Western Australian Industrial Relations Commission

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The Public Service Appeal Board (Appeal Board) has upheld an appeal by the Director Clinical Services at the Women and Newborn Health Service against the decision of the North Metropolitan Health Service to suspend the Director without pay for alleged breach of discipline.

The appellant received letters from the respondent that set out several allegations of suspected breaches of discipline. The first serious allegation made by the respondent contended that the appellant allowed five doctors employed at the Health Service to be credentialled on a temporary basis, contrary to the respondent’s relevant policy and proper clinical practice. The second serious allegation contended that the appellant either disbanded or did not facilitate four key committees within her area of responsibility.

The appellant submitted that the respondent failed to comply with the policy framework in relation to discipline. She argued that the respondent’s refusal to provide her particulars of the allegations, copies of documents referred to in the letters and access to her work email amounted to a denial of procedural fairness on the basis that she did not have a reasonable and proper opportunity to respond to the allegations made against her.

The appellant also argued that such a suspension would cause her profound reputational damage, that there was no prima facie case for the allegations, no indication that the Health Service had considered alternatives to suspension, and no basis for the respondent’s decision to suspend the appellant without pay.

The appellant sought to be restored to her position pending the outcome of the disciplinary investigation and that she be paid for her loss of remuneration meanwhile.

The Appeal Board found that the respondent failed to comply with the policy framework in relation to discipline by refusing to provide the appellant relevant documents and denying access to her work emails in order for her to properly consider and respond to the allegations. The Appeal Board found that this was unreasonable, unfair, and prejudicial to the appellant.

The Appeal Board also found that, with regard to the strength of the evidence, the financial impact and the indeterminate time for the investigation to conclude, the appellant was denied procedural fairness in the circumstances leading to her suspension without pay. The Appeal Board further determined that the respondent had not established justification to exercise the power of suspension without pay.  

The Appeal Board upheld the appeal and ordered that the suspension be on full pay and that the Director be paid remuneration for loss of income.

The decision can be read here.

The Commission has dismissed an unfair dismissal claim on the basis that it found that the employer had given adequate warning to the employee about the risk of dismissal if he continued to fail to attend his workplace consistently and reliably. 

The applicant, an employee of a jewellery store, claimed that his employment was terminated as a result of his claim for workers’ compensation relating to a loss of hearing he believed he incurred because of his work. The applicant sought reinstatement and payment of an unspecified amount as compensation.

The respondent, the employer, argued that the applicant’s employment was terminated because he failed to follow lawful and reasonable directions. The respondent contended that the applicant was repeatedly late and absent from work without providing any evidence for his absence. He also argued that on one occasion, the applicant deliberately misled the respondent in his reasons for his absence.

Commissioner Walkington found, on examination of the evidence, that the applicant was not dismissed because he made a workers’ compensation claim or raised issues concerning safety at the workplace.

Instead, the Commission found that the applicant was fairly dismissed as he had received both verbal and written warnings about being late to work without evidence of a reasonable cause, his increasingly frequent absences and was dishonest when advising the respondent of the reasons for his request for absence to attend a court hearing.

The claim was dismissed.

The decision can be read here.

 The Commission, on remittal from the Full Bench, has determined that a teacher who was found to be unfairly dismissed on medical grounds at first instance is medically fit and able to be re-employed at another school.

At first instance

At first instance, the applicant, the State School Teachers’ Union of WA (Union), alleged that its member, a teacher, was unfairly dismissed from his employment with the Department of Education on medical grounds.

The Commission at first instance concluded that if all the relevant information were available to the decision-maker, they could not have determined that the teacher was unable to work due to ill health. Commissioner Matthews considered the circumstances and decided that reinstatement or redeployment was impracticable and awarded compensation.

Full Bench

On appeal, the Full Bench found that the Commission at first instance erred in making a conclusion that the teacher was not going to work for reasons unrelated to his health.

The Full Bench also found it was in error to conclude that re-employment was impracticable because of an abnormal response by the teacher to the disciplinary process. It noted that the Commission found that the teacher’s reasons for not working was ‘dramatic and exaggerated’ and was ‘unreasonable, and an emotional one, not a medical one’. The Full Bench found that this was not a conclusion open to the Commission on the evidence.

The Full Bench allowed the Union’s appeal and ordered that the decision at first instance be suspended and the matter remitted to the Commission for further hearing and determination on the practicability of reinstatement or reemployment in consideration of the employee's current state of health and whether he ought to be reemployed at another school.

On remittal

On remittal, Commissioner Matthews considered the practicability of the teacher being re-employed at another school in consideration of the teacher’s capacity to return to work. The Commissioner also noted that the remittal was only in relation to the remedy, not the fairness of the dismissal itself.

The Commission found, on the expert medical evidence provided a psychiatrist, that the teacher is fit for work in another school. The Commissioner rejected the respondent’s contentions that the medical evidence be disallowed as the applicant had not run a case at first instance that contended the teacher was fit for work, so long as it was not at the original school.

The Commissioner also found that the compensation awarded to the teacher be reduced because of his failure to mitigate loss and failure to discover documents at first instance.

The decision can be read here.

The Occupational Health and Safety Tribunal, in a supplementary Reasons for Decision, has revoked an improvement notice issued to a building company, Hanssen Pty Ltd, by the Worksafe Inspector that was previously affirmed in the substantive decision by the Tribunal, and dismissed an application for costs by the respondent, the Worksafe Commissioner.

Substantive decision

On 28 February 2020, the Tribunal revoked the improvement notices issued to the same applicant by the Worksafe Inspector in matters in 2018 and dismissed the applications made in each matter to exempt the applicant from compliance with reg 3.54 of the Occupational Safety and Health Regulations 1996 (WA).  

The Tribunal, however, affirmed the improvement notice issued in 2019 and the WorkSafe Commissioner’s decision not to grant the applicant an exemption from the requirements of reg 3.54 of the Regulations.

On 28 February 2020, at the conclusion of the substantive decision, the Tribunal provided the parties with a Minute of Proposed Orders in the following terms:

  1. The improvement notices issued in relation to the 2018 applications be revoked and the applications to exempt each matter be dismissed;
  2. The revocation of the notices as a result of the completion of construction and the passage of time should not infer that these notices were not appropriate nor justified;
  3. The improvement notice in the 2019 application be affirmed and the applicant is directed to ensure all holes at the site are covered with wire mesh; and
  4. The WorkSafe Commissioner’s decision to not grant the applicant an exemption from the requirements of reg 3.54 be affirmed.

Supplementary Reasons for Decision

At the speaking to the minutes, the parties submitted that it was not practical to implement Order 3 as the construction on the relevant site was near completion.

As a result, the Tribunal issued orders that Order 3 amended to the effect that the improvement notice issued in relation to the 2019 application be revoked.

On 6 March 2020, the Worksafe Commissioner applied for an order that the applicant pay $14,192.75, the costs for the preparation of reports and attendance at the hearing of an expert witness for the Worksafe Commissioner.

The Worksafe Commissioner contended that the applications brought by the applicant in the matters were without merit and were instituted without reasonable cause.

The applicant opposed the costs order and argued that they had reasonable grounds to bring the applications and that the issues to be determined necessitated consideration of expert evidence from both parties.

The Tribunal noted that it is a well-established principle that an order for costs ought not to be made except in extreme cases, such as when proceedings are instituted without reasonable cause.

The Tribunal found that there were no extreme circumstances in the conduct of the applicant in bringing the applications nor that the applications were instituted without reasonable cause or were manifestly groundless.

The application for costs was dismissed.

The substantive decision can be read here. 

The supplementary Reasons for Decision can be read here.

The Occupational Health and Safety Tribunal has revoked the improvement notices issued to the same applicant by the Worksafe Inspector in matters in 2018 and dismissed the applications made in each matter to exempt the applicant from compliance with reg 3.54 of the Occupational Safety and Health Regulations 1996 (WA).  

The Tribunal, however, affirmed the improvement notice issued in 2019 and the WorkSafe Commissioner’s decision not to grant the applicant an exemption from the requirements of reg 3.54 of the Regulations.

The applicant, in all four applications, contended that they should be exempted from reg 3.54 on the grounds that it substantially complied with the regulations or that compliance was unnecessary.

Background

The applicant is a builder of multi-level buildings and has devised a system called the Hanssen Penetration System (HPS) to cover holes in the construction site and manage the risk of falls through the holes when the holes are not covered.

The applicant noted that reg 3.54 requires that a wire mesh be installed over the holes. The applicant conceded that the HPS does not fully comply with reg 3.54 in that there was no installation of wire mesh on any of their sites. However, the applicant argued that an exemption from the regulations ought to be granted because the HPS ‘substantially complies’ with the regulations.

The applicant contended that the HPS provides an equal or greater protection from the risk of injury, and that any risks or hazards associated with not having a wire mesh over the holes are addressed by alternate safety measures of the HPS.

The WorkSafe Commissioner opposed the exemption and submitted that the HPS does not achieve substantial compliance with reg 3.54 because it only complies with two of the three requirements of that regulation.

Improvement Notices

The Tribunal found that all sites subject to the 2018 applications have reached a point where there are no longer any holes or openings to which reg 3.54 applies. Therefore, the Tribunal found that affirmation of the improvement notices cannot be given practical effect and are revoked under s 51(5)(c) of the Occupational Safety and Health Act 1984.

However, the Tribunal found the site subject to the 2019 application still operational and issued orders that the applicant ensure all holes meet the requirements of reg 3.54, including the requirement to embed wire mesh over it.

Exemption Applications

The Tribunal noted that the WorkSafe Commissioner may exempt a person or workplace from the requirements of reg 3.54 if he is satisfied that there is ‘substantial compliance’. The Tribunal also noted that to find compliance with the requirements of the regulations unnecessary, it must be convinced that the HPS is safer or as safe as compliance with those requirements set out in the regulation such that it is not necessary to require compliance.

The Tribunal found, as the sites subject to the 2018 applications has reached a point where there are no longer any holes, no exemption can be granted for the 2018 applications. However, the Tribunal noted that revocation of the notices because of the completion of construction and the passage of time should not infer that the notices were not appropriate or justified.

The Tribunal then found on the evidence that there were significant weaknesses in the administration of the HPS at the operational site subject to the 2019 application. The Tribunal was not convinced that the implementation of the HPS rendered compliance with reg 3.54 unnecessary.

Orders

The Tribunal ordered that:

  1. The improvement notices issued in relation to the 2018 Applications be revoked and the applications to exempt each matter be dismissed;
  2. The improvement notice in the 2019 Application be affirmed and the applicant is directed to ensure all holes at the site are covered with wire mesh; and
  3. The WorkSafe Commissioner’s decision to not grant the applicant an exemption from the requirements of reg 3.54 be affirmed.

The decision can be read here.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

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