The Public Service Appeal Board (PSAB) has dismissed an appeal, finding that the decision to terminate probationary employment was not harsh or unreasonable or otherwise effected in a manner that was contrary to the purpose and principles of probationary employment.

The employee was employed by the Director General of the Department of Education (Employer) for a particular project. His employment was subject to an initial six-month probationary period. Around 1 month prior to the end of the probationary period, his manager held a meeting with him to discuss various concerns, which needed to be resolved before the completion of the probationary period. Soon afterwards, the Employer made the decision to "annul" or end the probationary employment, stating that it was because the employee was not appropriate or compatible to continue in the role.

The employee appealed from this decision to the PSAB under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act). The appeal was therefore different in nature to an appeal from a substandard performance process under s 79(1) of the Public Sector Management Act 1994 (WA).

The PSAB was required to consider how to approach an appeal set against a background of performance and conduct concerns, but which did not involve termination following a substandard performance process. The PSAB noted that, as an appeal under s80I(1), it involved the review of the Employer's decision de novo, based on the evidence before it. However, mindful of the purpose and implications of probationary employment as set out in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth [2000] WAIRC 00067; (2000) 80 WAIG 3155, the PSAB was not inclined in this appeal to entirely disregard the Employer's decision, though the appeal was to be determined de novo. The PSAB considered it may legitimately have regard to, and place weight upon, the subjective view of the Employer about the employee's suitability for ongoing employment in determining the appeal. Further, that the employment was probationary, warrants limiting the exercise to rehearing only those aspects of the matter that are strictly necessary to deal with the appellant's grounds of appeal.

In considering the appeal, the PSAB considered four factual issues and found that no adjustment to the decision appealed against was warranted, and therefore the appeal was dismissed.

The decision can be read here.

The Public Service Appeal Board (Board) has dismissed an appeal for want of jurisdiction, on the basis that it had no jurisdiction to hear the matter as the employee was not a public service officer and there was no appealable decision.

The employee was employed by the East Metropolitan Health Service (the Health Service) as a Level 2 Clinical Nurse Anaesthetic Research on a fixed term contract. At the end of the fixed term, and contrary to what the employee was led to expect, neither a further contract nor permanency was offered. The employee lodged an appeal to the Board under s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) after having her complaint to the Office of the Parliamentary Commissioner for Administrative Investigations (Ombudsman) rejected. The Ombudsman rejected the complaint because it said the employee could seek a remedy in the WAIRC. The Health Service objected to the appeal, saying that the decisions being appealed against are not matters within the Board's jurisdiction.

The Board was required to determine whether the employee was a public service officer with standing to appeal a decision under s 80I(1)(a) of the IR Act. The Board found that she was not, and so the Board was without jurisdiction to hear and determine the appeal.

The Board expressed sympathy for the employee for bringing her appeal to the Board it in the way that she had noting that it has been observed many times that the structure of the IR Act concerning its constituent authorities, particularly the Board and the Public Service Arbitrator, are overly and unnecessarily complex and confusing.

In this case, the confusion was also compounded by the information the employee received from Ombudsman.

The decision can be read here.