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. 

In an ongoing matter regarding an unfair dismissal claim, the applicant sought to submit video recordings made without the knowledge and consent of those recorded. These are video recordings made on the applicant’s mobile phone, which was then placed in his pocket, provide audio only content of dialogue in French, for which an English transcript was required.

The respondent objected to the admission of the recordings on the grounds that the recordings were in breach of the Surveillance Devices Act 1998, that the applicant had deliberately provoked a reaction from another person for the purpose of the recording, and because the recordings omit vital information. The applicant acknowledged that the recordings were made without the knowledge or consent of those recorded but contended that the recordings were permissible under ss 9(1) and 9(2) of the Surveillance Devices Act 1998. 

Commissioner Walkington considered that the law clearly prohibits publication and communications of recordings of conversations made without the knowledge and consent of those being recorded, barring limited circumstances, and that there would need to be a compelling reason to admit the recordings. The applicant submitted that the recordings should be admitted as they show the truth of events. However, after reviewing the content of the recordings, including the audio of a physical altercation, the Commissioner determined that the recordings did not provide any further information than is already provided for in oral and documentary evidence, and did not assist in determining whether the applicant had been provoked into the altercation.

Finding that the recordings were not reasonably necessary to protect the lawful interests of the applicant and that no compelling reason to admit them had been established, Commissioner Walkington ruled that the recordings were not to be admitted.

The decision can be read here. 

New state employment laws commenced on 31 January 2025.

Key changes, which were introduced by the Industrial Relations Legislation Amendment Act 2024, include:

• Abolishing the Commission constituent authorities of the Public Service Arbitrator (PSA) and the Public Service Appeal Board (PSAB), and transferring the jurisdiction of the PSA and PSAB to the general jurisdiction of the Commission.
• A new prohibition on sexual harassment in connection with work.
• An increase to the state statutory minimum casual loading from 20% to 25% and a new test to determine if a worker’s employment is casual employment. When determining if a person is an employee or a casual employee, the focus is to be placed on the practical reality and real substance of the working relationship and not just the terms of a contract of employment.
• A new enforceable minimum condition enabling employees to request a flexible working arrangement in certain circumstances.
• A fit and proper person test for a union official to obtain a state right of entry permit.
• Increased civil penalties for contravening state employment laws.
• A prohibition on misconduct before the Commission including insulting, obstructing or hindering a Commissioner in the performance of their functions.

Some changes to be introduced by the Industrial Relations Legislation Amendment Act 2024 have a later commencement date which has not yet been set. These changes will involve:

• Public sector employees having access to the Commission for alleged breaches of specified public sector standards.
• Improved regulation of registered industrial agents.

We are in the process of updating our website to reflect these changes where relevant. Please email registry@wairc.wa.gov.au if you have any queries about the law changes.

NOTICE is given that an application has been made to the Commission in Court Session by the Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch pursuant to section 72A of the Industrial Relations Act 1979 (WA). This application is matter no. CICS 3 of 2025 (section 72A application).

The Notice can be read here.