The Full Bench has made orders that an appellant pay costs to the respondent, finding that the appeal was instituted frivolously.

Background

In 2019, the appellant commenced proceedings (the first proceedings) before the Industrial Magistrates Court (IMC), alleging the respondent failed to comply with federal and State industrial instruments; and failed to pay overtime. The proceedings were dismissed by her Honour Scaddan IM in December 2019. The appellant appealed this decision to the Full Bench of the Commission (the first appeal).  In August 2020, the Full Bench dismissed the appeal in that matter, on the basis that the appellant’s claim before the IMC in the first proceedings, the subject of the appeal, involved the exercise by the court of its jurisdiction under the Fair Work Act 2009 (Cth) (FW Act), and the Full Bench did not have jurisdiction to hear the matter. 

In September 2020, the appellant commenced further proceedings (the second proceedings) before the IMC under the FW Act. The respondent made an application to the court that the appellant’s claim at first instance be struck out.  The Industrial Magistrate concluded that the applicant’s claims had either been, or ought to have been, litigated before the court in the first proceedings, and dismissed the claim. On an application for costs by the respondent, the Industrial Magistrate did not award costs, finding that the proceedings before the court were not instituted “vexatiously or without reasonable cause”.  However, her Honour, Hawkins IM, did observe that the appellant came “perilously close”.

The appellant appealed the decision of the second proceedings to the Full Bench under s 84 of Act (the second appeal). The Full Bench listed the appeal for hearing to show cause why it should not be dismissed for want of jurisdiction.

Contentions

The appellant claimed that, as the court in the second proceedings dismissed his claim in the exercise of its powers to strike out the application under the Magistrate’s Court (Civil Proceedings) Act 2004 (WA) and the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), being State laws, that the Full Bench had jurisdiction to hear the appeal. The respondent contended that the appeal should be dismissed for want of jurisdiction, contending that the first appeal made it clear that the only avenue of appeal from a decision of the court exercising jurisdiction under the FW Act, is to the Federal Court. The respondent again made an application for costs. 

Findings

The Full Bench considered that, under s 565 of the FW Act, an appeal from the court when “exercising jurisdiction” under the FW Act, can only be brought in the Federal Court. The Full Bench considered that a while the IMC may exercise its various procedural and other powers under State legislation, this does not alter the law that the jurisdiction exercised by the court is federal only.  

The Full Bench considered that given the procedural history, the appellant, while self-represented, was no stranger to the exercise of State and federal jurisdiction by the IMC and Full Bench.  The appellant had acknowledged in his notice of appeal in the second appeal, that the Full Bench had no jurisdiction in relation to an appeal from the court exercising federal jurisdiction under the FW Act.

The Full Bench considered that this was one of the ‘very rare occasions’ when a costs order in favour of the respondent should be made. The Full Bench dismissed the matter for want of jurisdiction and ordered that the appellant pay costs to the respondent in the sum of $5,150.00.

The decision can be read here.

The Industrial Magistrate has awarded penalties to a restaurant owner for contravening the Industrial Relations Act 1979 (the Act) by failing to produce records to the Department of Mines, Industry Regulation and Safety (DMIRS).

Background

The respondent purchased a restaurant around October 2019 and started trading in or about November 2019.

In December 2019 and July 2020, the claimant attended the restaurant. On each occasion, the claimant issued the respondent with a notice that required the respondent provide to DMIRS specified records relating to all employees of the restaurant.  The purpose was to ascertain whether the respondent had observed the provisions of the Act and the Restaurant, Tearoom and Catering Workers’ Award (WA). The respondent failed to provide the records.

In failing to produce records in respect to the two notices, the Industrial Magistrate made orders stating that the respondent had contravened s 102(1)(a) of the Act. The claimant sought payment of a penalty under s 83E(1)(a) of the Act for each of the two contraventions.

Both parties appeared at a hearing on 2 September 2021. The respondent indicated that the relevant documents would be provided by 3 September 2021. The decision of the Industrial Magistrate was reserved to enable the respondent to provide the documents, however the respondent did not comply.

Contentions 

The claimant submitted that the respondent was uncooperative with industrial inspectors and had failed to demonstrate contrition and take corrective action. The claimant contended that the respondent’s actions were repeated and deliberate in that he was in communication with industrial inspectors in respect of the notices and was aware of what was required. The claimant submitted that the respondent had ‘demonstrated … disregard for his obligations as an employer under the Act’.

The respondent did not lodge any submissions and confirmed in the hearing on 2 September 2021 that he did not wish to be heard in respect to the issue of penalty and costs. 

Findings 

In determining whether the respondent’s conduct warranted the imposition of a penalty, and if so, the appropriate amount, the Industrial Magistrate considered a range of factors. These included:

• the nature and extent of the conduct which led to the breaches;
• the circumstances in which the conduct took place;
• the nature and extent of any loss or damage sustained as a result of the breaches;
• whether there had 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 breaches were deliberate;
• whether senior management was involved in breaches;
• whether the party committing the breach had exhibited contrition;
• whether the party committing the breach had taken corrective action;
• whether the party committing the breach had cooperated with enforcement authorities;
• the need to ensure compliance with minimum standards by the provision of an effective means for investigation, enforcement of employee entitlements; and
• the need for specific and general deterrence.

The Industrial Magistrate determined that the appropriate penalty for each contravention was $3,250 per breach. The Industrial Magistrate determined that the separate contraventions could be considered as a single course of conduct. Applying the totality principle, and considering the conduct as a whole, the Industrial Magistrate determined that an aggregate penalty of $3,900 was appropriate and proportionate. The Industrial Magistrate additionally ordered the respondent pay the claimant costs of $187.

The decision can be read here.

The Public Service Appeal Board (PSAB) has dismissed an appeal, finding that the decision to terminate probationary employment was not harsh or unreasonable or otherwise effected in a manner that was contrary to the purpose and principles of probationary employment.

The employee was employed by the Director General of the Department of Education (Employer) for a particular project. His employment was subject to an initial six-month probationary period. Around 1 month prior to the end of the probationary period, his manager held a meeting with him to discuss various concerns, which needed to be resolved before the completion of the probationary period. Soon afterwards, the Employer made the decision to "annul" or end the probationary employment, stating that it was because the employee was not appropriate or compatible to continue in the role.

The employee appealed from this decision to the PSAB under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act). The appeal was therefore different in nature to an appeal from a substandard performance process under s 79(1) of the Public Sector Management Act 1994 (WA).

The PSAB was required to consider how to approach an appeal set against a background of performance and conduct concerns, but which did not involve termination following a substandard performance process. The PSAB noted that, as an appeal under s80I(1), it involved the review of the Employer's decision de novo, based on the evidence before it. However, mindful of the purpose and implications of probationary employment as set out in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth [2000] WAIRC 00067; (2000) 80 WAIG 3155, the PSAB was not inclined in this appeal to entirely disregard the Employer's decision, though the appeal was to be determined de novo. The PSAB considered it may legitimately have regard to, and place weight upon, the subjective view of the Employer about the employee's suitability for ongoing employment in determining the appeal. Further, that the employment was probationary, warrants limiting the exercise to rehearing only those aspects of the matter that are strictly necessary to deal with the appellant's grounds of appeal.

In considering the appeal, the PSAB considered four factual issues and found that no adjustment to the decision appealed against was warranted, and therefore the appeal was dismissed.

The decision can be read here.

The Public Service Appeal Board (Board) has dismissed an appeal for want of jurisdiction, on the basis that it had no jurisdiction to hear the matter as the employee was not a public service officer and there was no appealable decision.

The employee was employed by the East Metropolitan Health Service (the Health Service) as a Level 2 Clinical Nurse Anaesthetic Research on a fixed term contract. At the end of the fixed term, and contrary to what the employee was led to expect, neither a further contract nor permanency was offered. The employee lodged an appeal to the Board under s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) after having her complaint to the Office of the Parliamentary Commissioner for Administrative Investigations (Ombudsman) rejected. The Ombudsman rejected the complaint because it said the employee could seek a remedy in the WAIRC. The Health Service objected to the appeal, saying that the decisions being appealed against are not matters within the Board's jurisdiction.

The Board was required to determine whether the employee was a public service officer with standing to appeal a decision under s 80I(1)(a) of the IR Act. The Board found that she was not, and so the Board was without jurisdiction to hear and determine the appeal.

The Board expressed sympathy for the employee for bringing her appeal to the Board it in the way that she had noting that it has been observed many times that the structure of the IR Act concerning its constituent authorities, particularly the Board and the Public Service Arbitrator, are overly and unnecessarily complex and confusing.

In this case, the confusion was also compounded by the information the employee received from Ombudsman.

The decision can be read here.

The Public Service Appeal Board has dismissed an appeal against the decision to take disciplinary action on the grounds that the Appeal Board does not have jurisdiction to deal with or determine the matter.

Background

The appellant was a Registered Nurse employed by WA Country Health Service (WACHS) as a Level 2 Community Health Nurse. On 19 February 2021, the respondent found a breach of discipline had occurred and determined to impose a sanction on the appellant of a reprimand and improvement action.

The appellant complied with the improvement action but disputed the finding of a breach of discipline. On 12 March 2021, the appellant commenced an appeal against the decision.

Contentions

The appellant had no opinion as to whether she was a “government officer” for the purposes of s 80C(1) of the Industrial Relations Act 1979 (WA) (IR Act). However, the appellant wished to continue the appeal within the general jurisdiction of the IR Act.

The respondent argued that the decision the appellant sought to appeal was not within the jurisdiction of the Appeal Board. The respondent contended that although the appellant is employed by a public authority, she is not on the “salaried staff” to bring her within the definition of a “government officer”.

Findings

The Appeal Board considered whether the appellant was on the “salaried staff” of the respondent and accordingly whether the appeal was within its jurisdiction.  

The Appeal Board recognised that although there is no fixed meaning of “salaried staff”, the structure of the employee’s remuneration and the services for which the remuneration is paid should be strongly considered. Specifically, the presence of the following characteristics may indicate “salaried staff”:

• the employee receives a fixed regular payment for their personal services;
• the payments are usually made monthly or quarterly, as opposed to daily or weekly; and
• the employee is in the administrative, technical, and professional ranks of the public sector.

It was determined that despite reference in the appellant’s employment contract to her “salary”, she was paid a wage, calculated by reference to an hourly base rate of pay for the hours she worked. Further, because penalties, allowances and overtime rates were payable depending on the work performed, the appellant’s earnings were not entirely fixed.

The Appeal Board also determined the nature of the services the appellant provided were not for administrative, managerial, or technical services. Therefore, her employment could not be described as being in the administrative or professional ranks of the public service.

The Appeal Board concluded that the appellant did not earn a salary, nor was she a member of the respondent’s “salaried staff”. Therefore, as the appellant was not within the definition of a “government officer” for the purposes of s 80C(1) of the IR Act, her appeal is beyond the Appeal Board’s jurisdiction.

The appeal was dismissed.

The decision can be read here.