20 January 2022 Volume 2/22 with selected Decision Summaries for the week ending Friday, 14 January 2022.
Consultation: The future of online proceedings
Decisions of the Fair Work Commission
Fair Work Commission Addresses
As a result of the COVID-19 pandemic the Fair Work Commission moved to holding conferences and hearings online. As the world gradually returns to a ‘new normal’, the Commission is considering what approach we should take to online proceedings into the future.
The President has published a discussion paper on the future of online proceedings at the Commission.
We are seeking feedback on:
● any issues with how online hearings and conferences are currently used
● any benefits of how online hearings and conference are currently used
● users’ experiences with, and perceptions of, online hearings and conferences at the Commission.
Learn more: The future of online proceedings
Any comments or feedback on the discussion paper should be emailed to consultation@fwc.gov.au by close of business on Friday, 11 February 2022.
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, 14 January 2022.
1 |
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application lodged 6 days late – respondent had sent a letter to applicant dated 4 October 2021, which explained the respondent’s policy that employees had to provide evidence of their first COVID-19 vaccination dose before 1 November 2021 – applicant did not do so, and respondent issued a show cause letter and gave her an opportunity to respond – respondent then notified applicant of her dismissal on 29 October and dismissal took effect on 1 November – applicant said it was only when she became aware on 28 November 2021 that the public health order issued by the Western Australian Government only required her to have a first dose of a COVID-19 vaccine by 1 December 2021 (a month later than the respondent required) that she formed the view that her dismissal was unfair – Commission found that an employee changing their mind after their dismissal as to the fairness of the dismissal, was not an exceptional circumstance – applicant initially lodged an unlawful termination application with the Commission on 29 November and was told by Commission staff on 30 November that this was the wrong form – Commission held that completing an incorrect application in the first instance is not an exceptional circumstance, and in any event, applicant did not explain why, after being told she had filed the incorrect form, it took her another 5 days to file the correct application – applicant argued that her dismissal was unfair because she was terminated one month before the Government’s vaccination deadline, therefore losing a month’s wage – applicant sought to be reimbursed for lost pay from 1 to 30 November 2021 – respondent submitted that applicant was paid 5 weeks’ in lieu of notice, with her wages being paid up to week ending 12 December 2021 – Commission concluded the applicant’s case was weak and she was unlikely to be able to prove her dismissal was unfair – found that even if applicant was able to satisfy Commission that her dismissal was unfair, applicant would not be able to be employed as of 1 December 2021, due to the Government’s vaccine mandate – found that no compensation for lost income could be ordered where the respondent paid the applicant in lieu of notice, equivalent to a period that extended beyond 1 December 2021 – Commission not satisfied that case involved exceptional circumstances – refused to grant extension of time – application dismissed . | |||
McGuire v St John of God Hospital | ||||
U2021/11194 |
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Williams C |
Perth |
11 January 2022 | ||
2 |
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – unfair dismissal application lodged 3 days late – applicant was employed in a pharmacy as a naturopath and in October 2021, Western Australian Government implemented a vaccine mandate which required persons providing services at the pharmacy to be partially vaccinated against COVID-19 by 1 November 2021 and fully vaccinated by 1 December 2021 – applicant was dismissed on 15 November due to failure to comply with vaccine mandate – applicant argued that vaccine mandate is unlawful and unconstitutional and involves experimental medical treatment which is on trial until 2023 – applicant also argued that she was confused which Fair Work department to apply to; she had made another claim to the Western Australian Industrial Relations Commission (WAIRC); she was extremely stressed leading up to and after her dismissal; and since being dismissed, she had to move in with family and is helping to care for a family member who suffered a stroke – respondent made jurisdictional objections, including that s.725 of the Fair Work Act prohibits applicant from pursuing the Fair Work Commission application because she continues to pursue her WAIRC unfair dismissal claim – Commission noted that confusion between the Fair Work Commission and the WAIRC was common and did not constitute exceptional circumstances – Commission found that it was common to have carer responsibilities; to be stressed during and after dismissal; and for economic consequences following dismissal to ‘necessitate employees changing their housing arrangements’ – held that these circumstances were not exceptional circumstances either individually nor taken together – Commission found that even if applicant overcame the jurisdictional objection, it was unlikely she would be able to prove her dismissal was unfair given the obligations imposed on her and on the respondent by the Government’s vaccine mandate – Commission not satisfied that exceptional circumstances were involved – refused to allow a further period for application to be made – application dismissed . | |||
Samsa v Belladia P/L t/a Wizard Pharmacy Joondalup Drive | ||||
U2021/11432 |
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Williams C |
Perth |
13 January 2022 | ||
3 |
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed by respondent since September 2019 – respondent provided care services to applicant’s mother until third party terminated arrangement due to concerns about quality of the service being provided – on 28 July 2021 applicant and respondent had verbal disagreement regarding communicating with third party about respondent’s investigation of the concerns – applicant did not return to work following the disagreement – applicant submitted he was dismissed either on 28 July 2021 when he was locked out of respondent’s IT systems and his phone was barred from making calls or on 25 August 2021 when he received an email from the respondent solidifying breakdown of employment relationship – respondent raised jurisdictional objection that applicant had not been dismissed and instead abandoned employment, or alternatively, any dismissal was in accordance with Small Business Fair Dismissal Code (Code) – Commission considered O’Meara v Stanley Works P/L, ABB Engineering Construction P/L v Doumit, Bupa Aged Care Australia P/L t/a Bupa Aged Care Mosam v Tavassoli, Sathananthan v BT Financial Group P/L – Commission considered multiple exchanges between parties following disagreement and found that while employment relationship was ‘under severe strain from 28 July 2021’ it continued until 25 August 2021 when respondent emailed applicant in a tone ‘sufficient to make clear the employment relationship was at an end’ – Commission considered whether dismissal consistent with summary dismissal requirements under the Code and allegations by respondent that included applicant having an inappropriate relationship with the third party related to his mother’s care arrangements, paying himself additional superannuation, taking annual leave without deducting that leave from his entitlements, paying himself additional wages increases, poor interpersonal communication with colleagues and clients – Commission found applicant’s dismissal was not consistent with the Code because evidence regarding allegations insufficient to be satisfied that reasonable grounds existed for respondent’s belief that immediately dismissing applicant was justified – Commission found, for the same reasons the dismissal was not consistent with the Code, there was no valid reason for dismissal – found applicant not given proper opportunity to respond to reasons for dismissal and not warned about unsatisfactory conduct – considered it relevant that applicant not paid in accordance with his contract of employment for several weeks prior to termination and blocked from using his phone and accessing IT systems – noting absence of both a valid reason for dismissal and procedural fairness, Commission concluded dismissal harsh, unjust or unreasonable – satisfied reinstatement not appropriate – considered whether appropriate to order compensation – noting exchanges between the applicant and respondent leading up to the dismissal and relationship issues dating back to July 2020, Commission found their employment relationship would not have lasted more than 3 weeks – Commission not satisfied any adjustments to compensation warranted by applicant’s length of employment, efforts to find employment, his remuneration for new job or the impact of the compensation on respondent – Commission ordered applicant be paid $4,038.45 gross taxed according to law, calculated based on 3 weeks full-time pay, within 21 days of the date of its decision. | |||
Rosenbaum v OzNDIS P/L | ||||
U2021/8382 |
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Simpson C |
Brisbane |
13 January 2022 | ||
4 |
ANTI-BULLYING – bullied at work – ss.789FC, 789FD Fair Work Act 2009 – application for an order to stop bullying – applicant engaged by respondent as Account Manager to provide services to Telstra – role required applicant to manage Telstra business customers – applicant subject to staff performance indicators, including a target number of calls that needed to be made each month – due to failure to meet monthly target, applicant placed on Performance Improvement Plan (PIP) – applicant refused to sign the PIP as he rejected both the process and substance of the PIP – on substance, applicant complained to respondent that PIP placed on him conditions of work, such not being able to listen podcasts, that were not placed on his peers – applicant, along with other team members, required to produce a strategic portfolio plan – applicant complained he was separated from the rest of the team and supervised in a public space for this task – also complained that peers who had not completed this task were not singled out – respondent informed applicant of a meeting to air disciplinary action against him for breach of the respondent’s code of conduct, specifically speaking and treating his manager in an inappropriate and disrespectful nature whilst in the workplace – respondent claimed applicant was dismissive of performance targets as set by management, preferring to pursue his own priorities and methodology – respondent contended applicant referred to his female manager by masculine terms including ‘dude’ and ‘bro’, continuing after she asked him not to, and openly questioned and criticised her conduct and experience – same manager also submitted the applicant’s conduct towards her in relation to the PIP was aggressive, hostile and rude – Commission held the monthly call targets to be a reasonable and lawful direction – accepted the applicant had been rude and disruptive to his manager regarding this direction – found the applicant disrespectful for addressing his female manager as ‘dude’ and ‘bro’ – found the applicant’s manager had not acted unreasonably towards the applicant – agreed the applicant should have been placed on the PIP – found the prohibition on listening to material such as music and podcasts was a lawful and reasonable direction and appropriate for the PIP issued – found no unreasonable behaviour by management with regards to the strategic portfolio plan – found no other unreasonable management action to enliven s.789FD of the Fair Work Act – concluded the applicant had not been bullied at work – application dismissed. | |||
Scott v Vita People P/L and Anor | ||||
AB2021/312 |
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Hunt C |
Brisbane |
10 January 2022 | ||
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