TERMINATION OF EMPLOYMENT – costs – ss.400A, 401, 611 Fair Work Act 2009 – application for costs order against former employee and his solicitors – employee discontinued unfair dismissal application after conciliation but prior to arbitration – employer argued costs incurred as original application not made in time, did not pertain to termination of employment, was made with ulterior motives, and employee did not dispute misconduct allegations – Commission found power to order costs under s.611 of FW Act required clear evidence of unreasonable conduct – ‘without reasonable cause’ means ‘so obviously untenable that it cannot possible succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’ [Keep v Performance] – Commission held original application not commenced unreasonably nor made without reasonable cause – employee’s contentions regarding timing of application had reasonable prospects of success – questions relating to the nature and characterisation of the dismissal could reasonably and properly be dealt with in hearing – nothing out of the ordinary, unreasonable, vexatious or lacking in prospects – application dismissed. Ngaanyatjarra Health Service (Aboriginal Corporation) t/a Ngaanyatjarra Health Service v Roberts and Ors
August 5, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent contended dismissal genuine redundancy – applicant covered by Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Enterprise Agreement 2011-2015 – Agreement contained consultation term which provided for discussion about reasons for proposed redundancy and consideration of measures to avert or mitigate – applicant’s salary claimed against BRAF project grant with three year funding – respondent obtained a separate program grant for period of five years – distinguishable from project grant in that provided funding across several teams rather than one project – respondent contended it was communicated to applicant that BRAF project would not continue beyond current project timelines and reinforced message in meeting with applicant in April and December 2014 – meeting in May 2015 applicant advised position would be made redundant in December 2015 – applicant claimed she was not consulted adequately – Commission satisfied applicant aware in May 2015 position would be redundant – satisfied intention to discontinue BRAF project clearly communicated to applicant – rejected applicant’s claim that subject to coercion to sign deed of release – respondent provided evidence based on rationale for decision to reduce priority on BRAF project – Commission accepted operational rationale for decision – satisfied various options about alternatives to redundancy discussed in number of meetings – found lack of real effort on part of respondent to achieve redeployment and that applicant could have been redeployed to one or other vacant positions – would have been reasonable in circumstances to redeploy applicant – found dismissal was for reasons of redundancy and consultation obligations met however not genuine redundancy due to failure to comply with redeployment requirements – applicant did not seek reinstatement – order for compensation $9570.73 taking into account viability of respondent and long service of applicant. Ferrao v Peter MacCallum Cancer Institute
August 5, 2016
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.22, 384, 394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent submitted applicant was not an employee or protected from unfair dismissal – had not served minimum employment period – Maylands Dental Care was sold by John James Gittins & Accordia Holdings P/L atf Gittins Service Trust (the old employer) to respondent in February 2016, settlement taking place 18 March 2016 – applicant worked for old employer at from September 2012 onwards – on March 2016 she was notified by old employer that her employment would be terminated on 18 March 2016 – confirmed all her entitlements would be paid out – on 8 March 2016 applicant met with respondent and advised she was happy to stay on – text message sent by respondent on 18 March 2016 confirmed hours – applicant believed she had been offered employment – respondent submitted text message sent on 18 March 2016 was not a clear offer of employment but instructions for one week’s work – conceded there was a potential offer – next day respondent recruited another receptionist – applicant dismissed – respondent relied on clause in Sale Agreement – submitted he was notified by old employer that all previous staff were given their required notice and paid entitlements – whether any period of applicant’s employment with old employer counts as service with respondent – whether applicant was a ‘transferring employee’ – Commission found there was a transfer of assets from the old employer to respondent to establish a connection – not satisfied applicant was a transferring employee – application dismissed. Gittins v Amitik P/L atf Sea Otters Trust t/a Maylands Dental Centre
August 5, 2016
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant contended Commission erred in refusing to allow a further period within which the appellant’s unfair dismissal application could be brought, because she did not take into account the ‘main reason’ explaining the delay in lodgement and that the main reason is said to be ‘computer technical difficulties’ – Full Bench was not persuaded by appellant argument – firstly, to describe ‘computer technical difficulties’ as the main reason explaining delay in lodgement of application is to seek to rewrite the way in which the explanation was given by the appellant in her written submission to the Commission of 5 May 2016 – secondly, the published reasons for the decision indicated the Commission took into account the whole of the appellant’s submission of 5 May 2016 – public interest not enlivened – permission to appeal refused. Appeal by Saville against order of Drake SDP of 18 May 2016 [PR580476] Re: Biripi Aboriginal Medical Service t/a Biripi Aboriginal Corporation Medical Centre
August 5, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision of Commission to dismiss application for relief from unfair dismissal – appellant dismissed for serious misconduct arising from respondent’s belief that appellant was stealing from the business – Commission, at first instance, found dismissal consistent with Small Business Fair Dismissal Code – appellant sought permission to appeal – submitted Commissioner incorrectly applied Pinawin regarding whether or not respondent’s belief was held on reasonable grounds, as she was not provided with an opportunity to respond to the allegations – appellant submitted transcript identified a number of errors of fact – respondent submitted matters raised by applicant had already been put to Commission – permission to appeal under s.400 FW Act requires enlivening of public interest and, to extend it involves an error of fact, a significant error of fact – test under s.400 ‘a stringent one’ [Coal & Allied Mining Services] – Full Bench unable to identify any significant errors of fact – no factual errors asserted by applicant were determinative of matters before Commission – public interest not enlivened – legal principles applied by Commission were harmonious with recent Full Bench decisions – permission to appeal refused. Appeal by Cox against decision of Sams DP of 14 April 2016 [[2016] FWC 1861] Re: Dr Elizabeth Varughese; Eve O & G t/a Doctor Elizabeth Varughese
August 5, 2016
An application for approval of the Link Health and Community Limited General Dentists’ Enterprise Agreement 2016 (s.185 – Application for approval of a single-enterprise agreement) is in the hands of Commissioner Lee in his Melbourne chambers.
August 5, 2016
An application for approval of the Country North Community Services Incorporated Enterprise Agreement 2016 (s.185 – Application for approval of a single-enterprise agreement) will be reviewed by Fair Work Commissioner Platt.
August 5, 2016
A culture of threats, abuse and nepotism is uncovered in an extensive workplace review of Ballarat Health Services (BHS), with a union now considering possible class action. Two hundred staff were interviewed as part of the review commissioned by Victorian Health Minister Jill Hennessy in the wake of bullying complaints last year. In its findings, staff reported a culture of favouritism, where workers were yelled or screamed at by supervisors during handover, at team meetings, and in front of patients. Staff complained of having things thrown at them or dumped on their desk, with negative remarks made about race, sexuality and religion. Threats were also made when issues were raised, with staff told their certification was at risk. The report’s author Sarah Rey said the consistency and volume of the complaints was “confronting”, and cited “serious deficiencies in BHS culture and leadership, as well as gaps in BHS training, policies and practice”. New chair of the Ballarat Health Services board Rowena Coutts apologised to staff and said a range of measures would be adopted in response to the report. “I was shocked and deeply concerned about what had occurred,” she said. Ms Coutts said a lot of changes had already been made to the workplace. She confirmed six of the hospital’s nine executives had resigned in the past nine months, starting with the departure of the former chief executive Andrew Rowe in December. This week the hospital received the resignation of its director of mental health, Tamara Irish, which came off the back of resignations from the head of medical services, as well as executives in human resources and finance. The departure of the previous board chair, Andrew Faull, was announced early this year. Ms Coutts would not go into the reasons for the mass resignations. “I think it’s an opportunity, and I am optimistic about the future. We’ve got a newly-cast board, we’ve got a brand new CEO. “We’ve got this wonderfully dedicated and committed workforce, who have continued to deliver good patient care during what sometimes must’ve been very difficult circumstances and I think together there is a real resolve to change things.” The hospital said it would appoint a new complaints manager who would report directly to the hospital’s chief executive and give all former staff access to counselling. But Paul Healy from the Health and Community Services Union said it was not enough. “An apology is nice, and I think it’s a long time coming, but at the end of the day these people’s lives have been destroyed, they’ve lost money, they’ve lost sleep and the affect it’s had on them has just been horrendous,” he said. “It sounds like a class action might be the best way to go forward.”
