An employee who worked for less than three months for an on-hire agency before spending more than a year on workers'-comp leave is protected by unfair dismissal laws, Fair Work Australia has found. Also in this article, FWA has ruled that bad language and agitated behaviour are grounds for dismissing a flight attendant - but not a construction worker.
In the first case, the casual WorkPac Pty Ltd employee was working a seven-day, rotating 12.5-hour shift roster as a dump truck operator at the Mt Owen Mine in NSW when he was injured in June 2010.
By September 2011, he was fit to return to work, but WorkPac said there were no assignments available, and issued him with a separation certificate to allow him to access unemployment benefits.
The worker filed an unfair dismissal application.
The employer told FWA Commissioner Alastair Macdonald that even though it issued the separation certificate, the worker's employment had not actually been terminated.
It said it continued seeking work assignments for him, but had been unsuccessful to date.
It also argued the worker was not entitled to rely on unfair dismissal laws because he was employed on a casual basis and had only been working for two-and-a-half months before his injury, well short of the six-month period required under s383 of the Fair Work Act.
But Commissioner Macdonald found the worker was "engaged on a regular and systematic basis with the reasonable expectation of continuing employment" before he was injured.
Additionally, he found that an absence taken while on workers' compensation payments constituted an "authorised absence", and counted towards a worker's service.
The worker, therefore, had been employed by WorkPac for more than six months, and was protected from unfair dismissal. A substantive hearing of the matter will be held later.
Bambach v WorkPac Pty Ltd [2012] FWA 670 (9 March 2012)
Sacking of swearing Qantas flight attendant upheld
Bad language and agitated behaviour are grounds for dismissing a Qantas flight attendant, but FWA Commissioner Michelle Bissett said it would not necessarily be so in other workplaces.
Qantas had found the flight attendant in breach of its standards of conduct policy when she swore at a manager, failed to follow a direction to stop using inappropriate language, and used physical force to try to gain entry to the manager's office in June 2010.
The flight attendant had been working for Qantas subsidiary Sunstate Airlines (trading as QantasLink) in Brisbane, and her employment was terminated in June 2011 after she failed to take up an offer of alternative employment in Sydney.
Commissioner Bissett said the employee, who applied for an unfair dismissal remedy, "failed to treat her co-workers and manager with dignity, respect and fairness. Her outburst was prolonged, her language inappropriate and her consideration for the effect of her conduct on others non-existent".
She said that although conversational swearing might be commonplace, the aggressive behaviour exhibited in this incident was "not common or normal in an office environment."
"Had it occurred on a building site or been common in the workplace I might have formed a different opinion," she said.
Commissioner Bissett said she was satisfied with the actions of QantasLink management, and the sacking was justified.
Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWA 1360 (5 March 2012)
