Details 

 Created: 11 June 2020

The Industrial Magistrate has ordered that the respondent, a financial services provider, pay the claimant a pecuniary penalty of $11,000 in respect of several contraventions of the Fair Work Act 2009 (Cth) (FWA).

Substantive decision

On 15 May 2020, the Industrial Magistrate found that the respondent contravened s 44 of the FWA in failing to pay the claimant untaken paid annual leave upon termination of employment, and in doing so, failed to comply with the National Employment Standards and contravened a civil remedy provision.

The respondent was ordered to pay $33,244 in accrued untaken annual leave.

Further, the respondent was found to have contravened s 535(1) and s 536(1) of the FWA in failing to keep and maintain certain prescribed records of employment and failing to provide pay slips during the course of the claimant’s employment, and contravened a civil remedy provision.

Supplementary Reasons for Decision

The claimant made an application for a pecuniary penalty pursuant to s 546(1) of the FWA in relation to the respondent’s failure to pay untaken annual leave, keep and maintain employment records, and provide payslips.

The claimant alleged that the respondent’s failure to keep and maintain the employment records and provide payslips went to the heart of the failure to regulate employment as contemplated by the National Employment Standards.

The claimant also contended that the respondent’s failure to provide pay slips extended beyond the individual and was a matter of public policy and public interest and supports a finding that it was a ‘serious contravention’.

The respondent argued that the contraventions were not deliberate but arose out of a lack of understanding and appreciation of certain obligations under the FWA.

Scaddan IM found that there was no evidence that the respondent either exploited the claimant or profited from its exploitation of the claimant. Scaddan IM also considered the small size of the respondent’s business, the fact that the respondent no longer employs employees and that the respondent did not attempt to hide any contraventions.

Scaddan IM found that the respondent’s contravention of s 535(1) and s 536(1) of the FWA was not a serious contravention and found that the following pecuniary penalties were proportional to the gravity of the respondent’s contravening conduct:

• $5,000 for the failure to pay untaken paid annual leave;
• $4,000 for failing to provide pay slips; and
• $2,000 for failing to keep and maintain employment records.

The substantive decision can be read here. 

The supplementary decision can be read here.

Details 

Created: 04 June 2020

The Industrial Magistrate has upheld a claim for unpaid wages alleged to be owed under the Children’s Services Award 2010 (Cth) (Award) by an employee of a childcare centre.

The claimant alleged that the respondent contravened the Fair Work Act 2009 (Cth) (FWA) and the Award in failing to pay her ordinary wages from 22 October 2018 to 8 November 2018 contrary to the terms of the Award.

The respondent argued that it was entitled to withhold the wages because the claimant failed to give one week’s notice prior to the termination of her employment in accordance with the FWA and cl 11 of the Award.

The claimant denied that she failed to give notice of termination to the respondent, but said that upon indicating to the respondent that she intended to leave her employment with two weeks’ notice, the respondent terminated her employment that day on 8 November 2018.

The Industrial Magistrate found, having regard to all the evidence, that on 8 November 2018, the claimant did not terminate her employment with the respondent.

Instead, the Industrial Magistrate found that the respondent terminated the claimant’s employment on 8 November 2018 after the claimant finished her shift, and after the claimant had informed the respondent on 7 November 2018 that she intended to resign by giving two weeks’ notice with the resignation to take effect from 9 November 2018.

Scaddan IM, having determined that the respondent failed to pay the claimant for work undertaken between 22 October 2018 to the end of the day of termination, ordered that the respondent pay the claimant her wages for this period.

The decision can be read here.

Details  Created: 03 June 2020

The Commission has upheld a claim for denied contractual benefit by an employee of a cabinet making business for his final week’s pay prior to the termination of his employment.

The applicant gave the respondent notice of termination of his employment. The applicant claimed that he performed work during his final week of employment on behalf of the business and should be paid for it before his resignation.

The respondent maintained that the applicant still had some of the respondent’s property in his possession, including a computer hard drive which contains business records.

It was also noted that the applicant was trying to finalise a kitchen job for a customer before his resignation, who had withheld payment because of concerns of the quality of the job performed.

Senior Commissioner Kenner found that it was clear during the course of the hearing that the reason the respondent had refused to pay the applicant for his final week of work with business, was the respondent’s opinion that the applicant retained in his possession the computer hard drive.

Kenner SC found, that it was not open to the respondent to refuse to pay the applicant’s wage for his last week of employment because there was a dispute with the customer in relation to work performed, and because the applicant had allegedly failed to return some computer equipment.

Kenner SC determined that the question of rectification of works and recovery of property of the business was a separate question to the applicant’s entitlement to be paid under his contract of employment.

The Commissioner upheld the application and ordered payment of the applicant’s final week’s pay.

The decision can be read here.

Details  Created: 02 June 2020

The Public Service Appeal Board (Appeal Board) has upheld an appeal by the Director Clinical Services at the Women and Newborn Health Service against the decision of the North Metropolitan Health Service to suspend the Director without pay for alleged breach of discipline.

The appellant received letters from the respondent that set out several allegations of suspected breaches of discipline. The first serious allegation made by the respondent contended that the appellant allowed five doctors employed at the Health Service to be credentialled on a temporary basis, contrary to the respondent’s relevant policy and proper clinical practice. The second serious allegation contended that the appellant either disbanded or did not facilitate four key committees within her area of responsibility.

The appellant submitted that the respondent failed to comply with the policy framework in relation to discipline. She argued that the respondent’s refusal to provide her particulars of the allegations, copies of documents referred to in the letters and access to her work email amounted to a denial of procedural fairness on the basis that she did not have a reasonable and proper opportunity to respond to the allegations made against her.

The appellant also argued that such a suspension would cause her profound reputational damage, that there was no prima facie case for the allegations, no indication that the Health Service had considered alternatives to suspension, and no basis for the respondent’s decision to suspend the appellant without pay.

The appellant sought to be restored to her position pending the outcome of the disciplinary investigation and that she be paid for her loss of remuneration meanwhile.

The Appeal Board found that the respondent failed to comply with the policy framework in relation to discipline by refusing to provide the appellant relevant documents and denying access to her work emails in order for her to properly consider and respond to the allegations. The Appeal Board found that this was unreasonable, unfair, and prejudicial to the appellant.

The Appeal Board also found that, with regard to the strength of the evidence, the financial impact and the indeterminate time for the investigation to conclude, the appellant was denied procedural fairness in the circumstances leading to her suspension without pay. The Appeal Board further determined that the respondent had not established justification to exercise the power of suspension without pay.  

The Appeal Board upheld the appeal and ordered that the suspension be on full pay and that the Director be paid remuneration for loss of income.

The decision can be read here.

Details  Created: 26 May 2020

The Commission, on remittal from the Full Bench, has determined that a teacher who was found to be unfairly dismissed on medical grounds at first instance is medically fit and able to be re-employed at another school.

At first instance

At first instance, the applicant, the State School Teachers’ Union of WA (Union), alleged that its member, a teacher, was unfairly dismissed from his employment with the Department of Education on medical grounds.

The Commission at first instance concluded that if all the relevant information were available to the decision-maker, they could not have determined that the teacher was unable to work due to ill health. Commissioner Matthews considered the circumstances and decided that reinstatement or redeployment was impracticable and awarded compensation.

Full Bench

On appeal, the Full Bench found that the Commission at first instance erred in making a conclusion that the teacher was not going to work for reasons unrelated to his health.

The Full Bench also found it was in error to conclude that re-employment was impracticable because of an abnormal response by the teacher to the disciplinary process. It noted that the Commission found that the teacher’s reasons for not working was ‘dramatic and exaggerated’ and was ‘unreasonable, and an emotional one, not a medical one’. The Full Bench found that this was not a conclusion open to the Commission on the evidence.

The Full Bench allowed the Union’s appeal and ordered that the decision at first instance be suspended and the matter remitted to the Commission for further hearing and determination on the practicability of reinstatement or reemployment in consideration of the employee's current state of health and whether he ought to be reemployed at another school.

On remittal

On remittal, Commissioner Matthews considered the practicability of the teacher being re-employed at another school in consideration of the teacher’s capacity to return to work. The Commissioner also noted that the remittal was only in relation to the remedy, not the fairness of the dismissal itself.

The Commission found, on the expert medical evidence provided a psychiatrist, that the teacher is fit for work in another school. The Commissioner rejected the respondent’s contentions that the medical evidence be disallowed as the applicant had not run a case at first instance that contended the teacher was fit for work, so long as it was not at the original school.

The Commissioner also found that the compensation awarded to the teacher be reduced because of his failure to mitigate loss and failure to discover documents at first instance.

The decision can be read here.