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Maintenance company ordered to pay penalty for contraventions of FW Act

The Industrial Magistrate, in a supplementary Reasons for Decision, has ordered that a maintenance company pay a pecuniary penalty of $59,850 to an ex-employee for contravening civil remedy provisions of the Fair Work Act 2009 (Cth) (FWA) concerning a range of leave and record-keeping provisions.

In the first reasons, Industrial Magistrate Flynn upheld a claim for payments made under the FWA for accrued annual leave, public holidays, overtime and leave loading. A summary of those reasons can be read here.

The supplementary reasons are in relation to an application by the ex-employee for a pecuniary penalty pursuant to the FWA.

The ex-employee submitted that the appropriate total of penalties to be imposed should be $105,000. He claimed that the company engaged him as a sham contractor, applied illegitimate pressure to sign a waiver document and that its conduct could be described as a gross failure to comply with the FWA. The ex-employee also called for a substantial personal deterrent penalty as the company expressed no contrition and submitted that, as an unskilled older worker, is unlikely to work again.

The company submitted that the appropriate penalty should be $23,121. It submitted that it made an honest mistake in characterising the claimant’s arrangement and legal relationship, findings of ‘illegitimate pressure’ and ‘economic duress’ was isolated and occurred once and that it had taken adequate corrective action. The company rejected the ex-employee’s claims that it deliberately set out to evade the law or misrepresent the arrangement to the ex-employee.

Industrial Magistrate Scaddan found that her reading of the first reasons did not reveal that Flynn IM found, or inferred, that the company misrepresented the arrangement between the parties, engaged in deceitful conduct, or gave rise to the consideration of a sham arrangement. Her Honour also determined that the company did not attempt to ‘hide’ any contraventions and had taken further steps to ensure future compliance with the FWA. However, her Honour considered the fact that the ex-employee is an unskilled worker and suffered a loss (being the actual entitlements) that was reasonably significant.

Scaddan IM found that the appropriate penalty to be paid to the ex-employee was $59,850.

An order has been made accordingly.

The decision can be read here.

Industrial Appeal Court dismisses appeal of substandard teacher

The Western Australian Industrial Appeal Court (IAC) has dismissed an appeal against the decision of the Full Bench of the Western Australian Industrial Relations Commission on the basis that the Full Bench made no error in the construction or interpretation of the Teacher Registration Act 2012 (WA) or the Public Sector Management Act 1984 (WA) (PSM Act).

The appellant, a teacher, was dismissed from his employment by the Director General of the Department of Education, on the ground that his performance as a teacher was substandard.

At first instance

The appellant applied to the Commission claiming that he had been harshly, oppressively or unfairly dismissed. He claimed that the process followed to determine that he was performing at a substandard level was flawed and that, in any event, he was not a substandard teacher.

Commissioner Matthews made several findings related to the appellant’s ineffective methods of teaching, poor communication with students, unwillingness to closely monitor the class and inflexibility in tackling problems.

Matthews C referred to the appellant’s complaint raised in his closing submissions that he was incorrectly assessed against the ‘proficient’ level rather than the lower ‘graduate’ level in the standards administered by the Australian Institute for Teaching and School Leadership (AITSL).

Matthews C found the applicant’s performance to be substandard regardless of whether he had considered him to be a ‘proficient’ or ‘graduate’ teacher in relation to the AITSL standards.

The application was dismissed.

Appeal to the Full Bench

On appeal, the Full Bench unanimously found that Matthews C identified the correct statutory requirements under s 79(2) PSM Act and had, in the application of the PSM Act, considered the appellant’s performance in terms of both standards.

Chief Commissioner Scott noted that the appellant had asserted that he was a proficient teacher and presented himself as being an experienced and competent teacher. She noted that during the process of his performance being assessed, the appellant did not complain that he was being assessed against the wrong standard. She found that there was sufficient evidence for Matthews C to conclude that the appellant’s performance was substandard, whether he was assessed at the ‘proficient’ or ‘graduate’ level.

The appeal was dismissed.

Appeal to the IAC

The appellant contended that the Full Bench erred in the construction or interpretation of s 79(2) PSM Act read with the Teacher Registration Act by finding that he could be assessed at the ‘proficient’ level, a career level he had not reached. The appellant argued that the respondent must assess him at the career level he attained for the purposes of registration under the Teacher Registration Act, that is, the lower ‘graduate’ level.

The IAC found that it was not necessary for the Full Bench to decide whether the s 79(2) PSM Act required the respondent to assess the appellant’s performance at the ‘graduate’ level. The IAC determined that this was because the Full Bench did not rule that the appellant could be assessed at the ‘proficient’ level, but instead that it was open to Matthews C to make findings based on the evidence and to conclude that the appellant’s performance was substandard.

The IAC concluded that the relevant finding of the Full Bench did not disclose an error in the construction or interpretation of the Teacher Registration Act or the PSM Act.

The appeal was dismissed.

The decision can be read here.

Police Commissioner entitled to lose confidence in police officer engaging in secondary employment

Details  Created: 22 October 2020

The Western Australian Industrial Relations Commission (WAIRC) has unanimously dismissed an appeal against the removal of a police officer over his conduct relating to secondary employment. The WAIRC found that the Commissioner of Police was entitled to have lost confidence in the integrity, honesty and conduct of the officer and that his removal was not harsh, oppressive or unfair.

During 2015 and 2016, the officer was criminally and managerially investigated in relation to matters associated with his secondary employment in which he operated a bakery.

The reasons the Commissioner lost confidence in the officer were that the officer:

  • lied to detectives and was deceptive on a number of occasions about a number of issues when they questioned him in relation to the alleged theft of bakery equipment;
  • removed bakery equipment from the premises he had previously rented without legal entitlement to do so;
  • disobeyed a lawful order by continuing to perform secondary employment after his approval to do so had been rescinded and he was directed to immediately cease the secondary employment;
  • conducted aspects of his secondary employment whilst on duty and in police uniform. This conduct included receiving money from a customer of the bakery, promoting his bakery products and making telephone calls;
  • lied to internal investigators during a managerial interview about undertaking secondary employment after his permission to perform it had been rescinded; and
  • associated with a known criminal. This included employing him, even though he suspected he was using drugs and dealing drugs from the bakery’s truck. The officer also contacted the prosecutor to have charges against the man withdrawn because he needed him to operate the business.

The officer appealed against his removal on the basis that it was harsh, oppressive, or unfair. He argued it was not reasonable open for the Commissioner:

  1. to conclude that he was guilty of the wrongdoing alleged of him, and;
  2. to have removed him for any alleged wrongdoing that is provable against him, and thus the removal was not justified to maintain the proper functioning of the Police Force.

The WAIRC dismissed both grounds of appeal. It found that, on the evidence, the Commissioner was entitled to conclude that the officer was guilty of the wrongdoing alleged of him in all but one minor aspect of those reasons. The WAIRC also found that the officer’s attitude towards his obligations and responsibilities as a police officer were subjugated to his secondary employment and commercial interests. It found that it led him to act contrary to his obligation, and that his removal was in accordance with the public interest.

The WAIRC concluded that there was there was good reason why the Commissioner would have ceased to have confidence in the officer and to take removal action. To do so was not harsh, oppressive, or unfair.

The WAIRC also expressed concern about police officers undertaking secondary employment given the real potential for conflict with the duties and obligations as police officers.

The appeal was dismissed.

The decision can be read here.

Application by HSUWA for deferral of committee elections allowed

The Commission has issued an order to waive the observance of Rule 7 of the rules of the Health Services Union of Western Australia (Union), to enable the Union to hold its 2020 election of committee members later than the time required.

Rule 7 of the Union’s rules requires that nominations for positions of members of the Committee of Management are required to be posted to the Returning Officer so that the Returning Officer receives them no later than 5pm on 31 October 2020.

The Union’s Secretary sought an order to extend that time to no later than 5pm on 11 November 2020. By affidavit, she set out the circumstances in which she wrote to the Registrar of the Commission requesting the conduct of an election for the vacant positions in the committee. On 30 September 2020, the Registrar declared that the request had been duly made and that she would arrange with the Electoral Commissioner for an election.

However, on 12 October 2020, the Western Australian Electoral Commission informed the Union that it was not able to meet the deadline of nominations. On that basis, the Union would not be able to conduct the elections within the timeframe set out in the Rule.

Chief Commissioner Scott considered the evidence and was satisfied that it was appropriate to make the order sought. She noted that the issue was related to the practicability of the Electoral Commission to meet the timeframes required by the Rules, but determined that the elections must take place and in accordance with proper procedure.

Scott CC has issued an order waiving the requirement to observe Rule 7 of the Union’s rules and to enable the nominations to be posted to the Returning Officer so that they are received no later than 5pm on 11 November 2020.

The decision can be read here.

Employer cannot withhold wages in return for not pursuing police action

The Industrial Magistrate has upheld a claim for untaken paid annual leave and ordinary wages.

The claimant was employed as a pastry chef by the respondent from 25 February 2019 to 15 October 2019, when the claimant was summarily dismissed for serious misconduct.

He argued that the respondent contravened obligations to him created by the Food, Beverage and Tobacco Manufacturing Award 2010 (Cth) and the Fair Work Act 2009 in relation to untaken paid annual leave and ordinary wages for the month of October.

Annual leave

During the course of the hearing, the respondent admitted that it owed the claimant untaken paid annual leave. Industrial Magistrate Scaddan found that the admission was properly made as there was never any basis for the respondent to withhold annual leave upon the termination of the claimant’s employment.

Scaddan IM found that the respondent contravened the FW Act by failing to pay the claimant untaken paid annual leave.

Ordinary wages

The respondent withheld the whole of the claimant’s wages for the month of October because:

  • The claimant offered, and the respondent agreed, for the wages to be withheld and, as a result, the respondent would not ‘pursue’ a complaint to the police about the claimant stealing the respondent’s property; and
  • In the alternative, cl 18.1(d) of the Award enabled the respondent to deduct one week’s wages in lieu of the claimant’s failure to provide one weeks’ notice of termination.

Her Honour found that the respondent was not entitled to withhold the claimant’s wages for several reasons.

The respondent argued that the claimant did not provide notice of termination, although it said that the claimant had informed them that he had a job offer from Crown. Her Honour found that this merely evinced an intention to work at Crown in the future and did not mean the claimant was leaving the respondent’s employment.

Thereafter, consistent with the claimant continuing to attend work, her Honour found that the respondent summarily terminated the claimant’s employment on 15 October 2019. Ultimately, it was the respondent who terminated the employment and it was not entitled to deduct one week’s wages from the claimant pursuant to cl 18.1(d) of the Award.

Her Honour also noted that the contract of employment expressly required variation of its terms only by written agreement. Her Honour found that, as the agreement to forgo a police complaint in exchange for wages was an oral agreement made over the phone, there were no grounds for the respondent to withhold from the claimant’s wages under the contract.

Industrial Magistrate Scaddan also noted the ‘moral turpitude’ of the employer withholding wages in exchange for not ‘pursuing’ a police complaint about the claimant stealing the employer’s property. Her Honour observed that it is a dangerous course for an employer to attempt to dissuade a current or former employee from pursuing their legitimate legal interests by suggesting a detriment if they do.

The claim was upheld.

The decision can be read here.

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