The applicant, who had been employed by the respondent before her dismissal, filed an unfair dismissal claim before the Commission. Shortly thereafter, the representative for the respondent communicated to Registry that he believed the claim ought not be accepted, and that he was recording the conversation to discuss the matter on the radio. Subsequently, the respondent emailed the Commission to confirm he would not participate in proceedings and corresponded further later the same month. The Commission advised the respondent that his communications were threatening and inappropriate.

Once a conciliation conference was scheduled in the proceedings, the respondent informed the Commission that he was unable to attend. Given the communications received by the Commission and Registry from the respondent, the Commission formed the view that conciliation would not assist in resolving this matter and made orders that the parties file appropriate forms, including that the applicant file an amended application, and that the matter be listed for hearing. The applicant did not file the required amended application and did not respond to communication from the Commission in the leadup to the scheduled show cause hearing, nor did she appear at the show cause hearing.

Commissioner Walkington determined that the applicant had sufficient opportunity to demonstrate her desire to continue with her unfair dismissal application and had not done so. Additionally, the Commissioner considered that while the behaviour of the respondent had been uncooperative and sometimes aggressive, that his conduct did not negate the need for the applicant to progress her claim. Accordingly, the Commissioner found that the applicant had failed to prosecute her claim and dismissed the application.

The decision can be read here. 

The applicant, a Canteen Assistant, lodged a claim of unfair dismissal against the respondent employer. The respondent raised a jurisdictional objection to the application, contending that as the applicant was employed as a casual employee, she was not eligible to make the claim.

The applicant contended that she was unfairly dismissed and was not informed that she was employed on a casual basis. She claimed that her permanent work shifts were on Fridays during the school term and that she covered shifts for other staff when needed. The respondent, on the other hand, contended that all her staff, including the applicant, were employed as casuals under the same award and written employment contracts. The respondent argued that there was no firm advance commitment to ongoing work and that the applicant was aware of her casual status.

As there is no dismissal when the employment relationship between a casual employee and their employer ends in accordance with the terms of the contract, Commissioner Tsang reviewed the evidence to determine the nature of the employment relationship. The Commissioner heard evidence, including that the applicant was paid a casual loading, the nature of the employment relationship as having commenced to “fill the gap” left following the resignation of another employee, and that the written contract of employment described the nature of the employment relationship as casual.

Finding that the nature of the employment relationship was indeed casual, and that the employment relationship had ended in accordance with the terms of the contract, Commissioner Tsang determined that the Commission lacked jurisdiction to deal with the application, and accordingly it was dismissed.

The decision can be read here. 

NOTICE is given that an application has been made to the Commission by the secretary of the The Construction, Forestry, Mining and Energy Union of Workers under section 49N(1) of the Industrial Relations Act 1979 (WA) for a right of entry permit to be issued to Mr Walter Molina.

The notice can be read here.

NOTICE is given that an application has been made to the Commission by the secretary of The Plumbers and Gasfitters Employees' Union of Australia, West Australian Branch, 
Industrial Union of Workers under section 49N(1) of the Industrial Relations Act 1979 (WA) for a right of entry permit to be issued to Mr Troy Smart.

The notice can be read here.

The applicant union applied to the Commission for a right of entry permit for its organiser. The Commission was required to determine whether the organiser was a "fit and proper person" under ss 49O and 49P of the Industrial Relations Act 1979 (IR Act), while also considering a previous contravention of the Fair Work Act 2009 by the organiser during his employment with another union.

The contravention occurred in October 2013, when the organiser entered a worksite without providing the required notice and engaged in discussions with workers. The organiser was found to have acted in an aggressive, loud, rude, and threatening manner towards the Site Operations Manager. As a result, the organiser was ordered to pay a pecuniary penalty of $2,200 and had his right of entry permit suspended for four months in 2016, with a ban on further permits during that period.

The Commission noted that the contravention occurred nearly twelve years prior, the penalties had been served, and the conduct was part of a broader campaign directed by the organiser’s former employer, rather than being solely reflective of their personal character.

In considering the criteria for a "fit and proper person" as set out in s 49P of the IR Act, the Commission evaluated whether the organiser had completed appropriate training, confirmed the absence of any further relevant convictions or penalties, and noted that the organiser had held right of entry permits since 2017 without incident.

The Commission referenced previous decisions, including a 2017 Fair Work Commission determination, which found the organiser to be a fit and proper person to hold a right of entry permit. That decision noted the organiser’s understanding of their statutory obligations and observed that their prior conduct was inconsistent with the standards expected of permit holders. The Commission was satisfied that the historical contravention did not disqualify the organiser, having regard to the passage of time, the absence of further misconduct, and the completion of all penalties.

Senior Commissioner Cosentino, upon consideration of the evidence, made the following findings:

• The single past contravention did not disqualify the organiser, due to the time elapsed, the fulfilment of all penalties, and the organisational context in which the conduct occurred.
• The organiser had demonstrated ongoing compliance and appropriate conduct in subsequent professional roles.
• All requisite training requirements had been satisfied.
• The Fair Work Commission has, over the past eight years, consistently found the organiser suitable to hold right of entry permits.

Accordingly, the Commission determined that the organiser is a fit and proper person to hold a right of entry permit, and a permit was issued.

The decision can be read here.