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.

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.

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.

NOTICE is given that an application has been made to the Commission in Court Session by the Western Australian Municipal, Administrative, Clerical and Services Union of Employees for orders pursuant to section 72A(2) of the Industrial Relations Act 1979 (WA) regarding the right of an employee organisation to represent, to the exclusion of another employee organisation, the industrial interests of all outside employees employed in specified local government enterprises.

This matter will be listed for hearing before the Commission in Court Session on a date to be fixed, which is not to be before the expiration of 30 days from the day on which this notice is first published. 

This application may be inspected by appointment at Level 17, 111 St Georges Terrace, Perth by any interested person without charge.

The full Notice, which includes the list of all local government enterprises proposed to be covered by the orders sought, is available here.

Under s40B of the Industrial Relations Act, the Commission can review an award’s provisions if they are “obsolete or in need of updating.”  The Commission initiated proceedings under this section to review clauses in 2 local government awards, headed “Enterprise Flexibility” and “Facilitative Provisions.” The Commission considered whether the clauses were invalid, and so should be removed.

The parties to the proceedings agreed that the Enterprise Flexibility clauses of the awards were invalid. Those clauses purported to permit an agreement to be made with employees at the enterprise level to vary the awards’ provisions, without a mechanism for either the union to be party to such an agreement, or the Commission to register it. Accordingly, the agreement contemplated by the clause was outside the scheme of the Industrial Relations Act. Under the IRA, awards can only be varied by application to the Commission to which a union is party.

Turning to the facilitative provisions in the award, Senior Commissioner Cosentino observed that facilitative provisions are features in many awards, and have been since the 1980s. The purpose of facilitative provisions is not to enable avoidance of award obligations, but rather to allow for a departure from a default or standard method of satisfying an award obligation. Accordingly, a true facilitative provision was not contrary to the Act’s scheme, as it did not involve permitting agreement to vary a provision in the award having the effect of altering award obligations.

Having found that the concept of facilitative provisions in a general sense was not inconsistent with the scheme of the IR Act, the Senior Commissioner went on to consider whether particular provisions of the awards were true facilitative provisions or whether they did more than a facilitative provision, to have the effect of varying award obligations. The Senior Commission found that some of the clauses of the awards did go beyond the limits of a permissible facilitative provision. The Senior Commissioner therefore varied the awards, to remove both the enterprise flexibility clauses and the impermissible facilitative provisions.

In the course of the hearing, the unions argued that the facilitative provisions were obsolete and should be removed because they were rarely if ever used. However, the Senior Commissioner was not persuaded that this was a proper basis to remove the clauses under s40B.

Decision APPL 26/2023 can be read here and decision APPL 27/2023 can be read here.