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Public Service Arbitrator dismisses conference application seeking to enforce agreement for want of jurisdiction

The Public Service Arbitrator has dismissed an application by the Australian Medical Association (WA) Incorporated (AMA) seeking a conference in relation to back-pay of an allowance, finding that the application’s essential nature was seeking the enforcement of the Agreement and was not within the jurisdiction of an arbitration under s 44.

Background

The applicant made an application on behalf of several Senior Doctors to the respondent seeking back-pay in relation to a Private Practice Cost allowance under cl 23(7) of the relevant Industrial Agreement.

Contentions

The applicant sought a compulsory conference under s 44 of the Industrial Relations Act 1979 (WA) (‘IR Act’) and any other recommendations or orders the Commission saw fit in the interests of supporting ongoing compliance with the Industrial Agreement and expeditious resolution of any future disputes. The respondent sought dismissal of the claim and contended the Arbitrator was without jurisdiction to deal under s 44 of the IR Act because in substance, it was a claim for:

  • enforcement of an industrial instrument, which is a claim within the exclusive jurisdiction of the Industrial Magistrates Court under s 83 of the IR Act; or,
  • interpretation of an industrial instrument which needs to be made under s 46 of the IR Act and which would require the joinder of all named parties to the industrial instrument; or
  • if neither of the above, a claim that contravenes the ‘no further claims’ clause of the relevant industrial instrument.

Findings

The Arbitrator noted that it would need to characterise the essential nature of the proceedings and whether the present application invoked judicial or arbitral powers. The Arbitrator noted that its powers under s 44 of the IR Act are arbitral, not judicial. The Arbitrator noted judicial powers involve the ascertainment, declaration and enforcement of rights and liabilities of parties as they exist or are deemed to exist when proceedings are instituted. The Arbitrator noted that arbitral powers are directed at whether rights and obligations should be created, consistent with the objects of the IR Act.

The Arbitrator found that the relief must be connected to the industrial dispute. The Arbitrator noted the reference to compliance in the applicant’s sought orders suggested invocation and determination of rights and obligations. The Arbitrator found that from the correspondence attached to the applications it was apparent that the parties were in a dispute about the construction of clause 23(7) and other industrial issues not strictly to do with rights and entitlements. The Arbitrator noted that the applicant’s representative stated the dispute concerned the rights and obligations under the agreement.

The Arbitrator found that the application’s essential nature was seeking the enforcement of the Agreement, was not within the arbitral jurisdiction and was not capable of being referred for arbitration under s 44. The Arbitrator dismissed the proceedings for want of jurisdiction.

The decision can be read here.

Commission upholds unfair dismissal application and orders payment of notice to apprentice hairdresser

The Commission has ordered payment of 2 weeks’ notice to an apprentice hairdresser after finding that her employment was ended at the initiative of the employer.

Background

The applicant was an apprentice hairdresser at a salon owned by the respondent. The applicant asked the respondent for a pay rise, to which the respondent walked away and later had asked to have a discussion with applicant in the back of the shop. After this discussion, the working relationship ended following a text message exchange. In the exchange the respondent refused the applicant’s request for payment of two weeks’ notice but said they could transfer the applicant’s apprenticeship.

The applicant made an unfair dismissal application to the Commission.

Contentions

The applicant contended she was unfairly dismissed and sought two weeks wages and three days’ pay for lost wages when attending the Commission. The respondent did not attend the hearing.

Findings

The Commission noted it must decide whether there was a dismissal, if so whether it was harsh, oppressive or unfair, should compensation be awarded and if so, how much.

The Commission found that the intended outcome of the text message exchange was termination of employment or dismissal even though the respondent did not expressly say this to the applicant. The Commission noted that this was apparent from her reference to the working relationship being in the past tense, her statement that that day’s events had gone too far, her reference to her ‘decision’ and to calculating and depositing money that was due to the applicant. The Commission noted that the respondent said nothing to suggest employment was still on foot. The Commission found that there was a dismissal.

The Commission found that because the dismissal was effected without giving any notice, or payment in lieu of notice, it was a summary dismissal. The Commission found that the summary dismissal was not justified because there was no serious misconduct by the applicant. The Commission found there was no evidence of wilful or deliberate behaviour by the applicant that was inconsistent with employment continuing. The Commission noted it was reasonable for the applicant to raise the topic of her rate of pay with the respondent. The Commission found that the dismissal was unfair.

The Commission considered authorities on the assessment of compensation for unfair dismissal and noted that it was unable on the evidence to calculate the applicant’s loss precisely. The Commission found that two weeks’ pay would likely be sufficient to compensate the applicant to the full extent of her actual loss. The Commission noted reinstatement was not sought or appropriate as the applicant had secured alternative employment.

The Commission upheld the application and issued orders to the effect of amending the respondent’s name, declaring the dismissal to be harsh, oppressive and unfair, and for the respondent to pay $1,366.48 to the applicant, being 76 hours at the rate of $17.98 per hour.

The decision can be read here.

Public Service Appeal Board finds unvaccinated psychologist was lawfully dismissed

The Public Service Appeal Board has dismissed the appeal of a child protection psychologist, finding they were lawfully dismissed for disobeying or disregarding a lawful reasonable order.

Background

The appellant was a child protection psychologist employed by the respondent. The appellant appealed to the Board their dismissal for not following the respondent’s direction to be vaccinated against COVD-19 and to provide proof or an exemption.

Contentions

The appellant contended she was unfairly dismissed as she conditionally accepted vaccination. The appellant contended she had a core belief of bodily autonomy, her contract did not require vaccination, and she complied with the Chief Health Officer’s mandatory vaccination directions (‘CHO directions’) by not entering the workplace. The appellant contended her role could be performed entirely remotely and the respondent’s direction was not lawful as it was unreasonable.

The respondent contended the dismissal was not unfair, their direction was a reasonable lawful order, and the appellant was required to be vaccinated to lawfully enter or remain at their place of work and perform their duties. The respondent contended an order to reinstate the appellant to work entirely remotely would be forming new contractual terms and conditions and be outside the Board’s powers.

It was common ground that the CHO directions were valid and that two covered the applicant.

Findings

The Board considered Part 5 of the Public Sector Management Act 1994 (WA) covering breach of discipline as the appellant was a public service officer. The Board noted some of the appellant’s work could be conducted remotely via online therapy, depending on factors such as the child’s age and any rapport. The Board found the principal place of work was at the office where face to face therapeutic intervention was provided, and the effect of the CHO direction was that a psychologist could only attend the office if vaccinated. The Board noted it must decide whether the respondent’s direction was a reasonable lawful order, whether the appellant committed a breach of discipline by disobeying or disregarding it, and whether the Board should adjust the dismissal decision.

The Board found the respondent’s direction was a reasonable lawful order, taking into account the appellant’s employment contract, position, JDF, the nature of the respondent’s ‘business’ and the effect of the CHO Directions. The Board found the conditions in the ‘conditional acceptance’ were wholly unreasonable in the circumstances.  The Board found the appellant disobeyed or disregarded a lawful order and committed a breach of discipline as she was aware her employment was at risk and by not providing evidence of vaccination or an exemption, she did not comply with the respondent’s direction. 

The Board noted the respondent’s direction could not and did not on the facts infringe bodily integrity. The Board found it should not adjust the decision to dismiss, as an order reinstating the appellant to work entirely remotely and perform no face-to-face services was outside the scope of the Board’s power and was not a matter referred to it under s 80I(l)(b) of the Industrial Relations Act 1979 (WA) (‘IR Act’). The Board noted to make such an order would amount to a jurisdictional error, and not be in accordance with equity, good conscience, and the substantial merits of the case under s 26(1)(a) of the IR Act, given that the applicant could not attend her workplace and perform her duties.

The Board dismissed the application.

The decision can be read here.

Commission dismisses unfair dismissal claim after applicant failed to appear

The Commission has dismissed a Ranger’s unfair dismissal application for want of prosecution after the applicant failed to attend a conference and various hearings.

Background

The applicant was employed by the respondent as a Ranger. After the applicant made an unfair dismissal application, she failed to attend a conciliation conference, a directions hearing, a second show cause hearing, and failed to respond several times throughout the process.

At the first show cause hearing, the respondent contended the applicant had not taken any steps to progress her claim since 27 October 2021 and had failed to prosecute it with due diligence. The applicant submitted that they had been advised by a lawyer not to respond to the respondent’s communications, was confused by recent communications, was unsure what do and would seek legal advice to navigate the process. The Commission at that stage declined to dismiss the application.

Contentions

The applicant claimed she had been unfairly dismissed because she had not been afforded due process and sought compensation. The respondent contended employment was terminated due to conduct and performance concerns and because the applicant failed to appropriately advise of her non-attendance. The respondent contended it had conducted its deliberations and engagement in a fair manner.

At the second show cause hearing, the respondent contended the application should be dismissed as the applicant had failed to comply with directions. The respondent contended that the non-compliance was aggravated as the Commissioner had indicated that the applicant was being allowed to pursue her claim by the slimmest of margins following repeated failures to prosecute it over an extended period, and that parties would need to seek any necessary extensions in advance of deadlines expiring. 

The applicant did not attend the second show cause hearing.

Findings

The Commission found that the applicant had been duly served with notice of the proceedings and the Commission could proceed in her absence. The Commission found that the applicant had not contacted the Commission since advising that she wished to progress the matter and had not responded to the Commissioner’s Associate or attended the second show cause hearing.

The Commission noted the relatively long delay without explanation, no evidence of hardship to the applicant if the application was dismissed, and there being nothing to suggest the respondent’s conduct in any way contributed to the applicant’s failure to prosecute application. The Commission noted the onus rests with the party initiating proceedings to prosecute them diligently and to progress their application. The Commission found the applicant had not met the onus and had not pursued the matter appropriately.

The Commission found that the applicant had not prosecuted her application at the Commission and dismissed the application.

The decision can be read here.

Industrial Magistrate dismisses claim, finding employee was classified and paid correctly

The Industrial Magistrate has dismissed a worker’s claim for underpayment under an award, on the basis that the claimant was classified and paid correctly.

Background

The claimant was casually employed by the respondent under the Serco CPSU Acacia Prison General Enterprise Agreement 2017 (Cth) (Agreement).

Contentions

It was common ground that the claimant was employed on a casual basis.

The claimant accepted that if the Corrections and Detention (Private Sector) Award 2010 (Cth) (Award) applied, he was paid above the award rate and his claim could not succeed, but contended:

  • The Agreement applied, under it he was a ‘Trainee Custodial Officer (Induction)’ (TCO), and his role involved custodial functions meaning the role within ‘Custodial Officer’;
  • His rate of pay was therefore governed by Schedule 2 of the Agreement, being the only schedule specifically mentioning ‘casual’ employment relating to Custodial Officers;
  • Schedule 2 of the Agreement provides one casual Custodial Officer rate pay: $39.60 per hour;
  • He should therefore have been paid at the rate of $39.60 per hour;
  • The respondent was liable for the difference between the rate paid and the rate claimed, under s 50 of the Fair Work Act 2009 (Cth) (FWA), as it contravened the Agreement.

The respondent argued there was no Agreement contravention and contended the Award applied; that casual TCO’s do not exist as Schedule 2 refers to casual Custodial Officers only; and that the Agreement definition ‘Employee performing custodial functions who is working towards completing or has successfully completed a Certificate III in Correctional Practice’ (Cert III) applied.  The respondent contended the claimant was not entitled to the rate claimed, as a trainee not performing ‘custodial functions’.

Findings

The Industrial Magistrate found the court was required to consider the applicable industrial instrument and appropriate job classification. The Industrial Magistrate considered the written offer of employment, found the Award covered the employment, but noted the respondent intended the Agreement to apply.

The Industrial Magistrate noted that if the Agreement covered and applied to the employment then the Award did not apply. The Industrial Magistrate found the Agreement applied as FWA ss 52(1)(a) and 52(1)(c) were fulfilled as the Agreement was in operation during the period of employment.  No other FWA provision provided or had the effect that the Agreement did not apply the parties.

The Industrial Magistrate considered the details of the Agreement, the work done at different times, training and the work of a Custodial Officer role. The Industrial Magistrate found the Agreement covered the claimant, his correct job classification was as a TCO, and that his employment as a casual did not change this.

The Industrial Magistrate found the claimant satisfied two of three characteristics of being a Custodial Officer; he was an employee, and he was working towards completing a Cert III.  But at no time during the employment did the claimant perform custodial functions, as taken from those of a Correctional Officer under the Award. The Industrial Magistrate found the claimant was not a Custodial Officer – casual or otherwise, and was paid the correct rate and dismissed the claim.

The decision can be read here.

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