You need to finish what you start

The Fair Work Commission is committed to “a fair go all round”. This does not mean, however, that it is there purely for the convenience of one party to an application.

This much is demonstrated in Newbey v Atlas Group Pty Ltd [2016] FWC 5246.

On 22 April 2016 Mr Newbey applied for an unfair dismissal remedy arising from the termination of his employment at Atlas.

When Atlas lodged its response saying that the termination was a genuine redundancy the commission listed the application for conferences and directions, neither of which Mr Newby attended or complied with over a two month period.

As a date for participation or compliance approached, Mr Newbey, who had obtained another job in the meantime, routinely emailed the commission that he was unavailable requesting another time.

Matters came to a head when he had not lodged documents by 27 September 2016 in compliance with directions earlier given. When the commission could not reach Mr Newbey and there was no explanation from him, it dismissed his application under section 399A of the Fair Work Act.

The lesson for dismissed workers is that they must be prepared to see their applications through.

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Fixed means just that

A security guard employed at the Manus Island Detention Centre has been found not to have been unfairly dismissed when extensions to a fixed term contract of employment ended.

The decision is reported at Cowan v Wilson Parking Australia trading as Wilson Security [2016] FWC 5768.

Mr Cowan was employed as a security guard at Manus between March 2014 and April 2016.

His original contract of employment had an end date of 30 September 2014.

When the contract was about to end he was offered a further contract, which took him to October 2015 and then two further extensions that took him to the end of April 2016.

Each time his employment was extended, Wilson specified that there was an end date and as a consequence Mr Cowan would not be entitled to be paid a redundancy if his employment was not extended.

In the end Wilson did not extend Mr Cowan’s employment because a police certificate that Mr Cowan had supplied when he first started with Wilson showed that he had a conviction for driving offences and Wilson concluded that Mr Cowan would not be able to obtain a security licence.

Along with Mr Cowan, Wilson also let five other employees go, whose fixed term contracts with extensions had also expired.

Although Commissioner Wilson acknowledged that a fixed term contract could be a sham he was satisfied that that was not the case with Mr Cowan.

Wilson did not want to commit to permanent employment because at the time it was negotiating with Transfield, which held the head security contract with the Australian Border Force to continue to supply guards to Manus Island.

Against this backdrop and letters from Wilson to Mr Cowan each time he had an extension that his employment would end unless further extended, Commissioner Wilson had no difficulty in deciding that Mr Cowan’s employment ended because of the effluxion of time and not at the initiative of the employer, Wilson.

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Please ask nicely

Peter Lambos was a bus driver with the ACT Internal Omnibus Network.

In September 2014 he was having problems with his driver’s seat and complained about it to a manager.

Three months later, the problem persisting, he contacted his employer’s workplace health and safety coordinator.

There was a dispute as to what Mr Lambos actually said to the coordinator in their conversation but it was not disputed that he mentioned “Columbine”, a reference to the spree killings at Columbine High School in the United States in 1999.

Mr Lambos was suspended on full pay whilst the employer investigated what it regarded as serious misconduct constituted by:

1. Mr Lambos allegedly saying “If ACTION touch me this will be another Columbine”;
2. Inappropriate behaviour to colleagues in breach of the respect equity and diversity framework constituted by accusing management of being corrupt.

After the investigation was held, which took some months, Mr Lambos was terminated from employment for serious misconduct.

Commissioner Kovacic found the serious misconduct established and that the consequent dismissal was not a harsh, unjust or unreasonable response: Lambos v ACT Government as represented by the Territory and Municipal Services Directorate [2016] FWC 3835.

All Mr Lambos wanted was a driver’s seat that did not “bottom out” causing jarring injuries but the way he went about trying to get something that was perfectly reasonable led to him not only not having a proper seat but also not having a proper job.

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Don’t be late! These are the risks of filing an unfair dismissal application out of time.

If you are terminated from your employment, you will only have 21 days from the date the dismissal takes effect to file an unfair dismissal of general protections application with the Fair Work Commission.


The Fair Work Commission is notoriously strict with its application filing deadlines and will only extend the time for lodgement in exceptional circumstances.


In the matter of Langtry and Mitolo Group Pty Ltd, the applicant filed his application seven weeks’ out of time. Mr Langtry’s explanation for his late lodgement was that he was unaware of the existence of the unfair dismissal jurisdiction within the Fair Work Commission and it was not until discussing the matter with a family matter that he learned he could make such an application. As we all know, ignorance of the law is no excuse and in Langtry and Mitolo Group Pty Ltd, the application was not allowed to be filed out of time.


The 21 day lodgement period is calculated on calendar days, rather than business days, so if you feel you have been unfairly terminated, act quickly!


Contact the Workplace Relations team at Nevett Ford on (03) 9614 7111 to ensure you are fully aware of your rights and entitlements. 

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The importance of hospitality venues getting proper advice about pay obligations

It is most important that employers make sure they understand what wages they need to pay their employees, including penalty rates and payments for public holidays.

This issue has recently been highlighted with a restaurant chain being obliged to reimburse staff $21,700.00 for underpaying employees for their Christmas day entitlements.

Many underpayments are inadvertent but it is important to ensure that restaurants comply with their minimum obligations under the Australian Workplace laws.

Employees who wish to ensure they comply with their workplace obligations should not hesitate to contact the Workplace Relations department of Nevett Ford Lawyers.

Nevett Ford Lawyers provide advice on all aspects of Employment Law.

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Sticks and stones may break bones but names can get you sacked

Many employers have policies or codes of practice to govern the relationships between employees.

Employees who abuse their colleagues or gossip about them can face dismissal as a sanction because what they say is a breach of the employer’s polices or codes.

The Fair Work Commission recently heard two unfair dismissal applications that related to misconduct based on what employees said.

In Sayers v CUB Pty Ltd [2016] FWC 3428, the Commission found that a dismissal based on an employee swearing and racially abusing a colleague was justified.

In Beamish v Calvary Health Care Tasmania Ltd [2016] FWC 1816 the Commission found that a dismissal based on emails gossiping about or disparaging a manager was not justified although the emails showed a lack of judgment.

In both cases the Commission found that what Mr Sayers and Ms Beamish said were breaches of their respective employer’s policies or codes on how to behave towards others.

The language Mr Sayers was found to have used was threatening, racially motivated and littered with four letter words.

Mr Sayers knew what the correct procedure was for complaining about a colleague: racially abusing him was not the way to go.

Fifteen years of unblemished service with CUB and an otherwise good relationship with management did not help Mr Sayers.

The Commission, like CUB, showed no tolerance for racial abuse and the dismissal was upheld.

Ms Beamish had been sarcastic and disparaging in her comments about a manager. Some of what she said was funny – but at the manager’s expense.

Although not abusive or racially motivated what she said was still contrary to Calvary’s values distilled in its code of conduct as “hospitality, healing, stewardship and respect”.

Ms Beamish apologised at the first opportunity and recognised her behaviour as immature and inappropriate.

The Commission was prepared to reinstate her because it was satisfied she would be “welcome back by the overwhelming majority of employees”.

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Lost your licence? Lose your job

If an employee loses his driver licence where driving is a part of his work, he can be fairly dismissed for misconduct. This much is demonstrated by the decision in Zeiter v Melway Bin Hire and Demolition Pty Ltd [2016] FWC 2823.

Mr Zeiter was stopped by police for using a mobile phone while driving. During the stop the police notified Mr Zeiter that his licence had been suspended for a period of three months.

When Mr Zeiter told his employer about the difficulties with his driver licence the employer effectively terminated him but did not tell him for nearly a month afterwards.

At the hearing of the application the employer argued that Mr Zeiter’s failure to maintain a driver licence was a frustration of the employment contract so that there was no dismissal, as opposed to a breach of the employment contract for which there could be a dismissal.

Commissioner Ryan thought the better analysis was that of breach of contract.

He found that the employer had not acted in a procedurally fair way towards Mr Zeiter but that the shortcomings were not sufficient to find that the dismissal had been harsh or unjust or unreasonable.

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