The Work Health and Safety Tribunal has granted an application, which was unopposed, for a stay of an Improvement Notice issued by a WorkSafe Inspector until the completion of an external review. 

The applicant requested a stay of the Improvement Notice, asserting that implementing its measures before the completion of an external review would create practical difficulties and risk rendering the appeal nugatory, and that granting the stay would not pose unacceptable risk to employees. The applicant contended that it complied with reporting requirements based on Progress Medical Certificates and contested the Inspector's findings of knowingly providing false information. It emphasised the industry standard practice of using medical certificates and highlighted the serious questions regarding the decision under review.  

Considering the public interest, the Tribunal determined that the Improvement Notice primarily addressed reporting methods rather than immediate safety concerns, thus concluding that granting a stay would not pose unacceptable risks to workers. With the substantive hearing already scheduled, the Tribunal issued an order to stay the Improvement Notice pending further action under the Work Health and Safety Act 2020.

The decision can be read here. 

Decision issued Wednesday, 13 March 2024. 

In response to the applicant, a teacher, filing an unfair dismissal claim, the respondent, her employer, filed an interlocutory application for an order that the applicant’s unfair dismissal claim be dismissed. The respondent cited alleged misconduct toward potential witnesses, particularly a former student of the applicant, and requested discovery of the text messages exchanged with the student.  

The respondent contended that the applicant's text messages to the student constituted improper conduct aimed at influencing her testimony, potentially interfering with the administration of justice. The applicant denied wrongdoing, asserting that the messages ended positively and maturely.  

Commissioner Tsang examined whether the applicant's conduct constituted misconduct as defined by the law. Ultimately, the Commissioner concluded that the messages were objectively intimidatory and harassing, given the applicant's status as a registered teacher. Accordingly, the Commissioner dismissed the applicant’s unfair dismissal claim, upholding the respondent’s interlocutory application. 

The decision can be read here. 

Decision issued Monday, 18 March 2024. 

The Commission has dismissed a challenge to its jurisdiction to deal with a dispute regarding an employee allegedly denied higher acting duties.   

The applicant Union’s member is an Engineer employed by the respondent, who the Union alleges has unfairly denied its member opportunities to act in a higher classification. The member claims he was promised the opportunity to act up in a Level 9 Project Director’s role to cover for employees on annual leave, but this opportunity was denied to him on three separate occasions in 2023. 

The applicant contends that the member’s colleagues in similar classifications were allowed acting opportunities and received 'higher duties' pay when covering for Project Directors on leave, while the member was denied this opportunity. Seeking relief under section 44 of the Industrial Relations Act 1979, the applicant argues that the respondent's refusal constitutes unfair treatment. 

The respondent disputes the jurisdiction of the Commission to hear the dispute, citing the Public Sector Employment Standard and the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (PSMB Regs) as governing the procedure for such matters.  

As the circumstances do not fall under the purview of the Employment Standard and the PSMB Regs, Commissioner Kucera determined that the Commission has jurisdiction to hear the dispute. The Commissioner concluded that the short-term absences the member seeks to cover do not constitute vacancies as defined by the Employment Standard and dismissed the respondent’s jurisdictional objection.

The decision can be read here. 

Decision issued Wednesday, 10 January 2024.