The Public Service Appeal Board (Board) has made directions confining the scope of evidence to be lead in a matter on foot, considering the nature of evidence that should be considered by the Board.

Background

The appellant brought an appeal under s 78 of the Public Sector Management Act 1994 (WA)  and s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (Act), against the decision to terminate her employment.

Broadly, the appellant contends that the dismissal was harsh, oppressive, and unfair because she was given no opportunity to address the decision maker on penalty; the alleged findings of misconduct against her were factually wrong; and if the procedural requirements for taking leave were not met by her, then this failing was condoned by her employer over a long period of time.

Pursuant to programming orders made by the Board, ahead of the Appeal, the appellant filed witness outlines for four witnesses. The respondent applied for orders upholding objections to various parts of the evidence to be led by the appellant, as foreshadowed by the witness outlines.

Contentions

The parties accepted that the evidence must be relevant to the issues in the proceedings. The appellant contended that the evidence sought be adduced is relevant. The respondent submitted that the evidence was not capable of affecting the assessment of the probability of the existence of facts or other issues on the appeal, and as such, is not relevant.

Findings

The Board noted that under ss 80L and 26(1)(b) of the Act, the Board was not bound by the strict rules of evidence. The Board noted, however, that not all evidence should be tendered without limitations, and that the Board should only act on material that is logically probative, but also relevant to the proceedings.

The Board reiterated an appeal of this type involved a review of the respondent’s decision de novo, and that the Board is not confined to considering whether the respondent made the right decision at that time, but rather has a broader scope to consider the appeal based on the evidence.

The Board noted that this hearing would be a ‘re‑trial of the misconduct allegations during which the appellant will have a fulsome opportunity to be heard’, meaning that any procedural issues in the initial disciplinary process would not be relevant.

The Board, noting that no decision had been made on the admissibility of any evidence, made directions that clarified the scope of evidence that may be adduced in the appeal on foot. The application was upheld in part.

The decision can be read here.