The Commission has dismissed a Senior Prison Officer’s application to tender new documents in a loss of confidence appeal, finding that the evidence was not new, and that it was not in the interests of justice to grant leave to be tendered.

Background

The appellant, a Senior Prison Officer, appealed his removal from his position under the loss of confidence provisions in Part X of the Prisons Act 1981 (WA) (Prisons Act). Prior to the substantive appeal being heard, the appellant lodged an interlocutory application seeking to rely on two documents not originally filed.

Contentions

The appellant contended that first document, a transcript, was not available to him at the time of filing as it was ‘restricted information’ under the Corruption, Crime and Misconduct Act 2003 (WA). In the alternative, if the transcript was properly characterised as ‘new evidence’ as used in the Prisons Act then the appellant sought leave to tender it under s 108 of the Prisons Act. The appellant contended the second document, an Incident Report, was new evidence for the purposes of Part X of the Prisons Act, and it was in the interests of justice to grant leave to tender it.

The respondent opposed orders enabling the documents to be before the Commission and contended the transcript was ‘new evidence,’ and that neither document met the test in s 108 of the Prisons Act for the tender of ‘new evidence’, because neither document was relevant to any issue in the appeal.

Findings

The Commission found that determining whether to allow the transcript involved construction of the Prisons Act regarding the meaning of ‘examined and taken into account’ in part (a) of the definition of ‘new evidence.’ The Commission found that ‘taken into account…in making the removal decision’ meant considered as a step in the process that led to the removal action. The Commission found that documents and materials that were both examined by the respondent and considered by him as a step in the process leading to the removal action, would be within the exclusion in subpar (a) of the definition of ‘new evidence’ and therefore be outside the scope of what is ‘new evidence’

The Commission found that the transcript was not new evidence as it had been examined by the respondent and was considered by him in the process leading to the removal action, including in his assessment of the grounds of the Notice of Loss of Confidence, the Investigation Report, and the appellant’s submissions. The Commission found that it should not exercise its discretion to extend the time for filing of the transcript as the transcript was not relevant to the issues in the appeal to justify doing so.

The Commission found that it could be inferred that the Incident Report would have been made available to the appellant had he sought it from the respondent. The Commission found that this weighed against the grant of leave. The Commission found that the appellant’s grounds of appeal were not advanced by the Incident Report and that it was not in the interests of justice to grant leave to tender the Incident Report.

The Commission dismissed the application.

The decision can be read here.

The Commission has dismissed a laboratory technician’s unfair dismissal application for want of jurisdiction, finding that she was a government officer, and that the claim instead fell within the jurisdiction of the Public Service Appeal Board.

Background

The applicant was a Laboratory Technician and filed an unfair dismissal application claiming she was unfairly dismissed from her position. The respondent was the Department of Education WA.

Contentions

The applicant contended she was unfairly dismissed, and her application should be heard by the Commission pursuant her industrial award. The applicant contended that the Fair Work Act 2009 (Cth) and s 109 of the Constitution concerning inconsistency between State and federal laws required her Award and Agreement to be used to determine whether the Commission had jurisdiction.

The respondent sought to have the application dismissed and contended that as the applicant was a government officer her application should be made to the Public Service Appeal Board.

Findings

The Commission noted it was not at dispute that the respondent employed the applicant, and it was a State Government Department and a public authority under the Industrial Relations Act 1979 (WA). The Commission found that the issue was whether the applicant was employed ‘on the salaried staff’ of the respondent, as this would mean she would be considered a government officer and the Public Service Appeal Board would have exclusive jurisdiction to deal with the application.

The Commission found the respondent was a ‘State Government Department’ and not a constitutional corporation, the Commonwealth, or a Commonwealth authority, meaning the employment relationship was not covered by the national system. The Commission found that this meant there was no inconsistency between a law of the State and a law of the Commonwealth to be considered. The Commission found that the applicant would be a government officer if they were paid a salary and worked in the ‘administrative, technical and professional ranks’ of the public sector.

The Commission found that the applicant was paid a salary as they were paid a fixed fortnightly amount under their Agreement and Award, and the applicant did not refute this. The Commission found that it did not need to determine the nature of specific duties of the applicant, as the applicant did not refute that she performed clerical and administrative or technical duties, and the parties agreed the Award applied, including a scope clause providing she was ‘employed… in an administrative, clerical or general capacity.’ The Commission found that the applicant was an employee generally employed in the ‘administrative, technical and professional ranks’ of the public sector.

The Commission found that as the applicant satisfied both tests, they were employed ‘on the salaried staff’ and were a government officer. The Commission found it did not have jurisdiction as the applicant was a government officer and dismissed the application. The Commission noted that the respondent was incorrectly identified, but that it was unnecessary to make any findings as to whether the application should be dismissed on this basis.

The decision can be read here.

The Commission has dismissed an unfair dismissal application on the basis that the applicant’s behaviour in the course of proceedings had potential to interfere with the administration of justice, and that the applicant engaged in improper conduct

Background

The applicant was a Senior Teacher and Data Analyst employed by the respondent, the Director-General, Department of Education. The applicant filed an unfair dismissal application, and the respondent filed a strike out application to dismiss the application. Numerous instances of communications involving the applicant, or their partner were submitted into evidence.

Contentions

The applicant contended she was unfairly dismissed and that the power to dismiss an unfair dismissal application under s 27(1)(a)(iv) of the Industrial Relations Act 1979 (WA) was an exceptional one and should be exercised sparingly and with caution. The applicant contended that dismissing the application would be harsh and extreme, that the Commission’s power to dismiss should not be used to ‘punish’ the applicant and that it was relevant to consider the applicant’s intentions and the effect of her conduct.

The respondent in their strike out application originally contended three grounds, but later reduced this to one. The respondent contended that the application should be dismissed due to the applicant’s improper conduct towards several potential witnesses including by seeking to intimidate them.

Findings

The Commission considered the parties’ submissions and the authorities and principles in relation to its discretion to dismiss unfair dismissal applications. The Commission found that communications by the applicant were inappropriate, fell within the definitions of intimidatory and harassing conduct and constituted improper conduct.

The Commission found that s 27(1)(a) of the IR Act empowers it to dismiss unfair dismissal applications at any stage. The Commission found that the power to dismiss the application under s 27(1)(a)(iv) of the IR Act is an exceptional one, should be exercised sparingly and with extreme caution, and that prima facie, the applicant was entitled to invoke the Commission’s jurisdiction.

The Commission found it would be empowered to dismiss the application if satisfied that ‘for any other reason’ the applicant’s unfair dismissal application should be dismissed. The Commission found that it is entitled to apply the maxims of equity that ‘he who seeks equity must do equity’ and ‘he who seeks equity must come with clean hands.’

The Commission found that the correspondence the applicant sent had the capacity, tendency or potential to interfere with the administration of justice and that the applicant therefore engaged in improper conduct. The Commission found that the applicant had engaged in misconduct in relation to her unfair dismissal application and did not comply with the equitable maxims.

The Commission dismissed the application.

The decision can be read here.

The Full Bench has dismissed an appeal that was lodged by a single member of a partnership as the decision appealed against did not finally determine the rights of the parties.

Background

The appeal involved a husband-and-wife café business partnership. They partners sought to appeal a default judgement order made by the Industrial Magistrates Court. The respondent was an industrial inspector that had alleged both members of the partnership had failed to produce records for examination, and that one member had obstructed an industrial inspector in the performance of their statutory duties. The Industrial Magistrates Court order was made against both partnership members individually, and the appeal was purportedly brought by both members of the partnership as the appellants

Contentions

The appellants sought an order quashing the default judgement order and the remittal of proceedings back to the Industrial Magistrates Court. The partner submitting the appeal contended their husband had represented both partners in the proceedings and referred to various complaints concerning the industrial inspectors, their affidavits, their service of documents and the time given to respond.

The respondent contended that only one partnership member was an appellant and that her husband had no appeal before the Full Bench. The respondent contended that a default judgement decision was interlocutory and not a final decision meaning the appeal was incompetent and should be dismissed.

Findings

The Full Bench noted that one partner had not been represented by the other as that partner was a respondent in her own right, she did not appear and filed the notice of appeal in her own name. The Full Bench noted there was no reference to her husband as an appellant in her appeal notice or grounds. The Full Bench found that for a person to have standing they must be ‘a party’ to the proceedings under s 84(3) of the Industrial Relations Act 1979 (WA) (‘IR Act’). The Full Bench found that only one partner was an appellant and that no appeal was filed by her husband.

The Full Bench found the relevant ‘decision’ that was the subject of the appeal was the order of the learned Industrial Magistrate that granted the respondent’s application at first instance for default judgment. The Full Bench noted issues with the amended and purported grounds of appeal referencing ‘appellants’ and referring to the incorrect decision. The Full Bench found that under s 27(1) of the IR Act it was not open to the Full Bench to amend an appeal that had the effect of substituting the decision under appeal for another decision. The Full Bench found it could only consider the ground which contended that the Industrial Magistrate erred in not granting an adjournment on the hearing of the default judgment application, and the assertion of a denial of procedural fairness.

The Full Bench found that the decision of the learned Industrial Magistrate could not be the subject of an appeal under s 84 of the IR Act, as it did not finally determine the rights of the parties to the proceedings. The Full Bench noted that the Industrial Magistrates Court had a discretionary power to set aside a default judgement but that no application was made by either partner to set aside the order.

The Full Bench found that the appeal was incompetent and dismissed the appeal. 

The decision can be read here.

The Public Service Arbitrator has dismissed an application by the Australian Medical Association (WA) Incorporated (AMA) seeking a conference in relation to back-pay of an allowance, finding that the application’s essential nature was seeking the enforcement of the Agreement and was not within the jurisdiction of an arbitration under s 44.

Background

The applicant made an application on behalf of several Senior Doctors to the respondent seeking back-pay in relation to a Private Practice Cost allowance under cl 23(7) of the relevant Industrial Agreement.

Contentions

The applicant sought a compulsory conference under s 44 of the Industrial Relations Act 1979 (WA) (‘IR Act’) and any other recommendations or orders the Commission saw fit in the interests of supporting ongoing compliance with the Industrial Agreement and expeditious resolution of any future disputes. The respondent sought dismissal of the claim and contended the Arbitrator was without jurisdiction to deal under s 44 of the IR Act because in substance, it was a claim for:

• enforcement of an industrial instrument, which is a claim within the exclusive jurisdiction of the Industrial Magistrates Court under s 83 of the IR Act; or,
• interpretation of an industrial instrument which needs to be made under s 46 of the IR Act and which would require the joinder of all named parties to the industrial instrument; or
• if neither of the above, a claim that contravenes the ‘no further claims’ clause of the relevant industrial instrument.

Findings

The Arbitrator noted that it would need to characterise the essential nature of the proceedings and whether the present application invoked judicial or arbitral powers. The Arbitrator noted that its powers under s 44 of the IR Act are arbitral, not judicial. The Arbitrator noted judicial powers involve the ascertainment, declaration and enforcement of rights and liabilities of parties as they exist or are deemed to exist when proceedings are instituted. The Arbitrator noted that arbitral powers are directed at whether rights and obligations should be created, consistent with the objects of the IR Act.

The Arbitrator found that the relief must be connected to the industrial dispute. The Arbitrator noted the reference to compliance in the applicant’s sought orders suggested invocation and determination of rights and obligations. The Arbitrator found that from the correspondence attached to the applications it was apparent that the parties were in a dispute about the construction of clause 23(7) and other industrial issues not strictly to do with rights and entitlements. The Arbitrator noted that the applicant’s representative stated the dispute concerned the rights and obligations under the agreement.

The Arbitrator found that the application’s essential nature was seeking the enforcement of the Agreement, was not within the arbitral jurisdiction and was not capable of being referred for arbitration under s 44. The Arbitrator dismissed the proceedings for want of jurisdiction.

The decision can be read here.