Fair Work Cases Which We Represented

fair work cases

Table of Contents

We are continually updating this post with more stories.

When it comes to seeking justice for unfair dismissal, bullying, harassment, or any other workplace grievance, you need the best representation. A Whole New Approach (ANWA) has effectively supported numerous employees in their claims against their employers. We have lodged over 16,000 claims in various jurisdictions. We have seasoned advisors that will guide you through the process of getting your dues from your employer. We have assisted 85% of our clients to settle, before getting to court.

Workplace issues are a nightmare for many employees, and oftentimes, dismissal is unfair, harsh, a knee-jerk reaction, and traumatic. No matter how great you think your chances are, it’s important to have a platform that can help you fight fairly and possibly get compensation before going to court.

Still in doubt? Check out some of our published cases below to gauge our efficiency, or give us a call on 1300 766 700 to discuss your circumstances.

Fair Work Cases We Represented: A Highlight

A Whole New Approach has been instrumental to the resolution of many workplace grievances through our seasoned services. Over the years, we have helped many employees face their biggest workplace nightmare and receive due compensation. Below are some highlights of the cases we have represented.

Construction worker at work

1. Bechara v Ashford Homes Pty Ltd [2015] FWC 8858 (23 December 2015). Background:

Mr. George Bechara was employed by Ashford Homes Pty Ltd until his employment was terminated on 9 October 2015. Ashford objected to his unfair dismissal application because it said he earned more than the high-income threshold. Mr. Bechara was employed as a construction manager and there was no submission that he was covered by a modern award or an enterprise agreement. The question then to be determined is whether Mr. Bechara earned more than the high-income threshold of $136,700. Both parties were not in dispute or his salary or a company vehicle assigned to him. However, the parties are in dispute about the proportion of the cost of the vehicle that should be allocated to personal use.

Solution:

After a thorough investigation of the usage and fuelling of the assigned car. A conclusion was reached that regardless of the method used to calculate the value to be assigned to the personal use of the vehicle, that amount does not when added to his salary, cause Mr. Bechara’s earnings to exceed the high-income threshold and therefore the objection raised by Ashford is dismissed and the application is referred to arbitration on the merits of Mr. Bechara’s claim that he was unfairly dismissed.

qantas fair work cases

2. Adachi v Qantas Airways Limited [2014] FWC 518 (10 February 2014) Background:

Ms. Adachi worked for Qantas as a Cabin Crew member for just under 25 years. Since 1998 she had been a Customer Service Supervisor. Her employment was terminated by Qantas on 15 March 2013 following an alleged case of misconduct between her and Mr. El Khoury, (a colleague) on 17 February 2013. According to her evidence, Ms. Adachi said that she never received any warnings during her service with Qantas and had “never before been accused of misconduct, violent or inappropriate behaviour. My performance has been overwhelmingly good, and until September 2012 I had never been accused of not meeting KPI standards.” She accused him of physical harassment and hinted at bullying in the workplace. Ms. Adachi said that her life and reputation had been permanently damaged by false allegations against her and that her dismissal had removed her from eligibility for voluntary redundancy at a cost of some $146,000. “Who will now employ a 52-year-old air hostess dismissed for alleged misconduct?” She had also lost her staff travel benefits which she accessed to visit her parents in Tokyo.

Solution:

In the end, Ms. Adachi’s dismissal was deemed harsh, unjust, and unreasonable and she was ordered to be reinstated to her former position at Qantas with full continuity of employment for all purposes except wages from the date of her termination of employment until the date of her reinstatement. It was also established that Ms. Adachi should be compensated for lost wages at her ordinary rate, as applicable at the time she was dismissed, on and from 15 May 2013 until the date of her reinstatement.

3. Barbakh v Jewish Care (Victoria) Inc [2014] FWC 1775 (14 March 2014) Background:

On 8 July 2013 Mrs. Anna Barbakh (the Applicant) applied s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of her employment by Jewish Care (Victoria) Inc (the Respondent) on 1 July 2013 was harsh, unjust or unreasonable. At the time of her termination, the Applicant was employed as a Loans Officer and Finance Administration Assistant. She had been performing this joint role since June 2006 and, in very general terms, roughly divided her time equally between the roles. The respondent’s argument argued that her dismissal happened as a result of true redundancy and also the Applicant’s employment was not terminated at the Respondent’s initiative. Mr. Gary Pinchen of All Whole New Approach Pty Ltd appeared with permission for the Applicant.

Solution:

At the end of the investigation, order for the payment of compensation of $5632.56 less applicable tax plus 9.25% superannuation by the Respondent to Mrs. Barbakh in place of reinstatement. This was deemed satisfactory and fair to both parties.

4. Jacqueline Waite v Serco Australia Pty Ltd T/A Serco Australia Pty Ltd [2018] FWC 3113 (1 June 2018) Background:

An application was made by Ms. Jacqueline Waite for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) regarding the termination of her employment from Serco Australia Pty Ltd T/A Serco Australia Pty Ltd (Serco). Ms. Waite was employed by Serco as a Detainee Services Officer (DSO) from 11 May 2011 until her summary dismissal on the grounds of serious misconduct, on 7 November 2017. At the time of her dismissal, Ms. Waite was based at Serco’s Brisbane Immigration Transit Accommodation (BITA). As a DSO her responsibilities included maintaining security protocols, processes, and procedures at a detention centre or an Alternative Place of Detention (APOD). The serious misconduct said by Serco to have justified Ms. Waite’s dismissal was a failure to apply herself to her duties and remain vigilant and attentive by sleeping during a shift and using an iPad, in breach of Serco’s Code of Conduct and Governing Principles. Ms. Waite maintains that she did not engage in serious misconduct and that the particular conduct for which she was dismissed was commonly occurring.

Ms. Waite’s evidence to the Commission was that there were mitigating circumstances that led to a situation where she was tired and slept while on her shift. Ms. Waite also said that she provided an explanation to Mr. Stafford about those mitigating circumstances. In summary, Ms. Waite had a sick partner and a sick mother. Her partner was undergoing cancer treatment. Ms. Waite is the sole income earner and had also moved home in August 2017 causing her to refuse shifts.

fairness and workplace rights

Solution:

In the end, an order for compensation was made. The Order will issue with this Decision and will require Serco to pay compensation to Ms. Waite in place of reinstatement of a gross amount of $6,758.00 to be taxed according to law. The order will require the payment to be made within 21 days of the date of this decision.

5. Carruthers v Worth Recycling Pty Ltd [2015] FWC 4859 (17 July 2015)

The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made under section 394 of the FW Act must apply within 21 days after the dismissal took effect. However, the Fair Work Commission may allow a further period for lodgement in exceptional circumstances.

Such was the case of John Carruthers (Applicant) who lodged an application for an unfair dismissal remedy on 21 April 2015 in respect of the termination of his employment by Worth Recycling Pty Ltd (Employer).

However, it was argued that the applicant had filed his unfair dismissal claim beyond the stipulated 21 days’ timeframe and on the on 1 May 2015 the Commission invited the Applicant to provide a written statement explaining why he thought the Commission should extend the time for his application to be lodged.

The applicant argued that he only knew about his termination after several calls to the respondent who responded after several weeks to reject his application for the post of driver.

Solution:

At the hearing, the applicant was represented by Gary Pinchen. There was no attendance by the Respondent. As evidence, the applicant tendered the text messages exchanged with the employer and a text declining his job request. At the end of the session, it was determined that the applicant had been out of a job without sufficient notice from the employer. Despite its claim that the applicant was not dismissed, the Respondent has not rostered the applicant for any work since 26 March 2015. The commission further found out that the effective date of termination of the applicant’s employment was 15 April 2015. The unfair dismissal case was upheld.

6. Eng v Goodman Fielder Limited [2011] FWA 317 (18 January 2011)

Mr. Ly Eng was employed by Goodman Fielder Limited from February 2001 until his employment was terminated on 21 April 2010. He applied for relief under s394 of the Fair Work Act 2009 (“FW Act”) alleging that he was unfairly dismissed. Mr. Eng’s employment was terminated for serious misconduct. He was however paid four weeks’ pay in place of notice.

Mr. Eng was employed as a truck driver at the time of the termination of his employment. He was required to deliver bakery products and perform work in the yard at the Clayton South site. Mr. Gary Pinchen appeared with permission for Mr. Eng.

It was alleged that Mr. Eng was observed by Mr. Kumar, (another worker at the site) urinating into a stormwater drain in the loading bay on 14 April 2010. In his defence, he claimed he was under intense pressure and urinated away from prying eyes.

Solution:

Mr. Pinchen submitted that there was no valid reason for terminating Mr. Eng’s employment. In summary, Mr. Pinchen submitted that Mr. Eng had an impeccable 10 years of service and showed real remorse for his actions.

At the end of the case, it was determined that Mr. Eng’s termination was harsh, unjust, and unreasonable. This was because it was disproportionate to the gravity of Mr. Eng’s misconduct. It was harsh because Mr. Eng did not willfully and without regard to his obligations to engage in misconduct. Therefore, his dismissal was termed unfair.

Compensation was also ordered, that Mr. Eng be paid an amount equal to the amount he would have earned in the period from his dismissal until the date of his reinstatement less any monies earned by him in this period and less applicable taxation.

7. Lewis v CQ Group Australia Pty Ltd [2014] FWC 8466 (1 December 2014).

The Applicant (Mr. Bradley Lewis) had made an application under s.394 of the Fair Work Act 2009 through which he sought an unfair dismissal remedy concerning a decision by CQ Group Australia Pty Ltd (the employer) to terminate his employment.

The Applicant had been employed at the Roy Hill mine site as a road train driver and performed some relief supervisor duties. On or about 31 March 2014, the employer terminated the employment of the Applicant, along with two other employees, on grounds of serious misconduct.

It was alleged that he and some other employees will bully an employee (Mr. Quici) and subject him to make unauthorized cash withdrawals and buy hard drugs for them. In his defence, Mr. Lewis denied the allegation and said he was not a drug user. Mr. Lewis also claimed that he had denied procedural fairness so far, as his employer did not provide him with any notice of the reasons for the dismissal (having only stated that serious misconduct was involved) or allow him to respond to those reasons.

Solution:

There was no evidence of a strong kind that affirms that there was a valid reason for the dismissal of Mr. Lewis. Mr. Lewis was not given notice of the reasons for his dismissal, that being serious misconduct. It was also determined that Mr. Lewis did not receive procedural fairness in his dismissal. In the end, Mr. Lewis was deemed to be harshly, unjustly, or unreasonably dismissed from his employment. A compensation was ordered for the applicant.  The amount to be paid to Mr. Lewis in place of reinstatement is an amount equivalent to 8 weeks’ salary.

fair work cases

8. Harris v WorkPac Pty Ltd [2013] FWC 4111 (30 July 2013)

Mrs. Karen Harris applied for unfair dismissal after being dismissed by her employer (WorkPac Pty Ltd.). Mrs. Harris commenced employment with the Employer on 29 November 2004. At the time of her dismissal, the Applicant was employed as Recruitment Coordinator Team Leader at the RBC.

She was dismissed for bullying a fellow employee (Rachel Maye) and her behaviour was considered gross misconduct. Due to this allegation, she was dismissed and a 5 week’s pay and forfeiture of outstanding commission.

Solution:

At the hearing, it was determined that there was no evidence to prove a verbal complaint by Ms. Maye to the employer. Furthermore, there was no written record of disciplinary investigation setting out the reasons why the employer formed the view that Mrs. Harris was guilty of bullying Ms. Maye. It was also discovered that Mrs. Harris’ attitude at work could be due to her husband’s health condition.

It was considered following the criteria in s.387 of the FW Act. Mrs. Harris was unfairly dismissed from her employment. Because Mrs. Harris was not seeking reinstatement, the commission considered an award of compensation appropriate.

9. Fletcher v The Trustee for Millard Family Trust t/as South East Training Services [2010] FWA 2261 (17 March 2010)

The application was filed on 29 October 2009 under s.394 of the Fair Work Act 2009 (“the Act”) by Ms. Debbie Fletcher (“the applicant”) for relief concerning the alleged termination of her employment by South East Training Services (“the respondent”). The case was to determine termination of employment and whether the termination was at the initiative of the employer.

The applicant had been employed by the respondent since 12 March 2007 in the respondent’s Nowra office and held the position of administrative assistant. Her employment with the respondent ended on 16 October 2009. At the time of the termination of her employment, she was working about 12 hours each week. The employer had, at that time, several small or single-person offices in NSW and the ACT and employed less than 15 employees.

According to the applicant, on the 16th of October 2009, she received a call from Mr. Steven Millard, (Managing Director of the respondent) who accused her of giving his mobile telephone number to another person. Debbie denied this allegation but the MD was extremely angry that he proceeded to tell her they will be closing the Norway office and that she needs to start preparing to leave. When she asked about her ongoing issue with her superannuation payments, he got furious and asked her to leave that afternoon. After turning in her work, she left.

Following an unsuccessful conciliation conference, directions were issued by Fair Work Australia and the matter was set down for hearing on 4 February 2010 in Nowra. Debbie was represented by Gary Pinchen of A Whole New Approach.

Solution:

After listening to the respondent’s speech and collaborative evidence. It was discovered that the applicant did resign from her employment on 16 October 2009 and consequently there was no dismissal at the initiative of the employer according to s.386(1)(a) of the Act.

Also, because there was no jurisdiction to deal with the substantive application. The application was dismissed.

10. Gooch v Proware Pty Ltd T/A TSM (The Service Manager) [2012] FWA 10626 (20 December 2012)

The application was made by Ms. K Gooch (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of her employment by Proware Pty Ltd T/A The Service Manager (the respondent). The applicant’s dismissal occurred on 29 March 2012 and her application for relief was lodged with Fair Work Australia (FWA) on 4 April 2012.

Ms. K. gooch commenced employment with the respondent in June 2008. She was employed on a full-time basis as the company bookkeeper. At the applicant’s request, she worked a four-day week, ten hours per day. This was to assist in caring for her grandchild.

During 2010 and 2011 the applicant experienced difficulties with another employee. There is a dispute as to whether this was due to a personality clash between them or whether the applicant had been harassed by her colleague. However, she claimed the company did nothing about this event.

In November 2011 a security breach occurred concerning the respondent’s payroll records. The applicant was not responsible for this but beloved she was treated differently after this including being excluded from meetings.

In 2011 the applicant had been training another employee, Ms. Liu, to take over her role after she retired. An email from the applicant to Mr. Younger dated 21 May 2011 tendered as the evidence discloses that she would like to fully retire in 2013.

On 9 January 2012, there was a meeting between the applicant and Mr. Younger. The applicant’s evidence is that Mr. Younger, without explanation, informed her that her duties were being removed from her and given to Ms. Liu. The applicant was to be given budgeting and forecasting duties of which she had no experience. This made her believe she was set up for failure.

The applicant was represented by Mr. Gary  Pinchen of A Whole New Approach, who appeared with permission.

Solution:

Mr. Pinchen submitted that the real reason for the dismissal was that Mr. Younger was not happy that the applicant went on leave or that she made the worker’s compensation claim. In addition, the evidence shows that there has been saving for the respondent as the new occupant of the applicant’s position, Ms. Liu, is earning $10,000 less per year. At the end of the case, because the applicant did not seek reinstatement, under section 390(3)(b) it was considered that, in all of the circumstances of this case, it is appropriate to make an order for the payment of compensation.

The applicant earned $75,000 per annum. That equates to $1,442.31 per week. Consequently, the order for compensation will be for an amount of $8,653.86 less appropriate tax.

constructive dismissal

11. McDonnell v Qube Ports & Bulk Pty Ltd; McDonnell v Qube Ports & Bulk Pty Ltd [2013] FWC 702 (6 February 2013)

The application was made by Mr. J McDonnell, about the termination of his employment by Qube Ports & Bulk Pty Ltd T/A Qube Ports (Qube). Mr. McDonnell was employed by Qube as a Shift Manager from September 1999 to 3 September 2012. Qube has raised a jurisdictional objection to the application that according to s.382(b)(iii) of the Act, Mr. McDonnell’s earnings exceeded the “high-income threshold” in s.333 of the Act. The high-income threshold applied at the time of the termination was $123,000 per annum. In determining whether his earnings were less than the high-income threshold, the difference between the parties as to Mr. McDonnell’s earnings arises in respect of the value attributed by each party to the private usage of a company-owned motor vehicle supplied to Mr. McDonnell by the respondent.

Solution:

On either basis (concerning the vehicle), It was found that Mr. McDonnell was a person protected from unfair dismissal under s.382(b) of the Act. His application is within the jurisdiction. The application was listed for substantive arbitration.

12. Nilson v Geelong Kindergarten Association (GKA) [2015] FWC 7936 (18 November 2015)

The Applicant, Jennifer Nilson has been employed as a kindergarten teacher for over 39 years at the same kindergarten, and on 11 June of this year, an incident occurred where two children left the kindergarten. After this incident, the applicant was fired for negligence. The event occurred out of sight of any of the educators employed by the Respondent at the Kirralee Kindergarten.  In that sense, the exit by the children of the kindergarten was unsupervised.

The applicant was represented by Mr Gary Pinchen of A Whole New Approach.

Solution:

Given that there was only one nominated supervisor at Kirralee who was the Applicant.  The non-supervision of children to such an extent that the children were able to escape did provide, a valid reason for the termination of employment of the Applicant. Under s.601 of the Fair Work Act 2009 (the Act), the dismissal was considered to be harsh. The length of service of the Applicant in this matter, and together with her unblemished service record with the employer, is such that any termination of the Applicant will be harsh in its consequences for the personal and economic situation of the employee.

13. Jye Freeman v Team Dreegan Pty Ltd T/A Team Dreegan [2020] FWC 5453 (13 October 2020)

Mr Jye Freeman was employed by Team Dreegan Pty Ltd as a Civil Supervisor. After being dismissed on 25 June 2020, Mr Freeman contends that his dismissal was harsh, unjust and unreasonable. Team Dreegan however denies those allegations and contends that the Fair Work Commission does not have jurisdiction in relation to Mr Freeman’s unfair dismissal claim because he was not covered by a modern award or an enterprise agreement and the sum of his annual rate of earnings was more than the high-income threshold. Mr Freeman agrees that his annual rate of earnings exceeded the high-income threshold and does not contend that he was covered by a modern award, but submitted that an enterprise agreement known as the Team Dreegan Pty Limited Employee Collective Agreement 2006 applied to him during his employment with Team Dreegan. After the document was presented by the respondent, they affirmed that even though such enterprise was available, it didn’t cover Mr. Freeman. Section 382(b) of the Fair Work Act 2009 provides that “A person is protected from unfair dismissal at a time if, at that time: (b) one or more of the following apply: (ii) an enterprise agreement applies to the person in relation to the employment.”

Solution:

The applicant was represented by Gary Pinchen of all whole new approach. During the hearing, it was discovered that the agreement even though it was made when Mr. freeman was employed did not cover him. It was believed that being a collective agreement that is a ‘transitional instrument’ the Agreement is an ‘agreement-based transitional instrument’. I am also satisfied that no other enterprise agreement or workplace determination (under the Act) started to apply to Mr Freeman during his employment with Team Dreegan. There is no evidence or suggestion that the Agreement has been terminated or otherwise ceased to operate.

For the reasons stated, the Agreement did not apply to Mr Freeman at the time of his dismissal. It follows that Mr Freeman was not protected from unfair dismissal within the meaning of s 382(b) of the Act. Mr Freeman’s unfair dismissal application was therefore be dismissed.

A person driving a car

14. Dana Eagland v BMW Melbourne Pty Ltd T/A BMW Melbourne [2018] FWC 649 (31 January 2018)

Mr Eagland was employed by BMW Melbourne from 9 April 2002 until he was dismissed for serious misconduct on 1 September 2017. At the time of his dismissal Mr Eagland was employed as an Assistant Sales Manager in Port Melbourne. Mr Eagland was dismissed for reasons of serious misconduct. His termination letter, dated 5 September 2017, states that Mr Eagland had been dismissed for forging a customer’s signature on a Form 5 Statutory Warranty form, known as a LMCT form, placing BMW’s Motor Car Traders License at risk, and willful neglect of his duties as a BMW Melbourne Used Cars Representative. This dismissal was regarded by the applicant as an unfair dismissal. On 4 September 2017, Mr Dana Eagland made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal. Before his application, On 12 May 2017, Mr Eagland’s position of Assistant Used Car Manager became redundant and he accepted a redeployment position of Sales Consultant – Used Cars. He signed a contract that agreed that all terms and conditions of his original contract remained unchanged. In his role as Sales Consultant – Used Cars, Mr Eagland was responsible for the sales process for used cars from end to end and his duties included liaising with customers, negotiating on pricing, arranging the preparation of vehicles for sale and completing all administrative tasks until the completion of the sale, which included finalizing paperwork.

Solution:

It was determined that the application was made within the 21-day period required by s.394 (2); The applicant was also protected from unfair dismissal for the purpose of s.382 of the Act. It was established that Mr Eagland’s annual rate of earnings was less than the high-income threshold and he had completed the minimum employment period. Since BMW Melbourne was not a “small business employer” as defined in s.23 of the Act, the Small Business Fair Dismissal Code did not apply in this case (s.396(c). However, since Mr. Eagland knowingly forged a customer’s signature on a statutory warranty form, a conduct he admitted to performing on more than one occasion. It was established that there is no evidence that BMW Melbourne encouraged or condoned this fraudulent behavior. Considering all account of the evidence, it was believed that the termination of Mr Eagland was neither harsh, unjust nor unreasonable. The case application was dismissed.

15. Lloyd Baker v Business Risks International Pty Limited T/A BRI security [2018] FWC 962 (13 February 2018)

As at 1 May 2017, Mr Baker was employed by East-West as a security guard, working at the Art Gallery of Western Australia. Mr Baker commenced work as a security guard at the Art Gallery of Western Australia in or around September. On 1 May 2017, East-West terminated the Employment, on 2 May 2017, Mr Baker tendered a letter of resignation from the Employment. On or around 2 June 2017, Mr Baker filed an application for an Unfair Dismissal remedy in the Fair Work Commission nominating BRI as the employer. During a conciliatory meeting, an agreement was believed to be reached by Mr Baker but he later declined the terms of agreement.

Solution:

At the hearing, Mr Baker appeared on his own behalf while Mr Benjamin Gee was granted permission to represent BRI. Seeing he was undecided to go along with the agreement, it was decided that “a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.” The unfair dismissal claim was not upheld and the case was dismissed based on the aforementioned reason.

16. Bidinost v Orica Australia Pty Ltd [2013] FWC 3167 (7 June 2013)

Mr Paul Bidinost (“the Applicant”) made application on  30th October 2012 under s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy in relation to the decision by his employer, Orica Australia Pty Ltd (“the Respondent”), to dismiss him from its employment. Mr Bidinost had been a shot firer with the Respondent but was dismissed for reasons of misconduct in so far as it is alleged that he willfully y tampered with audio monitoring of air noise during site (quarry) blasts. Audio monitoring is required by the Environmental Protection Authority (“EPA”).The Respondent contracts with its clients on the basis that it will regulate blasting to meet EPA standards in relation to noise levels from blasting. The conditions of a license being granted to a quarry to operate include that its blasting activities meet EPA standards.it also contends that tampering with the monitors showed incompetence in their former employee. Under cross examination, Mr. Bidinost admits to tampering with the monitor using a duct tape on some occasions.

Solution:

Even though there was an element of harshness in the termination procedure, it was believed the applicant was not harshly, unjustly or unreasonably dismissed. As a consequence, the applicant’s application for an unfair dismissal remedy was dismissed.

Wilsons parking unfair dismissal case

17. Varvaris v Wilson Parking Australia 1992 Pty Ltd T/A Wilson Parking [2012] FWA 7909 (14 September 2012)

On 7 May 2012, Mr. Steve Varvaris applied s.394 of the Fair Work Act 2009 (‘the Act’) against Wilson Parking Australia 1992 Pty Ltd for an unfair dismissal remedy for his dismissal on 4 May 2012. He was given pay in place of notice.

While trying to prove his valid reasons for the termination of his employment, the employer said the applicant did not adequately perform his duties and failed to meet fundamental employment requirements such as attending work for the required number of hours, completing tasks by the requirements of his role, and performing site visits at car parks at the required frequency, ‘excessive use of a company mobile telephone that was provided for work purposes for personal calls during and after work hours.

However, it was difficult to determine the validity of these reasons for his termination, and hence the order of compensation was made. The applicant seeks $18,307, to reflect the fact that he was out of work for 18 weeks and was given four weeks’ notice, calculated at $68,000 a year.

Solution:

Reinstatement was not sought in this matter, but compensation was, and reasons were given by the applicant why reinstatement was not appropriate. The application was upheld and order an amount of compensation based on the $18,307.69 of financial loss, with a small deduction having regard to the limits placed by the employee on his efforts to mitigate his loss. The respondent was ordered that an amount of $17,307.69 be paid to the applicant.

18. Cartmell v Evolution Traffic Control Pty Ltd [2012] FWA 4750 (1 June 2012)

On 24 October 2011, Mr. Sheldon Cartmell made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr. Cartmell contended that he was forced to resign his employment with Evolution Traffic Control Pty Ltd (Evolution) with effect from 6 October 2011. The application was made four days outside the fourteen-day time limit prescribed in s.394(2)(a) of the Act.

The application was met with an objection by the respondent because:

● Mr. Cartmell was not dismissed; and

● The application for an unfair dismissal remedy was not lodged by Mr. Cartmell within 14 days of the dismissal coming into effect.

On 5 October 2011, Mr. Cartmell was called to a meeting with the CEO of Evolution, Mr. Warman, and the National Safety Manager Mr. Redman, and was told that a complaint had been made about him by the mother of a co-worker, alleging that he had made a racially derogatory comment about that co-worker. Mr. Cartmell said that he denied the allegation. According to the applicant, he was advised to resign and stand for being rehired.

Solution:

At the decision, it was determined that there are exceptional circumstances to justify the exercise of the discretion to extend the time for Mr. Cartmell to make an unfair dismissal application. The application was however dismissed and an Order was issued to that effect.

19. Shone v Compac Marketing (Australia) Pty Ltd [2013] FWC 7662 (7 October 2013)

Mrs Janice Shone (the Applicant) lodged an application for Unfair Dismissal Remedy on 1 May 2013 claiming that she was unfairly dismissed from her employment with Compac Marketing (Australia) Pty Ltd (the Respondent and the new company). The Applicant had been employed since 5 January 2009 as the Financial Controller of the Company and the predecessor entity Compac Marketing Pty Ltd (the previous company).

The previous company went into liquidation in mid-2010. Two of the employees of the previous company, Mr. Shannon Stawarz and Mr. Thomas Harvey became the Directors of the new company and also became two of its employees. The new company took over the assets and liabilities of the previous company as well as all of the employees, including accrued leave obligations and other entitlements accrued.

Her maternity leave pay gave room to her subsequent dismissal. The Applicant stated that she discussed her maternity leave with Mr. Stawarz several times in the period September to December 2012 including the option of her husband, Mr. Martin Shone, performing her duties during that period as a contractor providing those services. Her evidence is that Mr. Stawarz “queried the cost”.

Solution:

During the hearing, it was upheld and found that the conduct of the Applicant occurred and was such that the Respondent lost confidence in her. There was thus a valid reason for dismissal. The dismissal was found to be not unfair and the application was dismissed.

20. Newbond v GM Holden Ltd [2015] FWC 6024 (2 September 2015)

Mr Newbond was employed by GM Holden Ltd at its Holden Service Parts Operation (HSPO) at Dandenong between 11 February 2002 and 10 December 2014. He was employed as a Storeworker and at the time of dismissal worked on an afternoon shift in the Respondent’s National Distribution Centre.

On 10 December 2014, Mr Newbond was dismissed for misconduct and in particular for what was said to be threatening and intimidatory comments made by him to his supervisor. The conduct is alleged to have occurred in November 2014, with the conduct then being investigated by GM Holden.

Having been dismissed on 10 December 2014, Mr. Newbond made an application for unfair dismissal that was received by the Fair Work Commission on 22 December 2014.

Solution:

Due to his inability to produce all the required evidence needed for the hearing, the commission was satisfied that the Applicant has unreasonably failed to comply with an order of the Commission relating to his application. As a consequence, Mr. Newbond’s application for unfair dismissal remedy was dismissed under s.399A of the Act.

Mother giving her mother flowers

21. Jenny Harris v Royal Freemason’s Homes of Victoria Ltd – PR937835 [2003] AIRC 1157; (15 September 2003)

On 12 June 2003, an application under s.170CE of the Act was lodged in the Registry seeking relief concerning the alleged termination of the applicant’s employment on 29 May 2003 by the respondent because the alleged termination was harsh, unjust, or unreasonable and/or contrary to s.170CK of the Act. The application was lodged by the applicant’s representative.

In the application, it was stated that the applicant had been “sacked over the phone for poor attitude”. The applicant did not seek reinstatement but did seek an amount concerning remuneration lost or likely to have been lost because of the termination. On 19 June 2003, the respondent lodged a notice of appearance together with a motion to dismiss the application for want of jurisdiction on the ground that “the termination was not at the initiative of the employer” and that the applicant had “voluntarily resigned her employment”. The respondent moved for the dismissal of the application before the matter was referred to conciliation.

Solution:

In the end, it was agreed that; the “unreasonable act or omission” said to have occurred in this case is the failure of the applicant to discontinue her substantive application at or about 19 June 2003 when the respondent’s motion to dismiss was filed and served. However, the absence of evidence as to the circumstances surrounding the termination of the applicant’s employment, the lodging of the notice of discontinuance, and the timing of that lodging do not draw any conclusion that it was unreasonable either for her to pursue her application after 19 June 2003 or to fail to discontinue her application earlier than 4 August 2003. The application for a costs order, in so far as it was sought under s.170CJ (1) was refused.

22. Harris v Pages Hire Centre NSW Pty Ltd t/as Pages Event Equipment [2010] FWA 8863 (24 November 2010)

Mr. Harris commenced working for the Respondent in April 1998 in Sydney. In February 2007 Mr. Harris was offered a position in Melbourne following his request for a transfer to the Melbourne office. In August 2007 Mr. Harris moved to Melbourne with his family (at the expense of the Respondent).

The Applicant says that the move was always permanent. The Respondent however argues that the basis of the move to Melbourne was not necessarily permanent and that it reserved the right to return Mr. Harris to Sydney if his move to Melbourne ‘did not work out.

On 19 April 2010, the Respondent met with Mr. Harris and advised him (in writing) that his position in Melbourne no longer existed and that, as per the agreement the Respondent says it had with the Applicant. They were willing to offer him his former position in Sydney. The letter to the Applicant of 19 April 2010 also stated that the Applicant was ‘now on long service leave effective from today 19/04/10 until 14/06/10. You will report to Sydney to take up your former position on 15/06/10.’

Mr. Harris says that relocating back to Sydney was such an onerous requirement that he had no choice but to resign. He submits that he was forced to resign because of the conduct of the employer. He has therefore been dismissed and claims this dismissal is unfair.

Solution:

In the decision, it was agreed that Mr. Harris, by his silence for such an extended period, acquiesced to the decision of the Respondent. He did not indicate that the decision of the Respondent was not acceptable. It was not until much later that he then felt that he had no choice but to resign. For all of the reasons set out above It was held that Mr. Harris was not forced to resign by the conduct or course of conduct of his employer. He, therefore, was not dismissed within the meaning of the Act. The application was dismissed.

23. Teresa Napoli v Dabserv Pty Ltd [2009] AIRC 338; (29 April 2009)

Ms Napoli on 14 January 2009 lodged a claim for relief according to subsection 643(1)(a) of the Workplace Relations Act 1996 (the Act) in respect of the alleged harsh, unjust, unreasonable termination of her employment by Dabserv Pty Ltd (Dabserv or the Company). Ms. Napoli also sought relief for the alleged unlawful termination of her employment under s.659 (discrimination or other prohibited reasons) of the Act.

Ms. Napoli was employed by Dabserv as a Deputy Supervisor in the offices of Mallesons and held that position since February 1995. Dabserv appears to be a service company of Mallesons. Ms. Napoli says she was employed by Dabserv from on or about 1 February 1992 until 5 November 2008. The company however says that Ms. Napoli commenced with it in February 1994 as a casual employee and became a full-time employee in April 1994.

She applied for her claim outside the 21 days’ time limit and gives her reasons in the form R27 application for relief, stating she was: “Suffering from depression and panic attacks, unable to get advice over the Christmas/new year period and had attempted to resolve the issues internally.”

Concerning her constructive dismissal case, In November 2007, a new supervisor was appointed to whom Ms. Napoli was to report. The relationship between Ms. Napoli and the supervisor was rocky. Ms. Napoli upholds that it was marked by a campaign of harassment and belittling of her work abilities and work performance which led to a stiff situation in which she felt her only option was to resign.

Ms. Napoli maintains that she was constructively dismissed. While the Company insists that Ms. Napoli voluntarily resigned from her employment. Solution. As soon as the Applicant was aware of the 21-day time limit she immediately instructed A Whole New Approach Pty Ltd to lodge a claim contesting her constructive dismissal.

24. Rigby v BMS Retail Group Pty Ltd [2016] FWC 6846 (27 October 2016)

On 24 May 2016 the employer, BMS Retail Group Pty Ltd, filed applications for costs orders against Ms.Rigby and her representatives under ss.400A, 611, and 401 of the Fair Work Act 2009 (‘the Act’). On 2 June 2016, a hearing was held concerning the costs application. It was agreed that the matter would be adjourned because of an appeal foreshadowed by Ms.Rigby at the hearing but not before and that if the costs application proceeded it would be determined based on written submission. The requirements of s.402 were met.

Solution

At the hearing, it was agreed on her representative A Whole New Approach Pty Ltd was partly responsible for the deficiencies in her case and asked to cover the cost incurred on and after 10 May. The costs on and after 10 May 2016 will be assessed and an order against each of the respondents of that amount will be made in equal parts. Costs for the appeal are of course not included.

25. Kerr v Peacock Films Pty Limited [2011] FWA 3766 (15 June 2011)

Ms. Kerr filed her application for an unfair dismissal remedy on 16 February 2010. On 16 March 2010 Peacock Films Pty Ltd filed a response to the application and raised a jurisdictional objection that the applicant abandoned or resigned her employment, and on that basis, was not eligible to make an unfair dismissal application. A conciliation conference was conducted on 30 March 2010 and the matter was not resolved. On 8 June 2010, a Notice of Representative Ceasing to Act (Form F54) was filed indicating that Aitken and Wilson Lawyers no longer acted for Ms. Kerr. A Directions Conference was conducted on 9 June 2010 to list the matter for Jurisdiction Hearing and issue necessary directions for the conduct of that hearing. On 28 July 2010, material in support of the jurisdictional objection on behalf of Peacock Films Pty Ltd, was filed and served following the Directions. On 1 September 2010, a Notice of Discontinuance (Form F50) was filed on behalf of Ms. Kerr by A Whole New Approach.

Solution

In the end, it was decided that Ms. Kerr chose to discontinue her application in the face of a jurisdictional objection by Peacock Films, which was not a sufficient basis to justify a finding that the application was made vexatiously. in circumstances where the facts upon which the jurisdictional objection was based were disputed. The application by Peacock Films Pty Ltd for an order that Ms. Lorraine Kerr pay the costs of her application for an unfair dismissal remedy in U2010/6223 was therefore dismissed.

fair work case for Dunlop tyres

26. Tim Merriman v Goodyear & Dunlop Tyres (Aust) Pty Ltd t/as Beaurepaires For Tyres [2010] FWA 2913 (15 April 2010)

Mr. T. Merriman (the applicant) under section 394 of the Fair Work Act 2009 (the Act) filed for relief about the alleged termination of his employment by Goodyear & Dunlop Tyres (Aust) Pty Ltd (the respondent or the company). The application was lodged on 26 October 2009. The respondent raised a jurisdictional objection. It claimed that the applicant had not been dismissed at the respondent’s initiative nor had he been forced to resign because of conduct or a course of conduct engaged in by the respondent. It is this issue that is dealt with in this decision.

Solution

In the end, the commission was not satisfied that the applicant was forced to resign because of conduct, or a course of conduct, engaged in by the respondent. It follows that the applicant was not a person who was dismissed. There is no jurisdiction to deal with the substantive application. therefore, the application was dismissed.

27. Bergin and another v Workforce Solutions (Qld) Pty Ltd T/A Workforce Solutions [2011] FWA 7496 (7 November 2011)

Mr. Peter Bennett and Mr. Clinton Bergin have each made applications under s.394 of the Fair Work Act 2009 for relief from termination of employment. Both Mr. Bennett and Mr. Bergin claim the termination of their employment was harsh, unjust, or unreasonable. Both worked for Workforce Solutions Pty Ltd (WFS), a labor hire and placement firm in Brisbane. Mr. Bennett commenced employment on 29 March 2005 and Mr. Bergin commenced employment on 31 July 2006. Both Mr. Bennett and Mr. Bergin had their employment terminated without notice for serious misconduct on 1 July 2011. The circumstances leading up to and the reasons for the termination of each man are essentially the same. It was therefore agreed by the parties that the applications would be heard together.

Solution

It was determined that both men had been wrongfully terminated and deserved compensation. Taking all of these matters into account It was determined that Mr. Bennett was entitled to an amount of $31,480, less tax, in compensation while Mr. Bergin is entitled to an amount of $24,700, less tax, in compensation.

28. Trebelas v The Trustee for C & S Nastas Family Trust T/A Beta Group [2011] FWA 4385 (12 July 2011)

Mr. Arthur Trebelas (the Applicant) was employed by the Beta Group Pty Ltd (the Respondent) from 17 November 2008 until his employment was terminated on 6 February 2011. Mr. Trebelas lodged an application for relief under section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 11 March 2011, and then for hearing on 8 June 2011. Mr. Trebelas was employed as Head Chef at a restaurant called the Den Bar and Bistro located at Monash University in Clayton, Victoria. It was Mr. Trebelas’s evidence that there were no issues with his work performance during his employment with the Respondent. He said there were issues with Mr. Nastas not providing him with a pay slip. When he asked for them, he would be told that they would be printed off for him. In May 2009, he again asked for pay slips and Mr. Nastas then printed off all the pay slips, from the commencement of his employment until 15 May 2009. It was Mr. Trebelas’s evidence that, after this date, he still did not receive pay slips and he stopped asking for them “out of sheer frustration and to avoid confrontation.”

Solution

It was discovered that the termination of Mr. Trebelas’s employment was harsh, unjust, and unreasonable. It was also agreed that Mr. Trebelas should receive the amount he would have been paid for those four weeks being $3420.00 gross plus $307.80 paid as a superannuation contribution.

29. Brett v Capital Glass as Trustee For Currie Haynes Trust T/A Capital Glass Pty Ltd [2011] FWA 5796 (29 August 2011)

At the time of the termination of his employment, the Applicant had been employed by the Respondent as a glazier since October 2009. The Applicant had been presented with but had never signed, a contract of employment. Further, the Applicant had been presented with but had refused to sign, a Tools of Trade Agreement (the Agreement). On 18 January 2011, the Applicant attended a meeting with Mr. Currie regarding the signing of the Agreement. The Applicant refused to sign the Agreement as he stated ‘it would be impossible for me to comply with it and I would risk breaking it.’

Solution

It was agreed that the respondent’s treatment of the applicant on 24 January 2011 was harsh, unjust, or unreasonable, hence unfair within the meaning of s.385 of the Act. As a remedy, an order was made that the Respondent pays to the Applicant by way of compensation a sum of seven thousand nine hundred and sixty-eight dollars ($7968.00).

30. Department of Education and Early Childhood Development v A Whole New Approach Pty Ltd [2011] FWA 8040 (29 November 2011)

On 21 April 2011, Mr. Kirk Skinner made an application for an unfair dismissal remedy under section 394 of the FW Act. That application advised that Mr. Skinner was represented by the Respondent. Mr Skinner advised that the date of his dismissal was 18 January 2011. The application was not lodged within 14 days of the dismissal and no application to extend time was made.

In its response to the application, the Respondent to the unfair dismissal application and the Applicant in this proceeding, raised three jurisdictional objections:

  • The application was out of time.
  • Mr Skinner was employed on a fixed term contract which expired on 17 December 2010 and therefore Mr Skinner was not dismissed.
  • Mr Skinner was not a national system employee as he was engaged on a contract for services.

Solution

As the Respondent had not been granted permission to appear, Fair Work Australia is not able to award costs against the Respondent.

Solution:

At the end of the day, her application outside the 21 days limit was considered. It was accepted that the mental anguish and medical condition suffered by Ms Napoli provide a satisfactory explanation for the delay in applying. The case was validated and recommended for conciliation.

Wrapping up

Getting conflicted with your employer or co-workers is a possibility that could lead to unfair dismissal. Pursuing an Unfair Dismissal or General Protections application in the Fair Work Commission, may lead to an award for payment of money (compensation) or getting your job back (reinstatement).

A key difference between an Unfair Dismissal and a General protection application is the nature of compensation that may be awarded. While compensation in an unfair dismissal claim is capped at the applicant’s 26 weeks’ pay or $76,800 at maximum, to restore the dismissed employee to the financial position they would have been, before dismissal. The compensation amount in a General protection application is not capped.

Dealing with workplace grievances can be debilitating and exhausting without proper guidance. That is why we are here to help you navigate the murky waters of settling workplace issues and getting started with pursuing an unfair dismissal claim against your employer. We are experienced and committed to ensuring we get you justice and help you get your due compensation. Are you unsure about handling issues in your workplace? Talk to us today at 1300 766 700 to get started.

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