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Other government employees

Who are considered 'other government employees'?

An 'other government employee' is an employee who is not employed on the salaried staff of a public authority, and is not a public service officer, but is employed under the Public Sector Management Act 1994 (WA).

Types of applications that can be made

Employees who are not government officers, but are (or were) employed under the Public Sector Management Act 1994 (WA) can make an application to the Commission to appeal the following decisions or findings of their employer in relation to their employment:

  • the decision of their employer to reduce their classification level due to substandard performance; or
  • the decision of the Governor, on the recommendation of the Minister, to terminate their employment (other than a chief executive officer) due to substandard performance; or
  • the decision of their employer to terminate their employment due to substandard performance; or
  • the decision made by the employing authority to terminate their employment as a result of the finding of a special disciplinary inquiry that they have committed a breach of discipline; or
  • the finding of a special disciplinary inquiry that they have committed a breach of discipline; or
  • the decision of their employer to suspend them, pending a decision concerning a breach of discipline or the determination of a criminal charge; or
  • the decision of their employer to take disciplinary action against them as a result of a finding that a breach of discipline has been committed, or where a criminal charge has been proven; or
  • the decision of their employer made or purported to be made under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) concerning their employment; or
  • the termination of their employment while their status was that of a registered employee. A "registered employee" is an employee who is surplus to the resource requirements of a State government department and has been formally registered by their employer for redeployment, retraining or redundancy in accordance with the requirements of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA).

Making an application to the Commission

To appeal a decision or finding of your employer under section 78(2) of the Public Sector Management Act 1994 (WA), you must file a Form 5 – Referral of a matter under the Public Sector Management Act 1994.

  • A referral concerning a decision made by an employing authority in relation to a registered employee's redeployment, redundancy or termination must be made by the employee within 21 days of the date of that decision. If the referral is not made within 21 days, you will need to provide the Commission with reasons as to why the matter should be allowed to proceed.  You should provide reasons for the delay in your Form 5 – Referral of a matter under the Public Sector Management Act 1994. There is no time limit for other appeals filed using a Form 5 – Referral of a matter under the Public Sector Management Act 1994, however, your claim should be pursued within a reasonable time after your employer's decision or finding.
  • Your appeal should be made against your 'Employing Authority'. Generally, this would be the Chief Executive Officer or Director General of the State government agency that you are or were employed by. In most instances, your manager or supervisor is not your employer.

What happens next?

After you file the Form 5 – Referral of a matter under the Public Sector Management Act 1994, the Registrar will serve a copy of the notice of application on each of the parties, other than the appellant. The matter will generally be listed for a conciliation conference. If there is no agreement, the matter will proceed to hearing where the Commission will make a determination on the matter.

Possible outcomes

If your appeal is successful, the Commission may quash the decision or finding and may remit the matter back to your employer.

 

Frequently asked questions

Yes. It is possible for applications to the Public Service Appeal Board and Public Service Arbitrator to be made by you or by your relevant union.

There are generally no other costs associated with your application unless you purchase transcript of the proceedings or summons a witness for hearing. Each party pays their own costs in relation to preparation of their case. This includes legal costs if you decide to engage a lawyer or paid agent to represent you.

The Commission is committed to ensuring its information, facilities and services are accessible to all members of the Western Australian community. For more information on accessibility, please visit our Access and inclusion page.

A referral concerning a decision made by an employing authority (i.e. the Chief Executive Officer or Director General of a State government department) in relation to a registered employee’s redeployment, redundancy or termination must be made by the employee within 21 days of that decision. If the referral is not made within 21 days, you will need to provide the Commission with reasons as to why the matter should be allowed to proceed. There is space to provide this information within the Form 5. The Commission will decide whether the appeal is to be accepted out of time.When the Commission is deciding whether to accept an application out of time, it is up to the applicant to satisfy the Commission that strict compliance with the time limit will ‘work an injustice’.

The Commission will consider the following four principles, weighed together. The applicant does not necessarily have to satisfy every factor if one factor is extremely compelling. However, it will help their case if they can.

  • 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 applicant.
  • Reasons for the delay:
    Importantly, the applicant 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 applicant’s representative, not the applicant themselves, this will favour the applicant.
  • Steps to challenge the decision:
    If the applicant was actively contesting the decision, other than by filing an application to the Commission, this will favour the applicant. Other steps to challenge a decision can include mistakenly filing an application in one of the Commission’s constituent authorities or writing to the employer to challenge the decision.
  • Personal circumstances of the applicant:
    If the applicant 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 application out of time. Inconvenience alone will probably not be adequate.
  • Whether the applicant has an arguable case:
    The merits of the application are assessed ‘in a fairly rough and ready way’. This does not place any burden on the applicant. However, if the employer can establish that the application has no merit, it will be up to the applicant to show that the application does have merit.
  • Prejudice to the employer:
    If the employer can show that they would suffer prejudice if the application is accepted out of time, this will weigh against the application being accepted out of time. The prejudice must be more than the ‘prejudice of having to meet the proceedings.’

The employee and the employer may be represented by another person or they may represent themselves. Parties can be represented by an industrial agent, union or employer association, lawyer, or a relative or friend. Except where the representative is a lawyer, the party being represented must file a Form 11 – Notification of Representative Commencing or Ceasing to Act to confirm that another person is representing them.

An employee can discontinue a claim by filing a Form 1A – Multipurpose Form. If the parties reach agreement, it is generally a requirement that the employee discontinue their claim before the Commission. 

You can contact the Commission's Registry by email, phone or in-person. We also have helpful Fact Sheets which may assist in answering your questions.