Western Australian Industrial Relations Commission

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A former director was found not to be an employee of a company, M3 Building & Construction Pty Ltd.  

The Commission considered the totality of the relationship between the parties. The director was responsible for the construction side of the business as the registered builder, and the other directors were responsible for sales and administration.

The Commission considered the lack of control over the director, the “job description”, the ability for the director to perform work for others, the provision of tools, the director’s integration into the business, the taxation arrangements, the non-provision of employment entitlements such as annual leave and the nature of the payments made to the director. Importantly, there was an absence of any written record noting an employment relationship.

The Commission held there was no employment relationship between the parties.  As such, the director’s claim for denied contractual benefits did not fall within the Commission’s jurisdiction.

The decision can be read here. 

A primary school Deputy Principal has been found to have been properly demoted to Teacher after acting aggressively and inappropriately towards a student umpire, other teachers and parents. 

The Deputy Principal got into disputes with a range of people at an interschool sports carnival.  She was supposed to be supervising a group of girls in a Year 6 – 7 softball team. 

The Commission said that a number of witnesses gave such similar accounts of the behaviour that it was highly likely that she was rude, abusive and aggressive towards a range of people when she was unhappy with the organisational arrangements for the carnival.  A number of people made complaints about her behaviour, including her language such as telling at least one parent to ‘piss off’.  Her behaviour caused distress to a number of people including a student umpire and a fellow teacher. 

The Deputy Principal was also alleged to have failed in her duty of care to the students by storming off the oval, leaving the students.  The Deputy Principal said that she went to the outskirts of the softball game, within sight of the game, to phone the School Principal to advise him that she needed to leave because she was not well.  She said she was gone for around a minute.  However, the Commission found that all of the other evidence led to the conclusion that she indicated to those present an intention to leave, she packed up her belongings and stormed off.  She returned after being told by the Principal not to leave the students until he got there and that she was gone for more than 5 minutes. 

The decision can be read here.

The State School Teachers’ Union of WA applied to the Commission for an extension of time to file witness statements even though the Union had twice previously decided not to file witness statements when the time limits for filing approached.  It told the Commission each time that it would not be filing any witness statements but would rely on the documents it had already filed.  It was represented by a legal practitioner at the time, but was subsequently represented by its industrial advocate.  It then changed its mind about how it would argue its case and now wished to file witness statements, requiring an extension of time in which to do so. 


The respondent objected, saying that the applicant ought to be bound by the conduct of its representatives.  The respondent also said that it was likely to incur further costs, inconvenience and delay if the application was granted. 


Acting Senior Commissioner Scott noted that a party is bound by the conduct of its representatives.  However, the subject of the dispute between the parties had continued to arise over a number of years.  If the Union was unsuccessful in the arbitration of the matter, without having an opportunity to ventilate all the matters it wanted to, it may result in further and continuing disputation at school level.  Acting Senior Commissioner Scott was critical of the Union’s change in strategy causing potential delay, costs and inconvenience to the respondent and also to the Commission.  However, she decided that in the interests of meeting the objects of the Industrial Relations Act 1979, of the resolution of disputes, and because the Commission is required to act without regard to technicalities and legal form, the Union ought to be able to file witness statements.  The respondent could seek costs, other than for counsel or an agent, if they arose as a result of the witness statements being filed. 


The decision can be read here. 

A building supervisor employed by a residential construction builder has been partly successful in a claim for progress payments on projects he supervised.  He claimed that he was owed nearly $72,000 in payments, but the Commission found he was only owed nearly $16,000.  However, the Commission has found that he did not supervise some of the projects he claimed for at all, and that some had not reached the stage of completion he had claimed. 


The applicant also claimed pay in lieu of notice, but the Commission found that for at least the last few weeks of his employment he either did not supervise the sites at all or properly and that his successor’s description of the sites as atrocious and looking like ‘bomb sites’ when he took over was true.  The employer had to cease work on the sites for around two weeks to allow the sites to be cleaned up and brought to a satisfactory state.  The applicant was also rude, abusive and aggressive in his conduct towards the respondent’s receptionist and to the respondent’s sole director. 


The Commission found that the supervisor had breached his contract and his conduct amounted to a repudiation of the contract so that he was not entitled to pay in lieu of notice. 


The supervisor also claimed that a term for four weeks’ annual leave ought to be implied into the contract.  The Commission considered the tests for an implied term and granted that part of the claim. 


The decision can be read here

The applicant, a restricted legal practitioner at the time, entered into a detailed written contract of employment with a law firm that had an office in Northam.  The applicant was employed for less than one month as a resident solicitor.

Despite the express terms of the written contract, the applicant argued there were a number of implied terms in the contract, and claimed six months’ salary, relocation and leasing costs, travel costs, membership fees and practising certificate costs.

On the basis of the terms of the written contract and the factual matrix leading up to the applicant’s employment, none of the applicant’s claims were made out.

The Commission considered the principles in regards to the implication of contractual terms, and applied the BP Refinery criteria. The meaning of probationary employment was also considered.

The decision can be read here.

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Western Australian Industrial Relations Commission
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