Employee’s termination by employer found unfair because it was not a genuine redundancy and compensation awarded.

The Commission has awarded $39,750.95 as compensation to an employee, following her employer’s decision to terminate her employment. The Commission found the termination was not a genuine redundancy because the employee’s role continued to exist after her termination and another person was employed in the role, undertaking the same duties.

Background

The applicant commenced work with the respondent in March 2020, under an ongoing contract as a Coordinator.

On 26 February 2021, the applicant was informed that her position was no longer required due to a change in circumstances and her employment was terminated effective the same day.

Contentions

The applicant contended her termination was unfair because it was not a genuine redundancy.

A previous employee of the respondent gave evidence in the applicant’s case. This employee held the Coordinator role prior to the applicant, from 2018 to 2020. He gave evidence that the respondent contacted him in December 2020 to inform him that it wished to engage him once again. He recommenced employment with the respondent in the position of Coordinator, deposing that his duties were the same as those he undertook on the first engagement in this role and were the same as the applicant’s duties.

The employer stated that the applicant’s termination was not unfair because the applicant was made redundant as the applicant’s position was no longer required.

Findings

The Commission found that the termination of the applicant's employment was not a genuine redundancy because the applicant’s role continued to exist and had not been changed or been modified in any way, and the respondent engaged another person to undertake the role immediately after terminating the applicant’s employment.

The Commission noted that, on the evidence, it was not practicable to reinstate the applicant. The Commission found the applicant had suffered loss because of the unfair dismissal and should be awarded the sum she would have earned had her employment continued. The Commission awarded the applicant $39,750.95, being the maximum amount available under s 23A(8) of the Industrial Relations Act 1979.

The decision can be read here.

The Rules of the Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch were altered to maintain consistency with the operation of the federal counter body, pursuant to s 62(2) and in accordance with its Rules.

The Commission ordered that the applicant’s Rules be altered to change its name and its rules regarding office bearers and the eligibility for membership, as such changes fell within the Commission in Court Session’s jurisdiction, were proposed in accordance with the applicant’s Rules and no objection was made by the applicant’s members.

Background

ARTBIU, federally registered under the Fair Work (Registered Organisations) Act 2009 (Cth), had two branches in Western Australia, the West Australian Branch and the West Australian PTA Branch. Membership of either branch was dependent upon the nature of the work performed by the member concerned.

On 3 March 2022, the rules of the ARTBIU were altered to merge the two existing West Australian branches into a single branch, to be known as the Western Australia Branch, taking effect from 1 January 2023. As a result, members of the former two branches became members of the new federal branch and elections for office bearers of the new, merged Western Australian Branch, commenced.

Contentions

The application, made under s 62(2) of the Industrial Relations Act 1979 (WA), sought to alter the applicant’s Rules to maintain consistency with the operation of the ARTBIU. The proposed alterations to the Rules were extensive, including changes to the applicant’s name, eligibility for membership and rules regarding office bearers and who may hold office.

In compliance with its Rules, the applicant gave evidence that a letter was sent to all members of the applicant’s Executive by email, containing written notice of the proposed alterations to the Rules. The letter specified that the meeting of the Executive to consider the proposed alterations to the Rules would be convened on 21 September 2022. On this date, the Executive unanimously endorsed the proposed alterations to the Rules. All the applicant’s current members were notified of the proposed alterations and the reasons for the proposed alterations and were provided with the opportunity to object. Finally, the applicant deposed that no objections were raised by members.

Despite many additional proposed alterations not falling within s 62(2), the applicant contended that the Commission in Court Session had a general residual jurisdiction to deal with any matter the Registrar could deal with concerning alteration to the rules of an organisation.

Findings

The Commission in Court Session was not persuaded that it can exercise the powers of the Registrar generally, in relation to the alteration of organisations’ registered rules, in the exercise of a general residual jurisdiction and power.

The Commission's jurisdiction is limited to specific matters outlined in s 62(2) and any proposed alterations beyond those matters need to be the subject of a separate application to the Registrar.

The proposed alterations within the Commission in Court Session’s jurisdiction under s 62(2) were changes to the applicant’s name, eligibility for membership and the rules regarding office bearers and the persons who may hold office. The Commission in Court Session found that such alterations to the applicant’s Rules were authorised in accordance with its Rules. No objection was made to the proposed alterations to the Rules, nor to the proposed change of name of the applicant, by members of the applicant, who have been provided with a reasonable opportunity to do so.  Accordingly, ss 55(4)(b), 55(4)(c), and 55(4)(d) of the Act were complied with. Further, s 55(5) was complied with and no statutory issues were raised. Thus, the Commission in Court Session ordered that such alterations be made to the applicant’s Rules.

The decision can be read here.

The Western Australian Industrial Relations Commission has increased the State Minimum Wage by 5.3%, which brings the State Minimum Wage to $863.40 per week from 1 July 2023.  The Commission also increased award rates by 5.3% from that time.

The increases apply only to employees who are paid the minimum wage or award rates in the State industrial relations system.  Approximately 27,000 employers and more than 300,000 employees are estimated to be affected by the decision. 

In making its decision, the Commission is required to consider a broad range of economic and labour market factors, and social and equity considerations.

The Commission noted that both last year and this year, the focus has been on cost of living pressures given the high inflationary environment and rising interest rates in tandem with a continuing tight labour market. On this occasion, whilst inflation remains elevated, the available evidence suggests it will moderate in the year ahead. A balance must be struck having regard to the overall economic environment and relevant social and industrial factors.

While the State economy remains sound, current data and the forecasts for the year ahead, are  pointing to  a slowdown in domestic growth, increasing downward pressure on household spending, with an uptick in unemployment, albeit from a 15-year low.

The decrease in household spending as consumers tighten their belts further in response to high interest rates and prices, evidenced most recently by the RBA’s latest cash rate increase and moderating retail spending, will likely have an impact on those businesses most prevalent in the State system. The decline in overall aggregate business profitability, from 26.4% considered in last year’s proceedings to 8.8% in this year’s case, was also a relevant consideration.

The Reasons for Decision can be found here.

The General Order can be found here.

For more information please contact Susan Bastian, Registrar, on (08) 9420 4444. 

 The Commission in Court Session will issue its decision in the 2023 State Wage Case at 1:45 PM on Friday, 16 June 2023. 

Compensation awarded to employee forced to resign after employer reduced hours from 38 to 9 hours per week.

The Commission has awarded $27,098.46 as compensation to an employee, finding that the decision of the employer to reduce the employee’s hours constituted a breach of the employment contract such that the employee was entitled to consider that his employment was terminated.

Background

The applicant commenced work with the respondent on 1 July 2020 and was employed on a fulltime basis, 38 hours per week, as an Assistant Coordinator.

On 23 February 2021, the applicant was advised that his hours would be reduced from 38 to 9 hours per week.

On 23 April 2021, the applicant delivered his resignation to the respondent’s Chairperson, stating that the Chairperson’s and other committee member’s actions had caused an extremely stressful working environment.

Contentions

The applicant stated he was the target of an orchestrated and sustained conduct of harassment, undertaken to force him to resign. The applicant referred to several incidents involving senior staff of the employer.

One incident involved the Chairperson blocking the applicant from leaving the room with his arm at the office. It was then that the Chairperson informed the applicant that his job description had changed and his working hours were reduced.

 During another incident, the applicant stated that the Secretary called him ‘useless’ and ‘stupid’. The applicant’s allegations were corroborated by evidence from his supervisor.

 The employer contended that the applicant had voluntarily resigned.

Findings

The Commission found the employer unilaterally changed the applicant’s employment contract terms, reducing his working hours from 38 to 9 hours per week. The Commission found that this change breached the terms of the applicant’s employment contract and that the applicant was entitled to consider that his employment was terminated because of the employer’s conduct and actions.

The Commission noted that, in the circumstances, it was not practical to reinstate the applicant, instead awarding compensation for the loss of income he would have otherwise earned had his employment continued up to the date of the hearing.  The Commission awarded the applicant $27,098.46, being the maximum amount available under s 23A(8) of the Industrial Relations Act 1979.

The decision can be read here.