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Interim order for continuation of employment dismissed

The Public Service Arbitrator has dismissed an application for interim relief, brought under section 44(6)(ba)(iii) of the Industrial Relations Act 1979 (WA), and made by the Civil Service Association (Inc.) on behalf of its member. The substantive claim sought that the member's employment be converted from fixed term to permanent in accordance with the Commissioner's Instruction No. 23. The applicant's interim application, made in the course of a compulsory conference, claimed that there was a material misunderstanding by the respondent of the facts or the existence of erroneous records, and, that the grant of this order would encourage the parties to exchange or divulge attitudes or information that would, in some way, result in settlement of the matter.

Section 44(6)(ba)(iii) sets out the Commission's powers at or in relation to a compulsory conference and states:

"(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission —

(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question…"

For the interim order sought to be made out, the applicant was required to establish how the criterion outlined in s 44(6)(ba)(iii) was met and how the Commission could reach the requisite opinion. The Arbitrator considered that there was nothing in the submissions to satisfy how the grant of an extension in the member's employment relationship would demonstrate the s 44(6)(ba)(iii) criteria. Further, the Arbitrator found that there was no suggestion made that would enable him to form the requisite opinion that the respondent had not been prepared to divulge information or exchange attitudes in relation to the matters in dispute.

The Arbitrator consequently dismissed the application for interim orders.

The decision can be read here.

Overseas farm worker an employee and covered by Award

The Industrial Magistrate has upheld a claim against a sole trader for contravening the Farm Employees Award 1985 (WA) (Award) by failing to pay an overseas worker certain award entitlements as a farm hand.

The claimant argued that the worker was not a volunteer, but an employee, and subject to the terms of the Award during her employment. The claimant asserted that the worker was not paid wages owed, sick leave and annual leave under the Award.

The respondent, a farm operator, denied the claim and argued that the worker was not an employee, but a volunteer, at her farm. The respondent argued that as part of an agreement, the respondent offered the worker food, accommodation and payslips for the purposes of obtaining her second-year working visa.

There were three issues for determination:

  1. Whether the worker was an employee or volunteer, in respect of the respondent’s business;
  2. Whether the worker’s employment, if she was an employee, was covered by the Award; and
  3. Whether the worker was paid in accordance with the Award, if she was an employee, and covered by the Award.

In relation to the first issue, the Industrial Magistrate considered the level of control exercised by the Respondent, and the payment of tax and superannuation on behalf of the worker. In the Industrial Magistrate’s application of common law legal principle, she found that, on the balance of probabilities, the worker was an employee of the respondent and not a volunteer.

Regarding the second issue, the Industrial Magistrate considered whether the employee was covered under clause 3 of the Award, which protects employees working in the farming industry. The Industrial Magistrate found, because the employee’s work involved all aspects of animal husbandry in connection with the breeding and grazing of horses, her employment was covered by the Award.  

In relation to the third issue, the Industrial Magistrate found that the respondent contravened the Award and ordered the respondent to pay the claimant for the employee’s unpaid wages totalling over $10,000, sick leave on three occasions, sick leave on termination of employment and annual leave on termination of employment. The Industrial Magistrate also ordered the respondent to pay the claimant a penalty of $1,500 under s 93(4) of the Industrial Relations Act 1979 (WA).

The decision can be read here.

PSAB not persuaded to adjust respondent's decision

The Public Service Appeal Board has unanimously dismissed an appeal by a medical scientist who was dismissed by PathWest Laboratory Medicine WA. On 20 December 2018, the respondent found that the medical scientist had breached the WA Health Code of Conduct and issued her with a fourth reprimand. It then dismissed her on 23 January 2019.

The Board determined three preliminary matters. Firstly, it found that an interlocutory application made by the respondent to dismiss the appeal was not an issue that needed to be decided because the relationship between the parties had deteriorated to the extent that an employment relationship should not be restored. Secondly, the Board considered whether to hear the appeal of the respondent's first decision out of time and found that, in light of the circumstances of the matter, the extension of time should be granted. The Board dismissed a final preliminary application by the appellant in which she sought discovery of certain documents. The Board found that the documents were not necessary to resolve the matters in dispute.

Turning to the substantive matter, the Board considered that the allegations against the medical scientist about three interactions with her colleagues were made out and that her conduct was a breach of discipline. As such, the Board dismissed this part of the appeal and determined not to interfere with the respondent's findings of 20 December 2018.

Finally, the Board found that the dismissal was not warranted in the circumstances and that the appellant should have been given one final chance. However, the Board decided not to adjust the decision to dismiss because it found that reinstatement would not be practicable given that the medical scientist's dissatisfaction was with the organisation as a whole and not just the laboratory that she worked at. Also, the Board found that the evidence suggested that the medical scientist had a total incapacity to work for any employer in her field.

The Board dismissed the appeal.

The decision can be read here.

Full Bench finds no appellable error was established

The Full Bench has unanimously dismissed three appeals by a teacher who was dismissed by the Department of Education. The Commission at first instance found that the teacher was not entitled to challenge three separate disciplinary actions against him. The learned Commissioner found that two applications ought to be dismissed because the teacher had excessively delayed bringing the proceedings. A third application was dismissed on the basis that the teacher had signed a Deed of Settlement (the Deed) that barred him from bringing any claim.

For an appeal against a discretionary decision to be established it must be shown that there was an error in the Commissioner's decision-making. The Full Bench dismissed all six of the grounds of appeal brought by the teacher. The grounds alleged that the learned Commissioner had erred by not having regard to considerations such as the hardship to the teacher; the public interest and interests of employees generally; the lack of prejudice to the Department; that the learned Commissioner had prejudged the teacher after the teacher had admitted to wrongdoing; that investigation reports had prejudiced the teacher's case or that the learned Commissioner was biased against the teacher.

The Full Bench commented that the learned Commissioner had considered the issue of hardship to the employee if the claim was dismissed and that the teacher had made a conscious decision at the material time to not challenge the historical claims. The Full Bench also noted that two of the grounds of appeal did not identify any error by the learned Commissioner, as is required for an appeal to be brought against a discretionary decision. Further, the Full Bench found that the learned Commissioner had not displayed bias or prejudice towards the teacher, that the Deed was conclusive of settlement and contained the teacher's promise that he would not commence further proceedings. It was also found that there was no evidence to suggest that the teacher had been misled by the Department when he signed the Deed.

The Full Bench determined that no appealable error in the learned Commissioner's discretionary decision had been established and dismissed all three appeals.

The decision can be read here.

Teacher's treatment was harsh and unjust

The Full Bench has dismissed an appeal against a decision of the Commission where it was found that the refusal of the Director General, Department of Education (the Director General) to employ a teacher was unfair (this decision can be read here).

The Director General summarily terminated the teacher's employment following an incident that involved a primary school student and that resulted in a criminal charge being brought against the teacher. This criminal charge caused the issuance of a notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) (the notice) and cancellation of the teacher's registration with the Teacher Registration Board (TRB). The notice was withdrawn, the registration reinstated and the criminal charge was discontinued. However, the Director General still refused to employ the teacher. It was at this stage that the Director General commenced disciplinary action into the teacher's conduct that had led to the criminal charge. This disciplinary investigation found the teacher's actions to be 'inconsistent with the Code of Conduct', that he had engaged in excessive physical contact with a student, that his employment file would remain marked 'not suitable for future employment with the Department of Education', imposed a reprimand and advised the teacher that he may appeal to the Commission.

At the first instance hearing of the matter, the learned Senior Commissioner made three orders. Firstly, a declaration that the Director General's refusal to employ the teacher was unfair (Order 1). Secondly, for the teacher to be offered a contract of employment as a primary school teacher at a level and salary equal to his qualifications and experience (Order 2). Thirdly, that the Director General pay the teacher for the limited payment of salary and benefits that he would have earned had he remained employed since 2 October 2017, being the date that the Director General's refusal to employ was no longer reasonable because the teacher's notice under the WWC Act was removed and TRB registration was renewed (Order 3).

The first ground of appeal considered by the Full Bench was whether the learned Senior Commissioner erred when he found that the Commission had jurisdiction to hear the application, given the exclusion set out in section 23(2a) of the Industrial Relations Act 1979 (WA) (the Act). This exclusion is that s 23(2a), which relates to the filling of a vacancy, ousts the Commissions jurisdiction to hear the matter. The Full Bench dismissed this ground on the basis that the Commission's jurisdiction is not excluded because the circumstances of this case did not relate to the filling of a vacancy. Rather the Director General refused to employ the teacher because she had wrongly concluded that the teacher was unsuitable for re-employment. The Full Bench also found that the learned Senior Commissioner's description of the claim before him did not conflate issues, namely, the fairness of the teacher's removal and the teacher's claim for re-employment.

The second ground of appeal alleged that the learned Senior Commissioner made an error of law when he did not find that a letter from The State School Teachers' Union of WA seeking the teacher's reemployment (the letter) was wholly covered by without prejudice privilege and could not be relied upon to evidence a request for employment. The majority of the Full Bench (Emmanuel C and Walkington C) found that the letter was in two parts, the first being an open communication that was on the record and the second being an offer made without prejudice and off the record. Scott CC (dissenting) agreed with the learned Senior Commissioner and found that the whole of the letter was covered by without prejudice privilege and that, even if this ground was upheld, it did not warrant the overturning of the first instance decision because the Director General still refused to employ the teacher.

Ground five was raised in the alternative to ground two and alleged that if the letter was not wholly covered by without prejudice privilege then the Senior Commissioner erred by failing to consider the relevant consideration that it was not a bare request for employment. The Full Bench dismissed this ground after it held that the request contained many conditions that were not put to the learned Senior Commissioner at first instance as having been considered by the Director General or was the reason for the Director General's refusal to employ the teacher.

A third ground alleged that the Senior Commissioner made an error of law when he found that the WWC Act did not prevent the teacher from obtaining relief in the proceedings at first instance. The Full Bench dismissed this ground after it found that the learned Senior Commissioner had not erred because the WWC Act only prevents a relief when the remedy sought is for a dismissal, and not for an unfair refusal to employ.

The fourth ground of appeal stated that the learned Senior Commissioner did not consider the relevant considerations when he found that the Director General unfairly refused to employ the teacher. The Director General said that the relevant considerations were that; the teacher sought to only be employed at his former position; the teacher's former position was permanently filled; the teacher had not followed the usual re-employment process, and, that this may cause unfairness to the other applicants. The Full Bench dismissed this ground of appeal and held that the Commission is not bound by the remedy sought by a party, that the Director General had no intention to re-employ the teacher and that the Director General could have found other work for the teacher until he was able to formally apply for another position, as it had done in other cases.

Ground six alleged that the learned Senior Commissioner considered irrelevant considerations. Namely, that the refusal to employ had ended the teacher's career and that the teacher's conduct did not warrant summary dismissal. The Full Bench found that the Director General's characterisation of these considerations as irrelevant took them out of context. It was relevant to the consideration of fairness in the refusal to employ the teacher that the Director General is the employer in all government schools and that the Director General's refusal to employ the teacher ended his career as a teacher in government schools. Also, as the Director General's actions must have a reasonable and rational basis, it was appropriate for the Commission to carry out an objective assessment of the teacher's conduct, especially because the SSTU sought orders for its member to return to child-related work.

The Full Bench dismissed ground seven as it was generally a reformulation of other grounds of appeal and that the question of fairness in the refusal to employ had always been a primary consideration.

Ground eight contended that the learned Senior Commissioner erred when he made Order 3 when the Commission has no power to make such an order. The majority of the Full Bench (Emmanuel C and Walkington C) dismissed ground eight and concluded that the learned Senior Commissioner had power to make this order. The majority found that the industrial dispute was not just about the alleged refusal to employ the teacher, but also about how to resolve the matter if the refusal was found to be unfair. This was addressed by the learned Senior Commissioner's Order 2, which was an order for prospective employment, and, Order 3, that imposed an obligation on the Director General to make payment to resolve part of an industrial matter and not for the payment of salary or work, respectively. In the alternative, the majority found that special circumstances existed that make it fair and right to give retrospective effect to Order 3, or alternatively again, that the learned Senior Commissioner did not err because it was fair and right to make Order 3 given the unique circumstances of the matter. Scott CC (dissenting) upheld this ground and would have quashed Order 3. Scott CC found that the Commission did not have the power to make Order 3 as an employment relationship did not exist for the period prior to the order for employment coming into effect, so there was no industrial matter. Further, Scott CC found that no entitlement to payment can arise where the employee was prevented from working by the wrongful act of the employer. In the alternative, the Chief Commissioner said that if the Commission had the power to order payment of the lost income, special circumstances existed that required the Director General to remedy the unfairness but that this unfairness had commenced prior to 2 October 2017.

Ground nine of the appeal alleged that the learned Senior Commissioner erred in fact and in law in finding that there was a refusal to employ within the meaning of s 7 of the Act, other than on 2 discrete occasions. The Full Bench dismissed this ground and found that the learned Senior Commissioner did not err as the evidence demonstrated that there were repeated requests and repeated refusals, with at least one of those refusals found by the learned Senior Commissioner as not unreasonable.

The final ground of appeal claimed that the Director General was denied a fair hearing and not put on fair notice of a claim arising from the learned Senior Commissioner's reasons for decision that the change of policy referred to in the letter was an alternative basis for the finding that there was an unfair refusal to employ. The Full Bench dismissed this ground saying that the Director General was represented by experienced and diligent counsel who made no request for time to consider the matter or make any reasonable suggestion that counsel was taken by surprise.

The Full Bench agreed with the comments made by the learned Senior Commissioner that the teacher had been treated harshly and unjustly. Emmanuel C and Walkington C further noted that the red flag on the teacher's employment record indicated the Director General's ongoing refusal to employ.

The decision can be read here.

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