The NSW Workers Compensation Commission has put HammondCare firmly on the hook for an injury to a laundry worker. HammondCare had launched an appeal against a previous finding of liability. Whilst it succeeded in having responsibility for a secondary psychological injury set aside, its compensatory obligations are not set in stone. Zbigniew Calka, who was born in Poland in 1957 came to Australia in 2006 and started work for HammondCare in its commercial laundry in 2010. His duties involved, amongst other things, loading and unloading industrial washing machines. Mr Claka suffered an abdominal and groin injury on 7 September 2012. He moved heavy wet laundry from one washing machine, placed it on a trolley, and loaded it into another machine. He then went to the “folding room” and began folding towels. He dropped a towel on the floor. While straightening, after picking up the towel, he felt a very sharp pain in the right side of his groin, which spread to the left side over the next hour. HammondCare’s insurer initially accepted the claim and paid voluntary compensation until 22 February 2013. It formally disputed liability in a s 74 notice dated 5 March 2013. Regrettably, as is often the case with s 74 notices prepared by insurers, that notice is virtually incomprehensible, said the NSW Workers Compensation Commission.
February 1, 2016
Termination of employment – misconduct – s.394 Fair Work Act 2009 – unfair dismissal application – applicant employed as hospitality worker dismissed for serious misconduct, namely theft and fraud related to respondent’s cash takings – applicant arrested and police investigation conducted – at hearing respondent submitted that applicant’s conduct in voiding transactions was serious misconduct – for theft and fraud allegations to be a valid reason for dismissal, the Commission must find on balance of probabilities that the alleged conduct occurred – Commission not satisfied applicant guilty of theft or fraud – no direct evidence applicant received any monies taken from business – not satisfied applicant intended to facilitate for anyone else to steal from respondent – in relation to voiding transactions, found not reasonable for applicant to fail to accurately record sales – not satisfied conduct justified because it was done on manager’s instructions – conduct enabled respondent to be deceived – found valid reason for dismissal – dismissal unfair due to failure to provide applicant with opportunity to respond to allegations – satisfied applicant unfairly dismissed – applicant not seeking reinstatement – compensation appropriate – 10% deduction for misconduct – compensation of $936.51 and $88.97 superannuation ordered. Sika v Khaled El-Sheikh P/L atf the El-Sheikh Practice Trust t/a Tristar Medical Group.
February 1, 2016
Termination of employment – small business employer – minimum employment period – ss.383, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected that minimum employment period not met on the basis respondent was a small business – applicant alleged further employees were employed by respondent, that there were three medical centres within the group – Commission accepted medical centres were associated entities – found doctors not employees – respondent a small business within the meaning of s.23 of FW Act – applicant had not served 12 months service – not protected from unfair dismissal – application dismissed. Heaney v Ocean Reef Medical Centre.
January 29, 2016
Termination of employment – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent alleged applicant failed to report deteriorating health of client she was responsible for – accepted cash payments in private arrangement in breach of policies and procedures – refused to attend meetings in relation to conduct and performance – examination of policies determined to apply to applicant’s employment – respondent took reasonable steps to acquaint applicant with requirements and potential consequences – valid reason generally considered to be whether sound, defensible or well-founded reason for dismissal – where policy both lawful and reasonable and employer has made clear to employees that breach likely to result in termination, then employee who knowingly breaches policy will have difficulty making out argument no valid reason [Kolodjashnij] – Commission found in all circumstances valid reasons for dismissal – where valid reason found for termination amounting to serious misconduct significant mitigating factors need to be present for conclusion of harshness to be open [Parmalat] – Commission did not consider mitigating factors present – found dismissal not unfair – application dismissed. Lawrence v Calvary Home Care Services Ltd t/a Calvary Community Care
January 29, 2016
An application by Mater Health Services (s.240 – application to deal with a bargaining dispute) will be heard by Fair Work Commissioner Simpson in Hearing Room 2 in Brisbane.
January 29, 2016
The Uniting Church in Australia Property Trust (Q) – St Stephens Hospital Maryborough and Hervey Bay is embroiled in a s.739 (application to deal with a dispute) firefight with the Australian Workers’ Union.
January 29, 2016
Allity Management Services Pty Ltd is on the receiving end of a s.739 (application to deal with a dispute) from the ANF.
January 29, 2016
Termination of employment – misconduct – s.394 Fair Work Act 2009 – unfair dismissal application – applicant employed as Clinical Care Coordination and nurse – applicant dismissed with five weeks pay in lieu of notice – respondent stated dismissal based on the numerous written and verbal complaints about applicant manipulating and bullying staff members – applicant received multiple formal warnings – over a long period applicant either unwilling or unable to change in order to ensure the manner in which she interacts with other employees was acceptable – most recent instances demonstrated this pattern of unacceptable interactions was quite likely to continue – Commission found dismissal not harsh, unjust or unreasonable – application dismissed. Anderson v Baptistcare Inc t/a Baptistcare
