The Industrial Magistrate, in a supplementary Reasons for Decision, has ordered that a maintenance company pay a pecuniary penalty of $59,850 to an ex-employee for contravening civil remedy provisions of the Fair Work Act 2009 (Cth) (FWA) concerning a range of leave and record-keeping provisions.

In the first reasons, Industrial Magistrate Flynn upheld a claim for payments made under the FWA for accrued annual leave, public holidays, overtime and leave loading. A summary of those reasons can be read here.

The supplementary reasons are in relation to an application by the ex-employee for a pecuniary penalty pursuant to the FWA.

The ex-employee submitted that the appropriate total of penalties to be imposed should be $105,000. He claimed that the company engaged him as a sham contractor, applied illegitimate pressure to sign a waiver document and that its conduct could be described as a gross failure to comply with the FWA. The ex-employee also called for a substantial personal deterrent penalty as the company expressed no contrition and submitted that, as an unskilled older worker, is unlikely to work again.

The company submitted that the appropriate penalty should be $23,121. It submitted that it made an honest mistake in characterising the claimant’s arrangement and legal relationship, findings of ‘illegitimate pressure’ and ‘economic duress’ was isolated and occurred once and that it had taken adequate corrective action. The company rejected the ex-employee’s claims that it deliberately set out to evade the law or misrepresent the arrangement to the ex-employee.

Industrial Magistrate Scaddan found that her reading of the first reasons did not reveal that Flynn IM found, or inferred, that the company misrepresented the arrangement between the parties, engaged in deceitful conduct, or gave rise to the consideration of a sham arrangement. Her Honour also determined that the company did not attempt to ‘hide’ any contraventions and had taken further steps to ensure future compliance with the FWA. However, her Honour considered the fact that the ex-employee is an unskilled worker and suffered a loss (being the actual entitlements) that was reasonably significant.

Scaddan IM found that the appropriate penalty to be paid to the ex-employee was $59,850.

An order has been made accordingly.

The decision can be read here.

The Western Australian Industrial Appeal Court (IAC) has dismissed an appeal against the decision of the Full Bench of the Western Australian Industrial Relations Commission on the basis that the Full Bench made no error in the construction or interpretation of the Teacher Registration Act 2012 (WA) or the Public Sector Management Act 1984 (WA) (PSM Act).

The appellant, a teacher, was dismissed from his employment by the Director General of the Department of Education, on the ground that his performance as a teacher was substandard.

At first instance

The appellant applied to the Commission claiming that he had been harshly, oppressively or unfairly dismissed. He claimed that the process followed to determine that he was performing at a substandard level was flawed and that, in any event, he was not a substandard teacher.

Commissioner Matthews made several findings related to the appellant’s ineffective methods of teaching, poor communication with students, unwillingness to closely monitor the class and inflexibility in tackling problems.

Matthews C referred to the appellant’s complaint raised in his closing submissions that he was incorrectly assessed against the ‘proficient’ level rather than the lower ‘graduate’ level in the standards administered by the Australian Institute for Teaching and School Leadership (AITSL).

Matthews C found the applicant’s performance to be substandard regardless of whether he had considered him to be a ‘proficient’ or ‘graduate’ teacher in relation to the AITSL standards.

The application was dismissed.

Appeal to the Full Bench

On appeal, the Full Bench unanimously found that Matthews C identified the correct statutory requirements under s 79(2) PSM Act and had, in the application of the PSM Act, considered the appellant’s performance in terms of both standards.

Chief Commissioner Scott noted that the appellant had asserted that he was a proficient teacher and presented himself as being an experienced and competent teacher. She noted that during the process of his performance being assessed, the appellant did not complain that he was being assessed against the wrong standard. She found that there was sufficient evidence for Matthews C to conclude that the appellant’s performance was substandard, whether he was assessed at the ‘proficient’ or ‘graduate’ level.

The appeal was dismissed.

Appeal to the IAC

The appellant contended that the Full Bench erred in the construction or interpretation of s 79(2) PSM Act read with the Teacher Registration Act by finding that he could be assessed at the ‘proficient’ level, a career level he had not reached. The appellant argued that the respondent must assess him at the career level he attained for the purposes of registration under the Teacher Registration Act, that is, the lower ‘graduate’ level.

The IAC found that it was not necessary for the Full Bench to decide whether the s 79(2) PSM Act required the respondent to assess the appellant’s performance at the ‘graduate’ level. The IAC determined that this was because the Full Bench did not rule that the appellant could be assessed at the ‘proficient’ level, but instead that it was open to Matthews C to make findings based on the evidence and to conclude that the appellant’s performance was substandard.

The IAC concluded that the relevant finding of the Full Bench did not disclose an error in the construction or interpretation of the Teacher Registration Act or the PSM Act.

The appeal was dismissed.

The decision can be read here.