The Commission has considered the subjective intention of an employee when considering whether a resignation or dismissal occurred.

Background

The applicant was employed as a massage therapist, paid on a commission basis. On 17 June 2021, a dispute arose between the applicant and the respondent regarding the allocation of customers to the applicant. The applicant began to feel unwell and left the workplace. The applicant stated to the respondent words to the effect that she had no will to work or no will to do any more.

The applicant did not attend work on 18 June 2021 and provided a medical certificate by text message to her employer, certifying her unfit for work for a period of one week. On 19 June 2021, the respondent sent a text message to the applicant regarding the incident that had occurred. The message finalised payments and alluded to consequences if the applicant did not "go quietly".

The applicant initially made a claim to the Fair Work Commission. After receiving legal advice, the applicant made a claim in the Commission, one month out of time.

Contentions

The applicant submitted that the text message received on 19 June 2021 constituted the respondent terminating her employment.

The respondent submitted that when the applicant left on 17 June 2021, he regarded it as her resignation. The respondent did not open the attachment due to fear of an electronic scam.  As he believed the applicant had resigned, he did not think there was any need to open the attachment.

Findings

The Commission considered whether the applicant had been dismissed, or whether the employment had ended on her own will. The Commission considered closely the conduct and words of the applicant on 17 June 2021, and the text messages exchanged in the following days.   

The Commission noted that the applicant had in the past left work early, indicating that she may not have intended to resign. The Commission considered that it would be expected that the applicant would say something in parting to her colleagues if she did intend it to be her last day.  As the applicant was unwell, the Commission also determined that it was likely the applicant’s left the workplace to recover and seek medical treatment. Finally, the Commission noted that the applicant had provided a medical certificate for one week, and had she intended to leave her employment, there would be no reason for her to do so. 

The Commission noted that the text message exchange and the evidence generally, was translated through a Mandarin interpreter. The Commission noted that it was not possible for the Commission to attribute a precise meaning to the Mandarin words the applicant spoke on 17 June 2021 as they only approximate the English words "no will do anymore".  Consideration of subjective intention was necessary, in light of the fact that the Commission was considering the words as interpreted, rather than as they were spoken. The Commission considered that even an objective view of these words would fall short of being a decisive act to end an employment relationship by the applicant. 

The Commission determined that the applicant did not resign, and the employer’s text message on 19 June 2021 signified the end of the employment relationship. As there was no valid reason for the dismissal, the dismissal was harsh, oppressive and unfair. Considering the principles in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51, the Commission granted the applicant an extension of time. The Commission ordered the respondent pay the applicant compensation for injury in the sum of $1,500 and for loss in the sum of $2,854.16.

The decision can be read here.

The Commission has dismissed an application for payment of the balance of a contract after the applicant’s position was abolished in an operational restructure. The Commission found that the restructure was not in breach of the enterprise bargaining agreement or contract, and that the contract was not prematurely terminated, but rather was not renewed. 

Background

The applicant was employed as the Head of Music at Mandurah Catholic College (the respondent) from 1 January 2014.  The contract for the position offered the applicant an eight-year term, broken into three parts, being:

• Initial period2 years 1 January 2014 to 31 December 2015
• Renewal Period3 Years 1 January 2016 to 31 December 2018
• Renewal Period3 Years 1 January 2019 to 31 December 2021 

The contract outlined that the position would be reviewed during the year prior to the next renewal period commencing. 

In 2018 the respondent commenced a process of restructuring. The applicant was advised of the proposed restructure and the consequential abolition of their position.  The respondent offered the applicant to remain employed as a teacher, retaining his pay rate for 2019, after which the pay rate would reduce to that of a teacher.  Alternatively, the respondent offered a mutual separation arrangement comprised of pay in lieu of notice and an ex-gratia payment. The applicant did not respond to these offers. The applicant instead requested, and was granted, leave without pay from 1 January 2019 to 31 December 2019. 

Contentions

The applicant submitted that his contract was prematurely terminated because of the abolition of his position. The applicant submitted that he was employed under a fixed term contract for eight years and sought payment of the balance of the contract. 

The respondent contended that the applicant’s employment was subject to two renewal periods, and subject to a review in the preceding year of each renewal period.  The respondent submitted that the applicant’s contract was not renewed for the third period and was not prematurely terminated.  The respondent submitted that the abolition of the respondent’s position was permitted under the terms of the contract of employment. 

Findings

The Commission considered whether the applicant’s employment contract should be considered a fixed term contract for eight years, or a contract for fixed terms of lesser periods. The Commission determined that the applicant’s contract provided for three discrete periods which began again or were made anew.  The Commission determined that, due to the applicant taking leave without pay, the second period was extended by agreement by one year.  A review was required to renew that contract beyond that time, and, as a review did not occur, the contract was not renewed. 

The Commission also considered whether the terms of the EBA were incorporated into the terms of the contract employment, and if so, whether the EBA permitted the respondent to abolish the applicant’s position. The Commission found that the terms of the EBA were incorporated into the contract, and that the EBA outlined the obligations of the respondent in a restructuring. The Commission found that the respondent had fulfilled its obligations under the EBA and had offered the applicant two alternative proposals. As the applicant had not accepted the proposals and instead requested leave without pay, the respondent was not required to pay the applicant. 

The decision can be read here.

The Public Service Appeal Board (Board) has upheld an appeal, finding that the employee did not commit a breach of discipline or engage in misconduct by not attending one medical appointment, or not signing a consent form for a medical appointment.

Background

The employee worked as an Aboriginal Education Officer/Eco Education Officer - Aboriginal Cultural Program.

The employee was dismissed from his employment on 6 January 2020 for two misconduct findings:

• The employee was directed to attend a medical appointment with a Neurologist, as a fitness for work assessment on 4 July 2019 and failed to attend that appointment.
• The employee was to attend a medical appointment, as a fitness for work assessment, on 8 August 2019, and while he attended that appointment, he did not participate in the medical assessment because he refused to sign the consent form.

The Board's findings

The Board found that the requirement for the employee to be assessed by the Neurologist was unreasonable. The Board found that the prior medical reports did not identify a need for assessment by a neurologist. From a psychiatric point of view, the medical evidence all pointed to the employee being fit for work "presently". It further found that any direction to attend for assessment by a Neurologist was unnecessarily invasive and would have not meet the requirement for sensitivity and respect for privacy identified in Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395.

The Board found that the employee had good reasons to dispute the reasonableness of the direction to attend the first appointment and his failure to attend that appointment did not constitute misconduct and cannot be grounds for dismissal.

In relation to the failure to sign a form of consent to medical procedures, the Board again found the failure was not misconduct in circumstances where the employer's requirement for the employee to be assessed by a neurologist was unreasonable. The Board also noted that even if the direction to attend the appointment had been reasonable, there was insufficient evidence as to the need for the consent form for the assessment to proceed, and the reasons for the consent form not being completed, to conclude the employee's conduct was misconduct.

Conclusion

While the Board concluded that the findings of misconduct should be quashed, it did not consider that reinstatement was appropriate in light of the employee's medical history, the medical evidence as to his work restrictions, his receipt of workers' compensation incapacity payments and the uncertainty as to whether he was fit to perform the inherent requirements of his position. The Board was additionally concerned that the employee's answers to questions put to him at hearing indicated he had not engaged fully frankly or candidly in his employer's attempts to manage his return to work. The Board instead varied the period of notice of termination.

The decision can be read here.

The Full Bench has made orders that an appellant pay costs to the respondent, finding that the appeal was instituted frivolously.

Background

In 2019, the appellant commenced proceedings (the first proceedings) before the Industrial Magistrates Court (IMC), alleging the respondent failed to comply with federal and State industrial instruments; and failed to pay overtime. The proceedings were dismissed by her Honour Scaddan IM in December 2019. The appellant appealed this decision to the Full Bench of the Commission (the first appeal).  In August 2020, the Full Bench dismissed the appeal in that matter, on the basis that the appellant’s claim before the IMC in the first proceedings, the subject of the appeal, involved the exercise by the court of its jurisdiction under the Fair Work Act 2009 (Cth) (FW Act), and the Full Bench did not have jurisdiction to hear the matter. 

In September 2020, the appellant commenced further proceedings (the second proceedings) before the IMC under the FW Act. The respondent made an application to the court that the appellant’s claim at first instance be struck out.  The Industrial Magistrate concluded that the applicant’s claims had either been, or ought to have been, litigated before the court in the first proceedings, and dismissed the claim. On an application for costs by the respondent, the Industrial Magistrate did not award costs, finding that the proceedings before the court were not instituted “vexatiously or without reasonable cause”.  However, her Honour, Hawkins IM, did observe that the appellant came “perilously close”.

The appellant appealed the decision of the second proceedings to the Full Bench under s 84 of Act (the second appeal). The Full Bench listed the appeal for hearing to show cause why it should not be dismissed for want of jurisdiction.

Contentions

The appellant claimed that, as the court in the second proceedings dismissed his claim in the exercise of its powers to strike out the application under the Magistrate’s Court (Civil Proceedings) Act 2004 (WA) and the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), being State laws, that the Full Bench had jurisdiction to hear the appeal. The respondent contended that the appeal should be dismissed for want of jurisdiction, contending that the first appeal made it clear that the only avenue of appeal from a decision of the court exercising jurisdiction under the FW Act, is to the Federal Court. The respondent again made an application for costs. 

Findings

The Full Bench considered that, under s 565 of the FW Act, an appeal from the court when “exercising jurisdiction” under the FW Act, can only be brought in the Federal Court. The Full Bench considered that a while the IMC may exercise its various procedural and other powers under State legislation, this does not alter the law that the jurisdiction exercised by the court is federal only.  

The Full Bench considered that given the procedural history, the appellant, while self-represented, was no stranger to the exercise of State and federal jurisdiction by the IMC and Full Bench.  The appellant had acknowledged in his notice of appeal in the second appeal, that the Full Bench had no jurisdiction in relation to an appeal from the court exercising federal jurisdiction under the FW Act.

The Full Bench considered that this was one of the ‘very rare occasions’ when a costs order in favour of the respondent should be made. The Full Bench dismissed the matter for want of jurisdiction and ordered that the appellant pay costs to the respondent in the sum of $5,150.00.

The decision can be read here.

The Industrial Magistrate has awarded penalties to a restaurant owner for contravening the Industrial Relations Act 1979 (the Act) by failing to produce records to the Department of Mines, Industry Regulation and Safety (DMIRS).

Background

The respondent purchased a restaurant around October 2019 and started trading in or about November 2019.

In December 2019 and July 2020, the claimant attended the restaurant. On each occasion, the claimant issued the respondent with a notice that required the respondent provide to DMIRS specified records relating to all employees of the restaurant.  The purpose was to ascertain whether the respondent had observed the provisions of the Act and the Restaurant, Tearoom and Catering Workers’ Award (WA). The respondent failed to provide the records.

In failing to produce records in respect to the two notices, the Industrial Magistrate made orders stating that the respondent had contravened s 102(1)(a) of the Act. The claimant sought payment of a penalty under s 83E(1)(a) of the Act for each of the two contraventions.

Both parties appeared at a hearing on 2 September 2021. The respondent indicated that the relevant documents would be provided by 3 September 2021. The decision of the Industrial Magistrate was reserved to enable the respondent to provide the documents, however the respondent did not comply.

Contentions 

The claimant submitted that the respondent was uncooperative with industrial inspectors and had failed to demonstrate contrition and take corrective action. The claimant contended that the respondent’s actions were repeated and deliberate in that he was in communication with industrial inspectors in respect of the notices and was aware of what was required. The claimant submitted that the respondent had ‘demonstrated … disregard for his obligations as an employer under the Act’.

The respondent did not lodge any submissions and confirmed in the hearing on 2 September 2021 that he did not wish to be heard in respect to the issue of penalty and costs. 

Findings 

In determining whether the respondent’s conduct warranted the imposition of a penalty, and if so, the appropriate amount, the Industrial Magistrate considered a range of factors. These included:

• the nature and extent of the conduct which led to the breaches;
• the circumstances in which the conduct took place;
• the nature and extent of any loss or damage sustained as a result of the breaches;
• whether there had been any similar previous conduct by the respondent;
• whether the breaches are properly distinct or arose out of one course of conduct;
• the size of the business involved;
• whether or not breaches were deliberate;
• whether senior management was involved in breaches;
• whether the party committing the breach had exhibited contrition;
• whether the party committing the breach had taken corrective action;
• whether the party committing the breach had cooperated with enforcement authorities;
• the need to ensure compliance with minimum standards by the provision of an effective means for investigation, enforcement of employee entitlements; and
• the need for specific and general deterrence.

The Industrial Magistrate determined that the appropriate penalty for each contravention was $3,250 per breach. The Industrial Magistrate determined that the separate contraventions could be considered as a single course of conduct. Applying the totality principle, and considering the conduct as a whole, the Industrial Magistrate determined that an aggregate penalty of $3,900 was appropriate and proportionate. The Industrial Magistrate additionally ordered the respondent pay the claimant costs of $187.

The decision can be read here.