GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application for contravention involving dismissal – application lodged 14 days out of time – applicant initially completed unfair dismissal application within statutory time limit – discontinued application upon being notified did not meet minimum employment period – applicant submitted filing incorrect form as reason for delay – Commission’s noted applicant’s contention not supported by Commission’s records – correspondence did not mention applicant using wrong form – general protections application lodged 14 days following correspondence – no explanation for delay – credible reason must be provided for the entire period of delay [Smithers] – can amend application if matter does not involve fundamental alternation in nature of application [Etemi] – distinguished from present facts – applicant precluded from making general protections application until unfair dismissal application discontinued – applicant sought to rely on fact that notice of discontinuation and general protections application filed together within 14 timeframe specified in Commission’s correspondence – filing notice of discontinuance cannot be relied upon to undermine operation of s.366(2) of FW Act – correspondence did not contemplate lodging general protections application – ordinary and natural meaning of ‘exceptional circumstances’ includes combination of factors which, when viewed together, may reasonably be seen as producing situation which is out of the ordinary course, unusual, special or uncommon [Nulty] – Commission not satisfied exceptional circumstances – application dismissed. Webb v Disability Services Australia Limited.
January 18, 2016
TERMINATION OF EMPLOYMENT – extension of time – representative error – s.394 Fair Work Act 2009 – application made 23 days’ late – applicant asserted representative error reason for delay – M N Robinson considered – found applicant’s conduct did not support a finding of representative error – Nulty considered – no exceptional circumstances found – extension not granted – application dismissed – order issued. Lenehan v South West Healthcare t/a South West Healthcare Warrnambool.
January 18, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – small business – alleged poor work performance and attitude – valid reason for dismissal – no warning given – code not followed – almost complete absence of procedural fairness – dismissal unjust and unreasonable – compensation awarded. Brodie v Lakman Fernando Investments P/L/ t/a Burra Medical Centre.
January 18, 2016
TERMINATION OF EMPLOYMENT – other termination proceedings – s.394 Fair Work Act 2009 – continuity of service – dismissal application already determined – dismissal deemed unfair, applicant reinstated – Commission ordered continuity of service – parties sort clarification about effect of order relating to continuity of service – Commission determined applicant to be treated as if he had worked during particular period, continuing to accrue leave entitlements and paid superannuation for income received. Payne v Lower North Shore Community Transport Inc t/a Lower North Shore Community Transport.
January 18, 2016
A man accused of pretending to be a nurse and treating more than 160 people in a remote Queensland indigenous community has been ordered to stand trial. Northern Territory man Nicholas Crawford is facing 115 charges after allegedly using a fake ID to get a job at a clinic in Aurukun, in Cape York, last year. The 31-year-old appeared in the Cairns Magistrate Court via video link today but opted not to enter pleas or say anything about the charges.
January 18, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with dispute – issue related to the operation of clauses regarding rosters and ‘Grey Days’ in the Royal Flying Doctor Service Central Operations Pilots Agreement 2014 [the agreement] – whether employer can change a rostered ‘Grey Day’ where an employee takes personal leave the preceding day – Australasian Meat Industry Employees Union v Golden Cockeral P/L applied – common objective intention determined from the terms of the instrument when read in context – Commission found employer can change a rostered ‘Grey Day’ in the circumstances although unsure what basis the employer had to change this to a personal leave day specifically – basis of employer’s decision not clear given the evidence, Commission not called upon to determine that issue – order not issued but liberty granted to parties to seek order. Field v Royal Flying Doctor Services of Australia Central Operations.
January 18, 2016
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for extension of time for lodgement of application – reasons for decision – application lodged 35 days late – reason for delay not exceptional – applicant did not take any action to dispute dismissal aside from filing application – no prejudice to employer – Commission not required to embark on a detailed consideration of the substantive case [Kornicki] – not satisfied there was exceptional circumstances – application for extension of time refused – jurisdictional objection upheld – application dismissed – order has been previously issued. Fleming v Superior Park P/L t/a Superior Park.
January 18, 2016
TERMINATION OF EMPLOYMENT – remedy – s.394 Fair Work Act 2009 – in initial decision Commission found applicant unfairly dismissed [[2015] FWC 8145] – ordered reinstatement and continuity of employment to be maintained – no order for restoration of lost pay – applicant made application regarding the issue of lost pay in response to liberty granted to parties in initial decision – applicant submitted that payment made on termination compensated him through until 17 November 2015 – not reinstated until 14 December 2015 – submitted order should be made that respondent pay applicant lost pay in the amount of $4203.06 – respondent did not dispute regarding the calculation of lost pay – orders corrected such that respondent ordered to pay $4203.06 as lost pay to applicant within 21 days of this supplementary decision. Payne v Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport.
