Details 

Created: 17 April 2020

The Commission has issued an order that the applicant’s legal representative in another jurisdiction produce documents that are not subject to legal professional privilege in compliance with a summons.

At a preliminary hearing in relation to jurisdiction, the applicant claimed that she was “forced into resigning” in such a way as to make the ending of her employment a ‘constructive dismissal’. The respondent argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim. The hearing did not resolve the matter of whether the applicant had been ‘dismissed’.

After the preliminary hearing, the respondent sought, by way of summons directed to the applicant’s legal representative for the worker’s compensation matter, four sets of documents. This included any file notes from the conciliation conference that led to the settlement of the applicant’s workers’ compensation claim, as well as documents containing any advice given by the applicant’s legal representative to the applicant.

The respondent argued that the applicant, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege. The respondent claimed that production of the documents would show that the circumstances were not as the applicant alleges. The respondent argued it would be unfair for the applicant to assert privilege where that is the case. 

The recipient of the summons resisted production of the documents on the basis that each and all are the subject of legal professional privilege.

The Commission found that legal professional privilege had not been relevantly waived by the applicant stating she did not receive “advice per se” whether or not to accept the settlement offer at the workers’ compensation conciliation conference. The Commission determined that the applicant’s state of mind insofar as it was created or influenced by the respondent was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors. The Commission found that while the applicant having access to competent legal counsel will be relevant, the advice that was given will not be particularly relevant.

The Commission ordered that the recipient of the summons provide any notes taken by the applicant’s representatives at the workers’ compensation conciliation conference, where those notes are of events at which representatives of the respondent were present, to the Western Australian Industrial Relations Commission.

The decision can be read here.

Details  Created: 17 April 2020

The Public Service Arbitrator has dismissed an application for the conversion of a fixed term contract employee to permanency on the basis that the employee did not meet the requirements of clause 2.1(a) of Commissioner’s Instruction No. 23 (CI 23).

Clause 2.1(a) of CI 23 requires that ‘the reason for engagement on a fixed term contract is not a circumstance mentioned in the relevant industrial instruments’.

The Arbitrator noted that a circumstance mentioned in the Public Service and Government Officers General Agreement 2014 and the Public Service and Government Officers General Agreement 2017, which were in effect at the time of the employee’s employment, was for employment on a fixed-term contract to cover a “one-off period of relief”. His operative contract on the 10 August 2018 explicitly stated his fixed term position was a “one-off period of relief” to cover the position of another worker during the period between July and December 2018.

As the contract indicated a reason for his engagement on the contract mentioned in the agreements, he had not met cl 2.1(a) of CI 23 and therefore the Arbitrator found the employee was ineligible for conversion to permanency. 

Interpretation of CI 23

The Arbitrator observed that CI 23 had a commencement date of 10 August 2018, and by its scope and application, was limited to persons employed at the time of its commencement. He found it was not intended to apply to future employees.

The Arbitrator found that there was a clear indication that the terms in CI 23 were not intended to have ongoing effect. The Arbitrator found the respondent’s submission correct in that a review of a fixed term contract employee was intended to be a one-off process, and reiterated that the relevant contract to be considered was the contract in place on 10 August 2018, which was the date that the CI 23 was commenced.

The Arbitrator rejected the applicant’s submissions to the effect that the criteria for conversion of a fixed term contract employee is limited to only those matters referred to in cl 2.1. He found that the following requirements, in addition to cl 2.1, must be met:

1. The employee must be in employment on a fixed term contract at the time of the commencement of CI 23 i.e as at 10 August 2018;
2. In the case of an employee who was not had a proper assessment of merit one is to be taken under cl 10;
3. Relevant advertising and recruitment obligations must be satisfied;
4. Funding for a permanent appointment must be confirmed as required by cl 12; and
5. If a suitable permanent registrable or registered employee under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 is able to undertake a role, then no offer of conversion to permanency can be made.

The application was dismissed.

The decision can be read here. 

Details 

Created: 14 April 2020

The Western Australian Industrial Relations Commission (Commission) will issue a General Order under s 50 Industrial Relations Act 1979 (WA) amidst the COVID-19 pandemic that allows state system employees to take unpaid pandemic leave, annual leave on half pay and annual leave in advance.

The Commission has implemented these flexible leave arrangements to assist businesses to continue to operate and to preserve employment and the continuity of employment for the benefit of those businesses, their employees and the economy generally.

The terms of the General Order will provide flexibility and leave options to be available to employees for:

1. Unpaid pandemic leave of up to two weeks if the employee is required, by government or medical authorities or acting on the advice of a medical practitioner, to self-isolate or is otherwise prevented from working by measures taken by the government or medical authorities in response to the COVID-19 pandemic;
2. Double annual leave at half pay, by agreement between the employer and employee; and
3. Annual leave to be taken in advance, by agreement between the employer and employee.

These measures will operate from today until 31 July 2020 and may be extended.  

The General Order will apply to all private sector employers and employees in the State system, whether covered by an award or not. State system employers generally include sole traders, partnerships, some trusts, some local government agencies and some non-for-profit organisations.

Where an award or industrial agreement contains a more beneficial term than the General Order, the award will apply. Otherwise, where there is conflict between the terms of the General Order and the award, the terms of the General Order will apply.

The Commission issued the Reasons for Decision and the Minutes of Proposed General Order at 10.00am on 14 April 2020.

The Commission has invited any submissions in writing by 2.00pm on 14 April 2020 as to whether the Minutes reflect the Reasons for Decision.

The Reasons for Decision can be read here.

The General Order can be read here. 

Details 

Created: 31 March 2020

The Public Service Appeal Board (Board) has unanimously dismissed an appeal and found that the appellant was not dismissed from her employment, but rather that her fixed term contract had ended in accordance with the parties’ agreement.

The appellant, a government officer, was employed on a series of fixed term contracts. After her final contract ended, the appellant filed an appeal under s 80I(d) of the Industrial Relations Act 1979 (WA) against what she said was the respondent’s decision to dismiss her. She argued that she was unfairly dismissed because the respondent did not offer her a further fixed term contract or a permanent position.

The respondent argued that the appellant was not dismissed but was employed on a fixed term contract that came to an end by the effluxion of time. The respondent claimed there was no dismissal and the Board did not have jurisdiction to hear and determine the appellant’s appeal.

In deciding whether it had jurisdiction to hear the appeal, the Board had to determine whether the appellant was dismissed.

The Board applied relevant legal principle and found that it was not persuaded that the appellant was dismissed. It found that the failure to offer a subsequent contract was not a dismissal and that the employment ended in accordance with the final fixed term contract. The Board found that it was the effluxion of time in accordance with the parties’ agreement, and not any action on the part of the respondent, that resulted in the contract and the employment relationship ending.

The Board dismissed the appeal for want of jurisdiction.

The decision can be read here. 

Details  Created: 27 March 2020

The Full Bench has unanimously dismissed an appeal against a decision of the Road Freight Transport Industry Tribunal (Tribunal) that found that the respondent lawfully terminated a Cartage Agreement (Agreement) with the appellant after the appellant’s conduct was found to constitute serious misconduct as well as a serious safety breach of the Agreement.

At first instance, the Tribunal found that by continuing to move his truck towards another driver when he was, or should have been, aware that the driver was in front of his truck, the appellant’s conduct constituted serious and wilful misconduct or alternatively, reckless indifference.

The Tribunal found that the appellant’s conduct constituted a serious safety breach for the purposes of the Agreement and that the respondent’s ground for the termination of the Agreement was justified at the time the decision was made and it was not unlawful.

On appeal, the appellant argued that the Tribunal’s findings were not supported by the evidence or did not take account of certain matters. The appellant also argued that certain conclusions made by the Tribunal were in error.

Upon viewing the footage of the incident, the Full Bench unanimously observed that the appellant had provoked the other driver, and then, after being infuriated at being gestured to, deliberately drove in the direction of the other driver with his truck contacting the other driver. He was not in a blind spot. The Full Bench found that there was no error in the Tribunal’s findings nor in the acceptance and rejection of certain evidence. The Full Bench determined that they were findings that were open to the Tribunal to make based on all the evidence. Further, it found the conduct was serious misconduct and wilful.

The appeal was dismissed.

The decision can be read here.