The Commission has dismissed an application to tender new evidence in an appeal against the decision of the Commissioner of Police to remove a police officer under the Police Act 1892 (WA) . The Commission, in the same hearing, granted an amendment to the grounds of appeal.

Background

The appellant is a former member of the Western Australian Police Force. At the time of the events leading to his removal, the appellant was a Senior Constable based at the Geraldton Police Station.

Loss of confidence proceedings commenced in October 2020. The appellant was accused of making an arrest without lawful authority; using excessive force in an arrest; being negligently or wilfully dishonest; and failing to perform his duties in a proper manner by failing to address inaccurate and misleading in formation in a witness statement.

The appellant was removed from the Police Force on 29 December 2020. The appellant denied the allegations.

The appellant made two interlocutory applications in connection with the appeal. Firstly, to tender new evidence under s 33 R of the Police Act, and secondly, to amend the grounds of the appeal. The applications were heard together.

Contentions

The appellant sought to have various categories of evidence tendered, including audio recordings of all managerial interviews; historical penalties for excessive force; newspaper and media reports outlining a shooting in the region; occupational health and safety reports and dispatch figures.

The appellant argued, among other things, that this evidence displayed bias in the investigations conducted and the decision to remove him from the Police Force was affected by it .  It was also argued that the appellant’s removal was disproportionate to his conduct, compared to other cases.      It was also contended that the force used in the arrest was not excessive and was necessary to avoid injury to himself and the other police officer on duty with him at the time of the incident.   

The appellant also submitted that there had been no appreciable decline in dispatch requests from Geraldton Police Station. The appellant argued that these figures were indicative of public confidence in the Police at Geraldton, and as such, there was no loss of confidence.

Conclusions

The Commission identified key provisions under the Police Act that are required to be fulfilled when determining if new evidence may be tendered where  the Commissioner of Police does not consent.  

The Commission outlined that the qualification for the WAIRC to grant  leave to tender new evidence is satisfaction of s 33R(3)(b), and that  the Commission must be  satisfied that

• the appellant is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information;
• the new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or
• it is in the interests of justice to do so.

The Commission went on to outline that the tender of new evidence is also constrained by s 33R(4), in that the Commission must consider the appellant’s prior awareness of the substance of the new evidence. Further, under s 33R(11), the new evidence must not have been considered by the Police Commissioner in making the decision to take removal action.

 The Commission also dealt with  the concept of public interest under s 33Q(4) of the Police Act. The Commission clarified that the public interest was not based on the individual conduct of the appellant and whether this had resulted in fewer calls to the Geraldton Police Station. Rather, it is concerned with whether the actions of the appellant were compatible with the need to maintain public confidence in the Police Force generally, and whether it was open to the Commissioner to lose his confidence in the appellant in the circumstances.

 The Commission determined that the documents did not satisfy the requirements of s 33R of the Police Act,  and dismissed the application to tender new evidence. The Commission, however, held that the application to amend the grounds of appeal, not relating to the tender of new evidence, would be granted.

The decision can be read here

The Commission has ordered an employer pay $9,438.89 in compensation for loss and injury to an employee who was unfairly dismissed. The decision was heard in the absence of the respondent, after the Commission declined to grant the respondent a third adjournment.

Background

The applicant was employed at Mageela Cottage & Boarding Kennel (Kennel), commencing on 27 June 2018.  On 1 February 2020, the applicant identified a shortfall between her gross and net pay. The applicant sent a text message to the respondent, who informed her that this was deducted for bathroom, food, drink, and phone usage breaks.

On 3 February 2020, the respondent told the applicant that he did not like her attitude, and that she was difficult to be around. The respondent informed the applicant that she was dismissed. The respondent immediately locked the door as the applicant exited the room.  On 28 February 2020, the applicant made an application to the Commission alleging she had been dismissed unfairly.  Conciliation did not result in an agreement and the matter was listed for hearing. The Commission made directions for parties to file and serve an outline of submissions seven days before the hearing.

The respondent sought to have the hearing of the matter adjourned on three occasions. The respondent did not provide any evidence to support his reasons for seeking an adjournment but referred to issues of staffing at the Kennel. An adjournment was granted in the first two requests.  Two days prior to the third hearing date, the respondent indicated that he was unable to attend the hearing and would not be available until January. The respondent had not yet filed its outline of submissions. The respondent argued that a progression of the matter without his submissions or presence would be a miscarriage of justice.

The Commission determined that the respondent had not complied with previous directions concerning the submissions or the scheduling of hearings. The Commission considered that any further extension of time would not result in the submissions being filed. The Commission determined that the prejudice to the applicant in delaying her hearing any further outweighed any prejudice to the respondent and proceeded in the absence of the respondent. 

Contentions

The applicant submitted that the respondent failed to consult her about any performance issues prior to her dismissal.  The applicant provided evidence that she had raised concerns for the wellbeing of a dog at the Kennel and argued that the respondent had not addressed any performance issues in this instance, or at any other time.

The applicant contended that following the dismissal, the respondent threatened to tarnish the applicant’s reputation with future employers. The applicant further contended that the respondent accused her of reporting the Kennel to the RSPCA. When the applicant denied these allegations, the respondent threatened to euthanize 60 dogs if the applicant did not disclose who made the report.

The respondent did not file submissions or attend the hearing. In a response filed with the Commission prior to conciliation, the respondent stated that the applicant was terminated for neglecting the welfare of the animals; falsely claiming hours worked; damaging the profitability of the business; refusing to communicate with the respondent; disruptive and upsetting behaviour towards fellow employees and dishonesty. The respondent provided no evidence to support these allegations.

The respondent admitted that he dismissed the applicant immediately after hearing from another employee that the applicant had allegedly mistreated one of the dogs and had allegedly failed to follow instructions.  The applicant contended that the alleged reasons provided by the respondent were baseless, and an attempt to justify his actions.

Conclusions

The Commission accepted the applicant’s submissions and evidence provided at the hearing.

The Commission concluded that, even if the respondent did have concerns about the applicant’s performance, the respondent did not seek an explanation or response from the applicant. Rather, the respondent decided to dismiss the applicant as soon as the applicant presented for her next shift.  The Commission determined that the applicant took reasonable steps to mitigate her loss, by retraining and securing alternative employment five weeks after the dismissal.

The Commission was also satisfied that the applicant had suffered distress beyond that of most dismissals due to the behaviour of the respondent, in locking the applicant out immediately after dismissal; threatening to euthanize 60 dogs; and threatening to tarnish the reputation of the applicant. 

The Commission awarded $6,438.89 to the applicant in compensation for lost wages and notice, and $3000 for the injury suffered.   The decision can be read here.

The Commission has dismissed an application for unfair dismissal on the basis that the employer was a national system employer.

Background

On 23 September 2020, the applicant filed an unfair dismissal application with the Commission.

On 8 October 2020, the respondent filed a response and raised a jurisdictional objection, on the basis that it was a trading corporation and thus, a national system employer.  The respondent later provided witness statements and written submissions relating to the jurisdictional objection.

The applicant was invited to provide documentation in response to these objections, however nothing was provided.

Conclusions

The Commission found that the respondent had conclusively demonstrated that the employing entity, Krazy Price Group Pty Ltd, was a trading corporation.

The Commission considered that Krazy Price Group Pty Ltd ran small retail businesses selling homewares, party supplies, art and craft wares, pet supplies, toys, giftware, and similar items direct to the public.

The Commission found that the employer engaged in trade to earn revenue and was a quintessential trading organisation.

The Commission dismissed the application for want of jurisdiction.

The decision can be read here.

 The Public Service Appeal Board (Board) has dismissed an appeal by a government officer against the decision to change his reporting structure on the basis that the Board does not have jurisdiction to hear or determine the matter.

Background

The appellant is employed by the Economic Regulation Authority (ERA) as a Level 7 Project Manager. The appellant accepted the position in January 2018 and reported to an Executive Director. In June 2018, the ERA changed its organisational structure so that all Level 7 employees reported to a Level 8 employee. This decision was communicated to the appellant in November 2018.

The appellant’s health deteriorated following this change, and the appellant has since been on leave without pay. The appellant filed his appeal against this decision (Reporting Structure Decision) on 1 July 2021, outside of the time for the filing of an appeal.  The appellant sought an extension of time.

The appellant raised an additional issue during the hearing. In June 2021, the ERA requested a resignation from the appellant as a condition of its offer to settle the workers compensation claim. The appellant did not provide this resignation and remains employed on unpaid leave. The appellant sought to appeal against this settlement proposal, as a second decision appealed against (Settlement Proposal).

Contentions

The appellant argued that the reporting structure was a material consideration when he accepted the role. The appellant contended that the decision was arbitrary, capricious, and that the ERA failed to consult with staff as required under the Occupational Safety and Health Act 1984 (WA); Public Service Award 1992 (WA); and the Public Sector CSA Agreement 2019 (WA).

The respondent argued that the decisions appealed were not matters within the Board’s jurisdiction. The respondent relied upon statements made in emails to the appellant. In the emails, the respondent told the appellant that the changes to the restructure were made validly under the Public Sector Management Act 1994 (WA) (PSMA) and that the necessary consultation about the changes were carried out.

The respondent argued that the changes were not substantive; did not alter the role; and did not affect employees’ health or wellbeing. Further, the respondent argued that these changes were applied to all Level 7 employees and did not single out the appellant.

Findings

The Board identified three criteria that must be determined in relation to the Reporting Structure Decision and Settlement Proposal for the Board to have jurisdiction to hear the appeal:

• Whether these are “decisions” for the purpose of s 80I(1)(a);
• Whether these are decisions in relation to an interpretation of a provision of the PSMA; and
• Whether the interpretation concerns conditions of service other than salaries and allowances of public service officers.

The Board determined that the Settlement Proposal had no final determinative or operative effect and could not make any changes to the appellant’s employment unless accepted. The Board concluded that Settlement Proposal was not a decision for the purpose of s 80I(1)(a), and the Board did not have jurisdiction to hear this appeal.

The Board was satisfied that the Reporting Structure Decision had an ultimate and operative effect on the organisational structure of ERA and was a decision for the purposes of  s 80I.

The Board proceeded to consider whether the Reporting Structure Decision related to an interpretation of a provision of the PSMA. The Board found that there was no dispute between the appellant and the respondent in relation to the interpretation of the PSMA. The appellant failed to identify a question of interpretation, and accordingly, the Board did not have jurisdiction to hear the appeal.

The Board concluded that it was not material to consider the final question of conditions of service. The Board noted, nonetheless, that it would be inclined to the view that the decision does concern conditions of service. The Reporting Structure Decision determines the environment affecting the appellant’s employment because it involves who supervises his work and who he reports to.

The Board further concluded that there was no need to consider the issue of an extension of time but held that if it was required to determine this issue, it would have declined such an extension.

The decision can be read here.

The Road Freight Transport Industry Tribunal has made orders that a hirer pay an owner driver an amount for work performed under an owner-driver contract.

Background

The applicant is engaged in the business of transporting goods in heavy vehicles.

On 12 July 2019, the applicant entered into an oral agreement with the respondent to transport the respondent’s scaffolding.   On 5 August 2019, the applicant entered into a second agreement with the respondent to transport an all-terrain forklift.  On both occasions the work was performed by the applicant for the respondent.  

The applicant provided invoices to the respondent for each delivery. The respondent failed to pay the invoices and did not respond to further written communication from the applicant.

Contentions

 The respondent failed to appear at the hearing.  However, the Tribunal was satisfied the respondent had been duly served with notice of the proceedings and accordingly, proceeded to hear and determine the applicant’s claim.

 The applicant gave evidence that it performed the work as agreed and when request for payment was made, the respondent refused to pay, because the respondent had not been paid by another contractor.  The Tribunal noted that the respondent’s director had previously made contact with both the Registry and the Associate to the Tribunal, to advise that the applicant had not been paid for this reason.

Findings

 The Tribunal concluded that the applicant was an owner-driver for the purposes of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA), and the agreements between the parties were owner-driver contracts.  The Tribunal found that the applicant had performed the services as agreed and that the respondent had failed to pay the applicant for the services.  The Tribunal further concluded that the respondent could not refuse to pay the applicant on the ground of not being paid by another contractor, as such is prohibited under s 9 of the OD Act.

The Tribunal ordered the respondent to pay the debt of $1305.75 and interest amounting to $139.00.

The decision can be read here.