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B 78/2022 – Nivritee Ah Fong -v- The University Child Care Club Inc.

The Commission dismissed the applicant’s claim that she was entitled to payment for pro rata long service leave for the period following her first 10 years of service from her employer.

The claim was dismissed because the Commission found that there was no such entitlement in the applicant’s contract of employment and the entitlement to long service leave is only triggered, under the employer’s policy once an employee has completed a period of 10 years’ continuous service.


The applicant worked as an early childhood educator with the respondent for a continuous period of 13 years and 264 days before resigning. The respondent satisfied the applicant’s entitlement to long service leave accrued for the first 10 years of her employment, by allowing her to take a portion of that long service leave and paying out the value of the balance of the accrued leave when she resigned. Regarding the final 3 years and 264 days of service, she had a pro‑rata balance of 4.84 weeks or 138.77 hours of long service leave with a monetary value of $4,658.47.


The applicant claimed she was entitled to payment for pro rata long service leave for the period following her first 10 years of service, being the period from 20 June 2017 to 10 March 2021.

The respondent contended that under its Long Service Leave Policy, and therefore the employment contract, long service leave for the second period is only paid out if the ‘subsequent period’ referred to in the policy has accrued in full. That is, the applicant only has an entitlement for the second period if she works for the respondent for another complete period of 10 years.

The respondent relied on the following paragraph from its Policy:

An employee who resigns or whose appointment is terminated for any reason shall be paid the monetary equivalent of any long service leave entitlement accrued.

The applicant submitted that the paragraph’s meaning was not immediately apparent or clear on its own. She maintained it was ambiguous, and capable of having more than one meaning.


The Commission dismissed the claim because the applicant had not been denied an entitlement under her contract of employment.

The applicant’s claimed entitlement to payment in lieu of taking leave must be found in the terms of her employment contract, via the Policy. Thus, resolving the claim involved determining the correct meaning of the Policy.

Considering the Policy structure and Policy as a whole, the Commission determined that the entitlement to take 13 weeks of long service leave on full pay (and pro rata for part‑time employees) under the Policy was triggered only after an employee had completed a period of 10 years’ continuous service. There was no entitlement to take long service leave before a 10‑year qualifying period of continuous service was completed. When the Policy used the word ‘accrued’ in these paragraphs, it was referring to an entitlement to take leave that has become due upon the completion of 10 years of continuous service but has not yet been received.

The applicant’s second period of service of 3 years and 264 days, being less than 10 years of continuous service, was insufficient to qualify her for an entitlement to take long service leave. She did not have a long service leave entitlement accrued.

The decision can be read here.

PSAB 67/2022 – Katica (Kathleen) Speciale -v- East Metropolitan Health Service

The Public Service Appeal Board dismissed the appellant’s application to extend the time to appeal against the decision to terminate her employment, for not being vaccinated against COVID-19 or having a current exemption.

The Public Service Appeal Board found that the appellant had not adequately explained the reasons for the delay, which was significant, and the appeal, if it was granted, lacked any prospect of success because the appeal grounds were not supported by precedent or substantiated by any admissible evidence.


The appellant was employed by the East Metropolitan Health Service as an Administrative Assistant in Royal Perth Hospital’s Neurology Department. On 3 October 2022, she was notified her employment was terminated, effective 28 October 2022. The termination reason stated that she had failed to comply with a direction to provide her employer with evidence that she had been vaccinated against COVID‑19 or had a current exemption.

The appellant filed an appeal to the Appeal Board against the termination decision on 25 November 2022. Under reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA), an appeal must be filed within 21 days after the date of the decision appealed against, which in this case was 25 October 2022. Therefore, the appeal was out of time.


The appellant applied for an extension of the time to appeal, under s 27(1)(n) of the Industrial Relations Act 1979 (WA).

The factors considered when determining whether an appeal should be accepted out of time include:

  1. the length of the delay;
  2. the reasons for the delay;
  3. the prospect of the applicant succeeding in the appeal; and
  4. the extent of any prejudice to the respondent.

The reasons for the delay

The appellant gave evidence about the circumstances which led to the delay in filing her appeal. The appellant originally filed her appeal with the Fair Work Commission on 18 November 2022. After communication with the Fair Work Commission and the Commission, she filed her appeal in the latter. She stated that the last two years have been difficult for her, economically, emotionally and socially and that these hardships generally explain why she lodged her application in the wrong jurisdiction.

The prospect of the applicant succeeding in the appeal

Regarding her prospects of succeeding, the appellant stated the following grounds for establishing the termination was harsh, unjust or unreasonable:

  1. that the employer’s policy and direction requiring her to be vaccinated against COVID‑19 or to provide evidence of an exemption were unreasonable because they were an intrusion on her right to bodily integrity;
  2. that the direction to be vaccinated or provide evidence of an exemption was unreasonable because it involved mandating a medical procedure that was potentially dangerous with unknown health consequences from experimental, toxic, inherently dangerous and ineffective vaccinations;
  3. that she was unable to comply with the policy/direction because she could not give informed consent to being vaccinated; she attended a pharmacy on 27 October 2022 for the purpose of being vaccinated, but told the injecting practitioner that she was there only “under a sacking threat”; the practitioner refused to administer the injection because, in such circumstances, the appellant had not provided informed consent; and
  4. that the mandates were going to be rescinded on 4 November 2022 and the termination decision was made with such knowledge, alleged to be supported by an email from the respondent’s Executive Director, People and Culture and Capability on 9 November 2022.


The Appeal Board dismissed the appeal because, on balance, the reasons for the delay were not adequately explained. However, in any event, the appeal’s lack of prospects of success meant an extension of time should not be granted.

The length of the delay

The filing of the appellant’s appeal was delayed by one month, which was significant and weighed against the grant of an extension of time.

The reasons for the delay

Noting that the appellant recorded her intention to litigate any decision to terminate her employment as early as 23 September 2022, the Appeal Board held that the appellant had not established that there were good reasons for her not appealing within the time specified in the legislation.

Although the appellant originally filed in the wrong jurisdiction on 18 November 2022, she was already out of time to file an appeal in the Commission. Further, while the appellant vaguely referred to hardships, she did not point to any particular circumstances which prevented her from lodging the appeal within time. Further, the Appeal Board found that she did not take reasonable steps to ascertain her appeal rights in a timely way.

The prospect of the applicant succeeding in the appeal

Regarding the first ground, that the policy was an intrusion on bodily autonomy, the Appeal Board found that it had no prospect of succeeding. Such a finding was made in accordance with precedent, that an employer’s direction requiring employees to be vaccinated against COVID‑19 did not directly infringe the right of bodily integrity because it did not purport to authorise involuntary vaccination or any act that interfered with employees’ body without their consent.

The second ground was not fairly arguable because it was based on assertions that were not substantiated by any admissible evidence. The appellant referred to her understanding and summary of the views of various individuals whose qualifications and expertise are not established.

The third ground was also without any prospect of success. The social and economic pressure on employees is not coercion, vitiating consent. The choice remains the choice of the employee.

Finally, ground four had no prospect of success because the appellant was unable to identify any proper basis for a conclusion that the respondent knew about the revocation of vaccination mandates, before the termination decision was made, or before the decision took effect.

The extent of any prejudice to the respondent

The Appeal Board was able to infer prejudice for the respondent from the length of delay.

The appeal was dismissed.  The decision can be read here.

IAC 2/2022– Alexander Byers -v- The Director General, Department of Justice

The Industrial Appeal Court dismissed a prison officer’s appeal against the decision of the majority of the Commission for want of jurisdiction.

The majority of the Commission dismissed the prison officer’s appeal against his employer’s removal action on the ground that was harsh, oppressive or unfair. This decision did not enliven the Industrial Appeal Court’s jurisdiction to hear an appeal of a decision from the Commission, under s 110E of the Prisons Act 1981 (WA), that removal action was harsh, oppressive or unfair.


The appellant was a prison officer, employed by the respondent under s 13(2) of the Prisons Act, from April 2000 until July 2021. The appellant was dismissed after testing positive for cannabis, during a random drug test at Hakea Prison on 11 August 2020.

The appellant appealed to the Commission pursuant to s 106(1) of the Prisons Act, on the ground that the removal decision was harsh, oppressive or unfair.

On 6 May 2022, the Commission, by majority, comprising Chief Commissioner Kenner and Commissioner Emmanuel, dismissed the appeal. Senior Commissioner Cosentino delivered separate reasons, in which she found that the removal decision was unfair.


The appellant appealed to the Industrial Appeal Court on the ground that the majority of the Commission erred in law:

  1. in deciding that the true meaning of reg 38(2) of the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 (WA) had the effect of requiring the respondent to take removal action; and
  2. by concluding that s 107(1)(a) of the Prisons Act does not require the Commission to consider all of the reasons for the removal decision.

The appellant contended that, in the circumstances of this case, where one of the Commission members who heard the appeal has decided that the decision to take removal action relating to the appellant was harsh, oppressive or unfair, s 110E is enlivened, which in turn enlivens the jurisdiction of the Court to hear an appeal under s 90 of the Industrial Relations Act.

The respondent filed a notice of motion seeking an order that the appeal be dismissed for want of jurisdiction. This was contended on the basis that the Court does not have jurisdiction to hear an appeal from a decision of the Commission under s 110B of the Prisons Act read with s 90 of the Industrial Relations Act on the ground that the majority of the Commission erred in deciding that the removal decision was not harsh, oppressive or unfair.


The Court dismissed the appeal for want of jurisdiction.

The Court only has jurisdiction to hear an appeal if the Commission has made a 'decision', under s 110E of the Prisons Act, that the removal decision was harsh, oppressive or unfair.

However, no appeal can lie against 'reasons for decision' of the Commission or a member of the Commission given in any proceeding. Section 35(1) of the Industrial Relations Act distinguishes a decision from reasons for decision.

The reasons for decision of the Senior Commissioner do not constitute a decision within the meaning of s 35 or s 90(1), as modified, of the Industrial Relations Act.  Absent a decision that reflects the Senior Commissioner's reasons, the appellant's right of an appeal to this Court is not enlivened.

The decision can be read here.

OSHT 9/2021 - Ramsay Health Care Australia Pty Ltd -v- Worksafe Western Australia

Improvement notice issued by Worksafe Western Australia, and the subsequent decision of the WorkSafe Commissioner affirming the notice, revoked and ceased to have effect.

The Tribunal revoked an improvement notice issued to the applicant by the respondent for breaching s 19(1) of the Occupational Safety and Health Act 1984, requiring the applicant to implement the use of body-worn cameras, because the applicant provided information, demonstrating that extensive measures were being taken to control the risk identified in the notice and the respondent supported the revocation.


The respondent issued an improvement notice to the applicant because a WorkSafe Inspector formed the opinion that the applicant’s security and emergency department staff were exposed to the risk of occupational violence and aggression, breaching s 19(1) of the OSH Act. The respondent directed that the applicant requires individuals or staff to wear body-worn cameras to reduce the identified risk.

The applicant applied to the WorkSafe Commissioner for a review of the improvement notice, which the WorkSafe Commissioner subsequently affirmed.

The applicant then applied to the Occupation Safety and Health Tribunal for a review of the WorkSafe Commissioner’s decision.


The applicant contended that it had not breached s 19(1) of the OSH Act. The applicant submitted information about the controls, policies, and operating procedures in place to ensure safety and mitigate risk against occupational violence and aggression within the Emergency Department. Such measures comprise five pillars: training, communication and management, engineering controls, the security personnel presence and the use of the security personnel within the Emergency Department, and CCTV coverage.

Further, the applicant contended that the introduction of body-worn cameras is not an effective control measure of the risk identified by the improvement notice. Instead, body-worn cameras have insufficient evidence relating to their effectiveness as a control measure, would be a speculative trial control measure and would introduce additional risks, such as privacy issues.

Thus, it is not appropriate nor necessary to introduce body-worn cameras, the applicant contended.

The respondent contended that the improvement notice itself addressed the entirety of the control measures and the safety practices at the applicant’s site and identified a number of key issues other than the use of body-worn cameras. However, the respondent submitted that, based on the evidence that the applicant provided to the Tribunal, it supports the revocation of the improvement notice.


The Tribunal revoked the decision of the WorkSafe Commissioner and improvement notice, with both ceasing to have effect. This decision was based on the applicant’s evidence and the respondent’s submission.

The decision can be read here.

New Maximum Salary Level for Lodging Certain Claims

The maximum salary level for lodging certain claims has been increased. As of 1 July 2023, an employee whose contract of employment provides for a salary greater than $187,800.00 cannot have the Commission decide whether they have been unfairly dismissed or have been denied a benefit to which they are entitled under their contract of employment.

The previous maximum salary level was $181,400.00.

Please see our Resources page for more information.

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