Industrial Magistrates Court of Western Australia

A claim was brought to the Industrial Magistrates Court (IMC) under section 97A of the Industrial Relations Act 1979 (WA) (IR Act). The claimant, a Senior Social Worker employed by East Metropolitan Health Service (respondent), alleged that the respondent had engaged in ‘damaging action’ under section 97A of the IR Act by threatening to alter his employment position because of employment-related complaints he had made. 

The claimant commenced employment with the South Metropolitan Health Service in 2013 as a Senior Social Worker, moving to the managerial position of Team Leader at the East Metropolitan Health Service (EMHS) in 2016. The claimant has subsequently worked in various roles within EHMS, including Team Lead positions. Between 2018 and 2023, the claimant was the subject of complaints made against him and also made a series of employment-related complaints. The claimant’s complaints included allegations of workplace bullying, homophobia, and toxic work environments. 

In 2023, the claimant continued to raise concerns about his experience in the workplace and in response, the respondent planned to create a new substantive role at the same or equivalent classification level that was suited to the claimant's qualifications and experience. The respondent subsequently proposed to transfer the claimant to a new substantive role at an equivalent classification level requiring similar qualifications and functions, but without line management responsibility for staff. The claimant argued that the respondent’s proposed removal of managerial responsibilities threated to alter his position to his disadvantage, and this proposal was made because of the numerous employment-related complaints he had made. The claimant sought orders for compensation and a civil pecuniary penalty. 

The Industrial Magistrate was required to consider two key issues: whether the proposed transfer constituted ‘damaging action’ under section 97 of the IR Act, and if the proposed transfer constituted damaging action, whether there was a causal link between the employment-related complaints and the proposed transfer.  

The Industrial Magistrate determined the evidence overwhelmingly demonstrated that the proposed transfer was not to the claimant’s disadvantage. The new substantive position was created specifically for the claimant to remedy feelings of being undervalued and not belonging at work, and where no suitable permanent vacancies were available. The claimant was not required to apply for the role and was given an opportunity to discuss the details of the position and provide feedback on the proposed transfer before it was implemented. 

In finding that the proposal to transfer the claimant to a new role did not constitute ‘damaging action’, the respondent then did not bear any onus to prove that the transfer was not proposed to the claimant because of the claimant’s series of complaints. However, Her Honour contemplated the reasons for the proposed transfer and determined that, even if the proposal to transfer the claimant did constitute damaging action, the respondent did not propose to transfer the claimant because of the employment-related complaints he made. According, the Industrial Magistrate dismissed the claim. The full decision can be read here.

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A prison officer and member of the Western Australian Prison Officers' Union of Workers was headquartered at Broome Regional Prison. The Department of Justice Prison Officers' Industrial Agreement 2020 applied to the officer. The officer’s employer, the Department of Justice, required him to take his annual leave in accordance with a leave roster. But at the time the officer took leave, he was already on an authorised absence from work because he was incapacitated and in receipt of weekly payments of compensation under the Workers' Compensation and Injury Management Act 1981 (WA).

Clause 85 of the Agreement entitles an officer who is headquartered in the North West, and who proceeds on annual leave to a destination outside that region to "paid travelling time". The Union alleged that the respondent contravened clause 85 of the Agreement by failing to pay the officer an amount in addition to his weekly payments of compensation as paid travel time. The employer denied any contravention of the Agreement.

Industrial Magistrate Cosentino was required to consider the nature of the entitlement in clause 85. In particular, whether the entitlement was to be allowed time off, or whether it was an entitlement to be compensated for travel in an officer’s own time. If it was an entitlement to be allowed time off, then the entitlement did not apply to the officer, who was already entitled to time off from work because of his compensable injury. The Industrial Magistrate identified several provisions of the Agreement’s text which pointed to an objective intention that the entitlement be to be allowed time off without loss of pay, rather than to be compensated for time spent travelling. Accordingly, the Industrial Magistrate rejected the Union’s contention that the officer was entitled to be paid an amount over and above the weekly payments he received for incapacity for the relevant period. There being no proven contravention of the Agreement, the claim was dismissed.

The decision can be read here.