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Dismissal of Employee’s ‘Overcycle’ Payment Claim: No Denied Contractual Benefit

The applicant sought a contractual benefit of $7,093.80 for alleged non-payment related to overcycle work under his employment contract with the respondent. The dispute centred on the Employment Schedule’s interpretation, specifically clauses 5 and 7 concerning Hours of Work and Overcycle payments. The respondent contended that the applicant was not entitled to the overcycle benefit due to a change in the roster, which was within the contractual rights outlined in the Flexible Working Hours clause.

The crucial question for resolution was whether the respondent denied the applicant a due benefit. Commissioner Tsang found that the contract allowed the respondent to vary the applicant’s roster, supported by the language of the ‘initial roster’ in the Hours of Work Clause and flexibility provisions in the Flexible Working Hours clause. Commissioner Tsang determined that a reasonable person would understand the contract to permit roster changes, including those arising from external factors like COVID-19 flight restrictions.

Addressing the applicant’s argument that changes should be consistent with the Overcycle Clause, Commissioner Tsang held that the contract did not need to specify the mechanism for roster variation. However, this did not negate the respondent’s right to vary the roster and the applicant’s obligation to remain flexible. Commissioner Tsang dismissed the applicant’s claim, emphasising that the varied roster of 28 days on/28 days off meant he was not working ‘over’ the cycle, thus disentitling him from the overcycle rate. Further, the applicant’s subsequent R&R period justified the denial of the overcycle rate. Consequently, Commissioner Tsang concluded that the applicant failed to establish his claim for a denied contractual benefit, leading to the dismissal of the application.

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The decision can be read here.

Commission has Jurisdiction in Unfair Dismissal Claim: Respondent not a Trading Corporation

The applicant claimed unfair dismissal against the respondent, her former employer. The respondent contested the jurisdiction of the Commission, arguing that it is a national system employer under the Fair Work Act 2009 (Cth). The central issue was whether the respondent, as a corporation, engaged in trading activities, thus determining the Commission’s jurisdiction.

The respondent submitted evidence, including a statutory declaration by its CEO, outlining its income sources, which included government service agreements, grants, and trading activities such as the sale of goods and rental income. The CEO’s declaration also highlighted the respondent’s strategic plan, emphasising a profit-for-purpose approach and a diversified income generation strategy.

Commissioner Walkington evaluated whether the respondent was a corporation engaging in trading activities. Commissioner Walkington found that the Constitution described the respondent as an association, and there was no evidence of its incorporation. Consequently, the Commission could not conclude that the respondent is a corporation. Regarding trading activities, the Commission considered sources of revenue, emphasising that income from government grants and services did not exhibit the character of trading. While the respondent engaged in some trading activities like the sale of goods and rent, these were deemed limited and incidental, not substantial or significant.

As a result, Commissioner Walkington concluded that the respondent is not a trading corporation, establishing the Commission’s jurisdiction to conciliate and potentially hear and determine the unfair dismissal claim.

The decision can be read here.

Commission Orders Payment of Unpaid Wages but Rejects Profit Share Claim

The applicant sought unpaid salary, a profit share arrangement, and accrued annual leave from the respondent, her employer. Despite notifications and opportunities for the respondent to respond, the employer did not participate in the proceedings. Commissioner Walkington, satisfied with a reasonable opportunity had been given, proceeded in the absence of Wild Squeeze.

The applicant, initially a barista, was promoted to Café Manager with an agreed-upon increase in pay. Disputes arose over unpaid wages, accrued leave, and expenses. The evidence, including email exchanges, supported the applicant’s claim for unpaid wages, with Commissioner Walkington finding her to be a full-time employee. Although a payment was made by the employer, a balance for unpaid wages remained, and Commissioner Walkington ordered the outstanding amount.

Regarding the profit share claim, Commissioner Walkington determined that the Christmas card from the respondent to the applicant, in which the respondent referred to a 10% profit share, did not meet the criteria for a binding contract variation. The terms of the profit share arrangement were deemed uncertain, and the lack of evidence on the Café's profit further hindered finding for the applicant. Consequently, Commissioner Walkington did not find a contractual benefit or entitlement denied in the profit share claim.

In conclusion, Commissioner Walkington ordered the respondent to pay the balance of unpaid wages to the applicant but dismissed the profit share claim due to insufficient evidence of a binding contract variation.

The decision can be read here.

Dismissal of Unfair Dismissal Claim: Applicant’s Failure Prosecute Matter

The applicant, a former Recruitment Manager for the Reilly Trust, filed an unfair dismissal application after her dismissal in November 2021. Despite being initially represented, the applicant faced challenges, including a withdrawal of representation and communication issues with the Commission. The respondent objected to the application, citing a delay of 81 days after her dismissal.

Commissioner Walkington and her Chambers staff made several attempts to contact the applicant regarding her application, including emails, voicemails, and notifications of deadlines. However, the applicant did not respond or attend the show cause hearing. Commissioner Walkington emphasised the importance of diligence in prosecuting proceedings and the applicant’s responsibility to adhere to deadlines. Given the significant delay and the lack of a satisfactory explanation, the Commission exercised its powers under s 27(1)(a) of the Industrial Relations Act 1979 (WA) and ordered the dismissal of the applicant’s application.

The decision can be read here.

Dismissal Upheld: Board Deems COVID-19 Vaccination Order Justified for Senior Community Engagement Officer

The applicant, a Level 4 Senior Community Engagement Officer (SCEO) with the Registry of Births, Deaths and Marriages, Department of Justice, was dismissed for non-compliance with a vaccination order issued by the Director General. This order stemmed from a 2021 restructure, which incorporated travel expectations linked to Chief Health Officer (CHO) Directions related to COVID-19 vaccination. The applicant contended that her role did not inherently involve travel to remote communities, and the Employer Direction was not applicable.

The Public Service Appeal Board dismissed the application, stating that the Employer Direction was lawful, fell within the employment contract’s scope, and was reasonable. The Board emphasised that the applicant’s role necessitated attendance at schools and hospitals, requiring compliance with CHO Directions related to vaccination. Non-compliance constituted a breach of discipline. The dismissal was deemed fair, considering the significance of travel in her role, her inability to perform duties due to non-compliance, and the absence of evidence indicating unfair treatment compared to other government employees.

Despite acknowledging the impact of dismissal on the applicant, the Board concluded that the decision was not harsh, oppressive, or unjust. The findings reinforced the legality and reasonableness of the Employer Direction, aligning it with the duties outlined in the employment contract and CHO Directions. The applicant’s refusal to comply with vaccination requirements, essential for fulfilling her responsibilities, justified the disciplinary action taken by the Director General.

The decision can be read here.

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