Western Australian Industrial Relations Commission

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Full Bench can only hear points raised at first instance

The Western Australian Industrial Appeal Court has dismissed an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission (WAIRC) where one of the appellants complaints was about a matter not raised in earlier proceedings.

After being summarily dismissed by the Shire of Denmark, Mr Whooley commenced proceedings in the WAIRC claiming that he had been denied contractual benefits. Mr Whooley claimed that the termination of his employment was invalid and ineffective because the shire had not complied with s 5.37(2) of the Local Government Act 1995 (LGA). The Shire of Denmark denied Mr Whooley's claims and argued that Mr Whooley was barred from bringing the claim because of a settlement agreement made between the parties during the course of proceeding in the Fair Work Commission. The Commissioner at first instance found that the termination of Mr Whooley was invalid and ineffective and ordered the Shire of Denmark to pay Mr Whooley.

The Shire of Denmark then appealed to the Full Bench of the WAIRC on the grounds that the termination was valid and effective, and that the settlement agreement was a bar to Mr Whooley's claim. The Full Bench, by majority, upheld both grounds of the appeal and set aside the decision of the Commissioner at first instance's decision and ordered that Mr Whooley's claim be dismissed.

Mr Whooley appealed to the Industrial Appeal Court on two grounds. Ground 1 was that the Full Bench erred in finding that the termination of employment was valid or effective. Section 5.37(2) of LGA is as follows:

The CEO is to inform the council of each proposal to employ or dismiss a senior employee, other than a senior employee referred to in the s 5.39(1a), and the council may accept or reject the CEO's recommendation but if the council rejects a recommendation, it is to inform the CEO of the reasons for its doing so.

The Industrial Appeal Court found that, on its proper construction, the LGA confers on the CEO power to dismiss a senior employee only if the CEO has informed the council of the proposed dismissal and the council has accepted the CEO's recommendation. The CEO of the Shire of Denmark did not inform the council of the proposal to dismiss Mr Whooley and the council did not accept a recommendation to dismiss Mr Whooley. The Industrial Appeal Court therefore found that Ground 1 of the appeal was made out.

Ground 2 of the appeal was that the Full Bench erred in finding that the settlement agreement between the parties' bars Mr Whooley's claim. The essence of Mr Whooley's argument was that the settlement agreement was not of force or effect because the it was beyond the power of the CEO to make an agreement on behalf of the Shire. Section 90(1) of the Industrial Relations Act 1979 provides that appeals to the Industrial Appeal Court must be upon certain grounds. Ground 2 does not fulfil the requirements of s 90(1) as it does not assert that the subject of the decision is not an industrial matter or that the decision is erroneous in law. The Industrial Appeal Court found that it did not have jurisdiction to hear ground 2 and, consequently, ground 2 was not made out.

In oral submissions to the Industrial Appeal Court, Mr Whooley submitted that he had been denied the right to be heard by the Full Bench. An appeal on the grounds that the appellant has been denied the right to be heard can be made to the Industrial Appeal Court. In his oral submissions to the Full Bench, Mr Whooley argued that the CEO did not have the authority to enter a legally binding contract on behalf of the Shire. The Full Bench ruled that Mr Whooley could not raise that point because it had not been raised at the matter of first instance. It is a very well-established principle that, except in very exceptional cases, a party to an appeal cannot raise a point or objection on appeal that was not raised in the primary proceedings. The Industrial Appeal Court found that the Full Bench did not deny Mr Whooley the right to be heard.

The Full Bench upheld the appeal from the first instance Commissioner on the basis that, if they were wrong about ground 1, Mr Whooley's claim would still be dismissed based on ground 2. The Industrial Appeal Court found that the error of the Full Bench in regard to ground 1 did not affect ground 2. The Industrial Appeal Court dismissed the appeal and confirmed the decision of the Full Bench, that is the decision of the Full Bench to quash the decision of the Commissioner at first instance and order that Mr Whooley's claim be dismissed.

The decision can be read here.

"Upfronts" bonus for employee

The Commission has upheld, in part, a claim for denied contractual benefits by an accountant who said that he was denied bonus payments for "upfronts" by the financial services provider he worked for.

The applicant submitted that "upfronts" means new revenue or new business. The respondent argued that "upfronts" in the financial services industry means a payment by a client at the stage of implementation of advice.

Senior Commissioner Kenner determined that "upfronts" must be given a meaning consistent with commercial objects and purposes of the transaction and consequently found that "upfronts" should be understood to mean an initial or first up payment by a client on the implementation of financial advice as provided by the respondent. On a spreadsheet of transactions, Kenner SC found that the items "Investment Initial Commission", "Insurance Initial Commission" and "Upfront Advice Fees-Product" all fall under the category of "upfronts" for the purposes of the employment contracts. Kenner SC found that the applicant established his claim for bonuses.

The applicant also made a claim for the furniture costs as they were required to set up an office at home from which the respondent's business was conducted. The applicant argued that, in a letter from the respondent, "table, chair, filing cabinet to be paid for to the value of $1,000" meant that they were entitled to $1,000 irrespective of the total amount spent on furniture. Kenner SC found that, whilst the terms of the letter were not entirely clear, the letter did not confer the benefit of a cash allowance payable to the applicant. The term was more in the nature of a reimbursable expense and, as the applicant did not produce any evidence of the purchase of any furniture, the claim for furniture costs was dismissed.

The decision can be read here.

Forced sick leave not what the doctor ordered

The Full Bench unanimously upheld an appeal by the Civil Service Association of Western Australia Incorporated against a decision of the Public Service Arbitrator that an employer was entitled to direct that an employee to take unpaid sick leave. 

The employee had a history of complex illness and had used up all of her sick leave.  On 22 December 2018, her employer, the Commissioner of Police, directed her to take sick leave and remain away from work.  As she had no sick leave left, this leave was to be unpaid.  The Arbitrator held that Administrative Instruction 601 (AI 601) and the relevant clause of the Public Service and Government Officers CSA General Agreement 2017 (PSGOGA) should be read together, and give rise to the employer's right to direct an employee to remain away from work and that such period be regarded as sick leave where an employee is in such a state of ill health as to constitute a danger to themselves, other employees or the public. 

AI 601 was made under the Public Service Act 1978 (repealed).  The Hon. J H Smith, Acting President, delivering her last decision as a member of the Commission, noted that AI 601 is a transitional instrument and should be read 'with such modifications as are necessary'.  That means, it must be read as if it were made under the current Public Sector Management Act 1994 (PSM Act).  Among other provisions, AI 601 is modified by s 64 of the PSM Act, which requires that public service officers be appointed in accordance with binding awards and industrial agreements.  There are no award provisions related to sick leave binding on the employee's employment because they have been displaced by PSGOGA during the life of that agreement.  That means, the instruments affecting the employee's employment related to sick leave are AI 601 and PSGOGA.  The former is not modified by the latter as modifications are only made to make AI 601 fit in the 1994 PSM Act scheme.  There is no provision in PSGOGA allowing the employer to direct an employee to take sick leave.  Clause 6 of AI 601 allows an employer to direct an employee to take sick leave only when the employee's state of health is a danger to colleagues or members of the public (not themselves).  When the employer directed the employee to take unpaid sick leave on 22 December 2017, he had no evidence that the employee would be a danger to colleagues or members of the public.  The employer's power to direct the employee to take sick leave was therefore not enlivened. 

The Full Bench also rejected the employer's argument that its Ill Health Retirement Policy allowed it to withhold payment because a formal dispute about her medical fitness was not raised.  Acting President Smith, with whom Chief Commissioner Scott and Commissioner Matthews agreed, held that at the material time the employee had raised a dispute with the employer's assertion that she should be medically retired by providing medical reports to substantiate her continued employment from two medical practitioners, in rebuttal of the employer's medical report. 

Her Honour also noted that the principle of 'no work, no pay' does not necessarily apply to public servants because there is a distinction between payment as a consequence of holding office and payment for work performed. 

The decision can be read here.

PSAB appeal dismissed for lack of jurisdiction

The Public Service Appeal Board (Board) has determined it is unable to hear an appeal about the claimed dismissal of a health service casual employee, because it found that the employee was not dismissed.

The Board found  that the appellant was not employed on a regular and systematic basis and was a casual employee. Further, the Board found that although the appellant was no longer working at the original location of her employment, she was still employed by the health service, according to the same casual contract of employment and against the same position number, but at a different location.

The Board noted that although casual employees can be dismissed, in this matter, it was not satisfied the appellant was sent away or removed from her employment or position. The Board dismissed the appeal for lack of jurisdiction.

The decision can be read here

Commissioner of Police not precluded from removal action

The Western Australian Industrial Appeal Court has upheld an appeal against a decision of the Western Australian Industrial Relations Commission (WAIRC) that found that the appellant, the Police Commissioner, had unfairly removed a police officer from the WA Police Service.

The police officer, while off duty, was involved with an incident with members of the public. He was charged with offenses of unlawfully causing grievous bodily harm and assault. Prior to the determination of the criminal charges, the Commissioner of Police commenced removal action against the officer under pt IIB of the Police Act 1982 for the conduct relating to the criminal charges. The Commissioner invited the officer to respond to the proposed removal action. The officer declined to respond to the proposed removal action as it would undermine his right to silence and his presumption of innocence whilst the criminal charges were being defended. The Commissioner continued with the removal action and removed the officer from the Police Force. After his removal, the officer was acquitted of both charges. He appealed to the WAIRC on the grounds that the decision of the Commissioner to take removal action was harsh, oppressive or unfair. The WAIRC declared that the Commissioner's decision to take removal action was unfair and ordered compensation to be paid for loss and injury caused by the removal.

The Commissioner appealed the decision on the grounds that the WAIRC erred in law in its construction of s 33W of the Police Act and that in allowing the officer's appeal at first instance, the WAIRC erred in law by finding that considerations of fairness overrode the operation of s 33W. The officer argued that the Court had no jurisdiction to hear the appeal. By majority, the Court found that the appeal to the Court was within s90(1) of the Industrial Relations Act 1979 as applied and modified by s 33S of the Police Act and was therefore competent.

Buss J noted that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions in the statute. He further noted that legislative intention to exclude the rules of procedural fairness may arise where compliance with the rules in respect of the exercise of a statutory power will 'necessarily frustrate or be inconsistent with the exercise of the power'.

The majority of the Court found that the Commissioner was not required to grant the officer an extension of time, suspension or adjournment in relation to the removal action process. Section 33W contains a declaration as follows:

To avoid doubt, it is declared that if a member –

(a)        has been charged with committing an offence; or

(b)        has been acquitted of an offence,

That charge, the existence of proceedings relating to that charge or the acquittal does not preclude the Commissioner of Police from taking any action under this part in relation to any matter, act or omission relating to or being an element of the offence.

Buss J determined that the word 'preclude' in the context of the statute meant 'prevent' and that therefore the Commissioner is not prevented from commencing or continuing with removal action under pt IIB in relation to a member of the Police Force in the circumstances specified in s 33W.

The purpose of the removal action process, as revealed by the statute, is to enable the Commissioner to promptly remove an officer from the Police Force if the Commissioner has lost confidence in the officer's suitability to continue as a member, having regard to the officer's integrity, honesty, competence, performance or conduct. The majority of the Court found that the WAIRC erred by reading an unexpressed condition based on fairness into the relevant section of statute.

Accordingly, the majority of the Court determined that it was not open for the WAIRC to conclude that the Commissioner's decision to take removal action in relation to the officer was 'unfair', within the expression 'harsh, oppressive or unfair' and that the Commissioner denied the officer procedural fairness by refusing to adjourn the removal action process. The majority of the Court was satisfied that the Commissioner afforded the officer a reasonable opportunity to be heard in relation to the Commissioner's loss of confidence in the officer's suitability to continue as a member of the Police Force.

Le Miere J (dissenting) found that the WAIRC did not misconstrue the statute. His Honour found that the effect of s 33W is that the circumstance of an officer having been charged with committing an offence does not prevent the Commissioner from taking removal action. However, that does not mean that it cannot be unfair for the Commissioner to take removal action in the particular circumstance of a case where the officer has been charged with a related criminal offence. His Honour stated that where different conclusions are reasonably possible it cannot be inferred that the WAIRC has misunderstood or misconstrued the statutory provision.

The Industrial Appeal Court set aside the declarations and orders made by the WAIRC and substituted an order that the officer's appeal to the WAIRC  be dismissed.

The decision can be read here.

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