An applicant in an unfair dismissal claim had entered into a deed of settlement regarding her workers’ compensation claim. The employer at the hearing at first instance said that the deed she entered into at the workers’ compensation conference barred her from bringing an unfair dismissal claim.

The Full Bench has upheld an appeal against the decision of the Commission at first instance ordering that the legal representative of the employee produce to the Commission any notes, not subject to privilege, taken by them at the employee’s workers’ compensation conciliation conference at which the agreement the subject of the deed was reached.

At first instance

At a preliminary hearing in relation to jurisdiction, the employee claimed that she was “forced into resigning” in such a way as to make the ending of her employment a “constructive dismissal”. The Department of Education argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim.

The Department sought, by way of summons directed to the employee’s legal representative for the workers’ compensation matter, documents relating to the workers’ compensation matter. 

The Department argued that the employee, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege.

Matthews C found that, while any note from the conference that is subject to privilege was not required to be provided, the employee had not impliedly waived privilege in respect of the documents (3) and (4) of the summons.

Matthews C determined that the employee’s state of mind insofar as it was created or influenced by the Department was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors.

The Commission ordered that the legal representative produce to the Commission any notes, not subject to privilege, taken by them at the employee’s workers’ compensation conference.

Appeal to Full Bench

The Full Bench unanimously found that, in accordance with s 49(2a), the appeal is against a ‘finding’ and that the matter is of such importance that in the public interest an appeal should lie.

The Department argued that Matthews C erred in finding that the employee had not impliedly waived privilege over documents within items (3) and (4).

Chief Commissioner Scott and Senior Commissioner Kenner noted that while Matthews C concluded that the employee had not relied on advice, other parts of her evidence indicated otherwise. The majority found that she had given express evidence that she received and acted on her legal representative’s advice, and that she had other things affecting her state of mind other than the effect of the Department’s actions.

The majority found that the employee had impliedly waived privilege by disclosing communications with her lawyers in answers to questions asked by the Commissioner at first instance. They concluded that the employee had received advice from her legal representative, and that her evidence and submissions were inconsistent with her maintaining the privilege to which she was otherwise entitled.

The majority upheld the appeal.

Commissioner Emmanuel (dissenting) found that Matthews C was correct to find that the employee did not impliedly waive privilege over certain documents. Emmanuel C determined that on the evidence, she could not find that the employee’s statements put privileged communications in issue and found that no confidential communications were disclosed in relation to advice received by the employee’s representative.

The decision can be read here.

Details  Created: 18 August 2020

The Commission has upheld a claim for a denied contractual benefit by an operations manager who said that he was denied an annual bonus to which he was entitled to under his contract of employment.

The applicant was employed in April 2019 under a written contract of employment, which provided for an annual bonus of $15,000 on achievement of key performance indicators.

The applicant said that he undertook a performance appraisal with the general manager in March 2020 and testified that he met all the key performance indicators.

On 11 May 2020, the applicant received a letter informing him that his position was to be made redundant. Senior Commissioner Kenner noted that the letter referred to payments upon his departure, including an “annual bonus $15,000”.

However, on 18 May 2020, the applicant received another letter referring to the termination of his employment to be effective on 27 May 2020. This letter referred to what was described as a “discretionary bonus payment”.

The respondent argued that the bonus was only payable on the combination of the achievement of personal key performance indicators and the key performance indicators of the respondent’s business as a whole.

Kenner SC found that the bonus entitlement set out in the contract was plain and clear, and that on a proper construction of the applicant’s contract of employment, he was entitled to a $15,000 annual bonus on the satisfaction of key performance indicators given to him at the commencement of his employment.

The claim was upheld, and the respondent was ordered to pay the applicant the annual bonus of $15,000.

The decision can be read here.

Details  Created: 06 August 2020

The Full Bench has unanimously dismissed an appeal against a decision of the Industrial Magistrates Court (IMC) exercising jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). It found that it had no power to review a decision of the IMC exercising such jurisdiction.  

The appellant’s claims before the IMC sought to enforce entitlements alleged to arise from an award issued under the FW Act and entitlements under the National Employment Standards. He also suggested that one of the matters he pursued related to an employer-employee agreement and therefore fell under the Industrial Relations Act 1979 (WA).

The appellant claimed that the Industrial Magistrate denied him a fair hearing.

Although the appellant recognised that the Full Bench had no jurisdiction to deal with the substance of his claim under the FW Act, he argued that the Full Bench has the characteristics of a court and therefore can deal with his appeal as it relates to procedural fairness.

The Full Bench found that it does not have the power to review a decision of the IMC exercising jurisdiction under the FW Act, whether for the purpose of examining whether procedural fairness applied or for any other purpose.

The appeal was dismissed for want of jurisdiction.

Costs

The respondent sought costs on the basis that the appeal was frivolously and vexatiously instituted when the Full Bench had no jurisdiction to deal with it.

The respondent said it had alerted the appellant to the Full Bench’s lack of jurisdiction, pointed him to the Federal Court of Australia and invited him to discontinue the proceedings.

The appellant submitted there was no option for him to withdraw the application and there was no way out without a Full Bench decision.

The Full Bench found that there was nothing to prevent the appellant from seeking leave of the Full Bench to discontinue the hearing or withdraw the appeal. It noted that it is not in the interest of the parties, the Commission, or the public for matters to proceed to their conclusion merely because it had been commenced.

However, the Full Bench found that there was no suggestion that the appeal was instituted frivolously or vexatiously by the appellant. It considered the difficulty of lay persons to navigate through a less than straightforward appeal process, from a State court to a Commonwealth one.

The application for costs was dismissed.

The decision can be read here.

Details  Created: 30 July 2020

The Industrial Magistrate has dismissed a claim for pay in lieu of notice and other entitlements under the Electorate Officers Award 1986 (WA) (Award) and the Electorate and Research Employees CSA General Agreement 2019 (WA) (Agreement) after finding that, on the proper construction, cl 8(2)(b)(iv) of the Award had no operation to the claimant’s employment.

The claimant, an Electorate Officer, alleged that she was ‘constructively dismissed’ when she resigned from her employment in December 2019. She alleged that upon the expiration of her contract, she was entitled to benefits under the Award and the Agreement.

The claimant argued that the irretrievable break down of her working relationship with a Member of Legislative Council is a circumstance covered by cl 8(2)(b)(iv) of the Award because her ‘constructive dismissal’ occurred through no fault of her own and her employment was ‘deemed’ to have expired.

The respondent denied the claim and argued that cl 8(2)(b)(iv) of the Award had no operation to the claimant’s employment. The respondent lodged an application seeking summary dismissal on the ground that the claim had no real prospect of success.

The respondent also sought costs of the proceedings on the ground that the claim was frivolously or vexatiously instituted.

Consideration

Industrial Magistrate Scaddan noted that cl 8(2) of the Award concerns the expiration of an employee’s contract of employment, having regard to the unique position held by Members of Parliament.

Scaddan IM noted that there are four instances where an employee’s contract will be deemed to have terminated through no fault of the employee’s. Three instances relate to the office held by the Member, with the fourth instance providing for ‘other [unspecified] circumstances as agreed between the employer and the Union’: cl 8(2)(b)(iv) of the Award.

Scaddan IM found that, having regard to the ordinary meaning of the words, unless there is an agreement between the respondent (as employer) and the Civil Services Association of WA Inc. (as Union) as to what ‘other circumstance’ applies, cl 8(2)(b)(iv) has no operation relevant to an employee’s termination.

Scaddan IM found that as the claim for benefits relied upon the application of cl 8(2)(b)(iv) of the Award, and no agreement existed between the respondent and the Union regarding the deemed expiration of the claimant’s employment, the claim ought to be dismissed.

Her Honour also granted the respondent’s applicant for summary judgment but dismissed the respondent’s claim for costs. Scaddan IM found that while the claim was arguably misguided and misconceived, it does not of itself lead to a conclusion that it was frivolously or vexatiously instituted.

The decision can be read here.

Details 

 Created: 27 July 2020

The Commission has declared that the correct interpretation of the dispute resolution provisions set out in the Department of Justice Prison Officers’ Industrial Agreement 2018 (Agreement) is that they are limited to disputes about the meaning and effect of the Agreement or the Minimum Conditions of Employment Act 1993 (WA).

The applicant, the Western Australian Prison Officers’ Union of Workers, and the respondent, the Minister for Corrective Services, are parties to the Agreement.

The applicant contended that the dispute resolution provisions of the Agreement, including the key provision of cl 176.2, should be constructed broadly to apply to all questions or disputes arising between the parties.

The respondent argued that the provisions are limited to those disputes about the meaning and effect of the Agreement or the Minimum Conditions of Employment Act 1993 (WA).

Senior Commission Kenner found that on a strict interpretative basis, even applying a generous approach, taking the language used in cl 176, he preferred the position adopted in the respondent’s submissions.

Kenner SC found, in its ordinary and natural meaning, the words in cl 176.2 that “Any question or dispute that arises between the parties regarding the meaning and effect of this Agreement… will be resolved” are narrow in scope and only seek to confine matters that are the subject of formal dispute resolution processes.

The Commission has issued a declaration to this effect.

The decision can be read here.