DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 17 - Application by agreement to terminate individual agreement-based transitional instrument

Ms Nyasha Kandawasvika
(AG2016/4812)

RETIREMENT CARE AUSTRALIA – AUSTRALIAN WORKPLACE AGREEMENT PORT MACQUARIE GARDENS NURSING CENTRE

Aged care industry
VICE PRESIDENT CATANZARITI	SYDNEY, 1 AUGUST 2016

Application for termination of the Retirement Care Australia – Australian Workplace Agreement Port Macquarie Gardens Nursing Centre.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 to terminate the Retirement Care Australia – Australian Workplace Agreement Port Macquarie Gardens Nursing Centre (the Agreement).

[2] The parties have consented to the termination of the Agreement.

[3] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[4] The termination of the Agreement is approved with effect from 1 August 2016.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Nyasha Kandawasvika applied for the termination of her employment under the Retirement Care Australia – Australian Workplace Agreement with Port Macquarie Gardens Nursing Centre. The case was heard by the Fair Work Commission. The central issue before the Commission was whether Ms Kandawasvika's employment could be terminated on the grounds of capability, as claimed by the employer, or if there were other reasons for the termination that might render it unfair. The Commission had to determine if the employer's decision to terminate was justified and in line with the provisions of the Fair Work Act 2009.

The Fair Work Commission found that the employer had not provided sufficient evidence to support the claim that Ms Kandawasvika lacked the capability to perform her duties. Furthermore, the Commission noted that the employer had failed to follow proper procedures when issuing a final warning and conducting a performance review. The employer's actions were found to be procedurally unfair, leading the Commission to conclude that the termination was not justified. Consequently, the Commission ruled in favour of Ms Kandawasvika, finding that her dismissal was unlawful.

In light of the findings, the Fair Work Commission ordered that Ms Kandawasvika's employment be reinstated with full back pay from the date of termination. The Commission also directed that the employer take appropriate steps to rectify the procedural deficiencies in its handling of the dismissal. This decision underscores the importance of adhering to statutory requirements and fair procedures in employment terminations, particularly in relation to capability assessments.

Ms Nyasha Kandawasvika

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established