Archive: May 20, 2021, 12:00 AM
The Public Service Appeal Board (Board) has unanimously dismissed an appeal by a government officer on the basis that the Board has no jurisdiction to hear and determine the matter.
The appellant was employed by the respondent, the Director General of the Department of Education, as a Public Service Officer.
On 23 September 2020, the Director General made the appellant an offer of voluntary severance by letter. If the appellant wished to accept the offer, he was required to sign and return it by 16 November 2020.
The appellant subsequently contacted the Department of Education to clarify by what date his resignation should be effective in order to receive the full incentive payment of 12 weeks. The Department informed him that his acceptance would need to be dated and returned on 5 October 2020.
The appellant signed the offer for voluntary severance on 5 October 2020 but claimed that the advice concerning the date of response given by the Department of Education was contrary to the date given in the original offer by the Director General.
The appellant contended that he was ‘pushed into having to accept this advice [from the Department of Education] … and missed out on several weeks of pay between 5 October and 16 November 2020’.
The Board noted that it was not in dispute that the appeal centred around a ‘section 94 decision’ and whether the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (Regulations) were fairly and properly applied to him.
The Director General argued that the Board does not have jurisdiction to hear and determine an appeal against a decision made under s 94 of the Public Sector Management Act 1994 (WA) (PSM Act). She claimed the Commission has exclusive jurisdiction to review s 94 decisions.
The appellant contended that the Board has jurisdiction ‘to hear and determine any appeal against a s 94 decision if the regulations referred to in s 94(4) of the PSM Act were not fairly and properly applied to, thereby allowing the Board jurisdiction by way of s 80I of the Industrial Relations Act 1979 (WA) (Act).’
The Board noted that it was clear from the appellant’s submission that his appeal related to whether the Regulations were fairly and properly applied to him. In effect, the appellant appealed a s 94 decision to the Board.
The Board found that, fundamentally, the appellant did not appear to appreciate the distinction between the Commission and the Board. It noted that the appellant did not understand that the Board is not the Commission, but rather a constituent authority of the Commission.
The Board set out its jurisdiction under s 80I and found that it was clear that this section does not confer jurisdiction on the Board to hear appeals of s 94 decisions.
The appeal was dismissed for want of jurisdiction.
The decision can be read here.
The Occupational Safety and Health Tribunal (OSH Tribunal) has affirmed a decision of the Worksafe Commissioner to not grant the applicant a restricted licence to remove non-friable asbestos.
Since 2010, the removal of non-friable asbestos over 10sqm may only be undertaken by a person who has a restricted licence.
The applicant runs his own construction and landscaping business. Prior to this, the applicant worked for two employers and has gained a total of over 20 years’ experience in removing asbestos.
In September 2019, the applicant applied to the Worksafe Commissioner for a restricted licence to carry out asbestos removal work of more than 10sqm of non-friable asbestos containing material.
In December 2019, the Worksafe Commissioner advised the applicant of his decision to refuse the application. The Commissioner found that the experience cited by the applicant was not lawfully obtained and that the applicant had not provided sufficient evidence that he was able to supervise and manage asbestos removal done under a licence. The Commissioner also formed the view that he was not satisfied that the applicant fully understood the regulatory requirements for safe asbestos removal.
The applicant contended that his 20 years of experience, including working on projects where he safely removed and disposed of asbestos of less than 10 sqm, ought to be sufficient evidence to demonstrate he can safely and properly remove asbestos. He submitted that the OSH Tribunal ought to substitute a decision to grant a licence and revoke the Worksafe Commissioner’s decision.
The applicant also submitted that the legislation and regulations does not prevent the Worksafe Commissioner, and the OSH Tribunal, from considering experience gained by the applicant not under a licence.
Commissioner Walkington found that the long-established public policy principle - that no person should benefit from their wrong-doing - applies to this matter. She noted that the law requires that a person undertaking the removal of non-friable asbestos exceeding 10 sqm must be licenced or be supervised by a person who is licenced. Accordingly, the experience in asbestos removal gained by the applicant was contrary to the law and could not be considered by the OSH Tribunal.
Walkington C further noted that the applicant did not provide details of any experience in projects under 10 sqm and did not demonstrate that he had the training and experience to properly supervise and manage asbestos work.
Walkington C also found that the applicant either did not understand the legal requirements or knowingly acted contrary to the legal requirements by removing asbestos without a licence.
Walkington C found that she was not satisfied that the applicant was able to meet the requirements of the Occupational Safety and Health Regulations 1996 (WA) and undertake, supervise and manage asbestos work involving non-friable asbestos containing material in a safe and proper manner.
The OSH Tribunal affirmed the Worksafe Commissioner’s decision.
The decision can be read here.
The hearing will commence at 10:30 AM. Watch below or click here.