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 Created: 30 January 2020

The Industrial Magistrate’s Court has dismissed a claim by a meat delivery driver for annual leave and superannuation entitlements under the Fair Work Act 2009 (Cth) (FW Act) but upheld his claim for long service leave entitlements under the Long Service Leave Act 1958 (WA) (LSL Act).

The respondent denied that the applicant was an employee under the FW Act and the LSL Act, but rather said that he was an independent contractor. 

Industrial Magistrate Flynn determined that the totality of the relationship between the applicant and respondent included the legal relationship between the parties. Flynn IM found that the services of the applicant were supplied to the respondent by a partnership, of which the claimant and his wife were partners. Flynn IM found that the role of the partnership and the fact that the applicant supplied his own purpose-built vehicle for his work indicated that the applicant was not serving the respondent’s business, but his own. He was not an ‘employee’ as defined under the FW Act.

Annual leave and superannuation entitlements

Flynn IM found that the applicant’s claim for annual leave and superannuation entitlements be dismissed.

Long service leave entitlements

In relation to the applicant’s claim for long service leave entitlements under the LSL Act, Flynn IM considered s 4(1)(d) of the LSL Act and noted that this definition of ‘employee’ contains a specific reference to vehicle ownership.

Flynn IM found that the meaning of ‘in all other respects an employee’ in s 4(1)(d) is determined through the application of the same ‘totality of the relationship’ test applied in the applicant’s claim under the FW Act, without regard to the fact that the applicant owned the vehicle through the partnership.

Flynn IM re-applied the ‘totality of the relationship’ test (excluding the fact that he partly owned the vehicle through the partnership) and found that the applicant was an ‘employee’ of the respondent as defined by s 4(1)(d).

Flynn IM upheld the applicant’s claim for long service leave entitlements.

The decision can be read here.

Details 

Created: 30 January 2020

The Commission has dismissed a claim of unfair dismissal after finding that the applicant was not dismissed but was given a real choice to resign and did so.

The applicant alleged that the conduct of the respondent left her no choice but to resign, giving rise to constructive dismissal. The respondent argued that the applicant was not dismissed and that she voluntarily resigned as part of the settlement of a claim under the Workers’ Compensation and Injury Management Act 1981.

The applicant gave evidence that she accepted an offer of $70,000 to compromise her workers’ compensation claim, with a condition of settlement being she resign from her employment. She gave evidence that she refused to sign the draft letter of resignation from the respondent, and instead signed a version she amended which she felt better served her interests.

Commissioner Matthews found that the conduct of the respondent, as a matter of common-sense causation, did not lead to the applicant’s resignation. Instead, the applicant resigned to receive the offer of $70,000 in circumstances where her financial situation had become very bad. The applicant knew she had a choice as she refused to sign the draft letter until it was amended in what she considered to be her own best interests.

Commissioner Matthews found that there was no dismissal in the circumstances and consequentially found that the Commission does not have jurisdiction to hear and determine the application.

The application was dismissed by order.

The decision can be read here.

Details 

Created: 17 January 2020

The Public Service Appeal Board (Board) has upheld an appeal and quashed a decision to dismiss the appellant for substandard performance pursuant to s 79 of the Public Sector Management Act 1994 (PSM Act).

The Board drew legal principle from the Full Bench authority Director General, Department of Education v Patrick Guretti (2014), and found that, for the employing authority to form the opinion that an employee’s performance is substandard, two steps must occur:

1. ‘Prima facie’ evidence of substandard performance and a denial, against the evidence, of substandard performance; and
2. A process of investigation, by which facts are ascertained, that results in a finding of substandard performance.

The Board considered a report produced by a third-party consultant on behalf of the respondent. The Board found that the consultant did not conduct anything like an investigation. The report had no analysis of whether the appellant’s performance was substandard or not but was simply a review of the fairness of the process conducted by the employer. The Board noted that, in a letter to the consultant, the Respondent had only asked for what amounted to a review of what had been already done. The Board held that the consultant did not do what was required by section 79(5) of the PSM Act.

The Board then considered the consequences of a failure to comply with s 79(5) of the PSM Act by not conducting an investigation before terminating the Appellant’s employment. The Board found that although legal precedent indicated they could determine the matter in the appellant’s favour because of the failure to comply with the PSM Act, they did not consider it to stand as authority that they must do so. They found that the consequences will depend on an interpretation of what Parliament intended.

In deciding what Parliament intended, the Board was influenced by the following:

1. Parliament intended the Board to conduct appeals by way of hearing de novo;
2. Bodies within the Western Australian Industrial Relations Commission should aim to resolve disputes if it is possible to do so rather than to allow them to continue; and
3. The terms of s 78(5) of the PSM Act.

The Board determined that it may decide the matter on its merits and cure procedural defects at the hearing of the appeal but found that it was not required to under the PSM Act.

The Board decided not to determine the matter on its merits. The Board found it was unable to come to any meaningful conclusion about the appellant’s work performance based on the lack of quality and quantity of evidence before it.

The Board found that the appeal would succeed on the basis that the legislative process provided for by s 79(5) of the PSM Act was not carried out. It also found that it would not remit the matter back to the respondent to recommence investigation of the appellant’s performance.

The appeal was upheld and the decision to dismiss the appellant was quashed.

The decision can be read here.

Details 

Created: 17 January 2020

The Commission has upheld a claim for denied contractual benefits where the respondent failed to appear before the Commission despite having been served with a notice of hearing.

The applicant gave evidence she was employed by the respondent, including an offer of employment which offered the applicant casual employment at a specified hourly rate. The applicant gave evidence that she was underpaid for her work during her employment with the respondent to the amount of $825.87.

Commissioner Matthews accepted her evidence and found that since the evidence from the applicant was unchallenged and she was a credible and believable person, the respondent had denied her a contractual benefit in the sum of $825.87 and ordered the respondent to pay the applicant that sum.

The decision can be read here.

Details 

Created: 20 December 2019

The Public Service Appeal Board (Board) has unanimously found that the respondent’s application that a PSAB Board member not sit as a member of the Appeal Board for an appeal be dismissed.

The respondent filed an application that a Board member recuse herself on the grounds of reasonable apprehension of bias. 

The respondent submitted that there was a direct association between the Board member and the appellant by way of their respective relationships with the Australian Medical Association (WA) (AMA). The Board member is a senior industrial officer of the AMA, while the appellant is a member of the AMA. The respondent submitted that by virtue of the Board member’s position with the AMA, her impartiality to the matter would be impeded.

The Board considered the legal principles relating to an apprehension of bias by association, including considerations concerning the nature of the association, frequency of contact and nature of the interest of the person with the decision-maker.

The Board discussed the implications of s 80H of the Industrial Relations Act 1979 (WA) which specifies that the members of the Board shall include two members. It provides that one member shall be appointed by the employer of the appellant as the employer’s representative, and the other as the employee’s representative appointed by the relevant organisation. A person nominated will, by nomination alone, have some association with the body nominating them, as an employee or officer.

In addition, it was noted that Board members, regardless of any necessary association, do not represent the interests of the party that nominated them and are required to act impartially and independently.

The decision can be read here.