JM Golden Care Pty Ltd has a brace of (s.739 – Application to deal with a dispute) to defend before Commissioner Bissett in Court 5 & Conference Room D – level 6 in Melbourne (Anderson/Wardill).
October 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellant employer sought permission to appeal decision granting unfair dismissal remedy for respondent employee – employee granted compensation in lieu of reinstatement at first instance – employer contended evidence at first instance too fragile to support findings made at first instance – no probative evidence to support finding at first instance that witnesses colluded together to make complaint against employee consistent – contended permission to appeal would be in public interest because issues in appeal concerned significant and fundamental appellable error – Full Bench found contents on emails containing complaints not so strikingly similar as to support inference much less conclusion of collusion in their preparation – findings of collusion in context in which findings were made amounted to findings of serious inappropriate conduct in the workplace – such serious findings must have probative evidentiary foundation – Full Bench found it arguable that evidence relied upon by Commission could not properly support serious findings that he made – found collusion findings appeared to be inextricably linked to motives attributed to each of the witnesses to injure employee’s employment with employer so as to raise arguable case of appellable error as to credibility findings made by Commission – Full Bench satisfied arguable case of appellable error in nature [House v The King] – permission to appeal granted – substantive appeal to be heard. Appeal by Thompson Healthcare P/L against decision and order of Sams DP of 28 July 2017 [[2017] FWC 3505] Re: Adamopoulos
October 24, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant alleged termination of employment was unfair – commenced employment with respondent August 2014 until dismissal 31 March 2017 – respondent alleged applicant failed to follow lawful instruction by not completing audit for Department of Prime Minister and Cabinet and taking unauthorised leave on multiple occasions – applicant accepted she failed to follow lawful instruction and took unauthorised leave – applicant provided with written warning on 21 March 2017 and termination of employment letter on 21 March 2017 – applicant alleged employment terminated after emailing fraud concerns to respondent on 29 March 2017 – Commission accepted the dismissal was procedurally flawed however was not sufficient to find in favour of applicant – satisfied respondent had valid reason for termination – dismissal not harsh, unjust or unreasonable – application dismissed. Douglas v Bynoe Community Advancement Cooperative Society Ltd
October 24, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appeal against decision [[2017] FWC 3200] – Commission at first instance found that dismissal was harsh and unjust and ordered reinstatement – permission to appeal granted in relation to grounds concerning Commission’s conclusion that employee was dismissed – Full Bench held where employment has terminated because employer acts on a communication of resignation by the employee it is necessary for an applicant to specify whether they contend they were dismissed under s.386(1)(a) or s.386(1)(b) or both – found that Commission had applied ‘special circumstances’ test relevant to s.386(1)(b) but the employee had advanced a case that she had been dismissed under s.386(1)(b) – found that Commission found a case that had not been argued and an appealable error was made – ordered matter referred to single member for re-hearing. Bupa Aged Care Australia P/L t/a Bupa Aged Care Mosman v Tavassoli
October 24, 2017
TERMINATION OF EMPLOYMENT – extension of time – representative error – s.394 Fair Work Act 2009 – application for unfair dismissal made 40 days late – representative failed to lodge application – whether exceptional circumstances existed [Nulty] – Clark v Ringwood Private Hospital considered – Commission found applicant promptly instructed her representative to lodge her application – representative failed to lodge application – found applicant provided a credible explanation for the entire period of the delay – no submission that granting extension of time prejudiced respondent – Commission satisfied applicant’s circumstances were exceptional – extension of time granted – directions to be issued. Polymiadis v The Carer’s Phone P/L t/a Prompt Care
October 24, 2017
A s.185 (Enterprise agreement) application by Uniting Church Homes T/A Juniper A Uniting Church Community for its Juniper Enterprise Agreement 2017 has been approved by Deputy President Colman in Melbourne on 23 October 2017.
October 24, 2017
The Salvation Army (VIC) Property Trust atf Salvation Army (VIC) Social Work has a (s.739 – Application to deal with a dispute) on its hands (Smart).
October 24, 2017
A s.394 (Application for unfair dismissal remedy) by Ms Liat Sippel against People Care Pty Ltd T/A Earle Haven Retirement Village has survived a late filing. Commissioner Riordan in Brisbane on 23 October 2017 granted Ms Sipper an extra day to comply with the rules.
