010 (Award) complied with – no other paid position available for redeployment as appellant the only employee – grounds of appeal included challenge to findings under s.389(1)(a) – permission to appeal required under s.400 FW Act – Full Bench noted consideration of s.389(1)(a) does not involve a merit review of employer’s decision to make job redundant – whether objectively fair or justifiable to decide to abolish position beside the point, as long as employer acted as it did because of changes in its operational requirements [Low] – Full Bench held decision to abolish position because it could not operationally be maintained due to a lack of financial resources was a decision to which s.389(1)(a) squarely applied – respondent had genuine basis for view financial position precarious and not prudent to continue appellant’s employment – no arguable case that Commission erred in finding s.389(1)(b) satisfied – discussions with appellant about financial situation and option of working on unpaid basis until funding secured discharged consultation requirements under Award – Full Bench did not consider there was an arguable case demonstrated that Commission erred in finding dismissal a case of genuine redundancy – no issue requiring consideration at appellate level – not satisfied in the public interest to grant permission to appeal – permission to appeal refused. Appeal by Adams against decision of Hamberger SDP of 2 August 2016 [[2016] FWC 4899] Re: Blamey Community Group
November 4, 2016
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – application for costs by employer – employee lodged application for relief from unfair dismissal November 2015 – employer lodged application to dismiss – unfair dismissal application dismissed by Commission under s.399A of FW Act due to abhorrent behaviour – employer submitted employee’s unreasonable acts caused it to incur unnecessary costs – employee submitted she had been informed the successful party does not get its costs paid by the other, could not afford to pay costs and the employer chose to incur expenses by engaging legal representation – Commission may award costs where it is satisfied an unreasonable act or omission by a party in connection with a matter has caused the other party to incur costs – meaning of vexatiously and without reasonable cause – Church v Eastern Health, Kanan v Australia Postal and Telecommunications Union and Baker v Salva considered – Commission found it appropriate to exercise discretion to award costs – only one party being legally represented not an impediment to the Commission’s power to award costs – financial position does not render a party immune from costs – employee’s conduct in connection to unfair dismissal proceeding, employer’s application to dismiss and lack of explanation of conduct enlivened discretion – costs awarded – employee ordered to pay an amount in costs to the employer equal to the party/party costs relating to costs incurred in respect of the s.399A application between 7 April 2016 and 31 May 2016. Hansen v Calvary Health Care Adelaide Limited
November 4, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – contractor or employee – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a Personal Care Attendant at a small residential unit for elderly people – respondent objected to application on the grounds that applicant was a contractor and not an employee – Commission considered On Call Interpreters and Translators and generally accepted indicia – satisfied applicant was an employee and not a contractor – Commission considered amount of employees at date of termination – satisfied that Small Business Fair Dismissal Code (Code) applied – not disputed that applicant was not dismissed for serious misconduct – Commission found that employer did not comply with all aspects of ‘other dismissal’ provisions of the Code – dismissal not consistent with the Code – respondent submitted applicant was dismissed with immediate effect due to applicant’s conduct towards colleagues and residents – notified applicant of dismissal by text message – applicant denied all allegations but one – alleged respondent’s concerns not put to applicant – Commission satisfied no valid reason for dismissal – reinstatement not appropriate due to the nature of the work with vulnerable elderly people – ordered compensation $6,360.03 plus superannuation, taxed appropriately. Kerry v The Trustee for Claerwen Family trust t/a Caulfield House
