Western Australian Industrial Relations Commission

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Dismissal because of substandard performance, not a conspiracy

The Commission dismissed a claim by a school cleaner that she was unfairly dismissed.  The Cleaner was dismissed for substandard performance.  She argued that the dismissal was unfair because: 

(a)   her performance was not substandard;

(b)   the substandard performance process was brought about by a conspiracy against her between the Principal and Registrar, who ‘had it in for her’; and

(c)   the person from the Department of Education who ran the substandard performance investigation was incompetent, was influenced by the Principal and Registrar, and told the Department what they wanted to hear to shore-up his own position within the Department.

Commissioner Matthews found that the cleaning inspection reports showed an ongoing problem with the standard of the cleaner’s work.  There was no evidence that the reports were a concoction by the Principal and Registrar as part of an alleged ‘personal vendetta’ against the cleaner.  There was clearly bad blood between the Cleaner and the Registrar giving rise to her suspicion of a conspiracy against her.  The Principal left the Cleaner to speculate as to the reason why her performance was being questioned which, against a background of suspicion, did not help the situation.  However, the Commission found that the Principal’s concerns for the Cleaner’s work were well‑founded, and it was a leap too far for the Cleaner to suggest that evidence of substandard performance was fabricated. 

Once the issue was referred to the Department, the substandard performance investigation was conducted by someone from the Department who was independent of the machinations within the school.  The Commissioner found that the Cleaner’s allegations against the investigator were baseless.  Based on the information in the report, the Department’s decision to terminate the employment was reasonable. 

The decision can be read here.

$16 per week increase to the State Minimum Wage

The Western Australian Industrial Relations Commission has increased the State minimum wage by $16.00 to $708.90 per week from 1 July 2017.  The Commission increased award wages below the C10 classification level of $791.90 by the same amount and ordered that the higher award classifications (C10 and above) be increased by 2.3%.  The increases apply only to employees who are paid the minimum wage or award rates in the State industrial relations system.  More than 300,000 employees are estimated to be affected by the decision. 

In its decision, the Commission placed weight on a range of social and economic factors, including the subdued state of the State economy, low levels of business profitability and confidence, and the need for low paid workers to remain in employment.  It rejected a submission that it ought not increase the minimum wage at all.  It found that though the economy is not in a particularly buoyant state, freezing the minimum wage was not justified as it would adversely affect the low paid and living standards generally, and would not be equitable. 

The Commission noted that economic forecasts show signs of future improvement in the WA economy over the next couple of years, but those improvements are not yet evident in the broader economy. 

The Commission’s decision can be read here. Proceedings can be viewed here

State Wage Case 2017 Decision to be handed down Wednesday

The Commission in Court Session will hand down its decision on Wednesday, 14 June 2017 at 9:15am. Live proceedings can be viewed here.

Written submissions of interested persons including the Minister for Commerce and Industrial Relations, the Chamber of Commerce and Industry of WA, UnionsWA, WA Council of Social Service and the Printing Industries Association of Australia can be viewed here.  Oral submissions were heard on 18 May and 8 June 2017 and those proceedings can be viewed here. Transcripts of the hearing will be available here. 

The State Wage Case is held pursuant to section 50A of the Industrial Relations Act, 1979. This obliges the Commission before 1 July in each year to make a General Order setting the minimum wage under the Minimum Conditions of Employment Act, 1993 for employees over the age of 21, for apprentices and for trainees. The General Order also adjusts rates of wages paid under State awards. More information can be found here

No redundancy payment for ordinary turnover of labour

The Full Bench upheld an appeal by an employer against a decision of the Commission which found that an employee had a contractual entitlement to a redundancy payment of 11 weeks’ pay.  The contract of employment said that if the employee is made redundant, the redundancy payment would be determined by the employer’s redundancy policy.  However, the employer did not have a redundancy policy. 

The Hon. Acting President, with whom the Chief Commissioner agreed, found that the redundancy clause was uncertain.  The clause could be saved from being of no effect by applying the relevant National Employment Standard in the Fair Work Act 2009 (Cth), including the exceptions, because this is the minimum standard that the employer’s redundancy policy could provide if it existed.  As both parties agreed that the employment ended due to the ordinary and customary turnover of labour, which is one of the exceptions to employers having to make redundancy payments under the National Employment Standard, the employee had no contractual entitlement to a redundancy payment. 

The Acting Senior Commissioner also found that the appeal should be upheld, for similar reasons to the Hon. Acting President. 

The decision can be read here.

Obligation to train no guarantee of success

The Full Bench dismissed an appeal by an employee who alleged that his employer denied him a benefit under his contract of employment by failing to provide adequate training, causing him to fail an examination to become a licensed surveyor. 

The Honourable Acting President Smith and Chief Commissioner Scott held that the Commission at first instance erred by finding that the professional training agreement was not part of the appellant’s contract of employment.  They held that the entire agreement clause in the employer‑employee agreement did not prevent the professional training agreement from being incorporated into the contract of employment because the employer‑employee agreement did not set out all of the terms relevant to the appellant’s employment.  Also, despite the professional training agreement being between the appellant and another employee of the employer, her Honour and the Chief Commissioner were satisfied that the appellant’s employment contract included the terms of the professional training agreement because, read in context with the terms of the contract and the subsequent conduct of the parties, the professional training agreement formed part of the contract of employment. 

The majority went on to find that even though the professional training agreement required the employer to provide training to the appellant, it did not require the employer to train the employee to the point where there was a guarantee that he would be a licensed surveyor.  Therefore, the original decision to dismiss the employee’s application was ultimately correct. 

Acting Senior Commissioner Kenner was also of the opinion that the appeal should be dismissed.  He held that the employer‑employee agreement and the professional training agreement ‘were separate and one did not depend on the other for the operation of each.’  Therefore, the appellant’s contract of employment did not incorporate the professional training agreement.  The Acting Senior Commissioner went on to conclude that the employer was not obliged by the contract of employment to fulfil the professional training agreement obligations.  He dismissed the appeal because the Commission at first instance did not make an error in its findings or its decision. 

The decision can be read here

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Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

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