by David Kidd | Sep 25, 2018 | Annotated Fair Work Act
[2018] FWC 4991 Qld Star v WorkPac P/L (“Ms Star’s dismissal was brought about by the response of WorkPac to the directive from BMA [host employer] to remove her from the Goonyella Riverside Mine site. … Ms Star’s dismissal related to conduct. That conduct was not a valid reason for dismissal. There is no evidence of any other reason – valid or otherwise – for a directive to be issued by BMA requiring the removal of a longstanding labour hire employee from the Goonyella Riverside Mine site. The dismissal was also unfair on the basis that there was no discussion with Ms Star about the decision to remove her from the site and the consequential termination of her employment prior to the termination being effected. The BMA directive was accepted by WorkPac managers as a fait accompli and there was no attempt made to discuss the directive with a relevant manager of BMA or to confirm the reason for the directive or whether the contractual provisions between BMA and WorkPac with respect to unsatisfactory performance by WorkPac personnel applied. The dismissal of Ms Star was harsh because of its consequences for her personal and economic situation and because there was no conduct sufficient to justify her dismissal. The dismissal was also unreasonable because it was decided on inferences which were not reasonably open to WorkPac on the basis of the information it had or which it could reasonably have obtained from BMA” @105-107 – in [2018] FWC 5745 reinstatement to the same position at BMA ordered against WorkPac despite no surety BMA will allow it – no purpose would...
by David Kidd | Jul 23, 2018 | Annotated Fair Work Act, Fair Work Law & Annotated Act
Employee or Independent Contractor Case [2018] FWC 4038 NSW Barratt-Hassett v PERC Group P/L (initially, the A accepted work with R and invoiced R – subsequently A accepted a formal employment contract, but claimed he was also an employee in the initial period he worked – it was finely balanced, but A held to be an employee from the beginning as he was not running his own business and establishing goodwill) [2018] FWC 4285 Vic Seaver v Trade Fair @ Falls Creek (the A “was a skilled graphic designer who exercised a degree of expertise and autonomy in performing her work. She clearly did not require any direct supervision, but was simply provided with direction by email in regard to what was to be done in respect of each publication. She worked from home and did not have set hours. She was simply provided with direction by email, often close to deadline, and then was expected to do whatever was required to complete the work in accordance with those directions” @21 – A “generally earned around 80 percent of her income from her work with K C Bell Enterprises, although she also indicated that this figure might actually have been higher. However, she did have another part-time job, although this was unrelated to her work as a graphic designer. It also appears that she had some capacity to do other work, given she only worked for the Respondent for around 34 weeks each year, and the hours she worked appeared to be concentrated around publication times. KC Bell Enterprises indicated … it understood Ms Seaver did work on occasions...
