CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – appeal – at first instance Commission found respondent was unfairly dismissed and ordered to pay compensation – appellant sought a stay order to pay compensation within 28 days – dispute concerned identity of employer – Commission found appellant was employer – Commission must be satisfied that party has arguable case or some prospect of success in order to issue a stay – grounds of appeal included that Commission had no jurisdiction as appellant did not employ respondent – Commission excluded appellant from hearing while respondent gave evidence in chief about employer – on appeal Commission satisfied first appellant had arguable case and was denied natural justice at first hearing – first appellant not provided with opportunity to cross-examine respondent at hearing – offered opportunity to cross-examine at second hearing – satisfied arguable case of denial of natural justice that permission of appeal may be granted – not satisfied balance of convenience favours granting a stay – no evidence given at hearing that payment of amount of monies would have any impact on business or financial status of business – decision to stay involves consideration of both limbs of test – arguable case denial of natural justice but also that any denial overcome by opportunity to cross-examine at second hearing – not satisfied stay warranted – application for stay dismissed. Appeal by Steric Solutions P/L and Anor against decision and order of Johns C of 29 September 2017 [[2017] FWC 5068] Re: Trialonas
November 16, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a theatre nurse – dismissed for serious misconduct for refusing to comply with a lawful and reasonable direction, inability to perform inherent requirements of job, for using inappropriate language in a conversion with HR, and for subsequently lying about the use of inappropriate language – Commission held direction given and maintained was not reasonable, and therefore refusal by applicant to comply with direction not a valid reason for dismissal – Commission not satisfied applicant unfit or unable to perform inherent requirements of role – satisfied applicant’s use of inappropriate language occurred and that it was conduct serious enough to provide a valid reason for dismissal – further satisfied that dishonest denial of the use of inappropriate language also provided a valid reason for dismissal – Commission not satisfied dismissal a disproportionate response to applicant’s conduct – dismissal not unfair – application dismissed. Naicker v Epworth Foundation
November 16, 2017
GENERAL PROTECTIONS – amendment of application – ss.365, 586 Fair Work Act 2009 – applicant’s employment was terminated while on worker’s compensation – prepared Form F2 application for unfair dismal, but ultimately lodged Form F8A general protections application – applicant was unaware of the legal difference between the claims – during conciliation, issue arose regarding the nature of applicant’s claim – applicant applied to amend application under s.586 of FW Act on the basis of honest mistake – Commission cannot substitute application that fundamentally changes the original claim – Ioannou and Hambridge considered – Commission considered applicant’s intention and substance of claim – satisfied that applicant sought relief on the basis of being terminated while on worker’s compensation – application under s.586 dismissed – applicant required to withdraw original claim and file for unfair dismissal outside 21 day time limit. Longbottom v Oolong Aboriginal Corporation
November 15, 2017
Health Services Union and Scope (Vic) have a s.739 (Application to deal with a dispute) set for decision before Commissioner Harper-Greenwell in Court 5 & Conference Room D – Level 6 in Melbourne.
November 15, 2017
A s.185 (Enterprise agreement) application by Armest Pty Ltd T/A Miles Witt Partnership for Bethany Christian Care – Nurses Enterprise Agreement 2017 has been ratified by Commissioner Wilson.
November 15, 2017
The Uniting Church in Australia Property Trust (Q) is facing a (s.604 – Appeal of decisions) by an ex-employee (Kolobius) before Vice President Hatcher in his Sydney chambers.
November 15, 2017
Tracey Phillips has had her s.365 application against The Salvation Army (QLD) Property Trust atf The Social Work T/A The Salvation Army knocked back by Deputy President Asbury in Brisbane on 8 November 2017.
November 15, 2017
Cohealth Limited is defending a s.372 (Application to deal with other contravention disputes) before Commissioner Harper-Greenwell in Melbourne (Hareko-Samios).
