The Industrial Magistrate has awarded penalties to a restaurant owner for contravening the Industrial Relations Act 1979 (the Act) by failing to produce records to the Department of Mines, Industry Regulation and Safety (DMIRS).

Background

The respondent purchased a restaurant around October 2019 and started trading in or about November 2019.

In December 2019 and July 2020, the claimant attended the restaurant. On each occasion, the claimant issued the respondent with a notice that required the respondent provide to DMIRS specified records relating to all employees of the restaurant.  The purpose was to ascertain whether the respondent had observed the provisions of the Act and the Restaurant, Tearoom and Catering Workers’ Award (WA). The respondent failed to provide the records.

In failing to produce records in respect to the two notices, the Industrial Magistrate made orders stating that the respondent had contravened s 102(1)(a) of the Act. The claimant sought payment of a penalty under s 83E(1)(a) of the Act for each of the two contraventions.

Both parties appeared at a hearing on 2 September 2021. The respondent indicated that the relevant documents would be provided by 3 September 2021. The decision of the Industrial Magistrate was reserved to enable the respondent to provide the documents, however the respondent did not comply.

Contentions 

The claimant submitted that the respondent was uncooperative with industrial inspectors and had failed to demonstrate contrition and take corrective action. The claimant contended that the respondent’s actions were repeated and deliberate in that he was in communication with industrial inspectors in respect of the notices and was aware of what was required. The claimant submitted that the respondent had ‘demonstrated … disregard for his obligations as an employer under the Act’.

The respondent did not lodge any submissions and confirmed in the hearing on 2 September 2021 that he did not wish to be heard in respect to the issue of penalty and costs. 

Findings 

In determining whether the respondent’s conduct warranted the imposition of a penalty, and if so, the appropriate amount, the Industrial Magistrate considered a range of factors. These included:

• the nature and extent of the conduct which led to the breaches;
• the circumstances in which the conduct took place;
• the nature and extent of any loss or damage sustained as a result of the breaches;
• whether there had been any similar previous conduct by the respondent;
• whether the breaches are properly distinct or arose out of one course of conduct;
• the size of the business involved;
• whether or not breaches were deliberate;
• whether senior management was involved in breaches;
• whether the party committing the breach had exhibited contrition;
• whether the party committing the breach had taken corrective action;
• whether the party committing the breach had cooperated with enforcement authorities;
• the need to ensure compliance with minimum standards by the provision of an effective means for investigation, enforcement of employee entitlements; and
• the need for specific and general deterrence.

The Industrial Magistrate determined that the appropriate penalty for each contravention was $3,250 per breach. The Industrial Magistrate determined that the separate contraventions could be considered as a single course of conduct. Applying the totality principle, and considering the conduct as a whole, the Industrial Magistrate determined that an aggregate penalty of $3,900 was appropriate and proportionate. The Industrial Magistrate additionally ordered the respondent pay the claimant costs of $187.

The decision can be read here.

The Public Service Appeal Board (PSAB) has dismissed an appeal, finding that the decision to terminate probationary employment was not harsh or unreasonable or otherwise effected in a manner that was contrary to the purpose and principles of probationary employment.

The employee was employed by the Director General of the Department of Education (Employer) for a particular project. His employment was subject to an initial six-month probationary period. Around 1 month prior to the end of the probationary period, his manager held a meeting with him to discuss various concerns, which needed to be resolved before the completion of the probationary period. Soon afterwards, the Employer made the decision to "annul" or end the probationary employment, stating that it was because the employee was not appropriate or compatible to continue in the role.

The employee appealed from this decision to the PSAB under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act). The appeal was therefore different in nature to an appeal from a substandard performance process under s 79(1) of the Public Sector Management Act 1994 (WA).

The PSAB was required to consider how to approach an appeal set against a background of performance and conduct concerns, but which did not involve termination following a substandard performance process. The PSAB noted that, as an appeal under s80I(1), it involved the review of the Employer's decision de novo, based on the evidence before it. However, mindful of the purpose and implications of probationary employment as set out in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth [2000] WAIRC 00067; (2000) 80 WAIG 3155, the PSAB was not inclined in this appeal to entirely disregard the Employer's decision, though the appeal was to be determined de novo. The PSAB considered it may legitimately have regard to, and place weight upon, the subjective view of the Employer about the employee's suitability for ongoing employment in determining the appeal. Further, that the employment was probationary, warrants limiting the exercise to rehearing only those aspects of the matter that are strictly necessary to deal with the appellant's grounds of appeal.

In considering the appeal, the PSAB considered four factual issues and found that no adjustment to the decision appealed against was warranted, and therefore the appeal was dismissed.

The decision can be read here.

The Public Service Appeal Board (Board) has dismissed an appeal for want of jurisdiction, on the basis that it had no jurisdiction to hear the matter as the employee was not a public service officer and there was no appealable decision.

The employee was employed by the East Metropolitan Health Service (the Health Service) as a Level 2 Clinical Nurse Anaesthetic Research on a fixed term contract. At the end of the fixed term, and contrary to what the employee was led to expect, neither a further contract nor permanency was offered. The employee lodged an appeal to the Board under s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) after having her complaint to the Office of the Parliamentary Commissioner for Administrative Investigations (Ombudsman) rejected. The Ombudsman rejected the complaint because it said the employee could seek a remedy in the WAIRC. The Health Service objected to the appeal, saying that the decisions being appealed against are not matters within the Board's jurisdiction.

The Board was required to determine whether the employee was a public service officer with standing to appeal a decision under s 80I(1)(a) of the IR Act. The Board found that she was not, and so the Board was without jurisdiction to hear and determine the appeal.

The Board expressed sympathy for the employee for bringing her appeal to the Board it in the way that she had noting that it has been observed many times that the structure of the IR Act concerning its constituent authorities, particularly the Board and the Public Service Arbitrator, are overly and unnecessarily complex and confusing.

In this case, the confusion was also compounded by the information the employee received from Ombudsman.

The decision can be read here.

The Public Service Appeal Board has dismissed an appeal against the decision to take disciplinary action on the grounds that the Appeal Board does not have jurisdiction to deal with or determine the matter.

Background

The appellant was a Registered Nurse employed by WA Country Health Service (WACHS) as a Level 2 Community Health Nurse. On 19 February 2021, the respondent found a breach of discipline had occurred and determined to impose a sanction on the appellant of a reprimand and improvement action.

The appellant complied with the improvement action but disputed the finding of a breach of discipline. On 12 March 2021, the appellant commenced an appeal against the decision.

Contentions

The appellant had no opinion as to whether she was a “government officer” for the purposes of s 80C(1) of the Industrial Relations Act 1979 (WA) (IR Act). However, the appellant wished to continue the appeal within the general jurisdiction of the IR Act.

The respondent argued that the decision the appellant sought to appeal was not within the jurisdiction of the Appeal Board. The respondent contended that although the appellant is employed by a public authority, she is not on the “salaried staff” to bring her within the definition of a “government officer”.

Findings

The Appeal Board considered whether the appellant was on the “salaried staff” of the respondent and accordingly whether the appeal was within its jurisdiction.  

The Appeal Board recognised that although there is no fixed meaning of “salaried staff”, the structure of the employee’s remuneration and the services for which the remuneration is paid should be strongly considered. Specifically, the presence of the following characteristics may indicate “salaried staff”:

• the employee receives a fixed regular payment for their personal services;
• the payments are usually made monthly or quarterly, as opposed to daily or weekly; and
• the employee is in the administrative, technical, and professional ranks of the public sector.

It was determined that despite reference in the appellant’s employment contract to her “salary”, she was paid a wage, calculated by reference to an hourly base rate of pay for the hours she worked. Further, because penalties, allowances and overtime rates were payable depending on the work performed, the appellant’s earnings were not entirely fixed.

The Appeal Board also determined the nature of the services the appellant provided were not for administrative, managerial, or technical services. Therefore, her employment could not be described as being in the administrative or professional ranks of the public service.

The Appeal Board concluded that the appellant did not earn a salary, nor was she a member of the respondent’s “salaried staff”. Therefore, as the appellant was not within the definition of a “government officer” for the purposes of s 80C(1) of the IR Act, her appeal is beyond the Appeal Board’s jurisdiction.

The appeal was dismissed.

The decision can be read here.

The Commission has determined that an employee's contract ended at the initiative of the employer, finding that the Commission has jurisdiction to hear and determine the unfair dismissal application.

Background

The applicant was initially employed on a full-time basis under a fixed term contract by WA Country Health Service (WACHS) as a Cook. At the expiry of the full-time contract, the applicant accepted a second contract from the respondent for casual employment for a fixed period of three month from 25 May 2020 to 25 August 2020. Both of the applicant’s employment contracts were covered by the WA Health System – United Voice WA – Hospital Support Workers Industrial Agreement 2017 (Industrial Agreement).

The applicant received an email from the respondent on or about 21 August 2020 confirming that her contract was at an end as of 25 August 2020 and that no further shifts would be provided to her. On 13 October 2020, the applicant filed an application for unfair dismissal against the respondent, 21 days out of time.

Contentions

The applicant appeared to accept that her engagement was pursuant to a three-month contract. However, she sought an explanation as to why she was offered a three-month contract when the casual position was advertised as an 18-month contract.

The grounds for the applicant’s application comprised a general list of grievances against the respondent in relation to matters arising in the course of employment, rather than addressing whether there was a dismissal, and if so, the fairness of it.

The respondent asserted that the applicant was appointed under a fixed term contract, which ended with the effluxion of time. The respondent contended that there was no dismissal and consequently, the Commission had no jurisdiction to hear or determine the matter under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (IR Act).

Findings

The Commission first considered the effect of the terms of the Industrial Agreement on the applicant’s employment contract. The Commission outlined that under the Industrial Agreement, the applicant’s employment must be categorised as either casual or fixed term, but it cannot be in both categories. As the applicant was engaged and paid on a casual basis, her employment was casual, thus excluding the possibility that it was fixed term.

Further, the Commission noted that the IR Act provides that contractual fixing or limiting of time for the end of the contract is of no effect, to the extent that it is inconsistent with the Industrial Agreement. Accordingly, there can be no agreed term limiting the length of the applicant’s employment.

The Commission determined the applicant’s employment did not end by the effluxion of time, but at the respondent’s initiative. Therefore, there was a “dismissal” for the purposes of the IR Act and the Commission had jurisdiction.

The Commission considered whether to grant the applicant leave to make her unfair dismissal application out of time. Given the applicant’s employment was determined not to be fixed term, and her employment did not terminate by the effluxion of time, the respondent had ultimately dismissed the applicant for misconceived or erroneous reasons. Considering the merits of the case, the Commission granted the applicant leave to make her unfair dismissal application out of time.

The decision can be read here.