The Public Service Arbitrator (Arbitrator ) has declared that an employer is estopped from offering two employees further contracts at a pay level lower than Level 21 of the employer’s pay scale.

Background

The employees are Senior Medical Practitioners under the WA Health System – Medical Practitioners – AMA Industrial Agreement 2016 (Industrial Agreement). The  pay structure  for Senior Medical Practitioners under the Industrial Agreement has a maximum of  Level 18, while  for a Consultant the maximum is level 24.

In February 2007, practitioners employed by the respondent began to be paid according to a new pay scale (Pay Scale), which set out how practitioners could progress according to caseload and academic milestones.  The employees completed a Masters Degree in Clinical Forensic Medicine and progressed to the top level of the Pay Scale - Level 21.

In April 2016, a senior executive approved contract variations which allowed the employees to progress to  Level 23.

In April 2017, the respondent indicated that the Level 23 contract variation would be rescinded, and all new contracts offered to practitioners would align with the pay scale set out in the Industrial Agreement.

The applicant sought a declaration that the respondent is bound by the Pay Scale. The issue of the employees being classified as Level 23 was raised, but later withdrawn by the applicant.

Contentions

The applicant contended that the respondent was estopped from offering employees a contract at a classification level lower than Level 21, on the basis that it would be unconscionable for the respondent to withdraw the Pay Scale.

The applicant presented evidence that the Pay Scale was approved, administered and used by administrators from 2007-2018. The applicant contended that the Pay  Scale was an incentive to entice doctors to do further study so that the service would be a leading service for the respondent and Western Australia.

The applicant submitted that the employees relied on the representation that the Pay Scale would provide a career pathway. The applicant further submitted that by completing the Masters Degree, the employees suffered detriment in time, cost of study and ongoing fees, and the loss of an opportunity to specialise in another field. Further, the applicant submitted that the employees could not reasonably use the Masters Degree obtained anywhere else in Western Australia.

The respondent contended that there was no evidence that the Pay Scale was approved by an officer with the authority to do so. Further, the respondent contended that the completion of the Masters Degree was within the ordinary professional development of the employees.

Notwithstanding that the employees’ work was good, the respondent contended that it would be unfair for the employees to be paid the same as the Consultants employed by the employer, particularly where the employees did not qualify and were not eligible to be appointed to Consultant level.

Findings

The Arbitrator considered the principles of promissory estoppel as set out by Quinlan CJ and Vaughan JA in Wilson v Arwon Finance Pty Ltd [2020] WASCA 137.

The Arbitrator found that the Pay Scale amounted to a representation by the respondent that the SARC doctors would progress up the pay levels as they achieved academic and/or case load milestones.

The Arbitrator considered that the senior executive who approved the above industrial payment had actual authority to do so. The Arbitrator noted, however, that this actual authority may not be necessary for an estoppel to arise.

By approving and applying the Pay Scale, the Arbitrator concluded that the respondent induced and maintained the assumption that the employees would be paid under the Pay Scale, if they obtained the academic qualification and milestone.   This was supported by the evidence led by the applicant that the existence of the Pay Scale was the reason the employees obtained their Masters Degrees.  

The Arbitrator found that the employees incurred financial, temporal, professional and personal costs in the process of undertaking the onerous Masters Degree, notably because the course required inflexible interstate travel requirements, and that this commitment went beyond what was reasonable for ordinary continuing professional development.

The Arbitrator declared that the respondent was estopped from offering the employees a further contract at a lower pay level than Level 21, as set out in the Pay Scale.  It was  determined that such an order was necessary to prevent unconscionability and was proportionate to the detriment suffered by  the employees.

The decision can be read here.

The Public Service Arbitrator (Arbitrator) has allowed an application against an employer’s decision not to reclassify an employee’s position from level G5 to Level G6. The Arbitrator found that the change in the nature of the work and increase in skill and responsibility associated with the role, amounted to an increase in work value and warranted reclassification.

Background

The applicant is employed by the Midwest Region of WA Country Health Service (Health Service). The applicant applied to have her position reviewed by the respondent to be reclassified from Level G5 to Level G6, on the basis that the work had become more complex; required more skills and knowledge to perform; and the level of responsibility involved had increased. The respondent denied the applicant’s request for reclassification and the applicant proceeded with an appeal under ss 80F (2) and 80E(2)(a) of the Industrial Relations Act 1979 (WA) to review the decision.

Contentions

The applicant contended that there had been an increase in the work value due to various of factors, including an increase in staff reporting to the position; an increase in the complexity of knowledge required; and the additional duties added to the role. 

The applicant accepted that her workload is a separate issue to increased work value but submitted that the increased workload should not be equated to an absence of an increase in work value. The applicant contended that her evaluation of the role equated to a Business International Position Evaluation Remuneration System (BIPERS) score of 403, placing the position at the bottom end of a Level G8 classification.

The respondent contended that while there had been an increase in workload and work volume for the applicant’s position, that this did not equate to an increase in work value and was not in itself a basis for reclassification.

The respondent submitted that it relied upon a BIPERS assessment completed by SWY Consulting that indicated the applicant had over-evaluated some of the factors in her own assessment and placed the role at the lower end of Level G6. The respondent noted however, that this assessment was indicative and not prescriptive, and asserted that the position remained at the Level G5 classification.

The Findings

The Arbitrator accepted the applicant’s submission that characterising the changes as an increase in workload only is an over-simplification of the position’s evolution. The Arbitrator accepted that the changes in the nature of the position are such that the broadened duties were of a higher level and involved a sufficient increase in skill and knowledge of individual department operational requirements.

The Arbitrator held that the role now involved a greater degree of contribution to operations management, policies and procedures, and liaison with other managers.  This increase in responsibility had increased the work value. The Arbitrator assessed that the position should be in the vicinity of the highest end of the range for a Level G6.

It was held by the Arbitrator that the reclassification should take effect from the date that the applicant formally notified that the reclassification was sought.

The decision can be read here.

The Commission has held that a national system employee who did not meet the minimum period of employment to make a claim under the Fair Work Act 2009 (Cth) (FW Act) cannot seek relief under the Industrial Relations Act 1979 (WA) (IR Act).

Background

The applicant was employed by the respondent from 9 December 2020 until 28 January 2021. The applicant contends that she was forced to resign because of the behaviour of two colleagues.

The applicant was employed for a period less than the minimum six-month period required under the FW Act  to be able to make an application to the Fair Work Commission, and sought relief in the Commission .  

Contentions

The applicant contended that the IR Act applied to her employment because the FW Act precluded her from pursuing her claim in that jurisdiction.  

The respondent argued that the Commission did not have the necessary jurisdiction as it is a national system employer. The respondent submitted an affidavit attaching an Annual Financial Report for the year end 30 September 2020, a summary of the structure of the company and an extract of the company details held by the Australian Securities and Investments Commission.

Findings

The Commission noted that section 26 of the FW Act operates to apply to all national system employees and employers and excludes the provisions of the IR Act.

The Commission determined that, as the respondent was a trading corporation and national system employer, the applicant could not seek relief for an unfair dismissal under the IR Act. The application was dismissed for want of jurisdiction.

The decision can be read here.

The Commission has dismissed a claim for unfair dismissal, on the grounds that the Commission was unable to hear a matter where the parties had reached an agreement to settle the claim. 

Background 

The applicant was employed as a full-time maintenance person from 20 May 2019. The respondent terminated the applicant’s employment on 28 February 2020 for his alleged inappropriate behaviour toward his supervisor. The applicant filed a claim for unfair dismissal on 15 May 2020.  

A hearing was scheduled to determine whether to hear the applicant’s application out of time. The respondent requested a further directions hearing on the basis the applicant had not complied with previous directions from the Commission to file and serve an outline of evidence and witnesses. 

The respondent later informed the Commission that it no longer sought a further directions hearing as the parties had reached an agreement to settle the matter. The applicant contacted the Commission to advise that he had agreed to settle with the respondent by email and had received the Settlement Agreement document but would not sign it. The applicant stated that he wished to proceed to hearing. 

Findings 

The Commission considered whether the application should be dismissed on the grounds that the parties had reached an agreement to settle the claim. 

The Commission outlined that, pursuant to section 27(1)(a)(ii) of the Industrial Relations Act 1979 (WA), it is not in the public interest to proceed to hear a matter that is already settled by agreement. The Commission also outlined that where parties concluded the terms of the agreement, then a claim that a person has been unfairly dismissed is extinguished. 

The Commission noted that the applicant had emailed the respondent indicating his acceptance of an offer of $3000 in settlement of his claim, and the respondent had acknowledged receipt of this email. The applicant had also provided details of his financial institution account. 

The Commission considered that the Settlement Deed recorded the terms of the agreement made including payment, releases, confidentiality and non-disparagement. The Commission determined that while the settlement sum was not payable until the execution of the deed by the parties, a refusal to sign the Deed did not mean that the agreement between the parties was not concluded. 

The Commission found that further proceedings were not necessary or desirable in the public interest pursuant to section 27(1)(a)(ii) of the IR Act, and that the agreement made had overtaken the applicant’s unfair dismissal application. The Commission ordered that the application be dismissed. 

The decision can be read here.

The Occupational Safety and Health Tribunal (Tribunal) has granted leave to an applicant to discontinue her referral to the Tribunal.

The applicant reported a purported breach of the Occupational Safety and Health Act 1984 (WA) (OSH Act) at the school in which she worked. The applicant indicated that reasonable requests to minimise injury were denied, and that she was not able to attend the workplace. The applicant referred the matter to the Tribunal, seeking orders for the payment of salary and entitlements; an external investigation or audit of the workplace; and reinstatement in her employment at an alternative workplace within the Department of Education.

The respondent contended that the applicant left the school without authorisation as required under the OSH Act and disputed that there were not reasonable grounds to believe that remaining at the school premises would expose the applicant to risk of imminent and serious injury, or imminent and serious harm to her health.

The applicant later made application to amend her application, including to extend the remedies sought to aggravated damages; damages; and compensation. The matter was listed for two directions hearings, both of which the applicant did not attend. The respondent sought to dismiss the claim for want of prosecution

The matter was listed for a hearing to show cause why the matter should not be dismissed. The applicant requested the matter be heard on the papers. On the evening prior to the hearing, the applicant made application to withdraw and/or amend her application. The applicant raised additional objections to the representation of the respondent by a legal practitioner.

Findings

Commissioner Walkington noted that the provision of s 31(1) of the Industrial Relations Act 1979 (WA) (IR Act), read together with s 51I of the OSH Act, gave the respondent the right to be represented by a legal practitioner, and that the applicant’s consent was not required.

Walkington C found that under the OSH Act, the Tribunal did not have the necessary authority to consider damages, aggravated damages nor compensation, and therefore the application to amend the referral for these remedies could not succeed. She further found that it was not appropriate for the matter to be heard on the papers, given that the respondent opposed this request, and the nature of the matter may require oral evidence and the capacity to cross examine witnesses.

Walkington C found that it was within the Tribunal’s power to dismiss the matter under s 27(1)(a) of the IR Act or to grant leave to discontinue the application. Walkington C inferred from the applicant’s submissions that, should the application to amend the remedies sought and the request for the matter to be heard on the papers be refused, the applicant wished to discontinue the referral.

The Tribunal granted the applicant leave to discontinue the matter.

The decision can be read here.