Archive: Oct 13, 2025, 12:00 AM

Commission dismisses unfair dismissal application for pastor who failed to disclose secondary employment

The applicant, who was employed as a pastor for the respondent in 2023, filed an unfair dismissal claim in the Commission 29 days after the prescribed time limit under s 29 of the Industrial Relations Act 1979 (WA) (IR Act). The respondent discovered that the applicant had engaged in secondary employment as a part-time mathematics teacher, which they argue breached his contract as a pastor. The respondent sought to dismiss the application on the grounds that the applicant’s conduct was misleading and breached the terms of his contract.

The employment contract required the applicant to devote his full attention during normal working hours to church duties and prohibited holding any position that would conflict with his obligations unless disclosed and approved by his employer. The respondent presented undisputed evidence that the applicant worked multiple days at various schools during his tenure, including full workdays in November 2023, without informing the respondent.

The applicant contended that his contract did not require disclosure of secondary employment, especially as some teaching days fell on his non-working days at the church. He claimed his pastoral duties involved flexible hours and that he met the required 38 hours weekly, often working evenings and weekends.

Commissioner Walkington found that the applicant’s failure to disclose his secondary employment and the resulting compromise of his availability during normal working hours constituted a breach of his contract. Further, the applicant’s conduct and evasive responses during proceedings undermined the trust essential to the employment relationship and rendered reinstatement inappropriate.

The applicant argued that the respondent breached its Constitution and contract by failing to follow proper procedures for termination, including holding a Special Church Members Meeting and adhering to performance review and dispute resolution clauses. The Respondent countered that such claims could not be upheld given the applicant’s own breaches of contract.  The Commissioner emphasised the equitable jurisdiction under the IR Act, allowing it to deny relief to applicants who have acted without clean hands, holding that an applicant who breaches their contract and causes loss to the employer cannot claim benefits under that contract.

Commissioner Walkington found that the applicant breached his contract by engaging in undisclosed secondary employment that conflicted with his pastoral duties. The Commissioner concluded that the applicant’s conduct destroyed the necessary trust and good faith with the respondent, making reinstatement unsuitable. Consequently, the unfair dismissal application was dismissed.

 

The decision can be read here

Commission grants leave to consider some new evidence

The appellant, who was a Senior Constable with 16 years of service, was removed from his position following a domestic violence incident in August 2024. The respondent initiated loss of confidence proceedings, leading to the appellant's removal in April 2025 due to concerns about his integrity and conduct. The appellant appealed against his removal, seeking either reinstatement, or alternatively, compensation.

Two interlocutory matters were considered by the Commission. The first was an application by the appellant to amend his notice of appeal to recast his grounds of appeal. The application to amend the notice of appeal was not opposed by the respondent, and the Commission, at the hearing of the interlocutory hearings, granted the appellant leave to do so.

The second interlocutory matter was an application to tender new evidence under s 33R of the Police Act 1892 (WA), specifically witness statements from the appellant’s treating psychiatrist and a witness to the domestic violence incident.

In his application to tender new evidence, the appellant argued that the witness statement should be allowed as new evidence as it could show that the respondent acted on incomplete information at the time of his removal. The appellant also contended that the statement would demonstrate the willingness of the witness to cooperate with the investigation and provide evidence of his symptoms of Post Traumatic Stress Disorder.

The Commission refused leave to admit the witness statement primarily because it was not contemporaneous with the relevant events and did not add materially new information. The statement was made over a year after the incident in question, whereas the witness had already made statements on the night of the incident, which were recorded in body-worn camera footage and included in earlier evidence. The Commission also found that the substance of the new witness statement was broadly consistent with this existing material, particularly regarding the appellant’s demeanour and symptoms, and therefore was not likely to show that the respondent acted on wrong or mistaken information, nor was it likely to have materially affected the decision to remove the appellant.

The Commission granted leave for the psychiatrist’s statement to be tendered as new evidence. This evidence was considered relevant and admissible because it addressed the appellant’s medical condition at the time of the incident and could potentially affect the assessment of the appellant’s conduct and the respondent’s decision to remove him.

 

The decision can be read here.  

Dispute about suspension of public sector employee outside Commission’s jurisdiction

The applicant was employed in the public sector as a Senior Registrar in Psychiatry with the respondent on a 0.2 FTE fixed-term contract from August 2024 to February 2025. By letter in September 2024, the employer confirmed with the applicant that he was not required to attend work until further notice, and in the meantime would be paid in accordance with his fixed-term contract of employment.

The applicant referred the matter to the Commission under the Industrial Relations Act 1979 (WA) (IR Act)’s new provisions about matters relating to public sector employment. The applicant was, seeking reinstatement or an apology, claiming he was suspended from work without adequate explanation, arbitrarily, without reasons or procedural fairness.

The employer applied to have the matter dismissed, arguing that the Commission lacked jurisdiction to hear the matter, the remedies sought by the applicant were unavailable to him, and the application was out of time.

The respondent put forward several arguments including reference to s 23 of the IR Act which prevents the Commission from regulating suspensions if another Act provides an appeal mechanism. The respondent also referred to s 171 of the Health Services Act 2016 (WA) (HS Act), stating that appeals to the Commission are only allowed for suspensions on partial pay or without pay, not full pay. Since the applicant was suspended on full pay, the respondent argued that the matter did not qualify as an “industrial matter” under the HS Act and the IR Act. Additionally, it argued that the Commission could not order reinstatement or an apology in these circumstances.

Commissioner Emmanuel found that only suspensions on partial pay or without pay are industrial matters that may be referred to the Commission. Commissioner Emmanuel concluded that while the applicant was directed not to attend work, he continued to be paid as though working, which did not amount to a suspension under the HS Act. Further, there was no evidence of disciplinary action or a relevant decision under the HS Act, nor could the Commission order reinstatement or an apology, as there had been no dismissal. Accordingly, the application was dismissed.

 

The decision can be read here.  

Commission considers scope of jurisdiction under new provisions about matters relating to public sector employment

In these proceedings, the applicant invoked the new provisions of the Industrial Relations Act 1979 (WA) about referrals of public sector employment matters to challenge three decisions made by her employer: a permanent transfer to a new role, refusal of leave without pay (LWOP), and the blocking of her internal grievance process.  She argued that each decision involved a misinterpretation and misapplication of statutory provisions under the Public Sector Management Act 1994 (PSM Act), specifically those relating to fair treatment, suitability, procedural fairness, and grievance resolution.

The respondent maintained that the Commission’s jurisdiction under s 36AA(2)(b) is limited to disputes about the interpretation of a “conditions of service provision” under the PSM Act. It argued that the applicant’s grievances related to the application of statutory principles, not their interpretation, and that the LWOP decision was made under the Award, which does not invoke the Commission’s jurisdiction.

Commissioner Tsang noted that for jurisdiction to be established under s 36AA(2)(b) of the Industrial Relations Act 1979 (WA), the dispute must relate to the interpretation of a “conditions of service provision” under the PSM Act, not merely dissatisfaction with how discretion was exercised. The Commissioner determined that the applicant’s grievances were about the application of statutory principles to her circumstances, rather than a genuine dispute over the meaning of those provisions.

As a result, the application was dismissed for want of jurisdiction.

 

  The decision can be read here.  

 

Commission varies Baking Industry Award

The Commission of its own motion initiated two matters for variation of the Bakers’ (Metropolitan) Award No 13 of 1987 (Award) under ss 40B and 37D of the Industrial Relations Act 1979 (IR Act). The proceedings, which were dealt with in tandem, were initiated to consolidate this award with the Bakers’ (Country) Award No. 18 of 1977 and the Pastrycooks’ Award No. 24 of 1981, as all three contained outdated provisions. The review of the Award was conducted to ensure the award does not contain wages less than the statutory minimum wage, to remove outdated and obsolete provisions, and to ensure compliance with current employment standards prescribed by the Minimum Conditions of Employment Act 1993 (WA).

The Commission provided notice of its intention to vary the Award to UnionsWA, the Chamber of Commerce and Industry WA, the Minister for Industrial Relations, and the United Workers Union, Western Australian branch as the union party to the Award. The Commission also provided notice of its intention to vary the Award to the Baking Industry Employers Association of Western Australia, and 15 employers. The Commission also sought further input from interested parties, including the Private Sector Labour Relations division of the Department of Local Government.

Key amendments include:

  • The Award's scope was expanded to cover all baking industry employers and employees in Western Australia without geographical limits, reflecting the repeal of the Bread Act 1982 and removing anomalous boundaries between metropolitan and country areas.
  •  The Award's title being changed to the Baking Industry Award.
  •  Provisions for wages and allowances were simplified, removing obsolete safety net references and classifications from the Pastrycooks’ Award No. 24 of 1981 were included.
  • The provisions for leave entitlements – including family and domestic violence leave and parental leave, have been updated to align with current standards and legislation.
  • Hours of work clauses were simplified following repeal of the Bread Act 1982, with overtime provisions updated to reference the Minimum Conditions of Employment Act 1993 (WA). Penalty rates were restructured for clarity, and provisions from consolidated awards were incorporated to preserve conditions.
  • Provisions related to records and right of entry, posting of the Award, and dispute resolution were revised for modern compliance and clarity, including removal of obsolete references and enabling electronic provision of the Award.

The changes took effect from 1 October 2025.

 

The decision can be read here.  

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