Western Australian Industrial Relations Commission

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The Commission recently upheld two employees' claims for denied contractual benefits of notice, annual leave and unpaid wages, awarding one employee more than $120,000 and the other employee about $15,000.

The employer dismissed one employee in December 2016.  Although the employer did not tell the other employee she was dismissed, Commissioner Emmanuel found that its conduct amounted to constructive dismissal because it failed to pay the employee's wages after November 2016, it failed to respond to her questions about when she would be paid, it told its business partners that it had stopped operating and it failed to pay its suppliers, including its landlord.

The employees said they were dismissed without notice, in breach of their employment contracts, and were not paid out their annual leave.  The employer's accountant confirmed the employees' evidence.

Commissioner Emmanuel found that the employer did not have the right to dismiss the employees without notice.  Under their employment contracts, the employees were entitled to 12 months' notice. The Commissioner distinguished a debt owed under a contract from a claim for damages for breach of contract.  Because employer could choose to give notice or pay an amount in lieu of notice, the employees' claims for notice were effectively claims for damages.  Consequently, the employees needed to take reasonable steps to mitigate their losses. 

The employee who was awarded the lower amount was able to find another job after she was dismissed.  The employee who was awarded the higher amount was unable to find another job for a range of reasons, including changes in Australian visa rules.  In the circumstances the Commissioner found she was entitled to damages in the amount of 12 months' pay.

Commissioner Emmanuel heard and determined this matter in the absence of the respondent, who did not file answers to these claims, did not respond to the Commission's correspondence and did not appear at the hearing.

The decision can be read here.  

The Full Bench has upheld an appeal by The Australian Rail, Tram and Bus Industry Union of Employees against two decisions of the Commission in relation to the interpretation of cl 5.2.1 of the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016.

The issue between the parties was the method of calculating payment of an allowance to rail car drivers when they are required to commence work at a depot other than their home depot. The rate of the allowance depends upon the employee’s ability to use public transport to travel to and from the other depot. The parties differed on whether the ability to use public transport to travel to and from the other depot is to be assessed from the employee’s home depot or place of residence.

The Commission at first instance rejected an application by the Union to dismiss the substantive application on the basis that there was on foot, enforcement proceedings in the Industrial Magistrates Court between the parties involving the same factual allegations.

The Commission considered the true meaning of cl 5.2.1(b) and declared that in considering whether an employee is reasonably able to use public transport to travel to and from a depot other than the employee’s home depot, the depot manager of the employee’s home depot shall consider as the relevant locations, the employee’s usual place of residence and the other depot.

The Hon. A/President, with whom the Chief Commissioner agreed, summarised the relevant case law and held the learned Commissioner erred in finding that s 46(3) of the Act, to the effect that a declaration of the Commission under s 46 binds all courts, was a complete answer to the Union’s s 27(1)(a) application to dismiss. The Full Bench found as follows:

  • Section 46(3) enables the Commission to make a binding declaration as to the true interpretation of cl 5.2.1 insofar as it applies to all employees whose terms and conditions of employment are covered by the Industrial Agreement.
  • The Commission has no power to consider whether cl 5.2.1 has been breached by the Public Transport Authority by not paying a particular employee an allowance calculated in accordance with the rate specified in cl 5.2.1(b)(i) of the Industrial Agreement.
  • Given the matter before the Commission related only to the factual circumstances of a particular employee’s claim before the Industrial Magistrates Court and the fact that such a claim is an enforcement matter in relation to which the Industrial Magistrate's Court has exclusive jurisdiction to determine, the learned Commissioner erred in dismissing the Union’s application.

The Full Bench also found the declaration made by the learned Commissioner was erroneous in that it was inconsistent with his observations that access to and proximity to a bus stop, park and ride facilities or obtaining a lift from another person to public transport may be relevant circumstances to consider when determining whether an employee is reasonably able to use public transport.

The decisions of the Commission were quashed and the substantive application dismissed.

The decision can be read here.

The Full Bench unanimously dismissed an appeal by a nurse against a decision of the Industrial Magistrates Court dismissing his claim for pro-rata long service leave.

The appellant sustained a work-related injury in 2011 and lodged a workers’ compensation claim. As part of the settlement of the claim, the appellant agreed to resign from his position at the Department of Corrective Services.

The appellant claimed he was entitled to pro-rata long service leave on termination of his employment, pursuant to clause 29(11)(a)(iii) of the Department of Corrective Services – Registered Nurses (ANF) Industrial Agreement 2010. Clause 29 provides for payment of pro-rata long service leave if the employee has completed at least 12 months’ continuous service and their employment has been ended by the employer on account of incapacity due to old age, ill health or the result of an accident.

The appellant submitted he was entitled to the benefit of cl 29(11)(a)(iii) as the resignation was initiated at the respondent’s request and was a mandatory requirement, and the ending of the employment contract was directly related to his injury and on account of incapacity due to the result of an accident and/or ill health.

The Hon. A/President and Chief Commissioner (Commissioner Emmanuel agreeing), found the appellant made an informed choice on advice to settle his workers’ compensation claim and pursuant to the terms of settlement, freely resigned from his employment. Accordingly, the employment was not ended by the employer, but was by mutual agreement.

The Full Bench held it could not be found that the appellant’s employment was ended by his employer within the meaning of cl 29(11)(a)(iii) of the Industrial Agreement. The appeal was dismissed.

The decision can be read here.

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

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

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
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