Western Australian Industrial Relations Commission

No jurisdiction to entertain claim for attraction and retention incentive payment as part of voluntary severance package

An employee who accepted a voluntary severance offer and resigned from his employment, claimed his severance package should have included an attraction and retention incentive payment which he had been receiving in his acting position.

The applicant claimed the payment, and the manner in which he was informed as to his severance package was not in accordance with the Public Sector (Redeployment and Redundancy) Regulations 2014 (WA), and the Regulations were not fairly or properly applied. He maintained the matter may be referred to the Commission under s 95(2)(b) of the Public Sector Management Act 1994 (WA). Additionally, he claimed the sum of his incentive payment ($22,330.64) as a denied contractual benefit under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA).

The respondent maintained the Commission had no jurisdiction to entertain the matter referred to it under s 95(2)(b) because at the time of the referral, the applicant was not an employee, having already resigned from his employment. In reply, the applicant contended that having regard to Parts 3 and 6 of the Regulations, a resignation as part of a voluntary severance process, is not a termination of employment as provided in Part 6.

The respondent also maintained the applicant’s contractual benefits claim must fail as because he was a “government officer” at the material time, as defined in s 80C(1) of the Act, any such claim can only proceed before the Public Service Arbitrator constituted under Part IIA of the Act. The applicant contended his claim fell within the Commission’s general jurisdiction under s 23 of the Act.

Having considered the relevant provisions of the PSM Act and the Regulations, the Senior Commissioner found that for a referral of a matter to the Commission under s 95(2)(b) to be valid, the person aggrieved by the decision must be in an extant employment relationship with their employer, as at the time of the referral. In relation to the applicant’s contractual benefits claim, the Senior Commissioner held the Arbitrator has exclusive jurisdiction in respect of industrial matters relating to a “government officer”, with the exception of claims made under ss 95 and 96A of the PSM Act. He found the Commission’s general jurisdiction under s 23 is not able to be availed of by a “government officer”. For the above reasons, the application was dismissed for want of jurisdiction.

The decision can be read here.

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