Western Australian Industrial Relations Commission

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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.

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.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

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