Claremont and South Port Aged Care Ltd is battling a s.372 (Application to deal with other contravention disputes) before Fair Work Commissioner Harper-Greenwell in Melbourne.
April 27, 2016
Calvary Health Care Adelaide Limited is facing a s.394 (Application for unfair dismissal remedy) lodged by staffer Hansen.
April 27, 2016
TERMINATION OF EMPLOYMENT – misconduct – social media – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was a frontline Centrelink officer – dismissed after over 21 years’ service for misconduct due to comments made from June 2012 to April 2015 on social media sites Whirlpool and Sportal – Commission noted assessment of whether valid reason for dismissal involved consideration of nature and gravity of conduct having regard to requirements of Public Service Act 1999 (PS Act) and the Department’s policies – will not usually be a valid reason for dismissal for ‘out of hours’ conduct unless conduct falls within circumstances described in Rose v Telstra – however, scope of employer control over private conduct may be greater regarding public servants [McManus] – Commission proceeded on basis that if conduct a non-trivial breach of PS Act or any policy reasonably giving effect to it, then may constitute valid reason for dismissal – Commission found valid reasons for dismissal based on references to Department’s clients being ‘spastics and junkies’ among other terms; comments to effect that large proportion of Newstart exemptions sought on basis of depression not genuine and statements that Department’s processing times ‘utterly disgraceful’, such that applicant ’embarrassed to work there’ – Commission noted various mitigating factors favouring conclusion that dismissal harsh – dismissal disproportionate to gravity of misconduct, given conduct bore no relationship to actual work performance, caused no actual detriment to Department, was engaged in impulsively and comprised a small number of comments over period of years – the length and quality of applicant’s service and his recognition of his conduct’s unacceptability indicated that the conduct would not be repeated – many of the grounds relied upon for dismissal not justified – particularly harsh personal consequences of dismissal – Commission held dismissal harsh, despite valid reasons – applicant unfairly dismissed – reinstatement practicable and appropriate – appropriate to make an order maintaining continuity of employment and period of continuous service – no order for lost remuneration as conduct worthy of significant disciplinary response – financial loss suffered a suitable sanction for conduct. Starr v Department of Human Services
April 27, 2016
GENERAL PROTECTIONS – workplace rights – arbitration – ss.365, 369 Fair Work Act 2009 – application to deal with a general protections dismissal dispute by consent arbitration – applicant employed as Bequest Officer – applicant’s manager alleged he had engaged in inappropriate behaviour at a meeting with her in November 2014 – alleged intimidation – applicant issued with formal written warning in December 2014 – manager made further complaints about his conduct at meetings in December 2014 and January 2015 – in February 2015 respondent issued a ‘final warning’ regarding applicant’s conduct in workplace – applicant filed an ‘application for an order to stop bullying’ against respondent and manager in Commission – in April 2015 a consensus developed that applicant could not return to work reporting to the manager – applicant offered a temporary/trial role for six weeks at its State Support Office – temporary role extended by three weeks – in June 2015 respondent put three options to applicant in the event that the temporary role was not extended – further redeployment, retrenchment, or discussions ‘for a mutual separation arrangement’ – internal investigation into bullying claim by independent investigator not found proven – in August 2015 attempts to find a permanent position for applicant redeployment failed – applicant dismissed – applicant claimed respondent took adverse action in dismissing him – reasons given included his complaint of workplace harassment and bullying against his manager, and his application for an anti-bullying order to the Commission – Commission found applicant exercised a workplace right by commencing his anti-bullying application in the Commission and when he complained to respondent about the treatment he was experiencing from his manager – found decision to dismiss applicant was ‘adverse action’ within meaning of s.342(1) of FW Act – satisfied that because applicant could not perform the inherent requirements of his job, and after nearly six months of a search for an alternative position, the decision to dismiss the applicant was open to the respondent – adverse action not taken because of a prohibited reason, or reasons which included that reason – application dismissed. Lisha v St Vincent de Paul Society NSW
April 27, 2016
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – ss.394, 587 Fair Work Act 2009 – application for relief from unfair dismissal remedy – applicant dismissed following three allegations of harassment – no findings made about alleged misconduct – Conciliator recorded matter settled at conciliation conference – recorded that parties agreed to waive cooling off period – applicant contests recorded outcome – notice of discontinuance not filed – application to relist matter for arbitration – whether agreement reached in conciliation – failure to read out, during conciliation, precise wording of terms of agreement reached between parties does not mean concluded agreement was not reached [Zoiti-Licastro] – parties reached agreement on substantial matters and left conciliation with intention of drafting and executing formal document [Curtis] – dismissal application would have no reasonable prospect of success – application dismissed – order to be issued, subject to respondent filing of statutory declaration that Terms of Settlement as agreed have been and will continue to be complied with by respondent. Ropciuc v Australian Red Cross
April 27, 2016
ANTI-BULLYING – likely to continue – s.789FC Fair Work Act 2009 – application for an order to stop bullying – during preliminary conference applicant informed the Commission that she has not been at work since before Christmas 2015, and could not return to work at the respondent in the future, in light of the way she says she has been treated in the past – agreed position of parties that the applicant did not wish to, and would not, return to work at the respondent – respondent submitted that applicant ‘does not intend to return to the workplace’ therefore respondent ‘of the opinion that our employer/employee relationship has ended’ – further submitted that because the applicant was no longer employed the Commission should exercise its discretion under s.587(1)(c) of FW Act to dismiss the application – in light of the agreed position of the parties the Commission found there was no risk the applicant would continue to be bullied at work by any person, or group of persons – application dismissed. Saville v Biripi Aboriginal Corporation Medical Centre and Ors
April 26, 2016
Ms Elise Prowse is another today who has failed to convince the Fair Work Commission to be allowed a time extension to have a crack at Central Coast Post School Options Inc T/A Options Disability Support over her dismissal.
April 26, 2016
The Fair Work Commission has decided to ratify the Helping Hand Aged Care Inc Health Professional Collective Workplace Agreement 2016.
