APPEAL AGAINST THE DECISION NOT TO GRANT PERMANENCY

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00543

DELIVERED : WEDNESDAY, 29 SEPTEMBER 2021

FILE NO. : PSAB 32 OF 2020

Appellant

AND

Chief Executive, East Metropolitan Health Service

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Jurisdiction – Fixed-term contract – Commissioner’s Instruction No. 23 (CI 23) – Decision not to offer permanency – Decision not to extend or renew fixed-term contract – Appeal lodged out of time – Whether or not the appellant was a public service officer with standing to appeal a decision under s 80I(1)(a) – Whether to grant an extension of time within which to appeal – Decisions appealed are not matters within the Board's jurisdiction – Appeal dismissed

Legislation : Public Sector Management Act 1994 (WA)

Health Services Act 2016 (WA)

Industrial Relations Act 1979 (WA)

Industrial Relations Commission Regulations 2005 (WA)

Public Sector Management (General) Regulations 1994 (WA)

WA Health System - Australian Nursing Federation - Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses - Industrial Agreement 2016

Parliamentary Commissioner Act 1971 (WA) 

Result : Appeal dismissed for want of jurisdiction

Representation:

Appellant : Mr A McGrath, as agent and Ms R Way

Respondent : Mr A Chapple and Mr P Heslewood

Case(s) referred to in reasons:

Chan v The Nurses Board of Western Australia [2007] WASCA 123

Civil Service Association (Inc.) v Department of Water and Environmental Regulation [2019] WAIRC 00794; (2019) 100 WAIG 138

Civil Service Association of Western Australia Incorporated v The Director General, Department of Biodiversity, Conservation, and Attractions [2021] WAIRC 00002; (2021) 101 WAIG 58

Danala v The Minister for Health in his incorporated capacity under s 7 of the Hospitals and Health Services Act 1972 (WA) as the Hospitals formerly comprised in the Metropolitan Health Services Board (the Metropolitan Health Service) [2010] WAIRC 01036; (2010) 90 WAIG 1787

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Kelly v The Director General, Department of Justice [2002] WAIRC 08164; (2003) 83 WAIG 1283

Nicholas v Department of Education and Training [2008] WAIRC 01645; (2009) 89 WAIG 817

Reasons for Decision

Ex Tempore

1         These are the unanimous reasons of the Public Service Appeal Board (Board) in relation to the preliminary issues listed for hearing.

Background

2         The appellant, Ms Rachel Way, was employed by the East Metropolitan Health Service (the Health Service) as a Level 2 Clinical Nurse Anaesthetic Research. She commenced in that role on 5 March 2018 on a fixed‑term contract. She was then engaged pursuant to a second fixed‑term contract from 16 March 2020, with an end date of 13 September 2020.

3         In the role of Clinical Trial Coordinator, Ms Way worked with Professor Tomas Corcoran, the Director of Research for the Department of Anaesthesia and Pain Medicine at Royal Perth Hospital. Her job was to coordinate and implement research studies. As the end date of the most recent contract approached, Ms Way was expecting her role to be reviewed for permanency.

4         In her Form 8B - Notice of Appeal, Ms Way refers to Commissioner's Instruction No. 23 (CI 23), which is the process under a Commissioner's Instruction for conversion and appointment of fixed‑term contract and casual employees to permanency. In particular, Ms Way was aware that a Clinical Trial Coordinator working in another hospital and for another health service had been made permanent through the CI 23 review process, and this information created an expectation by her that her role would be treated similarly.

5         In the meantime, on 27 August 2021, Professor Corcoran advised Ms Way that he would be seeking another six‑month fixed‑term contract for her position. However, neither the further six‑month contract nor permanent conversion eventuated. Apparently, this was due to the structure or source of funding for Professor Corcoran's research activities. In an email dated 4 September 2020 from Mr Ashley Chapple to Ms Way, the official reason given for refusing permanent conversion was:

...the funding issue is a relevant criterion and so the Anaesthetic Research role is unable to be converted to permanency.

6         Precisely what was meant by this opaque explanation was not explored in this jurisdictional hearing.

7         Ms Way has continued in employment in other research roles.

8         Ms Way's appeal in these proceedings:

(a) was made under s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act). That is:

an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;

and

(b) was filed outside the 21‑day time limit specified by reg 107 of the Industrial Relations Commission Regulations 2005 (WA) for commencing an appeal of the present kind.

9         The precise decision, or its substance, against which Ms Way is appealing, is not clearly identified in her appeal, other than by reference to the date of 8 September 2020. Although, in the grounds of appeal, Ms Way describes meeting with Mr Neil Cowan, Co‑Director Surgical Division Executive Office and Ms Wendy Baker, Nurse Manager, Surgical Division on 8 September 2020, hoping that they would renew her contract in research.

10      She says instead, she was offered a six‑month contract in theatre as a Registered Nurse Level 1, Increment 8, with a review for permanency after three months. It was also uncontentious that the decline of the CI 23 permanency review occurred sometime in August 2020.

11      Ms Way seeks reinstatement to her position on a permanent basis.

12      In its response, the Health Service says that the decisions appealed against are not matters within the Board's jurisdiction. It opposes the grant of an extension of time and seeks an order that the appeal be dismissed.

13      In the course of the hearing of this matter, Ms Way confirmed that there are two decisions against which she is appealing, being first, the decision not to offer permanency and second, the decision not to extend or renew her fixed‑term contract.

14      She confirmed that she did not consider there was a dismissal decision and therefore, was not appealing under s 80I(1)(d) of the IR Act. The Board therefore proceeded to hear the matter to determine whether Ms Way is a public service officer with standing to appeal a decision under s 80I(1)(a) of the IR Act and, if the appeal is within the Board's jurisdiction, whether to grant an extension of time within which to appeal.

15      Ms Way was represented by her agent, Mr McGrath, at the hearing.

Evidence

16      The respondent tendered and relied upon Ms Way's latest contract for fixed‑term employment, which became Exhibit R1. The respondent did not call any witnesses.

17      Ms Way tendered a large bundle of documents, comprising a timeline, various emails and documents about the creation of a research officer position. The bundle was received into evidence (Exhibit A1) over the respondent's objection that a vast number of the documents in the bundle were not relevant to the issues for determination. The Board read the documents for a general understanding of the background facts, but accepts the documents, particularly those post‑dating September 2020, are largely not relevant to the determination of the preliminary issues.

18      Ms Way also relies upon two additional emails tendered into evidence. Ms Way gave oral evidence about the attempts she had made to obtain advice, mainly from the respondent and other parties, about how to challenge the decisions she was aggrieved about.

The jurisdictional issues

19      Section 80I(1) of the IR Act relevantly provides:

(1)  Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;

20      The onus of establishing the Board has jurisdiction under this provision lies on Ms Way, as the appellant. There is no dispute about this and the Board finds that the Health Service is an employing authority. The Board also finds that the appeal is not excluded from the Board's jurisdiction under s 52 of the Public Sector Management Act 1994 (WA) (PSMA) or s 118 of the Health Services Act 2016 (WA) (HSA).

21      There are three relevant questions which the Board must be satisfied about in relation to the decision appealed against, insofar as it is an appeal under s 80I(1)(a). First, whether Ms Way is a public service officer. Second, whether the appeal is against a decision for the purposes of that subsection. And finally, if yes to both of the above, is it a decision in relation to an interpretation of a provision of the PSMA concerning conditions of service other than salaries and allowances of public service officers, noting that Ms Way does not rely upon the decision being in relation to an interpretation of the Public Sector Management (General) Regulations 1994 (WA) (PSMA Regulations).

22      The answer to each of these questions must be "Yes" for Ms Way's appeal to be within the Board's jurisdiction under s 80I(1)(a).

23      The parties' submissions focused only on the question of whether Ms Way was a public service officer. Ms Way, through her agent, relied upon the information contained on the Western Australian Industrial Relations Commission's (WAIRC) website as general guidance as to who is a public service officer and who can appeal decisions to the Board.

24      Ms Way also relied on her evidence and submissions about the information she was or was not provided by her employer and its IR team to assist her in determining whether she was a public service officer, and how she could dispute these matters. Her submission was to the effect that the employer was obliged to "have her back" in the sense of protecting her. These matters of fact were challenged by the respondent. But in any event, it does not have any bearing on the analysis of the jurisdictional issues.

25      Ms Way was unable to obtain Union assistance because she was not a member of a Union at the relevant time. At an earlier directions hearing, the Board encouraged her to seek legal advice. Having Union membership or seeking legal advice may not have changed Ms Way's case, although seeking earlier advice may have put her on a different path to resolving her grievances. Criticising the respondent for not helping her identify if she was a public service officer does not assist her case either.

Is Ms Way a public service officer?

26      "Public service officer" is defined in s 7 of the IR Act to mean a "public service officer within the meaning of the Public Sector Management Act 1994". The PSMA defines, in s 3, "public service officer" to mean "an executive officer, permanent officer or term officer employed in the Public Service under Part 3".

27      Public Service is defined in s 34 of the PSMA as constituted by:

(a) departments; and

(b) SES organisations, insofar as any posts in them, or persons employed in them, or both, belong to the Senior Executive Service; and

(c) persons employed under this Part, whether in departments or in the Senior Executive Service in SES organisations or otherwise.

28      It is common ground that Ms Way was employed by the Health Service as a Level 2, Increment 2 Registered Nurse under the WA Health System ‑ Australian Nursing Federation ‑ Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses ‑ Industrial Agreement 2016. The Health Service is a health service provider established under s 32 of the HSA.

29      Accordingly, Ms Way's appointment and employment is pursuant to Part 9, s 140 of the HSA. Under Part 9, s 104(3) of the HSA, Part 3 of the PSMA does not apply to employees of health service providers. That section provides:

(1) Unless otherwise specified in this Act or by the regulations, the PSM Act applies to administration and management, human resource management and conduct of health service providers and employees under this Act.

(2)  For the purposes of subsection (1) the PSM Act applies as if —

(a)  a reference in that Act to an employee were a reference to an employee as defined in section 6;

(b)  a reference in that Act to an employing authority were a reference to an employing authority as defined in section 103.

(3) The PSM Act Part 3 does not apply to employees.

30      Ms Way was not employed under Part 3 of the PSMA. As she was not employed under Part 3 of the PSMA, she is not a public service officer as defined. She has no standing to bring an appeal under s 80I(1)(a) of the IR Act.

No decision

31      Although it is not strictly necessary to consider this second issue, for completeness, the Board observes that Ms Way's appeal is not from a decision as described in s 80I(1)(a) either. Whether the decision was the decision not to grant permanency or not to renew or offer a further contract, neither decision involved the interpretation of a provision of the PSMA or the PSMA Regulations made under it concerning conditions of service. Ms Way does not refer to any provision of the PSMA or the PSMA Regulations that is said to be the subject of a decision.

32      She does refer to CI 23, but the Board is without jurisdiction to enforce or deal with breaches of Commissioner's Instructions. See Danala v The Minister for Health in his incorporated capacity under s 7 of the Hospitals and Health Services Act 1972 (WA) as the Hospitals formerly comprised in the Metropolitan Health Services Board (the Metropolitan Health Service) [2010] WAIRC 01036; (2010) 90 WAIG 1787.

33      We also refer to the cases which the respondent handed up at the hearing, being the Civil Service Association (Inc.) v Department of Water and Environmental Regulation [2019] WAIRC 00794; (2019) 100 WAIG 138 and Civil Service Association of Western Australia Incorporated v The Director General, Department of Biodiversity, Conservation, and Attractions [2021] WAIRC 00002; (2021) 101 WAIG 58, which are decisions of the Public Service Arbitrator dealing with industrial issues related to CI 23, but under s 44 of the IR Act.

34      In conclusion, because Ms Way is not a public service officer and additionally, because there is no decision under s 80I(1)(a) that is appealed against, the Board is without jurisdiction. Ms Way's appeal must be dismissed for want of jurisdiction.

35      The Board wishes to disavow any criticism of Ms Way for bringing her appeal to the Board or bringing it in the way that she has. It has been observed many times, by many people, including the previous Chief Commissioner of the WAIRC, that the scheme of the IR Act concerning its constituent authorities, particularly the Board and the Public Service Arbitrator, are unduly and unnecessarily complex and confusing.

36      Indeed, in the Ministerial Review of the State Industrial Relations System Interim Report (March 2018), the author, Mr Mark Ritter SC said:

371. As the analysis of this chapter will illustrate, the law in Western Australia with respect to the regulation of public sector employment and the public sector jurisdiction of the WAIRC is bafflingly complex. There is a patchwork maze of provisions that lead only to confusion, uncertainty and the possibility, at least, for unfairness. This is quite contrary to the ideal of an accessible, fair and modern State system.

372. As will be set out, differently characterised public sector employees have different rights of access to the jurisdiction of the WAIRC. The decisions that they challenge vary, as does the remedies that can be granted…

37      In Ms Way's case, the confusion has been compounded by the information she received from the Office of the Parliamentary Commissioner for Administrative Investigations, known in shorthand as the Ombudsman, which we address further below. Regrettably, none of this can change the outcome of this matter.

Extension of time

38      As the Board is of the view that it does not have jurisdiction, there is no call to consider the issue of whether it should extend the time for Ms Way to appeal. Indeed, the Board is without power to consider or determine whether an extension of time should be granted. Having said that, if the Board found it had jurisdiction and had to consider whether to extend time to appeal, it would have declined to grant an extension of time for the following reasons.

39      The Board has power, pursuant to s 27(1)(n) of the IR Act, to extend the prescribed time in which to institute an appeal. Principles that apply in relation to the exercise of the discretion to extend time within which to appeal under s 80I of the IR Act were considered by the Board in Nicholas v Department of Education and Training [2008] WAIRC 01645; (2009) 89 WAIG 817. In that case, the Board applied the principles applied by the Full Court of the Supreme Court of Western Australia and the Court of Appeal, respectively, in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and Chan v The Nurses Board of Western Australia [2007] WASCA 123.

40      These authorities emphasise four main, but not necessarily exhaustive, factors in considering whether an appeal should be accepted out of time. They are:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of the applicant in succeeding in the appeal; and

(d) the extent of any prejudice to the respondent or the Health Service.

41      In Kelly v The Director General, Department of Justice [2002] WAIRC 08164; (2003) 83 WAIG 1283, the following observations were made relevant to the determination of the present matter at [69]:

Until the application for extension is granted, there ought be no assumption made that the extension will be granted as a matter of right. The question is whether the circumstances meet the tests for an extension of time…

(a) Prima facie time limits imposed by the Act are to be complied with and it is for to the applicant to establish the circumstances such that the discretion to extend time should be exercised in his or her favour;

(b) an extension of time is not automatic and the discretion residing with the Commission to extend time is for the purpose of enabling the Commission to do justice between the parties;

(c) it is for an applicant to demonstrate that strict compliance with the legislation will work an injustice and be unfair in all of the circumstances;

…

Length of delay

42      The appeal was filed on 5 November 2020, 58 days after the decision appealed against and 37 days out of time. In the scheme of the time limit of 21 days imposed by reg 107 of the Industrial Relations Commission Regulations 2005 (WA), the delay is significant. This factor cannot be determinative on its own, however, it weighs against the grant of an extension of time.

43      The other relevant factors must involve strong counterbalancing considerations to displace the effect of this factor being weighted against the grant of an extension of time.

Reasons for the delay

44      In her Form 8B – Notice of Appeal, Ms Way provided a copy of an email she sent to the Ombudsman on 10 September 2020, disputing the events of late August 2020, being when the CI 23 review was refused, and early September 2020, in relation to her role, in identical terms as are put forward in this appeal.

45      She received a response to that email on 27 October 2020. The Ombudsman described her complaint as being:

…[A]bout the hospital's decision not to renew your contract or offer you a permanent position.

46      The Ombudsman advises Ms Way that she has a right of reference to the WAIRC, and, under s 14(4) of the Parliamentary Commissioner Act 1971 (WA), the Ombudsman shall not investigate complaints about actions in respect of which the complainant has, or had, a right of appeal, reference, or review to or before a tribunal.

47      It is noted that the Ombudsman does not identify a right of reference to the Board, specifically, but the Board is a constituent authority of the WAIRC. No criticism is made of Ms Way for not identifying the distinction between the WAIRC and the Board. In short, Ms Way says that she did not know she was able to challenge the decision to the WAIRC or the Board until 27 October 2020.

48      She lodged her appeal to the Board relatively soon after the Ombudsman's response. That is, nine days after becoming aware of this avenue of redress. It should be noted as an aside that the Board does not express agreement with, and should not be taken to agree with, the Ombudsman's conclusion that Ms Way had a right of reference to the WAIRC, nor any particular right or remedy available in the WAIRC for the matters referred to in her letter to the Ombudsman.

49      Ms Way may have been ill‑advised by the Ombudsman. It is entirely understandable that she has made and pressed her appeal in these proceedings in light of what she was told by the Ombudsman. Indeed, it may be that Ms Way was right and acted appropriately in the steps she first took to seek redress for her grievances, that is, by making a complaint to the Ombudsman.

Prospects of success in the appeal

50      The appeal does not disclose grounds of such convincing merit that this factor will tilt the balance in favour of granting leave. The appeal does not identify reasons why either the decision not to renew the contract or the decision not to offer permanency were reviewable decisions, nor if they were, why they were unreasonable or unfair, except by reference to another individual working in a different hospital with different qualifications and for a different employing authority. Having said that, the Board accepts that Ms Way subjectively had a genuine expectation of ongoing contracts. In her words, it was not a silly notion, and it was understandable that she would believe she would have her contract renewed in all of the circumstances.

Prejudice to the Health Service

51      The Health Service submits that there is prejudice associated with the delay, particularly in circumstances where the respondent's resources are stretched to meet the demands of dealing with the COVID‑19 pandemic and the management of the vaccination of the Health Service personnel.

52      It is not clear that these are impacts arising from Ms Way's delay in making her appeal or extending the time to make an appeal. However, even the absence of prejudice to the Health Service, is not determinative of whether an extension of time should be granted.

Conclusion

53      The Board does not consider it has jurisdiction, and therefore, the appeal must be dismissed.