The applicant alleges that for the board meetings of 7, 15 and 23 September 2010:
notice of the meetings was not provided in accordance with the constitution of the respondent;
the number of persons attending the meetings was less than that prescribed by the constitution required to form a quorum; and
therefore the decision of the board to terminate the applicant was unlawful.
The respondent submits it is not clear as to whether the applicant asserts the unlawfulness of the decision of the board made the decision void and of no effect, or alternatively the decision was effective but the termination of employment was rendered harsh, oppressive and unfair by reason of its unlawfulness.
If the applicant's submission is that the decision was rendered of no effect by reason of it being ultra-vires, then the applicant's employment has not been terminated at all and the respondent’s submission is that she lacks standing to bring these proceedings at all.
If the applicant’s submission is that the unlawfulness of the decision makes the termination of the employment harsh, oppressive and unfair, there has been no evidence cited to demonstrate that:
a different outcome would more likely have occurred if the decision had not been unlawfully made.
The respondent submits that the decision made was not unlawful for the reasons alleged or at all and submits that:
article A(m) of the constitution provides that the chairperson or any two of the governing board members may call an urgent meeting of the governing board at any time if so required to conduct the business of the respondent;
the meetings of the board on 7, 9, 15 and 23 September 2010 were not the annual general meeting or special general meeting requiring seven days’ notice in writing in accordance with article A(l) of the constitution but extraordinary meetings capable of being called at any time in accordance with articles A(m) and C(a) of the constitution;
on the evidence of tab 33 to Ms Ireland’s witness statement (exhibit R1) there was a quorum of five – one half of the elected members as is required by article A(k) of the constitution. This was the point at which the decision was made to terminate the employment of the applicant; and
an organisation may, ex poste, ratify any prior decision made that was ultra vires and the respondent's defence of the proceedings amounts to an ex-poste ratification of any ultra vires decisions made by the board.
Application of the Rule in Browne v Dunn [1894] 6 R 67
The respondent submitted the rule in Browne v Dunn is where party (A) intended to rely upon a piece of evidence to support its case and party (B)’s witness gives evidence first, party (A) must cross-examine the party (B)’s witness about any evidence party (A)'s witness is going to give that will contradict party (B)'s witness evidence on that matter. The rule is irrelevant where party (B) has advanced notice that party (A) will be introducing contradictory evidence.
An outcome to the rule in Browne v Dunn is that where party (A) is going to ask the court to draw contrary implications from a piece of evidence given by party (B) and the witness of party (B) could give that evidence, party (A) must cross-examine on the point.
In these proceedings the applicant has asked the Commission to draw an adverse inference about the reliability of the board minutes of the meetings of 7, 9, 15 and 23 September 2010 (exhibit R1, tabs 31, 32, 33 and 38) to the lack of any reference in them to the WorkSafe improvement notice received by the respondent on 27 August 2010 or the request for a review of that notice dated 29 August 2010.
The respondent’s then chairperson Ms Ireland attended the meetings and gave evidence of what occurred. Ms Ireland could have been and should have been but was not questioned about the lack of any reference to the WorkSafe improvement notice in any of the minutes. The applicant therefore should not be permitted to ask the Commission to draw the inferences sought.
Casual Employment and Long Service Leave
The applicant seeks the inclusion of a long service leave benefit that she would have received or been likely to receive if her employment had continued. The respondent submits the applicant relies on the Long Service Leave Act 1958 (WA) (the LSL Act) as the basis of this entitlement saying she had had six years and nine months of continuous service at the time of her termination.
The LSL Act provides that an employee is entitled to payment in lieu of pro-rata long service leave on termination of employment after seven years continuous service (s 8(3) the LSL Act). Periods of absence on maternity leave such as those taken by the applicant do not count as service for long service leave calculations (s 6(3) the LSL Act). An entitlement for long service leave can only be enforced before an industrial magistrate (s 6(3) the LSL Act) and not before the Commission.
The respondent submitted an employee pursuant to the LSL Act is defined to exclude a person who is entitled to or eligible to become entitled to, an equivalent amount of long service leave pursuant to an award or industrial agreement (s 4(3) the LSL Act).
The applicant claimed to be employed under and was paid pursuant to the Childcare (Subsidised Centres) Award (the award). Clause 16 of the award provides that long service leave entitlements of employees covered by the award shall be those applying to state government wages employees. State Government wages employees have long service leave entitlements prescribed by WAIRC General Order 763 of 1982 (66 WAIG 319). The long service leave entitlement is better than that of the LSL Act, providing for 13 weeks leave after 10 years continuous service. The applicant is not an employee for the purposes of the LSL Act and has no entitlement under it. Further, periods of service where an employee has been paid as a casual did not count as service for the purpose of calculating an entitlement. It is irrelevant whether the applicant was a casual employee because of the criterion. The Commission is not of the view that the applicant is due a long service leave entitlement.
