The Full Bench has held that compensation awarded to an employee in an unfair dismissal application should be reduced. The Full Bench found that the incorrect award was made in the calculation of entitlements in the first instance, and that the distress experienced by the employee was not beyond that which can be attributed to most dismissals.

Background

The respondent was employed as a kennel hand at the appellant’s business and was responsible for the care of the dogs at the kennel. On 3 February 2020, the appellant dismissed the respondent.

First instance

The respondent commenced unfair dismissal proceedings in the Commission. The appellant did not appear before the Commission at the first instance hearing, having previously been granted multiple extensions of time and adjournments. The learned Commissioner found in favour of the respondent and awarded compensation for loss and injury in the sum of $9,438.89. The appellant appealed the decision to the Full Bench.

Appeal

The appellant appealed the matter on three main grounds, being:

• The finding of the Commission that the Respondent was unfairly dismissed was incorrect on the evidence;
• The finding of the Commission that the Respondent’s position was a Level 2 position covered by the Animal Welfare Industry Award (Award) was incorrect at law; and
• The award of compensation for distress in the decision was not supported by the weight of the evidence.

The appellant submitted that new evidence should be considered by the Full Bench, given that he was unable to participate in the first instance hearing.

The respondent contended that the evidence was not new, was available to the appellant before the first instance hearing. The respondent contended that, even if the new evidence were admitted, a finding that the respondent was unfairly dismissed would still have followed.

Findings

The Full Bench, referring to the test in Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437, held that the appellant had not made out grounds for the application to tender new evidence to succeed. The Full Bench held that, on the evidence available to the learned Commissioner, that it was open to her to find that the respondent had been unfairly dismissed.

The Full Bench considered that the Award did not apply to the respondent, finding that any entitlements were to be calculated at the respondent’s rate of pay being $23.59 per hour.

While the Full Bench noted the unsavoury, rude, and threatening conduct of the appellant post-dismissal, the Full Bench was not persuaded that the impact or injury of the dismissal suffered by the respondent, was beyond the level that could be attributed to most dismissals.

The Full Bench upheld the appeal in part. The Full Bench ordered that the order of compensation be varied by calculating the respondent’s compensation for loss of five weeks, plus two weeks’ notice, based on 36.3 hours per week at the rate of $23.59 per hour, with no award of compensation for injury.

The decision can be read here.

The Commission has dismissed the appeal of a prison officer who returned a positive result for methamphetamine and amphetamine while on duty.

Background

The appellant was engaged as a prison officer. On 18 July 2020, whilst on duty, the appellant was the subject of a targeted drug test, which returned a presumptive positive result for methamphetamine and amphetamine.

The appellant was provided an opportunity to explain the presumptive positive test result. The appellant denied that he deliberately ingested methamphetamine or amphetamine, however admitted to being in the presence of a person who he suspected had been smoking methamphetamine.

A toxicology report indicated that the appellant ingested methamphetamine, estimated between 24 and 48 hours prior to the specimen being collected.  The toxicology report concluded that the test result was not consistent with environmental or passive exposure to methamphetamine, nor with medications the appellant said he was taking at the time. The report stated that the level of impairment of executive function of the appellant would be significant. 

The appellant was removed as a prison officer, and appealed against his removal under s 106 of the Prisons Act 1981 (WA).

Contentions

The respondent’s grounds for loss of confidence in the officer were outlined broadly, as:

1. There was inconsistency between the appellant’s explanation of why he tested positive and the toxicology report, causing the respondent to form the view that the appellant was using illicit drugs
2. There was inconsistency between the appellant’s explanation of why he tested positive and the toxicology report, causing the respondent to form the view that the appellant had been dishonest in explaining the results.
3. The appellant admitted to socialising with associates who he believed to use illicit drugs
4. The appellant demonstrated a highly dismissive attitude towards the association with drug users.

The appellant contended that his removal was harsh and unfair because the drug testing was performed incorrectly and with less scrutiny in comparison to drug testing conducted on a prisoner. The appellant contended that the respondent erroneously made assumptions about his lifestyle and that his name has been ‘slandered’. The appellant denied that he engaged in a lifestyle linked to illicit drug usage and possession, and referred to the impact of his removal on himself and his family.

Findings

The Commission outlined that the relevant test to be applied in these proceedings was to be the approach that is also adopted by the Commission to appeals against removals of Police Officers under the Police Act 1982 (WA). This being that ‘having regard to the circumstances of a particular case, and in the overall context of whether a removal is harsh, oppressive or unfair, it was open to the Chief Executive Officer to lose confidence in a prison officer by reason of their integrity, honesty, competence, performance, or conduct’. [21]

The Commission was not persuaded that the testing procedures were unfair or non-compliant with the relevant Australian Standard, and that it was reasonable for the respondent to rely upon these test results.

The Commission found that, given the inconsistencies between the appellant’s interview and toxicology reports, that it was open to the respondent to conclude that the appellant was not being honest.

The Commission acknowledged the impact that a removal from the prison service may have on the officer and officer’s family, but noted that Commission is required to have regard to the public interest, in particular the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of prison officers.

The Commission held that the appellant did not establish that his removal was harsh, oppressive or unfair, and that it was open to the respondent to lose confidence in the appellant. The appeal was dismissed.

The decision can be read here.

The Industrial Magistrate’s Court has ordered an employer to pay a severance payment to its previous Chief Executive Officer (CEO), finding that the termination of his employment constituted a redundancy. 

Background 

The claimant was employed as a CEO of the respondent’s steel product manufacturing business, Combined Metal Industries (CMI), from 1 June 2015. On 23 March 2020, the respondent terminated the claimant’s employment with CMI. 

On 23 March 2020, the respondent advised the claimant that the business could no longer afford the claimant’s remuneration, and if he would not accept a reduction in remuneration, his employment would be terminated. The claimant indicated that he did not wish to resign, but nor would he accept a reduction in pay. A letter terminating the claimant’s employment was sent the same day.

 The managing partner of the respondent took over the claimant’s duties, with some assistance from an outside consultancy, however no person held the title of CEO until August 2021. 

Contentions 

The claimant brought a claim in the Industrial Magistrate’s Court for the sum of $38,461.54 in severance pay, on the ground that the termination of the employment was a redundancy. 

The respondent submitted that, as part of the claimant’s role continued to be performed by another employee after his departure, that the respondent showed an intention to have the role of CEO continue, and that it was not liable to pay a redundancy payment. 

Findings 

Her Honour, Industrial Magistrate O’Donnell, held that the fact that the respondent offered to pay the claimant a lower salary did not mean that the termination of his employment, when he declined the lower remuneration, was not due to redundancy. Her Honour further held that the respondent’s ‘wish’ for the role to continue, did not prevent the termination of employment constituting a redundancy.

Her Honour found that demonstrating that parts of the claimant’s job were being performed by other employees within the employer’s business, was not sufficient to avoid an obligation to pay severance pay.  Rather, an issue was whether there were any duties left for the employee to perform.

Her Honour noted that the claimant, at the meeting on 23 March, had requested a salary proposal. Her Honour considered that the failure by the respondent to provide the claimant with a salary proposal, indicated that the respondent had decided that it no longer wished the role of CEO to be performed by anyone.

Her Honour noted that there was doubt as to whether the respondent properly complied with any consultation obligations before terminating the claimant’s employment.  However, noting that the claim had not been brought on this basis, her Honour made no finding on this issue.

Her Honour found that the termination of the claimant’s employment was a redundancy, and that the respondent was liable to pay severance pay to the claimant.

The decision can be read here.

The Police Compensation Tribunal (Tribunal) was established under the Police Act 1892 (Police Act) on 1 January 2022.  Applications can now be made to the Tribunal by eligible applicants. 

The Tribunal deals with certain disputes about determinations made by an approved medical specialist or assessor of a medically retired member’s entitlement to compensation resulting from a work-related injury or illness. 

The Police Act gives the Tribunal the authority to deal with disputes about the following determinations:

• the degree of permanent impairment;
• failure to qualify for compensation for permanent total incapacity; and
• the amount of compensation for permanent total incapacity. 

Further information on the Tribunal, including the application process, can be found here.

The Full Bench has upheld the decision of the Commission in an unfair dismissal application, finding that the Commission did not have jurisdiction to hear the unfair dismissal claim of a national system employee who was not eligible to bring a claim in the Fair Work Commission.

Background

The appellant worked for the respondent for around six weeks as a full‑time Guest Service Agent. The appellant resigned from her employment and commenced an unfair dismissal application in the Commission, alleging that her resignation was induced by bullying by colleagues. 

The parties agreed that the respondent was a national system employer. The appellant, however, was unable to pursue an unfair dismissal claim in the Fair Work Commission as she had not served the six month minimum employment period stipulated in the Fair Work Act 2009 (FW Act), and was not protected from unfair dismissal under the provisions of the FW Act. 

As there is no minimum employment period contemplated to make an unfair dismissal claim in the Commission, the appellant pursued the claim in this jurisdiction. The respondent objected to the application on the grounds of jurisdiction. The Commission upheld the respondent’s objection and dismissed the application. The appellant lodged an appeal to the Full Bench. 

Contentions 

The appellant submitted that the learned Commissioner, by posing the questions she did, took into consideration irrelevant considerations and failed to consider relevant considerations in determining the question of jurisdiction. 

The appellant further contented that that the learned Commissioner erred in law in her application of the test of inconsistency for the purpose of s 109 of the Commonwealth Constitution. The appellant contented that as the FW Act does not provide employees who have not served the minimum employment period with a remedy for unfair dismissal, but the Industrial Relations Act 1979 (IR Act) does, that this means that the two statutes are not inconsistent. The appellant submitted that, if the statutes are not inconsistent, then the IR Act operates and applies, and the Commission has jurisdiction to determine the matter. 

Findings 

The Full Bench noted that inconsistency is not found where there are differences in the operation of the specific provisions, but rather is a result of the express exclusion contained in the FW Act of the operation of the IR Act, to the extent that it applies to national system employees and national system employers. 

The Full Bench upheld the decision at first instance, finding that within the terms of s 26 and subject to the exceptions in s 27 of the FW Act, the FW Act ousts the Commission’s jurisdiction in relation to national system employers and national system employees. 

The appeal was dismissed. 

The decision can be read here.