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Created: 26 February 2020

The Industrial Magistrate’s Court has, in part, granted an application for summary judgement dismissing a claim for unpaid annual leave by a Master on an even time roster of 28 days on and 28 days off (Even Time Roster) where the parties were covered by the Go Inshore Port Hedland Agreement 2009 (Cth) (2009 Agreement), Go Inshore Port Hedland Agreement 2013 (Cth) (2013 Agreement), and Go Inshore Port Hedland Enterprise Agreement 2016 (Cth) (2016 Agreement).

The claimant argued that while the relevant clauses in the Agreements provided that annual leave will be taken during the rostered off-duty periods, this does not mean he will be deemed to have taken, and should be paid, annual leave during those periods.

The respondent contended that the Agreements deemed the claimant to have taken his annual leave during the off periods of the Even Time Roster. That is, annual leave accrued and was taken in the same ratio and therefore no claim for unpaid annual leave under the Agreements can be made. 

Industrial Magistrate Scaddan found that, as there were three Agreements covering the span of the claimant’s employment, it was necessary to look at the terms of each Agreement separately.

Scaddan IM found that the proper construction of the 2009 and 2013 Agreements were that they operated not only to require paid annual leave to be taken during the off-duty period, but deemed any annual leave to be included in the off-duty periods of the Even Time Roster such that the respondent had no ongoing annual leave liability. Scaddan IM found that the effect of this meant no outstanding unpaid annual leave were owed to the claimant during the operation of the 2009 and 2013 Agreements, where accrued annual leave was taken and paid on the same ratio.

However, Scaddan IM found that the 2016 Agreement raised the possibility of ongoing accrual of annual leave. Scaddan IM found that it was arguable that annual leave was not incorporated into the off-duty period, and ordered the claimant to lodge an amended Further and Better Particulars of Case Outline for his period of employment covered under the 2016 Agreement.

The Application was granted in part.

The decision can be read here.

Details 

Created: 26 February 2020

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the Department of Transport to terminate the employment of a customer service officer for substandard performance pursuant to the Public Sector Management Act 1994 (WA).

The appellant contended that at no time was her performance substandard and that the Performance Improvement Action Plan (PIP) implemented by the respondent raised major procedural and substantive concerns. The appellant also argued that procedural fairness and natural justice had been denied, the investigation process was unduly secretive and that the penalty of dismissal was unfair in consideration of the appellant’s employment record.

The appellant sought a declaration that her performance met the expected standards, the respondent’s adverse findings are set aside, and an order that the respondent reinstate the appellant with continuity of service and reimbursement of loss.

The respondent contended that the appellant had clear opportunities to respond during the investigation, had access to the support required to overcome barriers to meeting expectations, had reasonable opportunity to demonstrate improvement and that the process was conducted in a fair and unbiased manner.

The Board found that given the entirety of the informal and formal processes put in place by the respondent, including a Return to Work Program and the PIP, it could not conclude that the appellant did not have a reasonable opportunity to demonstrate an improvement in her level of performance. The Board held that it was the sheer type and number of basic errors, committed consistently by the appellant over a sustained period, that was of legitimate concern to the respondent.

The Board found that the appellant’s performance had not attained or sustained a reasonably expected level. The Board dismissed the appeal.

The decision can be read here.

Details 

Created: 25 February 2020

The Full Bench has unanimously dismissed an appeal against a decision of the Commission that found that a claim for denied contractual benefits should be dismissed on the basis that the application was barred by a Deed of Settlement and Release (Deed) between the parties.

The appellant at first instance argued that she signed the Deed under duress and was threatened that if she did not sign the Deed, she may be dismissed.

The Commissioner at first instance found that the pressure exerted on the appellant to sign the Deed was not ‘undue’ because ‘it did not involve any actual or threatened unlawful conduct by the Respondent’. In addition, the Commissioner found that the appellant, though stressed, was under no special disadvantage, and the appellant did not breach or threaten to breach the contract.

On appeal, the appellant argued that the Commissioner erred in law by failing to consider or properly consider the issue of actual or threatened breaches of the appellant’s contract, and whether this constituted duress and a threat.

Chief Commissioner Scott, with whom Senior Commissioner Kenner and Commissioner Walkington agreed, found that the since the respondent had given the appellant an option to either sign the Deed or face disciplinary action, and that the appellant knew and understood that she was not being threatened with dismissal, there was no duress or threat. Further, the appellant had received independent advice from an industrial agent prior to signing the Deed and was told by the respondent that she must not sign the Deed under duress.

The Full Bench also dismissed the appellant’s argument that the respondent’s conduct constituted unlawful conduct amounting to the tort of deceit because it had not been argued before the Commission at first instance. The Full Bench also found that:

• The Commissioner at first instance was correct in finding there was no contractual duty on the respondent to act with good faith;
• That there was a legitimate reason for suspicion of wrongdoing by the appellant as the basis for commencing disciplinary proceedings; and
• It was in the public interest for the parties to be bound by the agreements.

The Full Bench found that, as no error had been identified, the appeal should be dismissed.

The decision can be read here.

Details 

Created: 24 February 2020

The Full Bench has unanimously upheld an appeal in an unfair dismissal claim, suspended the operation of the decision at first instance and remitted the matter back to the Commission for further hearing and determination.

The appellant was dismissed by her employer following an exchange over the signing of a contract. The Commissioner at first instance found the dismissal to be justified on the basis that the appellant did not comply with a lawful instruction, used abusive language to challenge her employer and that her conduct was destructive of the necessary confidence between employer and employee.

On appeal, the appellant contended that Commissioner’s conclusions regarding the conflict in the evidence were in error. The appellant argued that the Commissioner wrongly refused to allow her to call a witness she had summonsed on the basis that no witness statement had been filed and that this would be prejudicial to the respondent. The appellant argued that she had been advised by the Commissioner’s Associate that the witness need not provide a written witness statement and could still be able to provide oral evidence at the hearing.

Chief Commissioner Scott and Commissioner Matthews, with whom Commissioner Emmanuel agreed, found that the witness ought to have been allowed to give evidence, given the conflict between the appellant’s and respondent’s evidence. Scott CC and Matthews C found there was a real possibility that the witness’s evidence would have made a difference to the findings of credibility and of the facts and upheld this ground of appeal.  

The appellant also argued that the Commissioner erred in accepting another witness’s characterisation of the appellant’s manner towards the respondent, when the witness gave a very different characterisation in cross-examination.

Scott CC and Matthews C upheld this ground of appeal and found that the evidence provided in the witness statement was severely undermined in cross-examination, and it was an error of the Commissioner to rely on it.

The Full Bench found that given the significance of these two grounds of appeal and the effect they may have on the Commissioner’s assessment of the evidence; they would remit the matter to the Commission for further hearing and determination.

The decision can be read here.

Details 

 Created: 21 February 2020

The Full Bench has unanimously found that the Industrial Magistrate’s Court (IMC) did not have the power to issue an order requiring the Commissioner of Police (Commissioner) to reconsider a police officer’s claim for reimbursement of certain non-work-related medical expenses. The Full Bench also found that the hire and purchase of a continuous positive airway pressure (CPAP) machine do not relate to a ‘service’ within meaning of cl 36(1) of the Western Australian Police Industrial Agreement 2014 (the Agreement).  

The applicant made a claim to the IMC that the Commissioner failed to provide adequate justification for denying payment of his claims for reimbursements of specified non-work-related medical expenses, including the purchase and hire of a CPAP machine. The applicant argued that the Commissioner was required to grant reimbursement. Flynn IM considered whether the Commissioner had exercised the discretion conferred by the agreement and found that the Commissioner may have incorrectly interpreted the agreement. Flynn IM ordered that the Commissioner re-consider the reimbursement claims.

On appeal to the Full Bench, the appellant noted that if it can be proved that a person contravened a provision of an instrument to which s 83 of the Industrial Relations Act 1979 (WA) applies, the Magistrate may either issue a caution or penalty. The appellant argued that the imposition of a penalty is a precondition for the making of an order for the purpose of preventing a further contravention. The appellant argued that since the Industrial Magistrate imposed a caution and not a penalty, he had no power to make an order that the Commissioner reconsider the applicant’s claim for reimbursement.

Chief Commissioner Scott and Commissioner Matthews found that as no penalty was imposed, there was no power to make an order preventing a further contravention.  

The appellant also argued that the Industrial Magistrate erred in law by finding that the hire or purchase of CPAP machine by an employee covered by the Agreement amounts to the receipt of an ‘other service’ by that employee within the meaning of cl 36(1)(b) of the Agreement.

Scott CC found that the hire and purchase of the CPAP machine do not fall within the meaning of a service but was more akin to a medical aide. Scott CC found that, in this context, the Industrial Magistrate erred in finding that it was open to the Commissioner to construe cl 36(1) to find that the machine hire and purchase expenses claims relate to an X-ray or ‘other service’. Scott CC and Matthews C found that the purchase and hire of the CPAP machine do not constitute a reimbursable expense resulting from a service and therefore, do not fall within cl 36(1).

The Full Bench, having found that the orders were beyond power; the Industrial Magistrate erred in finding that it was open to the Commissioner to construe cl 36(1) to find that the machine hire and purchase costs relate to a service, and was a reimbursable expense, upheld the appeal, quashed the Industrial Magistrate’s decision and dismissed the complaint.

The decision can be read here.