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United Voice WA authorised to alter name to United Workers Union (WA)

The Commission in Court Session (CICS) has authorised the Registrar to alter the Rules of United Voice WA to allow the organisation to change its name to United Workers Union (WA). The CICS has also authorised the alteration of the name of its counterpart federal body from United Voice to United Workers Union.

The CICS considered the evidence provided by the Secretary of United Voice WA. The evidence recorded that the process undertaken by the organisation to make the alterations had been in accordance with the requirements of Rule 28 – ALTERATION OF RULES. The evidence was that no objections were made in regard to the proposed alterations and that the alterations were authorised by the Branch Council on 14 July 2020.

The CICS also noted that the Registrar received no objections to the application after it was published.

The CICS found that the requirements of the Rules for the alteration of those rules and requirements of the Act had been met.

The CICS has authorised the Registrar to make the name changes in accordance with the terms of the application.

The decision can be read here.

Unfair dismissal claim dismissed as local radio station found to be national system employer

The Commission has determined that it is unable to hear an unfair dismissal claim because the applicant was employed by a national system employer and the Commission does not have jurisdiction to hear the matter.

The applicant was employed by Albany Community Radio Inc. He claimed that he was unfairly dismissed when his employer purported to make his position redundant.

The respondent objected to the application on the basis that it is a national system employer and the Commission does not have the necessary jurisdiction to hear and determine the claim.

Commissioner Walkington considered whether the respondent was a trading corporation as defined under the Fair Work Act 2009 (Cth). Walkington C found that, while the purpose of the respondent may not be commercial in nature, it clearly engaged in substantial trading activities such as subleasing and sponsorship activities.

Walkington C concluded that the respondent was a trading corporation and the applicant was employed by a national system employer. She found, therefore, that the Commission did not have jurisdiction to deal with the applicant’s claim for unfair dismissal.

An order was issued dismissing the application for lack of jurisdiction.

The decision can be read here.

Compliance notice confirmed as employer failed to pay redundancy pay

The Industrial Magistrate has dismissed an application to cancel a Compliance Notice issued pursuant to the Fair Work Act 2009 (Cth) on the basis that the claimant failed to pay an employee his redundancy pay when his employment was terminated by the claimant.

The claimant sought a review of a Compliance Notice issued by a Fair Work Inspector, which alleged that the claimant did not pay the employee redundancy pay under the Joinery and Building Trades Award 2010 (Cth) when his full-time employment was terminated by the claimant.

The claimant sought a cancellation of the Compliance Notice. It argued that the employee’s employment was not terminated as he was offered casual employment by letter or accepted casual employment with the claimant.

The respondent, the Fair Work Ombudsman, argued that the Compliance Notice should be confirmed.

Industrial Magistrate Hawkins found that the employee’s employment was terminated by letter at the initiative of the claimant. Hawkins IM found that it could not be inferred that by signing the letter to confirm receipt of the notice, the employee accepted the proposal of casual employment. Her Honour also found that the claimant’s proposal of casual employment lacked particularity as to the conditions of the offer and was incapable of acceptance.

The application to cancel the Compliance Notice was dismissed.

An order was issued to correct the period of redundancy pay.

The decision can be read here.

Commission has no jurisdiction to deal with termination of public service officer

The Commission has determined that it is unable to hear an unfair dismissal claim as the applicant was a public service officer whose termination must be dealt with by the Public Service Appeal Board (PSAB).

The applicant alleged he was unfairly terminated from his employment with the Rottnest Island Authority. He argued that s 80I(1)(d) of the Industrial Relations Act 1979 (WA) expressly excludes the PSAB from hearing an appeal concerning a ‘dismissal’ of a government officer. The applicant contended that, as a public service officer which is a subgroup of a government officer, he was precluded from appealing the decision to dismiss pursuant to the Act and had to apply to the general unfair dismissal jurisdiction of the Commission.

The respondent contended that s 80I(1)(d) of the Act provides that the PSAB has exclusive jurisdiction to hear and determine an appeal of the dismissal of a government officer. It claimed that the applicant’s claims should be dealt with by the PSAB.

Commissioner Walkington found that the applicant’s construction of s 80I(1)(d) of the Act was not correct. She found that all claims of dismissal by a government officer are to be dealt with by the PSAB, not the Commission.

Walkington C found that the Commission had no jurisdiction to deal with the applicant’s claim.

The applicant had also contended that the Public Service and Government Officers CSA General Agreement (Agreement) provides for unresolved disputes to be referred to the Commission. He submitted that he had followed the dispute resolution procedure in the Agreement and that since the dispute had not been resolved, he purports to refer the dispute to the Commission.

Walkington C found that the dispute resolution procedure contained in the Agreement could not confer jurisdiction on the Commission to deal with the matter where it was ousted by the jurisdiction of the PSAB.

The application was dismissed.

The decision can be read here.

Full Bench on remittal dismisses appeal and finds teacher fit for work

The Full Bench has unanimously dismissed an appeal against the decision of the Commission on remittal of a teacher who dismissed on grounds of ill health.

Background

The State School Teachers’ Union of WA (SSTU) alleged that its member, a teacher, was unfairly dismissed from his employment with the Department of Education on grounds of ill health. The SSTU sought an order that the teacher be reinstated or re-employed at a school other than Busselton Senior High School (BSHS).

At first instance, the Commission found that the dismissal of the teacher was unfair but declined to reinstate him or order he be re-employed. An order for the payment of compensation was made.

The first appeal

On appeal to the Full Bench, the Full Bench suspended the Commission’s decision and remitted the matter back to the Commission for further hearing. The matter to be considered by the Commission was the teacher’s capacity to return to work and the practicability of being reinstated or alternatively re-employed at a school other than BSHS.

Remittal

On remittal, the Commissioner concluded on the evidence, including medical evidence obtained by the SSTU, that as at the time of the remittal, the teacher was fit for work at a school other than BSHS.

The Commission also dismissed an application under s 27(1) of the Industrial Relations Act 1979 (WA) brought by the Director-General of the Department of Education, that the proceedings should be dismissed because the SSTU failed to disclose a medical certificate and report at the first instance hearing. The Commission reduced the amount of compensation awarded to the teacher by 50% because of his failure to mitigate loss and disclose documents at the first hearing.

A summary of the matters leading up to this appeal can be found here.

Second appeal

The Director-General appealed, setting out three main issues in the appeal grounds, being the dismissal of the s 27(1) application; the fitness for work reinstatement issue; and the lack of trust and confidence reinstatement issue.

Section 27(1) application

Section 27(1)(a) is a power to dismiss an application or refrain from further hearing or determination.

Senior Commissioner Kenner, with whom Chief Commissioner Scott and Commissioner Emmanuel agreed, noted that underlying the Director General’s grounds on this issue, was an assertion of improper conduct by the SSTU in failing to alert the Director-General and the Commission at the first hearing of a further medical certificate that related to the teacher’s fitness for work.

The Director-General made several submissions in relation to the s 27(1) application, including that the Commissioner erred in law by mistaking the facts relating to the teacher’s fitness for work, failing to consider the prejudice to the Director-General by reason of the failure to disclose the second medical certificate, and failing to identify and consider several important factors relevant to the public interest.

The Full Bench found that the Commissioner made no factual error as asserted by the Director-General, had adequately assessed the impact of the failure to disclose the second medical certificate, and correctly considered that it was impossible to know, in retrospect, the impact of the SSTU’s possession of the second certificate.

The Full Bench found that the Director General’s assertion that the teacher was complicit in failing to disclose the second certificate was a ‘long bow to draw’ and that there was no direct evidence to prove the assertion. It noted that, to warrant the summary dismissal of proceedings to the great prejudice of the teacher, serious misconduct must have been demonstrated.

The grounds relating to the s 27(1) application were dismissed.

Reinstatement – fitness for work

The Director-General argued that the Commissioner erred in law in applying the wrong test as to whether the teacher was ‘fit for work’ and met the inherent requirements of a Senior Teacher position, including the ability to perform the work safely without risk to themselves or to others. The crux of the Director General’s contentions was directed at the prospect of a relapse of the teacher’s prior adjustment disorder and the Commissioner’s failure to consider the risk of this.

The Full Bench found that it was open for the Commissioner to accept the evidence of the expert witness, a professor, conclude that the teacher was fit for work, and find that the possibility of a relapse at another school was only speculative.

The grounds relating to fitness for work were dismissed.

Reinstatement – trust and confidence

On remittal, the Commissioner had concluded that the documents and communications between the teacher and others did not establish such a loss of trust and confidence to make a return to work a difficulty.

The Director-General made several submissions in relation to the trust and confidence issue. It was alleged that it was not feasible for the employment relationship to be re-established in light of the teacher’s lack of trust and confidence in the Director-General and the Department, which was expressed through the tone and words used in his correspondence.

The Full Bench found that none of the material relied upon by the Director-General established a case of a loss of trust and confidence in his workplace of a schoolteacher in a classroom setting, or in the interaction between with other teachers or principals with whom he may work with.

Instead, the Full Bench found that the teacher had legitimate concerns as to the difficulties experienced at BSHS. It found that it was open for the Commissioner to conclude that the teacher was well-intended, to improve not only BSHS but also the work environment for teachers generally.

Chief Commissioner Scott also noted that the teacher’s correspondence with the Director-General was expressed in a manner that was not disrespectful or discourteous, and there was nothing to suggest a breakdown of trust and confidence in the parties’ communications.

The grounds relating to trust and confidence were dismissed.

Adequacy of reasons

The Full Bench also found that whilst overly brief, the Commissioner’s reasons on remittal were adequate. Scott CC also noted that the reasons would have been enhanced for the purposes of a better understanding of them if they were more detailed.  

The decision can be read here.

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