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.

The Commission has determined that an employee's contract ended at the initiative of the employer, finding that the Commission has jurisdiction to hear and determine the unfair dismissal application.

Background

The applicant was initially employed on a full-time basis under a fixed term contract by WA Country Health Service (WACHS) as a Cook. At the expiry of the full-time contract, the applicant accepted a second contract from the respondent for casual employment for a fixed period of three month from 25 May 2020 to 25 August 2020. Both of the applicant’s employment contracts were covered by the WA Health System – United Voice WA – Hospital Support Workers Industrial Agreement 2017 (Industrial Agreement).

The applicant received an email from the respondent on or about 21 August 2020 confirming that her contract was at an end as of 25 August 2020 and that no further shifts would be provided to her. On 13 October 2020, the applicant filed an application for unfair dismissal against the respondent, 21 days out of time.

Contentions

The applicant appeared to accept that her engagement was pursuant to a three-month contract. However, she sought an explanation as to why she was offered a three-month contract when the casual position was advertised as an 18-month contract.

The grounds for the applicant’s application comprised a general list of grievances against the respondent in relation to matters arising in the course of employment, rather than addressing whether there was a dismissal, and if so, the fairness of it.

The respondent asserted that the applicant was appointed under a fixed term contract, which ended with the effluxion of time. The respondent contended that there was no dismissal and consequently, the Commission had no jurisdiction to hear or determine the matter under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (IR Act).

Findings

The Commission first considered the effect of the terms of the Industrial Agreement on the applicant’s employment contract. The Commission outlined that under the Industrial Agreement, the applicant’s employment must be categorised as either casual or fixed term, but it cannot be in both categories. As the applicant was engaged and paid on a casual basis, her employment was casual, thus excluding the possibility that it was fixed term.

Further, the Commission noted that the IR Act provides that contractual fixing or limiting of time for the end of the contract is of no effect, to the extent that it is inconsistent with the Industrial Agreement. Accordingly, there can be no agreed term limiting the length of the applicant’s employment.

The Commission determined the applicant’s employment did not end by the effluxion of time, but at the respondent’s initiative. Therefore, there was a “dismissal” for the purposes of the IR Act and the Commission had jurisdiction.

The Commission considered whether to grant the applicant leave to make her unfair dismissal application out of time. Given the applicant’s employment was determined not to be fixed term, and her employment did not terminate by the effluxion of time, the respondent had ultimately dismissed the applicant for misconceived or erroneous reasons. Considering the merits of the case, the Commission granted the applicant leave to make her unfair dismissal application out of time.

The decision can be read here.