The Commission has held that a national system employee who did not meet the minimum period of employment to make a claim under the Fair Work Act 2009 (Cth) (FW Act) cannot seek relief under the Industrial Relations Act 1979 (WA) (IR Act).

Background

The applicant was employed by the respondent from 9 December 2020 until 28 January 2021. The applicant contends that she was forced to resign because of the behaviour of two colleagues.

The applicant was employed for a period less than the minimum six-month period required under the FW Act  to be able to make an application to the Fair Work Commission, and sought relief in the Commission .  

Contentions

The applicant contended that the IR Act applied to her employment because the FW Act precluded her from pursuing her claim in that jurisdiction.  

The respondent argued that the Commission did not have the necessary jurisdiction as it is a national system employer. The respondent submitted an affidavit attaching an Annual Financial Report for the year end 30 September 2020, a summary of the structure of the company and an extract of the company details held by the Australian Securities and Investments Commission.

Findings

The Commission noted that section 26 of the FW Act operates to apply to all national system employees and employers and excludes the provisions of the IR Act.

The Commission determined that, as the respondent was a trading corporation and national system employer, the applicant could not seek relief for an unfair dismissal under the IR Act. The application was dismissed for want of jurisdiction.

The decision can be read here.

The Commission has dismissed a claim for unfair dismissal, on the grounds that the Commission was unable to hear a matter where the parties had reached an agreement to settle the claim. 

Background 

The applicant was employed as a full-time maintenance person from 20 May 2019. The respondent terminated the applicant’s employment on 28 February 2020 for his alleged inappropriate behaviour toward his supervisor. The applicant filed a claim for unfair dismissal on 15 May 2020.  

A hearing was scheduled to determine whether to hear the applicant’s application out of time. The respondent requested a further directions hearing on the basis the applicant had not complied with previous directions from the Commission to file and serve an outline of evidence and witnesses. 

The respondent later informed the Commission that it no longer sought a further directions hearing as the parties had reached an agreement to settle the matter. The applicant contacted the Commission to advise that he had agreed to settle with the respondent by email and had received the Settlement Agreement document but would not sign it. The applicant stated that he wished to proceed to hearing. 

Findings 

The Commission considered whether the application should be dismissed on the grounds that the parties had reached an agreement to settle the claim. 

The Commission outlined that, pursuant to section 27(1)(a)(ii) of the Industrial Relations Act 1979 (WA), it is not in the public interest to proceed to hear a matter that is already settled by agreement. The Commission also outlined that where parties concluded the terms of the agreement, then a claim that a person has been unfairly dismissed is extinguished. 

The Commission noted that the applicant had emailed the respondent indicating his acceptance of an offer of $3000 in settlement of his claim, and the respondent had acknowledged receipt of this email. The applicant had also provided details of his financial institution account. 

The Commission considered that the Settlement Deed recorded the terms of the agreement made including payment, releases, confidentiality and non-disparagement. The Commission determined that while the settlement sum was not payable until the execution of the deed by the parties, a refusal to sign the Deed did not mean that the agreement between the parties was not concluded. 

The Commission found that further proceedings were not necessary or desirable in the public interest pursuant to section 27(1)(a)(ii) of the IR Act, and that the agreement made had overtaken the applicant’s unfair dismissal application. The Commission ordered that the application be dismissed. 

The decision can be read here.

The Occupational Safety and Health Tribunal (Tribunal) has granted leave to an applicant to discontinue her referral to the Tribunal.

The applicant reported a purported breach of the Occupational Safety and Health Act 1984 (WA) (OSH Act) at the school in which she worked. The applicant indicated that reasonable requests to minimise injury were denied, and that she was not able to attend the workplace. The applicant referred the matter to the Tribunal, seeking orders for the payment of salary and entitlements; an external investigation or audit of the workplace; and reinstatement in her employment at an alternative workplace within the Department of Education.

The respondent contended that the applicant left the school without authorisation as required under the OSH Act and disputed that there were not reasonable grounds to believe that remaining at the school premises would expose the applicant to risk of imminent and serious injury, or imminent and serious harm to her health.

The applicant later made application to amend her application, including to extend the remedies sought to aggravated damages; damages; and compensation. The matter was listed for two directions hearings, both of which the applicant did not attend. The respondent sought to dismiss the claim for want of prosecution

The matter was listed for a hearing to show cause why the matter should not be dismissed. The applicant requested the matter be heard on the papers. On the evening prior to the hearing, the applicant made application to withdraw and/or amend her application. The applicant raised additional objections to the representation of the respondent by a legal practitioner.

Findings

Commissioner Walkington noted that the provision of s 31(1) of the Industrial Relations Act 1979 (WA) (IR Act), read together with s 51I of the OSH Act, gave the respondent the right to be represented by a legal practitioner, and that the applicant’s consent was not required.

Walkington C found that under the OSH Act, the Tribunal did not have the necessary authority to consider damages, aggravated damages nor compensation, and therefore the application to amend the referral for these remedies could not succeed. She further found that it was not appropriate for the matter to be heard on the papers, given that the respondent opposed this request, and the nature of the matter may require oral evidence and the capacity to cross examine witnesses.

Walkington C found that it was within the Tribunal’s power to dismiss the matter under s 27(1)(a) of the IR Act or to grant leave to discontinue the application. Walkington C inferred from the applicant’s submissions that, should the application to amend the remedies sought and the request for the matter to be heard on the papers be refused, the applicant wished to discontinue the referral.

The Tribunal granted the applicant leave to discontinue the matter.

The decision can be read here.

The Commission has dismissed an application to tender new evidence in an appeal against the decision of the Commissioner of Police to remove a police officer under the Police Act 1892 (WA) . The Commission, in the same hearing, granted an amendment to the grounds of appeal.

Background

The appellant is a former member of the Western Australian Police Force. At the time of the events leading to his removal, the appellant was a Senior Constable based at the Geraldton Police Station.

Loss of confidence proceedings commenced in October 2020. The appellant was accused of making an arrest without lawful authority; using excessive force in an arrest; being negligently or wilfully dishonest; and failing to perform his duties in a proper manner by failing to address inaccurate and misleading in formation in a witness statement.

The appellant was removed from the Police Force on 29 December 2020. The appellant denied the allegations.

The appellant made two interlocutory applications in connection with the appeal. Firstly, to tender new evidence under s 33 R of the Police Act, and secondly, to amend the grounds of the appeal. The applications were heard together.

Contentions

The appellant sought to have various categories of evidence tendered, including audio recordings of all managerial interviews; historical penalties for excessive force; newspaper and media reports outlining a shooting in the region; occupational health and safety reports and dispatch figures.

The appellant argued, among other things, that this evidence displayed bias in the investigations conducted and the decision to remove him from the Police Force was affected by it .  It was also argued that the appellant’s removal was disproportionate to his conduct, compared to other cases.      It was also contended that the force used in the arrest was not excessive and was necessary to avoid injury to himself and the other police officer on duty with him at the time of the incident.   

The appellant also submitted that there had been no appreciable decline in dispatch requests from Geraldton Police Station. The appellant argued that these figures were indicative of public confidence in the Police at Geraldton, and as such, there was no loss of confidence.

Conclusions

The Commission identified key provisions under the Police Act that are required to be fulfilled when determining if new evidence may be tendered where  the Commissioner of Police does not consent.  

The Commission outlined that the qualification for the WAIRC to grant  leave to tender new evidence is satisfaction of s 33R(3)(b), and that  the Commission must be  satisfied that

• the appellant is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information;
• the new evidence might materially have affected the Commissioner of Police’s decision to take removal action; or
• it is in the interests of justice to do so.

The Commission went on to outline that the tender of new evidence is also constrained by s 33R(4), in that the Commission must consider the appellant’s prior awareness of the substance of the new evidence. Further, under s 33R(11), the new evidence must not have been considered by the Police Commissioner in making the decision to take removal action.

 The Commission also dealt with  the concept of public interest under s 33Q(4) of the Police Act. The Commission clarified that the public interest was not based on the individual conduct of the appellant and whether this had resulted in fewer calls to the Geraldton Police Station. Rather, it is concerned with whether the actions of the appellant were compatible with the need to maintain public confidence in the Police Force generally, and whether it was open to the Commissioner to lose his confidence in the appellant in the circumstances.

 The Commission determined that the documents did not satisfy the requirements of s 33R of the Police Act,  and dismissed the application to tender new evidence. The Commission, however, held that the application to amend the grounds of appeal, not relating to the tender of new evidence, would be granted.

The decision can be read here

The Commission has ordered an employer pay $9,438.89 in compensation for loss and injury to an employee who was unfairly dismissed. The decision was heard in the absence of the respondent, after the Commission declined to grant the respondent a third adjournment.

Background

The applicant was employed at Mageela Cottage & Boarding Kennel (Kennel), commencing on 27 June 2018.  On 1 February 2020, the applicant identified a shortfall between her gross and net pay. The applicant sent a text message to the respondent, who informed her that this was deducted for bathroom, food, drink, and phone usage breaks.

On 3 February 2020, the respondent told the applicant that he did not like her attitude, and that she was difficult to be around. The respondent informed the applicant that she was dismissed. The respondent immediately locked the door as the applicant exited the room.  On 28 February 2020, the applicant made an application to the Commission alleging she had been dismissed unfairly.  Conciliation did not result in an agreement and the matter was listed for hearing. The Commission made directions for parties to file and serve an outline of submissions seven days before the hearing.

The respondent sought to have the hearing of the matter adjourned on three occasions. The respondent did not provide any evidence to support his reasons for seeking an adjournment but referred to issues of staffing at the Kennel. An adjournment was granted in the first two requests.  Two days prior to the third hearing date, the respondent indicated that he was unable to attend the hearing and would not be available until January. The respondent had not yet filed its outline of submissions. The respondent argued that a progression of the matter without his submissions or presence would be a miscarriage of justice.

The Commission determined that the respondent had not complied with previous directions concerning the submissions or the scheduling of hearings. The Commission considered that any further extension of time would not result in the submissions being filed. The Commission determined that the prejudice to the applicant in delaying her hearing any further outweighed any prejudice to the respondent and proceeded in the absence of the respondent. 

Contentions

The applicant submitted that the respondent failed to consult her about any performance issues prior to her dismissal.  The applicant provided evidence that she had raised concerns for the wellbeing of a dog at the Kennel and argued that the respondent had not addressed any performance issues in this instance, or at any other time.

The applicant contended that following the dismissal, the respondent threatened to tarnish the applicant’s reputation with future employers. The applicant further contended that the respondent accused her of reporting the Kennel to the RSPCA. When the applicant denied these allegations, the respondent threatened to euthanize 60 dogs if the applicant did not disclose who made the report.

The respondent did not file submissions or attend the hearing. In a response filed with the Commission prior to conciliation, the respondent stated that the applicant was terminated for neglecting the welfare of the animals; falsely claiming hours worked; damaging the profitability of the business; refusing to communicate with the respondent; disruptive and upsetting behaviour towards fellow employees and dishonesty. The respondent provided no evidence to support these allegations.

The respondent admitted that he dismissed the applicant immediately after hearing from another employee that the applicant had allegedly mistreated one of the dogs and had allegedly failed to follow instructions.  The applicant contended that the alleged reasons provided by the respondent were baseless, and an attempt to justify his actions.

Conclusions

The Commission accepted the applicant’s submissions and evidence provided at the hearing.

The Commission concluded that, even if the respondent did have concerns about the applicant’s performance, the respondent did not seek an explanation or response from the applicant. Rather, the respondent decided to dismiss the applicant as soon as the applicant presented for her next shift.  The Commission determined that the applicant took reasonable steps to mitigate her loss, by retraining and securing alternative employment five weeks after the dismissal.

The Commission was also satisfied that the applicant had suffered distress beyond that of most dismissals due to the behaviour of the respondent, in locking the applicant out immediately after dismissal; threatening to euthanize 60 dogs; and threatening to tarnish the reputation of the applicant. 

The Commission awarded $6,438.89 to the applicant in compensation for lost wages and notice, and $3000 for the injury suffered.   The decision can be read here.