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
July 29, 2016
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant sought remedy for unfair dismissal – applicant filed late submissions and failed to attend hearing – evidence filed admitted into evidence though not present to swear to correctness of statement or be cross-examined – respondent submitted applicant suspended without pay after being determined unfit for work – tested positive for methamphetamine and amphetamine – substances found in medical report not consistent with medications applicant declared at time of providing urine sample – respondent provided applicant with opportunity to attend drug and alcohol counselling service in light of positive drug test – applicant invited to attend meeting with respondent with support person however did not attend with anyone – Commission found valid reason for dismissal – applicant provided notification of reason and opportunity to respond – dismissal of applicant in all circumstances neither harsh, unjust nor unreasonable – applicant not unfairly dismissed – application dismissed. Tadrous v St John of God Health Care Inc
July 28, 2016
A former Geelong aged care worker with a gambling addiction stole and used an elderly resident’s bank card. Nicole McKinnis, 46, pleaded guilty in Geelong Magistrates’ Court on Wednesday to a charge of theft while she had been an aged care employee at a Belmont facility. Police prosecutor Leading Senior Constable Alana Groves Sen-Constable Groves said , McKinnis had stolen a resident’s bank card on February 9 and, over a period of hours, used it to buy groceries, fuel and make purchases from the Tobacco Station, totalling just under $200. “McKinnis was arrested on April 25 and, during a record of interview, told police she stole the card to buy food and because she had alcohol and gambling addictions,” Sen-Constable Groves said. Sarah Wood, for McKinnis, said her client had a gambling addiction and used to get carried away at the pokies. She said McKinnis had not gambled since being caught, that she had lost her job as a result and could no longer afford to gamble. McKinnis was convicted and placed on a 12-month Community Corrections Order with 100 hours unpaid community work.
