respondent. Application for unfair dismissal dismissed for lack of jurisdiction because the workplace agreement governing the dismissed employment did not provide for referral to the Commission under s 7G;...
Key principles
Where the employment the subject of an unfair dismissal claim was governed by a workplace agreement that does not provide for referral of such claims to the Commission under s 7G...
The relevant inquiry for jurisdiction is the terms of the workplace agreement that governed the employment at the time of the dismissal, not the applicant's employment status at...
Sections 7G(1)(a) and (b) of the IR Act must both be satisfied before the Commission may entertain a claim by a person who was a party to a workplace agreement; s 7G(1)(b)...
Issues before the court
Does the Western Australian Industrial Relations Commission have jurisdiction to determine an unfair dismissal claim where the employment giving...
Does the employee's status (award-covered employee at time of filing) alter the jurisdictional route for an unfair dismissal claim arising from...
Can employer policies or performance management guidelines that form part of contract of employment alter the jurisdictional gateway under s 7G?
Plain English Summary
The applicant was dismissed from a role governed by a workplace agreement that did not allow referral of unfair dismissal claims to the Industrial Relations Commission under s 7G. Even though the applicant was employed under an award when he lodged his application, jurisdiction depends on the employment that was dismissed. Because the workplace agreement lacked the necessary referral clause, the Commission had no jurisdiction and the unfair dismissal application was dismissed. The applicant's remedy was under s 51 of the Workplace Agreements Act in the Industrial Magistrate's Court.
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Deep Dive
1,756 words · generated 01/07/2026
What happened
Ray Allen (the applicant) was employed by St John Ambulance Australia (the respondent) as a Clinical Manager under a workplace agreement. The applicant was demoted to Ambulance Officer Grade 3; the parties agreed that the demotion amounted to a dismissal. After the demotion, the applicant continued in employment under an award and lodged an application in the Western Australian Industrial Relations Commission (WAIRC) under s 29 of the Industrial Relations Act 1979 (WA) alleging that the dismissal was harsh, oppressive or unfair. The respondent raised a jurisdictional objection: the workplace agreement that governed the employment at the time of dismissal contained no provision permitting referral of unfair dismissal claims to the WAIRC under s 7G of the IR Act. The respondent argued that, therefore, the WAIRC had no jurisdiction and that the applicant's remedy lay under s 51 of the Workplace Agreements Act 1993 (WA) in the Industrial Magistrate's Court. Commissioner P E Scott heard the jurisdictional issue and dismissed the application for lack of jurisdiction (see Reasons [1], the statutory extracts and the concluding paragraphs [4]-[5]).
Cited legislation
2 cited instruments linked from this judgment.
Why the court decided this way
The Commission's decision turned on the statutory architecture and the meaning of the relevant provisions.
The Workplace Agreements Act implied a protection against unfair dismissal into every workplace agreement (s 18). That implied protection is enforceable either under s 51 of the WA Act or under s 7G of the IR Act, "as the case may be" (Reasons quoting s 18 at [5]).
Section 7G of the IR Act permits a person who "was a party to a workplace agreement as an employee" to refer a claim of harsh, oppressive or unfair dismissal to the Commission only where the workplace agreement "provides for referral of such claims to the Commission under this section" (the two limbs of s 7G(1) discussed in Reasons). Both elements must be satisfied for Commission jurisdiction.
Section 51 of the Workplace Agreements Act provides the alternative forum, the Industrial Magistrate's Court, where s 7G(1)(b) does not apply.
The Commission emphasised the temporal point of statutory focus. The relevant inquiry is whether the employment that was the subject of the dismissal was governed by a workplace agreement and what that agreement provided, rather than the applicant's employment status at the time of making the application (see the court's explicit statement: "It is clear ... the employee's status at the time of making a claim ... is not relevant" at the concluding paragraph [1]).
Applying those rules to the agreed facts, the workplace agreement in question did not provide for referral to the WAIRC under s 7G; therefore s 7G(1)(b) was not satisfied and the Commission had no jurisdiction. The applicant's subsequent award-based employment did not alter that conclusion (concluding paragraphs [1]-[4]). The result was the dismissal of the application (concluding paragraph [5]).
Before and after state of the law
Before this decision the statutory scheme produced two distinct enforcement paths for implied unfair dismissal protections in workplace agreements: proceedings in the Industrial Magistrate's Court under s 51 of the Workplace Agreements Act, and referral to the WAIRC under s 7G of the IR Act where the workplace agreement expressly permitted such referral. The Commission's decision in Ray Allen v St John Ambulance Australia reinforced and clarified how those two paths operate in practice.
After the decision:
The WAIRC confirmed that the presence or absence of a referral clause in the workplace agreement is determinative of Commission jurisdiction under s 7G (see conclusion [4]). That is, s 7G does not operate as a free-standing avenue for any person who was ever party to a workplace agreement; the agreement must expressly permit the referral.
The decision reinforced the temporal lens: jurisdictional characterisation looks to the employment governing the dismissed position, not the employee's subsequent contractual status at the time of lodging a claim (concluding paragraphs [1]-[3]).
Practitioners should therefore identify the contractual instrument that governed the employment at dismissal and inspect it for any express s 7G referral clause before lodging an unfair dismissal claim in the WAIRC.
Key passages with plain-English translation
Reasoning about jurisdictional gateway (Reasons [1]):
Court text: "The respondent argues that the Commission has no jurisdiction ... on account of the applicant's employment as a Clinical Manager being the subject of a workplace agreement ... 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."
Plain English: The employer says the Commission cannot hear the case because the job from which the applicant was dismissed was covered by a workplace agreement that did not allow the case to be sent to the Commission under s 7G.
Statutory source of implied protection (Reasons [5]):
Court text: s 18 quoted: "There is implied in every workplace agreement a provision that the employer must not unfairly, harshly or oppressively dismiss ... and ... is enforceable under section 51 of this Act or under section 7G of the Industrial Relations Act 1979 ..."
Plain English: Every workplace agreement automatically includes a promise not to unfairly sack someone, but the law provides two different ways to enforce that promise depending on the agreement's terms.
Temporal focus on the dismissed employment (concluding para [1]):
Court text: "It is clear ... 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."
Plain English: What matters is what agreement governed the job at the time of the dismissal and what that agreement allowed. It does not matter if the person has another job under a different contract when they lodge the claim.
Dispositive holding (concluding para [4]):
Court text: "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."
Plain English: Because the workplace agreement did not permit the Commission to handle the claim under s 7G, the Commission cannot hear it.
What fact patterns trigger this precedent
This decision is triggered by fact patterns where:
The dismissal arises from employment that was governed by a workplace agreement; and
The workplace agreement does not contain an express clause providing for referral of unfair dismissal claims to the WAIRC under s 7G; and
The dismissed employee later obtains employment covered by an award (or otherwise changes employment status) and then brings an unfair dismissal application in the WAIRC.
Under Ray Allen, such a sequence means the WAIRC will lack jurisdiction; the correct procedural path is to bring proceedings under s 51 of the Workplace Agreements Act in the Industrial Magistrate's Court. Practitioners should therefore check the governing agreement at the time of dismissal and the presence or absence of a s 7G-style referral clause.
Edge factual features that attract this precedent:
Dismissals or demotions treated as dismissals while a workplace agreement is in force.
Subsequent employment under different contractual regimes before filing a claim.
Workplace agreements that are silent on Commission referral.
How later courts have treated it
The text of this judgment itself does not discuss subsequent appellate decisions or later treatments by other courts or tribunals. The Reasons are an interpretation of the WA statutory framework as it was then constituted, and the decision is an exercise of statutory construction and jurisdictional determination by the Commissioner. To assess how later courts or tribunals have treated Ray Allen would require examination of subsequent authorities and legislative developments after 2001; that material is not part of the judgment and therefore is not addressed in these Reasons. Practitioners should check later case law and any legislative amendments affecting ss 7G, 51 or the Workplace Agreements Act regime for developments or departure from this reasoning.
Still-open questions
Ray Allen resolves the specific jurisdictional point for the facts before the Commission. It nonetheless leaves several practical questions that practitioners should keep under review:
Formal drafting and operation of workplace agreements:
What specific form of wording in a workplace agreement constitutes a valid "provision for referral" to the Commission under s 7G(1)(b)? The decision treats the absence of any such provision as dispositive, but it does not catalogue the precise drafting that will be sufficient.
Interaction with s 14 written continuity clause:
Section 14(2) of the Workplace Agreements Act allows parties to agree that a specified workplace agreement continues to apply up to 12 months despite changes in employment contracts. How will such written continuance clauses affect jurisdictional choices in marginal cases where employees move between contracts within 12 months? The judgment cites s 14 (see Reasons quoting s 14) and notes its effect on continuity of rights, but does not have to resolve border-line factual disputes about whether an agreement continued to apply.
Overlap with internal disciplinary policies:
The applicant relied on Performance Management Guidelines said to form part of his employment contract. The Commission held jurisdiction is determined by the workplace agreement terms, not by such policies. But there may be circumstances where a workplace agreement incorporates or cross-references policies in a way that affects whether s 7G referral exists. The judgment does not explore detailed incorporation doctrine.
Remedies and practical consequences:
The judgment clarifies the forum but does not discuss substantive consequences for available remedies in the Industrial Magistrate's Court under s 51 compared with the Commission. Strategic choices by employees and employers remain important but are not decided here.
For practitioners, the safe course is to inspect the workplace agreement that governed the employment at the time of dismissal for any express s 7G referral clause and, if absent, proceed in the Industrial Magistrate's Court under s 51. Also, where parties have agreed in writing under s 14(2) that a workplace agreement continues to apply, document that continuity clearly.
Concluding note: The Commission's Reasons in Ray Allen focus narrowly on the statutory jurisdictional gateway created by ss 7G and 51 and the workplace agreement that governed the dismissed employment. The decision is a useful guide to the primacy of the governing workplace agreement's terms when determining forum and procedure in unfair dismissal disputes under the WA legislative framework.
Judgment (22 paragraphs)
[1]
Ray Allen v St John Ambulance Australia [2001] WAIRComm 3308 (16 July 2001)
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.
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.
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. 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.
[7]
(1) There is implied in every workplace agreement a provision that the employer must not unfairly, harshly or oppressively dismiss from employment any employee who is a party to the agreement.
[8]
(2) The provision described in subsection (1) is enforceable under section 51 of this Act or under section 7G of the Industrial Relations Act 1979, as the case may be, and not otherwise.
[9]
(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."
[10]
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:
[11]
(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 implied in the agreement by section 18; and
the person dismissed may bring an action in an industrial magistrate's court against the employer for relief in respect of that dismissal."
[14]
(a) a person who was a party to a workplace agreement as an employee claims to have been harshly, oppressively or unfairly dismissed from employment in breach of the provision implied in the agreement by section 18 of the Workplace Agreements Act 1993; and
[15]
(b) the workplace agreement provides for referral of such claims to the Commission under this section,
[16]
the person dismissed may, within the time allowed by section 29(2), refer the claim to the Commission for determination.
[17]
(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 section 29(1)(b)(i)."
[18]
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.
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.
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:
[19]
(1) Where a contract of employment of an employee comes to an end, a workplace agreement that governs that contract no longer applies to that person except where an agreement under subsection (2) provides otherwise.
[20]
(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.
[21]
(3) Subsection (1) does not affect rights or obligations under a workplace agreement that are to take effect after termination of employment."
[22]
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.
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.
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.
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.
Accordingly the application is to be dismissed.
Parties
Applicant/Plaintiff:
Ray Allen
Respondent/Defendant:
St John Ambulance Australia [2001] WAIRComm 3308
Legislation Cited (2)
Relations Act 1979
Agreements Act 1993
AI Analysis
Outcomerespondent
Disposition:
Application for unfair dismissal dismissed for lack of jurisdiction because the workplace agreement governing the dismissed employment did not provide for referral to the Commission under s 7G; the appropriate remedy was under s 51 Workplace Agreements Act in the Industrial Magistrate's Court (Reasons concluding paragraphs [4]-[5]).
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.