The Commission has found that no extension of time is to be granted to an applicant who made a deliberate decision, informed by legal advice, to continue to progress her claim with the Fair Work Commission (FWC) before commencing a claim in this Commission.

 Background

The applicant was employed part-time as a Support Programs Coordinator from February 2013 to April 2020. In March 2020, the respondent ceased the activity and support programs managed by the applicant due to the impact of COVID-19. The respondent discussed with the applicant possible options considering the cessation of activity, including standing down from her employment, reducing hours or taking annual leave.   

In April 2020, the respondent informed the applicant that consideration was being given to abolishing the position of Support Programs Coordinator.  The applicant was invited to meet to discuss potential redundancy; any suggestions to avoid the redundancy; possible alternate positions to which she may be redeployed; the impact on her and any other matters.  On 17 April 2020, the applicant was made redundant. 

In May 2020, the applicant made an unfair dismissal claim to the FWC. The respondent opposed the claim and notified that it had a jurisdictional objection on the basis that it is not a national system employer.  A conciliation conference was held on 25 June 2020 in the FWC, however no agreement was reached. On 29 June 2020, the applicant discontinued her claim in the FWC and commenced an application with the Commission. 

Contentions

The applicant asserted that she was not consulted, the redundancy was not genuine, and the implementation of the redundancy was rushed and chaotic.  The applicant contended that she ought to have been offered JobKeeper payments as were other employees of the organisation. The applicant submitted that the reasons for the delay in her application were outside of her control, and the respondent, by agreeing to enter into conciliation in the FWC, was seeking to delay any potential claim in the Commission. 

The respondent opposed the application and contended that the position was abolished for business and operational reasons and the process of implementing the consequential redundancy was not harsh nor unfair.  The respondent asserted that it was not appropriate to continue to engage the applicant under the JobKeeper assistance scheme, because it did not intend her position would continue.  The respondent submitted that the claim was made outside of the 28-day limit and that it should not be accepted out of time. 

Findings

In determining whether to grant an extension of time, the Commission considered the reasons for the delay, any action taken by the applicant to contest the termination other than by applying under the IR Act, the prejudice to the respondent, including prejudice caused by the delay. 

The Commission found that the applicant made a deliberate decision, informed by legal advice, to continue to progress her claim with the FWC and not make an application to this Commission, resulting in the delay. The Commission noted that the applicant had taken action to contest the dismissal other than by this claim and noted that there was little prejudice to them arising from the delay.  

The Commission found, however, that the decision to abolish the position did occur due to a genuine redundancy, in that the respondent determined the role was no longer required, and that it was not financially viable to maintain the role. The Commission noted that at the time the applicant’s position was made redundant, the unprecedented nature of the COVID-19 health crisis, and the changing environment and developing events may have been confusing. The Commission considered, however, that the respondent fulfilled its obligations to inform the applicant as soon as practicable after a decision was made; to provide the applicant with an opportunity to inform them of the impact of the decision; and to consider any alternate arrangements that may mitigate the negative impacts. 

The Commission determined that the applicant did not demonstrate the merits of her claim and the referral out of time was not accepted. 

The decision can be read here.

The Commission has granted an adjournment  in an appeal against the decision of the Commissioner of Police to remove a Police Officer, to enable the applicant to obtain representation and adequately prepare her case.

Background

The appellant was a First-Class Constable in the Western Australian Police Force.  The appellant was removed from the Police Force by the respondent on 6 April 2021 and filed an appeal against her removal under s 33P of the Police Act 1892 (WA).   The Commission listed the appeal for hearing on 25 November 2021, having regard to the appellant’s request for sufficient time to obtain legal representation and to attend to certain medical matters.  On 12 November 2021, the appellant sought an adjournment of the appeal. 

Contentions

The appellant sought an adjournment on the basis of difficulties encountered with her legal representatives.  The appellant indicated that she had consulted solicitors and had believed they were going to represent her. It was not until 12 November 2021 that the appellant contended that she discovered this was not so, and her case on the appeal had not been prepared.  The appellant contended that she was therefore unprepared to proceed with the appeal and required further time to obtain alternative legal representation. The appellant noted that, in addition to not having undertaken research and preparation for the hearing, she was not medically fit to appear before the Commission. The respondent indicated that it neither consented to nor opposed the appellant’s application. 

Findings

The Commission noted that it may exercise procedural powers to adjourn a proceeding to any time and place.  The Commission outlined that where the refusal of an adjournment would result in a serious injustice to one party, an adjournment should be granted, unless in turn, this would mean a serious injustice to the other. The Commission noted that a lack of preparation for a proceeding is not generally in and of itself a sufficient reason to grant an adjournment

The Commission indicated that whilst it was concerned that the appellant had already been afforded a generous amount of time, it would grant an adjournment to enable her to obtain alternative representation and prepare her case. 

The decision can be read here.

The Commission will close at 12pm on Friday 24 December 2021. The Registry phone and email services will be monitored remotely from 12pm until 4:30pm for any urgent enquiries on this day. Ordinary services will resume from 8:30am on Tuesday 4 January 2022. 

If you have an issue relating to an urgent industrial matter requiring immediate attention  between 29-31 December, please contact the Registrar directly on 0404 044 338 during usual business hours (8:30am to 4:30pm). If unable to reach the Registrar during this time, the Deputy Registrar may be contacted on 0419 822 989. 

All Registry services are unavailable on weekends, public holidays and outside of usual business hours.

The Commission has found a decision to dismiss a prison officer was lawful, where the prison officer engaged in misconduct by failing to disclose the true nature of a personal relationship with a prisoner.

Background

The applicant was employed as a prison officer for over ten years. In February 2020, the applicant returned from annual leave and submitted a declaration of conflict of interest to declare an association or relationship with a prisoner (S). In the declaration of conflict of interest, the applicant stated that the nature of the relationship with S was through attendance at a church.

In April 2020, the applicant was suspended, and an investigation commenced into allegations of misconduct, including that that the applicant had failed to declare the true nature of the personal relationship with S; that the applicant had falsely declared the nature of the relationship with S; and that the applicant had provided false, dishonest and/or misleading information in a disciplinary investigation. The investigation found five allegations of misconduct to be substantiated, and the applicant was dismissed.

Contentions

The applicant submitted that he was not guilty of the allegations, that the respondent did not uphold procedural fairness or provide sufficient enquiry. The applicant argued that the allegations were inadequate or not clearly articulated. The applicant conceded that he had interactions with S, including regularly socialising with S; having S attend his home; and paying for S to accompany him on a holiday. The applicant submitted, however, that these close interactions did not change the nature of the relationship.

The respondent submitted that the investigation was fair. The respondent contended that prison officers, in a position of trust, displayed honesty and integrity. The respondent contended that, if the findings of misconduct were upheld, then the dismissal is not disproportionate or unfair.

Findings

The Commission found that the respondent conducted a fair and thorough inquiry, and that it was open to the respondent to find that at least four of the five allegations were substantiated in full. The Commission considered that the applicant had not declared the true nature of his relationship and association with S, and this undermined the necessary trust and confidence the respondent is required to hold in its prison officers.

The Commission, in considering the applicant as a witness, noted that he was evasive and unforthcoming, and at times implausible. The Commission considered that the applicant displayed a lack of integrity, judgment and insight, and that he had not simply made a mistake he had learned from. Given this, the Commission found that counselling could not be an appropriate alternative outcome, and that dismissal was a proportionate response. The Commission found that dismissal was not harsh, oppressive or unjust, and the application was dismissed.

The decision can be read here.

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.