24 March 2022 Volume 11/22 with selected Decision Summaries for the week ending Friday, 18 March 2022.
Decisions of the Fair Work Commission
Other Fair Work Commission decisions of note
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, 18 March 2022.
1 |
TERMINATION OF EMPLOYMENT – misconduct – employer policies – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – employee dismissed for breaches of the Transport for NSW Code of Conduct (Code) related to a charge of high range drink driving on 16 August 2020, a day when he was not rostered to work – at first instance the Commission found that the dismissal was harsh, unjust and unreasonable on the basis that it related to 'out of work conduct that could never constitute a valid reason for termination' and that the dismissal was harsh in its effects upon the employee – the Commission ordered the employee be reinstated to his position with lost remuneration paid, and that continuity of employment be maintained – decision at first instance was stayed by consent on terms agreed by the parties – appellant submitted 6 grounds of appeal including that the Commission erred in finding the appellant did not have a valid reason to dismiss; that the dismissal was harsh, unjust or unreasonable; that the Commission made significant errors of fact; and that reinstatement was not appropriate – Full Bench satisfied that the grant of permission to appeal in this matter was in the public interest – Full Bench held the central issue in grounds 1 and 2, was whether the Commission erred in its finding that the out of hours conduct of the employee was not a valid reason for dismissal – Full Bench considered that the Commission's conclusion that there was no valid reason for the employee's dismissal was erroneous because it was based on a misapplication of the principles relating to valid reason and out of hours conduct – this constitutes an error of principle of the kind identified in House v The King – Full Bench also considered that the finding in relation to valid reason was contrary to the overwhelming weight of the evidence and that the test in s.400(2) was satisfied – the Full Bench were of the view that these errors have infected the Commission's conclusions in relation to remedy, which were based on other significant errors of fact – the principles in relation to when out of work conduct may constitute a valid reason for dismissal, which can be distilled from Rose v Telstra and Newton – Full Bench held that the line that can be traced through the cases is that all the circumstances of the employment must be examined and that the express or implied terms of a contract of employment are relevant, but not determinative, to the connection between out of hours conduct and employment, where the conduct is relied on as a reason for dismissal – absent a connection with employment of the requisite kind, out of hours conduct will not constitute a valid reason for dismissal – Full Bench found Commission erred in finding that the appellant did not have a valid reason to dismiss the employee – grounds for appeal upheld – decision at first instance quashed – upon redetermination of the employee's application the application was dismissed. | |||
Appeal by Sydney Trains against decision of Cross DP of 1 July 2021 [[2021] FWC 3792] Re: Bobrenitsky | ||||
C2021/4195 |
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Catanzariti VP |
Sydney |
16 March 2022 | ||
2 |
CASE PROCEDURES – confidentiality – ss.594, 604 Fair Work Act 2009 – application by employee to vary a confidentiality order issued in the course of his unfair dismissal application – on 21 February 2022, the Commission made a decision and order reinstating the employee to his former employment [[2022] FWC 301] – the confidentiality order prohibited the publication of the Commission's 21 February decision and reasons for decision and was expressed to operate until 14 March 2022 – Australian National University (University) has lodged an appeal against the Commission's 21 February decision – employee has applied for the Commission to make an order de-identifying him and the University – employee submitted that he shares his name with the Prime Minister and will be subject to media attention due to this coincidence, which may have negative effects on his return to work and the mental health of the students who gave evidence in the proceedings – University argued that non-publication is inconsistent with the principles of open justice – Commission noted that the principle of open justice will usually be the paramount consideration in determining whether a confidentiality order should be made [Amie Mac] – there are limited exceptions to the principle and 'departure from the principle of open justice is only justified where…the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest' [James Warburton (No 1)] – a non-disclosure order is not justified merely because allegations have been made which are 'embarrassing, distressing or damaging to reputations' [Amie Mac] – Commission accepted the University's submission that the primary reason for the employee seeking to amend the confidentiality order appears to be embarrassment, distress and damage to his reputation – Commission noted that the 21 February decision contains findings in favour of the employee, including that the conduct for which he was dismissed was consensual – Commission found no evidence that publication of the 21 February decision would, or would be likely to, seriously endanger the health and welfare of the relevant students, or cause them distress – assertions that one of the students was visibly distressed while giving their evidence is not a sufficient basis for the maintenance of a confidentiality order – Commission found it is not uncommon for persons giving evidence in unfair dismissal proceedings to be distressed – noted that orders have already been made suppressing the identities of the students – also relevant that neither the employee nor the University sought confidentiality orders other than those relating to the students – the confidentiality order was made on the Commission's own initiative prior to the 21 February decision being released – Commission noted that the 'students did not give their evidence in reliance on the suppression of the decision in its totality or on the basis that the Respondent and the Appellant would be de-identified' – the students gave evidence in the University's case, and 'it is not appropriate for the [employee] to make submissions purporting to advance the interests of witnesses who gave evidence against him, particularly where the submission also advances his own interests' – Commission found that the fact that he employee shares his name with the Prime Minister is not a basis for extending the confidentiality order – found that there is no reason why this fact should attract media attention and it is likely that the amount of information about the Prime Minister on the internet will result in references to the employee being more difficult to locate – application to amend the confidentiality order is refused – there is no impediment to the publication of the 21 February decision and reinstatement order | |||
Application by Morrison to vary order of Dean DP of 18 February 2022 [PR738523] Re: Australian National University | ||||
C2022/1533 |
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Asbury DP |
Brisbane |
15 March 2022 | ||
3 |
INDUSTRIAL ACTION – termination of protected industrial action – ss.414, 418 Fair Work Act 2009 – application seeking an order to stop threatened industrial action involving stoppage of work and a ban on overtime at applicant's Broome base – applicant is an aviation company that provides helicopter services including search and rescue and medical evacuation and its customers include police and government departments and authorities – s.414(6) of the Fair Work Act requires that a notice of intended industrial action specify the nature of the action and when it will start – applicant asserted that the notices failed to specify the nature of the intended action namely when and in what circumstances the employees will return to work and the functions and operations of the applicant that will not be affected by the action – applicant argued that the notices contain ambiguities such that a reasonable person in the applicant's position could not understand what the proposed industrial action would involve – also argued that the ambiguities go directly to the availability of the most critical safety-related services and conceal more than they reveal about the circumstances in which these core services will be performed – applicant argued that it was wrongly denied the opportunity to take necessary action to reduce the risk or prevent loss of life or harm to property or people – Commission noted the issuing of a notice under s.414 is not a mere formality and is intended to give the employer the opportunity to respond by making relevant preparations – whether the notice is adequate may depend on the nature of the employer's operations including their size, number of employees, number of locations, time the action is to occur and the employees potentially taking the industrial action – a notice must not be drafted to conceal more than it reveals [Telstra Corporation Ltd v Communications, Electrical, Electronic, Services Union] – Commission noted that applicant conducts time and safety critical operations vital to the preservation of lives and high value assets – it provides specialised equipment and services which are not commonly available or easily replaced – applicant's employees perform duties which are an integral part of applicant providing its equipment and services to its customers and the community – these factors demand a higher degree of specificity and clarity in notices than might be required in other workplaces – Commission accepted that a reasonable person in applicant's position would not clearly understand what the industrial action would involve – notice requirements in s.414 have not been met and so the requirements in s.413 for industrial action to be protected have not been met – the proposed industrial action is not 'protected industrial action' as defined in s.409 – order issued | |||
PHI International Australia P/L v The Australian Workers' Union and Anor | ||||
C2022/1713 |
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Binet DP |
Perth |
18 March 2022 | ||
4 |
CASE PROCEDURES – representation – s.596 Fair Work Act 2009 – respondent sought permission to be represented by a lawyer – s.596(1) of the Fair Work Act requires permission of the Commission for a party to be represented by a lawyer or paid agent, subject to some exceptions – Commission can only grant permission if one of the requirements of s.596(2) is satisfied – at a directions hearing on 15 February 2022, applicant's representative identified himself only as 'Agent Swift – Rick' – on 16 February 2022, Commission issued directions requiring applicant to tell the Commission and the respondent the correct legal name and contact details of his representative and clarify whether the representative was a paid agent or lawyer – applicant's unfair dismissal application stated that his representative was 'Agent Swift' of the Universal Life Church, Waikiki, Western Australia – in an email, applicant said he wished his representative to 'act as the attorney in fact as the unpaid agent' and in a subsequent written statement said that he wished 'the free agent:swift to act as the attorney in fact for the above listed arbitration' – Commission discerned that applicant's representative Mr Swift was an unpaid agent and so the applicant did not require permission under s.596 to be represented by Mr Swift – Commission noted that applicant's materials included assertions of perjury and deception by the lawyer and firm who filed the respondent's response to the applicant's unfair dismissal application – Commission noted that it has power to strike out or have no regard to 'irrelevant or scandalous components of statements and submissions' – a party or representative who conducts themselves vexatiously or in an unreasonable manner may be exposed to a costs order – in relation to respondent's application for permission to be legally represented, Commission was satisfied, having regard to the matters in issue and the materials filed to date, that granting the respondent permission was likely to enable the matter to be dealt with more efficiently, taking into account its complexity – a representative was 'capable of better navigating the voluminous materials to discern relevance, to focus cross examination on relevant disputed facts or issues of credit, and make submissions on developing industrial and legal jurisprudence as it relates to vaccination policy and mandates in the workplace' – s.596(2)(a) satisfied – matter listed for hearing pending member-assisted conciliation. | |||
Maiolo v Wrightville Services P/L | ||||
U2021/11647 |
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Anderson DP |
Adelaide |
17 March 2022 | ||
5 |
TERMINATION OF EMPLOYMENT – incapacity – inherent requirements –mandatory vaccination – s.394 Fair Work Act 2009 – unfair dismissal application – applicant worked as a dietician for the respondent, a healthcare facility – the Victorian Government issued a public health direction which required the respondent to prohibit employees from attending the workplace unless they provided proof of vaccination against COVID-19 or a medical contraindication – on 20 September 2021, respondent sent all employees an email informing them of the public health direction – in late September, applicant took sick leave – on 1 October, applicant wrote to the respondent, objecting to the requirement that she provide evidence of her vaccination status – on 7 October, respondent sent a letter to applicant which stated that the public health direction was legally binding on the respondent – on 11 October, applicant asked to take annual leave when her period of sick leave ended on 21 October – applicant was granted annual leave until 29 October – in a letter dated 27 October, applicant again objected to providing proof of vaccination, citing privacy grounds, and stated that she had applied for long service leave – respondent told applicant she could take long service leave until 23 November and told applicant that without proof of vaccination, it could not allow applicant to work at its premises – in a letter dated 18 November, applicant again objected to providing information about her vaccination status, invoking the Privacy Act 1988 – on 22 November, respondent told applicant it had grounds to terminate her employment because she could no longer fulfil the inherent requirements of her role but before it made a final decision, it invited applicant to show cause why her employment should not be terminated, by 1 December 2021 – applicant asked for her long service leave to be extended to 1 January 2022 or that she be allowed to take the entire balance of her long service leave because the government emergency powers in force in Victoria were due to expire – on 29 November, respondent told applicant that the Victorian Government had announced that the public health direction would be renewed and remain for a substantial period of time – respondent also said that it had implemented its own COVID-19 vaccination policy that required all staff to be vaccinated within timelines similar to those in the public health direction – respondent said it was unable to extend applicant's leave – on 1 December, applicant responded to the show cause letter by stating that the public health direction was invalid or did not apply because it was contrary to federal privacy and discrimination law and that applicant was willing to take PCR tests to show she did not have COVID-19 but would not provide her private sensitive health information to the respondent – in a letter dated 3 December, respondent told applicant that her proposal to take PCR tests did not satisfy the requirements of the public health direction, it was not possible for applicant to perform key requirements of her role from home, and respondent did not consider it reasonably possible to deploy applicant to any role not requiring attendance at the workplace – applicant argued that the respondent should have allowed her to take all of her accrued leave or allowed her to submit negative COVID-19 test results before coming to work, instead of dismissing her – Commission found that respondent had reasonable business grounds to refuse applicant's request to take further long service leave – even if applicant had been allowed to take the rest of her long service leave, her leave would have concluded at the end of February 2022, at which time the public health direction remained in force in relation to healthcare workers – Commission found that the public health direction did not allow workers to remain unvaccinated if they returned negative COVID-19 tests – Commission noted that the Privacy Act 1988 allowed evidence of vaccination status to be gathered, used and stored in accordance with the privacy principles in the Act – Commission noted that being unvaccinated was not a protected attribute under Commonwealth anti-discrimination law – found that respondent had valid reason to dismiss applicant – respondent was prohibited by law from allowing applicant to attend the workplace unless she provided the evidence required under the public health direction – while applicant was entitled to refuse to become vaccinated or to provide respondent with vaccination information, her choices had the 'inevitable consequence' that she rendered herself unable to perform her job – the show cause letter of 22 November notified applicant of the proposed reason for dismissal and gave her an adequate opportunity to respond – dismissal was not harsh, unjust or unreasonable and therefore not unfair – application dismissed | |||
Stevens v Epworth Foundation | ||||
U2021/11285 |
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Colman DP |
Melbourne |
17 March 2022 | ||
Rainbow v Queensland Rail | ||
TERMINATION OF EMPLOYMENT – remedy – reinstatement – ss.390, 394 Fair Work Act 2009 – application to deal with unfair dismissal – at the time of his dismissal, applicant was a qualified carpenter and fitter employed in respondent's workshop and depot – reasons given by respondent for terminating applicant's employment were his use of company resources for personal task while on a break, language used by applicant in interaction with manager and a safety breach – consideration of whether there is a valid reason for dismissal requires assessment of whether the conduct was so serious as to justify termination as a sound, defensible or well-founded response [Edwards] – Commission not satisfied that applicant's act of filling his tyres with air while on a break was a valid reason for dismissal – when manager spoke to applicant about the safety incident applicant said 'I've had enough of this shit' – applicant had 2 prior reprimands for coarse language – use of coarse language to be considered in context of applicant's employment [Gosek] – Commission found coarse language in the context of the applicant's work environment not surprising or problematic nor uncommon – found use of coarse language not a valid reason for dismissal – Commission not satisfied applicant's conduct in parking his car across a live line was a wilful breach of safety procedures or one which recklessly disregarded the safety of himself or others – in his long career with respondent, applicant had no prior significant safety breaches – although parking across live line was a safety breach the actual risk was negligible – nonetheless, Commission accepted safety breach must have consequences – while Commission was satisfied respondent had a valid reason to terminate applicant's employment, found termination, particularly given applicant's age and skillset, was disproportionate to the gravity of the applicant's breach – dismissal harsh, unjust and unreasonable – applicant sought reinstatement and order for lost wages and entitlements – respondent submitted reinstatement not appropriate due to loss of trust and confidence, impact on remainder of workforce and that reinstatement was untenable due to applicant's attempt to discredit manager – Commission did not accept loss of trust and confidence – applicant was a loyal employee for 33 years – applicant expressed regret and remorse for his conduct – not accepted that reinstatement would set a dangerous precedent – Commission ordered reinstatement and continuity of applicant's employment – respondent ordered to pay applicant an amount for the remuneration lost on account of the dismissal but with 2 months' pay deducted based on applicant's admitted safety breach. | ||
U2021/10203 |
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Lake DP |
Brisbane |
16 March 2022 |
Gao v Commonwealth of Australia (as represented by the Department of Defence) | ||
TERMINATION OF EMPLOYMENT – remedy – reinstatement – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was in Australian Army Reserves and employed by respondent as a Deputy Director – following a federal police investigation the respondent was notified that applicant had stored 39 images of respondent information on his personal devices – respondent's investigation concluded applicant breached obligation on Australian Public Service (APS) employees to comply with lawful and reasonable directions and act with care and diligence (ss.13(5) and 13(2) of Public Service Act 1999 (PS Act)) – applicant dismissed for breaching APS Code of Conduct – respondent opposed reinstatement because of nature of applicant's conduct, compounded by his failure to comprehend that his conduct poses a risk to security of respondent's digital information and had irreparably damaged employment relationship – Commission considered Byrne v Australian Airlines, Sydney Trains v Hilder, Perkins v Grace Worldwide (Aust) P/L and Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter – Commission satisfied that compliance with Defence Security Principles Framework and ICT Manual are each lawful and reasonable directions – found applicant had emailed documents from Defence Restricted Network (DRN) to his personal email address and then took photos of them, took 5 images directly from DRN and stored 39 images on his personal devices – found applicant did not report this as a data spill, contrary to Control 17.1 – 4 images contained personal information and were stored on applicant's personal devices contrary to ICT Manual – applicant did not obtain consent of the individuals concerned to store their personal information – Commission concluded breaches did not constitute serious errors of judgment under ICT Manual and did not warrant dismissal – concluded respondent's finding that applicant contravened ss.13(5) and 13(2) of PS Act was not soundly based – applicant acknowledged he did not comply with respondent's security policies and showed true remorse – found evidence did not support a finding that applicant's failure to follow lawful and reasonable directions were substantial or wilful or intentional or deliberate – found no valid reason for termination – Commission took into account applicant's otherwise unblemished employment record; that no charges or cautions eventuated from police investigation; there is no suggestion applicant disclosed any images stored on his personal devices; devastating personal impact of dismissal on applicant; attempts by applicant to mitigate financial loss by working in casual positions in hospitality because his treating therapists had assessed him as not ready to re-enter workforce in a professional role; at time of dismissal he was sole income earner with a substantial mortgage and a new baby; and consequences of dismissal on his military role – found applicant's dismissal harsh – Commission did not accept that the requisite level of trust and confidence had been irreparably damaged or destroyed and could not be re-established – noted respondent is a very large and varied organisation and applicant has skills that could be utilised in different parts of the organisation – noted applicant demonstrated a willingness to undergo training – considered that a reprimand and fine would have been appropriate sanctions – Commission ordered reinstatement of applicant to either his previous role, or another equivalent and appropriate role – ordered continuity of employment and that applicant be paid from date of termination to date of reinstatement, less money earnt during that period and a sanction of 2% of his annual salary. | ||
U2021/8577 |
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O'Neill C |
Melbourne |
17 March 2022 |
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