The Public Service Appeal Board has dismissed an appeal against the decision to take disciplinary action on the grounds that the Appeal Board does not have jurisdiction to deal with or determine the matter.

Background

The appellant was a Registered Nurse employed by WA Country Health Service (WACHS) as a Level 2 Community Health Nurse. On 19 February 2021, the respondent found a breach of discipline had occurred and determined to impose a sanction on the appellant of a reprimand and improvement action.

The appellant complied with the improvement action but disputed the finding of a breach of discipline. On 12 March 2021, the appellant commenced an appeal against the decision.

Contentions

The appellant had no opinion as to whether she was a “government officer” for the purposes of s 80C(1) of the Industrial Relations Act 1979 (WA) (IR Act). However, the appellant wished to continue the appeal within the general jurisdiction of the IR Act.

The respondent argued that the decision the appellant sought to appeal was not within the jurisdiction of the Appeal Board. The respondent contended that although the appellant is employed by a public authority, she is not on the “salaried staff” to bring her within the definition of a “government officer”.

Findings

The Appeal Board considered whether the appellant was on the “salaried staff” of the respondent and accordingly whether the appeal was within its jurisdiction.  

The Appeal Board recognised that although there is no fixed meaning of “salaried staff”, the structure of the employee’s remuneration and the services for which the remuneration is paid should be strongly considered. Specifically, the presence of the following characteristics may indicate “salaried staff”:

• the employee receives a fixed regular payment for their personal services;
• the payments are usually made monthly or quarterly, as opposed to daily or weekly; and
• the employee is in the administrative, technical, and professional ranks of the public sector.

It was determined that despite reference in the appellant’s employment contract to her “salary”, she was paid a wage, calculated by reference to an hourly base rate of pay for the hours she worked. Further, because penalties, allowances and overtime rates were payable depending on the work performed, the appellant’s earnings were not entirely fixed.

The Appeal Board also determined the nature of the services the appellant provided were not for administrative, managerial, or technical services. Therefore, her employment could not be described as being in the administrative or professional ranks of the public service.

The Appeal Board concluded that the appellant did not earn a salary, nor was she a member of the respondent’s “salaried staff”. Therefore, as the appellant was not within the definition of a “government officer” for the purposes of s 80C(1) of the IR Act, her appeal is beyond the Appeal Board’s jurisdiction.

The appeal was dismissed.

The decision can be read here.