Archive: Sep 13, 2021, 12:00 AM

Application to tender new evidence dismissed

The Commission has dismissed an application to tender new evidence in an appeal against the decision of the Commissioner of Police to remove a police officer under the Police Act 1892 (WA) . The Commission, in the same hearing, granted an amendment to the grounds of appeal.


The appellant is a former member of the Western Australian Police Force. At the time of the events leading to his removal, the appellant was a Senior Constable based at the Geraldton Police Station.

Loss of confidence proceedings commenced in October 2020. The appellant was accused of making an arrest without lawful authority; using excessive force in an arrest; being negligently or wilfully dishonest; and failing to perform his duties in a proper manner by failing to address inaccurate and misleading in formation in a witness statement.

The appellant was removed from the Police Force on 29 December 2020. The appellant denied the allegations.

The appellant made two interlocutory applications in connection with the appeal. Firstly, to tender new evidence under s 33 R of the Police Act, and secondly, to amend the grounds of the appeal. The applications were heard together.


The appellant sought to have various categories of evidence tendered, including audio recordings of all managerial interviews; historical penalties for excessive force; newspaper and media reports outlining a shooting in the region; occupational health and safety reports and dispatch figures.

The appellant argued, among other things, that this evidence displayed bias in the investigations conducted and the decision to remove him from the Police Force was affected by it .  It was also argued that the appellant’s removal was disproportionate to his conduct, compared to other cases.      It was also contended that the force used in the arrest was not excessive and was necessary to avoid injury to himself and the other police officer on duty with him at the time of the incident.   

The appellant also submitted that there had been no appreciable decline in dispatch requests from Geraldton Police Station. The appellant argued that these figures were indicative of public confidence in the Police at Geraldton, and as such, there was no loss of confidence.


The Commission identified key provisions under the Police Act that are required to be fulfilled when determining if new evidence may be tendered where  the Commissioner of Police does not consent.  

The Commission outlined that the qualification for the WAIRC to grant  leave to tender new evidence is satisfaction of s 33R(3)(b), and that  the Commission must be  satisfied that

  • the appellant is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information;
  • the new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or
  • it is in the interests of justice to do so.

The Commission went on to outline that the tender of new evidence is also constrained by s 33R(4), in that the Commission must consider the appellant’s prior awareness of the substance of the new evidence. Further, under s 33R(11), the new evidence must not have been considered by the Police Commissioner in making the decision to take removal action.

 The Commission also dealt with  the concept of public interest under s 33Q(4) of the Police Act. The Commission clarified that the public interest was not based on the individual conduct of the appellant and whether this had resulted in fewer calls to the Geraldton Police Station. Rather, it is concerned with whether the actions of the appellant were compatible with the need to maintain public confidence in the Police Force generally, and whether it was open to the Commissioner to lose his confidence in the appellant in the circumstances.

 The Commission determined that the documents did not satisfy the requirements of s 33R of the Police Act,  and dismissed the application to tender new evidence. The Commission, however, held that the application to amend the grounds of appeal, not relating to the tender of new evidence, would be granted.

The decision can be read here

Orders made for payment to employee who was unfairly dismissed

The Commission has ordered an employer pay $9,438.89 in compensation for loss and injury to an employee who was unfairly dismissed. The decision was heard in the absence of the respondent, after the Commission declined to grant the respondent a third adjournment.


The applicant was employed at Mageela Cottage & Boarding Kennel (Kennel), commencing on 27 June 2018.  On 1 February 2020, the applicant identified a shortfall between her gross and net pay. The applicant sent a text message to the respondent, who informed her that this was deducted for bathroom, food, drink, and phone usage breaks.

On 3 February 2020, the respondent told the applicant that he did not like her attitude, and that she was difficult to be around. The respondent informed the applicant that she was dismissed. The respondent immediately locked the door as the applicant exited the room.  On 28 February 2020, the applicant made an application to the Commission alleging she had been dismissed unfairly.  Conciliation did not result in an agreement and the matter was listed for hearing. The Commission made directions for parties to file and serve an outline of submissions seven days before the hearing.

The respondent sought to have the hearing of the matter adjourned on three occasions. The respondent did not provide any evidence to support his reasons for seeking an adjournment but referred to issues of staffing at the Kennel. An adjournment was granted in the first two requests.  Two days prior to the third hearing date, the respondent indicated that he was unable to attend the hearing and would not be available until January. The respondent had not yet filed its outline of submissions. The respondent argued that a progression of the matter without his submissions or presence would be a miscarriage of justice.

The Commission determined that the respondent had not complied with previous directions concerning the submissions or the scheduling of hearings. The Commission considered that any further extension of time would not result in the submissions being filed. The Commission determined that the prejudice to the applicant in delaying her hearing any further outweighed any prejudice to the respondent and proceeded in the absence of the respondent. 


The applicant submitted that the respondent failed to consult her about any performance issues prior to her dismissal.  The applicant provided evidence that she had raised concerns for the wellbeing of a dog at the Kennel and argued that the respondent had not addressed any performance issues in this instance, or at any other time.

The applicant contended that following the dismissal, the respondent threatened to tarnish the applicant’s reputation with future employers. The applicant further contended that the respondent accused her of reporting the Kennel to the RSPCA. When the applicant denied these allegations, the respondent threatened to euthanize 60 dogs if the applicant did not disclose who made the report.

The respondent did not file submissions or attend the hearing. In a response filed with the Commission prior to conciliation, the respondent stated that the applicant was terminated for neglecting the welfare of the animals; falsely claiming hours worked; damaging the profitability of the business; refusing to communicate with the respondent; disruptive and upsetting behaviour towards fellow employees and dishonesty. The respondent provided no evidence to support these allegations.

The respondent admitted that he dismissed the applicant immediately after hearing from another employee that the applicant had allegedly mistreated one of the dogs and had allegedly failed to follow instructions.  The applicant contended that the alleged reasons provided by the respondent were baseless, and an attempt to justify his actions.


The Commission accepted the applicant’s submissions and evidence provided at the hearing.

The Commission concluded that, even if the respondent did have concerns about the applicant’s performance, the respondent did not seek an explanation or response from the applicant. Rather, the respondent decided to dismiss the applicant as soon as the applicant presented for her next shift.  The Commission determined that the applicant took reasonable steps to mitigate her loss, by retraining and securing alternative employment five weeks after the dismissal.

The Commission was also satisfied that the applicant had suffered distress beyond that of most dismissals due to the behaviour of the respondent, in locking the applicant out immediately after dismissal; threatening to euthanize 60 dogs; and threatening to tarnish the reputation of the applicant. 

The Commission awarded $6,438.89 to the applicant in compensation for lost wages and notice, and $3000 for the injury suffered.   The decision can be read here.

Unfair dismissal application dismissed for want of jurisdiction

The Commission has dismissed an application for unfair dismissal on the basis that the employer was a national system employer.


On 23 September 2020, the applicant filed an unfair dismissal application with the Commission.

On 8 October 2020, the respondent filed a response and raised a jurisdictional objection, on the basis that it was a trading corporation and thus, a national system employer.  The respondent later provided witness statements and written submissions relating to the jurisdictional objection.

The applicant was invited to provide documentation in response to these objections, however nothing was provided.


The Commission found that the respondent had conclusively demonstrated that the employing entity, Krazy Price Group Pty Ltd, was a trading corporation.

The Commission considered that Krazy Price Group Pty Ltd ran small retail businesses selling homewares, party supplies, art and craft wares, pet supplies, toys, giftware, and similar items direct to the public.

The Commission found that the employer engaged in trade to earn revenue and was a quintessential trading organisation.

The Commission dismissed the application for want of jurisdiction.

The decision can be read here.