Archive: Sep 28, 2021, 12:00 AM

National system employee not entitled to seek relief for unfair dismissal in state system

The Commission has held that a national system employee who did not meet the minimum period of employment to make a claim under the Fair Work Act 2009 (Cth) (FW Act) cannot seek relief under the Industrial Relations Act 1979 (WA) (IR Act).

Background

The applicant was employed by the respondent from 9 December 2020 until 28 January 2021. The applicant contends that she was forced to resign because of the behaviour of two colleagues.

The applicant was employed for a period less than the minimum six-month period required under the FW Act  to be able to make an application to the Fair Work Commission, and sought relief in the Commission .  

Contentions

The applicant contended that the IR Act applied to her employment because the FW Act precluded her from pursuing her claim in that jurisdiction.  

The respondent argued that the Commission did not have the necessary jurisdiction as it is a national system employer. The respondent submitted an affidavit attaching an Annual Financial Report for the year end 30 September 2020, a summary of the structure of the company and an extract of the company details held by the Australian Securities and Investments Commission.

Findings

The Commission noted that section 26 of the FW Act operates to apply to all national system employees and employers and excludes the provisions of the IR Act.

The Commission determined that, as the respondent was a trading corporation and national system employer, the applicant could not seek relief for an unfair dismissal under the IR Act. The application was dismissed for want of jurisdiction.

The decision can be read here.

Commission dismisses claim for unfair dismissal where the parties had reached an agreement to settle the claim

The Commission has dismissed a claim for unfair dismissal, on the grounds that the Commission was unable to hear a matter where the parties had reached an agreement to settle the claim. 

Background 

The applicant was employed as a full-time maintenance person from 20 May 2019. The respondent terminated the applicant’s employment on 28 February 2020 for his alleged inappropriate behaviour toward his supervisor. The applicant filed a claim for unfair dismissal on 15 May 2020.  

A hearing was scheduled to determine whether to hear the applicant’s application out of time. The respondent requested a further directions hearing on the basis the applicant had not complied with previous directions from the Commission to file and serve an outline of evidence and witnesses. 

The respondent later informed the Commission that it no longer sought a further directions hearing as the parties had reached an agreement to settle the matter. The applicant contacted the Commission to advise that he had agreed to settle with the respondent by email and had received the Settlement Agreement document but would not sign it. The applicant stated that he wished to proceed to hearing. 

Findings 

The Commission considered whether the application should be dismissed on the grounds that the parties had reached an agreement to settle the claim. 

The Commission outlined that, pursuant to section 27(1)(a)(ii) of the Industrial Relations Act 1979 (WA), it is not in the public interest to proceed to hear a matter that is already settled by agreement. The Commission also outlined that where parties concluded the terms of the agreement, then a claim that a person has been unfairly dismissed is extinguished. 

The Commission noted that the applicant had emailed the respondent indicating his acceptance of an offer of $3000 in settlement of his claim, and the respondent had acknowledged receipt of this email. The applicant had also provided details of his financial institution account. 

The Commission considered that the Settlement Deed recorded the terms of the agreement made including payment, releases, confidentiality and non-disparagement. The Commission determined that while the settlement sum was not payable until the execution of the deed by the parties, a refusal to sign the Deed did not mean that the agreement between the parties was not concluded. 

The Commission found that further proceedings were not necessary or desirable in the public interest pursuant to section 27(1)(a)(ii) of the IR Act, and that the agreement made had overtaken the applicant’s unfair dismissal application. The Commission ordered that the application be dismissed. 

The decision can be read here.

OSH Tribunal grants applicant leave to discontinue

The Occupational Safety and Health Tribunal (Tribunal) has granted leave to an applicant to discontinue her referral to the Tribunal.

The applicant reported a purported breach of the Occupational Safety and Health Act 1984 (WA) (OSH Act) at the school in which she worked. The applicant indicated that reasonable requests to minimise injury were denied, and that she was not able to attend the workplace. The applicant referred the matter to the Tribunal, seeking orders for the payment of salary and entitlements; an external investigation or audit of the workplace; and reinstatement in her employment at an alternative workplace within the Department of Education.

The respondent contended that the applicant left the school without authorisation as required under the OSH Act and disputed that there were not reasonable grounds to believe that remaining at the school premises would expose the applicant to risk of imminent and serious injury, or imminent and serious harm to her health.

The applicant later made application to amend her application, including to extend the remedies sought to aggravated damages; damages; and compensation. The matter was listed for two directions hearings, both of which the applicant did not attend. The respondent sought to dismiss the claim for want of prosecution

The matter was listed for a hearing to show cause why the matter should not be dismissed. The applicant requested the matter be heard on the papers. On the evening prior to the hearing, the applicant made application to withdraw and/or amend her application. The applicant raised additional objections to the representation of the respondent by a legal practitioner.

Findings

Commissioner Walkington noted that the provision of s 31(1) of the Industrial Relations Act 1979 (WA) (IR Act), read together with s 51I of the OSH Act, gave the respondent the right to be represented by a legal practitioner, and that the applicant’s consent was not required.

Walkington C found that under the OSH Act, the Tribunal did not have the necessary authority to consider damages, aggravated damages nor compensation, and therefore the application to amend the referral for these remedies could not succeed. She further found that it was not appropriate for the matter to be heard on the papers, given that the respondent opposed this request, and the nature of the matter may require oral evidence and the capacity to cross examine witnesses.

Walkington C found that it was within the Tribunal’s power to dismiss the matter under s 27(1)(a) of the IR Act or to grant leave to discontinue the application. Walkington C inferred from the applicant’s submissions that, should the application to amend the remedies sought and the request for the matter to be heard on the papers be refused, the applicant wished to discontinue the referral.

The Tribunal granted the applicant leave to discontinue the matter.

The decision can be read here.