Western Australian Industrial Relations Commission

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A transit officer whose employment was terminated for allegedly using excessive force by deploying OC spray during the course of an incident at the Perth Railway Station, has successfully challenged his dismissal.

 

The Public Transport Authority contended that the transit officer’s dismissal was the appropriate and proportionate response to his conduct on the night in question.

 

The Commission found the transit officer had a basis to believe, on reasonable grounds, that he was about to be spat upon by the person of interest and his deployment of OC spray was to prevent that occurring. While with the benefit of hindsight, the transit officer could have taken an alternative course by creating more distance between himself and the person of interest, the Commission found he acted with reasonable cause, and that his subsequent dismissal was harsh, oppressive and unfair.

 

Having regard to the fact that the transit officer could have taken an alternative course, the Commission ordered the transit officer be demoted two increment levels to a Level 3 position, with payment of remuneration lost and continuity of service for benefit purposes.

 

The decision can be read here.

 

The Road Freight Transport Industry Tribunal upheld an owner‑driver’s claim for payment of the balance of an owner‑driver contract that was terminated by the prime contractor approximately 9 months before it was due to expire. 

Chief Commissioner Scott found that the parties entered into a one year contract in June 2011.  The arrangement was renewed yearly, for a period of about one year, because the contract provided for renewal and each time a contract ended, the parties continued to deal with each other as before.  In the circumstances, that conduct was sufficient to support a finding that the parties intended for the arrangement to run for another year.  Therefore, the prime contractor is liable to pay damages for the unexpired portion of the owner-driver contract.

The prime contractor said it did not have to pay the balance of the contract because it gave the owner-driver ‘reasonable notice’.  However, Chief Commissioner Scott found that the contract between the parties had no term for reasonable notice.  It could only be terminated ‘by expiration or by mutual agreement.’ 

The owner‑driver tried to claim that the arrangement was for a minimum of five years from June 2011.  However, he was ‘estopped’ from making that claim because in 2013, he entered into a deed to settle a dispute with the prime contractor.  A consequence of that deed was that, among other things, he could no longer claim that the owner-driver contract was a five year arrangement.  However, on the facts of the case, this did not make a substantial difference because contracts had already run for more than 4 years before the prime contractor sought to bring it to an end. 

The decision can be read here.

The Commission dismissed an unfair dismissal claim by a teacher.  The teacher claimed that her employment was unfairly terminated because her performance was not substandard.  She also argued that the process was unfair because, among other things, she was moved to a different school to be assessed against the Australian Institute of Teaching and School Leadership Standards and she was assessed against all of the Standards rather than just the areas where the employer alleged she was not ‘Proficient’. 

Chief Commissioner Scott found that the dismissal was not unfair because the teacher’s performance was properly assessed as being substandard.  There were significant deficiencies in her lesson planning and implementation, as well as failures to follow instructions and to properly assess students’ work. 

Chief Commissioner Scott also found that the process was not unfair.  At every stage, the teacher had a high level of support available to her and was not required to perform tasks beyond those which any teacher should be able to perform.  While her dismissal was based on an alleged failure to be proficient in three of the Standards, and this was the basis of her dismissal, she was not proficient in any of the seven standards.  And further, all experienced teachers are expected to be ‘Proficient’ in all Standards, and the Standards are interrelated, so it was not unfair for the employer to assess the teacher in all Standards rather than discrete areas of alleged substandard performance. 

The decision can be read here

The Full Bench unanimously dismissed an appeal by a real estate agent who claimed that he was entitled to $42,700 in commission payments from his former employer.  The Full Bench found real estate agents are only entitled to listing commissions if they are ‘in fact the effective cause’ of the firm winning the listing. 

The reliable evidence did not satisfy the Commission at first instance that the appellant caused the listing, and the Full Bench unanimously agreed.  Therefore, the Full Bench found, the claim was correctly dismissed.

The decision can be read here

The Full Bench unanimously approved an application to amalgamate by The Australian Workers Union, West Australian Branch, Industrial Union of Workers (AWU) and The Food Preservers’ Union of Western Australia Union of Workers (FPU). 

Before considering the application, the Full Bench dealt with an application to intervene by the National Union of Workers (NUW).  Several purported members of the FPU also lodged an objection to the amalgamation.  Each of those applications was dismissed.

The NUW said it said it has a ‘sufficient interest’ to intervene in the proceedings because the amalgamation may lead to disputation between the NUW and AWU in the Fair Work Commission and the NUW’s reputation was disparaged during FPU’s annual general meetings. 

The Full Bench held potential disputation in the Fair Work Commission does not give the NUW a sufficient interest to intervene.  Potential disputes in other jurisdictions are not relevant to the Full Bench’s consideration because it cannot deal with that ‘controversy'.  The Full Bench’s reasons also made mention of the fact that the NUW has no presence in the State industrial relations system.  

The Full Bench also found that the alleged disparagement did not establish a sufficient interest for the NUW.  The NUW cannot apply for coverage of FPU members because it is ‘not registered as an organisation under the’ Industrial Relations Act.  Therefore, the NUW has no right to procedural fairness ‘in these proceedings in relation to the statements’ at the FPU meetings.  In any event, the Full Bench noted that the alleged statements could not make any difference to the outcome of the application for amalgamation. 

The Full Bench also dismissed all purported members’ objections.  The Full Bench found some of the persons seeking to object were not eligible to do so because they had either resigned their membership of the FPU or had not paid their membership for over 3 months and so, pursuant to s 64B of the Industrial Relations Act 1979, they were no longer members of the FPU.  The objectors who were members had filed their objections out of time and did not satisfy the Full Bench that there was good reason to extend time to file the objections. 

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
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