Archive: May 6, 2021, 12:00 AM

New appointments to the Western Australian Industrial Relations Commission

Two new appointments to the Commission were announced today by the Minister for Industrial Relations the Hon. Stephen Dawson MLC.

Senior Commissioner Kenner, who has been the Senior Commissioner since 2016, has been appointed as the Chief Commissioner from 5 May 2021.

Ms Rachel Cosentino, a barrister at Francis Burt Chambers, has been appointed as the Senior Commissioner from 8 June 2021.

Ms Cosentino has extensive industrial relations and litigation experience. Prior to joining the Bar, Ms Cosentino headed up the General Law Division at Slater and Gordon Lawyers.

The Commission welcomes the new appointments.

Read the full media release here.

PSAB appeal against decision to take improvement action dismissed

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the respondent, the Director General of the Department of Education, to take improvement action against an employee who had been the subject of a disciplinary process.

Background

The employee is employed as an Administrative Officer at the Department of Education. She was the subject of a disciplinary process under s 81(1)(a) of the Public Sector Management Act 1994 (WA) (PSM Act) which began on 16 April 2019.

On 21 July 2020, the employee received a letter from the Department which confirmed that no breach of discipline finding had been made against her and required her to take improvement action pursuant to s 82A of the PSM Act.

The employee appealed this decision to the Board.

Contentions

The employee argued that the Director General did not have the power to order her to undertake improvement action under s 82A of the Act. Her central argument was that the Board should infer from the letter dated 21 July 2020 that the Director General made a positive finding that she did not commit any breach of discipline.

The employee contended that, having found there was no longer any ‘disciplinary matter’ for the purposes of s 82A of the PSM Act, the Director General did not have the power to then direct her to take improvement action.

The Director General denied that she made any disciplinary findings, but said that the legislative framework allows her to take improvement action when no disciplinary findings have been made.

The Director General said that in any event, she was authorised to take improvement action where appropriate under s 29 of the PSM Act.

Findings

The Board found that the Director General did not make a finding ‘of no disciplinary breaches’. It found that there was the absence of a finding, which was not the same as finding that something did not occur.

The Board found that though the investigation was complete and no findings were made, it did not mean that there was no longer any disciplinary matter to empower the Director General to act under s 82A of the PSM Act. The disciplinary matter was still on foot and it was open to the Director General to decide to move away from the disciplinary process and impose improvement action.

The Board considered that the Director General’s decision to impose improvement action was within power under the PSM Act. It found that the Director General did not err in her interpretation of s 81(1) and 82A(2) of the PSM Act when she decided, after the completion of a disciplinary investigation, to move away from disciplinary action and take improvement action.

The appeal was dismissed.

The decision can be read here.