Western Australian Industrial Relations Commission

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Teacher provoked by student reinstated

The Commission upheld a claim of unfair dismissal by a teacher who was dismissed after he made physical contact with a student who sprayed him with compressed air. 

The Chief Commissioner found that compressed air is dangerous, and being sprayed with compressed air caused the teacher to fear for his life.  This provoked the teacher to instinctively and impulsively grab and push the student.  These circumstances were exculpatory of the teacher's physical contact with the student. 

The Chief Commissioner noted that not every instance of physical contact with a student will warrant dismissal.  The context of the conduct and the circumstances of the individual have to be considered.

The Commission ordered that the teacher be reinstated. 

The decision can be read here

Notice of Hearing - applications to cancel registration of defunct organisations

NOTICE is given of applications by the Registrar of the Western Australian Industrial Relations Commission to the Full Bench of the Western Australian Industrial Relations Commission to cancel the registration of The Boot Trade of Western Australia Union of Workers, Perth (FBM 2/2018) and the Master Plasterers’ Association of Western Australia Union of Employers (FBM 3/2018) on the grounds the organisations are defunct.


The matters are listed for hearing before the Full Bench at 11.30am on Wednesday 30 May 2018 on Level 18, 111 St Georges Terrace, Perth.


Any person who desires to object to the application/s may do so by appearing at the hearing before the Full Bench at the above listed date and time.


S. BASTIAN
REGISTRAR
15 May 2018

Reduction in teacher's penalty for misconduct

The Commission has upheld part of a teacher's challenge to findings made against him by the Department of Education.

The Commission found the teacher had misconducted himself but in a manner that warranted a reduction in the penalty initially imposed.

The Department of Education originally found that the teacher had misconducted himself by making a comment to a student, and in the physical altercation and restraint that ensued, he punched the student in the head.

The Commission found that, in all the circumstances, with contemporaneous reports not clearly mentioning the punch and the teacher’s evidence providing a reasonable alternative, the Department's finding that the teacher punched the student in the head was not safe, fair or reasonable.

The Commission found the teacher made a comment to the student using words to the effect “If you are going to hit me make it your best shot because you won’t get a second chance.”

The Commission rejected the teacher's submissions that in considering the comment the Department had not considered all the circumstances, being that he had made the comment instinctively and without thinking.

The Commission found that the evidence and submissions of the teacher demonstrated the comment was made as a strategy, that the comment led to the altercation and restraint of the student, and that in all the circumstances the teacher had misconducted himself by making the comment.

As the teacher was no longer found to have misconducted himself by punching the student but had misconducted himself by making the comment to the student, the Commission imposed a reduced penalty of a reprimand and a fine of one day’s pay.

The decision can be read here.

Various defunct industrial agreements cancelled

Following an investigation by the Registrar, the Commission has concluded that the following industrial agreements were defunct and has cancelled them pursuant to s 47 of the Industrial Relations Act 1979

  1. Arthur Yates and Co Limited Canning Vale Western Australia Site Agreement, AG 86 of 1994
  2. Atkins Carlyle Ltd (Belmont Warehouses) Enterprise Agreement 1995, AG 89 of 1995
  3. Australian Wool Handlers (Albany) Enterprise Agreement, 2000, AG 240 of 2000
  4. Australian Wool Handlers (Spearwood) Enterprise Agreement, 1998, AG 145 of 2000
  5. Broadway Fresh and SDA Agreement 2003, AG 230 of 2003
  6. Bunnings Forest Products Pty Ltd Storepersons Enterprise Agreement 1996, AG 300 of 1996
  7. Bunnings (Non Warehouse Stores)/SDA Agreement 2002, AG 10 of 2003
  8. City Gems Perth and SDA Agreement 2003, AG 229 of 2003
  9. Coles Distribution Centre Enterprise Agreement 1994, No. AG 38 of 1995
  10. Coles Variety City Store Rostering Agreement 1993, AG 68 of 1993
  11. Coles Myer Logistics Pty. Ltd. Myer Distribution Centre Carousel Road Cannington Site Agreement 1999, AG 63 of 1999
  12. Dewsons Cooloongup and SDA Agreement 2004, AG 103 of 2004
  13. Dyson’s Packaging Pty Ltd Enterprise Agreement 1995, No. AG 212 of 1995
  14. Elders Limited (Spearwood Wool Store) Enterprise Agreement 1995, No. AG 235 of 1995
  15. Elders Limited (Spearwood Wool Store) Enterprise Agreement 1996, No. AG 332 of 1996
  16. FAL and SDA Enterprise Agreement 1994, AG 178 of 1994
  17. Feeding Frenzy Perth and SDA Agreement 2003, AG 231 of 2003
  18. Fish Feast Canning Vale SDA Agreement 2003, AG 57 of 2004
  19. Fish Feast Gosnells SDA Agreement 2002, AG 14 of 2003
  20. Fish Feast Greenmount SDA Agreement 2002, AG 12 of 2003
  21. Fish Feast Halls Head SDA Agreement 2003, AG 51 of 2004
  22. Fish Feast Joondalup SDA Agreement 2002, AG 13 of 2003
  23. Fish Feast Kardinya SDA Agreement 2002, AG 11 of 2003
  24. Fish Feast Kelmscott SDA Agreement 2002, AG 17 of 2003
  25. Fish Feast Lathlain SDA Agreement 2002, AG 15 of 2003
  26. Fish Feast Malaga SDA Agreement 2003, AG 56 of 2004
  27. Fish Feast Maylands SDA Agreement 2002, AG 16 of 2003
  28. Goodman Fielder Consumer Foods (Canningvale) Enterprise Agreement 2004/2005, AG 85 of 2004
  29. Gordon & Gotch Limited Enterprise Bargaining Agreement 1996, AG 35 of 1996
  30. Gordon & Gotch Limited Enterprise Bargaining Agreement 1997, No. AG 43 of 1997.
  31. Inghams Enterprise Storemen’s Agreement 1994, AG 22 of 1994
  32. Inghams Enterprises Pty Ltd Distribution Enterprise Bargaining Agreement 2000, AG 268 of 2000
  33. Inghams Enterprises (Telesales) Enterprise Bargaining Agreement 2003, AG 90 of 2003
  34. Kebab Company – Joondalup Perth and SDA Agreement 2003, AG 232 of 2003

Public notice was given of the Commission's intention to cancel these industrial agreements on the Commission's website on 1 November 2017 and in The West Australian on 15 November 2017. 

A copy of the Order can be viewed here

Cavalier approach leads to dismissal of unfair dismissal application

The Commission upheld an employer's application to dismiss an unfair dismissal claim.

The claim had been listed for a two-day hearing and the former employee failed to appear on the first day of substantive proceedings. The parties were informed that the second day of the hearing would proceed on the basis that the employee was to show cause why his claim should not be dismissed.

The employee appeared at the show cause hearing by telephone and informed the Commission that he was located in Singapore and had not made preparations to proceed with the hearing on either day.  The employee also said that if the matter were not dismissed, he would apply for an adjournment to allow him to amend his application and prepare for hearing.

The Commission upheld the respondent’s application for summary dismissal of the claim, citing the employee’s cavalier attitude towards both the employer and the Commission.

The employer applied for costs, but the Commission held that the expenses contended to have been incurred by the employer’s witnesses were not expenses as contemplated by section 27(1)(c) of the Industrial Relations Act 1979 and 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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