The Full Bench has upheld the decision of the Commission in an unfair dismissal application, finding that the Commission did not have jurisdiction to hear the unfair dismissal claim of a national system employee who was not eligible to bring a claim in the Fair Work Commission.

Background

The appellant worked for the respondent for around six weeks as a full‑time Guest Service Agent. The appellant resigned from her employment and commenced an unfair dismissal application in the Commission, alleging that her resignation was induced by bullying by colleagues. 

The parties agreed that the respondent was a national system employer. The appellant, however, was unable to pursue an unfair dismissal claim in the Fair Work Commission as she had not served the six month minimum employment period stipulated in the Fair Work Act 2009 (FW Act), and was not protected from unfair dismissal under the provisions of the FW Act. 

As there is no minimum employment period contemplated to make an unfair dismissal claim in the Commission, the appellant pursued the claim in this jurisdiction. The respondent objected to the application on the grounds of jurisdiction. The Commission upheld the respondent’s objection and dismissed the application. The appellant lodged an appeal to the Full Bench. 

Contentions 

The appellant submitted that the learned Commissioner, by posing the questions she did, took into consideration irrelevant considerations and failed to consider relevant considerations in determining the question of jurisdiction. 

The appellant further contented that that the learned Commissioner erred in law in her application of the test of inconsistency for the purpose of s 109 of the Commonwealth Constitution. The appellant contented that as the FW Act does not provide employees who have not served the minimum employment period with a remedy for unfair dismissal, but the Industrial Relations Act 1979 (IR Act) does, that this means that the two statutes are not inconsistent. The appellant submitted that, if the statutes are not inconsistent, then the IR Act operates and applies, and the Commission has jurisdiction to determine the matter. 

Findings 

The Full Bench noted that inconsistency is not found where there are differences in the operation of the specific provisions, but rather is a result of the express exclusion contained in the FW Act of the operation of the IR Act, to the extent that it applies to national system employees and national system employers. 

The Full Bench upheld the decision at first instance, finding that within the terms of s 26 and subject to the exceptions in s 27 of the FW Act, the FW Act ousts the Commission’s jurisdiction in relation to national system employers and national system employees. 

The appeal was dismissed. 

The decision can be read here.

The Public Service Appeal Board (Appeal Board) has unanimously held that that it is not within the Appeal Board’s power to direct the Registrar to compel witnesses to attend and give evidence in proceedings before it. The Appeal Board found that there was a plain, legislative intention to exclude the power to issue summonses to compel witnesses to appear before it, and that there was no scope for the implication of this power.

Background

The appellant was formerly employed by the Speaker of the Legislative Assembly (respondent). The appellant has appealed the termination of her employment to the Appeal Board, with the appeal yet to be heard or determined.

The appellant applied to the Appeal Board for orders to direct the Registrar to issue summonses to witnesses to appear and give evidence at the appeal. The Registrar declined, on the basis that s 33 of the Industrial Relations Act, which empowers the Registrar to issue summonses, does not apply to the Appeal Board as a Constituent Authority of the Commission.

The Attorney‑General filed an application seeking to intervene and/or be heard on behalf of the State of Western Australia in order to make submissions on the matter. The appellant did not object, and leave was granted to the Attorney‑General to intervene in relation to the issues arising relevant to summonses to witnesses in proceedings before the Appeal Board.

Contentions

It was accepted by all parties to the matter that no express power existed in the IR Act for the compelling of witnesses before the Appeal Board. The appellant claimed that the Appeal Board held an implied power. The appellant’s case for an implication of the power was based on the principle outlined by Dawson J in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 that, where an inferior court lacks express powers to perform a function prescribed by statute, that court may have an implied power, where that power is necessary for the performance of that function.

The appellant submitted that the characterisation of such proceedings as an appeal was a mischaracterisation, and that elements of the proceedings mirrored a merits hearing. The appellant contended that that the implied power could be found within other sections of the IR Act, and that the issues of summonses to witnesses in proceedings before the Appeal Board was “uncontroversial”.

The respondent submitted that no implied power could be found, on the basis that the Appeal Board’s jurisdiction exists in the determination of appeals, rather than a trial hearing. The respondent, citing Currie v Chief Constable of Surrey [1982] 1 All ER 89, contended that the power to compel witnesses is an intrusive power, and was not necessary for the proper conduct of the proceedings before the Appeal Board. The Attorney General argued similarly.

The respondent further contended that as the Commission’s powers under the IR Act, conferred on the Appeal Board were expressly stated within s 80L of the IR Act, it would be repugnant to find an implied power to do what s 80L does not cover.

Findings

The Appeal Board noted that the characterisation of the Appeal Board as a jurisdiction determining “appeals” did not, on its own, indicate a Parliamentary intention to exclude the power to compel witnesses to appear before the Appeal Board. The Appeal Board also contemplated that the importance of summonses in the administration of justice may indicate that such a power is necessary.

Notwithstanding this, the Appeal Board highlighted the need to look to the statute creating the tribunal to determine whether such a power existed and looked to the language and structure of the IR Act. The Appeal Board held that, as s 80L expressly lists the powers of the Commission that are granted to the Appeal Board, and the omission of s 33 and the power to issue summonses, was indicative of the Parliament’s intention to exclude this power. The Appeal Board highlighted that the absence of mechanisms to enforce a summons further indicate the Parliamentary intent to exclude such a power.

The Appeal Board further considered the statutory predecessors and legislative history of the power. The Appeal Board noted that, as a statutory express power contemplating the issuing of summonses had previously existed, and had been repealed and omitted in subsequent legislation, that this supported a construction that denies an implied power.

The Appeal Board found that there was a plain, legislative intention to exclude the power to issue summonses to compel witnesses to appear before the Appeal Board, and the interlocutory application was dismissed.

The decision can be read here.

The Industrial Magistrate has imposed penalties on a restaurant owner (respondent), after he notified the Department of Mines, Industry Regulation and Safety (claimant) that an underpayment of an employee’s entitlements had been settled, before proceeding to ask the employee to return the payment.

Background

The claimant carried out an investigation to ascertain whether the respondent had observed the provisions of the Industrial Relations Act 1979 (WA) (the Act) and the Restaurant, Tearoom and Catering Workers’ Award 1979 (WA) (the Award). The investigation indicated that payments to a salaried employee were not sufficient to cover his minimum award entitlements.

The respondent notified the claimant advising that an agreement had been reached with the employee and that half of the identified underpayment would be paid to him. In March 2021, the respondent notified the claimant when payment was made. In April 2021, however, the employee contacted the claimant to indicate that the respondent had requested the settled sum be repaid.

Contentions

The claimant alleged that the respondent wilfully misled the claimant. The claimant alleged that this conduct amounted to an obstruction pursuant to s 102(2)(a) of the Act and sought penalties.

The respondent acknowledged the seriousness of the contravention. The respondent indicated that the employee owed the partnership more than the amount of his entitlements due to a separate board and lodging agreement.

Findings

Her Honour, Industrial Magistrate Hawkins, considered the non-exhaustive range of factors to determine whether the conduct calls for the imposition of the penalty and if so, the amount, these being: 

• The nature and extent of the conduct which led to the breaches;
• Circumstances in which the conduct took place;
• The nature and extent of any loss or damage sustained because of the breaches;
• Whether there has been any similar previous conduct by the respondent;
• Whether the breaches are properly distinct or arose out of one course of conduct;
• The size of the business involved;
• Whether or not the breaches were deliberate;
• Whether senior management was involved in the breaches;
• Whether the party committing the breach had exhibited contrition;
• Whether the party committing the breach has taken corrective action;
• Whether the party committing the breach had cooperated with enforcement authorities; and
• The need for specific and general deterrence. 

Her Honour noted that the maximum penalty pursuant to s 83E(1)(a) of the Act for a contravention under s 102 is $5,000. Considering the above factors, her Honour found that a penalty of $2,800 should be applied. Her Honour also found that costs sought by the claimant of $187 by way of disbursements, should be awarded.

The decision can be read here.

The Commission has dismissed the appeal of a Senior Constable (appellant) against the decision of the Commissioner of Police to take removal action. The Commission found that it was open to the Commissioner of Police to lose confidence in the appellant, finding that he had unlawfully arrested an Aboriginal woman, and in the course of the arrest, had used excessive force.

Background

On 13 November 2019, the appellant and another Constable attended the home of an Aboriginal woman (referred to in the reasons as Ms G) in response to her call for assistance to remove a male from her home.

On arrival, Ms G was holding a small kitchen knife, which she dropped when directed to. The appellant and Ms G engaged in a discussion, following which the appellant placed Ms G under arrest, referring to an English charge of “racially aggravated public order”. The officers lifted Ms G from her seated position to place her in the vehicle with force. The Commission observed that Ms G was told she was under arrest within 31 seconds of the appellant exiting his vehicle, and she was placed in the police vehicle within approximately one minute of his arrival. Ms G was taken to the police station, where the appellant continued to engage with Ms G in the charge room.

Ms G was later charged with an offence under the Weapons Act relating to possessing an article with intent to cause fear, and two counts of disorderly conduct, relating to her conduct in her front yard and in the police station. The appellant and the Constable prepared a statement of material facts for the prosecution, and later, in January 2020, prepared witness statements.

All charges were withdrawn after Ms G’s representative alerted the prosecution to significant inconsistencies between the officers’ witness statements, and the events as they are captured on the officers’ body warn camera footage. The representatives lodged a complaint to the Internal Affairs Unit. An investigation was commenced, followed by loss of confidence proceedings, resulting in the appellant’s removal as an officer.

Reasons for removal

The Notice of Intention to Remove outlined the reasons for the appellant’s removal, being:

1. The appellant arrested and detained Ms G without lawful authority.
2. The appellant used excessive force when arresting and detaining Ms G.
3. The appellant was negligently or wilfully dishonest when he prepared a statement of material facts document and witness statement for the prosecution of Ms G.
4. The appellant failed to perform his duties in a proper manner when he included the other constable’s witness statement in an evidential brief for the prosecution of Ms G, without addressing inaccurate and misleading information within that document.
5. The appellant was wilfully dishonest or misleading during managerial interviews. 

Grounds of appeal

The appellant challenged the reasons for removal, raising six grounds of appeal, being:

1. The arrest was not unlawful, as it complied with the Police Force Regulations 1979 (WA) and the Criminal Investigation Act 2006 (CI Act) requirements, and that there were valid grounds for an arrest.
2. The use of force was not excessive, as it complied with the Police Force Regulations and was necessary to protect the officers’ and Ms G’s safety as well as to prevent continuation of the offence.
3. That he was not wilfully dishonest in preparing the Statement of Material Facts and his witness statement for the prosecution brief, and that his statements were consistent with his recollections, and he did not intend to mislead.
4. That he did not fail to perform his duties in a proper manner when he included the other constable’s witness statement in the prosecution brief without addressing its. The appellant indicated that the constable’s recollections were ‘largely similar to his own’ and it was usual practice to assess these things in a cursory, rather than accurate way.
5. That he was not wilfully dishonest or misleading during managerial interviews, as there was no evidence that he intentionally mislead interviewers. He was not evasive or duplicitous and he did not materially change his story despite ‘duress’ during the interviews.
6. The decision to remove him was disproportionate with his behaviour and has not resulted in a loss of public confidence in the Police Force. The appellant suggested he performed his duties ‘in line with acceptable custom and practice for front line officers’.

Findings

The primary reasons were delivered by Cosentino SC and Emmanuel C jointly.  Kenner CC agreed in large part.

As to ground one, Cosentino SC and Emmanuel C considered whether the charges for offences brought against Ms G were in compliance with the requirements under the CI Act and Weapons Act respectively. They found that the appellant, when stating an English offence when arresting Ms G, did not meet the requirements of s 128 of the CI Act. They considered that, even if the appellant had in mind a racial offence under the CI Act, that these offences would not be appropriate offences for the conduct in question. Cosentino SC and Emmanuel C further held that it was not objectively reasonable for the appellant to have a suspicion that Ms G had committed an offence under the Weapons Act.

As to ground two, Cosentino SC and Emmanuel C found that there was no resistance to the arrest, and that the evidence demonstrated there was no need to use any force. They found that the appellant had not created any doubt as to the reasonableness of the finding that the force used in the arrest was excessive.

In relation to ground three, Cosentino SC and Emmanuel C observed that the reasons the appellant provided did not explain the inconsistencies in his account of events. They noted that it was more plausible that some statements were a fabrication to support the charges laid against Ms G. They also raised serious concerns about the review process as to the conduct of other officers, in failing to identify the flaws in the appellant’s material for the prosecution.

Cosentino SC and Emmanuel C observed that consideration of grounds four and five were not required, given the appeal had not succeeded on the preceding grounds. They noted however, in relation to ground four, that ‘putting efficiency before integrity is inimical to the very core of a police officer’s duties’. They further found that ground five was made out, and that the appellant was not wilfully dishonest or misleading during the managerial interviews.

In relation to ground six, Cosentino SC and Emmanuel C acknowledged that the removal was a high price to pay for the appellant. However, they highlighted that he had failed to demonstrate insight into, or remorse for his actions, and had gone to lengths to portray Ms G as racist, aggressive, and dangerous, and failed to acknowledge the harm his actions caused her.  They noted the public interest in improving Aboriginal/Police relations; in closing the gap on Aboriginal incarceration rates; and in having a police force which is effective in responding to and preventing domestic and family violence. Cosentino SC and Emmanuel C held that the appellant’s interests, weighed against the public interest, were not such as to render his removal harsh, oppressive, or unfair.

The appeal was dismissed.

Additional commentary

The appellant also sought to argue that the recent decision of Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 reversed the onus of proof that is on the appellant in Police appeals of this kind.

Kenner CC observed that the decision of the New South Wales Court of Appeal in Zisopoulos affirms the proposition that the overall persuasive burden rests on an appellant to establish that the removal was unfair, and that the existence of an evidential or tactical onus does not shift the overall burden of proof. Kenner CC further noted that raising doubt as to one aspect of the reasons for removal, may not be sufficient to justify overturning the decision.

Cosentino SC and Emmanuel C also considered that Zisopoulos did not mark a departure from the settled approach to appeals under s 33Q of the Police Act.

The full decision can be read here.

The Public Service Appeal Board (Board) has dismissed an appeal, where the appellant failed to attend hearings and delayed the progression of the matter. 

Background

The appellant referred the respondent’s decision to dismiss her to the Board on 18 February 2021.  The appellant was notified of the decision to terminate her employment on 15 January 2021. The referral was not accepted by the Commission’s Registry until 2 March 2021 as the initial referral submitted by the appellant was not compliant with the requirements of the Industrial Relations Commission Regulations 2005 (WA).

The respondent submitted that the appeal was without merit and opposed the Board granting an extension of time to the appellant. On 12 May 2021, the respondent subsequently applied to the Board dismiss the appeal because the parties had reached a binding settlement agreement and asserted that the Board should refrain from hearing the matter.

The appellant opposed the respondent’s interlocutory application on the basis that her representative had not fully informed of the terms and she had not authorised her representative to consent to the terms of the settlement.

A hearing was scheduled to hear and determine the respondent’s interlocutory application for an order to dismiss the appeal on the basis that the parties have reached an agreement. The hearing was adjourned at the request of the appellant. The appellant confirmed she wished to proceed with the appeal, and a second hearing was scheduled. The appellant failed to appear at the hearing.

The Board directed that the appellant show cause why her appeal ought not be dismissed for want of prosecution. A show cause hearing was subsequently listed, of which the appellant also did not appear.

Findings

The Board was satisfied that the appellant has been served with notice of the proceedings. The Board was also satisfied that the appellant was aware that, if she did not appear, that the matter would be dismissed. 

The Board considered that the appellant had not provided an explanation for the delay caused by failing to appear. The Board considered that the appellant’s failure to attend hearings and delay in progressing the matter would prejudice the respondent if allowed to continue and dismissed the appeal. 

The decision can be read here.