The Full Bench has dismissed an appeal against a decision of the Industrial Magistrates Court, finding that the employee had failed to establish that the respondent had contravened the Public Sector CSA Agreement 2019 (Agreement), and that the Industrial Magistrates Court did not have jurisdiction to enforce the voluntary severance offer.

Background

The appellant was employed by the respondent in the position of Regional Coordinator Operations. On 23 September 2020, the appellant was made an offer of voluntary severance under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (Regulations).

The appellant contended that he was provided with incorrect advice by officers of the respondent, and as such, was only given three weeks to accept the offer of voluntary severance, instead of eight weeks as prescribed by the Regulations, depriving him of five weeks’ salary.

First instance

The appellant made a claim in the Industrial Magistrate’s Court, on the grounds that the shortened period of employment contravened the offer of voluntary severance and the Regulations. The respondent applied to the court to dismiss the appeal for want of jurisdiction. Her Honour, Industrial Magistrate O’Donnell, granted the respondent’s application and dismissed the claim.

Appeal

The appellant appealed the decision of the learned Industrial Magistrate to the Full Bench under s 84 of the Industrial Relations Act 1979 (WA) (Act), on the ground that cl 51.1 the Agreement  was contravened. The appellant contended that the respondent failed to comply with the Public Sector Management Act 1994 (WA) (PSM Act), the Regulations and the Agreement, and that the court was able to enforce statutory instruments.

Findings

The Full Bench outlined that the Industrial Magistrate’s Court is established under Part III of the Act as an inferior court of record. As such, it has no inherent jurisdiction and powers, and they are as specified in the Act.

The Full Bench noted that under s 81AA of the Act, the PSM Act, and the Regulations made under it, were not a specified statutes under which the court obtains jurisdiction. The Full Bench held that while the Agreement was an instrument that may be enforced by the court under s 83(2)(b) of the Act, this would only apply where the appellant could establish that the respondent contravened or failed to comply with the Agreement. The Full Bench held that no contravention or failure to comply was established, and the appeal was dismissed.

The decision can be read here.

The Public Service Appeal Board (Appeal Board) has dismissed the appeal of a food and beverage attendant, finding that the appellant was not a public service officer or salaried staff member, and did not have standing to bring the appeal.

Background

The appellant was employed as a food service attendant at Graylands Hospital. Following disciplinary proceedings, it was proposed the disciplinary action to be taken would be to transfer the appellant to another hospital in the catering department. The appellant accepted this proposed transfer. The respondent later rescinded the proposed disciplinary action, and instead proposed action in the form of a reprimand and a transfer of the appellant to the position of a cleaner, while remaining at Graylands Hospital.

The appellant appealed to the Appeal Board under s 80I(1)(c) of the Industrial Relations Act 1979 (WA) (IR Act) and s 172 of the Health Services Act 2016 (WA) (Health Services Act), against the decision of the employer to take disciplinary action in the form of a reprimand and a transfer.

Contentions

The respondent submitted that the appellant not a public service officer for the purpose of the definition of ‘government officer,’ nor was he employed on the salaried staff of the respondent. The respondent submitted that the appellant was remunerated under the WA Health System ‑ United Workers Union (WA) ‑ Hospital Support Workers Industrial Agreement 2020 (Agreement). The respondent further asserted that the appellant’s role as a food service attendant could not be described as within the administrative or professional ranks of the public service.

The appellant contended that he had been a public servant for 41 years and relied upon his payslips which referred to a ‘salary’ to argue that he was a full‑time, salaried employee.

Findings

In determining whether the Appeal Board had jurisdiction to hear the appeal, the Appeal Board considered whether the appellant fell within s80C(1) of the IR Act, as a public service officer, or was employed on the salaried staff of a public authority

As to whether the appellant was a public service officer, the Appeal Board found that the appellant’s employment was pursuant to Part 9, s 140 of the Health Services Act. Under Part 9, s 104(3) of the Health Services Act, Part 3 of the PSMA does not apply to employees of health service providers. The Appeal Board held that the appellant was not a public service officer as defined under s 80C(1)(a) of the IR Act.

In considering whether the appellant was a salaried staff member, the Appeal Board noted that remuneration described as ‘salary’, is not conclusive to determine that a person is a salaried staff member. The Appeal Board considered that the appellant’s remuneration was determined by the terms of the Agreement, and that the nature of the appellant’s work as a food service attendant was consistent with the nature of work covered by the Agreement. The Appeal Board noted that the appellant was not involved in administrative, managerial, or technical services, and his employment did not fall under the administrative or professional ranks of the public service.

The Appeal Board found that the appellant did not have standing to bring the appeal and the appeal was dismissed.

The decision can be read here.

The Full Bench has held that compensation awarded to an employee in an unfair dismissal application should be reduced. The Full Bench found that the incorrect award was made in the calculation of entitlements in the first instance, and that the distress experienced by the employee was not beyond that which can be attributed to most dismissals.

Background

The respondent was employed as a kennel hand at the appellant’s business and was responsible for the care of the dogs at the kennel. On 3 February 2020, the appellant dismissed the respondent.

First instance

The respondent commenced unfair dismissal proceedings in the Commission. The appellant did not appear before the Commission at the first instance hearing, having previously been granted multiple extensions of time and adjournments. The learned Commissioner found in favour of the respondent and awarded compensation for loss and injury in the sum of $9,438.89. The appellant appealed the decision to the Full Bench.

Appeal

The appellant appealed the matter on three main grounds, being:

• The finding of the Commission that the Respondent was unfairly dismissed was incorrect on the evidence;
• The finding of the Commission that the Respondent’s position was a Level 2 position covered by the Animal Welfare Industry Award (Award) was incorrect at law; and
• The award of compensation for distress in the decision was not supported by the weight of the evidence.

The appellant submitted that new evidence should be considered by the Full Bench, given that he was unable to participate in the first instance hearing.

The respondent contended that the evidence was not new, was available to the appellant before the first instance hearing. The respondent contended that, even if the new evidence were admitted, a finding that the respondent was unfairly dismissed would still have followed.

Findings

The Full Bench, referring to the test in Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437, held that the appellant had not made out grounds for the application to tender new evidence to succeed. The Full Bench held that, on the evidence available to the learned Commissioner, that it was open to her to find that the respondent had been unfairly dismissed.

The Full Bench considered that the Award did not apply to the respondent, finding that any entitlements were to be calculated at the respondent’s rate of pay being $23.59 per hour.

While the Full Bench noted the unsavoury, rude, and threatening conduct of the appellant post-dismissal, the Full Bench was not persuaded that the impact or injury of the dismissal suffered by the respondent, was beyond the level that could be attributed to most dismissals.

The Full Bench upheld the appeal in part. The Full Bench ordered that the order of compensation be varied by calculating the respondent’s compensation for loss of five weeks, plus two weeks’ notice, based on 36.3 hours per week at the rate of $23.59 per hour, with no award of compensation for injury.

The decision can be read here.