Details 

Created: 17 January 2020

The Public Service Appeal Board (Board) has upheld an appeal and quashed a decision to dismiss the appellant for substandard performance pursuant to s 79 of the Public Sector Management Act 1994 (PSM Act).

The Board drew legal principle from the Full Bench authority Director General, Department of Education v Patrick Guretti (2014), and found that, for the employing authority to form the opinion that an employee’s performance is substandard, two steps must occur:

1. ‘Prima facie’ evidence of substandard performance and a denial, against the evidence, of substandard performance; and
2. A process of investigation, by which facts are ascertained, that results in a finding of substandard performance.

The Board considered a report produced by a third-party consultant on behalf of the respondent. The Board found that the consultant did not conduct anything like an investigation. The report had no analysis of whether the appellant’s performance was substandard or not but was simply a review of the fairness of the process conducted by the employer. The Board noted that, in a letter to the consultant, the Respondent had only asked for what amounted to a review of what had been already done. The Board held that the consultant did not do what was required by section 79(5) of the PSM Act.

The Board then considered the consequences of a failure to comply with s 79(5) of the PSM Act by not conducting an investigation before terminating the Appellant’s employment. The Board found that although legal precedent indicated they could determine the matter in the appellant’s favour because of the failure to comply with the PSM Act, they did not consider it to stand as authority that they must do so. They found that the consequences will depend on an interpretation of what Parliament intended.

In deciding what Parliament intended, the Board was influenced by the following:

1. Parliament intended the Board to conduct appeals by way of hearing de novo;
2. Bodies within the Western Australian Industrial Relations Commission should aim to resolve disputes if it is possible to do so rather than to allow them to continue; and
3. The terms of s 78(5) of the PSM Act.

The Board determined that it may decide the matter on its merits and cure procedural defects at the hearing of the appeal but found that it was not required to under the PSM Act.

The Board decided not to determine the matter on its merits. The Board found it was unable to come to any meaningful conclusion about the appellant’s work performance based on the lack of quality and quantity of evidence before it.

The Board found that the appeal would succeed on the basis that the legislative process provided for by s 79(5) of the PSM Act was not carried out. It also found that it would not remit the matter back to the respondent to recommence investigation of the appellant’s performance.

The appeal was upheld and the decision to dismiss the appellant was quashed.

The decision can be read here.

Details 

Created: 17 January 2020

The Commission has upheld a claim for denied contractual benefits where the respondent failed to appear before the Commission despite having been served with a notice of hearing.

The applicant gave evidence she was employed by the respondent, including an offer of employment which offered the applicant casual employment at a specified hourly rate. The applicant gave evidence that she was underpaid for her work during her employment with the respondent to the amount of $825.87.

Commissioner Matthews accepted her evidence and found that since the evidence from the applicant was unchallenged and she was a credible and believable person, the respondent had denied her a contractual benefit in the sum of $825.87 and ordered the respondent to pay the applicant that sum.

The decision can be read here.

Details 

Created: 20 December 2019

The Public Service Appeal Board (Board) has unanimously found that the respondent’s application that a PSAB Board member not sit as a member of the Appeal Board for an appeal be dismissed.

The respondent filed an application that a Board member recuse herself on the grounds of reasonable apprehension of bias. 

The respondent submitted that there was a direct association between the Board member and the appellant by way of their respective relationships with the Australian Medical Association (WA) (AMA). The Board member is a senior industrial officer of the AMA, while the appellant is a member of the AMA. The respondent submitted that by virtue of the Board member’s position with the AMA, her impartiality to the matter would be impeded.

The Board considered the legal principles relating to an apprehension of bias by association, including considerations concerning the nature of the association, frequency of contact and nature of the interest of the person with the decision-maker.

The Board discussed the implications of s 80H of the Industrial Relations Act 1979 (WA) which specifies that the members of the Board shall include two members. It provides that one member shall be appointed by the employer of the appellant as the employer’s representative, and the other as the employee’s representative appointed by the relevant organisation. A person nominated will, by nomination alone, have some association with the body nominating them, as an employee or officer.

In addition, it was noted that Board members, regardless of any necessary association, do not represent the interests of the party that nominated them and are required to act impartially and independently.

The decision can be read here.

Details 

Created: 20 December 2019

The Full Bench has unanimously found that the Industrial Magistrates Court had no jurisdiction to enforce the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Award) under s 83(1)(e) of the Industrial Relations Act 1979 (WA) where the Industrial Magistrate relied on a declaration of the Commission that has since been varied. 

The appellant had appealed against the dismissal of her claim for overtime payments on the contention that she was entitled to be paid overtime for additional hours of work. The appellant argued that the Industrial Magistrate erred in her construction of the relevant provisions of the Award. Despite the grounds of appeal being limited in scope to this issue, another matter arose for consideration by the Full Bench. 

The Industrial Magistrate’s decision at first instance proceeded upon the understanding that, at that time, the Commission had issued a declaration in another matter (Samuel Gance) that the Award applied to both employers and employees in the retail pharmacy industry, which meant both the appellant and respondent were covered by it.  

The declaration in Samuel Gance was subject to a separate appeal to the Full Bench. The Full Bench upheld the appeal and the declaration made by the Commission, that the Award applied to the retail pharmacy industry, was reversed. The effect of the reversal is that from April 1995, the Award must be taken to have ceased to have application to the retail pharmacy industry.

Due to this, the Full Bench considered the effect of the Samuel Gance Full Bench decision on the decision of the Industrial Magistrate and this appeal.

The appellant contended that an appeal to the Full Bench under s 49 of the Act, which refers to appeals from the Commission’s decisions, is to be heard as a strict appeal. An appeal in the strict sense, in determining whether the court made an error, is limited to considering the evidence and law as it stood at the time of the proceedings at first instance before the court and at the time of court’s decision. It does not, except in rare circumstances, consider any changes of law or new evidence.

The respondent submitted that the effect of the decision of the Full Bench in Samuel Gance in reversing the declaration does apply to the case at hand. The respondent contended that the Full Bench is to hear the appeal as a rehearing, which means it can consider other material and is required to apply the law as it stands when it hears and determines the appeal. The respondent relied on s 84(4) of the Act, which empowers the Full Bench to vary or amend the decision of the Industrial Magistrates Court.

In its consideration of s 49 of the Act, the Full Bench noted that existing case law did not expressly conclude whether an appeal under s 49 is a strict appeal or a rehearing. On application of existing case law and legal principle, the Full Bench ultimately concluded that, whilst not expressed in the statute, an appeal to the Full Bench under s 49 involves a rehearing. It is for the Full Bench is to reach its own view on all the evidence and the materials before the Commission, subject to error at first instance being established.  

In the Full Bench’s consideration of s 84 of the Act, it was noted that appeals to the Full Bench under that section from a decision of the Industrial Magistrates Court proceed largely in the same manner as do appeals from the Commission. As with appeals to the Full Bench under s 49 of the Act, appeals to the Full Bench under s 84 should also be considered as a rehearing. Importantly, as with s 49, on an appeal under s 84, error, of either law or fact or both, must be established for the Full Bench to invoke its powers under s 84(4).

The Full Bench found that the current law, in terms of the application of the Award to the retail pharmacy industry, must now be taken to be in accordance with the declaration made by the Full Bench and to operate in accordance with its terms. The Full Bench was bound to apply the declaration to the effect that the Award does not extend to the retail pharmacy industry, and therefore that the Award did not apply to the appellant and the respondent at all material times. The Full Bench found that the appellant had no standing to seek enforcement of the Award.

The decision can be read here.

Details 

Created: 20 December 2019

The Commission has dismissed a denied contractual benefits claim made by a Store Manager who alleged that she was entitled to the payment of commissions and a salary increase.

The Store Manager claimed that the salary increase was discussed at her interview for the position as well as contained in an email to the applicant from the recruitment agency. Walkington C also considered the respondent's unchallenged evidence that the recruitment agency was a third party and not able to make representations on its behalf. Walkington C determined that a review of salary does not guarantee an increase and that this benefit was not contained in the contract of employment.

Walkington C also dismissed the Store Manager's claim for a commission payment. She decided that it was not an implied term of the employment contract, a variation to the contract of employment or a collateral contract. Walkington C found that there was no evidence before the Commission to suggest that the payment of commissions was an implied term based on widely-known industry practice or that commissions were paid based on the gross profit per week. Walkington C then dismissed the contention that the contract of employment was varied to include a term for in circumstances where a table for commission payments was provided to the Store Manager.

Finally, Walkington C dismissed the claim that there was a separate collateral contract and she found that there was no evidence before the Commission that either established an intent to create legal relations, or, set out the arrangements between the respondent and the recruitment agency.

The Commission dismissed the application.

The decision can be read here.