The Public Service Board dismissed the appellant's appeal against dismissal due to his failure to comply with directions, resulting in an incomplete case that prevented the respondent from adequately responding.

The appellant, a former Memorial Services Officer at the Metropolitan Cemeteries Board, appealed against his dismissal on the grounds of perceived severity, seeking reinstatement. Despite referencing documents in his notice of appeal, the appellant failed to submit any supporting materials. The respondent argued against adjusting the dismissal decision, asserting that the appellant's disregard for lawful instructions had eroded trust and confidence.

Subsequently, the appellant notified the Appeal Board and the respondent of perceived inaccuracies in the respondent's response but failed to specify or provide evidence. Despite directions, the appellant did not submit an outline of submissions. In response, the respondent sought dismissal of the appeal, citing the appellant's non-compliance with the Appeal Board's directions and a lack of prosecution of his case.

The Appeal Board, acknowledging the appellant's self-representation, deemed that adequate assistance was provided. However, it found the appellant's failure to diligently comply with directions resulted in an incomplete case, preventing the respondent from responding effectively. As a result, the Appeal Board concluded that the appellant had not met the onus on him to diligently pursue his case, resulting in an injustice to the respondent. The appeal was dismissed the appeal under s 27(1) of the Industrial Relations Act 1979 (WA).

The decision can be read here.

The Commission found that references to 'continuous service' for casual employees mean a period of unbroken service to an employer.

The matter concerned the interpretation of long service leave (LSL) clauses in two industrial agreements covering Western Australian health system employees: the Enrolled Nurses Agreement and the Hospital Support Workers Agreement. Clause 44 of the Enrolled Nurses Agreement and clause 39A of the Hospital Support Workers Agreement pertain to long service leave for casual employees, providing 13 weeks' paid leave after 10 years of continuous service, with additional leave for subsequent periods of seven years.

The applicant sought a declaration from the Commission regarding the true interpretation of the casual LSL clauses under section 46 of the Industrial Relations Act 1979 (WA). The applicant contended that 'continuous service' includes all qualifying service with the employer before the registration of the industrial agreements. In contrast, the respondent argued that 'continuous service' should only encompass service provided from the date the entitlement first appeared in an industrial instrument applicable to the casual employees.

The Commission found the casual LSL clauses to be ambiguous, emphasising that a reasonable person reading them would interpret continuous service as unbroken service to an employer for calculating long service leave entitlement. The Commission issued declarations clarifying that in both agreements, references to 'continuous service' mean a period of unbroken service to an employer by an employee.

In summary, the Commission resolved the dispute by affirming the ordinary and common-sense meaning of 'continuous service' in the context of calculating long service leave entitlements for casual employees under the respective industrial agreements.

The decision can be read here.

The Public Service Appeal Board dismissed the appellant's appeal, citing the inconsistency of pursuing the appeal with a prior Settlement Agreement and expressing concern about the potential effect on employer settlement discussions.

The appellant, employed as an Executive Officer Level 5 by the Department of Communities, faced disciplinary action initiated by the Acting Assistant Director General on 9 February 2022. The allegations involved breaches of the Code of Conduct, specifically related to misleading information in recruitment processes and inappropriate use of emails. Displeased with the Department's decision, the appellant appealed to the Appeal Board on 3 July 2022. Concurrently, she sought orders from the Commission to address bullying conduct under the Industrial Relations Act 1979 (WA).

However, on 20 April 2023, the Commission dismissed the appellant's application for stop bullying orders. The Department contended that the appeal should be dismissed as the appellant had allegedly agreed, as part of a Settlement Agreement, to discontinue the appeal under s 51BM of the Act. The appellant, on the other hand, argued that the Department failed to fulfill its commitment to finding her a suitable position within a specified timeframe.

The Appeal Board, upon evaluating the situation, found that the terms of the Settlement Agreement implied an agreement to dismiss the appeal by consent. Additionally, the Appeal Board noted that continuing the appeal contradicted the agreement's provision that disciplinary findings and reprimands would remain in place. The Appeal Board considered the appellant's pursuit of the appeal inconsistent with the Act, emphasising that the matter had been settled by agreement.

Furthermore, the Appeal Board considered that allowing the appeal to proceed after a settlement would set a precedent, effecting employers engaging in settlement discussions. The dismissal of the appeal under s 27(1)(a) of the Act was based on the Appeal Board's conclusion that, in light of the settled resolution and the absence of exceptional reasons, it would not be justifiable or equitable for the appellant to seek a review of the employer's decision.

The decision can be read here.

Discovery of the applicant’s family court documents was ordered because it was deemed relevant to the claims, specifically in assessing the respondent’s allegations of deceit and gaining an advantage, and not considered oppressive.

The applicant filed an unfair dismissal application and denied contractual benefit claim against his former employer, the respondent. The hearing for these claims was scheduled for 15 and 16 November 2023. On 3 November 2023, the respondent filed an application requesting discovery of "Remuneration Documents," specifically those related to the applicant’s divorce and family law proceedings. The respondent argued that these documents were relevant to the issues in the proceedings, particularly to the applicant’s credibility and his motivation for the Pay Banking Arrangement, a matter under contention.

The respondent contended that the applicant voluntarily raised his divorce proceedings during the disciplinary process leading to his dismissal, and this disclosure might explain his motivation for the Pay Banking Arrangement. The respondent asserted that the family court disclosures could be relevant to the appropriateness of reinstatement and whether the applicant deliberately misled the respondent. On the other hand, the applicant opposed the discovery request, arguing that the family court disclosures were irrelevant to the claims and were an invasion of his privacy. He emphasised that his motive for entering the Pay Banking Arrangement was not necessary to establish serious misconduct.

Commissioner Tsang determined that an order for discovery should be made under section 27(1)(o) of the Industrial Relations Act 1979 (WA). Commissioner Tsang found the family court disclosures relevant to the claims, particularly in assessing the respondent’s allegations of deceit and gaining an advantage. Commissioner Tsang deemed the order for discovery not oppressive, noting that the parties agreed it would not delay the upcoming hearing and that any confidential information in the documents could be redacted.

The decision can be read here.

The Commission in Court Session granted the amendment of CICS 5 of 2023, allowing the consolidation of applications CICS 5 of 2023 and CICS 9 of 2023, emphasising efficiency in addressing the broader issue of the capacity to represent industrial interests across local government enterprises.

The applicant sought orders under s 72A of the Industrial Relations Act 1979 (WA) asserting its exclusive right to represent the industrial interests of employees in the outside workforce at the City of Rockingham. Alternatively, the applicant sought orders confirming that the respondent did not possess such rights. The respondent, in response, filed CICS 8 of 2023, seeking orders to represent employees as carpenters, painters, and plant operators if it were determined that they lacked the right to represent them in the main application.

The Commission in Court Session, recognising the commonality of issues, ordered the consolidation of CICS 5 of 2023 and CICS 8 of 2023, with the Local Government, Cemeteries, and Racecourse Employees Union granted leave to intervene. Later, the applicant filed CICS 9 of 2023, extending the scope to 145 local government bodies statewide, maintaining the same orders but with different supporting grounds.

The applicant subsequently applied to amend CICS 5 of 2023 to align with the terms of CICS 9 of 2023 and sought to join and hear both applications together. The intervenor supported the amendment, while the respondent opposed it, arguing it amounted to an abuse of process. The central question was whether the amendment, combining the two applications, would expedite the proceedings and serve the objectives of the Act.

The Commission in Court Session, considering the broad discretion under s 72A, granted the amendment, emphasising that the real controversy involved the respondent's capacity to represent industrial interests broadly. The decision aimed at efficiency, avoiding separate hearings, and expeditiously addressing the broader issue of the respondent's representative role in local government enterprises. The Commission vacated existing directions and ordered the joined hearing of CICS 5 of 2023 and CICS 9 of 2023, finding this approach preferable in terms of time, resources, and overall resolution of the dispute.

The decision can be read here.