The Chief Commissioner has dismissed an application to restore the former President of a Union to his elected position, finding that the applicant was no longer eligible to hold the position, and there was no power to reappoint the applicant in this instance.  The Commission found that subsequent Union elections had elected a new Executive and President democratically, and to intervene would be inconsistent with the principles governing the Commission’s powers.

Background

The applicant was a member of the Western Australian Police Union of Workers (respondent). In October 2018, the applicant was elected as a Director of the respondent’s Board of Directors, and in the same month, was elected to the position of President of the Union.

On 11 February 2021, in response to internal investigations being conducted, the Board of Directors informed the applicant that he was placed on leave with immediate effect, and that he was relieved of all his functions and duties as President of the respondent.

On 7 September 2021, the applicant made an application under s 66 of the Industrial Relations Act 1979 (WA) (Act). The primary relief sought by the applicant was restoration to his role as President and Director of the respondent. Preliminary directions hearings were held by the Commission.

In November 2021, the applicant stood for elections for the respondent’s Board of Directors. The respondent informed the Chief Commissioner that a new Board of Directors and President were elected, and that the applicant was not successful in his bid for election to the Board. On 17 March 2022, the applicant ceased to be a member of the Western Australian Police Force. The respondent filed an application to dismiss under s 27(1)(a) of the Act, raising jurisdictional issues.

Contentions

The respondent contended that the relief sought by the applicant would require the Chief Commissioner to interfere with a valid and duly held election, and that such relief was not available under s 66(2) of the Act, which limits the relief to orders and directions relating to observance and manner of observance of rules. The respondent further contended that the applicant, ceasing to be a member of the Police Force, had a direct bearing on the applicant’s claim under s 66 of the Act. This was because the applicant was no longer eligible to be a member of the respondent under its Rules, and therefore could not receive the relief that he was seeking.

The applicant submitted that his application clearly related to the respondent’s Rules and their observance and non-observance. In particular, the applicant, as the then President of the respondent, was denied the capacity to exercise his functions and powers, directly contrary to the Rules of the respondent and the Employment Agreement between himself and the respondent. The applicant submitted that relevant facts should be established, and the case before the Chief Commissioner should be heard. 

Findings

The Chief Commissioner noted that there was an inseparable link between a person’s status as a member of the Police Force under the Police Act and a person’s eligibility to be a member of the respondent and hold the office of President of the respondent. The Chief Commissioner found that the cessation of the applicant’s engagement as a police officer, deprived the Commission of the power to make an order to restore the applicant to the position of President.

Referring to Stacey v Civil Service Association of Western Australia [2007] WAIRC 00568 and the terms of s 66(2), the Chief Commissioner confirmed that the primary purpose of the power to be exercised is to ensure observance of an organisation’s Rules. The Commission noted that to restore the applicant to the position of President of the respondent, in circumstances where the applicant was ineligible for that office, would be a contravention of the respondent’s Rules, and such an order could not be made under s 66.

The Chief Commissioner further noted that as there was no dispute that the election was duly held and that the applicant was not successful, to restore the applicant to his former position by removing the subsequently democratically elected President and Board of Directors, would subjugate the will of the members and be at odds with the objects of the Act.

The decision can be read here.

The Public Service Appeal Board (Board) has dismissed an application by an employee, finding that the decision of the employer to withdraw their offer of employment where conditional terms of the contract were not met and the contract was not accepted did not constitute a dismissal, and that the Board did not have jurisdiction .

Background

The appellant was employed as an ICT Help Desk Officer under a series of fixed term contracts to 30 November 2021.

The respondent offered the appellant a further three‑month fixed term contract after 30 November 2021.  Pursuant to government mandates in place at that time, the contract of employment was conditional to the employee providing evidence of vaccination against COVID-19.l The appellant did not sign and return the contract, and did not provide evidence of his vaccination against COVID-19 or status as an exempt person. On 16 December 2021, before the appellant had performed any work under the new contract, the respondent withdrew the offer by email.

The appellant commenced an appeal under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act) on the basis that the communication of 16 December 2021 was a decision to dismiss him from their employment with the respondent and that such a decision was harsh, oppressive or unfair.

Contentions

Both parties acknowledged that for the Board to have jurisdiction, the decision to withdraw the offer of employment must be a decision to dismiss the employee.

The appellant contended that there was a subsisting employment relationship, such that the withdrawal of the offer should be characterised as a dismissal. The appellant contended that an email sent on  13 December 2021 to the respondent effected their acceptance of the contract because it was in similar terms to a previous offer and acceptance.

The appellant further contended that the vaccination clause was ambiguous, and on a correct construction, only required vaccination to the extent that the Directions require vaccination.

The respondent contended that the appellant was in furious disagreement with the contract’s conditions that he be vaccinated, and that there was no express or implied acceptance The respondent contended the clause is a clear and unambiguous condition that the appellant be vaccinated against COVID-19 as a condition of employment.

Findings

The Board found that the contract terms were clear and unambiguous, and that the contract terms had an ordinary, natural and definite meaning that the employee is required to provide evidence of vaccination against COVID‑19 or status as an exempt person.

The Board agreed with the respondent’s contention that the appellant remained in furious disagreement with the terms and that the email sent by the appellant on 13 December 2021 email was in fact evidence of continued dispute, disagreement and indecision.

The Board found that the appellant was not dismissed. The employment relationship ended by the expiration of a contract for a fixed term. The appellant did not accept ongoing employment before the respondent withdrew its offer, which it was entitled to do, and that the decision to withdraw the offer was not within the jurisdiction of the Board to consider.

The appeal was dismissed.

The decision can be read here.

The Public Service Appeal Board has reiterated that it does not have jurisdiction to hear matters where no final decision has been made. 

The appellant was advised by his employer (respondent) of an investigation of allegations of breach of discipline under Part 5 of the Public Sector Management Act 1994 (WA) (PSM Act). The respondent indicated that the allegations were substantiated and gave the appellant a letter proposing disciplinary action in the form of a reduction in salary and classification, and issuance of a reprimand. The appellant was given an opportunity to comment on the proposed disciplinary action. 

Prior to providing a response, the appellant commenced an appeal to the Appeal Board. At the time of the hearing, no final decision had been made as to the disciplinary action to be taken. 

The Appeal Board reiterated that as the letter was a provisional decision, no final decision had been made as to the disciplinary action, and no right of appeal under s 78(1)(b)(iv) of the PSM Act had been enlivened. The Appeal Board held that it did not have jurisdiction to determine the matter, and the appeal was dismissed. 

The decision can be read here.

The Commission has dismissed an application from an employee made 72 days out of time, finding that the applicant failed to act promptly in filing the application and did not provide a reasonable explanation for doing so. 

Background

The applicant was engaged as an independent contractor by a not for profit. The applicant initially brought an unfair dismissal claim with the Fair Work Commission (FWC), within the 21-day time limit under the Fair Work Act 2009 (Cth). On 29 April 2021, the respondent advised the applicant in its submissions to the FWC that it believed it was not a national system employer. 

The applicant commenced an unfair dismissal claim in the Commission on 2 June 2021. The Commission’s Registry attempted to contact the applicant regarding deficiencies in the application, but did not receive a response until 10 June 2021, on which day the application was formally filed. 

Contentions 

The applicant contended that she had a lack of familiarity with the State system of employment law and the application should be accepted and heard out of time. The respondent contended that it notified the applicant at the earliest opportunity about the issue of jurisdiction, and further, that the claim had no merits as the applicant was a contractor and not an employee. 

Findings 

Commissioner Walkington accepted that an error of jurisdiction may occur in cases as the current, where the identity of the employer is not clear. The Commissioner found, however, that once the applicant decided that her claim was not in the correct jurisdiction, she should have acted promptly on this information, particularly where the applicant had not provided any other explanation for the delay. 

Further, the learned Commissioner, in looking to the merits of the claim, found that the relationship was one of an independent contractor and principal, and that the claim of unfair dismissal could not succeed. The application was dismissed. 

The decision can be read here.

The Commission has found that an employee was not entitled to overtime payments for time spent on an employer provided bus commuting to a work site. The Commission found that while the employee was compelled to take the bus, the employee was not performing work at this time under the terms of the contract of employment. 

Background 

The applicant was employed as an electrician by the respondent. The respondent held a contract with Albermarle Lithium, providing workers for a plant in Kemerton. Albermarle established a transport depot in a carpark 12 kms, or 20 minutes, from the plant. The plant was only accessible by bus from this carpark, and contractors, including the respondent, would transport workers by bus to the plant. As such, the applicant, and other workers, were compelled to commute to the plant in this manner each day. 

The applicant contended that he had a contractual entitlement to overtime pay and a site allowance for the time spent on the bus, and brought a claim under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA). 

Contentions 

The applicant contended that the words ‘work performed’ in the clause of the employment contract referring to overtime payments, should be read broadly to refer to work performed whenever an employee is attending at a place and time as required by the employer. In the alternative, the applicant contended that if this is not the correct construction of the employment contract, that he was entitled to be remunerated for the time spent on the bus and at the plant, prior to commencing, on the grounds of unjust enrichment. 

The respondent contended that the words ‘work performed’ were limited to refer to the time when the employee was engaged in their trade discipline, and that this was supported by looking to the text, context, and purpose of the clauses within the employment contract. 

Findings 

Senior Commissioner Cosentino noted that while relevant authorities pertaining to the meaning of the phrase ‘work’ provided guidance, that whether the bus ride constituted ‘work’, would depend on the construction of the employment contract and facts of the case, citing Seo v Bindaree Food Group and Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470. 

The Senior Commissioner noted that the employment contract referred to work as starting and finishing at the work site, being the location ‘where he performs operational and productive work involving the application of trade skills, and functions associated with the application of trade skills.’  As such, reference to ‘work performed’ in the overtime clause, would similarly refer to activities including skills of the trade, productive work, or associated functions. 

The Senior Commissioner found that the applicant was not entitled to overtime payments for the time spent on the bus. While he was directed to attend the carpark and be transported by bus, he was able to engage in entirely private activities while on the bus, and that he was not performing duties associated with his trade or job functions at that time. 

The Senior Commissioner further concluded that it was not within the Commission’s jurisdiction in a claim for denied contractual benefits under s 29(1)(b)(ii) of the Act, to determine an alternative claim for unjust enrichment. 

The application was dismissed.
The decision can be read here.