The applicant, a Vice President and Council member of the second respondent union, applied to the Commission seeking an order under s 66 of the Industrial Relations Act 1979 challenging the appointment of the first respondent to the casual vacancy as Secretary of the second respondent. The applicant sought interim orders to remove the first respondent from his position and allow the Council to appoint an eligible member to the position until further order.

The first respondent, who previously served as Secretary of the union before leaving the role in 2022, was reappointed to the position on 30 August 2024, upon the resignation of the former Secretary, taking effect the same day. The applicant contended that the first respondent was ineligible for this appointment, citing the Union’s rules. The applicant also raised several allegations against the first respondent, including claims of bullying and harassment, and contentions concerning transparency in his dealings with the Council, nepotism, and potential tax liabilities.

The Registrar, an intervenor in this matter, supported the applicant’s submissions and filed evidence in support of the contention that under the Union’s rules, the first respondent was ineligible for appointment to the vacant Secretary position.

The first and second respondents opposed these contentions, asserting that the first respondent was eligible for the appointment under the Union rules as a financial member of the union, since first joining while in the nursing profession. They contended that the allegations pertaining to the first respondent’s conduct were unfounded, and that the removal of the first respondent from the position of Secretary would compromise upcoming enterprise bargaining negotiations.

Chief Commissioner Kenner considered the two requirements for the granting of interim orders, they being whether there were serious questions to be determined and where the balance of convenience lay.  The Chief Commissioner determined the matter weighed in favour of the applicant and the Registrar and made orders accordingly.

The decision can be read here. 

The order can be read here.

The appellant was dismissed from his role as a Level 2 Community Work Officer due to allegations of inappropriate behaviour towards female staff. The appellant’s appointment was subject to a six-month probationary period, during which either party could terminate the contract with one week's notice. The respondent annulled the appellant's appointment during the probationary period, providing one week's pay in lieu of notice. The appellant contested the dismissal on the grounds of substantive and procedural fairness.

The appellant's appeal was filed four months late, which he attributed to researching his options and submitting applications in the wrong jurisdiction. The Public Service Appeal Board reviewed the Commission's records and found that the appellant had submitted an unfair dismissal application, which was not accepted due to jurisdictional issues, and that he then submitted the correct Form, which was also not accepted until he addressed deficiencies in his application. The respondent acknowledged that the appellant's first application had been filed within the 28-day period but maintained the delay was not justified and the appeal lacked merit due to the conditions around probationary employment. The Appeal Board accepted the respondent's submissions regarding the delay and the merits of the appeal.

The Appeal Board considered the appeal based on the evidence before it. The principles of probationary employment allowed the employer to terminate the employment during the probationary period if the employee was not meeting the required standards. The Appeal Board found that the concerns raised about the appellant’s conduct had been genuinely held, he had been adequately informed of the required standards, and he had received adequate support and training. The Appeal Board concluded that the decision to terminate the appellant's probationary employment was consistent with the purpose and principles of probationary employment.

Accordingly, the Appeal Board dismissed the appellant’s application for an extension of time and dismissed the appeal.

The decision can be read here.

The applicant was employed by the respondent as the Manager of a caravan park and accommodation, until he was advised that he was no longer the Manager, and his duties were reduced to taking bookings. The applicant claimed these changes were made unilaterally and amounted to a repudiation of his employment contract, leading to his unfair dismissal claim.

The respondent denied that the applicant was dismissed, asserting that he voluntarily resigned from his position.  Additionally, the respondent argued it was a national system employer under the Fair Work Act 2009, which meant the Commission lacked jurisdiction to hear the applicant’s claim.

Commissioner Walkington determined that the respondent was not a trading corporation, as the respondent’s trading activities represent only a small portion of the respondent’s income, and as the overall nature of the activities of the organisation was not that of a trading corporation. The evidence showed that the respondent’s primary purpose is to assist and support community members through housing, education, employment, social welfare, and cultural initiatives. The Commissioner concluded that the activities of the respondent, including the receipt of rental payments and community contribution fees, did not constitute trading activities. As a result, Commissioner Walkington determined that the Commission did have jurisdiction to hear the matter.

The decision can be read here.

The Tribunal has dismissed an application made by a Safety Operations Business Partner relating to his dismissal, under s 112 of the Work Health and Safety Act 2020 (WA) (WHS Act).

The applicant, who was dismissed by the respondent in April 2023, applied to the Work Health and Safety Tribunal, believing he was the subject of discriminatory conduct for a prohibited reason. He maintained that after he raised a work health and safety issue within the business, the respondent took discriminatory action against him by placing him on a performance plan and later dismissing him.

The respondent applied to have the application dismissed. The respondent alleged that the applicant was facing the disciplinary proceedings due to his breach of its Code of Conduct (Code). The respondent accepted that dismissing the applicant amounted to discriminatory conduct under the WHS Act but disagreed about whether the performance plan amounted to discriminatory conduct. It maintained, however, that the performance plan and subsequent dismissal was not for prohibited reason, but rather, because of the applicant’s preceding misconduct.

The Tribunal found that the respondent did take discriminatory action against the applicant when it dismissed him. However, it held that the respondent did so because the applicant breached the Code. This was, therefore, for a reason other than a prohibited reason. In relation to the performance plan, the Tribunal determined that the plan did not alter the applicant’s employment position to his detriment, rather, it sought to support and guide his performance. As such, the Tribunal declined to make an order in the applicant’s favour and dismissed the application.

The decision can be read here.

The applicant lodged an application for an interpretation of clause 28 of the Department of Justice Prison Officers’ Industrial Agreement 2022, which was opposed by the respondent union, which argued that the application was improper and constituted an abuse of process because it duplicated issues already addressed in an existing case before the Industrial Magistrates Court (IMC).

The applicant contended that the application was justified and should proceed because it sought to address a general issue affecting all officers and was not merely a duplication of the IMC proceedings.

Commissioner Walkington acknowledged the respondent’s concerns regarding the potential for conflicting outcomes between the two proceedings, but determined the application should not be dismissed, as it sought to clarify obligations and prevent further litigation.

The decision can be read here.