Western Australian Industrial Relations Commission

Electorate Officer not entitled to benefits on proper construction of Award

The Industrial Magistrate has dismissed a claim for pay in lieu of notice and other entitlements under the Electorate Officers Award 1986 (WA) (Award) and the Electorate and Research Employees CSA General Agreement 2019 (WA) (Agreement) after finding that, on the proper construction, cl 8(2)(b)(iv) of the Award had no operation to the claimant’s employment.

The claimant, an Electorate Officer, alleged that she was ‘constructively dismissed’ when she resigned from her employment in December 2019. She alleged that upon the expiration of her contract, she was entitled to benefits under the Award and the Agreement.

The claimant argued that the irretrievable break down of her working relationship with a Member of Legislative Council is a circumstance covered by cl 8(2)(b)(iv) of the Award because her ‘constructive dismissal’ occurred through no fault of her own and her employment was ‘deemed’ to have expired.

The respondent denied the claim and argued that cl 8(2)(b)(iv) of the Award had no operation to the claimant’s employment. The respondent lodged an application seeking summary dismissal on the ground that the claim had no real prospect of success.

The respondent also sought costs of the proceedings on the ground that the claim was frivolously or vexatiously instituted.

Consideration

Industrial Magistrate Scaddan noted that cl 8(2) of the Award concerns the expiration of an employee’s contract of employment, having regard to the unique position held by Members of Parliament.

Scaddan IM noted that there are four instances where an employee’s contract will be deemed to have terminated through no fault of the employee’s. Three instances relate to the office held by the Member, with the fourth instance providing for ‘other [unspecified] circumstances as agreed between the employer and the Union’: cl 8(2)(b)(iv) of the Award.

Scaddan IM found that, having regard to the ordinary meaning of the words, unless there is an agreement between the respondent (as employer) and the Civil Services Association of WA Inc. (as Union) as to what ‘other circumstance’ applies, cl 8(2)(b)(iv) has no operation relevant to an employee’s termination.

Scaddan IM found that as the claim for benefits relied upon the application of cl 8(2)(b)(iv) of the Award, and no agreement existed between the respondent and the Union regarding the deemed expiration of the claimant’s employment, the claim ought to be dismissed.

Her Honour also granted the respondent’s applicant for summary judgment but dismissed the respondent’s claim for costs. Scaddan IM found that while the claim was arguably misguided and misconceived, it does not of itself lead to a conclusion that it was frivolously or vexatiously instituted.

The decision can be read here.

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