An application for approval of the Advantaged Care Non Clinical Staff Greenfield Enterprise Agreement 2016-2018 (s.185 – Application for approval of a greenfields agreement) will be determined by Commissioner Johns in his Melbourne chambers at 2pm.
July 29, 2016
An application for approval of the Midland Nursing Home Enterprise Agreement 2016 (s.185 – Application for approval of a single-enterprise agreement) is being mulled over by Commissioner Lee in his Melbourne chambers at 1pm.
July 29, 2016
An application for approval of the Goulburn Valley Hospice Care Service Inc Nurses Enterprise Agreement 2016 (s.185 – Application for approval of a single-enterprise agreement) is being reviewed by Fair Work Deputy President Dean.
July 29, 2016
TERMINATION OF EMPLOYMENT – remedy – ss.392, 394 Fair Work Act 2009 – application for relief from unfair dismissal successful – reinstatement not appropriate – compensation appropriate – material filed prior to issuing of decision was insufficient to deal properly with issue of compensation – parties afforded further opportunity to file submissions on compensation – approach to calculation of compensation in McCulloch followed – payment of maximum amount of compensation would not affect viability of respondent’s business – applicant had performed almost 11 years of service with respondent, and length of service no justification for reduction in applicant’s compensation – Commission satisfied that, were it not for dismissal, applicant would have remained in respondent’s employ for at least a further six months – applicant made reasonable attempts to mitigate loss and no deduction should be made on this basis – local unemployment level and physical disability of applicant relevant to efforts to mitigate loss – remuneration earned in six months following dismissal and payment in lieu of notice deducted from amount of compensation – no deduction for misconduct – total amount of compensation equal to $30,178.89 plus applicable superannuation. Carrick v Life Without Barriers
July 29, 2016
TERMINATION OF EMPLOYMENT – performance – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – employer objected to application on basis that it was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) – no dispute that employer was a small business – applicant not summarily dismissed but dismissed because employer lost confidence and faith in performance – applicant gave evidence she was never warned that employment was at risk – Commission satisfied employer did not comply with the Code – employer’s conclusion that she no longer had trust in applicant to perform duties not reasonable – no valid reason for dismissal therefore applicant could not have been notified of reason – applicant not given opportunity to respond – applicant entitled to be warned employer was unhappy with performance – lack of human resources management specialists or expertise does not excuse dismissal without warning – Commission satisfied termination was unjust and unreasonable – applicant sought ten weeks’ pay – Commission ordered remedy of four weeks’ pay. Raatjes v J.E.T.S Solutions P/L t/a Cherubs in the Home
July 29, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Registered Psychiatric Nurse (RPN) Grade 3 – dismissed for failing to follow a reasonable instruction – letter of termination stated he had previously been notified of the authority of an RPN Grade 4 and that his unwillingness (refusal) to follow a reasonable directive was consistent with his previous behaviour – as a result of the previous incident he had been given a final written warning in relation to his behaviour which was deemed to be serious misconduct and completely inappropriate – an RPN Grade 4 had the authority to issue applicant with an instruction and delegate work to him – Commission found applicant refused to follow lawful and reasonable directions given to him by an RPN Grade 4 – found a valid reason for dismissal – on fine balance, found applicant’s dismissal was harsh – no formal warnings given to applicant prior to his dismissal, and he was an employee with 11 years and 11 months service – applicant unfairly dismissed – reinstatement inappropriate – relationships between applicant, his employer and some of his colleagues were irreparable – Commission not in a position to make a finding in relation to compensation – submissions requested – further decision and order regarding compensation to be issued. Steele v St Vincent’s Hospital (Melbourne) Limited
July 29, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal – applicant terminated on 3 May 2016 – application lodged 8 days out of time on 1 June 2016 – applicant submitted after his contract was terminated he attempted to contact respondent to negotiate resolution of matter – respondent did not respond – applicant argued he ran out of time to lodge application by allowing respondent time to respond – admitted knowing time frames but submitted it was only fair to give the respondent the opportunity to respond – respondent submitted it decided, internally, not to correspond with applicant and refer all correspondence to its legal department – did not communicate this to the applicant – Commission found respondent acted deliberately to frustrate applicant – applicant was naive waiting to lodge application but it should not be to his detriment – applicant continuously challenged termination of contract since it occurred – respondent failed to produce evidence or make submissions on issue that they would be prejudiced if extension of time was granted – Commission held deliberate actions of respondent created a situations that was ‘out of the ordinary course and uncommon’ – such an act cannot be condoned – principles of procedural fairness paramount – application for extension of time granted. Guest v Hills Holdings LTD t/a Hills Connection Solutions
July 29, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute about quantum of annual leave entitlement under cl.17 of the Royal Flying Doctor Service, Central Operations, Operations Co-ordinators Agreement 2014 which is expressed in ‘rostered working days’ – whether average ordinary working hours define entitlement – principles of interpretation of agreements considered – employer submitted employees entitled to 30 x 7.6 hour days per year – ‘rostered working day’ is a defined term and differs from the ‘working day’ used in other leave entitlement provisions of agreement – rostered working day is 12 hours under agreement – wording of clause 17 is unique – whether contrary common objective intention was agreed during negotiations – no reference to 228 hour entitlement (30 x 7.6) during negotiations – considered context of clause within agreement – ordinary and natural meaning of provisions applied – employees entitled to 30 x 12 hour days of annual leave – Commission cannot re-write agreement or determine an approach that is inconsistent with terms of the agreement. CPSU v Royal Flying Doctor Service of Australia Central Operations
