17 March 2022 Volume 10/22 with selected Decision Summaries for the week ending Friday, 11 March 2022.
Decisions of the Fair Work Commission
Fair Work Commission Addresses
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, 11 March 2022.
1 |
TERMINATION OF EMPLOYMENT – remedy – reinstatement – ss.391, 394 Fair Work Act 2009 – unfair dismissal application – applicant was an Associate Professor – he was dismissed in 2020 after an investigation found that in 2017, he had engaged in serious misconduct, namely sexually intimate activities with a student (First Student) during an on-campus academic retreat attended by academics and students – Commission permitted respondent to call evidence from another student (Second Student) on the basis it may be relevant to the dismissal and the determination of an appropriate remedy – the matters raised by the Second Student were not a reason for applicant's dismissal because they were not known to respondent at the time of dismissal – the Second Student met applicant while scuba diving at respondent's scuba club – Second Student was in a different faculty – Second Student went on a canyoning trip with the applicant and another male professor in 2016 – the trip was not organised by respondent's sports club – during the trip, applicant and the other professor went swimming naked – after the trip, Second Student did housesitting for applicant and his family – applicant subsequently expressed a romantic interest in the Second Student, including making a comment via Facebook – Second Student later told applicant that his feelings were not reciprocated – Second Student made a complaint to respondent about applicant after reading article in respondent's newspaper about the Commission proceedings involving his dismissal – Commission concluded that none of applicant's interactions with Second Student interfered with his obligations and duties to respondent – Commission found that the applicant's conduct with the First Student was consensual – applicant had not breached any of the respondent's policies – there was no prohibition on staff engaging in a consensual relationship with a student – respondent's Conflict Policy expressly contemplated a 'close personal relationship' between a staff member and a student – Conflict Policy stated that when a close personal relationship exists, it should be notified to a supervisor, and the staff member should not be involved in supervision or assessment of the student – applicant did not formally notify anyone of his interaction with the First Student and Commission concluded he was not required to do so because the interaction lasted no more than 30 minutes and so could not be characterised as a close personal relationship – Commission found that even if applicant was required to notify a supervisor, failure to notify was not a breach of the Conflict Policy that could constitute a valid reason for dismissal, particularly where applicant was no longer 'in a practical sense' the First Student's supervisor at the time of the interaction, except in so far as he was one of the organisers of the retreat – Commission found that at the time of the interaction, applicant had finalised and submitted the First Student's grades and did not attempt to change those grades after the interaction – found no breach of Code of Conduct, for largely the same reasons that there was no breach of the Conflict Policy – found no breach of the Harassment Policy because there was no evidence that the interaction was unwelcome – Commission rejected respondent's argument that the dismissal was justified regardless of any policy breach because applicant engaged in conduct that was 'plainly inappropriate and antithetical to his role as a senior academic' – Commission found the interaction was not premeditated and there was no evidence that applicant exploited his position – while applicant's conduct demonstrated poor judgment which might have resulted in disciplinary action, it was not a valid reason for dismissal – Commission was satisfied that applicant would not repeat his conduct and that if he did, he ought to expect to be dismissed as a result – concluded that applicant's dismissal was harsh and therefore unfair – reinstatement was the appropriate remedy – reinstatement is the primary remedy for an unfair dismissal – no evidence that applicant would pose a risk to others' safety in the workplace – appropriate to make an order to maintain applicant's continuity of employment – even though applicant's conduct did not warrant dismissal, it demonstrated a lack of judgment and should not be condoned – Commission decided to order respondent to pay lost remuneration in the amount of 6 months' remuneration – orders for reinstatement with continuity of employment and lost remuneration to be issued separately | |||
Morrison v Australian National University | ||||
U2020/3161 |
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Dean DP |
Canberra |
21 February 2022 | ||
2 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was a stevedore – South Australian Government issued public health direction that prohibited people from boarding commercial vessels unless they were vaccinated against COVID-19 or had a valid medical exemption – applicant refused to be vaccinated – applicant argued vaccine requirement not lawful, vaccine not safe and alternative land-based duties available for the duration of the public health direction – respondent gave unvaccinated stevedores without valid medical exemptions land-based work for about 10 days to give them time to consider their position on vaccination and then stood them down with pay – applicant decided to take personal leave and annual leave rather than being stood down – respondent told applicant it would not grant more than one month's annual leave to applicant after his personal leave had expired – respondent argued applicant was unable to perform inherent requirements of his role as he was unable to board commercial vessels – Commission found this was a valid reason for dismissal – applicant was unable to perform inherent requirements of his role – Commission was satisfied no suitable alternative duties reasonably available, such as ongoing work on land rather than on vessels – Commission accepted respondent's evidence that the efficiency of its operations would be materially compromised if unvaccinated stevedores had roles 'artificially carved out to work only on land or on straddles' – respondent unable to ignore public health direction – Commission cited Full Bench decision in DA v Baptist Care SA – fair process for dismissal carried out – dismissal not unfair – application dismissed. | |||
Johnson v Flinders Adelaide Container Terminal P/L | ||||
U2021/10280 |
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Anderson DP |
Adelaide |
25 February 2022 | ||
3 |
TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – unfair dismissal application – applicant was employed as Estimating Manager and notified of dismissal on 26 August 2021 – dismissal effective 9 September 2021 – respondent submitted applicant was dismissed due to poor communication and inability to support team members – respondent filed statements of various employees alleging concerns with applicant's performance beginning from when he was engaged, including complaints about slow responses for sales quotations, lack of communication and failure to meet deadlines – respondent submitted meetings with applicant to discuss respondent's concerns with his performance had taken place on 4 occasions, culminating in meeting of 12 August 2021 in which respondent submitted applicant was formally warned he must improve – applicant submitted the decision to dismiss him had clearly already been made prior to 12 August 2021 meeting, before he had the opportunity to put his case why he should not be dismissed – Commission found applicant's role went beyond performing estimates and included managerial responsibilities including supervision of more junior staff – Commission found respondent's senior management received a series of complaints from staff about applicant's performance, communication and interpersonal skills, as well as applicant's failure to train more junior staff and meet deadlines – Commission satisfied that applicant did not demonstrate necessary communication skills to adequately fulfil his managerial responsibilities and that respondent had a valid reason for dismissal – Commission found although respondent did not explain to applicant when verbally advising of his termination or in the letter of termination the full extent of the reasons relied upon to dismiss him, applicant was made sufficiently aware, including on prior occasions – Commission did not accept applicant's contention that respondent had already made a final decision to dismiss him prior to 12 August 2021, and held applicant was given a reasonable opportunity to respond to concerns raised by management including on prior meetings about his performance – Commission satisfied applicant had been formally warned by respondent on 12 August 2021 – dismissal was not unfair – application dismissed. | |||
McDougall v Skyfield Homes P/L | ||||
U2021/8691 |
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Simpson C |
Brisbane |
9 March 2022 | ||
4 |
CONDITIONS OF EMPLOYMENT – stand down – ss.524, 526 Fair Work Act 2009 – application to deal with a dispute involving stand down – applicant employed as a lecturer – on 18 March 2020, a state of emergency was declared in the Northern Territory under the Public and Environmental Health Act (NT) 2011 – on 13 October 2021, the Chief Health Officer (CHO) issued a Direction (CHO 55) mandating COVID-19 vaccinations for workers to attend work in certain circumstances – the applicant did not comply with CHO 55 and was stood down – applicant submitted the respondent had no power to stand her down because the provisions of the Charles Darwin University and Union Enterprise Agreement 2018 do not allow for the stand down of full-time employees – applicant further stated that s.524 of the FW Act only provides a limited scope upon which an employer can stand down an employee – applicant argued that she could have performed her role from home on the basis that there were no lectures planned or given during the period 13 November 2021 to 1 March 2022 – Commission stated that it does not have the capacity to direct any employer to offer a 'work from home' option to any employee, no matter what circumstance or logic may be present – Commission also stated that it did not have the jurisdiction to compel the respondent to either abide by or ignore CHO 55 – that was a matter for the court – Commission noted that the respondent made a decision that it must comply with CHO 55 and that it was mandatory for the applicant to be vaccinated, in accordance with CHO 55, in order for her to resume her duties – Commission concluded that it did not have jurisdiction to determine whether the respondent had complied with CHO 55 – respondent raised a jurisdictional objection that the Commission could not deal with the application because the applicant had not followed the disputes procedure in the Agreement – respondent argued that the application to the Commission was premature – Commission accepted that the application was premature because the applicant had not complied with the mandatory steps in the Agreement's dispute resolution procedure – respondent's jurisdictional objection upheld – application dismissed. | |||
Eder v Charles Darwin University | ||||
C2021/7967 |
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Riordan C |
Sydney |
7 March 2022 | ||
5 |
TERMINATION OF EMPLOYMENT – extension of time – date dismissal took effect – ss.15A, 386, 394 Fair Work Act 2009 – unfair dismissal application – applicant was a teacher – respondent made jurisdictional objection that applicant filed application outside 21-day statutory timeframe as applicant's last 'engagement' with respondent was in the week of 31 July 2021 – respondent stated that applicant was notified on 18 August 2021 that he was not to be engaged in the following teaching term – applicant contended that he was dismissed on 20 August 2021 but was not made aware of his dismissal until 27 September 2021 – application was made 50 days after alleged dismissal date of 20 August 2021 – applicant submitted that respondent made multiple misrepresentations about his employment status – applicant submitted that he lodged application well under 21 days from when he became aware that his employment may have ended – respondent made jurisdictional objection that applicant had not been dismissed at initiative of the employer – Commission satisfied that applicant was a casual employee whose employment may end at the conclusion of an 'engagement' and that respondent did not make any firm advance commitment to continuing and indefinite work – applicant's contract referred to casual employment, stated that ongoing work could not be guaranteed, and stated that applicant's title was 'casual trainer' – applicant's last engagement was completed on 31 July – applicant was told on 18 August that he would not be offered any work in the new term commencing 23 August – Commission satisfied that contract was terminated at respondent's initiative on 18 August – however, Commission was not satisfied that the employment relationship was terminated at this time because respondent said on 18 and 20 August that it hoped to offer applicant work in future if possible – the teaching terms are very short and sitting out one term of only 3 weeks did not end the employment relationship – applicant was not told he would never be offered work by respondent again – it was not unreasonable for applicant to conclude that he might be offered casual work in the next term – on 22 August, applicant sent email to respondent stating that he understood he was being stood down, which he concluded did not constitute termination – respondent took no action to correct him on this issue – Commission was not satisfied that employment relationship ended on 18 August or at any other time in August, due to respondent's written communications that suggested that future casual work was a 'distinct possibility' – respondent's communications simply said there was no casual work 'at that time, which was for a very short period of time' – on 24 September, respondent said by email that it would keep applicant posted if any future opportunities arose – applicant considered the employment relationship had ended on 27 September when he became aware that he had not received a casual conversion letter which respondent had sent to other casual employees – Commission accepted that respondent, in not providing casual conversion letter to applicant, terminated the employment relationship – respondent's action showed that it had no intention of providing applicant future work – Commission concluded the employment relationship ended on 27 September 2021 when applicant reasonably satisfied himself that he would not be offered further casual teaching work – Commission was satisfied that application was made within time and there was no requirement to consider whether to grant an extension of time – matter to be programmed for a hearing on the merits | |||
O'Connor v ILSC (Brisbane) P/L | ||||
U2021/9066 |
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Hunt C |
Brisbane |
11 March 2022 | ||
6 |
TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.385, 386, 394 Fair Work Act 2009 – unfair dismissal application – applicant alleged he was forced to resign under s.386(1)(b) FW Act – sought compensation – respondent raised jurisdictional objection alleging applicant was not forced to resign – on the day of his alleged dismissal, applicant attended a disciplinary meeting – alleged that respondent did not provide any real evidence of errors and there were no clear indicators of poor performance provided – applicant alleged that at the meeting, respondent instructed him to write resignation email in front of respondent and then escorted him off the premises – alleged that the grounds relied on by respondent were not reasonable or sufficient to warrant dismissal – relied on Grundy v Brister and Co – respondent submitted that email correspondence from applicant showed a clear resignation – submitted that if objection not upheld, there was a valid reason and applicant was fairly dismissed based on poor performance which had been the subject of previous performance meetings – submitted that applicant was given ample opportunity to respond and improve – relied on Knight v Wattyl Australia – Commission held that Knight not relevant – Commission noted that respondent intended to cease applicant's employment that day and presented resignation as an alternative to termination – noted that there was no genuine attempt by respondent to give applicant time to contemplate his choice – Commission applied principles in Bupa – noted that applicant had no effective choice regarding his tenure and only had choice in the manner of departure – found that applicant was forced to resign and was therefore dismissed – Commission concluded that respondent had valid reason to dismiss the applicant related to his capacity, namely his inability to perform his job to the reasonable satisfaction of his employer – Commission considered whether dismissal was harsh, unjust or unreasonable – noted that respondent did warn applicant of unsatisfactory performance before dismissal and gave him opportunity and assistance to improve – found that applicant's dismissal was not unfair – application dismissed. | |||
Costigan v KOR Equipment Solutions P/L | ||||
U2021/8444 |
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Mirabella C |
Melbourne |
9 March 2022 | ||
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