Western Australian Industrial Relations Commission

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The Full Bench has unanimously dismissed an appeal against the decision of the Commission on the basis that no appealable error had been made out to quash the decision at first instance in finding that the respondent, a prison officer, was unfairly dismissed.


In 2018, the employment of a Senior Prison Offer (Officer) was terminated by the Director General of the Department of Justice following allegations of excessive and unreasonable use of force.  

At first instance

There were two incidents in which the Officer used Oleo-resin Capsicum spray (OC spray), and each incident related to a different prisoner.

The Commission found, in relation to the first incident where the Officer sprayed the prisoner twice, that the first of the two sprays did not constitute excessive force. However, the Commission found that the second spray of OC spray was not justified.  

The Commission found that in relation to the second incident, the deployment of OC spray was justified and did not constitute unreasonable force.

Senior Commissioner Kenner considered the two incidents jointly and examined evidence relating to practice in prisons, policies and training materials regarding the use of force, and the Officer’s unblemished record of service. He determined that reliance on one incident alone, in relation to the second deployment of OC spray during the first incident, could not warrant the dismissal of the Officer.

Kenner SC ordered that the Officer be reinstated in his position without loss.

The decision at first instance can be read here.

Appeal to Full Bench

Ground 1

The Minister for Corrective Services appealed against the decision. The Minister argued that Kenner SC erred in the way he applied the test for determining whether the Officer’s use of force fell outside the provisions of s 14(1)(d) of the Prisons Act.

Chief Commissioner Scott (with whom Commissioner Walkington agreed) determined, on application of legal principle, that the law recognises that the decision-maker at first instance, in a discretionary decision, is entitled to make a conclusion which falls within the general ambit available to him. It may be that there is more than one acceptable outcome as to whether the use of force was reasonable. In this case, it depended on all the circumstances including the Officer’s perceptions at the time. Scott CC found that the Full Bench, in considering the appeal, is required to allow the range of possible outcomes in the decision of the Commission at first instance as to the reasonableness of the use of force.

Scott CC found that Kenner SC was entitled to conclude that the use of force was reasonable. Scott CC found that Kenner SC had taken account of and assessed the particular use of force by reference to the statutory criteria, the benefit of hindsight, the prisoners’ conduct, the Officer’s state of mind and the issue of proportionality.

However, Commissioner Matthews dissented and found that the conduct of the Officer in the first incident, where he sprayed the prisoner twice, was not reasonable.  

Ground 2

The Minister did not pursue Ground 2 as it said that the issues were dealt with in other grounds.

Ground 3

The appellant also asserted that Kenner SC erred in fact by finding that the Director General placed the Officer in a position of higher authority and trust after the incidents and that this was incongruous with the Director General’s view that there had been such a breakdown in the relationship to affect the practicability of reinstatement.

Scott CC found that Kenner SC erred in forming the view that the employer took some particular action to place the Officer in a higher position. Scott CC found that the Officer’s placement in the higher level role was by operation of law, that is, it is prescribed in the applicable industrial agreement, by virtue of there being no officer more senior on the roster and present at the time.

However, Scott CC found that while this ground of appeal was upheld, it was supplementary or even incidental to the issue of trust and confidence and did not affect the outcome.

Ground 4

The appellant argued in ground 4 that Kenner SC erred in fact and law in exercising discretion without proper regard to the rationale for the dismissal.

The appellant contended that the Officer was not dismissed as a penalty for established breaches of discipline, but because the appellant had lost trust and confidence in the Officer which arose from the breaches of discipline.

However, Scott CC found that this contention was inconsistent with the way the allegations and the ultimate decision were communicated by the Director General. Rather, the allegations particularised in the correspondence to the Officer were in relation to his conduct or actions, and not due to a lack of trust and confidence.

Ground 4 was dismissed.

Application to add new ground of appeal

The appellant had sought leave to add a new ground of appeal.

Scott CC noted that the new ground of appeal raised a different and additional question to those which were raised in the other grounds of appeal. Scott CC noted that unfair dismissal claims are normally heard in one sitting, and as a matter of policy, it is not desirable that the staged approach be the norm.

Scott CC determined, as the Minister had purported to argue the case in full at first instance, that leave to appeal would not be granted.

The appeal was dismissed.

The decision can be read here.

The Commission will deliver its 2020 State Wage decision in the Commission’s Registry at 10:00 AM on Friday, 26 June 2020.

More information about the 2020 State Wage Case can be found here.

The Director General of the Department of Education WA applied to the Commission for an order to stay orders pending a Full Bench decision where special circumstances justifying the stay were found to have been made out.

The applicant sought a stay of orders 1 and 2 in the order made on 29 May 2020 by the Commission. Those orders were that:

(1) the union’s member, a teacher, be returned to employment with the Department of Education WA within 21 days of the date of this order and, as soon as is practicable, be returned to work at a school other than Busselton Senior High School; and

(2) the service of the union’s member with the respondent be deemed continuous for all relevant purposes.

Chief Commissioner Scott noted that the orders sought to be stayed would have returned the union’s member to employment with the applicant within a matter of days. The Commission also noted that the grounds of appeal relate to issues of the union’s member’s fitness to work and issues of trust and confidence in the employment relationship. Scott CC found that, in those circumstances, to not stay the orders would render the appeal nugatory.

Scott CC also found, in considering the prospects of success of the appeal, that the grounds of appeal raise some arguable issues.

Scott CC found that orders 1 and 2 of the Commission’s order of 29 May 2020 ought to be stayed and has issued an order to that effect.

The decision can be read here.

The Western Australian Industrial Relations Commission has issued a General Order under s 50 of the Industrial Relations Act 1979 (WA) to adjust the part of each location allowance representing prices, effective from 1 July 2020.

In accordance with the Commission’s usual practice, the Commission of its own motion has undertaken a review of the prices components. State private sector awards generally provide for a location allowance. Each allowance has three components, namely climate, isolation and prices.

The s 50 parties under the Act were notified of the review and informed that the Commission intended to increase the part of each location allowance representing prices by 2.32% to reflect the increase in the Consumer Price Index for Perth (excluding housing) for the year to March 2020.

All parties agreed to the proposed adjustments to location allowances.

Accordingly, the Commission in Court Session has now issued a General Order to reflect these changes.

The Reasons for Decision can be read here.

The General Order can be read here.

The Industrial Magistrate has ordered that the respondent, a financial services provider, pay the claimant a pecuniary penalty of $11,000 in respect of several contraventions of the Fair Work Act 2009 (Cth) (FWA).

Substantive decision

On 15 May 2020, the Industrial Magistrate found that the respondent contravened s 44 of the FWA in failing to pay the claimant untaken paid annual leave upon termination of employment, and in doing so, failed to comply with the National Employment Standards and contravened a civil remedy provision.

The respondent was ordered to pay $33,244 in accrued untaken annual leave.

Further, the respondent was found to have contravened s 535(1) and s 536(1) of the FWA in failing to keep and maintain certain prescribed records of employment and failing to provide pay slips during the course of the claimant’s employment, and contravened a civil remedy provision.

Supplementary Reasons for Decision

The claimant made an application for a pecuniary penalty pursuant to s 546(1) of the FWA in relation to the respondent’s failure to pay untaken annual leave, keep and maintain employment records, and provide payslips.

The claimant alleged that the respondent’s failure to keep and maintain the employment records and provide payslips went to the heart of the failure to regulate employment as contemplated by the National Employment Standards.

The claimant also contended that the respondent’s failure to provide pay slips extended beyond the individual and was a matter of public policy and public interest and supports a finding that it was a ‘serious contravention’.

The respondent argued that the contraventions were not deliberate but arose out of a lack of understanding and appreciation of certain obligations under the FWA.

Scaddan IM found that there was no evidence that the respondent either exploited the claimant or profited from its exploitation of the claimant. Scaddan IM also considered the small size of the respondent’s business, the fact that the respondent no longer employs employees and that the respondent did not attempt to hide any contraventions.

Scaddan IM found that the respondent’s contravention of s 535(1) and s 536(1) of the FWA was not a serious contravention and found that the following pecuniary penalties were proportional to the gravity of the respondent’s contravening conduct:

  • $5,000 for the failure to pay untaken paid annual leave;
  • $4,000 for failing to provide pay slips; and
  • $2,000 for failing to keep and maintain employment records.

The substantive decision can be read here. 

The supplementary decision can be read here.

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Western Australian Industrial Relations Commission
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Phone : (08) 9420 4444
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