Kylie Wood -V- rainbow Coast Neighbourhood Centre Inc

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2012 WAIRC 00340



WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CITATION : 2012 WAIRC 00340

CORAM

: Commissioner S M Mayman




HEARD

:

wednesday, 7 september 2011, Thursday, 8 september 2011, FRIDAY, 9 SEPTEMBER 2011, THURsday, 20 OCTOBER 2011


DELIVERED : WEDNESDAY, 6 JUNE 2012
FILE NO. : U 173 OF 2010


BETWEEN

:

Kylie Wood

Applicant
AND
Rainbow Coast Neighbourhood Centre Inc

Respondent

CatchWords : Termination of employment - Harsh, oppressive and unfair dismissal claim - Industrial Relations Act 1979 (WA) s 29(1)(b)(i) - Procedural fairness - Was the investigation and inquiry reasonable in the circumstances - Condonation - Principles for compensation for injury - Principles for compensation for loss - Occupational Health and Safety Act 1984 - Improvement notice - Code of practice Violence, aggression and bullying at work - Commission for Occupational Safety and Health - 2010

Legislation : s 23A, s 23A(b), 23A(6), s 29(1)(b)(i) Industrial Relations Act 1979 (WA)

s 4(3), s 6(3), s 8(3) Long Service Leave Act 1958 (WA)

Legal Profession Act 2008 (WA)

s 23K, s 43, pt VI div 1 s 48 Occupational Safety and Health Act 1984 (WA)

s 4(3), s 6(3), s 8(3) Long Service Leave Act 1958 (WA)

s 74 United Kingdom Employment Protection (Consolidated) Act 1978 (UK)

Result : Minute issued

Representation:

Applicant : Ms J Price

Respondent : Mr G McCorry (as agent)
Case(s) referred to in reasons:

Associated Dominion Assurance Society Pty Ltd v Andrew & Haraldson (1949) 49 SR (NSW) 351

AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 04015, [2001] 81 WAIG 2849

Babcock Fata Ltd v Addison (1987) IRLR 173

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Bogunovich v Bayside Western Australia Pty Ltd [1998]) 78 WAIG 3635

Bone Densitometry Australia Pty Ltd trading as Perth Bone Densitometry v Lenny [2005] WAIRC 02081 [2005] 85 WAIG 2981

British Home Stores Ltd v Burchell (1978) IRLR 379, 380

Browne v Dunn [1894] 6 R 67

Burazin v Blacktown City Guardian Pty Ltd 142 ALR 144

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430

C v Quality Pacific Management Pty Ltd (1993) 73 WAIG 988, 997

Hill v Minister for Local Government Territories and Roads PR946017 26 April 2004 Lacy SDP

John Lysaght (Australia) Ltd v Federated Iron Workers' Association; Re York (1972) AILR 517

Lynham v Lataga Pty Ltd (2001) 81 WAIG 986

Max Winkless Pty Ltd v Bell (1986) 66 WAIG 847

McCasker v Darling Downs Co-operative Bacon Association Ltd (1998) 25 IR 107

Miles v The Federated Miscellaneous Workers' Union of Western Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Murray Irrigation Limited v Balsdon [2006] NSWCA 253Hill v Minister for Local Government Territories and Roads (Lacy SDP) (PR 946017)

Phillips v Foxall (1872) 7 LRQB 666

Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 2604; [2005] 85 WAIG 3441 [166]

Robe River Iron Associates v The Association of Draughting, Supervisory and Technical Employees of Western Australia [1987] 68 WAIG 11

Shire of Esperance v Mouritz (1990) 71 WAIG 891

Smith v Penrhos College (2002) WAIRC 04854

Smith v Saracen Management Pty Limited (2002) 82 WAIG 1050

Timms v Phillips Engineering Pty Ltd (1977) 70 WAIG 1318



Wadey v YMCA Canberra [1996] IRCA 568




Reasons for Decision


  1. The substantive proceedings in this application relate to a claim pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (the Act) by Ms Kylie Wood (the applicant) against the Rainbow Coast Neighbourhood Centre Inc (the respondent). Specifically, the applicant's claim relates to an assertion that she was unfairly dismissed by the respondent. The substantive claim was filed on 22 October 2010. Following a series of conciliation conferences the Western Australian Industrial Relations Commission (the Commission) referred the matter for hearing and determination in Albany and subsequently in Perth with final submissions being received on a date fixed by consent, on 20 October 2011.

  2. The question the applicant sought to have determined was whether the respondent exercised their legal right to dismiss the applicant in such a way that the right was exercised harshly, unjustly or oppressively against the applicant, as to amount to an abuse of that right.

Preliminary Matter (Primary Issue)


  1. Prior to the substantive matter being dealt with the respondent sought an application that the arbitration by the Commission be adjourned due to the unfortunate death of Ms Ireland's mother. Ms Karen Ireland (Ms Ireland), was a member of the respondent's board and was due to give evidence at the hearing the following week as the respondent’s primary witness.

  2. The application for adjournment was opposed by the applicant. The applicant submitted the view that the respondent’s board was made up of a number of members and therefore, whilst the applicant extended her sympathy to the family of Ms Ireland, it was not necessary to vacate the hearing.

  3. The Commission had regard for the applicant’s and the respondent’s submissions and issued a declaration vacating the hearing listed on 2, 3 and 4 August 2011. Furthermore, the declaration rescheduled the matter in Albany on 16, 17 and 18 August 2011 at the Albany Courthouse [2011] WAIRC 00780; [2011] 91 WAIG 1896. The Commission indicated reasons for decision would issue later.

  4. The declaration earlier referred to was appealed to the Full Bench and a decision was issued [2011] WAIRC 00821; [2011] 91 WAIG 1831.


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