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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.

Commission Lacks Jurisdiction to Hear Application: Provision for Appeal in Another Act

The respondent applied for the dismissal of the proceedings in this matter under the Industrial Relations Act 1979 (WA). The respondent argued that the Commission lacked the power to regulate dismissal in the employment of TAFE lecturers due to the operation of specific sections of the IR Act when read with the Public Sector Management Act 1994 (WA).

In the substantive matter, the applicant filed a Form 1B, seeking a conference related to an unfair dismissal of Mr Whitehurst by the respondent. In reply, the respondent stated that the Commission lacked the power to hear the matter, and Mr Whitehurst could refer the dismissal decision to the Commission under the PSM Act.

The core issue was whether s 23(3)(d) of the IR Act, which limits the Commission’s jurisdiction if there is provision for an appeal in the other Act, applies to s 78(2) of the PSM Act. The applicant denied such a provision, emphasising the distinction between ‘appeal’ and ‘referral’ and citing legislative history. The respondent contended that the words ‘however expressed’ in s 23(3)(d) encompass a broader meaning than ‘appeal’ in other IR Act provisions.

After considering the legislative history, definitions, and purpose of the relevant sections, Commissioner Tsang concluded that s 23(3)(d) applied. Thus, the Commission lacked jurisdiction to hear the applicant’s application. The decision rested on the expansive meaning of ‘appeal’ and the intention to leave review matters under the PSM Act within its limits. Consequently, Commissioner Tsang dismissed the application for want of jurisdiction.

The decision can be read here.

Contractual Benefit Claim Dismissed: Abuse of Process and Issue Estoppel

The applicant was required to show cause at a hearing as to why her claim should not be dismissed under section 27(1)(a) of the Industrial Relations Act 1979 (WA). This section allows the Commission to dismiss a matter if it deems it trivial, unnecessary, not in the public interest, lacking sufficient interest from the person who referred the matter, or for any other valid reason. Earlier directions listed issues, including the Commission’s jurisdiction to hear her contractual benefit claim and whether the matter should be dismissed for reasons such as estoppel or abuse of process.

The background revealed that the parties had a business relationship that ended, leading to a dispute over commissions and other amounts. Commissioner Yilmaz of the Fair Work Commission previously determined that the parties’ relationship was a business partnership, not an employment relationship. Thus, the applicant’s claim fell outside the FWC’s jurisdiction. Despite a settlement agreement reached at a conciliation conference, the applicant initiated proceedings in the Western Australian Industrial Relations Commission.

During the hearing, the applicant asserted that she understood she could sue the respondent if certain arrangements were not followed and claimed she lacked the financial means to pursue the matter in court. Commissioner Tsang found that the applicant was attempting to re-litigate her employment status, which the FWC had already determined, and that her actions amounted to an abuse of process. Additionally, issue estoppel prevented her from arguing that she was an employee. Commissioner Tsang concluded that the applicant should have pursued the matter in the Magistrates Court, a more appropriate forum, and dismissed her claim under section 27(1)(a) of the Act.

The decision can be read here.

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