Details 

Created: 10 October 2019

The Commission has dismissed an unfair dismissal application made by a podiatrist. The alleged unfair dismissal occurred following a workplace disagreement between the parties that resulted in the respondent advising the podiatrist that her services were no longer required.

A jurisdictional question was raised by the respondent that the podiatrist was an independent contractor, and not an employee, and as such the Commission is unable to hear the matter. Commissioner Walkington considered that various factors indicated that the podiatrist may be an independent contractor but was ultimately satisfied on the balance that the podiatrist was in fact an employee.

The next question considered was whether the podiatrist's termination was harsh, oppressive or unfair. Walkington C concluded that the podiatrist did not comply with a lawful direction from her employer and had also used abusive language to directly challenge her employer. The Commission found that the podiatrist's conduct caused a destruction in the necessary relationship of confidence between the parties and that because of this the respondent was entitled to summarily terminate their employment. The Commission dismissed the application.

The decision can be read here. 

Details 

Created: 02 October 2019

The Road Freight Transport Industry Tribunal has dismissed a claim by an owner-driver that alleged the respondent contravened an agreement where the applicant would deliver concrete as directed by the respondent ('Cartage Agreement') by summarily terminating it without payment of compensation. The respondent terminated the Cartage Agreement under clause 9.1(i) following the investigation of an incident where the applicant had drove his truck towards a person, which resulted in the truck contacting the person (the incident).

The Tribunal considered the meaning of cl 9.1(i) i, set out below:

"Holcim may terminate the cartage agreement of an Owner granted by this Agreement immediately and without compensation to the Owner:

…

(i) in the event of a fundamental breach by the Owner, or its Driver, of this Agreement, including, but not limited to:

1. Serious and wilful misconduct (including, theft, violence or violent threats and fraud);…"

The Tribunal determined that regardless of the type of conduct or behaviour, the conduct must be a fundamental breach.

The Tribunal then considered the evidence of the incident and concluded that the applicant's conduct, when he continued to drive towards a person who was moments before standing in his clear vision, was both serious and wilful misconduct. Further, that even if the applicant's conduct was not serious and wilful misconduct it would be a serious safety breach under cl 9.1(f) of the Cartage Agreement which would also justify the respondent to summarily terminate it without compensation.

In relation to the applicant's claim that they were denied procedural fairness in the course of the respondent's decision making, the Tribunal found that it does not have jurisdiction to consider general notions of industrial or procedural fairness and that no exception applied. In the alternative, the Tribunal considered that procedural fairness had not been denied to the applicant who had received ample opportunity to explain the incident, was given a copy of meeting notes from the investigation, was shown footage of the incident several times and was given the opportunity to, and did in fact, have a support person present at the incident investigation meetings.

Finally, the Tribunal considered whether the respondent's offer to the applicant of a further five-year contract if they agreed to do certain things induced the applicant to enter the contract. The Tribunal found that the respondent had not misrepresented the contract to the applicant because the applicant received independent advice and none of the evidence suggested that the applicant had felt misled. Also, any prior representations were overtaken by the fact that the parties had entered into a further Cartage Agreement that contained an “entire agreement” type of clause, ruling out any prior representations, which were not, in any event, fraudulent. Additionally, even if a misrepresentation was established, the Tribunal expressed doubt on what relief it could grant.

The decision can be read here.

Details 

Created: 18 September 2019

The Full Bench has unanimously dismissed an appeal against a discretionary decision of the Commission that found that the dismissal of a teacher for substandard performance was not unfair. For an appeal against a discretionary decision to be made out it must be shown that there was an error in the learned Commissioner's decision-making.

The Full Bench considered five grounds of appeal raised by the teacher and found that none of them had been made out.

The Full Bench first found that it was open to the learned Commissioner to conclude that the teacher's performance had been correctly assessed. The Full Bench reached this conclusion after it noted that:

1. the Teacher Registration Board levels of Provisional Registration and Full Registration were directly linked to the "Graduate" and "Proficient" performance measures administered by the Australian Institute for Teaching and School Leadership (AITSL).
2. it was open to the learned Commissioner to find that the teacher's performance was substandard.
3. the appellant complained that the respondent failed to call an important witness at first instance. The Full Bench said that the appellant knew that the witness was not going to be called and never raised an issue or requested to have this witness called.
4. the learned Commissioner did not need expertise or qualifications in the particular subject matter when he heard and considered the evidence.
5. a report into the particular school by an expert review group which was issued before the appellant taught at the school was not relevant.

Secondly, the Full Bench held that the learned Commissioner was correct to find that the teacher had had many opportunities to know and understand the issues about his performance and received a significant amount of support to improve. Any procedural unfairness in the performance management process occurred early on and had not been raised as an issue by the appellant. The Full Bench added that even if this ground was established, it would not be significant enough to uphold the appeal.

Any alleged inconsistency between the oral evidence and the data, when put into context and weighted by the learned Commissioner, was found by the Full Bench as not being significant enough to cause the decision to be overturned. The Full Bench added that the weight given to the evidence at first instance is a part of the discretion afforded to the learned Commissioner.

In a fourth ground, the Full Bench held that the learned Commissioner had considered the evidence of assistance given to the teacher and if there was any improvement in his classroom's behaviour and found that any change in the teacher's performance was not enough to bring him to a satisfactory level.

A final ground of appeal challenged the description of a witness as an expert. The Full Bench determined that the witness was an experienced maths teacher and qualified AITSL assessor who was an expert in assessing performance against the relevant performance measures, even though he had no training in substandard performance.

The Full Bench noted that further issues raised by the appellant at the hearing did not directly relate to the grounds of appeal and commented that for evidence of staff turnover to be considered, there needed to be a clear link between the issue of staff retention and the teacher's performance.

The decision can be read here. 

The Road Freight Transport Industry Tribunal has made a declaration and issued orders for the payment of an alleged balance of monies owed to the applicant pursuant to an owner-driver contract. The Tribunal was satisfied that the applicant is an owner-driver and that despite the referral to the Tribunal being made after the termination of the owner-driver contract, the Tribunal had jurisdiction to deal with the applicant’s claim.

It was determined by the Tribunal that an oral owner-driver contract was entered into by the parties in or about July 2017 for the supply and heavy vehicle transportation of building sand. The respondent paid a portion of the balance owed to the applicant, giving rise to the remaining debt being outstanding.

The Tribunal considered that there is no capacity to institute third party proceedings to compel a third party to cover monies that they may owe and found that the respondent does owe the outstanding balance to the applicant plus interest.

The decision can be read here.

Tuesday, 26 March 2019

The Occupational Safety and Health Tribunal (the Tribunal) has dismissed an application for payment of an unspecified amount for continued pay and benefits entitlements and a loss of earnings arising from alleged discrimination against a safety and health representative in relation to employment.

The Tribunal was comprised of Commissioner Walkington who considered the entitlements claim and noted that there is a mandatory process in place for resolving health and safety issues in the workplace, which include circumstances where a worker may cease work without loss of wages and entitlements. The Tribunal further considered that it is necessary for any employee wishing to make a claim to demonstrate that they have refused to work on particular tasks, have notified the employer of their belief of the risk to their safety and health and have made themselves available for alternate duties if it is safe to do so. The Tribunal found that the applicant’s actions were not consistent with the provisions of the legislation and regulations.

The Tribunal then considered that persons who are safety and health representatives or are performing or have performed any function as a safety and health representative can make a claim for discrimination against a safety and health representative in relation to employment. The Tribunal found that the applicant was not eligible to bring this application because the applicant had not demonstrated that he was a validly elected safety and health representative.

The Tribunal dismissed the referral for lack of jurisdiction.

The decision can be read here.