Western Australian Industrial Relations Commission

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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 Full Bench has dismissed an appeal against the decision of the Industrial Magistrate on the basis that the appeal had no merit and the appellant, who was previously registered as a medical practitioner, had not challenged any findings of fact made by the Industrial Magistrate at first instance.

At first instance, the Industrial Magistrates Court (IMC) dismissed the appellant’s claim that the respondent, the North Metropolitan Health Service Board, 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 Industrial Magistrate concluded that on a proper construction of cl 20(5) of the Agreement, to meet cl 20(5), a “medical practitioner” must be registered under the Health Practitioners Regulation National Law (WA) Act 2010 (Act).

As at the time of the cessation of the appellant’s fixed term contract, Scaddan IM found that the appellant was not so registered, ready, willing, and able to seek a new contract of employment with the respondent. Therefore, he did not qualify for a contract completion payment under cl 20(5) of the Agreement.

The appellant’s grounds of appeal were that the IMC made errors in law and facts in reaching the decision and that essential facts of the situation with respect to the appellant’s qualifications were ignored. The appellant maintained that the actions of the respondent were not fair, and the respondent had contravened its duty of good faith under s 42C of the Act.

The Full Bench noted that the appellant did not identify any alleged ‘errors in law and facts’ asserted in the Notice of Appeal and made no attempt to state how it was that the IMC made errors in the interpretation of the Agreement.

On this basis, the Full Bench was not persuaded that the appeal had any merit. It considered that Scaddan IM’s reasoning as to the interpretation of cl 20(5) of the Agreement to be entirely correct and she had made no error of principle.

The appeal was dismissed.

The decision can be read here. 

The Industrial Magistrate has upheld, in part, a claim for unpaid entitlements including award wages, annual leave and accrued long service leave by an employee of a financial services provider.

The applicant alleged that the respondent contravened the Fair Work Act 2009 (Cth) and the Clerks – Private Sector Award 2010 (Cth) (the Award) by failing to pay him award wages under the provisions of the Award, annual leave not taken during the course of employment, and accrued long service leave.

In relation to the alleged unpaid award wages, Scaddan IM noted that cl 4.1 of the Award provided that:

[t]his award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work…

On examination of the relevant material and evidence provided, the Industrial Magistrate found that, while the respondent was an employer in the private sector, the applicant was not engaged in wholly, or even principally, ‘clerical work’. The Industrial Magistrate found that the applicant’s duties and tasks extended to providing financial advice and reports to the company’s clients.

Therefore, the Industrial Magistrate concluded that the Award did not cover the respondent’s employment of the applicant and the applicant was not entitled to any award wages.

However, Scaddan IM upheld the applicant’s claim for untaken accrued annual leave on the basis that the respondent could not and did not produce any employment records, and there was no evidence to suggest that the applicant’s allegation concerning the failure to pay untaken annual leave was not bona fide.

In relation to the applicant’s claim for long service leave payment, the respondent argued that by failing to attend an alternative office to undertake work, the applicant refused to carry out a lawful and reasonable direction by his employer. As such, the applicant had engaged in such ‘serious misconduct’ that it was not required to pay the him his entitlements.

Scaddan IM found that, having regard to all the evidence, the applicant’s employment was not terminated for ‘serious misconduct’, but due to either a shortage of work or because the respondent was restructuring its business. Scaddan IM determined that even if the applicant did not attend work at an alternative office, this, of itself, would not amount to such ‘serious misconduct’ to deny his long service leave entitlements.

Scaddan IM ordered that the respondent pay the applicant accrued unpaid leave amounting to $33,244 and long service leave totalling $6,881. Scaddan IM dismissed the applicant’s claim for award wages.


The decision can be read here. 

The Industrial Magistrate has dismissed a claim for unpaid wages alleged to be owed under an oral contract of employment as the claimant was found not to be an ‘employee’ of the respondent for the purposes of the Fair Work Act 2009 (Cth) (FWA).

The claimant alleged he was employed by the respondent pursuant to an oral agreement to assist in providing business knowledge for the respondent’s new business and act as a salesperson at the store for an extended period.

The respondent denied the claim and argued that the claimant was never employed by the respondent, but was given a total of $5,500 by the business owner as a goodwill gesture for introducing a customer and providing advice on how to improve the business.

The Industrial Magistrate found, on examination of the evidence provided, there was no employment agreement, written or oral, between the claimant and respondent. Scaddan IM found, therefore, that the claimant was not an ‘employee’ pursuant to the FWA and the Industrial Magistrates Court does not have jurisdiction to make an order for payment of alleged unpaid wages.

Scaddan IM noted that the claimant’s evidence objectively showed that there was no intention to create legal relations between the parties involving the performance of work.

The claim was dismissed.

The decision can be read here.

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Western Australian Industrial Relations Commission
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