The Commission has dismissed an appeal brought by the owners of a massage business, finding that it was open to the Senior Commissioner at first instance to determine that the employee had been dismissed, and did not resign.

Background

The appellant ran a massage business, at which the respondent was employed as a massage therapist. Following a dispute, the respondent left the workplace. The respondent did not return to work the following day on medical grounds, and provided the appellant with a medical certificate.

In subsequent text messages between the appellant and respondent, the respondent understood that she had been dismissed. The respondent made an unfair dismissal application to the Commission.

The learned Senior Commissioner found that the respondent had been unfairly dismissed, and ordered the appellant to pay compensation.

The reasons for decision at first instance were corrected by corrigendum soon after issuing, mainly correcting various dates and times.

Contentions

The appellant brought an appeal against the first instance decision, and listed 18 grounds of appeal. Broadly, the grounds of appeal contended that the Senior Commissioner mistook the facts at first instance; that translations of text messages used as evidence were not accurate; and that it should have been concluded that the respondent resigned. The appellant further contended that the assessment of compensation was arbitrary.

Findings

The Full Bench noted that the grounds of appeal did not set out the particulars that were relied upon by the appellant to show how the Senior Commissioner’s decision was against the evidence and did not set out specific reasons why the Senior Commissioner erred in law.

The Full Bench noted that the errors in the reasons for decision that were later corrected by corrigendum referred to by the appellant in ground one, mainly related to dates and times. The Full Bench found that the corrections did not materially affect the Commission’s decision.

The Full Bench found that the Senior Commissioner was alert to the nuance of language in considering text messages that had been translated, and further noted that at no time in the first instance, did the appellant raise issues with the translations.

The Full Bench considered that the Senior Commissioner did not err in considering the behaviour of the respondent, including the provision of a medical certificate, when finding that the respondent did not intend to resign.

The Full Bench considered that the Senior Commissioned had properly applied the principles relating to the award of compensation to the facts and that no error was demonstrated in her award of $1,500 compensation for injury.

The Full Bench found no appeal grounds were made out and dismissed the appeal.

The decision can be read here.

The Commission has varied and updated the Electrical Contracting Industry Award R 22 of 1978, to remove various respondents.

The applicant, the Electrical Trades Union WA, applied to vary the Electrical Contracting Industry Award R 22 of 1978, seeking to increase the meal, car, travel, distant work, and Western Power allowances in the Award, update the names and addresses of some of the respondents listed in one of its schedules, and remove some respondents who were no longer trading or no longer in existence.

The Electrical and Communications Association of WA (ECAWA), listed in the Award as a respondent, filed a response to the application to vary the respondents listed in the Award.  It opposed being listed in the Award as it was not a successor entity of a listed entity, a union of employers or registered organisation under the State system, or a National System employer.

The Commission noted that the application to vary the allowances was unopposed, and that the last variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021. The Commission found that the calculations provided by the applicant for the variations were consistent with the State Wage Case Statement of Principles, and that it was appropriate to make the variations sought.

The Commission noted that apart from the ECAWA’s response, the application in relation to substituting the Award’ respondents was otherwise unopposed. The Commission noted that there was no good reason for retaining the respondents  listed in the Award who had ceased to exist, ceased to trade, or ceased to be covered by the Award, and considered that it was appropriate to update the Second Schedule to the Award accordingly.

The decision can be read here.