The Full Bench has unanimously dismissed an appeal against a decision of the Commission on the basis that no appealable error had been made out to quash the decision at first instance that found that the dismissal of a deputy principal for misconduct was not harsh, oppressive, or unfair.

Background

The appellant was employed as Deputy Principal at Lumen Christi College. In 2019, the appellant was dismissed for serious misconduct following an investigation into historical sexual assault allegations made against him by a former student. He denied the allegations.

The appellant made an unfair dismissal application to the Commission. He claimed that the investigation process was flawed, the investigators had insufficient expertise, the evidence was contaminated, and that the expert psychologist’s report did not substantiate the allegations.

At first instance

Senior Commissioner Kenner dismissed the application. He found that he was satisfied that the investigators had regard to the appropriate principles in approaching the workplace investigation and noted that the standard of proof and approach to the inquiry was necessarily different to that of a criminal investigation.

Kenner SC determined, based on the material, it was open for the respondent, after a sufficient inquiry, to hold an honest and genuine belief, based on reasonable grounds, that the misconduct occurred.

A summary of the decision at first instance can be read here.

Appeal to the Full Bench

The appellant relied upon nine grounds of appeal.

Chief Commissioner Scott and Commissioner Walkington delivered joint reasons and dismissed all grounds but one. However, they concluded that although Ground 5 was upheld, it did not otherwise upset the conclusions at first instance.

Commissioner Emmanuel, in a separate reasons, dismissed all nine grounds.

Grounds 1 and 2

The appellant argued that Kenner SC erred in deciding that the appropriate test was that he only had to be satisfied that the respondent, after a reasonable investigation, held an honest and genuine belief based on reasonable grounds, that the misconduct alleged of the appellant occurred. Rather, the appellant said that the Commission must be satisfied that the misconduct actually occurred.

The appellant also contended that the Commission failed to apply the Briginshaw standard to his findings.

Scott CC and Walkington C found that Kenner SC applied the proper principle about the employer’s belief in the context of the serious nature of the allegations of sexual assault. They found that he did not and was not himself required to be satisfied that the misconduct occurred.

Scott CC and Walkington C found, as did Emmanuel C, that Kenner SC correctly identified the evidentiary onus as being ‘whether the respondent, after as proper and as through an inquiry as was necessary in the circumstances, held and honest and genuine belief, based on reasonable grounds, that the misconduct alleged occurred’. They also found that Kenner SC did not fail to apply the Briginshaw standard.

Ground 3, 4, 6, 7, 8 and 9

In these grounds, the appellant asserted that Kenner SC erred:

• in using circumstantial evidence to draw inferences adverse to the appellant;
• in his findings with respect to the receipt of and weight to be afforded to the hearsay evidence;
• when he found the essence of the written statements (the Statements) made by the former student to be compelling and credible;
• when he found that the tweets sent by the former student to the appellant were consistent with something of significance having occurred between them in the past;
• in failing to consider unchallenged character evidence from six character witnesses; and
• in concluding that the respondent had satisfied the test in reaching its conclusions.

These grounds were dismissed by Scott CC and Walkington C, and Emmanuel C.

They found that Kenner SC did not err in the way he dealt with the circumstantial evidence, or by accepting hearsay evidence in preference to the appellant’s sworn, first-hand evidence. They found that it was open for him to find the essence of the Statements to be compelling and credible.

They also determined that he had considered the character evidence, and he was entitled to treat the tweets as circumstantial evidence and conclude that the tweets supported a finding that something of significance had happened in the past.

In addition, they found that Kenner SC was entitled to conclude that the investigation undertaken, after a substantial lapse of time and considering the seriousness of the allegations, was conducted in a fair and reasonable way. They also rejected the appellant’s arguments about a range of issues.

Ground 5

The appellant contended that Kenner SC erred in his regard of one of the witnesses being a witness of truth in the face of a number of concerns about her evidence.

Scott CC and Walkington C defined ‘witness of truth’ as meaning that the evidence of the witness can be believed because of some particular quality of truthfulness of the witness, and the whole of the witness’s evidence ought to be treated as being credible.

They found that the witness could not strictly be described as a ‘witness of truth’ because there were a number of elements of the witness’s evidence that were questionable. However, they found that there were a number of aspects of her evidence that were credible and that the Senior Commissioner was entitled to accept that evidence as truthful and to prefer it to the appellant’s evidence. Although Scott CC and Walkington C upheld this ground, they found that it did not otherwise upset Kenner SC’s conclusions. They were not satisfied that the findings made by Kenner SC, including that he accepted her evidence, were in error.

Emmanuel C dismissed this ground. She found that Kenner SC did not err in finding that the witness was a witness of truth and preferring her evidence to the appellant’s evidence.

The appeal was dismissed.

The decision can be read here.

The Commission has reviewed and updated all Practice Notes. The former Practice Notes have been replaced.

The following Practice Notes have been issued:

• Practice Note 1 of 2021: Delivery of reserved decisions
• Practice Note 2 of 2021: Inspection and search of Commission records
• Practice Note 3 of 2021: Written and oral submissions to the Full Bench and CICS
• Practice Note 4 of 2021: Providing copies of decisions to the Commission during proceedings
• Practice Note 5 of 2021: Appeals and applications before the Full Bench and CICS - want of prosecution
• Practice Note 6 of 2021: Interlocutory proceedings before the Full Bench, CICS or Chief Commissioner
• Practice Note 7 of 2021: Public Service Arbitrator Reclassification Appeals
• Practice Note 8 of 2021: Concurrent expert evidence
• Practice Note 9 of 2021: Witness outlines and witness statements
• Practice Note 10 of 2021: Evidence or submission by telephone or video link
• Practice Note 11 of 2021: Electronic devices in hearing rooms

The Commission’s Practice Notes are also accessible on this page.

(NOTE: Practice Note 12 of 2021, issued on 14 December 2021, replaces Practice Note 3 of 2021)

The Commission has dismissed a claim for denied contractual benefits on the basis that the applicant was not constructively dismissed by his employer. It found that the employer did not repudiate the applicant’s contract of employment and that even if there was a repudiation, the applicant affirmed the contract by continuing in his position for almost five months after the purported repudiation.

Background

In late 2018, the applicant was approached by the respondent, the University of Western Australia, to discuss a possible position with the respondent in relation to a finance transformation project (Project) the respondent was proposing to implement.

The applicant entered into a contract of employment for the position of Project Analyst on a fixed term basis for two years. A significant component of the Project was the ‘Total Accounting System Replacement’ (TASR). To progress the TASR, a business case was required to be approved by the senior executive. However, because of financial constraints, the business case was not approved.

Contentions

The applicant maintained that it was the intention of his engagement to take a lead role in the Project and the non-approval of the TASR led to a substantial reduction in the scope of his duties and responsibilities. He argued that he was then provided with no ‘meaningful work’. The applicant argued that the effect of this was a repudiation by the respondent of the applicant’s contract, which led to his resignation in July 2020.

The applicant claimed that he had no alternative but to resign and maintained that he was ‘constructively dismissed’ because of the respondent’s repudiation of his contract. He sought payment under the termination of employment provisions of his contract, totalling over $100,000.

The respondent contended that the applicant had no entitlement under his contract as he voluntarily resigned from his employment. It denied that the changes made to the Project led to a sufficiently major alteration to his duties to constitute a repudiation of his contract.

The respondent relied upon the express terms of the contract, which it said enabled the respondent to allocate varied duties to the applicant or even no work at all, as long as he was continued to be paid.

Findings

Senior Commissioner Kenner found that the respondent did not repudiate the applicant’s contract of employment. He found that the contract provided express terms that allowed the respondent to designate duties outside the scope of the applicant’s ‘usual role’, and even assign the applicant no work as long as he continued to be paid in full. Kenner SC determined that the applicant’s submission that the respondent had to provide him with ‘meaningful work’ could not be sustained and was contrary to the express terms of the contract.

Kenner SC also found that there was an express ‘entire agreement’ clause and the applicant could not rely on statements made to him before his acceptance of employment.

In addition, Kenner SC found that there was a significant delay in the applicant claiming his contract of employment had been repudiated, constituting a dismissal. He noted that the applicant continued to work in his position for almost five months after the alleged repudiation occurred. Kenner SC found that even if there was a repudiation, it would be open to conclude that the applicant affirmed the contract and lost his right to regard himself as dismissed.

The application was dismissed.

The decision can be read here.

The Commission has dismissed a jurisdictional objection to the Commission hearing and determining an unfair dismissal matter. It found that as the employer was not a trading corporation and therefore not a national system employer, the Commission has jurisdiction to hear and determine the matter.

Contentions

The applicant, an employee of the WA Police Union of Workers (Union), made an application claiming unfair dismissal by the Union.

The Union objected to the Commission hearing and determining the application because it said that the Union is a trading corporation and therefore a national system employer. It argued that its Rules ‘contemplate that trading and financial activities will make up a substantial endeavour and purpose’ of the Union. It also contended that its largest source of income, membership fees, has trading characteristics.

The applicant agreed that the Union engages in some trading activities but contended that those activities are insufficient to justify the Union being characterised as a trading corporation. She argued that the Union’s purpose is to protect and further the industrial interest of its members and that charging membership fees is not a trading activity.

The applicant also said that trade unions are not ordinarily, by their nature, trading corporations and the Union had not established that it was an exception. She argued that the jurisdictional objection should be dismissed.

Findings

Commissioner Emmanuel considered the evidence and concluded that the Union is not a trading corporation. She noted that the central weakness in the Union’s case was equating the receipt of income (mostly in membership fees) with the Union being a trading corporation, without adequate explanation or identification of the trading or commercial character of the Union’s activities. Further, she observed that the Union’s submissions overstated the commercial nature of its activities.

Emmanuel C found that the sale of memberships lacks a commercial or business character and is not a trading activity. Instead, she found that receiving membership fees is an industrial advocacy activity, carried on with a view to improving the industrial interests of members.

Emmanuel C also found that other trading activities engaged in by the Union, including receiving income in exchange for rental accommodation and selling advertising space and watches, did not form a sufficiently significant proportion of the Union’s overall activities to characterise the Union as a trading corporation.

Emmanuel C found that the Union is not a national system employer. The Union’s objection to the Commission exercising its jurisdiction in this matter was dismissed.

The decision can be read here.

The Commission in Court Session (CICS) has reviewed the operation of the COVID-19 Flexible Leave Arrangements General Order and the JobKeeper General Order and has concluded that they will cease to have effect on 31 and 28 March 2021, respectively.

Leave Flexibility General Order

On 14 April 2020, the CICS issued a General Order amidst the COVID-19 pandemic to provide for flexible leave arrangements that allowed state system employees to take unpaid pandemic leave, annual leave on half-pay and annual leave in advance.

On 22 July 2020, the Commission reviewed the General Order of its own motion and extended its operation until 31 March 2020.

In mid-March 2021, the Commission further reviewed the General Order of its own motion and received responses from the parties. Except for the Chamber of Commerce and Industry of Western Australia, the parties considered that the General Order has served its purpose and ought not to continue in effect.

The CICS concluded that a further extension of the General Order is unnecessary at this time. It will cease to have effect on 31 March 2021.

This Statement can be read here.

JobKeeper General Order

On 15 May 2020, the CICS issued a General Order to provide employers with further flexibility to manage employment arrangements in a manner that supported the JobKeeper Scheme.

In mid-March 2021, the Commission reviewed the operation of the General Order of its own motion and sought responses from the parties. The parties reported that given that the General Order is directly linked to the Federal JobKeeper Scheme which ended on 28 March 2021, it was considered appropriate that the General Order cease to have effect in accordance with its terms.

It ceased to have effect on 28 March 2021.

This Statement can be read here.