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The onus is on the applicant to prove non-payment of salary

The Commission has upheld a denied contractual benefits claim made by a former employee of an entity which traded as M4 Marketing that she was not paid for part of the period of her claim. The applicant alleged that she had not been paid her salary and leave entitlements from 2 April 2019 to 17 April 2019.

Commissioner Mathews considered the limitations in considering the evidence when both parties appeared by telephone. Matthews C held that for the period of 3 to 10 April 2019 the applicant had not proven, on the balance of probabilities, that she was not paid. However, for the period 11 and 12 April 2019 the respondent had not given evidence disputing the applicant’s claim she was not paid. Finally, Matthews C found that for the period of 15 to 17 April 2019, the applicant had not proven to the requisite standard that she had an entitlement to sick leave for those dates.

Matthews C ordered that the applicant's salary for the two days' of 11 and 12 April 2019 be paid, and, that the name of the respondent listed on the application be amended.

The decision can be read here.

Interim order for continuation of employment dismissed

The Public Service Arbitrator has dismissed an application for interim relief, brought under section 44(6)(ba)(iii) of the Industrial Relations Act 1979 (WA), and made by the Civil Service Association (Inc.) on behalf of its member. The substantive claim sought that the member's employment be converted from fixed term to permanent in accordance with the Commissioner's Instruction No. 23. The applicant's interim application, made in the course of a compulsory conference, claimed that there was a material misunderstanding by the respondent of the facts or the existence of erroneous records, and, that the grant of this order would encourage the parties to exchange or divulge attitudes or information that would, in some way, result in settlement of the matter.

Section 44(6)(ba)(iii) sets out the Commission's powers at or in relation to a compulsory conference and states:

"(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission —

(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question…"

For the interim order sought to be made out, the applicant was required to establish how the criterion outlined in s 44(6)(ba)(iii) was met and how the Commission could reach the requisite opinion. The Arbitrator considered that there was nothing in the submissions to satisfy how the grant of an extension in the member's employment relationship would demonstrate the s 44(6)(ba)(iii) criteria. Further, the Arbitrator found that there was no suggestion made that would enable him to form the requisite opinion that the respondent had not been prepared to divulge information or exchange attitudes in relation to the matters in dispute.

The Arbitrator consequently dismissed the application for interim orders.

The decision can be read here.

Overseas farm worker an employee and covered by Award

The Industrial Magistrate has upheld a claim against a sole trader for contravening the Farm Employees Award 1985 (WA) (Award) by failing to pay an overseas worker certain award entitlements as a farm hand.

The claimant argued that the worker was not a volunteer, but an employee, and subject to the terms of the Award during her employment. The claimant asserted that the worker was not paid wages owed, sick leave and annual leave under the Award.

The respondent, a farm operator, denied the claim and argued that the worker was not an employee, but a volunteer, at her farm. The respondent argued that as part of an agreement, the respondent offered the worker food, accommodation and payslips for the purposes of obtaining her second-year working visa.

There were three issues for determination:

  1. Whether the worker was an employee or volunteer, in respect of the respondent’s business;
  2. Whether the worker’s employment, if she was an employee, was covered by the Award; and
  3. Whether the worker was paid in accordance with the Award, if she was an employee, and covered by the Award.

In relation to the first issue, the Industrial Magistrate considered the level of control exercised by the Respondent, and the payment of tax and superannuation on behalf of the worker. In the Industrial Magistrate’s application of common law legal principle, she found that, on the balance of probabilities, the worker was an employee of the respondent and not a volunteer.

Regarding the second issue, the Industrial Magistrate considered whether the employee was covered under clause 3 of the Award, which protects employees working in the farming industry. The Industrial Magistrate found, because the employee’s work involved all aspects of animal husbandry in connection with the breeding and grazing of horses, her employment was covered by the Award.  

In relation to the third issue, the Industrial Magistrate found that the respondent contravened the Award and ordered the respondent to pay the claimant for the employee’s unpaid wages totalling over $10,000, sick leave on three occasions, sick leave on termination of employment and annual leave on termination of employment. The Industrial Magistrate also ordered the respondent to pay the claimant a penalty of $1,500 under s 93(4) of the Industrial Relations Act 1979 (WA).

The decision can be read here.

PSAB not persuaded to adjust respondent's decision

The Public Service Appeal Board has unanimously dismissed an appeal by a medical scientist who was dismissed by PathWest Laboratory Medicine WA. On 20 December 2018, the respondent found that the medical scientist had breached the WA Health Code of Conduct and issued her with a fourth reprimand. It then dismissed her on 23 January 2019.

The Board determined three preliminary matters. Firstly, it found that an interlocutory application made by the respondent to dismiss the appeal was not an issue that needed to be decided because the relationship between the parties had deteriorated to the extent that an employment relationship should not be restored. Secondly, the Board considered whether to hear the appeal of the respondent's first decision out of time and found that, in light of the circumstances of the matter, the extension of time should be granted. The Board dismissed a final preliminary application by the appellant in which she sought discovery of certain documents. The Board found that the documents were not necessary to resolve the matters in dispute.

Turning to the substantive matter, the Board considered that the allegations against the medical scientist about three interactions with her colleagues were made out and that her conduct was a breach of discipline. As such, the Board dismissed this part of the appeal and determined not to interfere with the respondent's findings of 20 December 2018.

Finally, the Board found that the dismissal was not warranted in the circumstances and that the appellant should have been given one final chance. However, the Board decided not to adjust the decision to dismiss because it found that reinstatement would not be practicable given that the medical scientist's dissatisfaction was with the organisation as a whole and not just the laboratory that she worked at. Also, the Board found that the evidence suggested that the medical scientist had a total incapacity to work for any employer in her field.

The Board dismissed the appeal.

The decision can be read here.

Full Bench finds no appellable error was established

The Full Bench has unanimously dismissed three appeals by a teacher who was dismissed by the Department of Education. The Commission at first instance found that the teacher was not entitled to challenge three separate disciplinary actions against him. The learned Commissioner found that two applications ought to be dismissed because the teacher had excessively delayed bringing the proceedings. A third application was dismissed on the basis that the teacher had signed a Deed of Settlement (the Deed) that barred him from bringing any claim.

For an appeal against a discretionary decision to be established it must be shown that there was an error in the Commissioner's decision-making. The Full Bench dismissed all six of the grounds of appeal brought by the teacher. The grounds alleged that the learned Commissioner had erred by not having regard to considerations such as the hardship to the teacher; the public interest and interests of employees generally; the lack of prejudice to the Department; that the learned Commissioner had prejudged the teacher after the teacher had admitted to wrongdoing; that investigation reports had prejudiced the teacher's case or that the learned Commissioner was biased against the teacher.

The Full Bench commented that the learned Commissioner had considered the issue of hardship to the employee if the claim was dismissed and that the teacher had made a conscious decision at the material time to not challenge the historical claims. The Full Bench also noted that two of the grounds of appeal did not identify any error by the learned Commissioner, as is required for an appeal to be brought against a discretionary decision. Further, the Full Bench found that the learned Commissioner had not displayed bias or prejudice towards the teacher, that the Deed was conclusive of settlement and contained the teacher's promise that he would not commence further proceedings. It was also found that there was no evidence to suggest that the teacher had been misled by the Department when he signed the Deed.

The Full Bench determined that no appealable error in the learned Commissioner's discretionary decision had been established and dismissed all three appeals.

The decision can be read here.

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