Western Australian Industrial Relations Commission

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The appellant's previous breach of discipline, where a fine that was originally imposed was withdrawn but a reprimand remained on the appellant's file, was also considered by the Appeal Board which found that it was reasonable for the Department to consider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

The Commission has made an order that the respondent pay to the applicant his contractual entitlement to a salary for the year that he was employed by the respondent.

During the proceedings Commissioner Matthews found that the respondent had been incorrectly named in the application and an order was issued to rectify this.

The Commission made several attempts to contact the respondent throughout August and September of 2018 to request their availability for hearing.

On 27 September 2018, a man called the Commission and informed that he was speaking on behalf of the respondent, he was aware of the details of the matter and provided the Commission with a contact email and address.

On 10 October 2018 and 8 November 2018, the Commission sent correspondence to the email and postal address provided by the respondent which was recorded as delivered by Gmail and received by Australia Post respectively. A follow up email was also received by the respondent on 20 November 2018. Further, on 7 November 2018 a follow up call from the Commission to the telephone number previously used by the respondent was answered by a message that the number was no longer in service.

Commissioner Matthews was satisfied that the respondent was properly notified of the hearing and decided to hear the matter in their absence.

At the hearing, the Commissioner accepted the applicant's evidence that he had an employment contract with the respondent and that he had received no payment from the respondent throughout his employment. He found that the employment contract established that the applicant was employed by the respondent from 1 September 2014 until 31 August 2015 on a salary of $70,000 per year.

Matthews C determined that the applicant had a contractual entitlement to be paid a salary and that the respondent had not met that contractual entitlement. The Commission ordered that the respondent pay the applicant the sum of $70,000 less tax.

The decision can be read here.

 

Full Bench must consider the practicability of a remedy

The Full Bench has unanimously upheld an appeal by the State School Teacher's Union of W.A. Incorporated (SSTU), acting on behalf of a teacher. The appeal was against a decision that awarded compensation to the teacher for having been unfairly dismissed by the Director General of the Department of Education (the Director General).

The teacher had worked for the Department of Education for 36 years and taken extended leave after being diagnosed with PTSD and an anxiety disorder. While on leave, the teacher received a letter advising that there would be a Standards and Integrity investigation into an incident that occurred just prior to him having taken leave. In December 2017, the Department's doctor stated that the prospect of a successful return to work appeared poor at that time and sought further medical information from the teacher's doctor and psychologist. In early 2018, the Department terminated the teacher's employment on the grounds of ill health.

The Commissioner at first instance concluded that if all the relevant information was available to the decision-maker they could not have determined that the teacher was unable to work due to ill health. The learned Commissioner considered the circumstances and decided that reinstatement or redeployment was impracticable and awarded compensation.

The SSTU argued in ground 1 that the learned Commissioner erred in fact and in law when determining why the teacher was not attending work. The Full Bench noted that there was conflict between and a lack of clarity in the medical opinions and that the decision-maker should have made further enquiries prior to terminating the teacher's employment. For this reason, the Full Bench determined that the learned Commissioner's conclusion that the teacher was not going to work for reasons unrelated to his health was premature and in error.

The SSTU argued in 2 further grounds that the learned Commissioner erred in law by considering irrelevant considerations when finding that reinstatement was impracticable. The learned Commissioner had concluded that reinstatement was impracticable because the teacher's response to the Standards and Integrity process was abnormal or extreme. However, the Full Bench concluded that the medical evidence was that the teacher's response to the Standards and Integrity Process was normal.

The Full Bench found that the SSTU's three grounds of appeal were made out and upheld their appeal.

The Full Bench then considered an appeal filed 12 days out of time from the Director General which argued that the learned Commissioner erred in his reasoning in the calculation of compensation to the sum of 20 weeks' salary. The Full Bench noted that this ground only applied if the appeal brought by the SSTU failed. The Full Bench granted the extension of time after considering the relevant principles and that the SSTU did not object to the appeal being received out of time. The Director General's ground of appeal was that the learned Commissioner erred in fact and in law by finding that the teacher suffered compensable loss or injury. The Full Bench found that the Director General's submission assumed that the teacher was fit to work.

The Full Bench dismissed the Director General's appeal as evidence indicated that the employee was not fit to work at the school at which he had been teaching and his suitability to work elsewhere was not assessed.

The Full Bench allowed the SSTU's appeal and ordered that the decision at first instance be suspended and the matter remitted to the Commission for further hearing and determination on the practicability of reinstatement or reemployment in consideration of the employee's current state of health and whether he ought to be reemployed at another school.

The decision can be read here. 

 

The Commission has dismissed an unfair dismissal application because of a lack of jurisdiction. The respondent claimed that the Commission did not have jurisdiction to deal with this matter as it is a trading corporation and subject to the Fair Work Act 2009 (Cth).

As the respondent had been incorrectly named in the application, an order was issued to correct the respondent’s name.

In deciding whether the respondent is a trading corporation, Commissioner Walkington considered three issues to determine.

Firstly, the Commissioner found that the material submitted by the respondent showed that the applicant's employer is a trust which has a corporation as its trustee and as such the respondent is an incorporated entity.  

Secondly, Commissioner Walkington determined that the evidence before the Commission of the character of the activities carried on by the respondent at the relevant time, demonstrated that the respondent's core activities include chauffeur services for individuals and businesses, airport transfers, tours and transportation for special events.

Finally, Commissioner Walkington found that the respondent was engaged in significant and substantial trading activities of a commercial nature with a view to making a profit.  

The respondent is therefore a trading corporation and the Commission has no jurisdiction to hear and determine an unfair dismissal application.

The Commission dismissed the applicant's unfair dismissal application due to a lack of jurisdiction.

The decision can be read here.

The Occupational Safety and Health Tribunal (the Tribunal) has dismissed an application for payment of an unspecified amount for continued pay and benefits entitlements and a loss of earnings arising from alleged discrimination against a safety and health representative in relation to employment.

The Tribunal was comprised of Commissioner Walkington who considered the entitlements claim and noted that there is a mandatory process in place for resolving health and safety issues in the workplace, which include circumstances where a worker may cease work without loss of wages and entitlements. The Tribunal further considered that it is necessary for any employee wishing to make a claim to demonstrate that they have refused to work on particular tasks, have notified the employer of their belief of the risk to their safety and health and have made themselves available for alternate duties if it is safe to do so.  The Tribunal found that the applicant’s actions were not consistent with the provisions of the legislation and regulations.

The Tribunal then considered that persons who are safety and health representatives or are performing or have performed any function as a safety and health representative can make a claim for discrimination against a safety and health representative in relation to employment. The Tribunal found that the applicant was not eligible to bring this application because the applicant had not demonstrated that he was a validly elected safety and health representative.

The Tribunal dismissed the referral for lack of jurisdiction. 

The decision can be read here.

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

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
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