Western Australian Industrial Relations Commission

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AWOL employee dismissal 'not in any way unfair'

The Commission dismissed a claim of unfair dismissal by an employee of a small driving school business.  Commissioner Matthews found that the employer's decision to dismiss the applicant was justified because the applicant left the employers' business unattended without informing them.  The Commission found that, in light of the employee's complex and chequered employment history (given that the applicant was the son of one of the respondents and was employed mainly due to this rather than inherent suitability), it was not in any way unfair for the employer to terminate the employment on two weeks' notice. 

The applicant tried to convince the Commission that he forewarned his employer that he would be absent.  Commissioner Matthews found it inconceivable that the employers would have left the applicant in charge of the office while they were absent if they knew he would not be there all day. 

The decision can be read here

No dismissal when fixed term contract ends

The Commission dismissed a claim of unfair dismissal by a teacher who claimed she was dismissed from her employment because in truth her employment came to an end without action from the employer at the end date of a job share arrangement. 

The applicant did not convince Commissioner Matthews that she had a real expectation that the employment would be 'rolled' over into the next school year.  Even though the applicant had been in the job share arrangement each year for many years, the Commission was satisfied that she knew her employment depended upon other things happening, which may or may not happen from year to year, and that she could have had no reasonable expectation that she would be reappointed. 

The decision can be read here

Employer entitled to direct employee to take unpaid sick leave

 The Public Service Arbitrator dismissed an application by the Civil Service Association of WA Inc, seeking orders that the respondent’s decision, to send the applicant on unpaid personal leave, be reversed.

Senior Commissioner Kenner held that it was open to the respondent to rely upon the terms of the Public Service and Government Officers CSA General Agreement 2017 (the Agreement) read with Administrative Instruction 601 (AI 601) to direct the applicant to proceed on unpaid personal leave, despite only the latter containing express provision for the employer to do so. The directed leave was unpaid because the applicant had suffered significant periods of ill health beginning in April 2017 and as a result, had used all her accrued personal leave under the Agreement.

Senior Commissioner Kenner found that the Agreement by itself, did not enable the respondent to place the applicant on sick leave. Cl 22 of the Agreement permits an employer to require an employee to obtain and furnish a medical report when the employer has reason to believe that an employee is in such a state of health as to render a danger to themselves, fellow employees or the public. It was held that the natural and ordinary meaning of cl 22 does not empower the employer to unilaterally act on the medical report and direct the employee to take personal leave without pay. To do so would require express provision, which is absent.

On the other hand, cl 6 of AI 601 goes one step further and expressly allows the chief executive officer, upon receiving a medical report, to direct an employee to be absent from duty and such absence to be regarded as sick leave.  Senior Commissioner Kenner held that AI 601 and the Award were plainly intended to be read together in a complimentary fashion and to operate as part of a scheme. The relevant question was therefore what impact the Agreement has on the established scheme of the Award and AI 601.

Senior Commissioner Kenner found that the Award, the AI 601 provisions and cl 22.33 of the Agreement, are intended to be read together.  They are directed towards the purpose of discharging the employer’s duty of care to its employees and to the public at large. Therefore, when read with the relevant provisions of the Award and the Agreement, cl 6(a) of AI 601 should be read as modified by cl 22.33 of the Agreement, to include the situation where an employee is in such a state of ill health as to constitute a danger to themselves, as well as to fellow employees and the public. To interpret the relevant provisions in a different way would result in the oddity of a separate scheme applying to the circumstance where an employee’s ill health is regarded as a danger to themselves. In any event, it was found to be likely that an employee who was so ill as to constitute a danger to fellow employees or the public, would inherently pose a risk to themselves.

In relation to the applicant’s entitlements during the period of directed leave, Senior Commissioner Kenner found that the respondent’s Policy, HR- 11.05 Retirement on the Grounds of Ill Health – Police Staff, when construed as a whole, did not support the view that the applicant should be paid remuneration at any point prior to the dispute arising on the medical reports.

The Public Service Arbitrator held that the respondent was entitled to direct the applicant to take unpaid personal leave.

The decision can be read here.

“Restricted legal practice” only includes common law employees

Arising from a hearing on jurisdiction, the Commission held that the applicant was, as a restricted legal practitioner under the Legal Profession Act 2008 (WA) (LP Act), an employee of Thames Legal for the purposes of the Industrial Relations Act 1979 (WA). Consequently, the Commission has jurisdiction to hear the applicant’s substantive claims of unfair dismissal and denied contractual benefits.

Senior Commissioner Kenner held that “restricted legal practice,” for the purposes of fulfilling the requirements of s 50 of the LP Act, only contemplates legal practitioners who are employees at common law and does not include independent contractors. This is because the requirements of close supervision and control, underpinning the engagement of a restricted legal practitioner, as set out in s 50 of the LP Act, are entirely at odds with the independence and autonomy that is associated with a person engaged as an independent contractor.

Senior Commissioner Kenner cited the Industrial Appeal Court decision of Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers (2004) 85 WAIG 5 which is authority for the principle that the issue of whether a person is an employee or an independent contractor involves the consideration of the totality of the relationship between the parties, including among other relevant factors, the indicia of control. In this regard, Senior Commissioner Kenner noted several factors, including that Thames Legal had strict file management and calendar systems in place which all staff were required to comply with; all advice prepared for clients was finalised and signed by the respondent; the applicant was required to inform the respondent if he wanted to take time off work and the applicant was identified as a fee earner on client invoices.

The Commission found that the inconsistency between the requirements of s 50 of the LP Act and an independent contractor and principal relationship along with the indicia of control, were sufficient to dispose of the jurisdiction argument. However, as evidence was led on them, additional factors were considered by the Senior Commissioner.  It was found that the applicant was not engaged in running a business in his own right and was represented to clients and the outside world as part of the Thames Legal ‘team’. The fact that the applicant had a registered company and an ABN was of no material weight as the applicant’s company merely acted as a conduit for the purposes of issuing invoices to Thames Legal and receiving payment from the firm, and did not hold itself out as an entity providing legal services. There was also no evidence before the Commission that the applicant performed any work for others or that the applicant delegated work to others and as a restricted legal practitioner, it is unlikely this could occur in any case. The fact that the applicant was paid by percentage reward was considered a neutral factor as both employees and independent contractors may be paid by results or by commission and piecework rates.

Senior Commissioner Kenner concluded that at all material times, the applicant was an employee of Thames Legal and was not an independent contractor.

The decision can be read here.

Surgeon an Ongoing Employee Despite Industrial Agreement Clause Requiring Maximum Term Appointments

The Commission has issued an order and declaration that a vascular surgeon employed by East Metropolitan Health Service (EMHS) is an ongoing employee, despite the industrial agreement providing appointments will be for a maximum term.

The surgeon was represented by the Australian Medical Association (AMA), who said he was appointed in writing in 1997 and 2000 as a permanent employee and there is no basis on which to find he was offered, and accepted, a contract for a maximum term ending in 2017. The AMA argued that because the 1997 and 2000 appointments were complete documents that included a start date, no maximum term, a probationary period and the ability to terminate the contract with three months’ notice, it was clear the parties had reached an agreement that the surgeon was employed on an ongoing basis.

EMHS relied on the appointment clauses in the various industrial agreements that have applied since 1997.  They broadly provide that all appointments will be on five-year maximum term contracts unless the parties reach a written agreement to the contrary.   EMHS said it did not reach a written agreement to the contrary with the surgeon because the mode of employment was not specified in the 1997 and 2000 appointments. It also said that the industrial agreements’ appointment clauses prevail over any term to the contrary at common law.  It argued any purported appointment of the surgeon on a permanent basis is ‘null and void’ in accordance with s 114 of the Industrial Relations Act 1979 (WA) (IR Act). Therefore, EMHS said as a matter of law the surgeon’s appointment in November 1997 was for a five-year maximum term contract and he had since been reappointed on a series of three consecutive five-year maximum term contracts.

Commissioner Emmanuel found that in fact the surgeon was not appointed on a series of five-year maximum term contracts. However, the Commissioner also found that the surgeon was not appointed on a maximum term contract by operation of law. Under the relevant industrial agreements, the Commissioner concluded that EMHS may have had an obligation to offer the surgeon a five-year maximum term contract in 1997 and 2000 when he was appointed, but that is not what happened. Instead it offered the surgeon an ongoing employment contract, which he accepted. That an employer may not have complied with the industrial agreements in this regard does not mean that the surgeon must have been or was employed on a series of five-year maximum term contracts.

Commissioner Emmanuel found that the surgeon has been continuously employed by EHMS for over 20 years, first on an ongoing contract formed in 1997 and then on an ongoing contract formed in 2000.

The decision can be read here

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