Details 

Created: 17 April 2020

The Commission has issued an order that the applicant’s legal representative in another jurisdiction produce documents that are not subject to legal professional privilege in compliance with a summons.

At a preliminary hearing in relation to jurisdiction, the applicant claimed that she was “forced into resigning” in such a way as to make the ending of her employment a ‘constructive dismissal’. The respondent argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim. The hearing did not resolve the matter of whether the applicant had been ‘dismissed’.

After the preliminary hearing, the respondent sought, by way of summons directed to the applicant’s legal representative for the worker’s compensation matter, four sets of documents. This included any file notes from the conciliation conference that led to the settlement of the applicant’s workers’ compensation claim, as well as documents containing any advice given by the applicant’s legal representative to the applicant.

The respondent argued that the applicant, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege. The respondent claimed that production of the documents would show that the circumstances were not as the applicant alleges. The respondent argued it would be unfair for the applicant to assert privilege where that is the case. 

The recipient of the summons resisted production of the documents on the basis that each and all are the subject of legal professional privilege.

The Commission found that legal professional privilege had not been relevantly waived by the applicant stating she did not receive “advice per se” whether or not to accept the settlement offer at the workers’ compensation conciliation conference. The Commission determined that the applicant’s state of mind insofar as it was created or influenced by the respondent was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors. The Commission found that while the applicant having access to competent legal counsel will be relevant, the advice that was given will not be particularly relevant.

The Commission ordered that the recipient of the summons provide any notes taken by the applicant’s representatives at the workers’ compensation conciliation conference, where those notes are of events at which representatives of the respondent were present, to the Western Australian Industrial Relations Commission.

The decision can be read here.

Details 

Created: 17 April 2020

The Commission has issued an order that the applicant’s legal representative in another jurisdiction produce documents that are not subject to legal professional privilege in compliance with a summons.

At a preliminary hearing in relation to jurisdiction, the applicant claimed that she was “forced into resigning” in such a way as to make the ending of her employment a ‘constructive dismissal’. The respondent argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim. The hearing did not resolve the matter of whether the applicant had been ‘dismissed’.

After the preliminary hearing, the respondent sought, by way of summons directed to the applicant’s legal representative for the worker’s compensation matter, four sets of documents. This included any file notes from the conciliation conference that led to the settlement of the applicant’s workers’ compensation claim, as well as documents containing any advice given by the applicant’s legal representative to the applicant.

The respondent argued that the applicant, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege. The respondent claimed that production of the documents would show that the circumstances were not as the applicant alleges. The respondent argued it would be unfair for the applicant to assert privilege where that is the case. 

The recipient of the summons resisted production of the documents on the basis that each and all are the subject of legal professional privilege.

The Commission found that legal professional privilege had not been relevantly waived by the applicant stating she did not receive “advice per se” whether or not to accept the settlement offer at the workers’ compensation conciliation conference. The Commission determined that the applicant’s state of mind insofar as it was created or influenced by the respondent was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors. The Commission found that while the applicant having access to competent legal counsel will be relevant, the advice that was given will not be particularly relevant.

The Commission ordered that the recipient of the summons provide any notes taken by the applicant’s representatives at the workers’ compensation conciliation conference, where those notes are of events at which representatives of the respondent were present, to the Western Australian Industrial Relations Commission.

The decision can be read here.

Details  Created: 17 April 2020

The Public Service Arbitrator has dismissed an application for the conversion of a fixed term contract employee to permanency on the basis that the employee did not meet the requirements of clause 2.1(a) of Commissioner’s Instruction No. 23 (CI 23).

Clause 2.1(a) of CI 23 requires that ‘the reason for engagement on a fixed term contract is not a circumstance mentioned in the relevant industrial instruments’.

The Arbitrator noted that a circumstance mentioned in the Public Service and Government Officers General Agreement 2014 and the Public Service and Government Officers General Agreement 2017, which were in effect at the time of the employee’s employment, was for employment on a fixed-term contract to cover a “one-off period of relief”. His operative contract on the 10 August 2018 explicitly stated his fixed term position was a “one-off period of relief” to cover the position of another worker during the period between July and December 2018.

As the contract indicated a reason for his engagement on the contract mentioned in the agreements, he had not met cl 2.1(a) of CI 23 and therefore the Arbitrator found the employee was ineligible for conversion to permanency. 

Interpretation of CI 23

The Arbitrator observed that CI 23 had a commencement date of 10 August 2018, and by its scope and application, was limited to persons employed at the time of its commencement. He found it was not intended to apply to future employees.

The Arbitrator found that there was a clear indication that the terms in CI 23 were not intended to have ongoing effect. The Arbitrator found the respondent’s submission correct in that a review of a fixed term contract employee was intended to be a one-off process, and reiterated that the relevant contract to be considered was the contract in place on 10 August 2018, which was the date that the CI 23 was commenced.

The Arbitrator rejected the applicant’s submissions to the effect that the criteria for conversion of a fixed term contract employee is limited to only those matters referred to in cl 2.1. He found that the following requirements, in addition to cl 2.1, must be met:

1. The employee must be in employment on a fixed term contract at the time of the commencement of CI 23 i.e as at 10 August 2018;
2. In the case of an employee who was not had a proper assessment of merit one is to be taken under cl 10;
3. Relevant advertising and recruitment obligations must be satisfied;
4. Funding for a permanent appointment must be confirmed as required by cl 12; and
5. If a suitable permanent registrable or registered employee under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 is able to undertake a role, then no offer of conversion to permanency can be made.

The application was dismissed.

The decision can be read here.