APPEAL AGAINST THE DECISON TO TAKE DISCIPLINARY ACTION ON 14 OCTOBER 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00213

DELIVERED : MONDAY, 16 May 2022

FILE NO. : PSAB 31 OF 2021

Appellant

AND

Director General, Department of Primary Industries and Regional Development

Respondent

CatchWords : Indsutrial Law (WA) – Public Service Appeal Board – Jurisdiction – Whether provisional decision is a decision to take disciplinary action

Legislation : Public Sector Management Act 1994 (WA)

Industrial Relations Act 1979 (WA)

Result : Appeal dismissed

Representation:

Appellant : Mr P Baeni on his own behalf

Respondent : Mr M McIlwaine of counsel

Case(s) referred to in reasons:

Ihdayhid v Director General, Department of Mines and Petroleum [2012] WAIRC 00949; (2012) 92 WAIG 2097

Smith v Director General ‑ Department of Transport [2012] WAIRC 01093; (2012) 93 WAIG 61

Reasons for Decision

Ex Tempore

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         Mr Prosper Baeni is a Regional Development Officer employed by the Department of Primary Industries and Regional Development (Department). On 14 October 2021, the Department wrote to Mr Baeni advising him that an investigation of allegations of breach of discipline under Part 5 of the Public Sector Management Act 1994 (WA) (PSMA) had been completed. The findings were said to substantiate an alleged breach of discipline.

3         The Department’s letter indicated that the proposed disciplinary action was to permanently reduce Mr Baeni’s salary and classification with effect upon his return to work. The Department also proposed issuing a reprimand at the conclusion of the declassification process.

4         The letter advised Mr Baeni that he had an opportunity to comment on this proposed disciplinary action in writing within 10 working days from receipt of the letter.

5         Following receipt of the letter of 14 October 2021, and before responding to the letter itself or any disciplinary action being taken as proposed, Mr Baeni lodged an appeal to the Board. After lodging the appeal on 5 November 2021, Mr Baeni provided a written response regarding the proposed disciplinary action. He has been certified medically unfit for work in the interim.

6         As at the date of this hearing, no decision has been made in relation to the proposed disciplinary action. There has been an adjustment to the proposed disciplinary action, which is now proposed to be the issue of a reprimand. But no disciplinary action has been imposed.

7         The Department, in its response to the appeal, raised the fact that the “decision” appealed against is a provisional decision only, proposing a form of disciplinary action rather than a decision to take disciplinary action for the purposes of s 78(1)(b)(iv) of the PSMA and s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act). Therefore, the Board programmed the matter for hearing and determination as to whether it had jurisdiction to consider Mr Baeni’s appeal.

8         Mr Baeni filed written submissions and evidence in support of his maintenance of his appeal and his assertion that the Board has jurisdiction. The facts relevant to jurisdiction are not in dispute. In particular, the decision from which Mr Baeni appeals is the decision contained in the letter of 14 October 2021 described above.

9         Mr Baeni’s submissions outlined his view that the findings of breach of discipline were unfair. He characterises the allegations against him as part of bullying and harassment he has experienced at work. He details the impacts of the disciplinary process and responding to the allegations on him, including references to having made a Workers Compensation claim. He details the medical treatment he has been undergoing. In his submissions at the hearing, he reiterated his grievances about the duration of the process, including that a final decision has not yet been made.

10      However, neither his submissions nor the evidence he submitted addresses the question which the Board must determine, that is, whether there is a decision to take disciplinary action enlivening the Board’s jurisdiction. Indeed, Mr Baeni accepts no decision has yet been made.

11      Differently constituted appeal Boards have determined that a ‘provisional decision’ to take disciplinary action, subject to the receipt of further submissions from an affected employee, is not a ‘decision to take disciplinary action’ for the purposes of s 78(1)(b)(iv) of the PSMA: Ihdayhid v Director General, Department of Mines and Petroleum [2012] WAIRC 00949; (2012) 92 WAIG 2097 and Smith v Director General Department of Transport [2012] WAIRC 01093; (2012) 93 WAIG 61.

12      In Ihdayhid an appeal was instituted before the employee provided a response to a proposal to take certain disciplinary action. The employer challenged the competency of the appeal on the ground that it was prematurely filed as the employer had yet to make an appealable decision. The Board upheld that challenge: see [18]‑[19]. The Board reached the same conclusion in Smith in circumstances where the relevant letter from the employer, which the employee purported to appeal, was informing the employee of proposed action intended to be taken in order for the employee to be given a reasonable opportunity to respond to the notification of proposed action. The Board concluded at [18]:

…It is only once the final decision is made, as to the taking of specified action, that an appeal from that decision is competent.

13      This case is indistinguishable from the authorities cited.

14      The Board must be satisfied that it has jurisdiction and power to determine the proceedings before it. If it does not have jurisdiction, it is without power to determine the appeal or indeed take any further steps in the progress of it.

15      On the undisputed facts, it is clear that the decision which Mr Baeni seeks to appeal is not a final decision to take disciplinary action and is therefore not a decision that enlivens a right of appeal under s 78(1)(b)(iv) of the PSMA. Indeed, no such final decision has yet been made. If and when a final decision is made, Mr Baeni will then have a right of appeal. In short, his appeal has been commenced prematurely.

16      Mr Baeni pointed out that the letter of 14 October 2021 contained the following information:

Please also note that you have a right to appeal certain decisions or findings made by the Department as part of the disciplinary process. Appeals must be lodged with the Public Service Appeal Board (PSAB) within 21 days after the date of the relevant decision or finding. Further information is available from the Western Australian Industrial Relations Commission at www.wairc.wa.gov.au.

17      It is perhaps understandable that Mr Baeni would take this to mean that the letter of 14 October 2021 contained a decision from which he could appeal to the Board. However, that is not to say that the letter was inaccurate or misleading. Instead, the most that can be said is that it lacked clarity as to whether the decision communicated in the letter was a decision which could be the subject of an appeal.

18      Of course, even if the letter had suggested that the decision was one that could be appealed, this cannot alter the outcome in this case. The Department cannot unilaterally confer on the Board jurisdiction, which it does not have under the relevant legislation, namely the PSMA and IR Act.

19      We agree that because the 14 October 2021 letter provided Mr Baeni with an opportunity to comment on the proposed actions before such actions would be taken, this indicates clearly that the Department had not yet made a decision to take disciplinary action.

20      Accordingly, as the Board does not have jurisdiction to hear and determine the appeal, the appeal should be dismissed.