A section 394 (Application for unfair dismissal remedy) lodged by Miss Lacella Arnott against Smart Stay Villages T/A Smart Stay Villages has been dismissed by Deputy President Anderson in Adelaide on 10 November 2017, because the FWC ruled that the minimum employment period had not been met and that Miss Arnott proved to be a non responsive applicant.
November 15, 2017
An application by Regis Aged Care Pty Ltd (s.318 – Application for an order relating to instruments covering new employer and transferring employees) has been submitted to the FWC.
November 15, 2017
An application by Health Services Union (s.319 – Application for an order relating to instruments covering new employer and non-transferring employees) has been lodged in the Fair Work Commission.
November 15, 2017
An application by Australian Nursing and Midwifery Federation (s.319 – Application for an order relating to instruments covering new employer and non-transferring employees) is before Commissioner Harper-Greenwell in his Melbourne chambers.
November 15, 2017
The Department of Human Services is facing a s.739 (Application to deal with a dispute) to be heard by Deputy President Kovacic in his ACT chambers (McAndrew).
November 15, 2017
Oakwood Aged Care will defend a s.394 (Application for unfair dismissal remedy) lodged by an ex-staffer (Pumpa).
November 9, 2017
TERMINATION OF EMPLOYMENT – merit – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – applicant found to be an employee in previous jurisdictional decision [[2017] FWC 2476] – employment relationship akin to casual with some expectation of ongoing employment and significant degree of mutual flexibility – applicant could elect to fill physiotherapy sessions not utilised by owner/operator of respondent – applicant discussed taking new job with view to work for new employer fulltime in future – respondent subsequently engaged third employee – applicant’s utilisation rate below that desired of respondent – respondent wrote to applicant advising that his services were no longer required – Commission held letter was a dismissal within meaning of FW Act – respondent accepted applicant protected from unfair dismissal – respondent a small business – no warning of any description that applicant risked being dismissed if there was no improvement – Commission not satisfied dismissal was consistent with Small Business Fair Dismissal Code – given nature of role undertaken by applicant, factors going to utilisation rate were relevant to capacity or conduct and capable of consideration as part of assessment of valid reason – held valid reason for dismissal – some exchanges between parties about factors going to utilisation rate and related concerns – applicant not notified of reason for dismissal as contemplated by FW Act – Commission not satisfied applicant given opportunity to respond – applicant not warned about work performance in manner contemplated by FW Act – respondent a very small business – allowance made for this when considering manner and procedures adopted as part of assessment of overall fairness of dismissal – considered impact of dismissal on applicant given all of the circumstances and in context of nature of this particular employment relationship – objective basis of business decisions leading to dismissal also taken into account – in all the circumstances, including consequences for applicant, omission in procedure was unfair – satisfied dismissal unfair – remedy considered – reinstatement not appropriate – rejected respondent’s submission that dismissal could be treated as a redundancy – decision not to backfill applicant’s hours separate and consequential – Commission not prevented from considering compensation beyond that set out in original application – general approach to assessment of compensation confirmed in McCulloch – considered length of service – on balance of probabilities applicant would have remained employed no more than three months including notice period – applicant made extensive efforts to mitigate losses – termination was from supplementary job therefore reasonable to deduct additional remuneration earned in continuing position rather than total earnings from that position – did not accept applicant’s contention that dismissal meant loss of opportunity to have worked additional part-time hours at another practice – appropriate to make order for compensation – amount derived having regard to projected remuneration loss and additional income taking into account other factors identified by Commission – compensation of $2,974 ordered. Mitchell v Uraidla Physio
November 9, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under the Australian Pharmaceutical Industries Melbourne Distribution Centre Enterprise Agreement 2017 as to whether employees are entitled to a meal allowance if they work more than one hour of overtime – considered ordinary meaning of words of clause having regard to context and evident purpose of relevant terms – consideration of the term ‘return’ – dispute determined – found that meal allowance not payable to employees who can reasonably return home for a meal at any time during a period of work that includes ordinary hours, meal and/or rest breaks and more than one hour of overtime. National Union of Workers v Australian Pharmaceutical Industries Ltd t/a Australian Pharmaceutical Industries (API)
