Western Australian Industrial Relations Commission

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The Commission has referred a claim for unfair dismissal to a substantive hearing to decide whether there was a dismissal and, if there was, whether that dismissal was unfair.

The applicant alleges that, while she accepts that she resigned as part of the settlement of a claim under the Worker’s Compensation and Injury Management Act 1981, she was ‘forced into resigning’ in such a way as to making the ending of her employment a ‘constructive dismissal’. The respondent argues that the resignation was ‘voluntary’ as part of the settlement of her worker’s compensation claim.

Commissioner Matthews noted the presence of some unusual circumstances about which the applicant had given evidence on.  Commissioner Matthews discussed the possibility that the respondent, by its conduct, orchestrated a situation where the applicant had no real choice but to resign.

The application was also filed out of time. The respondent did not wish to be heard at the preliminary hearing on whether the Commission should act under s 29(3) Industrial Relations Act 1979, which allows the Commission to accept a referral by an employee that is out of time if the Commission considers that it would be unfair not to do so.

Commissioner Matthews will determine the issues of jurisdiction and the s 29(3) Industrial Relations Act question at the substantive hearing.

The decision can be read here.  

The Commission has dismissed a claim of unfair dismissal after finding that the applicant was not dismissed but was given a real choice to resign and did so.

The applicant alleged that the conduct of the respondent left her no choice but to resign, giving rise to constructive dismissal. The respondent argued that the applicant was not dismissed and that she voluntarily resigned as part of the settlement of a claim under the Workers’ Compensation and Injury Management Act 1981.

The applicant gave evidence that she accepted an offer of $70,000 to compromise her workers’ compensation claim, with a condition of settlement being she resign from her employment. She gave evidence that she refused to sign the draft letter of resignation from the respondent, and instead signed a version she amended which she felt better served her interests.

Commissioner Matthews found that the conduct of the respondent, as a matter of common-sense causation, did not lead to the applicant’s resignation. Instead, the applicant resigned to receive the offer of $70,000 in circumstances where her financial situation had become very bad. The applicant knew she had a choice as she refused to sign the draft letter until it was amended in what she considered to be her own best interests.

Commissioner Matthews found that there was no dismissal in the circumstances and consequentially found that the Commission does not have jurisdiction to hear and determine the application.

The application was dismissed by order.

The decision can be read here.

The Commission has upheld a claim for denied contractual benefits where the respondent failed to appear before the Commission despite having been served with a notice of hearing.

The applicant gave evidence she was employed by the respondent, including an offer of employment which offered the applicant casual employment at a specified hourly rate. The applicant gave evidence that she was underpaid for her work during her employment with the respondent to the amount of $825.87.

Commissioner Matthews accepted her evidence and found that since the evidence from the applicant was unchallenged and she was a credible and believable person, the respondent had denied her a contractual benefit in the sum of $825.87 and ordered the respondent to pay the applicant that sum.

The decision can be read here.

The Public Service Appeal Board (Board) has upheld an appeal and quashed a decision to dismiss the appellant for substandard performance pursuant to s 79 of the Public Sector Management Act 1994 (PSM Act).

The Board drew legal principle from the Full Bench authority Director General, Department of Education v Patrick Guretti (2014), and found that, for the employing authority to form the opinion that an employee’s performance is substandard, two steps must occur:

  1. ‘Prima facie’ evidence of substandard performance and a denial, against the evidence, of substandard performance; and
  2. A process of investigation, by which facts are ascertained, that results in a finding of substandard performance.

The Board considered a report produced by a third-party consultant on behalf of the respondent. The Board found that the consultant did not conduct anything like an investigation. The report had no analysis of whether the appellant’s performance was substandard or not but was simply a review of the fairness of the process conducted by the employer. The Board noted that, in a letter to the consultant, the Respondent had only asked for what amounted to a review of what had been already done. The Board held that the consultant did not do what was required by section 79(5) of the PSM Act.

The Board then considered the consequences of a failure to comply with s 79(5) of the PSM Act by not conducting an investigation before terminating the Appellant’s employment. The Board found that although legal precedent indicated they could determine the matter in the appellant’s favour because of the failure to comply with the PSM Act, they did not consider it to stand as authority that they must do so. They found that the consequences will depend on an interpretation of what Parliament intended.

In deciding what Parliament intended, the Board was influenced by the following:

  1. Parliament intended the Board to conduct appeals by way of hearing de novo;
  2. Bodies within the Western Australian Industrial Relations Commission should aim to resolve disputes if it is possible to do so rather than to allow them to continue; and
  3. The terms of s 78(5) of the PSM Act.

The Board determined that it may decide the matter on its merits and cure procedural defects at the hearing of the appeal but found that it was not required to under the PSM Act.

The Board decided not to determine the matter on its merits. The Board found it was unable to come to any meaningful conclusion about the appellant’s work performance based on the lack of quality and quantity of evidence before it.

The Board found that the appeal would succeed on the basis that the legislative process provided for by s 79(5) of the PSM Act was not carried out. It also found that it would not remit the matter back to the respondent to recommence investigation of the appellant’s performance.

The appeal was upheld and the decision to dismiss the appellant was quashed.

The decision can be read here.

The Commission has dismissed a denied contractual benefits claim made by a Store Manager who alleged that she was entitled to the payment of commissions and a salary increase.

The Store Manager claimed that the salary increase was discussed at her interview for the position as well as contained in an email to the applicant from the recruitment agency. Walkington C also considered the respondent's unchallenged evidence that the recruitment agency was a third party and not able to make representations on its behalf. Walkington C determined that a review of salary does not guarantee an increase and that this benefit was not contained in the contract of employment.

Walkington C also dismissed the Store Manager's claim for a commission payment. She decided that it was not an implied term of the employment contract, a variation to the contract of employment or a collateral contract. Walkington C found that there was no evidence before the Commission to suggest that the payment of commissions was an implied term based on widely-known industry practice or that commissions were paid based on the gross profit per week. Walkington C then dismissed the contention that the contract of employment was varied to include a term for in circumstances where a table for commission payments was provided to the Store Manager.

Finally, Walkington C dismissed the claim that there was a separate collateral contract and she found that there was no evidence before the Commission that either established an intent to create legal relations, or, set out the arrangements between the respondent and the recruitment agency.

The Commission dismissed the application.

The decision can be read here.

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Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

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