Western Australian Industrial Relations Commission

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Senior manager’s appeals upheld and decisions of government department to take disciplinary action and terminate employment quashed

The Public Service Appeal Board chaired by Senior Commissioner Kenner, has upheld a senior managers appeals against decisions of the Commissioner, Department of Corrective Services to take disciplinary action and subsequently terminate her employment.

The appellant submitted that in relation to both appeals, the decisions made by the respondent were harsh, oppressive and unfair, on the basis that she was denied procedural fairness during the investigation process. Furthermore, the appellant contended that on the material available to the respondent, the disciplinary decisions had no reasonable foundation. Alternatively, the penalties imposed were not fair or reasonably proportionate to the conduct engaged in by the appellant.

At the commencement of proceedings, both parties raised the issue of the nature of the appeal; whether it was to be a hearing de novo or a re-hearing. The Appeal Board was not persuaded to depart from the long-standing approach to this matter since the decision in Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266. The Appeal Board ruled the appeal be heard de novo, and it was therefore necessary for the respondent to establish that the misconduct occurred.

The appellant maintained that both investigations were so infected with a failure to afford procedural fairness, that both decisions should not stand. The Appeal Board ruled that given the comprehensive nature of the appeals, any allegations of a failure to afford procedural fairness could be remedied and the Appeal Board could reach its own conclusions on the merits of the investigations and the decisions, after a fulsome consideration of the evidence and submissions. The Appeal Board did not find it necessary to consider exercising the power of quashing the decisions for breaches of natural justice, without hearing the merits of the appeals.

Having considered all of the evidence, the Appeal Board found that just one of the nine allegations were made out on the balance of probabilities. Given the Appeal Board's findings, it was necessary for it to determine whether it was open to the Appeal Board to consider the matters raised by the respondent in opposing the restoration of the employment relationship between the appellant and the respondent, in determining how the respondent's decision to dismiss the appellant should be adjusted. The Appeal Board held that it was open to it to consider these matters. The Appeal Board was not persuaded that the respondent had established that due to a lack of trust and confidence, or other relevant considerations, a working relationship between the parties should not be restored.

The Appeal Board ordered that the decision to formally reprimand and transfer the appellant to a level 8 position with the respondent be adjusted by quashing it. Further, it ordered the decision to dismiss the appellant be adjusted by quashing it. Instead, the Appeal Board ordered that the appellant receive a formal reprimand for using foul language during a telephone conversation with an employee of the respondent.

The decision can be read here.

Summary dismissal for dismissal during probation

The Full Bench unanimously dismissed an appeal against a decision of the Commission to summarily dismiss a claim for contractual entitlements.  The Hon. A/President held that in determining whether a claim for contractual entitlements can be dismissed at a preliminary stage, the Commission must be satisfied that: 

  • there is clearly no real question of fact or law to be tried;
  • the claim cannot possibly succeed;
  • there is no risk that the development of law will be stifled by dismissing the claim at an early stage; and
  • regardless of how the facts are found, there is no basis for the legal conclusion contended by the applicant. 

The Commission is not restricted to considering the way the applicant has framed their case, and may consider agreed and controversial facts when considering each of these factors. 

The employee was employed on a contract with a maximum term and was dismissed during the probationary period.  The employee was paid notice in accordance with the contract.  The employee argued that she was entitled to the balance of the maximum term of the contract because:

  1. the employer made pre-contractual representations to her that the contract was for a fixed period.  Therefore, the employer could not rely on the notice provision in the contract; and
  2. the Fair Work Act 2009 (Cth) general protections implied a term into the contract that the employer could not unreasonably exercise its right to terminate the contract.  The employer acted unreasonably because the true reason for the termination was that the employee exercised a workplace right.  Therefore, the employee is entitled to damages, being the balance of the contract term. 

The Hon. A/President Smith found that the employee's contentions about pre-contractual representations posed no real question of fact or law because: 

  1. The pre-contractual representation relied on by the employee was not tendered in the proceedings at first instance and the employee did not persuade the Full Bench that leave should be granted to tender the new evidence of the representation;
  2. No such argument was raised at first instance and the Full Bench was not persuaded that the employee's case was so exceptional to allow a different case to be put on appeal;
  3. In any event, at its highest, the representation was 'merely a statement of subjective intention' of the employer and, as a matter of law, such a representation is not admissible to construe the terms of the contract; and
  4. The contract of employment contained an effective 'whole agreement' clause, which prevented the employee from relying on any pre-contractual representation. 

Her Honour also concluded that the employee's claim that she had a contractual entitlement that the employer would not act unreasonably when exercising its right to terminate the employment was untenable because: 

  1. At common law, an employer can terminate a contract of employment pursuant to its terms for any reason, or no reason at all;
  2. The employee had no contractual entitlement to the workplace right she alleged she was entitled to exercise; and
  3. Any workplace right conferred by the Fair Work Act, or any other legislation, is a statutory right, not a contractual right.  Contraventions of statutory rights are dealt with in accordance with the relevant statute and are generally not incorporated into the contract of employment. 

The decision can be read here

Testing, inspection and ancillary maintenance is not construction work

The Commission held that an employee was not entitled to be registered with MyLeave under the Construction Industry Portable Paid Long Service Leave Act 1985 because the work he performed fell within the exception to the definition of work in the 'construction industry' and was therefore not 'construction work'. 

Chief Commissioner Scott found that the employee's job was to inspect and test fire equipment.  If a fault or failure was identified and he had time to perform the work, it did not impinge on his inspection roster, and other conditions were met, the employee would do the rectification work.  Testing and inspection accounted for between 70% and 80% of the employee's work and those were his primary duties.  The Chief Commissioner held that 'work performed to determine if maintenance is required is not maintenance itself'.

The remaining proportion of the employee's time, less than 30%, included travel to and from and around site, paperwork and meetings, as well as maintenance or repairs of a routine or minor nature.  This maintenance work is captured by one of the exceptions to work in the 'construction industry' defined by the Act. 

The decision can be read here.

Reinstatement requires consideration of viability of relationship

The Full Bench upheld an appeal by the Public Transport Authority (PTA) against a decision of the Commission to reinstate a Transit Officer, who was dismissed following an incident where the officer sprayed a member of the public with oleoresin capsicum spray. 

The Hon. Acting President, with whom the Chief Commissioner agreed, held that the Commission erred in its decision by failing to consider all of the relevant considerations before deciding to order that the officer be reinstated.  Given the unique relationship between the PTA and transit officers, there must be a high level of trust and confidence for the relationship to be viable.  That trust and confidence must exist to make reinstatement an appropriate option when considering the appropriate remedy in an unfair dismissal-type case.  Before coming to its decision, the Commission ought to have considered the employer's opinion regarding the viability of the employment relationship, and whether the employer's opinion was 'genuine, credible and rationally based' as well as the disciplinary history of the officer. 

The Full Bench remitted the matter back to the Commission for it to determine the appropriate penalty, because it has the advantage of having seen and heard the evidence and is therefore in a better position than the Full Bench to properly weigh and assess the evidence. 

The decision can be read here

Tribunal upholds application to review a decision to deregister plant design

The Occupational Safety and Health Tribunal upheld an application to review a decision by WorkSafe to deregister the design for two waste heat recovery units installed at Fiona Stanley Hospital. The Units recover heat from exhaust gases of natural gas engines, generating steam for use in the hospital.

Senior Commissioner Kenner concluded that the design alteration in relation to the gas side chambers of the Units is consistent with sound engineering practice which achieves a comparable level of safety. He found the requests for exemption from compliance with the Regulations should be granted by WorkSafe. The design is limited to the Units at Fiona Stanley Hospital and may not be used for any other fabrication anywhere in Australia.

The parties agreed that the key issue for determination by the Tribunal, was whether the gas side chambers of the Units could be properly characterised as "pressure parts", as defined in AS 4942-2001 -  Pressure equipment, for the purposes of AS 1228-2006. Flowing from this was whether the AS/NZS 3678-250 steel plates used for the construction of the gas side chambers, breached the requirements of AS 1228-2006 in relation to the construction and operation of boilers.

The Tribunal concluded that the gas side chambers of the Units fall within the extended definition of a "boiler", as being a part of the "boiler setting". Having considered all the Australian Standards relating to pressure vessels, and the definition of "pressure parts "and "vessel", the Tribunal held that the gas side chambers of the Units should not be construed as "pressure parts" for the purposes of AS 4942-2001 and AS 1228-2006. Consequently, the terms of s 2.1.1 or 2.1.6 of AS 122-2006 do not have application to the gas side chambers of the Units. 

The decision can be read here.

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