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Full Bench dismisses appeal, confirming that employee was dismissed, and did not resign

The Commission has dismissed an appeal brought by the owners of a massage business, finding that it was open to the Senior Commissioner at first instance to determine that the employee had been dismissed, and did not resign.

Background

The appellant ran a massage business, at which the respondent was employed as a massage therapist. Following a dispute, the respondent left the workplace. The respondent did not return to work the following day on medical grounds, and provided the appellant with a medical certificate.

In subsequent text messages between the appellant and respondent, the respondent understood that she had been dismissed. The respondent made an unfair dismissal application to the Commission.

The learned Senior Commissioner found that the respondent had been unfairly dismissed, and ordered the appellant to pay compensation.

The reasons for decision at first instance were corrected by corrigendum soon after issuing, mainly correcting various dates and times.

Contentions

The appellant brought an appeal against the first instance decision, and listed 18 grounds of appeal. Broadly, the grounds of appeal contended that the Senior Commissioner mistook the facts at first instance; that translations of text messages used as evidence were not accurate; and that it should have been concluded that the respondent resigned. The appellant further contended that the assessment of compensation was arbitrary.

Findings

The Full Bench noted that the grounds of appeal did not set out the particulars that were relied upon by the appellant to show how the Senior Commissioner’s decision was against the evidence and did not set out specific reasons why the Senior Commissioner erred in law.

The Full Bench noted that the errors in the reasons for decision that were later corrected by corrigendum referred to by the appellant in ground one, mainly related to dates and times. The Full Bench found that the corrections did not materially affect the Commission’s decision.

The Full Bench found that the Senior Commissioner was alert to the nuance of language in considering text messages that had been translated, and further noted that at no time in the first instance, did the appellant raise issues with the translations.

The Full Bench considered that the Senior Commissioner did not err in considering the behaviour of the respondent, including the provision of a medical certificate, when finding that the respondent did not intend to resign.

The Full Bench considered that the Senior Commissioned had properly applied the principles relating to the award of compensation to the facts and that no error was demonstrated in her award of $1,500 compensation for injury.

The Full Bench found no appeal grounds were made out and dismissed the appeal.

The decision can be read here.

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Commission varies and updates the Electrical Contracting Industry Award R 22 of 1978

The Commission has varied and updated the Electrical Contracting Industry Award R 22 of 1978, to remove various respondents.

The applicant, the Electrical Trades Union WA, applied to vary the Electrical Contracting Industry Award R 22 of 1978, seeking to increase the meal, car, travel, distant work, and Western Power allowances in the Award, update the names and addresses of some of the respondents listed in one of its schedules, and remove some respondents who were no longer trading or no longer in existence.

The Electrical and Communications Association of WA (ECAWA), listed in the Award as a respondent, filed a response to the application to vary the respondents listed in the Award.  It opposed being listed in the Award as it was not a successor entity of a listed entity, a union of employers or registered organisation under the State system, or a National System employer.

The Commission noted that the application to vary the allowances was unopposed, and that the last variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021. The Commission found that the calculations provided by the applicant for the variations were consistent with the State Wage Case Statement of Principles, and that it was appropriate to make the variations sought.

The Commission noted that apart from the ECAWA’s response, the application in relation to substituting the Award’ respondents was otherwise unopposed. The Commission noted that there was no good reason for retaining the respondents  listed in the Award who had ceased to exist, ceased to trade, or ceased to be covered by the Award, and considered that it was appropriate to update the Second Schedule to the Award accordingly.

The decision can be read here.

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Full Bench refuses extension of time to appeal brought nearly 12 months out of time

The Full Bench has dismissed an appeal brought out of time, finding that the appellant failed to progress his appeal with proper expediency, and that the appeal had no prospects of success.

Background

The appellant was employed at a Catholic college under a written contract of employment that the appellant maintained was for a fixed term.  The appellant’s position was abolished, and after the appellant did not accept an alternative teaching position, the respondent informed the appellant that he was regarded as having repudiated his contract of employment and his employment was at an end. The appellant commenced proceedings in the Commission for a denied contract benefit, which were subsequently dismissed.

The appellant brought an appeal against a procedural decision of the learned Commissioner to set aside his summons to call the Roman Catholic Bishop as a witness, which was made prior to the substantive hearing in his first instance unfair dismissal application. The appellant lodged the appeal against this decision approximately one year out of time and sought an extension of time to bring the appeal.

Contentions

The appellant contended there were three reasons for the delay in lodging his appeal.  They were pressure and preoccupation with the substantive hearing as a self-represented litigant; confusion with specific sections of legislation and regulations; and challenges with his attempts to seek pro bono legal advice.

Findings

The Full Bench noted that not only was the extension of time brought around one year out of time, but that it was also lodged after the hearing of his substantive claim; after the decision dismissing his substantive claim; after he appealed the decision dismissing his substantive claim; after filing four interlocutory applications in the earlier appeal; after a decision dismissing all of his interlocutory applications in the earlier appeal; after he commenced a further appeal in the Industrial Appeal Court against the decision in his interlocutory applications in his earlier appeal; and after his earlier appeal was heard and the decision reserved.

 The Full Bench noted that the four main factors to be considered in the exercise of its discretion were the length of delay, the reasons for the delay, the prospects of success of the appeal, and the extent of any prejudice to the respondent, noting however that these were not exhaustive, and that other factors may be relevant.

The Full Bench considered that the appellant’s appeal had no prospects of success and that this was fatal for his case for an extension of time. The Full Bench found that even if the appeal had some merit, all the other relevant factors sided against the appellant.

The Full Bench noted that the length of the appellant’s delay of 12 months was extreme and to overcome this required the appellant to show that the other relevant factors were in his favour. The Full Bench found that the appellant had not shown any reason for the delay from the conclusion of the substantive hearing to the date he eventually filed the appeal, and that the delay had caused real detriment to the respondent that was incurable.

The Full Bench considered that the appellant’s dilatory conduct was a further reason to refuse to extend the time to appeal, and found that the appellant had not prosecuted his appeal with proper expediency.

The appeal was dismissed.

The decision can be read here.

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Local government employers and employees transition to State industrial relations system

As of 1 January 2023, all local government employers and employees will be covered by the State industrial relations system. 

The State and federal governments have now taken the necessary steps so that local government employers in WA are declared not to be national system employers for the purposes of the Fair Work Act 2009 (Cth). 

The effect of this is that all local government employers and employees will be within the jurisdiction of the State industrial relations system for all industrial matters including employment disputes, awards or agreements. These matters will be dealt with by the Western Australian Industrial Relations Commission. Matters involving enforcement of industrial instruments will be dealt with by the Industrial Magistrate's Court.

For more information on common applications, please refer to the information under the Employees and Employers heading on the Commission’s website. The Commission also has a range of Fact Sheets and Practice Notes that provide general information on the processes of the Commission. 

Further information on claims before the Industrial Magistrate’s Court can be found here.

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