Unfair dismissal claims against Pacific National dismissed

A group of eight former employees of Pacific National Bulk Rail have had their unfair dismissal claims rejected by the Fair Work Commission (FWC).

After four days of hearings, it found that each worker lost their job because of a genuine redundancy arising from a changing business environment.

The catalyst for this change was a reduction in the number of trains required by GrainCorp and another Pacific National Bulk Rail customer. This was advised in March last year, and took effect from July 1. The applicants had been based at depots in Moss Vale, Narrabri, and Werris Creek in New South Wales.

The company, and its parent Asciano, was found to have immediately advised its workforce and the Rail, Tram and Bus Industry Union (RTBU) of its plans to negotiate redundancies and redeployment opportunities for the affected staff.

The consultation period that followed was likewise found to be genuine, with FWC senior deputy president Jonathan Hamberger noting that some aspects of the downsizing process were changed as a result of the employee feedback.

He says some of the eight applicants formed the view that the downsizing would not affect them, and therefore took little interest in the process.

"While some failed to attend meetings I am satisfied that this was more due to a lack of interest on their part, rather than because they had been prevented from attending by the respondent," Hamberger says.

"Even where employees were unable to attend the scheduled presentations, I am satisfied that they had other opportunities to make their views known."

Hamberger also found that the Asciano had made all reasonable effort to redeploy the staff, but was unable to meet specific demands for local work.

"None of the applicants applied for redeployment to any available roles. They either expressed no desire to be redeployed or were only interested if positions were available locally," he says. "None of the applicants were able to identify any alternative roles (that were actually available) to which it would have been reasonable to appoint them."

Story by Paul Howell

Repost from Australasian Transport News

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Website: www.awdr.com.au

Unfair dismissal claims against Pacific National dismissed

A group of eight former employees of Pacific National Bulk Rail have had their unfair dismissal claims rejected by the Fair Work Commission (FWC).

After four days of hearings, it found that each worker lost their job because of a genuine redundancy arising from a changing business environment.

The catalyst for this change was a reduction in the number of trains required by GrainCorp and another Pacific National Bulk Rail customer. This was advised in March last year, and took effect from July 1. The applicants had been based at depots in Moss Vale, Narrabri, and Werris Creek in New South Wales.

The company, and its parent Asciano, was found to have immediately advised its workforce and the Rail, Tram and Bus Industry Union (RTBU) of its plans to negotiate redundancies and redeployment opportunities for the affected staff.

The consultation period that followed was likewise found to be genuine, with FWC senior deputy president Jonathan Hamberger noting that some aspects of the downsizing process were changed as a result of the employee feedback.

He says some of the eight applicants formed the view that the downsizing would not affect them, and therefore took little interest in the process.

"While some failed to attend meetings I am satisfied that this was more due to a lack of interest on their part, rather than because they had been prevented from attending by the respondent," Hamberger says.

"Even where employees were unable to attend the scheduled presentations, I am satisfied that they had other opportunities to make their views known."

Hamberger also found that the Asciano had made all reasonable effort to redeploy the staff, but was unable to meet specific demands for local work.

"None of the applicants applied for redeployment to any available roles. They either expressed no desire to be redeployed or were only interested if positions were available locally," he says. "None of the applicants were able to identify any alternative roles (that were actually available) to which it would have been reasonable to appoint them."


Story by  Paul Howell


Repost from Australasian Transport News

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Canberra business HW Carpentry Solutions faces legal action from Fair Work Commission

A Canberra carpentry business allegedly ignored an order to pay compensation to an unfairly sacked employee.

Heath Wright and his company HW Carpentry Solutions will face the Federal Circuit Court next month after allegedly failing to pay the man $7650.

The Fair Work Ombudsman will ask the court to order Mr Wright and the company to pay the outstanding cash.

Mr Wright could also face a fine up to $10,200 and his company faces a maximum penalty of $51,000.

In August, the Fair Work Commission ordered $7650 in compensation be paid to an adult apprentice tradesman it found had been unfairly dismissed from his job.

But the 14-day deadline to receive the payout was not met and the employee lodged a complaint with the Fair Work Ombudsman.

The watchdog then launched the court action on the worker's behalf.

Fair Work Ombudsman Natalie James said the watchdog had unsuccessfully attempted to get Mr Wright to comply with the orders before taking the matter to court.

"Our inspectors made repeated efforts to engage with this business to try to resolve the matter, but were not able to secure co-operation," Mr James said.

"Compliance is fundamental for the integrity of the workplace relations system and employers should be aware that we are prepared to take action where appropriate."


Story by Michael Inman

Repost from The Canberra Times

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Car salesman loses unfair dismissal case after alleged cocaine use

A car salesman who allegedly gave a substance presumed to be cocaine to a young co-worker has failed in his bid for an unfair dismissal claim against his employer.

The Fair Work Commission found the dismissal of Emmanuel Young by Stewart Automotive Group in New South Wales for gross professional misconduct was not harsh, unjust or unreasonable.

Stewart Automotive Group alleged on June 28 last year, Young offered a newly-recruited female clerk a substance which he led her to believe was cocaine and he ingested that substance with her in his company car during work hours.

The young employee, named only as PM in commission documents, gave evidence that she accepted the drug but later found it had little effect on her.

Young was dismissed on July 14, following an investigation of the matter by the company.

But Young gave conflicting evidence, denying taking any drugs at the workplace on that day, or any other day, or inviting his co-worker to his car.

He claimed the real reason for his dismissal was that there was not enough work for both him and another co-worker employed in a similar position to his own, whom he claims was a personal friend of a senior manager.

Young told the commission Stewart Automotive had seized upon the opportunity to get rid of him for the benefit of the other co-worker.

But commissioner Helen Cargill accepted the young clerk’s evidence and found Young’s actions amounted to misconduct and provided a valid reason for his dismissal.

“In this regard I prefer the evidence of PM,” Cargill said. “I found her to be a credible witness who gave clear, firm and responsive evidence.”

Cargill found Stewart Automotive Group had a drug and alcohol policy in place which prohibited employees from consuming or being under the influence of alcohol or any illegal substance while at work and Young had breached this policy.

Ben Tallboys, senior associate at law firm Russell Kennedy, told SmartCompany while the commission accepted misconduct occurred, no one was absolutely certain the young worker was offered cocaine.

“However, the commission accepted the co-worker’s evidence that the applicant offered the co-worker cocaine, and that they both ingested a substance that the applicant alleged was cocaine, and this was sufficient to amount to misconduct warranting dismissal,” Tallboys says.

Tallboys says it was important that Stewart Automotive Group had a clear drug and alcohol policy, and that Young was aware of the policy before engaging in the relevant misconduct.

“This case again highlights an employer’s obligation to satisfy the commission that the relevant misconduct warranting a dismissal actually occurred,” he says.

“The employer must demonstrate not only that the relevant conduct occurred, but also that the conduct was prohibited.”

Repost from SmartCompany.com.au

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NCT firm settles legal challenge to unfair dismissals ruling

Applus claimed tribunal erred in determining that employee’s dismissal was unfair.

The company that operates the National Car Test for the State, has settled a legal challenge to a finding that it had unfairly sacked a car tester following allegations by a whistleblower.

The Employment Appeals Tribunal had been told in May last year that the dismissal of Co Louth man Richard Mark Matthews by Applus Car Testing Services had been a “knee-jerk reaction to an RTE Prime Time programme” on Applus.

Today’s appeal came before the Circuit Civil Court following the tribunal’s finding that Mr Matthews, of Oriel Cove, Clogherhead, Co Louth, had been unfairly dismissed more than three years ago and its compensation award of €47,500 to him.

Mr Matthews, who was the team leader at the company’s NCT centre in Drogheda, had been accused of driving vehicles that were not his own to the car centre and testing them himself. He had denied the allegations.

The tribunal found that evidence to support the allegations seemed tenuous at best and that the decision to dismiss him was unreasonable in all the circumstances.

The tribunal found that Applus had made assumptions based on addresses and names given to them by the whistleblower and which seemed to be without foundation.

It heard that an investigation had begun in August 2011 after a call had been made to the company’s whistleblower phoneline established shortly after the RTÉ programme in May 2011.

The anonymous caller, who had indicated a willingness to be identified, had provided a list of car registration numbers which Mr Matthews allegedly tested between January 2010 and August 2011 and had claimed Mr Matthews had known their owners.

The whistleblower had later sent photos of cars to the regional manager who investigated the allegations. Mr Matthews had denied he knew any of the owners.

He was dismissed by letter on November 29th 2011, on grounds that he was in breach of Applus’ code of integrity for driving vehicles to the test centre and testing them.

The tribunal said it had found no evidence that Mr Matthews drove vehicles to the test centre on behalf of others and then tested them.

In its appeal, Applus claimed the tribunal had erred in determining that Mr Matthews’s dismissal was unfair. It stated its former employee’s conduct constituted a breach of the company’s procedure.

Circuit Court President Mr Justice Raymond Groarke was told the matter had settled and could be struck out with no further order.

News Courtesy: IT

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Former Tesco drivers to demonstrate over 'unfair dismissal'

Former Tesco drivers who claim they have been unfairly dismissed will be demonstrating outside a distribution centre in Doncaster today.

They will also be outside Tesco stores and Eddie Stobart depots across Yorkshire. The drivers lost their jobs nearly two years ago, when they were transferred from Tesco to Eddie Stobart Ltd.


They maintain that ESL and Tesco had together agreed to make 184 drivers redundant well before the workers had been consulted.

Tesco say it did everything it could to offer the drivers alternative roles at Tesco - and that offer was made again when Stobart's closed the transport operation at Doncaster last year. Eddie Stobart claim the workers were offered the best possible financial package.

The employment tribunal hearing the case is set to reconvene on 12 January next year.


Repost from ITV News

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No unfair dismissal in Vic sex case: court

A Melbourne woman who claimed she was only made redundant after complaining of sexual harassment has had her unfair dismissal appeal rejected.

Kate Shea, who worked for EnergyAustralia as a corporate and government affairs director from 2007 until 2012, made a complaint of sexual harassment after a work function in Hong Kong in 2010.

She made four extra complaints about her employer's handling of the case before a company restructure in 2012 made her position redundant.

In two earlier court cases, Ms Shea claimed she had been unfairly dismissed for exercising her right to complain.

But the Full Court of the Federal Court of Appeal on Monday backed the decisions of two earlier judgments.

The court said Ms Shea had failed to demonstrate that the earlier judges had been incorrect in determining none of her complaints were a substantial and operative factor of EnergyAustralia's decision to make her position redundant.


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Story by AAP

Repost from Yahoo!7 News

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