Western Australian Industrial Relations Commission

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The Industrial Magistrate has partially upheld a claim for alleged breaches of the Fair Work Act 2009. The applicant was a chief financial officer for the first respondent who sought orders for the payment of alleged employee entitlements owed to her upon termination after she was summarily dismissed for alleged instances of discreditable conduct, one of which was admitted.

Industrial Magistrate Flynn stated that common law terms existed and were implied into the contract of employment. Flynn IM held that that the applicant's admitted discreditable conduct repudiated the employment contract and cancelled the applicant's entitlement to common law termination pay, long service leave and annual leave. Flynn IM then determined that the applicant's admitted conduct was a serious misconduct under the Long Service Leave Act which meant that the respondent did not have to pay the alleged long service leave entitlement.

Flynn IM held that the applicant's annual leave entitlement had been proven, that the second of the respondent's two payments for annual leave made to the applicant was not paid within a reasonable time and that the second respondent was also liable for this contravention.

The Industrial Magistrate's Court dismissed all but one of the applicant's claims. The Industrial Magistrate awarded the applicant a pecuniary sum for the annual leave entitlement that was not paid within a reasonable time.

The decision can be read here.

 

The Industrial Magistrate's Court has dismissed a claim made by a senior youth justice officer for the paid leave to attend union business in accordance with clause 37 of the Public Service Award 1992 (Award). Mr   Mayerhofer attended two directions hearings and a hearing of the appeal before the Public Sector Appeal Board (PSAB).

Industrial Magistrate Scaddan found that the appeal was instituted by Mr Mayerhofer personally on matters personal to him, rather than by the Civil Service Association of Western Australia as an organisation on behalf of one of its members.

Scaddan IM noted that to qualify for paid leave to attend union business, within the meaning of cl 37, it was needed to be an industrial, commercial, or professional operation or commercial activity or dealings.  Scaddan IM found that as the character of the appeal was a matter personal to Mr Mayerhofer, and that although Mr Mayerhofer was represented by the applicant, it could not be said to be union business within the  definition of cl 37.

 Scaddan IM considered the language and context of the subclauses to cl 37(1) and found that the intention of cl 37(1)(a) is not to provide a separate type of paid leave for individual officers to attend litigation unrelated to the commercial activities and professional operation of the union. Scaddan IM concluded that the applicant had not proved to the requisite standard that the respondent contravened cl 37.

Scaddan IM considered the applicant's allegation that Mr Mayerhofer was required to attend the appeal for six days and found that the evidence indicated that this claim had been inflated. Lastly, in relation to a contention raised by the parties, Scaddan IM observed that the drafters of the Award could not have intended for a clause to operate preferentially to union members.

Scaddan IM dismissed the applicant's claim and associated claim for a penalty.

The decision can be read here.

 

The Full Bench has dismissed an appeal against a decision of the Industrial Magistrate where it was found that the appellant was not entitled to be paid an allowance. The appellant had received the Forensic Qualifications Allowance (FQA) since August 2010 while working in the Forensics Division of the Western Australian Police Force. However, in April 2015 the appellant was transferred to a District Forensic Information Officer position which the Commissioner of Police considered did not attract the FQA and payment of the allowance to the appellant ceased.

At the hearing in first instance, the learned Magistrate was not persuaded that the Commissioner of Police had failed to properly exercise his discretion and dismissed the application. The appellant appealed this decision on the ground that the learned Magistrate erred in law when dismissing his claim.

The majority of the Full Bench (Senior Commissioner Kenner with Commissioner Walkington agreeing) found that the breadth of the words used by the draftsperson in clause 17(12) of the Western Australian Police Industrial Agreement 2006 indicated that the parties to the Agreement intended to confer the ultimate discretion on whether to approve the payment of the FQA on the Commissioner of Police.

The Full Bench determined that the learned Magistrate erred when she rejected the appellant's contention, that the position descriptions should be given significant weight and little, if any, relevance should be given to the approved list of positions that the Commissioner of Police considered eligible to attract payment of the FQA. Senior Commissioner Kenner stated that the approved list document could not be given any weight because it was created for internal use by the Commissioner of Police's Employee Relations staff well after the making of the Agreement. Further, the Full Bench found that the certified position descriptions provided the best evidence of the requirements of the roles because they had been certified by the Commissioner of Police as fully and accurately describing its requirements.

The effect of the Guidelines of Acceptable Practice on the determination of any FQA claim was found by the Full Bench to not alter the proper interpretation and application of the Agreement. Additionally, the Full Bench found that the appellant did not satisfy the eligibility criteria because the Commissioner of Police had not deemed him to be working in the assessed field as provided for in the clause.

Commissioner Matthews found that after the specified criteria in cl 17(12)(a) had been met then the respondent could exercise his discretion on whether to pay or not pay the FQA. Matthews C added that the respondent could withdraw his FQA approval whether the facts in the specified criteria existed or not.

The Full Bench concluded that the appellant had not demonstrated that the learned Magistrate erred in her conclusion that the Commissioner of Police acted reasonably in the exercise of his discretion.

The decision can be read here.

 

The Industrial Magistrate has ordered that the respondent pay $12,416.13 plus interest to the applicant for contravening s 549 of the Fair Work Act 2009 by underpaying wages. The respondent operated a deli or convenience store where the applicant worked as a shop assistant from 25 June 2014 until on or around 1 November 2015.

Industrial Magistrate Scaddan considered whether the parties were covered by the General Retail Industry Award 2010 (Retail Modern Award) and found that because the respondent is in the general retail industry and performed its functions or work at a retail establishment the parties were covered by the Retail Modern Award.

Scaddan IM then considered what the appropriate classification was for the applicant under the Retail Modern Award. Scaddan IM concluded that Schedule B of the Retail Modern Award classified the applicant at Retail Employee Level 1 because the applicant served customers and stacked shelves which are duties of that level and their job title of shop assistant usually fell within the definition of a level one retail employee.

The significance of the Wage Subsidy Scheme Agreement dated 25 June 2014 (the Agreement) between the respondent and Options Employment, on behalf of the applicant, was considered by Scaddan IM who concluded that the Agreement did not comply with Clause 7 of the Retail Modern Award and that wherever there was any inconsistency the Retail Modern Award would apply. Further, Scaddan IM found that the Agreement included general terms and conditions for the applicant to be paid in accordance with the relevant award classification for the whole of their period of employment. Scaddan IM considered that the amounts on the applicant's payslips and the payments made by the respondent to the applicant's bank accounts did not always correlate, that the respondent had been erroneously informed of the applicable hourly rate for the applicant and that the PAYE summary tendered by the respondent and the applicant's bank accounts did not correlate. Scaddan IM found that the respondent did not necessarily pay the applicant $16.87 per hour and that this was not the amount per hour that the applicant was required to be paid.

Scaddan IM considered the final issue of what were the applicant's entitlements under the Terms of the Retail Modern Award for a Retail Employee Level 1. Scaddan IM accepted that the respondent's payslips from 23 June 2014 until 21 December 2014 and the applicant's personal records for the hours he worked in 2015 as evidence for the hours that the applicant worked.

The parties concluded that the applicant was a part time worker and the applicant's bank statements showed that he was paid $7,153.67 in 2014 and $10,268.17 in 2015 by the respondent. Scaddan IM calculated the applicant's entitlement to ordinary pay as $29,837.97 and found that this meant that the applicant had been underpaid by the respondent in the amount of $12,416.13.

The Industrial Magistrate Court ordered that the respondent pay the applicant the amount of $12,416.13 plus $2,522.69 as interest for the underpayment of the applicant's wages.

The decision can be read here.

 

The Public Service Appeal Board has dismissed an appeal against a decision of the Department of Justice to impose a penalty of reprimand and transfer after it found that the appellant had committed a breach of discipline for undertaking activities that were outside the role and responsibilities of his duties.

The appellant was working as a trainee Judicial Support Officer who provided in and out of court support to a Magistrate when he was subject to disciplinary proceedings for contacting a witness after a trial had concluded to obtain further information that he then included into draft reasons for decision.

The appellant argued that his conduct did not warrant a finding of a breach of discipline because it was the result of an honest and mistaken belief about his course of action. The appellant further stated that if it is found that he committed a breach of discipline that the penalty imposed by the Department should be remedial action by way of further training.

The Department argued that the finding of a breach of discipline was justified on the facts and that the penalty imposed was fair and reasonable.

The Appeal Board considered how the appellant's conduct should be characterised, whether the disciplinary action imposed by the Department was warranted and whether the Department could have regard to the appellant's prior disciplinary history.

The context of the appellant's role and the instructions given for the task were considered by the Appeal Board to determine if the appellant was negligent or careless in the performance of his functions when he committed the alleged breach of discipline. The Appeal Board resolved that the Department's finding that the appellant had committed a breach of discipline was not unreasonable. In all the circumstances the Department was entitled to make this decision.

The appellant's previous breach of discipline, where a fine that was originally imposed was withdrawn but a reprimand remained on the appellant's file, was also considered by the Appeal Board which found that it was reasonable for the Department to consider the appellant's prior disciplinary history when determining the appropriate penalty for this matter.

The fact that a reprimand is the lowest level of penalty that may be imposed and that a transfer is a middle order penalty was noted by the Appeal Board when it determined that the penalty imposed by the Department was not so harsh or excessive that it should be adjusted.

The Appeal Board found that the appellant's contention that he did not act with any malintent is a qualification that should be made to the reprimand. The appeal was otherwise dismissed.  

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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