The appellant, who had been employed as a prison officer by the respondent, appealed the decision of the Full Bench to the Industrial Appeal Court, seeking reinstatement after her dismissal for failure to comply with a direction to be vaccinated against COVID-19 and provide evidence of her vaccination.

In her original claim before the Commission, the appellant contended that she had been unfairly dismissed by the respondent for failure to comply with the vaccination direction. Having found that another employee had been reprimanded but not dismissed for non-compliance with the direction to be vaccinated, Senior Commissioner Cosentino found that while there was valid reason for the appellant’s dismissal, when compared to the other employee, the respondent’s treatment of the appellant was unfair, and ordered that the appellant be reinstated to her position.

The respondent appealed this decision to the Full Bench of the Commission, contending that the matter of the other employee’s reprimand was not a relevant comparator. Finding that the disciplinary outcome for the other employee occurred several months after the appellant’s dismissal, and that each employee was employed in a materially different roles requiring different working circumstances and subject to different statutory frameworks, the Full Bench determined that the respondent’s claim had been made out and overturned the decision of the Senior Commissioner.

The appellant’s appeal to the Industrial Appeal Court was on the grounds that the Full Bench erred in law by finding that the other employee’s disciplinary outcome was not a suitable comparator to her case, raising the issue of the proper construction of s 26(1)(a) and s 26(1)(b) of the Industrial Relations Act 1979 (IR Act). The Court found that in this matter, the proper construction and application of s 26(1) of the IR Act was not in issue before the Full Bench. The Court determined that the Full Bench applied the well-established legal test for ascertaining if an employee’s dismissal was harsh, oppressive, or unfair, and applied well-established legal principle in determining the relevant facts in relation to the alleged disparity between the treatment of the appellant and other disciplined employee. Finding that the Full Bench had not erred in law, the Industrial Appeal Court dismissed the appeal and upheld the decision of the Full Bench.

The decision can be read here. 

The Commission, of its own motion, initiated proceedings to vary the Performers Live Award (WA) 1993 pursuant to s 40B of the Industrial Relations Act 1979 (IR Act). The proceedings were initiated to ensure that the award does not contain wages that are less than statutory minimum wages, to remove obsolete, out of date and discriminatory provisions, and to ensure the award did not contain provisions less favourable than the Minimum Conditions of Employment Act 1993 (MCE Act).

The award had not been varied since at least 1999 and contained a number of outdated and obsolete provisions. The Commission provided notice of its intention to vary the award to UnionsWA, the Chamber of Commerce and Industry WA, the Australian Resources and Energy Employers Association, the Minister for Industrial Relations, the Media Entertainment and Arts Alliance of Western Australia (Union of Employees) (MEAA) and the employer respondents named in the award. The Commission sought input from interested parties and were provided feedback by a representative of the Minister.

Through proceedings, an issue arose regarding whether rates of pay in the Award that were below the statutory minimum rate should be corrected by a variation only to the rate of pay that was below the statutory minimum by increasing it to the minimum, or by a variation to reduce the ordinary hours of work from 40 hours per week to 38 hours per week, which would have the effect that most rates would be increased by 5%. The Minister and MEAA each submitted that the latter variation be made, to which no parties object. Senior Commissioner Cosentino determined that the variation to ordinary hours should be made and made orders accordingly.

Further variations to the award included changes to clauses for bereavement and personal leave that may have been discriminatory, the addition of new clauses for family and domestic violence leave and parental leave, updates to clauses pertaining to the manner of payment, casual loading, and other matter relating to rates of pay, and updates to various clauses for clarity, consistency with contemporary standards, and alignment with the IR Act and MCE Act. The Senior Commissioner ordered that the variations be made and take effect on 1 January 2025.

 The decision can be read here. 

The applicant union applied to the Commission to interpret clause 45.1(a) of the Western Australian TAFE Lecturers’ General Agreement 2021, particularly regarding whether employees are entitled to accrue annual leave while on leave receiving workers’ compensation payments, and requesting the Commissioner make a declaration as submitted by the parties with such a determination. The application was subsequently adjourned pending the conclusion of a relevant Full Bench decision for another matter. Following the decision of the Full Bench in that matter, the parties confirmed they did not seek to make further submissions and submitted a revised declaration.

The applicant union contended that the term ‘year of service’ in clause 45.1(a) should include periods when an employee is absent from work receiving workers’ compensation payments under the Workers’ Compensation and Injury Management Act 1981 (WCIM Act). They argued that the Agreement does not define ‘service’ or ‘continuous service’ for annual leave, so these terms should be interpreted according to their ordinary meanings. The Union also contended that the WCIM Act requires an employer to maintain an employee’s employment while they are receiving workers’ compensation, thus allowing the employee to accrue annual leave during their absence.

The respondents argued that while there is no definition of ‘service’ or ‘year of service’, clauses 51.4(b) and 51.8 make it clear that periods of personal leave without pay exceeding three months are excluded from qualifying service for accruing annual leave. They contended that the Agreement objectively intended for periods of leave on workers’ compensation to be deemed personal leave without pay for the purposes of the Agreement.

Commissioner Tsang considered the contentions of both parties and determined that the applicant had not sufficiently supported their argument that employees are entitled to accrue annual leave while absent from work on unpaid personal leave and receiving worker’s compensation.  Accordingly, the Commissioner determined that as the applicant had not persuaded her of their case, the Commissioner declined to make the declaration and dismissed the application.

The decision can be read here. 

The appellant, who was employed as a Health Information Systems Support Administrator by the respondent, appealed the decision of the respondent to terminate her employment for repeated failure to follow lawful directions. The respondent gave the appellant four letters setting out eight allegations of breaches of discipline, of which seven were substantiated. Five of these were the respondent’s grounds for dismissing the appellant, the respondent issued a reprimand to the appellant for the other two.

Among the allegations included failure to comply with lawful and reasonable directions given to her by her line manager that related to matters including the authorisation of higher duties payments and the provision of documents and information related to the performance management and grievance processes of employees, as well as allegations of misconduct in accessing the personal information of two individuals without their consent in the patient medical record system. After reviewing each of the allegations against the appellant, the Board determined that the appellant did engage in the alleged conduct.

The appellant submitted that she did not wilfully or deliberately disobey a lawful or reasonable direction give to her by her employer and that the decision to dismiss her was disproportionate and unfair, while the respondent contended that the Board should not adjust its decision to dismiss and reprimand the appellant, claiming that the disciplinary action is fair and proportionate to the conduct.

After considering the contentions of the appellant and respondent and taking into consideration the appellant’s history of non-compliance with her manager’s directions, the Board agreed with the respondent’s submissions that the conduct has been repeated, was without excuse, and irreparably damaged the employment relationship. The Board also determined that both the decision to dismiss the appellant and to reprimand her were fair and proportionate. In finding that the dismissal was not harsh, oppressive, or unfair, the Board dismissed the appeal, upholding the decision to dismiss the appellant.

The decision can be read here. 

The applicant, who was employed by the respondent as a Signwriter/Installer, applied to the Commission with a claim of denied contractual benefits. The applicant claimed the respondent had not paid the required payment in lieu of notice and unpaid carers and annual leave, in addition to underpayment of $2 per hour for the first week of her employment.

The applicant was initially employed by the respondent on a casual basis, after which she was offered, and accepted a full-time contract until the employment relationship ended three months later. The applicant contended that she was dismissed by her employer and thus entitled to payment in lieu of notice. The respondent argued that on the day the employment relationship ended, the applicant was behaving aggressively towards staff and customers. The respondent claims that the applicant was then stood down for the day, after which she left and then returned shortly after to return her uniform and demand a separation certificate and her final pay. The respondent further submitted evidence that the applicant had engaged in misconduct by using company equipment for personal use in violation of her employment contract, and damaged cameras to obscure her actions.

Commissioner Walkington found that the applicant deliberately damaged the cameras to prevent the observation and recording of her activities, and that the applicant had engaged in misconduct. The Commissioner found that the applicant’s employment contract specifically addressed the issue of using the equipment for personal work and specified that doing so was cause for termination of employment. The Commissioner also found that the applicant had, in breach of the employment contract, used access to confidential information to direct work meant for the respondent to her own business. Applying the doctrine of unclean hands, the Commissioner found that the applicant had engaged in misconduct in breach of the terms of her contract of employment, and ought to be denied the relief sought, dismissing the application.

The decision can be read here.