Details 

Created: 24 February 2020

The Full Bench has unanimously upheld an appeal in an unfair dismissal claim, suspended the operation of the decision at first instance and remitted the matter back to the Commission for further hearing and determination.

The appellant was dismissed by her employer following an exchange over the signing of a contract. The Commissioner at first instance found the dismissal to be justified on the basis that the appellant did not comply with a lawful instruction, used abusive language to challenge her employer and that her conduct was destructive of the necessary confidence between employer and employee.

On appeal, the appellant contended that Commissioner’s conclusions regarding the conflict in the evidence were in error. The appellant argued that the Commissioner wrongly refused to allow her to call a witness she had summonsed on the basis that no witness statement had been filed and that this would be prejudicial to the respondent. The appellant argued that she had been advised by the Commissioner’s Associate that the witness need not provide a written witness statement and could still be able to provide oral evidence at the hearing.

Chief Commissioner Scott and Commissioner Matthews, with whom Commissioner Emmanuel agreed, found that the witness ought to have been allowed to give evidence, given the conflict between the appellant’s and respondent’s evidence. Scott CC and Matthews C found there was a real possibility that the witness’s evidence would have made a difference to the findings of credibility and of the facts and upheld this ground of appeal.  

The appellant also argued that the Commissioner erred in accepting another witness’s characterisation of the appellant’s manner towards the respondent, when the witness gave a very different characterisation in cross-examination.

Scott CC and Matthews C upheld this ground of appeal and found that the evidence provided in the witness statement was severely undermined in cross-examination, and it was an error of the Commissioner to rely on it.

The Full Bench found that given the significance of these two grounds of appeal and the effect they may have on the Commissioner’s assessment of the evidence; they would remit the matter to the Commission for further hearing and determination.

The decision can be read here.

Details 

 Created: 21 February 2020

The Full Bench has unanimously found that the Industrial Magistrate’s Court (IMC) did not have the power to issue an order requiring the Commissioner of Police (Commissioner) to reconsider a police officer’s claim for reimbursement of certain non-work-related medical expenses. The Full Bench also found that the hire and purchase of a continuous positive airway pressure (CPAP) machine do not relate to a ‘service’ within meaning of cl 36(1) of the Western Australian Police Industrial Agreement 2014 (the Agreement).  

The applicant made a claim to the IMC that the Commissioner failed to provide adequate justification for denying payment of his claims for reimbursements of specified non-work-related medical expenses, including the purchase and hire of a CPAP machine. The applicant argued that the Commissioner was required to grant reimbursement. Flynn IM considered whether the Commissioner had exercised the discretion conferred by the agreement and found that the Commissioner may have incorrectly interpreted the agreement. Flynn IM ordered that the Commissioner re-consider the reimbursement claims.

On appeal to the Full Bench, the appellant noted that if it can be proved that a person contravened a provision of an instrument to which s 83 of the Industrial Relations Act 1979 (WA) applies, the Magistrate may either issue a caution or penalty. The appellant argued that the imposition of a penalty is a precondition for the making of an order for the purpose of preventing a further contravention. The appellant argued that since the Industrial Magistrate imposed a caution and not a penalty, he had no power to make an order that the Commissioner reconsider the applicant’s claim for reimbursement.

Chief Commissioner Scott and Commissioner Matthews found that as no penalty was imposed, there was no power to make an order preventing a further contravention.  

The appellant also argued that the Industrial Magistrate erred in law by finding that the hire or purchase of CPAP machine by an employee covered by the Agreement amounts to the receipt of an ‘other service’ by that employee within the meaning of cl 36(1)(b) of the Agreement.

Scott CC found that the hire and purchase of the CPAP machine do not fall within the meaning of a service but was more akin to a medical aide. Scott CC found that, in this context, the Industrial Magistrate erred in finding that it was open to the Commissioner to construe cl 36(1) to find that the machine hire and purchase expenses claims relate to an X-ray or ‘other service’. Scott CC and Matthews C found that the purchase and hire of the CPAP machine do not constitute a reimbursable expense resulting from a service and therefore, do not fall within cl 36(1).

The Full Bench, having found that the orders were beyond power; the Industrial Magistrate erred in finding that it was open to the Commissioner to construe cl 36(1) to find that the machine hire and purchase costs relate to a service, and was a reimbursable expense, upheld the appeal, quashed the Industrial Magistrate’s decision and dismissed the complaint.

The decision can be read here.

Details 

 Created: 20 February 2020

Notice is given of applications on the motion of the Western Australian Industrial Relations Commission to review the following awards with a view to varying those awards in accordance with s 40B of the Industrial Relations Act 1979.  The awards concerned are:

Section 40B(1) provides that the Commission may vary awards of its own motion for a number of purposes being:

• to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under section 50A;
• to ensure that the award does not contain conditions of employment that are less favourable than those provided by the Minimum Conditions of Employment Act 1993;
• to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984;
• to ensure that the award does not contain provisions that are obsolete or need updating;
• to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.

A conciliation and scheduling conference will be convened by the Commission:

On:      Friday, 27 March 2020

At:       10:30 am

At:       Western Australian Industrial Relations Commission

           Level 18, 111 St Georges Terrace, Perth WA 6000

Any person wishing to appear at that conference or obtain further information should contact the Associate to Commissioner Walkington : 

Commissioner Walkington Chambers

9420 4414

SUSAN BASTIAN

REGISTRAR

19 February 2020

Details 

 Created: 11 February 2020

The Western Australian Industrial Appeal Court (IAC) has upheld an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission (WAIRC) where it held that ‘continuous service’ served by an employee in the ‘public sector’ does not include employment in the service of another state of Australia when calculating severance payment.

Proceedings in the WAIRC

The applicant, Mr Browne, accepted an offer of voluntary severance from the respondent under reg 13(2) of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (the Regulations). However, he contended that the method of calculation of service for the purposes of his redundancy payments ought to have been the same as the calculation for long service leave under the Long Service Leave General Order of the Industrial Commission (the General Order).  That is, where an employee has a period of service in another State or the Commonwealth, that service is deemed to be continuous service for the purposes of s 13(2) of the Regulations. Mr Browne argued that his service in the Tasmanian public service should be included as service with his service in the WA public service when calculating his entitlement to severance payment.

At first instance, Senior Commissioner Kenner found that for the purposes of reg 13(2) of the Regulations, ‘continuous service’ includes service in the employment of the Commonwealth or of another State. The Commissioner ordered that Mr Browne’s service in the Tasmanian public service be included when calculating his entitlement to severance payment.

Appeal to the Full Bench

By majority, the Full Bench upheld an appeal by the respondent and quashed the decision of the Commission. It determined that, in order to be entitled to severance payment, any continuous service in the public service must occur in Western Australia.

Commissioner Matthews, with whom Commissioner Emmanuel agreed, found that the term ‘public sector’ has the same meaning in the Regulations as it does in the Public Sector Management Act 1994 (PSM Act) where it means entities within the WA government. Commissioner Matthews held that the term ‘continuous service’ served by the employee in the ‘public sector’ requires service in the ‘public sector’ as defined by the PSM Act, but once that requirement is met, the General Order determines what is and what is not continuous service. As the respondent’s service in the Tasmanian Public Sector was continuous but was not served within meaning of the ‘public sector’, this service could not be included when calculating his entitlement to severance payment.

Acting President Smith dissented and found that the appeal should be dismissed. Her Honour found that the term ‘public sector’ should be defined as it is in the General Order and not the PSM Act.

Appeal to the IAC

Mr Browne then appealed to the Industrial Appeal Court.

Justices Buss and Murphy found that since the meaning of ‘continuous service’ is not defined in the General Order, it is to be discerned from an understanding of the provisions of the General Order and their operation.

Their Honours determined that the meaning of ‘continuous service’ requires consideration of context and purpose of the provision. They found that it is intended to pick up the actual period of any service in the public sector as defined under the General Order, and that the words ‘public sector’ are to be understood in light of that definition.

Their Honours found that the majority of the Full Bench erred in their interpretation of reg 13(2).

Justice Le Miere (concurring) found that since ‘continuous service’ is not a defined term in the General Order, the court must ascertain its meaning from the General Order having regard to its context, and then apply that meaning in reg 13(2) having regard to its context and purpose. He also found that the General Order enlarges the natural and ordinary meaning of ‘continuous service’.

Le Miere J determined that the enlarged meaning of continuous service by an employee under the General Order includes periods during which an employee is not employed by the Public Authority, including a period of employment in the service of another State. He found that ‘continuous service’ in reg 13(2) must be given in the same enlarged meaning in its context, that is the context of service by an employee in the Public Sector.

Consequently, Le Miere J found that ‘continuous service’ served by an employee in the ‘public sector’ includes employment in the service of another State of Australia.  

The IAC allowed the appeal and set aside the decision of the Full Bench. The IAC ordered that the declaration and order made by Senior Commissioner Kenner be reinstated.

The decision can be read here. 

Details 

 Created: 30 January 2020

The Commission has referred a claim for unfair dismissal to a substantive hearing to decide whether there was a dismissal and, if there was, whether that dismissal was unfair.

The applicant alleges that, while she accepts that she resigned as part of the settlement of a claim under the Worker’s Compensation and Injury Management Act 1981, she was ‘forced into resigning’ in such a way as to making the ending of her employment a ‘constructive dismissal’. The respondent argues that the resignation was ‘voluntary’ as part of the settlement of her worker’s compensation claim.

Commissioner Matthews noted the presence of some unusual circumstances about which the applicant had given evidence on.  Commissioner Matthews discussed the possibility that the respondent, by its conduct, orchestrated a situation where the applicant had no real choice but to resign.

The application was also filed out of time. The respondent did not wish to be heard at the preliminary hearing on whether the Commission should act under s 29(3) Industrial Relations Act 1979, which allows the Commission to accept a referral by an employee that is out of time if the Commission considers that it would be unfair not to do so.

Commissioner Matthews will determine the issues of jurisdiction and the s 29(3) Industrial Relations Act question at the substantive hearing.

The decision can be read here.