Details 

Created: 14 November 2019

The Commission has dismissed an application made by The Civil Service Association of Western Australia Incorporated on behalf of its member. The applicant's member alleged that she was still a permanent public service officer. The applicant’s member was informed her permanent position was to be abolished in 2014, following which she was then seconded to the respondent who subsequently entered into a fixed-term contract of employment with her.

Commissioner Matthews considered that the applicant's member's claim must fail because clause 1 of the contract stated that her appointment with the respondent was done in accordance with section 64(1)(b) of the Public Sector Management Act 1994 (PSM Act). Under s 64(1) of the PSM Act, appointments may be made on either a permanent or fixed term basis and consequently a person cannot be appointed for both an indefinite period and a finite term. The applicant argued that she is a permanent public service officer because all of the parties to the contract intended for her to maintain that status, however, this argument could not be established because as a matter of law and without more Matthews C could not simply ignore the legal effect of clause 1.

Turning to the question of fairness, the applicant claimed that it would not be fair for its member to suffer an effect of the contract which no one involved in its formation intended. On the balance of probabilities, Matthews C found that it is not now unfair for the respondent to assert that the applicant's member was employed by it on the terms set out in the contract of employment. This is because the parties’ intentions were, for the most part, not relevant to the question of fairness and any of the intentions that were relevant were not enough to make the respondent now relying upon the contract unfair.

The decision can be read here.

Details 

Created: 14 November 2019

The Commission has partially granted a claim made by a restaurant manager who was summarily dismissed from his employment with The Local Shack Mandurah.

The applicant had been dismissed following an incident that occurred on 27 January 2019 where a shortage of rostered staff caused wait times at the restaurant to be blown out, and, because the applicant had not completed a required set of computer manuals or modules.

Commissioner Matthews considered that a summary dismissal by an employer is justified in instances where an employee's behaviour is so serious that dismissal without notice is appropriate. The Commissioner considered whether the applicant's summary dismissal was an appropriate response in all of the circumstances and determined that it was not. However, Matthews C concluded that the evidence suggested that the applicant could not have survived the six-month probation period.

Matthews C then found that a clause in the contract, relating to notice periods, would not apply because the applicant had not completed his probation period and resolved that the applicant was entitled to reasonable notice of one week.

The decision can be read here.