The applicant, a Safety Operations Business Partner, made an application under section 112 of the Work Health and Safety Act 2020 (WA) (WHS Act), claiming that he had been subjected to discriminatory conduct for a prohibited reason. He alleged that after raising a work health and safety concern, the respondent took discriminatory action against him by placing him on a performance improvement plan (PIP) and subsequently dismissing him.

The respondent acknowledged that dismissing the applicant constituted discriminatory conduct under the WHS Act but argued that the reasons for the PIP and dismissal were unrelated to his safety concerns, and thus the discriminatory conduct was not for a prohibited reason.  The respondent contended that the reasons for the PIP and dismissal included that applicant failed to follow directives regarding how his report should be produced and to not provide the report to anyone outside of his department until it was approved, as well as his antagonistic conduct.

The Tribunal found that the applicant did raise a work health and safety concern and that the respondent engaged in discriminatory conduct by dismissing him. However, the Tribunal concluded that the dismissal was not for a prohibited reason related to the safety concern, but instead due to concerns about his conduct, performance, and failure to follow reasonable instructions and dismissed the application.

The decision can be read here. 

The applicant, a Registered Nurse, claimed that the respondent unfairly dismissed her.  The respondent argued that her employment ended with the expiration of her fixed-term contract and that she was therefore not dismissed.

The applicant was offered a fixed-term contract as a Registered Nurse for a period of one year, with the potential to transfer to permanent employment. She requested an extension of her contract but was not offered such. The applicant contended that because there was the potential for her to be transferred to a permanent position and there were no issues raised with her performance, that not offering her a further contract amounted to dismissal.

The respondent argued that as the applicant’s employment came to an end through the expiry of her fixed-term contract, no dismissal occurred. The respondent claimed that at all times it was expressed to the applicant that there was no guarantee or promise of permanency following the fixed-term contract, and that the applicant was offered a casual position after her fixed-term contract ended, which she declined.

Commissioner Emmanuel found that the applicant's employment contract clearly stated it was for a fixed-term and that there was no obligation to enter into any further employment arrangement. The evidence did not show that the respondent dismissed the applicant. Therefore, the Commissioner concluded that the applicant was not dismissed and dismissed her application for want of jurisdiction.

The decision can be read here. 

The applicant applied for stop bullying orders against the respondent, his employer, which asserted that its conduct constituted reasonable management action. After initially filing his application, the applicant subsequently made amendments to it several months later, and then applied to make further amendments to his application.

The applicant contended that he should be permitted to further amend his application because he had recently secured legal representation and had subsequently received advice that an amendment ought to be made. He submitted that this second amendment had not caused undue delay in proceedings.

The respondent argued that the proposed amendments amount to initiating new proceedings against additional individual respondents, which exceeds the Commission’s power to amend applications under the Industrial Relations Act 1979 (WA) and the Industrial Relations Commission Regulations 2005 (WA).

Commissioner Walkington determined in favour of the respondent’s claim that granting the second amendment would add several individual respondents and amount to initiating new proceedings against them. The Commissioner, in refusing the application, acknowledged that the proceedings had been pending for some time already, and that it would not be equitable to grant leave to amend the application a second time.

The decision can be read here. 

The appellant, who employed the respondent union’s member as a prison officer, appealed against the decision of the Industrial Magistrate, who found that the appellant had contravened the Department of Justice Prison Officers’ Industrial Agreement 2020 by denying the respondent member’s paid personal leave.

The respondent union’s member was unwell for a period of several days, during which he attempted to make an appointment at his usual medical centre but could not get an appointment for at least a week. He did not attempt to secure an appointment elsewhere, and instead provided a statutory declaration to support his claim for personal leave. In the original decision, the Industrial Magistrate found that the prison officer had made reasonable attempts to obtain a medical certificate, and that the statutory declaration satisfied the minimum evidentiary requirement for a claim for personal leave.

The appellant’s appeal grounds raised several issues, including that the Industrial Magistrate erred by conflating the prison officer’s efforts to seek a medical appointment for diagnosis and treatment with steps to obtain a medical certificate. The appellant also contended that the officer had not adequately demonstrated that he was unable to obtain a medical certificate, and that the cautions issued by the Industrial Magistrate should not have been issued and had no rational basis.

The Full Bench determined that the Industrial Magistrate erred in conflating the officer’s efforts to seek treatment with his efforts to obtain a medical certificate, and that the officer’s failure to try other medical centres for an appointment were relevant in determining whether he was unable to obtain a certificate. The Full Bench determined that it was unnecessary to deal with the grounds pertaining to the caution issued by the Industrial Magistrate, and, in finding the other grounds of appeal made out, upheld the appeal and quashed the decision of the Industrial Magistrate.    

The decision can be read here. 

The appellant, who was an unsuccessful candidate for the office of Secretary at the respondent union, applied to the Commission for an inquiry into the election alleging irregularities under s 66(2)(e) of the Industrial Relations Act 1979 (WA).

In her original application, the appellant claimed that the respondent did not comply with an order of the Chief Commissioner until after the election results were declared, that the postal ballot period had been reduced due to a public holiday, and that the Returning Officer was under an obligation to extend the ballot period but failed to do so. The Chief Commissioner rejected these arguments, finding that the order had no bearing on the election process, and that there was no established practice requiring the ballot period or for the period to be extended in the event of a public holiday.

The appellant appealed this decision on several grounds, including that the Chief Commissioner had erred in finding that the non-compliance order was immaterial to the election process and that there was no established practice for a 21-day ballot period or obligation for it to be extended. She also contended that the limited ballot period hindered the full and free recording of votes.

The Full Bench found that the respondent’s delay in complying with the order and the Returning Officer's conduct did not constitute irregularities in connection with the election. Finding that the Chief Commissioner had not erred in the original proceedings, the Full Bench upheld the Chief Commissioner's findings and dismissed the appeal.

The decision can be read here.