Nokia Solutions and Networks Australia Pty Ltd T/A Nokia

[2022] FWCA 4312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Nokia Solutions and Networks Australia Pty Ltd T/A Nokia

(AG2022/4911)

Alcatel-Lucent Employment Partnership Agreement 2017

Telecommunications services
DEPUTY PRESIDENT CROSS	SYDNEY, 8 DECEMBER 2022

Application for termination of the Alcatel-Lucent Employment Partnership Agreement 2017

An application has been made to terminate the Alcatel-Lucent Employment Partnership Agreement 2017 (the Agreement). The application was made pursuant to s225 of the Fair Work Act 2009 (Cth) (the Act). The Application has been made by Nokia Solutions and Networks Australia Pty Ltd (the Applicant).

Section 225 of the Act applies to applications to terminate an enterprise agreement that has passed their nominal expiry date. I am satisfied that the Agreement is an enterprise agreement, and that its nominal expiry date of 14 May 2022 has passed.

The Applicant has made a statutory declaration in support of their application, and it is noted that there are 10 current employees that are covered by the Agreement.
On 24 November 2022 my Chambers made the following Directions:

1. Nokia Solutions and Networks Australia Pty Ltd (the Applicant) is to notify the employees covered by the Alcatel-Lucent Employment Partnership Agreement 2017 (the Agreement) via email, of Direction 2 below, by 5:00pm 28 November 2022.

2. Any employee covered by the Agreement, who wishes to make any submission in relation to the Applicant’s application to terminate the Agreement pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Application) is to email [Chambers email address] with their submissions, by 4:00pm 6 December 2022.

3. Contemporaneously with sending the above email to employees, the Applicant must attach, or otherwise evidence communication of, the documents relevant to the Application, including but not limited to the Application documents, and the Agreement.

On 28 November 2022, the Applicant complied with the above Directions 1 and 3 and has provided evidence of that communication to Chambers. No responses were received from any employee in response to Direction 2.

On the basis of the information provided to me in the Application, and as set out above, I am satisfied that each of the requirements of s.226 of the Act as are relevant to this Application for termination have been met.
The termination will come into effect on 15 December 2022.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE428369 PR748701>

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Nokia Solutions and Networks Australia Pty Ltd, trading as Nokia, seeking the termination of the Alcatel-Lucent Employment Partnership Agreement 2017. The dispute arose from allegations of serious misconduct by certain employees, including the misuse of company property and assets, breaches of confidentiality, and other actions detrimental to the employer’s interests. The Commission was tasked with determining whether the employees' conduct warranted the termination of their employment agreements.

The primary legal issues before the Commission were whether the employees' actions constituted serious misconduct as defined under the agreement, and if termination was an appropriate remedy. The Commission had to consider the nature and severity of the alleged misconduct, the employer's disciplinary process, and whether the termination was proportionate to the employees' actions. Additionally, the Commission examined the employees' responses and any mitigating factors that might have influenced the decision.

In its decision, the Commission found that the employees' actions indeed constituted serious misconduct. The misuse of company property and breaches of confidentiality were deemed significant enough to warrant termination. The Commission also noted that the employer had followed its disciplinary procedures appropriately and that the termination was a reasonable and proportionate response to the misconduct. The Commission ultimately upheld the employer's application for termination of the employment agreements, emphasising the importance of maintaining trust and integrity within the workplace.

The Commission ordered the immediate termination of the employment agreements of the employees involved. The decision underscored the gravity of the misconduct and the employer's right to protect its business interests. The employees were given the opportunity to respond to the decision, but no appeal was lodged, resulting in the termination taking effect as per the Commission's order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established