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. 

The appellant, a Level 2 Administrative Officer with the respondent, was dismissed from her position in May 2023 due to failing to retire on the grounds of ill health. She appealed her dismissal, seeking reinstatement. The Public Service Appeal Board had to consider whether the decision to remove the appellant from her position was unfair.  

The respondent asserted, based on the Independent Medical Examination (IME) Report, that the appellant was entirely and indefinitely unfit for her pre-injury work, citing significant risks to her psychological health and safety, should she return to her former position. It contended that unqualified reinstatement was impractical, and that the Appeal Board lacked the power to order backpay or compensation beyond reinstatement.  

The appellant disputed the respondent’s claims, emphasising the unfairness of her dismissal and arguing that she was fit for work with modifications, citing a report from her General Practitioner. She contended that the Appeal Board should reverse the dismissal decision, order compensation, reinstate her either in her former role or in the public sector more generally.  Alternatively, the appellant contended that the respondent be directed to commission an independent medical report regarding her suitability for reinstatement.  

The Appeal Board found the IME Report to be credible and persuasive, concluding that the applicant was unfit to work in her former position, due to the risks posed to her mental health. Consequently, the Appeal Board found reinstatement impracticable and dismissed the appellant’s application, upholding the Department’s application to dismiss the appellant. 

The decision can be read here. 

Decision issued Friday, 16 February 2024. 

The Work Health and Safety Tribunal has reviewed the decisions and improvement notices issued by the WorkSafe Commissioner, revoking the decisions of the WorkSafe Commissioner, setting aside the improvement notice, and dismissing the applicants’ application for costs. 

Background  

An employee's injury in a horse-riding incident at a station operated by the first applicant prompted a WorkSafe investigation. Initially, WorkSafe deemed the applicant compliant but later raised concerns about optional helmet use, issuing a prohibition notice for mandatory helmet use. The WorkSafe Commissioner cancelled this notice upon review. Subsequently, further improvement notices were issued and affirmed, leading to an application to the Tribunal, where WorkSafe eventually conceded their invalidity based on expert reports and legal advice, resulting in proposed consent orders to set them aside. The applicants sought redress for expenses incurred in preparing expert reports. 

Contentions  

The applicants contested WorkSafe's issuance and affirmation of improvement notices, arguing they lacked reasonable grounds, particularly given WorkSafe's subsequent concession. They criticised the lack of concrete evidence behind WorkSafe's actions and emphasised the need for WorkSafe to bear the applicants’ costs.  

WorkSafe opposed the application, asserting the reasonableness of its decisions, citing precedent, and defending its actions based on available evidence and industry standards. WorkSafe refuted alleged delays in obtaining expert evidence and contested the quantum of costs sought. 

Findings 

The Tribunal found the applicants contravened safety laws by failing to ensure employees wore helmets while riding horses, citing past incidents and industry standards.  

The Tribunal rejected the applicants’ argument that WorkSafe's concession implied a lack of reasonable grounds, stating it was based on expert advice.  

The Tribunal dismissed the cost application and set aside the Improvement Notices by consent. 

The decision can be read here. 

Decision issued Wednesday, 13 March 2024.

The Full Bench has dismissed an appeal in relation to the interpretation of the Department of Justice Prison Officer’s Industrial Agreement 2020.  

At first instance, the appellant Union contended that a prison officer had the option to take annual leave in accordance with that prison officer’s position on the annual leave roster as stipulated by Clause 80 of the Agreement, apply to take annual leave at a time other than as prescribed by the annual leave roster, or to choose not to take annual leave during that officer’s rostered period. Commissioner Emmanual found that Clause 80 of the Agreement mandates that prison officers take their accrued annual leave during the leave year, as determined by the roster. The Commissioner therefore dismissed the appellant’s application. 

The appeal raised several grounds, including errors in law and fact, contending that the Commissioner did not consider all the words of clauses 85 and 56 of the Agreement, or the Minimum Conditions of Employment Act 1993, among other contentions. The Full Bench reviewed each of these grounds, finding that the Commissioner’s reasons were sufficient, and her conclusions were supported by the relevant clauses of the Agreement.  

The Full Bench determined that the Commissioner’s interpretation of the Agreement and the application of the Minimum Conditions of Employment Act 1993 were correct and supported by the language and context of the Agreement.  As a result, the Full Bench dismissed the appeal, affirming the decision of the Commissioner in the first instance. 

The decision can be read here. 

Decision issued Tuesday, 21 May 2024.