Details 

Created: 27 July 2020

On 14 April 2020, the Commission issued a General Order under s 50 Industrial Relations Act 1979 (WA) amidst the COVID-19 pandemic that allowed state system employees to take unpaid pandemic leave, annual leave on half-pay and annual leave in advance. The General Order can be read here.

This General Order provided flexible leave arrangements during the current circumstances of the COVID-19 pandemic. The General Order was due to expire on the 31 July 2020 and was subject to review either at the Commission’s initiatives or an application.

The Commission has issued an order extending the operation of the General Order setting out “Provisions Relating to the COVID-19 Pandemic” to 31 March 2021.

The Commission in Court Session undertook a review of the General Order and heard from the Minister, the Chamber of Commerce and Industry, and UnionsWA. It was agreed that, in the current circumstances of the COVID-19 Pandemic and its effects on businesses and employment, and the continuing uncertainty it has generated, the operation of the General Order should continue until 31 March 2021.

The Commission issued the order on 29 July 2020.

The order can be read here.

Details  Created: 21 July 2020

The Commission has dismissed a claim of unfair dismissal by a Deputy Principal for serious misconduct resulting from historical sexual assault allegations made against him by a former student.

Senior Commissioner Kenner also rejected an application to suppress the identity of the applicant, on the basis that embarrassment and possible reputational damage did not outweigh the public interest in the open justice principle applying.

Facts

In February 2019, allegations were made that the applicant sexually assaulted a former student on the last night of a school trip to Indonesia in 1997, where it was alleged that the applicant shared a hotel room with the student.

An investigation into the allegations commenced shortly after, with the Final Investigation Report completed in August 2019.

The Report summarised the procedure adopted, the allegations, the documents provided, several interviews with witnesses and included the referral to a psychologist for an expert opinion.

The Report concluded that on the balance of probabilities, it was reasonable to conclude that the allegations against the applicant were substantiated. The recommended outcome was a finding of serious misconduct and the termination of the applicant’s employment.

The applicant was summarily dismissed for misconduct on 20 August 2019.

Contentions

The applicant proclaimed his innocence and denied the allegations against him. He also maintained that his dismissal was unfair on grounds that the respondent’s investigation of the allegations were fatally flawed, the investigators had insufficient expertise, the evidence was contaminated, he could not properly respond to the allegations, and that the expert psychologist report did not substantiate the allegations.

The respondent contended that based on the totality of the evidence, the investigators could conclude on the balance of probabilities that the applicant’s misconduct had been established.

The respondent also argued that it conducted as thorough an investigation as it could, given that the conduct took place outside of Australia and the police could not investigate. It submitted that the applicant was given a fair go in the investigation and that the respondent followed relevant policies.

Conclusions

Kenner SC noted that in cases of serious misconduct, the civil standard of proof still applies, but consistent with the principles in Briginshaw v Bringinshaw (1938) 60 CLR 336, a higher level of satisfaction of proof is required in this case.

Kenner SC also determined that the issue to decide was not whether the applicant was guilty of the alleged conduct in a criminal liability sense, rather, whether the respondent, after as proper and as thorough an inquiry as was necessary in the circumstances, had an honest and genuine belief, based on reasonable grounds, that the misconduct occurred.

Kenner SC considered the evidence before him from multiple witnesses, statements, and letters. He also considered several criticisms of the respondent’s investigation process advanced by the applicant.

Kenner SC found that he was satisfied that the investigators had regard to the appropriate principles in approaching the workplace investigation and noted that standard and approach to the enquiry would be different to that of a criminal investigation.

He determined that, 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 took place.

The application was dismissed.

The decision can be read here.

Details  Created: 20 July 2020

The Public Service Appeal Board (Board) has granted an extension of time to institute proceedings against the decision to terminate the appellant’s employment on the basis that the appellant was unwell, had no capacity to work and thus was unable to file a Notice of Appeal.

The appellant was dismissed on 6 January 2020. He filed a Notice of Appeal against the decision on 26 March 2020, two months after the deadline for the regular filing of an appeal.

The appellant argued that he was unwell and pointed to medical certificates which certified him as having no capacity for work from 16 December 2019 to 16 April 2020. The medical certificates stated that the appellant was suffering from a post-traumatic stress disorder related to an incident that occurred years before.

The respondent contended that medical issues were not a good reason for the delay and argued that the would-be appellant had engaged in several communications with a union and some Parliamentarians during the period of time covered by the medical certificates.

The Board rejected the respondent’s argument and accepted that suffering a post-traumatic stress disorder and being unable to work excused the appellant from turning his mind to the completion and filing of a Notice of Appeal.

The Board also found that the period of delay was not excessively long and was adequately explained, the respondent would not suffer any particular prejudice and the appeal grounds were worth hearing.

The Board noted that it had amended its Reasons for Decision after the respondent pointed out that the Board had overlooked a communication between the appellant and Minister on 9 March 2020. The respondent had contended that this communication proved that the appellant had capacity to draft and file a Notice of Appeal earlier than 26 March 2020.

However, the Board rejected this argument and found that drafting a letter to a Minister does not require the same level of health and wellbeing as commencing legal action.

The Board granted an extension of time.

The decision can be read here.

Details  Created: 16 July 2020

The Industrial Magistrate has upheld, in part, a claim for an annualised salary, outstanding time worked in lieu, and public holiday payments.

The claimant was employed as a chef by the respondent from 10 July 2017 to 25 January 2018.

He argued that the respondent contravened obligations to him created by the Restaurant Industry Award 2010 (Cth) (Award) and the Fair Work Act (FW Act) in relation to:

• an annualised salary, and $79.71 in annual salary;
• the equivalent amount for time worked in lieu (TOIL) in excess of the contracted number of hours, and $5,222 in remaining balance for TOIL; and
• public holiday payments on certain public holidays where annual leave was not credited, and $1,131.06 in such payments.

The respondent denied the claim and said that the claimant had been paid all his entitlements. Further, the respondent contended that the claimant erroneously applied the terms of the Award, and instead provided its own calculations of amounts paid to the claimant.

Annualised salary

Scaddan IM found that the proper construction of an employee’s equivalent Award salary where they work less than a year is by reference to the time period actually worked, and not by reference to weekly averages for what might have been worked for a full year.

Her Honour found that had the claimant been paid in accordance with the Award obligations, he would have actually been paid less than the amount he was in fact paid for the same period worked.

Her Honour dismissed the claim for alleged deficiency in annualised salary.

TOIL

Scaddan IM considered the two differing spreadsheets presented by the parties of time worked for the purposes of calculating TOIL.

Her Honour found the respondent’s system of time recording and accounting systems more reliable than the claimant’s individual system of recording his time after work.

Having regard to the respondent’s spreadsheet of time worked and TOIL owed, her Honour determined that the amount owed to the claimant with respect to unpaid TOIL was $328.11, and not $5,222 as the claimant had contended.

Public holiday payments

Scaddan IM considered the interpretation of relevant clauses of the Award in relation to public holiday payments.

Her Honour found that where the claimant was rostered to work on a public holiday, he was entitled to either a day off or a day added to his annual leave entitlement. Scaddan IM found that the respondent failed to credit the claimant with additional annual leave for work performed on 25 September 2017 and 1 January 2018 in compliance with the Award, totalling $452.38.

Scaddan IM also dismissed the respondent’s submission that the amounts owing to the claimant could be ‘set-off’ against any alleged ‘overpayment’ of wages paid pursuant to the employment contract.

An order was issued that the respondent pay $780.49 to the claimant for outstanding TOIL and two days’ additional annual leave.

The decision can be read here.

Details Created: 14 July 2020

Reasons for Decision

The Industrial Magistrate has upheld a claim for payments under the Fair Work Act 2009 (Cth) (FW Act) for accrued annual leave, public holidays, overtime and leave loading. The respondent was also found to have contravened several civil remedy provisions concerning a range of leave and record-keeping provisions.  

The claimant was engaged as a trades assistant by the respondent for 25 years until July 2018.

The claimant contended that he was an employee of the respondent and that resultantly, the respondent contravened obligations to him created by the FW Act in relation to:

• accrual and payment of annual leave, and an order for payment of $22,291.12 and leave loading of $4,018.20;
• personal leave;
• payment on public holidays, and an order for payment of $11,700;
• payment in lieu of notice on termination, and an order for payment of $4,490;
• supply of the Fair Work Information Statement;
• access to copies of the Award and the National Employment Standard;
• contributions to a superannuation fund;
• payment for overtime, and an order for payment of $7,878;
• accrued long service leave, and an order for payment of $20,550.40;
• keeping of employer records; and
• pay slips.

The respondent denied that the claimant was an employee of the respondent. It argued that he was an independent contractor in the period before 1 July 2015 and a casual employee in the period after 1 July 2015. The respondent argued that it had discharged any and all of its obligations under the FW Act arising from the claimant’s status as an independent contractor and (subsequently) a casual employee. Flynn IM found, after considering relevant legal principle and the facts of the case, that the claimant was an ‘employee other than a casual employee’ for the purposes of the FW Act claims.

The respondent made a number of alternative arguments in answer to the claim.

The Set-Off Issue

The first argument advanced by the respondent was that it was entitled to set off any amount that it paid to the claimant that were in excess of the amounts proscribed by the Award. His Honour rejected this argument and found that there was no agreement or unilateral act communicated to the claimant that appropriated payments to him in discharge of the obligations owed under the FW Act.

FW Regulations Offset Issue

The second argument made by the respondent was that it could rely on reg 2.03A of the FW Regulations to reduce any obligation for the amount claimed.

His Honour rejected this argument, including by reference to WorkPac Pty Ltd v Rossato [2020] FCAFC 84.

Deed of Release Issue

The third argument contended that the respondent could rely upon the clauses of a Deed of Release signed shortly after a conciliation conference in September 2018 as a ‘full and complete’ defence to the claims. His Honour found that the respondent could only rely upon the clauses in relation to the claimant’s claim that the respondent was liable for contravention of a provision on payment in lieu of notice on termination.

Mistake and Unjust Enrichment Issue

The fourth argument made was that the respondent could recover the payments as the claimant had been unjustly enriched by virtue of mistaken payments. Flynn IM rejected this argument as he found that the Industrial Magistrates Court does not have jurisdiction to determine a claim for restitution.

FW Act Discretion Issue

The last argument made was that the Court should exercise a discretion conferred by the presence of the word ‘may’ in s 545(3) of the FW Act, to decline to make an order to pay the amounts claimed. His Honour found no reason to exercise the discretion and rejected this contention.

On that basis, His Honour upheld the claim for payments under the FW Act for accrued annual leave, public holidays, overtime and leave loading. He also found that the respondent had contravened civil remedy provisions in relation to several obligations as an employer.   

The Reasons for Decision can be read here.

Decision issued 2 July 2020

Addendum Reasons for Decision

The Industrial Magistrate, in an addendum Reasons for Decision, finalised his views on the significance of the decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 to the issues of the claim. His Honour also found that he had proceeded on an erroneous assumption in relation to an issue dealt with in the original Reasons for Decision.

Flynn IM had applied legal principles from the recent decision of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 to the issues of the case. Flynn IM found that on his provisional view, there was nothing in the application of the Rossato principles that would suggest a different outcome to his initial conclusions about the four issues. Nevertheless, His Honour stated that he would give the parties an opportunity to make submissions on the points.

The claimant submitted that His Honour’s provisional views were correct.

The respondent’s submissions did not refer to the impact of the Rossato findings to three of four issues dealt with in the original Reasons. These include the Full Time/Casual Issue, the FW Regulations Off-Set Issue and the Mistake and Unjust Enrichment Issue. On that basis, Flynn IM stated that his provisional views on the significance of the Rossato decision to those issues were now his final views.

However, the respondent argued that His Honour erred in assuming that the respondent did not seek to “set-off” payments that it made to the claimant against the claimant’s overtime entitlements under the Award (Set-Off Issue). The respondent compared findings in the original Reasons with an extract on the law of set-off from Rossato.

The claimant rejected the respondent’s contentions in relation to the Set-Off Issue and argued that the original Reasons contained no error and that the principle of finality operated to preclude the respondent from making those submissions.

Flynn IM found that his conclusions in the original Reasons were flawed insofar as proper consideration had not been given to whether the respondent was entitled to set-off payments it made to the claimant against the claimant’s overtime entitlements under the Award.

His Honour also rejected the argument that the principle of finality applied and noted that orders were made upon publication of the original Reasons that further submissions be made on Rossato.

However, upon considering the facts and application of legal principle in Rossato, Flynn IM concluded that the respondent was not entitled to set-off payments in relation to the overtime entitlements.

His Honour found that no amendment to the original Reasons needs to be made.

A hearing will be convened for the purpose of fixing a penalty for the contravention of those provisions.

The Addendum Reasons for Decision can be read here.

Decision issued 14 July 2020