WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES RAY ALLEN, APPLICANT v. ST JOHN AMBULANCE AUSTRALIA, RESPONDENT CORAM COMMISSIONER P E SCOTT DELIVERED WEDNESDAY, 18 JULY 2001 FILE NO APPLICATION 646 OF 2001 CITATION NO. 2001 WAIRC 03308 __________________________________________________________________________ Result Application for unfair dismissal dismissed Representation Applicant Mr G Halliwell Respondent Mr M O’Connor __________________________________________________________________________ Reasons for Decision. 1 The respondent argues that the Commission has no jurisdiction to deal with the applicant’s claim that he was harshly, oppressively or unfairly dismissed from his employment, an application made pursuant to s.29 of the Industrial Relations Act 1979 (“IR Act”). The respondent says that this is on account of the applicant’s employment as a Clinical Manager being the subject of a workplace agreement pursuant to the Workplace Agreements Act 1993 (“WA Act”), and there being no provision within the workplace agreement for the matter to be referred to the Commission pursuant to s.7G of the IR Act. 2 The parties are agreed that the applicant was employed by the respondent as a Clinical Manager covered by a workplace agreement and that his demotion to the position of Ambulance Officer Grade 3 constituted a dismissal. They also agree that there is no particular provision within the workplace agreement which covered the applicant’s employment as a Clinical Manager which provides for reference of a claim of unfair dismissal pursuant to s.7G of the IR Act. They also agree that the applicant’s employment post the dismissal was covered by an award. 3 The applicant says that the matter before the Commission is an industrial matter pursuant to s.7(1)(a) of the IR Act. He says that when his employment as a Clinical Manager terminated, his workplace agreement came to an end. He then took up the position of Ambulance Officer during which time he made application to the Commission pursuant to s.29 of the IR Act. The applicant says that at the time of making his application he was an employee covered by an award. Further, the applicant says that the Performance Management Guidelines, which constituted a policy of the respondent, contain disciplinary procedures not included in the workplace agreement. Those Performance Management Guidelines form part of the applicant’s contract of employment. The termination of employment occurred without the respondent applying the proper processes in accordance with that procedure. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 2442 The workplace agreement came to an end with the employment as a Clinical Manager. If the applicant were successful in his claim for reinstatement then he would again be covered by a workplace agreement. 4 In considering the issue of jurisdiction raised by the respondent, the Commission needs to examine relevant terms of the IR Act and the WA Act. 5 Section 18 of the WA Act provides— “18. Implied provision as to unfair dismissal (1) There is implied in every workplace agree- ment a provision that the employer must not unfairly, harshly or oppressively dis- miss from employment any employee who is a party to the agreement. (2) The provision described in subsection (1) is enforceable under section 51 of this Act or under section 7G of the Industrial Rela- tions Act 1979, as the case may be, and not otherwise. (3) A workplace agreement must not exclude the operation of subsection (1) and to the extent that it purports to do so it is of no effect.” 6 Therefore a person whose employment was covered by a workplace agreement who claims to have been unfairly dismissed has two potential routes by which to pursue a claim of harsh, oppressive or unfair dismissal—s.51 of the WA Act or s.7G of the IR Act. Section s.51 of the WA Act, states— “51. Unfair dismissal (1) Where— (a) a person who was a party to a workplace agreement as an employee claims that he or she has been unfairly dismissed from employment in breach of the provision im- plied in the agreement by section 18; and (b) section 7G (1) (b) of the Industrial Rela- tions Act 1979 does not apply, the person dismissed may bring an action in an industrial magistrate’s court against the employer for relief in respect of that dis- missal.” 7 Section 7G of the IR Act provides— “7G. Referral of claim of unfair dismissal (1) Where— (a) a person who was a party to a workplace agreement as an employee claims to have been harshly, oppressively or unfairly dis- missed from employment in breach of the provision implied in the agreement by sec- tion 18 of the Workplace Agreements Act 1993; and (b) the workplace agreement provides for re- ferral of such claims to the Commission under this section, the person dismissed may, within the time al- lowed by section 29(2), refer the claim to the Commission for determination. (2) The Commission is to enquire into and deal with any claim referred under subsection (1) as if it were an industrial matter referred to it under sec- tion 29(1)(b)(i).” 8 This makes provision for an employee who was a party to a workplace agreement to claim that he or she was harshly, oppressively or unfairly dismissed from employment after that employment has ended. It is not an unfettered provision. For s.7G to enable an employee who was covered by a workplace agreement to bring the claim to the Commission both s.7G(1)(a) and (b) must be met. Section 7G (1)(b) requires that the workplace agreement provide for referral of claim to the Commission. The applicant’s workplace agreement makes no such provision. 9 Notwithstanding this, the applicant says that at the time he filed his claim, he was an employee covered by an award, and was not covered by a workplace agreement. 10 Section 14 of the WA Act recognises that employment pursuant to a workplace agreement will come to an end at some time, and yet maintains the rights and obligations which are to take effect after termination. It provides— “14. Termination of contract of employment (1) Where a contract of employment of an em- ployee comes to an end, a workplace agreement that governs that contract no longer applies to that person except where an agree- ment under subsection (2) provides otherwise. (2) An employer and a person who is employed by the employer may agree in writing that a specified workplace agreement is to apply to that person as an employee of that employer during a specified period, not exceeding 12 months, regardless of the number of separate contracts of employment between them that come into existence during that period. (3) Subsection (1) does not affect rights or obli- gations under a workplace agreement that are to take effect after termination of employ- ment.” 11 It is clear from the terms of the IR Act and the WA Act that the employee’s status at the time of making a claim of unfair dismissal is not relevant. What is relevant is whether his or her employment the subject of the dismissal claim was subject to a workplace agreement, and the terms of that workplace agreement. 12 It is wrong to conclude that the person’s status at the time of making the application is the determining factor in deciding whether he or she utilises the provisions of the IR Act or the WA Act. 13 Section 7G of the IR Act and s.51 of the WA Act make provision for “a person who was a party to a workplace agreement as an employee”, to claim unfair dismissal i.e. reference is to the past tense (emphasis added). The legislation provides for a person who was a party to a workplace agreement, regardless of his or her status at the time of making the application, to pursue a claim of unfair dismissal in accordance with a particular regime for workplace agreement parties. Section 14 of the WA Act recognises that workplace agreements will come to an end, but provides that the rights and obligations under the workplace agreement, which were to take effect after the termination of employment, are not affected by the coming to an end of the workplace agreement. 14 On these bases, I conclude that as the workplace agreement which covered the applicant’s employment made no provision for reference of a claim for unfair dismissal to the Commission under s.7G that the Commission has no jurisdiction to hear this matter. The WA Act makes specific provision for such a claim to be dealt with by the Industrial Magistrate’s Court in those circumstances. The employment of a person whose employment was covered by a workplace agreement is not an employee for the purpose of the IR Act (s.7B of the IR Act) and it is only where specific provision is made, such as in s.7G of the IR Act, that the Commission is able to deal with matters affecting, relating to or arising out of relationship of parties to a workplace agreement. 15 Accordingly the application is to be dismissed. 2001 WAIRC 03309