The Public Service Appeal Board (Board) has made directions confining the scope of evidence to be lead in a matter on foot, considering the nature of evidence that should be considered by the Board.

Background

The appellant brought an appeal under s 78 of the Public Sector Management Act 1994 (WA)  and s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (Act), against the decision to terminate her employment.

Broadly, the appellant contends that the dismissal was harsh, oppressive, and unfair because she was given no opportunity to address the decision maker on penalty; the alleged findings of misconduct against her were factually wrong; and if the procedural requirements for taking leave were not met by her, then this failing was condoned by her employer over a long period of time.

Pursuant to programming orders made by the Board, ahead of the Appeal, the appellant filed witness outlines for four witnesses. The respondent applied for orders upholding objections to various parts of the evidence to be led by the appellant, as foreshadowed by the witness outlines.

Contentions

The parties accepted that the evidence must be relevant to the issues in the proceedings. The appellant contended that the evidence sought be adduced is relevant. The respondent submitted that the evidence was not capable of affecting the assessment of the probability of the existence of facts or other issues on the appeal, and as such, is not relevant.

Findings

The Board noted that under ss 80L and 26(1)(b) of the Act, the Board was not bound by the strict rules of evidence. The Board noted, however, that not all evidence should be tendered without limitations, and that the Board should only act on material that is logically probative, but also relevant to the proceedings.

The Board reiterated an appeal of this type involved a review of the respondent’s decision de novo, and that the Board is not confined to considering whether the respondent made the right decision at that time, but rather has a broader scope to consider the appeal based on the evidence.

The Board noted that this hearing would be a ‘re‑trial of the misconduct allegations during which the appellant will have a fulsome opportunity to be heard’, meaning that any procedural issues in the initial disciplinary process would not be relevant.

The Board, noting that no decision had been made on the admissibility of any evidence, made directions that clarified the scope of evidence that may be adduced in the appeal on foot. The application was upheld in part.

The decision can be read here.

The Commission has dismissed an application for denial of contractual benefits, where the parties had earlier resolved the matter by a mutual settlement agreement in a separate application brought before the Commission.

Background

The applicant worked for the respondent as an administrative assistant and provisional psychologist  over the course of two years, as both an employee and independent contractor. The applicant brought an unfair dismissal claim under s 29A(1)(a)(i) of the Industrial Relations Act 1979 (WA), which was resolved by agreement following a conciliation conference.

The settlement agreement provided that the respondent would pay the applicant $7,500 gross, in addition to superannuation. The parties agreed to ‘transitional arrangements’ to allow the applicant to access her emails and inform her clients of her separation from the respondent. The parties also agreed to a ‘mutual release and a bar to further proceedings arising out of the employment and contracting relationship’. 

Contentions

The applicant brought a separate denial of contractual benefits claim under s 29A(1)(a)(ii) of the Act, and sought to recover ‘backpay still owing’, additional superannuation, as well as wages for work completed during the transitional period following settlement.

Findings

The Commission considered that while the applicant may not have intended to release the respondent from payment for her services in the transitional period, that the wording of the settlement agreement expressly barred all further claims in relation to the employment, which included the transitional period. The Commission reiterated that it is not in the public interest for the matter to proceed where the issues had previously been settled by agreement, particularly where the matter was resolved under the Commission’s dispute resolution processes.

The Commission also noted that after the settlement, the respondent had paid the applicant additional sums that exceeded the applicant’s claim for wages. The Commission found that even if the settlement agreement did not bar further claims, that the applicant had been paid in relation to the performance of services during the transitional period, and that claim was trivial.

The application was dismissed.

The decision can be read here.

The Commission has found that a hospitality employer was in breach of the terms of its employment contract when it unilaterally varied the salary of its General Manager due to COVID-19 closures.

Background

The applicant was employed as the General Manager of the Respondent, a hospitality venue, from August 2019. The applicant’s contract provided for a salary of $110,000 per annum.

In March 2020, the respondent closed its operations in response to State Government COVID-19 restrictions. The applicant was notified that he would be stood down in accordance with s 524 of the Fair Work Act and the terms of his contract of employment, however continued to perform various tasks and was paid full rates.

In April 2020, the respondent notified the applicant that his hours and salary would be reduced. From 30 June 2020-12 October 2020, the applicant’s salary was reduced to 80%. The applicant resigned from his employment, and his full salary was restored from 13 October until his resignation took effect.

Contentions

The applicant claimed that he did not agree to the reduction in his salary, and that the terms of his contract; s 524 of the FW Act; nor the JobKeeper Enabling Stand Down Directions authorised the reduction.

The respondent contended that the FW Act, JobKeeper scheme and the contract of employment authorised the reduction in salary. In the alternate, the respondent submitted that the applicant agreed to vary his contract to reduce his salary.

Findings

The Commission, applying the principles in Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 00034 (confirmed by the Industrial Appeal Court in Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 01173), noted that where a salary is expressed as an annual rate, a variation in hours does not result in a change in remuneration. The Commission found that terms of the applicant’s contract provided for an annual salary, and accordingly did not authorise a reduction in remuneration.

The Commission noted that under s 524(2)(b) of FW Act, where an employment contract provides for an employer to stand down an employee because the employee cannot usefully be employed, then the power to stand down under s 524(1)(c) cannot be relied upon. As the applicant’s employment contract contemplated stand down provisions, the terms of the contract were to apply, and the respondent could not rely on s 524 to stand the applicant down.

The Commission noted that while JobKeeper Enabling Directions contemplated Stand Down Directions, that the respondent had failed to comply with the relevant consultation obligations.

The Commission reiterated that a reduction in remuneration is a fundamental term of an employment contract, and that the evidence provided by the respondent was not sufficient to evince an intention that the applicant had consented to the variation of the contract.

The Commission found in favour of the applicant and ordered the respondent pay $9,427.96 of the applicant’s salary that had been denied.

The decision can be read here.

The Commission has found that a Principal Legal Officer (applicant) who was selected for redundancy to be entitled to compensation for loss. The Commission held that while the dismissal was a case of genuine redundancy, that the employer (respondent) had not provided meaningful consultation with the applicant, and that the applicant was overlooked for redeployment, rendering the dismissal unfair.

Background

The respondent’s primary purpose was the pursuit and resolution of native title claims. The applicant was employed as a Senior Lawyer with the respondent from 2001 until 2007, and later re-employed in 2017. In 2019, the applicant was appointed to the position of Principal Legal Officer.

In June 2021, because of the settlement of the native title claims, the applicant’s position was made redundant. The applicant brought a claim challenging the termination of employment and seeking to be reinstated.

Contentions

The application was brought on three main grounds, being that:

• There was no genuine redundancy as there remained a significant amount of legal work to be performed for the foreseeable future;
• There was a failure to properly consult; and
• The applicant's selection for redundancy while another lawyer was retained was not appropriate.

Findings

The Commission held that the restructuring of the legal team was in response to a true assessment of the respondent’s business needs, and the redundancy was genuine. The Commission reiterated, however, that even in instances of a genuine redundancy, a decision to terminate employment may still be harsh, unjust, or unreasonable.

The Commission determined that the failure of the respondent to inform the applicant that one legal role would be retained, deprived the applicant of a fair opportunity to make a case in relation to redeployment. As such, there was no meaningful consultation in the process of redundancy, and the dismissal was unfair.

The Commission further held that the preference of the respondent to retain a fixed-term employee, over the applicant, was contrary to the principle that permanent employees can have a degree of expectation of ongoing employment. The Commission noted that the conscious decision of the respondent to preference the applicant for redundancy, on the grounds that the fixed term employee would not be eligible for a redundancy entitlement, could, in some circumstances, constitute a form of discrimination against the applicant based on his workplace right. The Commission also considered that the terms of the respondent’s industrial agreement contained clauses regarding the retention of mature age workers, and that the respondent should have considered this.

The Commission held that reinstatement was not practicable, given that the termination of employment was the result of a genuine redundancy, and found that the applicant should be compensated.

The decision can be read here.

In response to the current COVID-19 outbreak in Western Australia, the Commission in Court Session has issued an order reinstating provision of the 2020 COVID-19 General Order, pertaining to the taking of unpaid leave, with amendments to reflect the changed isolation requirements.

2020 COVID-19 General Order

In April 2020, the Commission in Court Session issued the COVID-19 Flexible Leave Arrangements General Order under s 50 of the Industrial Relations Act 1979 (WA).  The 2020 General Order contained provisions for unpaid pandemic leave, as well as provisions for the taking of annual leave at half pay. The 2020 General Order ceased to have effect on 31 March 2021.

Current application

On 2 March 2022, in anticipation of increasing COVID-19 cases in WA, the Hon Minister for Industrial Relations made an application for a new General Order to apply to private sector employees. The Minister sought to reinstate the unpaid pandemic leave provisions contained in the 2020 General Order. The reasons for the minister’s application included:

• Seeking to address the regulatory gap for private sector State system employees who are required to isolate due to COVID-19 and may lack access to suitable leave entitlements
• Supporting public health objectives
• Providing clarity for many employers, and protection for employee entitlements; and
• To be consistent with the entitlement to unpaid pandemic leave for national system employees covered by certain modern awards.

The Minister proposed amendments to the provisions of the 2020 General Order, the effect of which enables an employee to take up to two weeks’ unpaid pandemic leave, as a cumulative entitlement, over more than one period, subject to the total period of unpaid pandemic leave taken not exceeding two weeks. An amendment was also made to make it clear that the leave available under the proposed General Order is ‘unpaid pandemic leave’.

Findings

The Commission in Court Session considered that reinstatement of the provisions with amendments were consistent with the objects of the Act. A General Order was issued in the manner proposed by the Minister. The General Order will operate until 30 September 2022 and may be extended on application by a party or at the Commission’s initiative.

The decision can be read here.

The General Order can be read here.