UNFAIR DISMISSAL: DRUNKEN, ABUSIVE MISCONDUCT OUTWEIGHED BY MITIGATING FACTORS
The full bench of the Fair Work Commission re-considered an unfair dismissal application after the first instance decision was set aside. A majority of the full bench ultimately decided that the dismissal of an employee who was abusive to eight other employees by text and phone while under the influence of alcohol was harsh because of mitigating factors. The employee was consequently reinstated with continuity of service.
Illawarra Coal Holdings Pty Ltd t/a South32 v Gosek (2018) 70 AILR ¶102-941;  FWCFB 1829
UNFAIR DISMISSAL: PROPERTY DIRECTOR ON $180k COVERED BY AWARD SO APPLICATION WITHIN JURISDICTION
The Fair Work Commission applied the “principal purpose” test to determine that an industry award applied to the employment of an employee who held the position of Director of Asset Management at the time of her dismissal. As a consequence, the employee could pursue an application for an unfair dismissal remedy against her former employer.
Muscat v Chase Commercial Pty Limited t/a Chase Commercials (2018) 70 AILR ¶102-942;  FWC 1398
UNFAIR DISMISSAL: ONLY PRIVATE BENEFIT PORTION OF CAR ALLOWANCES ARE EARNINGS FOR HIGH INCOME THRESHOLD
A full bench of the Fair Work Commission held that, in determining an employee’s earnings for the purposes of assessing the high income threshold in the context of an unfair dismissal application, a car allowance was to be considered part of those earnings only to the extent that the employee derived a private benefit from that allowance. While that accorded with the approach taken at first instance, the full bench allowed the appeal on the basis that the commissioner failed to make his own assessment of the employee’s annual rate of earnings to determine whether they exceeded the high income threshold.
Sam Technology Engineers Pty Ltd v Bernadou (2018) 70 AILR ¶102-943;  FWCFB 1767