Western Australian Industrial Relations Commission

What is the Public Service Appeal Board

The Public Service Appeal Board is a constituent authority, or part, of the Commission. It hears and determines appeals brought by government officers or public service officers. The Board is constituted by:

  1. A Chairman who is a Public Service Arbitrator (a Commissioner appointed to be a Public Service Arbitrator);
  2. The employer’s nominee: somebody independent of the dispute, appointed by the employer; and
  3. The employee’s nominee: somebody independent of the dispute, nominated by The Civil Service Association of Western Australia Incorporated or another union of which the employee is a member.

The employee’s and employer’s nominees do not represent the interests of the parties who nominate them. The parties either represent themselves or are represented by a lawyer, industrial agent or some other person.

Who can bring a matter to the Public Service Appeal Board, and what can be appealed?

The Board’s jurisdiction varies, depending on the type of decision being appealed.

Nature of the decision being appealed

Who can appeal

Section

An employer’s decision relating to an interpretation of any provision of the Public Sector Management Act 1994 or regulations, concerning conditions of service of public service officers, other than salaries and allowances

Public service officer *

80I(1)(a)

A decision or finding arising out of a substandard performance or disciplinary process under     s 78 of the Public Sector Management Act 1994

Government officer *

80I(1)(b)

A decision or finding arising out of a substandard performance or disciplinary process under     s 172 of the Health Services Act 2016

Government officer *

80I(1)(c)

Any decision to dismiss, except for a decision to dismiss arising out of a substandard performance or disciplinary process referred to above

Government officer *

80I(1)(d)

* or an organisation registered under the Industrial Relations Act 1979 on behalf of the officer.

 

What can the Public Service Appeal Board do?

The Board hears evidence and argument presented by the parties. It does not undertake its own investigation, so the parties have to present whatever it is they want the Board to consider.

The Board has power to ‘adjust’ the decision made by the employer. It is for the appellant to prove the employer’s decision should be adjusted. Note that the Board cannot award compensation for an employee who does not seek reinstatement: Insurance Commission v Johnson (1997) 77 WAIG 2169.

Based on its own findings of the facts and law, the Board may vary or uphold a decision of the employer. Procedural flaws in the employer’s process are relevant but are not necessarily determinative of the Board’s decision.

For more information on the nature of Public Service Appeal Board matters, see CSA v Department of Family and Children’s Services [2002] WAIRC 7213; (2003) 83 WAIG 390 [26].

What can’t the Public Service Appeal board deal with?

  • Decisions dealing with redeployment and redundancy, and termination of registered redeployees.
  • Mediation/conciliation.

The Board only has power to ‘hear and determine’ appeals before it; it has no power to conciliate or mediate. If the parties believe mediation may assist them to reach agreement, or narrow the issues in dispute, they can use the Commission’s Employment Dispute Resolution service: http://www.edr.wairc.wa.gov.au/.

  • The Board cannot deal with the non-renewal of a genuine fixed term contract. That is because when an employee commences employment on a fixed term contract, they are taken to have consented to the employment ending after a period of time. The decision to not renew a fixed term contract cannot be reviewed by the Board. See Brocklehurst v Ministry of Justice (1994) 74 WAIG 2024.

Is there a time limit for matters to be referred to the Board?

Yes. An appeal must be commenced within 21 days after the date of the decision, finding, determination or recommendation. If the decision, finding, determination or recommendation is published in the Government Gazette, an appeal may be commenced within one month of the date of that publication (see regulation 107(2) Industrial Relations Commission Regulations 2005).

Calculation of time

If a decision, finding, determination or recommendation is made on, say, 1 June, the last day for commencing an appeal is 22 June, assuming they are both ordinary business days. If the final day is a weekend or public holiday, the following business day is the final day (see reg 4(3) Industrial Relations Commission Regulations 2005).

Can an employee lodge an appeal ‘out of time’?

Yes. Once the time limit has passed, an employee can still lodge an appeal. The appeal will be ‘out of time’, so the appellant must apply to have the appeal accepted out of time. There is space to provide this information within the Form 8B - Notice of Appeal - Government Officers, Public Service Officers.  The Board will decide whether the appeal is to be accepted out of time.

When the Board is deciding whether to accept an appeal out of time, it is up to the appellant to satisfy the Board that strict compliance with the time limit will ‘work an injustice’. The Board will consider the following four principles, weighed together. The appellant does not necessarily have to satisfy every factor if one factor is extremely compelling. However, it will help their case if they can.

  1. Length of the delay

If the delay is relatively short, this will tend to indicate that the time limit will ‘work an injustice’ and will favour the appellant.

  1. Reasons for the delay

Importantly, the appellant must demonstrate two things:

(a) How the reason caused the delay; and

(b) Why compliance with the time limit would 'work an injustice' in light of the reason.

       Common reasons include:

  • Representative or adviser made a mistake

When the delay is caused by the appellant’s representative, not the appellant themselves, this will favour the appellant.

  • Steps to challenge the decision

If the appellant was actively contesting the decision, other than by filing an appeal to the Board, this will favour the appellant.  Other steps to challenge a decision can include mistakenly filing an application in one of the Commission’s other constituent authorities or writing to the employer to challenge the decision.

  • Personal circumstances of the appellant

If the appellant can show that the delay was caused by their personal circumstances and that it would ‘work an injustice’ to strictly comply with the time limit, this will favour the acceptance of the appeal out of time. Inconvenience alone will probably not be adequate. 

  1. Whether the appellant has an arguable case

       The merits of the appeal are assessed ‘in a fairly rough and ready way’. This does not place any burden on the appellant. However, if the employer can establish that the appeal has no merit, it will be up to the appellant to show that the appeal does have merit. 

  1. Prejudice to the employer

If the employer can show that they would suffer prejudice if the appeal is accepted out of    time, this will weigh against the appeal being accepted out of time. The prejudice must be more than the ‘prejudice of having to meet the proceedings.’

 

See Nicholas v Department of Education and Training[2008] WAIRC 1645; (2008) 89 WAIG 817.

See also Malik v Department of Education[2004] WASCA 51; (2004) 84 WAIG 683 [25].

 

How do I make an appeal to the Board?

The appellant files a Form 8B - Notice of Appeal - Government Officers, Public Service Officers. If the employee is a member of a union other than The Civil Service Association of Western Australia Incorporated, they should advise the Board in the application. The Board will then include a nominee of that union.

 

Once an appeal is filed, what happens?

  1. The Registry will provide you with a copy of the Form 8 for your records and send a copy of it to your employer.
  2. The Board's Associate may contact the parties to schedule a directions hearing or may list the appeal for hearing.
  3. At the directions hearing, the Board may make programming orders or directions, to guide preparation for the hearing.  These may include providing for discovery, the preparation of witness evidence and outlines of submissions, a statement of agreed facts, and the venue for the hearing. 
  4. The employer may file a Form 4 - Response (General), in which it briefly answers the appellant’s Notice of appeal.  The Board might require this as part of the preparation for the hearing.
  5. At the hearing of the appeal, the employee and employer will each have an opportunity to present their case through witnesses and other material.  They will then have an opportunity at the end make a final submission.
  6. Once the hearing concludes, the Board is likely to take time to consider the evidence and make its decision, which will be issued in writing.   

 

Can a decision of the Public Service Appeal Board be appealed?

The Industrial Relations Act 1979 does not provide a right of appeal from decisions of the Board.

See Titelius v Public Service Appeal Board & Ors[1999] WASCA 19 [4].

 

 

 

Contact Us

Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

Free Fax :1800 804 987

Email : Registry

 

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