FWC Bulletin

18 March 2021 Volume 10/21 with selected Decision Summaries for the week ending Friday, 12 March 2021.

Contents

New behavioural insights research report published

Unfair dismissals benchbook updated

Decisions of the Fair Work Commission

Subscription Options

Websites of Interest

Fair Work Commission Addresses

New behavioural insights research report published

The Fair Work Commission has published the outcomes of its latest behavioural insights project.

The outcomes demonstrate how low-cost behavioural interventions can reduce complexity for parties and improve their compliance with legal processes.

Download the report: Improving compliance and timeliness of employers responding to an unfair dismissal application (PDF)

Behavioural insights is a key part of the Commission's ongoing strategy to reduce regulatory burden and increase access to justice for the Australian community.

For any questions, please email communications@fwc.gov.au.

Unfair dismissals benchbook updated

The Fair Work Commission has published an updated version of the Unfair dismissals benchbook.

The updated version reflects recent case law and rules changes, including information on:

The benchbook contains plain English summaries of the key principles of unfair dismissal case law and how these have been applied in Commission decisions. It is designed to provide information to parties to assist in the preparation of material for matters before the Commission.

The Unfair dismissals benchbook is designed to be read online and can be accessed on the Commission’s website. A printable version of the benchbook is also available for download.

Decisions of the Fair Work Commission

The summaries of decisions contained in this Bulletin are not a substitute for the published reasons for the Commission's decisions nor are they to be used in any later consideration of the Commission's reasons.

Summaries of selected decisions signed and filed during the week ending Friday, 12 March 2021.

 

1

GENERAL PROTECTIONS – dismissal disputes.365 Fair Work Act 2009 – applicant employed as Accountant since 2013 and stated dismissal took effect on 27 August 2020 – respondents made jurisdictional objection that there was no dismissal – second and third respondents are owners and managers of the first respondent – applicant and second respondent commenced a relationship in secret in 2014 – applicant ended relationship in 2019 and alleged second respondent commenced communicating with her inappropriately and engaged in bullying and harassment – applicant made two verbal complaints to third respondent in 2020 – independent investigation report found events occurred but did not constitute unlawful sexual harassment or bullying – applicant made further complaints about ongoing conduct – applicant held meeting with third respondent and advised they should negotiate a mutually agreed separation or she would commence proceedings for unlawful victimisation resulting from complaints – applicant subsequently provided a medical certificate declaring her unfit for work – applicant then found her work access had been disabled – third respondent emailed applicant stating that meeting had been taken to be the commencement of four week notice period after her resignation – applicant advised it was 'patently untrue' that she had resigned – respondent submitted that by applicant indicating she wanted to 'part ways' she in effect brought an end to the employment relationship – applicant submitted this effectively would mean that an employee who informs their employer about unhappiness with their employment can be regarded as terminating their employment – Commission found that it was abundantly clear that applicant had not resigned – found that even in the alternative the circumstances would constitute a termination at the initiative of the employer due to the factual background of the matter including the report and the applicant's complaints – found that termination occurred on 27 August when applicant's access was blocked and emails advising end of employment were sent – jurisdictional objection dismissed.

Gregor v Kabillion P/L t/a The Firm and Ors

C2020/7057

[2021] FWC 1238

Cross DP

Sydney

8 March 2021

 

2

TERMINATION OF EMPLOYMENT – misconductCOVID-19s.394 Fair Work Act 2009 – application for an unfair dismissal – applicant employed as casual disability support worker – contract of employment contained terms and conditions which required the applicant to adhere to certain health and safety policies – applicant summarily dismissed, by reason of serious misconduct, for breaching the respondent's temperature check procedure when she recorded a high temperature reading but did not take the necessary steps and instead commenced work – temperature check procedure was introduced to guide temperature monitoring at all sites 'to prevent and minimise spread of the virus COVID-19' – Commission found applicant engaged in some or all of the relevant conduct – applicant failed to follow the procedure and instruction – Commission satisfied on the evidence that the applicant's conduct amounted to a deliberate, knowing and serious breach of the conditions of her employment – satisfied there was a sound, defensible and well-founded reason for dismissal – Commission found valid reason for dismissal – satisfied the dismissal was not harsh, unjust or unreasonable – applicant not unfairly dismissed – application dismissed.

Fesshatsyen v Mambourin Enterprises Ltd

U2020/9962

[2021] FWC 1244

Mansini DP

Melbourne

9 March 2021

 

3

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for unfair dismissal – applicant was employed as Head Chef – respondent operates a golf club with bar and restaurant facilities in the New South Wales country town of Mudgee – applicant dismissed due to serious misconduct – the respondent claimed the serious misconduct was a summation of three separate incidents – although the applicant disputed all three incidents, the Commission found these incidents did occur and resulted in serious misconduct – on 10 February 2020 the respondent sent the applicant a show cause letter via email in which they requested the applicant respond in writing within 24 hours – the applicant did not receive this email in their home email inbox and therefore could not show cause as to why their employment should not be terminated – due to this, the Commission found the applicant was not given a proper opportunity to respond to the show cause notice of 10 February 2020 – although the Commission found the dismissal valid, it found significant procedural errors which denied the applicant natural justice – the Commission also found the 24 hour timeframe the respondent placed upon the applicant to provide a written response was unreasonable and oppressive – found these significant procedural defects evident in the determination and implementation of the dismissal rendered the dismissal harsh and unreasonable and therefore unfair – after consideration, the Commission ordered the gross amount of $500.00 in compensation.

Rawson v Mudgee Golf Club Ltd

U2020/2622

[2021] FWC 1171

Cambridge C

Sydney

10 March 2021

 

4

TERMINATION OF EMPLOYMENT – genuine redundancylabour hiress.389, 394 Fair Work Act 2009 – six unfair dismissal applications – applicants employed as mineworkers with labour hire employer – applicants made redundant in June 2020 as a result of COVID-related downturn – client of labour hire employer engaged 90 experienced coalminers to work on supplementary labour contract at same site around the same time applicants were made redundant – four qualified applicants were not redeployed into supplementary labour contract on first round of recruitment – applicants submitted redundancy not genuine as the respondent still required the work to be performed, the respondent did not consult properly, and the respondent did not take reasonable steps to redeploy the applicants – respondent submitted that once client no longer required their employees, the roles were no longer required to be performed by anyone – respondent submitted no requirement to consult as redundancy of 23 employees out of total workforce of 9,300 not a major change – respondent submitted in the alternative that consultation requirements were met through correspondence and telephone conversations with applicants – Commission satisfied applicants' jobs were not the same job as those required by respondent's client and therefore applicants' jobs not required to be performed by anyone – Commission not satisfied that telephone call and pro forma letter constituted consultation – Commission found redundancy of 23 employees out of 85 employed at site was major change enlivening consultation obligations – qualified employees not redeployed into supplementary labour contract forced to compete for employment in situation where s.389(2) of the FW Act does not require competition – respondent therefore did not take reasonable steps to redeploy qualified applicants – termination not cases of genuine redundancy – no valid reason for dismissal – dismissals harsh and unjust – parties requested opportunity to provide further submissions on remedy – matter to be relisted for conference on 30 March 2021.

Botiki and Ors v WorkPac Mining P/L

U2020/8709 and Ors

[2021] FWC 508

Riordan C

Sydney

8 March 2021

 

5

ANTI-BULLYING – bullied at works.789FC Fair Work Act 2009 – application for an order to stop bullying – applicant employed as Automotive Parts Interpreter (API) – original application lodged 22 January 2020 alleged bullying by two co-workers – in-person conference held 9 March 2020 – respondent advised that internal investigation of conduct raised in original application was being undertaken – respondent's internal report following investigation was provided to applicant on 1 May 2020 – report from only one of four allegations was substantiated and has since been resolved – telephone conference occurred on 16 June 2020 – was confirmed that both Persons Named in original application has ceased employment with respondent – amended application lodged on 23 June 2020 citing other Persons Named against whom bullying was alleged – in-person hearing conducted 18 and 19 August 2020 and by telephone 25 August 2020 – correspondence received from respondent that one of the persons named had ceased employment – Commission found it clear that an order to stop bullying could not be found against that named person – applicant provided written statement and oral evidence in proceeding – applicant put forward a number of allegations including underpayment of overtime; non-compliance with outcome reached in previous anti-bullying application; conversation inappropriately recorded by staff member; incorrect deduction of sick leave entitlements; misuse of work vehicle and inappropriate comments on an invoice – applicant had sought a number of orders be made by the Commission – Commission ordered evidence be provided by Mater Eye Clinic in regards to allegation of improper deduction of sick leave – respondent provided evidence by way of witness statements from named persons and statements from other relevant staff members – Commission found that a recording of applicant was made by another staff member who has since ceased employment with respondent therefore no real change to work environment – Commission found inappropriate comment on invoice unsubstantiated and agreed with finding in respondent's internal investigation report regarding this matter – Commission found applicant had provided false evidence to support work attendance – hospital records show applicant attending hospital appointments during work hours – Commission found incident in regards to misuse of work vehicle inadvertent, was a single event and did not constitute bullying – found applicant not entitled to overtime and this was not an outcome negotiated during previous anti-bullying application – Commission also considered other incidental allegations raised by both applicant and respondent during proceedings – considered principles from Mac – Commission not satisfied that any person had behaved unreasonably towards applicant and that any behaviours has been repeatedly unreasonable – evidence had not established to Commission's satisfaction that Persons Named had repeatedly behaved unreasonably towards applicant – not satisfied that applicant has been bullied at work – no power to make the orders sought – application dismissed.

McCullough v GPC Asia Pacific P/L t/a Repco Australia and Ors

AB2020/44

[2021] FWC 1288

Hunt C

Brisbane

10 March 2021

Subscription Options

You can subscribe to a range of updates about decisions, award modernisation, the annual wage review, events and engagement and other Fair Work Commission work and activities on the Fair Work Commission’s website. These include:

Websites of Interest

Attorney-General’s Department - www.ag.gov.au/industrial-relations - provides general information about the Department and its Ministers, including their media releases.

AUSTLII - www.austlii.edu.au/ - a legal site including legislation, treaties and decisions of courts and tribunals.

Australian Building and Construction Commission www.abcc.gov.au/ - regulates workplace relations laws in the building and construction industry through education, advice and compliance activities.

Australian Government - enables search of all federal government websites - www.australia.gov.au/.

Federal Register of Legislation - www.legislation.gov.au/ - legislative repository containing Commonwealth primary legislation as well as other ancillary documents and information, and the Federal Register of Legislative Instruments (formerly ComLaw).

Fair Work Act 2009 - www.legislation.gov.au/Series/C2009A00028.

Fair Work (Registered Organisations) Act 2009 - www.legislation.gov.au/Series/C2004A03679.

Fair Work Commission - www.fwc.gov.au/ - includes hearing lists, rules, forms, major decisions, termination of employment information and student information.

Fair Work Ombudsman - www.fairwork.gov.au/ - provides information and advice to help you understand your workplace rights and responsibilities (including pay and conditions) in the national workplace relations system.

Federal Circuit Court of Australia - www.federalcircuitcourt.gov.au/.

Federal Court of Australia - www.fedcourt.gov.au/.

High Court of Australia - www.hcourt.gov.au/.

Industrial Relations Commission of New South Wales - www.irc.justice.nsw.gov.au/.

Industrial Relations Victoria - www.vic.gov.au/industrial-relations-victoria.

International Labour Organization - www.ilo.org/global/lang--en/index.htm - provides technical assistance primarily in the fields of vocational training and vocational rehabilitation, employment policy, labour administration, labour law and industrial relations, working conditions, management development, co-operatives, social security, labour statistics and occupational health and safety.

Queensland Industrial Relations Commission - www.qirc.qld.gov.au/index.htm.

South Australian Employment Tribunal - www.saet.sa.gov.au/.

Tasmanian Industrial Commission - www.tic.tas.gov.au/.

Western Australian Industrial Relations Commission - www.wairc.wa.gov.au/.

Workplace Relations Act 1996 - www.legislation.gov.au/Details/C2009C00075

Fair Work Commission Addresses

 

Australian Capital Territory
Level 3, 14 Moore Street
Canberra 2600
GPO Box 539
Canberra City 2601
Tel: 1300 799 675
Fax: (02) 6247 9774
Email: canberra@fwc.gov.au

New South Wales

Sydney

Level 10, Terrace Tower
80 William Street
East Sydney 2011
Tel: 1300 799 675
Fax: (02) 9380 6990
Email: sydney@fwc.gov.au



Newcastle

Level 3, 237 Wharf Road,
Newcastle, 2300
PO Box 805,
Newcastle, 2300

 

 

 

Northern Territory
10th Floor, Northern Territory House
22 Mitchell Street
Darwin 0800
GPO Box 969
Darwin 0801
Tel: 1300 799 675
Fax: (08) 8936 2820
Email: darwin@fwc.gov.au

Queensland
Level 14, Central Plaza Two
66 Eagle Street
Brisbane 4000
GPO Box 5713
Brisbane 4001
Tel: 1300 799 675
Fax: (07) 3000 0388
Email: brisbane@fwc.gov.au

South Australia
Level 6, Riverside Centre
North Terrace
Adelaide 5000
PO Box 8072
Station Arcade 5000
Tel: 1300 799 675
Fax: (08) 8308 9864
Email: adelaide@fwc.gov.au

 

 

 

Tasmania
1st Floor, Commonwealth Law Courts
39-41 Davey Street
Hobart 7000
GPO Box 1232
Hobart 7001
Tel: 1300 799 675
Fax: (03) 6214 0202
Email: hobart@fwc.gov.au

Victoria
Level 4, 11 Exhibition Street
Melbourne 3000
PO Box 1994
Melbourne 3001
Tel: 1300 799 675
Fax: (03) 9655 0401
Email: melbourne@fwc.gov.au

Western Australia
Floor 16,
111 St Georges Terrace
Perth 6000
GPO Box X2206
Perth 6001
Tel: 1300 799 675
Fax: (08) 9481 0904
Email: perth@fwc.gov.au

 

Out of hours applications

For urgent industrial action applications outside business hours, please refer to our Commission offices page for emergency contact details.

The address of the Fair Work Commission home page is: www.fwc.gov.au/
 

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Commonwealth of Australia 2021