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Employee’s Appeal Dismissed: Board Deems Reinstatement Impractical Amidst Secondary Employment Breach

The appellant, who served as an Enforcement Manager at the respondent until his dismissal, challenged his termination, contending that the disciplinary process leading to it was marred by ineptitude, procedural unfairness, and a lack of consideration for relevant factors. His involvement in secondary employment, specifically as a director and shareholder of 'Lancelin Beach Breaks,' had decreased due to personal circumstances, including his wife's health issues. Allegations regarding workplace conduct emerged in 2020, culminating in a suspension in early 2021. In September 2021, an additional allegation related to the respondent’s secondary employment policy surfaced, leading to the appellant’s admission of a breach of discipline. Despite requesting an extension and engaging in the disciplinary process, he was ultimately dismissed in November 2021.

The appellant argued that the dismissal should be adjusted due to flaws in the disciplinary procedure causing confusion, inadequate consideration of personal circumstances and health, diminishing involvement in secondary employment, adherence to legal advice during the process, and the disproportionality of the dismissal to the misconduct. The respondent, however, contended that the dismissal was a justified response to the appellant’s breach of the Public Sector Management Act 1994 (WA) and failure to comply with directives on secondary employment.

The Public Service Appeal Board determined that revoking the dismissal and imposing alternate penalties under the PSM Act would not achieve the objective of compliance with s 102(1) of the Act. Considering the appellant’s demonstrated lack of intent to seek approval for secondary employment, the Appeal Board deemed reinstatement inappropriate, as it would place him in breach of statutory obligations. Consequently, the Appeal Board dismissed the appeal, affirming the impracticality of reinstating the appellant in light of the legal framework governing secondary employment.

The decision can be read here.

Appeal Dismissed for Non-responsiveness and Failure to Prosecute

The applicant, who served as a Customer Service Officer with the Department of Communities under the Director General's purview, faced dismissal after an extended sick leave period commencing in May 2018. Despite being directed to return to her Halls Creek position following a hiatus, the appellant, grappling with distress, sought an alternative solution, initiating a return-to-work program in June 2020. The respondent, deeming her unfit for the role, proposed her retirement in August 2020, eventually leading to a disciplinary process in March 2021 and a subsequent proposal for dismissal in October 2021, met with non-compliance.

The appellant sought reinstatement.  This was opposed by the respondent, which asserted that the dismissal decision was both sound and justifiable, following a procedurally fair disciplinary process. Amidst an intricate procedural history marked by the appellant’s repeated requests for extensions, adjournments, and filing discrepancies, the Commission scheduled a show cause hearing, where the appellant failed to appear.

The Appeal Board concluded the appellant had due notice and was provided ample opportunities for her input.  It found her non-responsive to various requests and a failure to meet procedural expectations.  Consequently, under section 27(1)(a) of the Industrial Relations Act 1979 (WA), the appeal was dismissed as the appellant did not discharge the onus and failed to appropriately pursue the matter.

The decision can be read here.

Dismissal Appeal Over COVID-19 Vaccination Compliance: Board Quashes Dismissal Decision, Denies Compensation

The appellant, employed as a Level 5 Senior Field Worker in the Wheatbelt Region by the respondent, faced dismissal due to non-compliance with COVID-19 vaccination directives. The Chief Health Officer's Health Worker Directions and the subsequent Community Care Services Worker (Restrictions on Access) Direction mandated that the appellant disclose his vaccination status or provide exemption evidence. Failure to comply led to the appellant’s placement on a "no work, no pay" arrangement, culminating in a disciplinary process and dismissal.

The appellant sought compensation equivalent to salary and entitlements, challenging the applicability of the 'no work, no pay' principle to public service officers. The respondent countered, citing its relevance and the Public Service Appeal Board’s purported lack of power to grant the requested orders. The Appeal Board, after considering provisions in the Public Sector Management Act 1994 (WA), awards, and agreements, concluded that the appellant, unable to lawfully perform full duties during the specified period, lacked an entitlement to payment. Additionally, the appellant’s argument against the 'no work, no pay' principle was not compelling, resulting in the Appeal Board quashing the dismissal decision without granting further compensation orders.

The decision can be read here.

Commission Dismisses Application on Jurisdictional Grounds in Firefighter Disciplinary Matter

The applicant brought an application under s 44 of the Industrial Relations Act 1979 (WA) to address a dispute with the respondent regarding a disciplinary process initiated against a senior firefighter. In response to a 'Please Explain' letter, alleging potential breaches of the Fire Brigades Regulations 1943 (WA) on social media, the applicant contended that the comments, directed at the respondent itself, do not violate the regulations. The applicant further argues that pursuing disciplinary action in this case is unwarranted and implies an attempt by the respondent to restrict communication between the applicant and its members.

The respondent asserted that the Commission lacks jurisdiction in this matter, invoking section 23(3)(d) of the IR Act, which restricts the Commission from regulating discipline when other legislation prescribes relevant provisions, including appeal rights. According to the respondent, Division 3 of the Fire Brigades Regulations 1943 (WA) already encompasses provisions for firefighter discipline, complete with an appeal mechanism. The applicant rebutted this by asserting that s 23(3)(d) is not applicable in this context, as the "Please Explain" letter process is distinct from the Fire Brigades Regulations, and the dispute primarily involves the applicant and its member rather than the respondent and the employee.

Commissioner Emmanuel, considering the applicant’s requests to halt disciplinary proceedings and prevent the FES Commissioner from treating the matter as a disciplinary issue under the Fire Brigades Regulations, agreed with the respondent’s position. Commissioner Emmanuel found that the applicant’s plea effectively sought the Commission to regulate discipline in the employment of its member, triggering the exclusionary effect of s 23(3)(d) of the IR Act. Consequently, Commissioner Emmanuel upheld the respondent’s objection to jurisdiction, leading to the dismissal of the application.

 

The decision can be read here.

Commission Dismisses Unfair Dismissal Claim: The Respondent Determined as a Trading Corporation

The applicant filed an unfair dismissal application against the respondent, her former employer, claiming unfair dismissal as the Business Development Manager. After an unsuccessful conciliation conference, the issue arose as to whether the respondent qualified as a national system employer under the Fair Work Act 2009 (Cth), which depends on its status as a constitutional corporation. The key question was whether the respondent, despite being a not-for-profit entity, could be classified as a trading corporation, thus impacting the jurisdiction of the Commission over the applicant’s unfair dismissal application.

The respondent, through its director, argued its establishment as a joint venture business under the Browse LNG Precinct Project Agreement and presented financial details, asserting its status as a trading corporation. In contrast, the applicant, relying on Maurice Blackburn Lawyers' review, contested the respondent’s trading status, emphasising the predominance of government grants in its income and minimal trading activities. The key contention revolved around the respondent’s purpose and the nature of its activities.

Commissioner Tsang, applying legal principles considered the respondent’s purpose as outlined in its Constitution and the Browse LNG Precinct Project Agreement. Despite the respondent’s not-for-profit status, Commissioner Tsang found that its primary purpose was the advancement of social or public welfare. Examining the respondent’s activities, Commissioner Tsang scrutinised financial records, contracts, and the nature of revenue sources. Notably, Commissioner Tsang focused on the respondent’s contracts with the Department of Primary Industries and Regional Development, concluding that the significant revenue from these service-based contracts constituted substantial trading activity. Consequently, Commissioner Tsang determined that the respondent is a trading corporation, leading to the dismissal of the applicant’s unfair dismissal application due to the lack of jurisdiction.

The decision can be read here.

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