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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  • disobeyed a lawful order by continuing to perform secondary employment after his approval to do so had been rescinded and he was directed to immediately cease the secondary employment;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during a managerial interview about undertaking secondary employment after his permission to perform it had been rescinded; and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 The officer also contacted the prosecutor to have charges against the man withdrawn because he needed him to operate the business.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.

Claim by electrical general manager for entitlements dismissed

Details  Created: 01 October 2020

The Industrial Magistrate has dismissed a claim by a general manager of an electrical company for payment in lieu of notice of termination and further work carried out by the claimant after his employment ceased.

The claimant was employed by the respondent from 2 July 1990 to 21 December 2018. The claimant alleged that the respondent failed to pay him:

  1. An amount equivalent of five weeks in lieu of notice and associated superannuation in contravention of s 117 of the Fair Work Act 2009 (Cth); and
  2. Wages for work undertaken as a casual employee from January 2019 to May 2019 in contravention of the Minimum Conditions of Employment Act 1993 (WA).

Payment in lieu of notice

The claimant said that the respondent terminated his employment and he was not provided with the requisite statutory notice period prior to his termination or payment in lieu of notice upon his termination. The respondent argued that the claimant resigned from his employment and was paid all of his entitlements.

Industrial Magistrate Scaddan noted that the claimant and respondent had different recollections or perceptions of events surrounding the ending of the claimant’s employment. Scaddan IM found that, on the evidence, the respondent had acquiesced to the claimant’s proposal to finish on 21 December 2018 and paid out his entitlements as requested.

Her Honour found that as she was not satisfied that the respondent terminated the claimant’s employment, it has no obligation to pay an amount in lieu of notice of termination under the FW Act.

Further work

Although the claimant’s final day of work was 21 December 2018, he carried out nine jobs associated with electrical warranty work on behalf of the respondent from January 2019 to May 2019.

The claimant said that he was employed as a casual employee of the respondent to undertake further work for which he is owed $630. The respondent argued that the claimant was an independent contractor and declined to pay the amount until the claimant provides a tax invoice with an ABN.

Her Honour assessed the totality of the relationship between the parties and concluded that the claimant supplied his services to the respondent on an ad hoc basis on a per job rate, rather than serving the respondent in its business.

Her Honour found that, as the claimant was an independent contractor, the respondent had no obligation to pay the claimant for further work under the MCE Act.

The claim was dismissed.

The decision can be read here.

Full Bench no jurisdiction to hear appeal from Industrial Magistrate

Details  Created: 22 September 2020

The Full Bench has unanimously dismissed an appeal against a decision of the Industrial Magistrate’s Court exercising jurisdiction under the Fair Work Act 2009 (Cth). It found that it had no power to review a decision of the IMC exercising federal jurisdiction.

Facts

The matter before the industrial magistrate was a claim relating to entitlements said to arise under the FW Act and an award made under that Act, the Hospitality Industry General Award 2010.

The appeal was filed on 29 July 2020, along with an application for an extension of time until 28 October 2020 to file an appeal book. The reason given for the application to extend time was that the appellant was self-represented, and its director, who had carriage of the matters, was not available under mid-October 2020 because he was sailing in the Kimberleys.

On 14 August 2020, the Full Bench directed the appellant to file written submissions by 28 August 2020 about whether the Full Bench has jurisdiction to hear the appeal, to which an extension was also requested.

On 4 September 2020, the Full Bench granted the appellant an extension to 18 September 2020. The Full Bench noted that should the appellant fail to respond by that time, the Full Bench would proceed to consider whether the appeal is within jurisdiction based on the material currently before it.

By 18 September 2020, there had been no response received from the appellant.

Consideration and Conclusion

The Full Bench found that it does not have jurisdiction to deal with the matter as the appropriate jurisdiction for an appeal against the IMC in dealing with the matter under the FW Act lies to the Federal Court, not the Commission.

The Full Bench also found that the appellant had reasonable opportunity to make a submission, and that his unavailability was not sufficient to warrant the matter being delayed further.

The appeal was dismissed.

The decision can be read here.

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