The Commission has dismissed an application for denial of contractual benefits, where the parties had earlier resolved the matter by a mutual settlement agreement in a separate application brought before the Commission.

Background

The applicant worked for the respondent as an administrative assistant and provisional psychologist  over the course of two years, as both an employee and independent contractor. The applicant brought an unfair dismissal claim under s 29A(1)(a)(i) of the Industrial Relations Act 1979 (WA), which was resolved by agreement following a conciliation conference.

The settlement agreement provided that the respondent would pay the applicant $7,500 gross, in addition to superannuation. The parties agreed to ‘transitional arrangements’ to allow the applicant to access her emails and inform her clients of her separation from the respondent. The parties also agreed to a ‘mutual release and a bar to further proceedings arising out of the employment and contracting relationship’. 

Contentions

The applicant brought a separate denial of contractual benefits claim under s 29A(1)(a)(ii) of the Act, and sought to recover ‘backpay still owing’, additional superannuation, as well as wages for work completed during the transitional period following settlement.

Findings

The Commission considered that while the applicant may not have intended to release the respondent from payment for her services in the transitional period, that the wording of the settlement agreement expressly barred all further claims in relation to the employment, which included the transitional period. The Commission reiterated that it is not in the public interest for the matter to proceed where the issues had previously been settled by agreement, particularly where the matter was resolved under the Commission’s dispute resolution processes.

The Commission also noted that after the settlement, the respondent had paid the applicant additional sums that exceeded the applicant’s claim for wages. The Commission found that even if the settlement agreement did not bar further claims, that the applicant had been paid in relation to the performance of services during the transitional period, and that claim was trivial.

The application was dismissed.

The decision can be read here.

The Commission has found that a hospitality employer was in breach of the terms of its employment contract when it unilaterally varied the salary of its General Manager due to COVID-19 closures.

Background

The applicant was employed as the General Manager of the Respondent, a hospitality venue, from August 2019. The applicant’s contract provided for a salary of $110,000 per annum.

In March 2020, the respondent closed its operations in response to State Government COVID-19 restrictions. The applicant was notified that he would be stood down in accordance with s 524 of the Fair Work Act and the terms of his contract of employment, however continued to perform various tasks and was paid full rates.

In April 2020, the respondent notified the applicant that his hours and salary would be reduced. From 30 June 2020-12 October 2020, the applicant’s salary was reduced to 80%. The applicant resigned from his employment, and his full salary was restored from 13 October until his resignation took effect.

Contentions

The applicant claimed that he did not agree to the reduction in his salary, and that the terms of his contract; s 524 of the FW Act; nor the JobKeeper Enabling Stand Down Directions authorised the reduction.

The respondent contended that the FW Act, JobKeeper scheme and the contract of employment authorised the reduction in salary. In the alternate, the respondent submitted that the applicant agreed to vary his contract to reduce his salary.

Findings

The Commission, applying the principles in Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 00034 (confirmed by the Industrial Appeal Court in Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 01173), noted that where a salary is expressed as an annual rate, a variation in hours does not result in a change in remuneration. The Commission found that terms of the applicant’s contract provided for an annual salary, and accordingly did not authorise a reduction in remuneration.

The Commission noted that under s 524(2)(b) of FW Act, where an employment contract provides for an employer to stand down an employee because the employee cannot usefully be employed, then the power to stand down under s 524(1)(c) cannot be relied upon. As the applicant’s employment contract contemplated stand down provisions, the terms of the contract were to apply, and the respondent could not rely on s 524 to stand the applicant down.

The Commission noted that while JobKeeper Enabling Directions contemplated Stand Down Directions, that the respondent had failed to comply with the relevant consultation obligations.

The Commission reiterated that a reduction in remuneration is a fundamental term of an employment contract, and that the evidence provided by the respondent was not sufficient to evince an intention that the applicant had consented to the variation of the contract.

The Commission found in favour of the applicant and ordered the respondent pay $9,427.96 of the applicant’s salary that had been denied.

The decision can be read here.

The Commission has found that a Principal Legal Officer (applicant) who was selected for redundancy to be entitled to compensation for loss. The Commission held that while the dismissal was a case of genuine redundancy, that the employer (respondent) had not provided meaningful consultation with the applicant, and that the applicant was overlooked for redeployment, rendering the dismissal unfair.

Background

The respondent’s primary purpose was the pursuit and resolution of native title claims. The applicant was employed as a Senior Lawyer with the respondent from 2001 until 2007, and later re-employed in 2017. In 2019, the applicant was appointed to the position of Principal Legal Officer.

In June 2021, because of the settlement of the native title claims, the applicant’s position was made redundant. The applicant brought a claim challenging the termination of employment and seeking to be reinstated.

Contentions

The application was brought on three main grounds, being that:

• There was no genuine redundancy as there remained a significant amount of legal work to be performed for the foreseeable future;
• There was a failure to properly consult; and
• The applicant's selection for redundancy while another lawyer was retained was not appropriate.

Findings

The Commission held that the restructuring of the legal team was in response to a true assessment of the respondent’s business needs, and the redundancy was genuine. The Commission reiterated, however, that even in instances of a genuine redundancy, a decision to terminate employment may still be harsh, unjust, or unreasonable.

The Commission determined that the failure of the respondent to inform the applicant that one legal role would be retained, deprived the applicant of a fair opportunity to make a case in relation to redeployment. As such, there was no meaningful consultation in the process of redundancy, and the dismissal was unfair.

The Commission further held that the preference of the respondent to retain a fixed-term employee, over the applicant, was contrary to the principle that permanent employees can have a degree of expectation of ongoing employment. The Commission noted that the conscious decision of the respondent to preference the applicant for redundancy, on the grounds that the fixed term employee would not be eligible for a redundancy entitlement, could, in some circumstances, constitute a form of discrimination against the applicant based on his workplace right. The Commission also considered that the terms of the respondent’s industrial agreement contained clauses regarding the retention of mature age workers, and that the respondent should have considered this.

The Commission held that reinstatement was not practicable, given that the termination of employment was the result of a genuine redundancy, and found that the applicant should be compensated.

The decision can be read here.

In response to the current COVID-19 outbreak in Western Australia, the Commission in Court Session has issued an order reinstating provision of the 2020 COVID-19 General Order, pertaining to the taking of unpaid leave, with amendments to reflect the changed isolation requirements.

2020 COVID-19 General Order

In April 2020, the Commission in Court Session issued the COVID-19 Flexible Leave Arrangements General Order under s 50 of the Industrial Relations Act 1979 (WA).  The 2020 General Order contained provisions for unpaid pandemic leave, as well as provisions for the taking of annual leave at half pay. The 2020 General Order ceased to have effect on 31 March 2021.

Current application

On 2 March 2022, in anticipation of increasing COVID-19 cases in WA, the Hon Minister for Industrial Relations made an application for a new General Order to apply to private sector employees. The Minister sought to reinstate the unpaid pandemic leave provisions contained in the 2020 General Order. The reasons for the minister’s application included:

• Seeking to address the regulatory gap for private sector State system employees who are required to isolate due to COVID-19 and may lack access to suitable leave entitlements
• Supporting public health objectives
• Providing clarity for many employers, and protection for employee entitlements; and
• To be consistent with the entitlement to unpaid pandemic leave for national system employees covered by certain modern awards.

The Minister proposed amendments to the provisions of the 2020 General Order, the effect of which enables an employee to take up to two weeks’ unpaid pandemic leave, as a cumulative entitlement, over more than one period, subject to the total period of unpaid pandemic leave taken not exceeding two weeks. An amendment was also made to make it clear that the leave available under the proposed General Order is ‘unpaid pandemic leave’.

Findings

The Commission in Court Session considered that reinstatement of the provisions with amendments were consistent with the objects of the Act. A General Order was issued in the manner proposed by the Minister. The General Order will operate until 30 September 2022 and may be extended on application by a party or at the Commission’s initiative.

The decision can be read here.

The General Order can be read here.

The Full Bench has dismissed four interlocutory applications raised by the appellant in a Full Bench appeal. The Full Bench held that the applications raised evidence and matters not dealt with in the first instance proceedings or were not of relevance to the current proceedings.

Background

In 2019, the appellant brought a claim for a denial of contractual benefits to the Commission, which was dismissed. The appellant commenced an appeal  to the Full Bench.

Prior to the hearing of the Full Bench appeal, the appellant brought four interlocutory applications. The Full Bench listed the applications to be heard.

Interlocutory applications

The substance of the four interlocutory applications, respectively, were that the appellant:

• Sought to amend his first instance claim before the Commission, to bring in claims for long service leave, sick leave, and superannuation;
• Sought discovery of documents from the respondent in relation to a range of subject matter, to assist in establishing his grounds of appeal in the appeal proceedings;
• Sought admissions from the respondent as to the identity of the respondent in the appeal; and
• Asserted a conflict of interest against the respondent’s solicitors, Lavan, and requested disclosure of costs and expenditure incurred by the respondent and other employing entities, in relation to the appellant’s litigation against them.

Findings

The Full Bench noted that under s 49(4) of the Industrial Relations Act 1979 (WA), an appeal to the Full Bench is to be heard and determined on the ‘evidence and matters raised’ in the first instance proceedings. The Full Bench reiterated that it is not an opportunity for a party to attempt to reargue their case at first instance; or to seek interlocutory orders to bolster their case on appeal, in relation to matters not dealt with at first instance.

In relation to the first, second and third interlocutory application, the Full Bench outlined that the matters were beyond the scope of matters to be considered by the Full Bench, and that the time to bring such applications was prior to or at the first instance proceedings before the Commission.

In relation to the fourth application, the Full Bench found that it was not a matter relevant to the proceedings before the Full Bench. The interlocutory applications were dismissed.

The decision can be read here.