Details 

 Created: 25 June 2020

The Commission will deliver its 2020 State Wage decision in the Commission’s Registry at 10:00 AM on Friday, 26 June 2020.

More information about the 2020 State Wage Case can be found here.

The Full Bench has unanimously dismissed an appeal against the decision of the Commission on the basis that no appealable error had been made out to quash the decision at first instance in finding that the respondent, a prison officer, was unfairly dismissed.

Background

In 2018, the employment of a Senior Prison Offer (Officer) was terminated by the Director General of the Department of Justice following allegations of excessive and unreasonable use of force.  

At first instance

There were two incidents in which the Officer used Oleo-resin Capsicum spray (OC spray), and each incident related to a different prisoner.

The Commission found, in relation to the first incident where the Officer sprayed the prisoner twice, that the first of the two sprays did not constitute excessive force. However, the Commission found that the second spray of OC spray was not justified.  

The Commission found that in relation to the second incident, the deployment of OC spray was justified and did not constitute unreasonable force.

Senior Commissioner Kenner considered the two incidents jointly and examined evidence relating to practice in prisons, policies and training materials regarding the use of force, and the Officer’s unblemished record of service. He determined that reliance on one incident alone, in relation to the second deployment of OC spray during the first incident, could not warrant the dismissal of the Officer.

Kenner SC ordered that the Officer be reinstated in his position without loss.

The decision at first instance can be read here.

Appeal to Full Bench

Ground 1

The Minister for Corrective Services appealed against the decision. The Minister argued that Kenner SC erred in the way he applied the test for determining whether the Officer’s use of force fell outside the provisions of s 14(1)(d) of the Prisons Act.

Chief Commissioner Scott (with whom Commissioner Walkington agreed) determined, on application of legal principle, that the law recognises that the decision-maker at first instance, in a discretionary decision, is entitled to make a conclusion which falls within the general ambit available to him. It may be that there is more than one acceptable outcome as to whether the use of force was reasonable. In this case, it depended on all the circumstances including the Officer’s perceptions at the time. Scott CC found that the Full Bench, in considering the appeal, is required to allow the range of possible outcomes in the decision of the Commission at first instance as to the reasonableness of the use of force.

Scott CC found that Kenner SC was entitled to conclude that the use of force was reasonable. Scott CC found that Kenner SC had taken account of and assessed the particular use of force by reference to the statutory criteria, the benefit of hindsight, the prisoners’ conduct, the Officer’s state of mind and the issue of proportionality.

However, Commissioner Matthews dissented and found that the conduct of the Officer in the first incident, where he sprayed the prisoner twice, was not reasonable.  

Ground 2

The Minister did not pursue Ground 2 as it said that the issues were dealt with in other grounds.

Ground 3

The appellant also asserted that Kenner SC erred in fact by finding that the Director General placed the Officer in a position of higher authority and trust after the incidents and that this was incongruous with the Director General’s view that there had been such a breakdown in the relationship to affect the practicability of reinstatement.

Scott CC found that Kenner SC erred in forming the view that the employer took some particular action to place the Officer in a higher position. Scott CC found that the Officer’s placement in the higher level role was by operation of law, that is, it is prescribed in the applicable industrial agreement, by virtue of there being no officer more senior on the roster and present at the time.

However, Scott CC found that while this ground of appeal was upheld, it was supplementary or even incidental to the issue of trust and confidence and did not affect the outcome.

Ground 4

The appellant argued in ground 4 that Kenner SC erred in fact and law in exercising discretion without proper regard to the rationale for the dismissal.

The appellant contended that the Officer was not dismissed as a penalty for established breaches of discipline, but because the appellant had lost trust and confidence in the Officer which arose from the breaches of discipline.

However, Scott CC found that this contention was inconsistent with the way the allegations and the ultimate decision were communicated by the Director General. Rather, the allegations particularised in the correspondence to the Officer were in relation to his conduct or actions, and not due to a lack of trust and confidence.

Ground 4 was dismissed.

Application to add new ground of appeal

The appellant had sought leave to add a new ground of appeal.

Scott CC noted that the new ground of appeal raised a different and additional question to those which were raised in the other grounds of appeal. Scott CC noted that unfair dismissal claims are normally heard in one sitting, and as a matter of policy, it is not desirable that the staged approach be the norm.

Scott CC determined, as the Minister had purported to argue the case in full at first instance, that leave to appeal would not be granted.

The appeal was dismissed.

The decision can be read here.

Details  Created: 25 June 2020

The Industrial Magistrate Court has upheld a claim for entitlement to pay after an initial 10-hour ‘stand down time’ by a detention service officer (Officer), who worked escorting detainees from a detention centre to a country outside of Australia (International Escort).

The claimant’s time on each International Escort was divided between time spent accompanying the detainee to an airport outside of Australia, and time spent returning to the detention centre (Return Time). The Return Time included time spent by the claimant at local accommodation awaiting his return flight back to Perth (Local Accommodation Time or LAT).

The claimant’s pay for the International Escort is governed by the Serco Immigration Services Agreement 2015 (Cth) made under the Fair Work Act 2009 (Cth). More specifically, his entitlement is found in cl 19(k) of the agreement, which provides that:

‘payment does not apply to periods of up to 10 hours duration in any 24 hours as a stand down time (i.e. overnight accommodation time) but does not include travelling time, time in transit time waiting to travel or time otherwise worked on Serco duties’.

The claimant contended that the effect of the clause provides for payment to him at normal rates (without overtime) for each hour of LAT after 10 hours had elapsed.

The respondent argued that, as the clause was silent on whether the claimant had to be paid for any subsequent period of LAT, the claimant had no entitlement to pay for any period of LAT other than time spent while working at the express request of the respondent.

Industrial Magistrate Flynn considered the meaning of the clause in light of the facts, the ordinary meaning of the words, and the context, purpose and objective of the whole agreement and found that the claimant’s interpretation of the clause was correct.

Flynn IM found that after handing over a detainee during an International Escort, the claimant was entitled to be paid for the whole time spent returning to the detention centre excepting only the first 10 hours spent at local accommodation waiting for the first available transport.

Flynn IM determined that the claimant was entitled to have that time applied in calculations of his entitlement to overtime under the agreement.

The claim was upheld.

The decision can be read here.

Details  Created: 25 June 2020

The Industrial Magistrate has dismissed a claim for additional redundancy pay by a union acting on behalf of two members who worked at Racing and Wagering Western Australia.

Background

Both members were employed by the respondent for over 23 years, until their positions were made redundant on 30 November 2018. They were entitled to a redundancy payment in accordance with cl 28 of the RWWA General Staff Agreement 2015 (Cth), made under the Fair Work Act 2009 (Cth).

Clause 28(4)(b) of the Agreement states that employees who had commenced service before 1 September 2009 (pre-September 2009 Employees), which included both the members, are entitled to redundancy pay for service up to 31 August 2012, calculated on the basis of 3 weeks per year of service with a maximum of 52 weeks’ pay (preserved calculation).

The parties were in dispute on whether cl 28 results in additional redundancy pay for service after 31 August 2012. Clause 28(4)(b) states that, for pre-September 2009 Employees, additional redundancy pay for the period after 31 August 2012 is based on cl 28(2)(a).

Clause 28(2)(a) sets out a table by which entitlement to severance pay is determined for an employee whose role is made redundant. The table sets out the number of weeks salary applicable to each year of the employee’s period of continuous service with the respondent on termination, with a maximum of 16 weeks’ pay for 9 years of service or over.

Submissions

The claimant contended that the result of the application of cl 28(2)(a) to pre-September 2009 Employees is for additional redundancy pay to be calculated for the portion of service after 31 August 2012 as if service commenced on 31 August 2012 and ended on the date of redundancy. The result is that the members are each entitled to additional redundancy pay of 11 weeks for their 6 years of service between 2012 and 2018.

The respondent argued that additional redundancy pay is calculated for only the portion of the whole period of service that occurs after 31 August 2012, where the whole period of service is 30 years for the first member, and 23 years for the second member.

The respondent contended that a consequence is that the maximum entitlement to redundancy pay is reached 9 years after the commencement of the actual date of service. This means that any further service, including service after 31 August 2012 does not, under cl 28(2)(a), attract any further redundancy pay.

On this view, Flynn IM noted that because the members reached a maximum of 9 years or over before 31 August 2012, cl 29(2)(a) did not provide for any additional redundancy pay for service after that date.

Analysis and conclusion

In his analysis, Flynn IM considered the meaning of the clause in light of the facts, the ambiguity of the clause, the ordinary meaning of the words, a similar agreement made in 2009, and the context, purpose and objective of the whole agreement. Flynn IM found that the respondent’s interpretation of the clause had the meaning that best conformed to the intention of the parties.

Flynn IM found that the members were only entitled to the preserved calculation pay of 52 weeks as a redundancy payment, and not the additional redundancy pay of 16 weeks for service after 31 August 2012.

The decision can be read here.