Fair Work Australia Case Study

About Fair Work Australia (FWA)

National workplace relations tribunal of Australia was set up at 1904 as the Commonwealth Court of Conciliation and Arbitration with the passage of the Commonwealth Conciliation and Arbitration Act.(“History,” n.d.)

Since then, national workplace relations tribunal has developed in accordance with social, legislative and economic changes. In 2009, Fair Work Act passed and Fair Work Australia established. In 2012, Fair Work Amendment Act renamed it to Fair Work Commission.(“History,” n.d.)

Fair work commission, as the Australia’s national workplace relations tribunal, they have responsibilities to protect the maintain employment conditions such as the minimum wages, working environment, and also the other series

of the regulation and features.
Fair work commission is an independent department which has power to performance a series of activities consist of(“Fair Work Commission,” n.d.):
• providing a safety net of minimum conditions, including minimum wages, in awards
• facilitating good faith bargaining and the making of enterprise agreements
• granting remedies for unfair dismissal
• regulating the taking of industrial action
• resolving a range of collective and individual workplace disputes through conciliation, mediation and in some cases arbitration
• Functions in connection with workplace determinations, equal remuneration, transfer of business, general workplace protections, right of entry and stand down.
According to the functions that provide by the Fair work commission, we are here to discuss a simple case which is relay on the application for relief from unfair dismissal.
Case introduction
Drew Westfield Vs National Australia Bank T/A NAB (U2015/9142)
Applicant: Drew Westfield
Respondent: National Australia Bank T/A NAB
Melbourne, 21 August 2015
Issue:
At 7 December 2013, the respondent (National Australia bank) arranged a Christmas function, the applicant (Drew Westfield) made inappropriate behavior in the function.
At 18 December 2013, the senior management approaching an offer to the applicant which the applicant could resign, otherwise the applicant would be dismissed. So the applicant resigned his employment.
At 19 December 2013, the applicant contacted and explained to the respondent for his inappropriate behaviors and asking the respondent explore options other than termination the employment relationship, but the respondent reject the applicant at 23 December 2013.
After determination, the applicant moving on with life with new employment with a friend until he saw a media reports of Keenan vs Leighton Boral Amey NSW P/L which is issued on 26 June 2015.(“[2015] FWC 3156 | Document search | Fair Work Commission,” n.d.) He decided to make application in this matter.
The applicant field an application according to s.394 of Fair Work Act 2009 on 7 July 2015 and seeks an extension of time based on s.394 (2) (b) of the Act.
Relevant law
To consider if the dismissal is unfair, it need premeditate on the basis of Fair Work Act 2009 – Sect 387: The FWC must take into account according to numerous of criteria, in considering if it is satisfied that is a harshness, unjustified or unreasonable dismissal. (“FAIR WORK ACT 2009 - SECT 387 Criteria for considering harshness etc.,” n.d.)
Fair Work Act 2009 – Sect 394(“FAIR WORK ACT 2009 - SECT 394 Application for unfair dismissal remedy,” n.d.)
Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) Within 21 days after the dismissal took effect; or
(b) Within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) The reason for the delay; and

(b) Whether the person first became aware of the dismissal after it had taken effect; and

(c) Any action taken by the person to dispute the dismissal; and

(d) Prejudice to the employer (including prejudice caused by the delay); and

(e) The merits of the application; and

(f) Fairness as between the person and other persons in a similar position.

Analysis

The Christmas functions

According the fact. At 7 December 2013, National Australia bank hosted a Christmas party in the public place with a large group pf employees, including the Drew

Westfield.
Drew Westfield’s action was included: drunk a lot of alcohols and cased intoxicate. He disrespect others and made unappropriated behaviors. He cannot control himself and even recall his conduct.
Was Drew Westfield is unfair dismissed?
According the Drew Westfield’s unappropriated behaviors at Christmas party, he was dismissed buy the senior management.
Under Fair work Act section 387, weather a dismissal is unfair, it need considering the number of criteria. So key point for Drew Westfield’s case is figure out whether his conduct was reasonable for dismissal.
Does the conduct related to Drew Westfield’s employment?
The private conducts may damage the employer’s interest if the conduct between Drew Westfield with the second person is impaired the second person’s capacity to perform his works. In this case, some of the key person involved in this matter during the Christmas function has no longer under employment with the respondent, so there was no lasting negative impact to the other employees involved or concerned by Drew Westfield’s behaviour.
Drew Westfield’s behaviour serious enough for dismissal?
To think about the border background of Drew Westfield’s good record, his intoxicated state was considered to be a mitigating factor, and after determination, Drew Westfield did contact with respondent and gave reasonable explanations for his inappropriate behavior, including the other relevant situation, the dismissal was unfair.
Host of function - the responsibility to supplying alcohols
Keenan vs Leighton Boral Amey NSW P/L case - Commission Vice President Adam Hatcher adjudicate that the applicant - Mr. Keenan, has been unfairly dismissed even though his drunken, boorish and intrusive behaviour at the company's Christmas function, partly due to the unlimited alcohol served at the function.(vCard, n.d.)
According to Keenan vs Leighton Boral Amey NSW P/L case, employers should take responsible to arrange and ensure the alcohol is served responsibly and properly supervised the employee’s conduct at the function.

(“The price of a good time,” n.d.)Based on that, the conduct of Drew Westfield is negligence so it’s not a reason for dismissal.

The impact by the time

By analysing the fact of Drew Westfield’s dismissal, it could be ruled as unfair dismissal. But go back to the original recorded time, Drew Westfield’s field application at 7b July 2015, that means after the termination its almost 19 months passed, therefore well outside the 21 day time limit set by s.394(2)(a) of the Act, the applicant must made within 21 days after the dismissal took effect.

Drew Westfield was seeks an extension time based on s.394 (2) (b) of the Act.

Section 394 (2) (b) of the Act, applicant apply an extension of time in order to make an application for unfair dismissal remedy can be grant only if there are exceptional circumstance can make the commission satisfied and warranting an extension of time. To consider whether the exceptional circumstance exist, the commission have to considering the criteria set out by section 394 (3): exceptional circumstance must be out of the ordinary course, or unusual or special or uncommon but need not be unique, or unprecedented or very rare. (RRHR,

n.d.)
Drew Westfield content that he make the decision in this matter was after he saw the report about the Keenan vs Leighton Boral Amey NSW P/L. He wasn't aware of his right to pursue an unfair dismissal claim when he was been termination by his employer.
Although Drew Westfield make his unfair dismissal application due to the case decision in Keenan vs Leighton Boral Amey NSW P/L, the facts in that case was very different as the situation involved in the Drew Westfield’s conducts at Christmas function. So the Drew Westfield’s case on the merits is not meritorious.