An anonymous claimant has persuaded the Tasmanian Workers Rehabilitation and Compensation Tribunal that the Dementia and Alzheimer’s Association (TAS) Inc. must pay one of its part time counsellors any claim for panadol and heat packs. The original injury was allegedly triggered by “excessive computer work over a six week period”.
February 1, 2016
Mr Claus-Dieter Hengst has failed in his claim for unfair dismissal. Mr Hengst was a Disability Support Worker and Workplace Health and Safety Advisor for Town & Country Community Options. The employer provides services on a not-for-profit basis to urban and rural communities for people with disabilities such as Down syndrome, cerebral palsy and intellectual disabilities. Mr Hengst had performed his duties (without formal incident) for 18 years, having commenced employment in 1997. On 22 September 2015, Mr Hengst explained that he was interviewing a co-worker, Mr Terry Mears, in relation to an OHS issue. In the course of the meeting, Mr Hengst and Mr Mears discussed an incident which occurred earlier that morning in which Mr Mears had struck a kangaroo in his vehicle. During the closing conversation Mr Hengst enquired of Mr Mears if he required any counselling over the incident. Mr Mears replied, “No”. Mr Mears then added in a jocular manner: “I wasn’t overly concerned for the kangaroo and it’s not like I knew him personally.” With that light-hearted tone allegedly established, Mr Hengst went on to state – in what he seemingly considered to be a jocular fashion in the immediate context: “So you’re ok then? You’re not going to lose the plot and go home and rape your daughter or anything like that?” Mr Mears was said to have laughingly responded to the suggestion made to him by Mr Hengst . The comment and the resulting laughter were overheard by another member of the employer’s staff, Ms Elizabeth Fazakerley. Ms Fazakerley worked in the same office with Mr Hengst and was seated some 2 metres from Mr Hengst . Ms Fazakerley claimed that upon hearing the comment by Mr Hengst she “sharply recoiled” and said: “Claus! That is not appropriate!” When pressed under cross examination, Mr Hengst had no recollection as to whether Ms Fazakerley had so interjected. Ms Fazakerley claimed further that Mr Hengst had “caught her eye” before making the comment in question and had then turned to see her reaction as he said it. Mr Hengst denied having done so.
February 1, 2016
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.
