The Public Service Appeal Board (Board) has granted an application for examination of a witness before the hearing of an appeal, considering that this be in the interests of justice.
The respondent sought an order for the examination of a witness prior to the commencement of an appeal hearing. The listing dates for the appeal hearing had been vacated on two prior occasions. At an undetermined point in time, the witness requiring examination had booked a holiday and had leave approved for dates that included the new listing dates. The respondent was the employer of the witness, and the leave sought by the witness was approved.
The respondent contended that the witness would be overseas on the hearing dates. The respondent’s application was supported by affidavits confirming that the witness was available for the earlier listing date but that the witness would be overseas on the new listing date.
The appellant contended that the witness and respondent were aware of the hearing dates before leave was approved and flights were booked; that the application inadequately explained events surrounding this; and that it was open to conclude the application was made to accommodate the witness’s desire not to be inconvenienced. Further, the appellant contended that the order would inconvenience the Board and the parties’ respective legal teams, could deprive them of preparation time, and result in the matter having to be part-heard. The appellant contended that the travel arrangements were made without securing permission to be absent from duty.
The Board noted s 80L and s 27(1)(o) of the Industrial Relations Act 1979 (WA) empowers the Board to make an order for the examination of a witness, and that the purpose of the discretion do so is to enable the just and expeditious hearing and determination of an appeal. The Board noted it was not required to investigate whether more could be done by the respondent to secure attendance of the witness or the choices the witness made about their involvement in proceedings, and reiterated that the exercise of its discretion was not for the purpose of punishing parties or witnesses for their conduct in the proceedings.
The Board noted that the primary question is whether the interests of justice will be served by granting the order sought. The Board considered the legal authorities and principles relating to the discretion to examine witnesses to show it is conventional and uncontroversial to use where witnesses are going ‘abroad’ and extends to all cases necessary for the purposes of justice. The Board further considered s 120 and 121 of the Evidence Act 1906 (WA) and weighed giving evidence by audio-video link against considerations such as a satisfactory connection and whether evidence ought to be given in person.
The Board noted that ordinarily it was enough for a party to show to the satisfaction of the tribunal that a witness is out of the jurisdiction; that their evidence is material; and that the party cannot procure it for the order to be made. The Board was satisfied this was the case and that the interests of justice would be served by granting the order. The application was upheld, and orders issued for the early examination to occur and for video and audio recording to take place.
The decision can be read here.
The Commission has issued an order that an employer pay the balance of outstanding invoices, finding that the worker was an employee and not a contractor, and that the Commission had jurisdiction to hear the claim.
The applicant was engaged as a truck driver from February 2021 to June 2021, working for the respondent across multiple locations. The applicant would be paid after providing the respondent with invoices.t. After the applicant contacted the respondent regarding invoices that were unpaid, the respondent asked the applicant to leave their work accommodation and stopped providing the applicant with work. The respondent did not reimburse the applicant for an invoice in relation to returning home from their work location.
The applicant commenced a denial of contractual benefit claim in the Commission to recover the amount unpaid on the invoices.
The applicant contended that the respondent owed them an amount arising out of a contract of employment between the two parties, and that they were dismissed after contacting the respondent regarding these amounts. In relation to being an employee, the applicant contended that the facts of this case varied to the recent High Court decisions of Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd  HCA 1 and ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors  HCA 2 as there was no comprehensive written contract and provided evidence about the nature of the employment relationship.
The respondent contended that the applicant was a contractor and not an employee. Limited contact was made by the respondent with the Commission, and they did not make submissions or appear in proceedings.
The Commission noted that the contract between the parties was not comprehensive, and did not distinguish whether the applicant was an employee or contractor. The Commission considered the legal authorities and principles relating to characterisation of the work relationship and determined that the applicant was an employee and was not carrying on a business of their own. The Commission noted particularly that the work undertaken by the applicant was integral to the respondent’s business and the respondent exercised a high degree of control over the applicant’s work.
The Commission determined that the benefits claimed by the applicant arose under the contract of employment. The Commission found that the applicant’s claim was an industrial matter under s 7 of the Industrial Relations Act 1979 (WA). The Commission issued a declaration and order requiring the respondent to pay the applicant the total unpaid amount of the invoices.
The decision can be read here.
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.
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.
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.
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  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.
PSAB finds no dismissal following withdrawal of contract where conditional terms are not met and no work performed
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 .
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.
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.
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.
No jurisdiction for Public Service Appeal Board to hear appeal against provisional disciplinary proceedings
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.