Archive: Sep 1, 2021, 12:00 AM

PSAB appeal against organisational restructure dismissed for want of jurisdiction

 The Public Service Appeal Board (Board) has dismissed an appeal by a government officer against the decision to change his reporting structure on the basis that the Board does not have jurisdiction to hear or determine the matter.

Background

The appellant is employed by the of the Economic Regulation Authority (ERA) as a Level 7 Project Manager. The appellant accepted the position in January 2018 and reported to an Executive Director. In June 2018, the ERA changed its organisational structure so that all Level 7 employees reported to a Level 8 employee. This decision was communicated to the appellant in November 2018.

The appellant’s health deteriorated following this change, and the appellant made a workers compensation claim. The appellant has since been on leave without pay.

The appellant filed his  appeal against this decision (Reporting Structure Decision) on 1 July 2021, outside of the time for the filing of an appeal.  The appellant sought an extension of time.

The appellant raised an additional issue during the hearing. In June 2021, the ERA requested a resignation from the appellant as a condition of its offer to settle the workers compensation claim. The appellant did not provide this resignation and remains employed on unpaid leave. The appellant sought to appeal against this settlement proposal, as a second decision appealed against (Settlement Proposal).

Contentions

The appellant, who was self-represented, argued that the reporting structure was a material consideration when he applied and accepted the role. The appellant contended that the decision was arbitrary, capricious, and that the ERA failed to consult with staff as required under the Occupational Safety and Health Act 1984 (WA); Public Service Award 1992 (WA); and the Public Sector CSA Agreement 2019 (WA).

The respondent argued that the decisions appealed were not matters within the Board’s jurisdiction. The respondent relied upon statements made in emails to the appellant. In the emails, the respondent told the appellant  that the changes to the restructure were made validly under the Public Sector Management Act 1994 (WA) (PSMA) and that the necessary consultation about the changes were carried out.

The respondent argued that the changes were not substantive; did not alter the role; and did not affect employees’ health or wellbeing. Further, the respondent argued that these changes were applied to all Level 7 employees and did not single out the appellant.

Findings

The Board was required to consider whether the appeal invoked the Board’s jurisdiction, and whether to grant an extension of time within which to appeal.

The Board identified three criteria that must be determined in relation to the Reporting Structure Decision and Settlement Proposal for the Board to have jurisdiction to hear the appeal:

  • Whether these are “decisions” for the purpose of s 80I(1)(a);
  • Whether these are decisions in relation to an interpretation of a provision of the PSMA; and
  • Whether the interpretation concerns conditions of service other than salaries and allowances of public service officers.

The Board determined that the Settlement Proposal had no final determinative or operative effect and could not make any changes to the appellant’s employment unless accepted. The Board concluded that Settlement Proposal was not a decision for the purpose of s 80I(1)(a), and the Board did not have jurisdiction to hear this appeal.

The Board was satisfied that the Reporting Structure Decision had an ultimate and operative effect on the organisational structure of ERA and was a decision for the purposes of  s 80I.

The Board proceeded to consider whether the Reporting Structure Decision related to an interpretation of a provision of the PSMA. The Board found that there was no dispute between the appellant and the respondent in relation to the interpretation of the PSMA. The appellant had failed to identify a question of interpretation, and accordingly, the Board did not have jurisdiction to hear the appeal.

The Board concluded that it was not material to consider the final question of conditions of service. The Board noted, nonetheless, that it would be inclined to the view that the decision does concern conditions of service. The Reporting Structure Decision determines the environment affecting the appellant’s employment because it involves who supervises his work and who he reports to.

The Board further concluded that there was no need to consider the issue of an extension of time but held that   if it was required to determine this issue, it would have declined such an extension.

The decision can be read here.