Archive: Nov 16, 2023, 12:00 AM

Appeal Dismissed for Failure to Prosecute Employment Contract Dispute.

The Appeal Board dismissed the appellant's appeal due to his persistent lack of engagement and demonstrated lack of interest in the matter.

The appellant, who worked as a Secure Care Worker Level 3.2 at the Kath French Secure Care facility, appealed the respondent's decision not to extend his fixed-term contract and sought reinstatement. The respondent contested the appeal, asserting that the Appeal Board lacked jurisdiction to address the matter as they had not taken any disciplinary action or formally dismissed the appellant; rather, his contract simply expired.

Throughout the appeal process, the appellant's participation was notably limited. He did not respond to the Department's allegations and failed to attend a directions hearing on 20 June 2022.  The appellant did not respond to email or telephone contact from the Associate to the Appeal Board. Subsequent attempts at communication, including phone calls and email correspondences, also went unanswered.

Due to the appellant's persistent lack of engagement and the substantial delay in the application process, the respondent requested the appeal be dismissed for lack of prosecution on 8 August 2022. In response, the Appeal Board listed a hearing for 15 November 2022, for a show cause why the appeal should not be dismissed.  The appellant did not attend this hearing.

On 15 November 2022, the Appeal Board dismissed the appeal pursuant to s 27(1) of the Industrial Relations Act 1979 (WA) due to his failure to prosecute the appeal. The Appeal Board found that the significant delay in the case, combined with the appellant's lack of response and engagement, demonstrated his insufficient interest in the matter. Moreover, there was no evidence of hardship to the appellant if his application were dismissed, and no indication that the respondent’s conduct had contributed to his failure to pursue the appeal.

The decision can be read here.

Dismissal Upheld: Refusal to Comply with Vaccination Directive.

The applicant’s dismissal was upheld as the Commission found his refusal to comply with respondent employer's lawful vaccination directive constituted a valid reason for termination, concluding that he was dismissed.

The applicant, who served as a Relationship Manager at the Roman Catholic Bishop of Bunbury, was dismissed due to his failure to provide proof of COVID-19 vaccination or an exemption as required by respondent's vaccination policy. This decision followed a series of communications and discussions between the applicant and respondent regarding his refusal to comply with the vaccination policy and his requests to work from home or take long service leave.  Despite multiple interactions, the applicant did not provide the required documentation, leading the respondent to terminate his employment. It did, however, offer him a final opportunity to respond before making the decision, which he did not utilise.

In response, the applicant claimed that his dismissal was unfair and sought reinstatement. The respondent argued that the applicant's conduct effectively repudiated his employment by preventing him from performing his duties, thus concluding his employment. The respondent contended that it did not dismiss the applicant. The applicant, on the other hand, disagreed with this interpretation, asserting that his employment was terminated at the initiative of the respondent.

Commission Walkington ultimately dismissed the applicant's claim, concluding that his conduct justified the termination of his employment. The Commissioner found that the respondent had dismissed the applicant at its own initiative because, in its view, he could not fulfill the inherent requirements of his role. This meant that the applicant was dismissed. The Commission emphasised the applicant's duty to follow a lawful and reasonable directive from the respondent, highlighting the organisation's legitimate basis for implementing the vaccination policy as a COVID-19 safety measure. Consequently, the applicant's refusal to comply with this directive alone constituted a fair dismissal, rendering him unable to fulfill the requirements of his role.

The decision can be read here.

Unfair dismissal claim dismissed: employer found to be a trading corporation.

The Commission found that it lacked jurisdiction to hear the applicant’s unfair dismissal claim because the employer was an incorporated body and a trading corporation, based on an overall assessment.

The applicant, a former Retail Manager, was dismissed based on allegations of misconduct and contended that her termination was harsh, oppressive, and unfair. While the respondent argued that her actions constituted a clear breach of duties and responsibilities not in line with the organisation's policies and values.

Additionally, the respondent asserted its status as a national system employer under the Fair Work Act 2009, contending that the Commission lacked jurisdiction to hear the claim. The applicant explained that she initially applied to Fair Work Commission but was redirected to the Commission.

The applicant claimed that the retail and distribution centre sales, which she argued were not trading because the items were donated, were a significant part of the organisation's activities. However, she failed to provide evidence to support this assertion.

Commission Walkington determined that the respondent, as an incorporated body registered under the Association Incorporation Act 2015 (WA), became a corporation in accordance with that Act. Furthermore, the Commission found that the respondent qualified as a trading corporation based on an overall assessment of its operations, including retail and distribution centre sales. Consequently, due to its status as a trading corporation, the Commission lacked jurisdiction to hear the matter and dismissed the application.

The decision can be read here.

Termination for refusing to wear a mask not harsh, oppressive or unfair.

The Commission upheld the applicant's dismissal, deeming a mask mandate lawful, reasonable, and a valid reason for termination.

The applicant, an ICT Coordinator, was dismissed for refusing to comply with a mask mandate issued under COVID-19 public health orders. The respondent contended that his dismissal was not unfair, harsh, or oppressive due to his refusal to follow a lawful and reasonable direction.

The applicant sought compensation, an apology, a reference, and accountability for senior management staff, while the respondent argued that the mask mandate was lawful and reasonable as a COVID-19 protective measure.

Commission Walkington dismissed the claim, determining that the mask mandate was lawful and reasonable, serving as a protective measure during the pandemic, and the applicant's refusal to follow the directive without providing an exemption constituted a valid reason for his dismissal. Consequently, the Commission found that the respondent's termination of the applicant's employment was not unfair, harsh, or oppressive, and it was within their right to enforce the mask mandate.

The decision can be read here.