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
November 4, 2016
TERMINATION OF EMPLOYMENT – multiple actions – ss.394, 725, 732 Fair Work Act 2009 – applicant lodged unfair dismissal claim on 17 August 2016 – respondent filed jurisdictional objection to application – due to applicant’s claim made to Equal Opportunity Tasmania under the Anti-Discrimination Act 1988 (Tas) before unfair dismissal claim – discrimination complaint in relation to applicant’s dismissal – applicant had not withdrawn discrimination complaint – complaint to Equal Opportunity Tasmania was an application or complaint under another law for the purposes of s.732(2)(b) of FW Act – Commission satisfied complaint made to Equal Opportunity Tasmania prior to the applicant’s employment being terminated now included her termination of employment – applicant made complaint to Equal Opportunity Tasmania on 1 August 2016 – Commission agreed that applicant submitted multiple actions – Birch v Wesco Electrics considered – ‘in relation to’ does not require exclusivity merely a relationship other than tenuous or remote – Commission satisfied no reasonable prospects of success – application not made in accordance with the FW Act – application dismissed. Woolley v May Shaw Health Centre Inc
November 4, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – in decision at first instance Commission found dismissal of employee was harsh, unjust and unreasonable – ordered employer to pay compensation – employee worked as carer at aged care facility – dismissed for allegedly slapping resident whilst attending to him – resident suffered from dementia and could not report incident – appellant submitted Commission erred in the following ways: failed to find employee struck resident across mouth and therefore that there was a valid reason for dismissal; finding that a lack of complaint made by witness when complaint was made; placed too much weight on no mark being present on resident’s face from slap; focused too much on resident not making complaint due to dementia; placed too much weight to lack of previous conduct of similar nature by employee; did not address appellant’s submissions concerning credit of witness; and did not give proper weight to employee lying to appellant during investigation/disciplinary process – submitted that it was in the public interest to grant permission to appeal – Full Bench addressed each issue and found appellant had not demonstrated any arguable case of appealable error of a nature that would attract the public interest – not satisfied that the alleged misconduct occurred – permission to appeal refused. Appeal by Anglican Community Services against decision of Booth DP of 5 September 2016 [[2016] FWC 5990] Re: Shawl
November 4, 2016
The Fair Work Commission has affirmed the South Perth Hospital Incorporated application for its South Perth Hospital Enrolled Nurses Enterprise Agreement 2016.
November 4, 2016
Three applications by Regis Aged Care Pty Ltd (s.318 – Application for an order relating to instruments covering new employer and transferring employees) will be reviewed by Fair Work Commissioner Booth in Hearing Room 2 in Brisbane this morning.
November 4, 2016
Joondalup Health Campus has had its application for its Joondalup Health Campus Ramsay Health Care WA Hospital Engineering Enterprise Agreement 2016 ratified by Commissioner Roe in Mildura.
November 4, 2016
An application for approval of the Stretton Park Nurses Enterprise Agreement 2016 (s.185 – Application for approval of a single-enterprise agreement), will be determined by Deputy President Dean in his Sydney Chambers.
