Details 

Created: 26 February 2020

The Industrial Magistrate’s Court has, in part, granted an application for summary judgement dismissing a claim for unpaid annual leave by a Master on an even time roster of 28 days on and 28 days off (Even Time Roster) where the parties were covered by the Go Inshore Port Hedland Agreement 2009 (Cth) (2009 Agreement), Go Inshore Port Hedland Agreement 2013 (Cth) (2013 Agreement), and Go Inshore Port Hedland Enterprise Agreement 2016 (Cth) (2016 Agreement).

The claimant argued that while the relevant clauses in the Agreements provided that annual leave will be taken during the rostered off-duty periods, this does not mean he will be deemed to have taken, and should be paid, annual leave during those periods.

The respondent contended that the Agreements deemed the claimant to have taken his annual leave during the off periods of the Even Time Roster. That is, annual leave accrued and was taken in the same ratio and therefore no claim for unpaid annual leave under the Agreements can be made. 

Industrial Magistrate Scaddan found that, as there were three Agreements covering the span of the claimant’s employment, it was necessary to look at the terms of each Agreement separately.

Scaddan IM found that the proper construction of the 2009 and 2013 Agreements were that they operated not only to require paid annual leave to be taken during the off-duty period, but deemed any annual leave to be included in the off-duty periods of the Even Time Roster such that the respondent had no ongoing annual leave liability. Scaddan IM found that the effect of this meant no outstanding unpaid annual leave were owed to the claimant during the operation of the 2009 and 2013 Agreements, where accrued annual leave was taken and paid on the same ratio.

However, Scaddan IM found that the 2016 Agreement raised the possibility of ongoing accrual of annual leave. Scaddan IM found that it was arguable that annual leave was not incorporated into the off-duty period, and ordered the claimant to lodge an amended Further and Better Particulars of Case Outline for his period of employment covered under the 2016 Agreement.

The Application was granted in part.

The decision can be read here.

Details 

Created: 26 February 2020

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the Department of Transport to terminate the employment of a customer service officer for substandard performance pursuant to the Public Sector Management Act 1994 (WA).

The appellant contended that at no time was her performance substandard and that the Performance Improvement Action Plan (PIP) implemented by the respondent raised major procedural and substantive concerns. The appellant also argued that procedural fairness and natural justice had been denied, the investigation process was unduly secretive and that the penalty of dismissal was unfair in consideration of the appellant’s employment record.

The appellant sought a declaration that her performance met the expected standards, the respondent’s adverse findings are set aside, and an order that the respondent reinstate the appellant with continuity of service and reimbursement of loss.

The respondent contended that the appellant had clear opportunities to respond during the investigation, had access to the support required to overcome barriers to meeting expectations, had reasonable opportunity to demonstrate improvement and that the process was conducted in a fair and unbiased manner.

The Board found that given the entirety of the informal and formal processes put in place by the respondent, including a Return to Work Program and the PIP, it could not conclude that the appellant did not have a reasonable opportunity to demonstrate an improvement in her level of performance. The Board held that it was the sheer type and number of basic errors, committed consistently by the appellant over a sustained period, that was of legitimate concern to the respondent.

The Board found that the appellant’s performance had not attained or sustained a reasonably expected level. The Board dismissed the appeal.

The decision can be read here.