Western Australian Industrial Relations Commission

Full Bench can only hear points raised at first instance

The Western Australian Industrial Appeal Court has dismissed an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission (WAIRC) where one of the appellants complaints was about a matter not raised in earlier proceedings.

After being summarily dismissed by the Shire of Denmark, Mr Whooley commenced proceedings in the WAIRC claiming that he had been denied contractual benefits. Mr Whooley claimed that the termination of his employment was invalid and ineffective because the shire had not complied with s 5.37(2) of the Local Government Act 1995 (LGA). The Shire of Denmark denied Mr Whooley's claims and argued that Mr Whooley was barred from bringing the claim because of a settlement agreement made between the parties during the course of proceeding in the Fair Work Commission. The Commissioner at first instance found that the termination of Mr Whooley was invalid and ineffective and ordered the Shire of Denmark to pay Mr Whooley.

The Shire of Denmark then appealed to the Full Bench of the WAIRC on the grounds that the termination was valid and effective, and that the settlement agreement was a bar to Mr Whooley's claim. The Full Bench, by majority, upheld both grounds of the appeal and set aside the decision of the Commissioner at first instance's decision and ordered that Mr Whooley's claim be dismissed.

Mr Whooley appealed to the Industrial Appeal Court on two grounds. Ground 1 was that the Full Bench erred in finding that the termination of employment was valid or effective. Section 5.37(2) of LGA is as follows:

The CEO is to inform the council of each proposal to employ or dismiss a senior employee, other than a senior employee referred to in the s 5.39(1a), and the council may accept or reject the CEO's recommendation but if the council rejects a recommendation, it is to inform the CEO of the reasons for its doing so.

The Industrial Appeal Court found that, on its proper construction, the LGA confers on the CEO power to dismiss a senior employee only if the CEO has informed the council of the proposed dismissal and the council has accepted the CEO's recommendation. The CEO of the Shire of Denmark did not inform the council of the proposal to dismiss Mr Whooley and the council did not accept a recommendation to dismiss Mr Whooley. The Industrial Appeal Court therefore found that Ground 1 of the appeal was made out.

Ground 2 of the appeal was that the Full Bench erred in finding that the settlement agreement between the parties' bars Mr Whooley's claim. The essence of Mr Whooley's argument was that the settlement agreement was not of force or effect because the it was beyond the power of the CEO to make an agreement on behalf of the Shire. Section 90(1) of the Industrial Relations Act 1979 provides that appeals to the Industrial Appeal Court must be upon certain grounds. Ground 2 does not fulfil the requirements of s 90(1) as it does not assert that the subject of the decision is not an industrial matter or that the decision is erroneous in law. The Industrial Appeal Court found that it did not have jurisdiction to hear ground 2 and, consequently, ground 2 was not made out.

In oral submissions to the Industrial Appeal Court, Mr Whooley submitted that he had been denied the right to be heard by the Full Bench. An appeal on the grounds that the appellant has been denied the right to be heard can be made to the Industrial Appeal Court. In his oral submissions to the Full Bench, Mr Whooley argued that the CEO did not have the authority to enter a legally binding contract on behalf of the Shire. The Full Bench ruled that Mr Whooley could not raise that point because it had not been raised at the matter of first instance. It is a very well-established principle that, except in very exceptional cases, a party to an appeal cannot raise a point or objection on appeal that was not raised in the primary proceedings. The Industrial Appeal Court found that the Full Bench did not deny Mr Whooley the right to be heard.

The Full Bench upheld the appeal from the first instance Commissioner on the basis that, if they were wrong about ground 1, Mr Whooley's claim would still be dismissed based on ground 2. The Industrial Appeal Court found that the error of the Full Bench in regard to ground 1 did not affect ground 2. The Industrial Appeal Court dismissed the appeal and confirmed the decision of the Full Bench, that is the decision of the Full Bench to quash the decision of the Commissioner at first instance and order that Mr Whooley's claim be dismissed.

The decision can be read here.

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