Two new appointments to the Commission were announced today by the Minister for Industrial Relations the Hon. Stephen Dawson MLC.

Senior Commissioner Kenner, who has been the Senior Commissioner since 2016, has been appointed as the Chief Commissioner from 5 May 2021.

Ms Rachel Cosentino, a barrister at Francis Burt Chambers, has been appointed as the Senior Commissioner from 8 June 2021.

Ms Cosentino has extensive industrial relations and litigation experience. Prior to joining the Bar, Ms Cosentino headed up the General Law Division at Slater and Gordon Lawyers.

The Commission welcomes the new appointments.

Read the full media release here.

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the respondent, the Director General of the Department of Education, to take improvement action against an employee who had been the subject of a disciplinary process.

Background

The employee is employed as an Administrative Officer at the Department of Education. She was the subject of a disciplinary process under s 81(1)(a) of the Public Sector Management Act 1994 (WA) (PSM Act) which began on 16 April 2019.

On 21 July 2020, the employee received a letter from the Department which confirmed that no breach of discipline finding had been made against her and required her to take improvement action pursuant to s 82A of the PSM Act.

The employee appealed this decision to the Board.

Contentions

The employee argued that the Director General did not have the power to order her to undertake improvement action under s 82A of the Act. Her central argument was that the Board should infer from the letter dated 21 July 2020 that the Director General made a positive finding that she did not commit any breach of discipline.

The employee contended that, having found there was no longer any ‘disciplinary matter’ for the purposes of s 82A of the PSM Act, the Director General did not have the power to then direct her to take improvement action.

The Director General denied that she made any disciplinary findings, but said that the legislative framework allows her to take improvement action when no disciplinary findings have been made.

The Director General said that in any event, she was authorised to take improvement action where appropriate under s 29 of the PSM Act.

Findings

The Board found that the Director General did not make a finding ‘of no disciplinary breaches’. It found that there was the absence of a finding, which was not the same as finding that something did not occur.

The Board found that though the investigation was complete and no findings were made, it did not mean that there was no longer any disciplinary matter to empower the Director General to act under s 82A of the PSM Act. The disciplinary matter was still on foot and it was open to the Director General to decide to move away from the disciplinary process and impose improvement action.

The Board considered that the Director General’s decision to impose improvement action was within power under the PSM Act. It found that the Director General did not err in her interpretation of s 81(1) and 82A(2) of the PSM Act when she decided, after the completion of a disciplinary investigation, to move away from disciplinary action and take improvement action.

The appeal was dismissed.

The decision can be read here.

The Industrial Magistrate has dismissed a claim for payment of two weeks’ wages in lieu of notice on the basis that the claimant had resigned from his employment and that the respondent, his employer, was entitled to withhold the payment.

Allegations

The claimant, a machine operator, claimed that the respondent contravened the Fair Work Act 2009 (Cth) (FW Act) and the Timber Industry Award 2010 (Cth) (Award) by failing to pay him his entitlement of two weeks’ wages in lieu of notice, totalling $1,672, at the end of his employment.

The claimant alleged that the employment relationship ended when he was dismissed by the respondent’s managing director on 1 July 2020.

The respondent maintained that the claimant’s conduct on 30 June 2020 was problematic and that he was verbally abusive and threatening in the workplace. It argued that, when confronted about this behaviour, the claimant resigned from employment and walked off the job before his finishing time.

The respondent also alleged that as the claimant resigned without giving notice, it was entitled, pursuant to cl 14.2 of the Award and s 324(1)(c) of the FW Act, to withhold an amount not exceeding the amount he would have been paid in respect to the period of notice required to serve out his notice.

The claimant argued that even if he did resign, the respondent was precluded from deducting any amounts from his final entitlement and relied on s 326 of the FW Act. He submitted that cl 14.2 of the Award is unlawful, as it permits a deduction ‘directly or indirectly for the benefit’ of the respondent and that such deduction was ‘unreasonable in the circumstances’.

Findings

Industrial Magistrate Hawkins noted that there was a great divergence between the parties as to what occurred and the sequence of events. Her Honour found that she did not consider the claimant to be a reliable witness and that virtually all matters in dispute were in direct conflict with the evidence of the respondent’s witnesses. Her Honour found that she preferred the evidence of the respondent’s witnesses.

Hawkins IM found that, on the evidence, the claimant’s resignation was verbally expressed in clear and unambiguous terms to the respondent on 30 June 2020. Her Honour found that she was satisfied that the claimant, having resigned without giving notice, was not entitled to payment of two weeks’ wages in lieu of notice.

Hawkins IM also found that the respondent had the right to withhold an amount equivalent to two weeks’ wages, as the claimant resigned without giving notice. Her Honour noted that the claimant pointed to no authority where similar provisions to cl 14.2 of the Award have been found unlawful, pursuant to s 326 of the FW Act. Her Honour noted that s 324 of the FW Act clearly allows for permitted deductions under an Award if an employee fails to give the required notice.

Hawkins IM determined that she was not satisfied that when the text, context, and purpose of s 326 of the FW Act is considered, that it applies to cl 14.2 of the Award. Her Honour found that even if she had been so satisfied, she did not consider the deduction was unreasonable in the circumstances.

Her Honour was satisfied that the respondent was permitted, pursuant to cl 14.2 of the Award, to deduct $1,672 from the claimant’s final entitlements.

The claim for payment in lieu of notice was dismissed.

The decision can be read here.

The Western Australian Industrial Relations Commission is required to set the minimum wage to apply to employers and employees covered by the WA industrial relations system.  It must do this before 1 July each year.  The current minimum wage for an adult employee of $760.00 per week was set in June 2020 to apply from 1 January 2021.  

The Commission invites interested persons and organisations to make a submission to the Commission on what minimum wage should be set in 2021. The Commission will hear oral submissions on Thursday, 20 and if necessary, a half day on Friday, 21 May 2021.  The proceedings are open to the public and will be webcast.  Any person who wishes to make an oral submission at that time should notify the Registrar of the Commission stating the basis of their interest.  This must be done by Tuesday, 11 May 2021. 

Written submissions are also welcome.  Any person or organisation who wishes to make a written submission should do so by Tuesday, 11 May 2021.  Copies of written submissions may be made public.  Anonymous submissions will not be considered. 

In making its decision, the Commission is required to consider the need to —

• ensure that Western Australians have a system of fair wages and conditions of employment; and
• meet the needs of the low paid; and
• provide fair wage standards in the context of living standards generally prevailing in the community; and
• contribute to improved living standards for employees; and
• protect employees who may be unable to reach an industrial agreement; and
• encourage ongoing skills development.

It is also required to consider:

• the state of the economy of Western Australia and the likely effect of its decision on that economy and, in particular, on the level of employment, inflation and productivity in Western Australia; and
• to the extent that it is relevant, the state of the national economy; and
• to the extent that it is relevant, the capacity of employers as a whole to bear the costs of increased wages, salaries, allowances and other remuneration; and
• the need to ensure that the Western Australian award framework represents a system of fair wages and conditions of employment; and
• relevant decisions of other industrial courts and tribunals; and
• any other relevant matters.

People interested in making a submission are invited to address those issues. 

Further particulars may be obtained from the Registry of the Commission and from the Commission’s website. All correspondence should be addressed to the Registrar at Level 17, 111 St Georges Terrace, Perth 6000 or via the Registry contact form quoting matter number APPL 1 of 2021. 

DATED at Perth, Monday, 19 April 2021.  

S. BASTIAN

REGISTRAR

The Full Bench has unanimously dismissed an appeal against a decision of the Commission on the basis that no appealable error had been made out to quash the decision at first instance that found that the dismissal of a deputy principal for misconduct was not harsh, oppressive, or unfair.

Background

The appellant was employed as Deputy Principal at Lumen Christi College. In 2019, the appellant was dismissed for serious misconduct following an investigation into historical sexual assault allegations made against him by a former student. He denied the allegations.

The appellant made an unfair dismissal application to the Commission. He claimed that the investigation process was flawed, the investigators had insufficient expertise, the evidence was contaminated, and that the expert psychologist’s report did not substantiate the allegations.

At first instance

Senior Commissioner Kenner dismissed the application. He found that he was satisfied that the investigators had regard to the appropriate principles in approaching the workplace investigation and noted that the standard of proof and approach to the inquiry was necessarily different to that of a criminal investigation.

Kenner SC determined, based on the material, it was open for the respondent, after a sufficient inquiry, to hold an honest and genuine belief, based on reasonable grounds, that the misconduct occurred.

A summary of the decision at first instance can be read here.

Appeal to the Full Bench

The appellant relied upon nine grounds of appeal.

Chief Commissioner Scott and Commissioner Walkington delivered joint reasons and dismissed all grounds but one. However, they concluded that although Ground 5 was upheld, it did not otherwise upset the conclusions at first instance.

Commissioner Emmanuel, in a separate reasons, dismissed all nine grounds.

Grounds 1 and 2

The appellant argued that Kenner SC erred in deciding that the appropriate test was that he only had to be satisfied that the respondent, after a reasonable investigation, held an honest and genuine belief based on reasonable grounds, that the misconduct alleged of the appellant occurred. Rather, the appellant said that the Commission must be satisfied that the misconduct actually occurred.

The appellant also contended that the Commission failed to apply the Briginshaw standard to his findings.

Scott CC and Walkington C found that Kenner SC applied the proper principle about the employer’s belief in the context of the serious nature of the allegations of sexual assault. They found that he did not and was not himself required to be satisfied that the misconduct occurred.

Scott CC and Walkington C found, as did Emmanuel C, that Kenner SC correctly identified the evidentiary onus as being ‘whether the respondent, after as proper and as through an inquiry as was necessary in the circumstances, held and honest and genuine belief, based on reasonable grounds, that the misconduct alleged occurred’. They also found that Kenner SC did not fail to apply the Briginshaw standard.

Ground 3, 4, 6, 7, 8 and 9

In these grounds, the appellant asserted that Kenner SC erred:

• in using circumstantial evidence to draw inferences adverse to the appellant;
• in his findings with respect to the receipt of and weight to be afforded to the hearsay evidence;
• when he found the essence of the written statements (the Statements) made by the former student to be compelling and credible;
• when he found that the tweets sent by the former student to the appellant were consistent with something of significance having occurred between them in the past;
• in failing to consider unchallenged character evidence from six character witnesses; and
• in concluding that the respondent had satisfied the test in reaching its conclusions.

These grounds were dismissed by Scott CC and Walkington C, and Emmanuel C.

They found that Kenner SC did not err in the way he dealt with the circumstantial evidence, or by accepting hearsay evidence in preference to the appellant’s sworn, first-hand evidence. They found that it was open for him to find the essence of the Statements to be compelling and credible.

They also determined that he had considered the character evidence, and he was entitled to treat the tweets as circumstantial evidence and conclude that the tweets supported a finding that something of significance had happened in the past.

In addition, they found that Kenner SC was entitled to conclude that the investigation undertaken, after a substantial lapse of time and considering the seriousness of the allegations, was conducted in a fair and reasonable way. They also rejected the appellant’s arguments about a range of issues.

Ground 5

The appellant contended that Kenner SC erred in his regard of one of the witnesses being a witness of truth in the face of a number of concerns about her evidence.

Scott CC and Walkington C defined ‘witness of truth’ as meaning that the evidence of the witness can be believed because of some particular quality of truthfulness of the witness, and the whole of the witness’s evidence ought to be treated as being credible.

They found that the witness could not strictly be described as a ‘witness of truth’ because there were a number of elements of the witness’s evidence that were questionable. However, they found that there were a number of aspects of her evidence that were credible and that the Senior Commissioner was entitled to accept that evidence as truthful and to prefer it to the appellant’s evidence. Although Scott CC and Walkington C upheld this ground, they found that it did not otherwise upset Kenner SC’s conclusions. They were not satisfied that the findings made by Kenner SC, including that he accepted her evidence, were in error.

Emmanuel C dismissed this ground. She found that Kenner SC did not err in finding that the witness was a witness of truth and preferring her evidence to the appellant’s evidence.

The appeal was dismissed.

The decision can be read here.