Western Australian Industrial Relations Commission

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The WAIRC held that a police officer who it had previously found was unfairly removed from the Force could not be reinstated because the officer sent inappropriate emails to the Commissioner of Police and other officers.  Those actions led the WAIRC to unanimously conclude that the Commissioner had no confidence in the appellant, and therefore reinstatement was impracticable. The WAIRC decided, instead, it was appropriate that the appellant be compensated for loss and injury suffered as a result of the unfair removal. 

The WAIRC ordered the Commissioner of Police pay the appellant compensation for the injury on the basis of the effects of the removal on him.  Commissioner Emmanuel found that while there was evidence of injury, there was not evidence to demonstrate any particular fall from grace.  The Chief Commissioner held that the unfair removal of a police officer does not, in and of itself, warrant a ‘tariff’, but awarded $2,000 for injury.  Commissioner Matthews held that the appellant should receive $1,000 for injury on the basis of 'stress and insecurity associated with his removal' and a further $1,000 due to the ‘fall from grace’ uniquely suffered by police officers 'because police have an elevated status within the community'. 

The WAIRC was also split on the question of how much compensation should be awarded for lost earnings.  All members agreed that the appellant should receive $5,241, being the difference between the income the appellant earned since his removal and the amount he would have earned if he had not been removed.  Since his removal, the appellant mitigated his loss by setting up a business.  Commissioners Matthews and Emmanuel awarded the appellant compensation for the full costs incurred in setting up a business, including the purchase cost of capital assets that retain an undepreciated value.  They found that the costs were reasonable and held that the principle is that reasonable costs incurred in mitigating loss are compensable, not reasonable losses.  Chief Commissioner Scott agreed that the loss the officer sustained in setting up the business was reasonable, but found that the officer had ceased operating that business, was now in paid employment, and still held capital items.  The value of those capital items was not a loss to be compensated. 

The decision can be read here

The Full Bench unanimously dismissed an appeal by a teacher whose claim for unfair dismissal was dismissed.  The Commission at first instance found that the teacher's performance was substandard and the employer's investigation and disciplinary processes were fair in all of the circumstances. 

The Hon. A/President Smith held that a decision regarding whether a dismissal was unfair is a discretionary decision.  To successfully appeal a discretionary decision, an appellant must demonstrate that the Commissioner made a mistake of law or fact.  The error must go beyond a mere disagreement on matters of weight given to particular evidence. 

A/President Smith, with whom Commissioner Matthews agreed, and A/Senior Commissioner Kenner in separate reasons, concluded that the Chief Commissioner made no error in finding, among other things, that the teacher was poorly organised, failed to deal with new curriculum appropriately and failed to differentiate between or become familiar with her students.  Consequently, the Chief Commissioner made no error in dismissing the teacher's claim. 

The decision can be read here

The Industrial Magistrates Court dismissed an employee's claim under the Fair Work Act 2009 (Cth) for annual leave because she was a casual employee. 

The employee was employed in 1997 as a casual clerk.  That role evolved into a sales position, which continued until the employee resigned in 2016.  In some of the employer's documents, the employee was referred to as 'part time'.  However, the parties never actually discussed whether the nature of the employment had changed from casual.  The circumstances of the employment also supported a conclusion that the employment remained casual:  the number of hours worked varied from week to week, there was no pattern of hours worked and the employee did not take sick leave or annual leave.  His Honour Industrial Magistrate Cicchini found that '[o]n any objective analysis, the claimant was … a casual employee.' 

Under the relevant modern award, the Commercial Sales Award 2010, casual employees are not entitled to annual leave.  For that reason, the employee's claim failed. 

The decision can be read here.

The Commission has again dismissed a school teacher's application for re-employment on an interim basis, pending the final hearing and determination of his substantive claim.

Commissioner Matthews originally dismissed the teacher's application in May 2017, concluding that even if s 44(6)(bb)(i) of the Industrial Relations Act 1979 supported the making of an interim order, he would not have exercised it in favour of the teacher, as he was facing criminal charges arising out of an incident involving a young student at the primary school where he was teaching.

In June 2017, the criminal charges against the teacher were discontinued, and accordingly, the applicant refreshed the application for an interim order of reinstatement or re-employment.

Senior Commissioner Kenner dismissed the application for interim orders on the basis that the Commission has no power under s 44(6)(bb)(i) of the Act to make the interim orders sought. A further argument put by the respondent that the Commission could not hear the substantive claim, because the matter before the Commission concerned the Public Sector Employment Standard and s 23(2a) of the Act ousted the Commission's jurisdiction, was also dismissed.

The decision can be read here.

The Public Service Appeal Board dismissed an appeal because evidence emerged at an early stage in the hearing which made it impossible for the Board to grant the remedy of reinstatement, which is the only remedy available to it. 

The appellant was a Youth Custodial Officer who was dismissed from his employment due to alleged misconduct.  Commissioner Matthews and the other members of the Board learned that the appellant offered inducements and threatened an eye-witness to his alleged misconduct, to pressure her to retract her statement.  In a recorded phone conversation, the appellant told the witness that she would have to choose a side, that her status as a witness for the employer would leave her isolated among her colleagues, and that if the matter proceeded to be heard by the Board, it would get 'ugly'.  He reminded the witness that he had been in that workplace for a long time and that she was relatively new.  The appellant also told the witness that if she withdrew her statement, these issues would all disappear and she would be a hero. 

Due to this conduct, the Board found that the appellant was disqualified from being reinstated.  The recorded conversation demonstrated the appellant exploiting a vulnerable person and potentially interfering in the administration of justice.  The appellant could not be reinstated to the position of Youth Custodial Officer because that position has responsibility for vulnerable young people and plays an important role in the administration of justice.  Further, 'equity and good conscience and regard for the interests of all persons, including not only the appellant but also the [employer] and [the witness], and the interests of the community in protecting the [Board's] processes from interference by way of improper conduct by an appellant, demands the result that the appeal be dismissed'. 

The decision can be read here.

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Western Australian Industrial Relations Commission
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