Western Australian Industrial Relations Commission

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The Full Bench has unanimously dismissed an appeal against a decision of the Road Freight Transport Industry Tribunal (Tribunal) that found that the respondent lawfully terminated a Cartage Agreement (Agreement) with the appellant after the appellant’s conduct was found to constitute serious misconduct as well as a serious safety breach of the Agreement.

At first instance, the Tribunal found that by continuing to move his truck towards another driver when he was, or should have been, aware that the driver was in front of his truck, the appellant’s conduct constituted serious and wilful misconduct or alternatively, reckless indifference.

The Tribunal found that the appellant’s conduct constituted a serious safety breach for the purposes of the Agreement and that the respondent’s ground for the termination of the Agreement was justified at the time the decision was made and it was not unlawful.

On appeal, the appellant argued that the Tribunal’s findings were not supported by the evidence or did not take account of certain matters. The appellant also argued that certain conclusions made by the Tribunal were in error.

Upon viewing the footage of the incident, the Full Bench unanimously observed that the appellant had provoked the other driver, and then, after being infuriated at being gestured to, deliberately drove in the direction of the other driver with his truck contacting the other driver. He was not in a blind spot. The Full Bench found that there was no error in the Tribunal’s findings nor in the acceptance and rejection of certain evidence. The Full Bench determined that they were findings that were open to the Tribunal to make based on all the evidence. Further, it found the conduct was serious misconduct and wilful.

The appeal was dismissed.

The decision can be read here.

The Full Bench has unanimously granted an extension of time for an appellant who filed a Notice of Appeal out of the time limit prescribed by the Industrial Relations Act 1979 (WA) (Act) and had not filed appeal books as required by the Industrial Relations Commission Regulations 2005 (Regulations).

At first instance, the Industrial Magistrate’s Court dismissed the appellant’s claim that the respondent failed to comply with cl 20(5) of the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement (Agreement) in relation to a contract completion payment. The learned Industrial Magistrate concluded that on a proper construction of cl 20(5) of the Agreement, the appellant did not qualify for a contract completion payment under the clause.

The appellant lodged a Notice of Appeal against the decision of the Industrial Magistrate’s Court three days outside the time limit of 21 days under s 84(3) of the Act. The Notice of Appeal was defective and was not accepted for filing by the Registry until 18 days outside of the 21-day time limit.

The Full Bench noted that, for the Full Bench to consider the appeal, the appellant must persuade the Full Bench that it should extend the prescribed 21-day limit, under s 27(1)(n) of the Act.

The appellant also failed to file appeal books, as required by reg 102(10) the Regulations.

The appellant then filed a Form 1A – Multipurpose Form in which he sought an “extension of time”. In his reasons for the request, the appellant cited medical reasons and that he required assistance to complete forms as he could not afford a lawyer. At the hearing, the appellant clarified to the Full Bench that the Form 1A was filed in order to seek an extension of time for both the Notice of Appeal and to file the appeal books.

The Full Bench applied legal principles applicable to extensions of time to appeal and found that having regard to the relatively short period of the delay in filing the Notice of Appeal, the reasons for the delay and that there may be an argument as to the proper construction of cl 20(5) of the Agreement, it would grant an extension of time.

The Full Bench issued an order that the appellant file the appeal books within seven days.

The decision can be read here.

The Commission has determined on the papers that it is unable to hear an unfair dismissal claim because the applicant was employed by a national system employer and the Commission does not have jurisdiction to hear the matter.

The application named the respondent as the respondent’s business trading name. The respondent submitted that the applicant’s employer was in fact two trustees and that the family trusts are in partnership as the registered business trading name. The respondent also submitted that the entity consists solely of trading activities.

Commissioner Walkington noted that a trust is not a legal entity and it is the trustee, the person/entity responsible for administering the trust, who enters into the employment contracts. Walkington C considered that if the trustee is a company, it may be a constitutional corporation and a national system employer.

Walkington C concluded, on the undisputed information and documentation provided by the family trusts, that the applicant’s correct employer were the two trustees and ordered the name to be amended accordingly.

Walkington C applied relevant legal principle and found that the family trusts, as employer, were a trading corporation and the applicant was employed by a national system employer.

The applicant was dismissed on the basis that the Commission did not have jurisdiction to deal with the applicant’s claim for unfair dismissal.

The decision can be read here. 

The Occupational Health and Safety Tribunal (Tribunal) has reviewed and revoked an improvement notice issued to the applicant for contravening the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).  

The applicant contended that they ought not to be held totally responsible for the actions of their crane driver in parking the crane on the road which resulted in a major road being closed.

Upon being issued an improvement notice by a Worksafe Inspector, the applicant applied to the Worksafe Commissioner for a review of the improvement notice, which was affirmed by the Commissioner. The applicant then referred a request for a review of the improvement notice by the Tribunal.

The respondent, Worksafe, submitted in the proceedings before the Tribunal that the improvement notice ought to be revoked on the basis that neither its affirmation nor affirmation with modification can be given effect.

The applicant sought the continuation of the proceedings so that the Tribunal may determination the requirements of the OSH regulations and the obligations of them as employers should a similar situation occur in the future.

The Tribunal found that the improvement notice ought to be revoked on the basis that it was not possible to affirm or modify the requirements of the improvement notice as the site for which the improvement notice concerned no longer existed.

The Tribunal also found that it ought to refrain from further hearing as it does not have the power to inquire generally into similar circumstances that may arise in the future.

The improvement notice was revoked.

The decision can be read here.

The Commission has dismissed a claim for denied contractual benefits as it found that the claim did not concern a benefit of an employment contract and the failure to provide that benefit.

The applicant argued that the respondent had breached their contract by reducing the applicant’s annual salary by $5,000. The applicant then terminated the contract, stating that he did so due to the breach.

At the hearing, the applicant submitted a different claim for $68,750, arguing that this would have been the amount received under contract for 12 months as he would have continued employment had the respondent not unilaterally reduced his salary.

The respondent refuted the applicant’s claim and sought that the application be dismissed as the applicant had not identified a benefit under a contract of employment that has been denied.

Commissioner Walkington found that the applicant’s assertion that the contract ‘would have’ continued for a further 12 months was not supported by any evidence. Further, Walkington C found that the applicant had not established that either his initial claim of $5,000 or his revised claim for $68,750 were entitlements under a contract of employment.

Walkington C concluded that the applicant’s claim concerns the fairness of his termination and does not concern a benefit of an employment contract and the failure to provide that benefit.

The application was dismissed on the basis that there was no real question of fact or law to be determined.

The decision can be read here.

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Western Australian Industrial Relations Commission
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