Details 

Created: 26 February 2020

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the Department of Transport to terminate the employment of a customer service officer for substandard performance pursuant to the Public Sector Management Act 1994 (WA).

The appellant contended that at no time was her performance substandard and that the Performance Improvement Action Plan (PIP) implemented by the respondent raised major procedural and substantive concerns. The appellant also argued that procedural fairness and natural justice had been denied, the investigation process was unduly secretive and that the penalty of dismissal was unfair in consideration of the appellant’s employment record.

The appellant sought a declaration that her performance met the expected standards, the respondent’s adverse findings are set aside, and an order that the respondent reinstate the appellant with continuity of service and reimbursement of loss.

The respondent contended that the appellant had clear opportunities to respond during the investigation, had access to the support required to overcome barriers to meeting expectations, had reasonable opportunity to demonstrate improvement and that the process was conducted in a fair and unbiased manner.

The Board found that given the entirety of the informal and formal processes put in place by the respondent, including a Return to Work Program and the PIP, it could not conclude that the appellant did not have a reasonable opportunity to demonstrate an improvement in her level of performance. The Board held that it was the sheer type and number of basic errors, committed consistently by the appellant over a sustained period, that was of legitimate concern to the respondent.

The Board found that the appellant’s performance had not attained or sustained a reasonably expected level. The Board dismissed the appeal.

The decision can be read here.

Details 

Created: 20 December 2019

The Public Service Appeal Board (Board) has unanimously found that the respondent’s application that a PSAB Board member not sit as a member of the Appeal Board for an appeal be dismissed.

The respondent filed an application that a Board member recuse herself on the grounds of reasonable apprehension of bias. 

The respondent submitted that there was a direct association between the Board member and the appellant by way of their respective relationships with the Australian Medical Association (WA) (AMA). The Board member is a senior industrial officer of the AMA, while the appellant is a member of the AMA. The respondent submitted that by virtue of the Board member’s position with the AMA, her impartiality to the matter would be impeded.

The Board considered the legal principles relating to an apprehension of bias by association, including considerations concerning the nature of the association, frequency of contact and nature of the interest of the person with the decision-maker.

The Board discussed the implications of s 80H of the Industrial Relations Act 1979 (WA) which specifies that the members of the Board shall include two members. It provides that one member shall be appointed by the employer of the appellant as the employer’s representative, and the other as the employee’s representative appointed by the relevant organisation. A person nominated will, by nomination alone, have some association with the body nominating them, as an employee or officer.

In addition, it was noted that Board members, regardless of any necessary association, do not represent the interests of the party that nominated them and are required to act impartially and independently.

The decision can be read here.