Commission dismisses government officer’s unfair dismissal application for want of jurisdiction
The Commission has dismissed a laboratory technician’s unfair dismissal application for want of jurisdiction, finding that she was a government officer, and that the claim instead fell within the jurisdiction of the Public Service Appeal Board.
The applicant was a Laboratory Technician and filed an unfair dismissal application claiming she was unfairly dismissed from her position. The respondent was the Department of Education WA.
The applicant contended she was unfairly dismissed, and her application should be heard by the Commission pursuant her industrial award. The applicant contended that the Fair Work Act 2009 (Cth) and s 109 of the Constitution concerning inconsistency between State and federal laws required her Award and Agreement to be used to determine whether the Commission had jurisdiction.
The respondent sought to have the application dismissed and contended that as the applicant was a government officer her application should be made to the Public Service Appeal Board.
The Commission noted it was not at dispute that the respondent employed the applicant, and it was a State Government Department and a public authority under the Industrial Relations Act 1979 (WA). The Commission found that the issue was whether the applicant was employed ‘on the salaried staff’ of the respondent, as this would mean she would be considered a government officer and the Public Service Appeal Board would have exclusive jurisdiction to deal with the application.
The Commission found the respondent was a ‘State Government Department’ and not a constitutional corporation, the Commonwealth, or a Commonwealth authority, meaning the employment relationship was not covered by the national system. The Commission found that this meant there was no inconsistency between a law of the State and a law of the Commonwealth to be considered. The Commission found that the applicant would be a government officer if they were paid a salary and worked in the ‘administrative, technical and professional ranks’ of the public sector.
The Commission found that the applicant was paid a salary as they were paid a fixed fortnightly amount under their Agreement and Award, and the applicant did not refute this. The Commission found that it did not need to determine the nature of specific duties of the applicant, as the applicant did not refute that she performed clerical and administrative or technical duties, and the parties agreed the Award applied, including a scope clause providing she was ‘employed… in an administrative, clerical or general capacity.’ The Commission found that the applicant was an employee generally employed in the ‘administrative, technical and professional ranks’ of the public sector.
The Commission found that as the applicant satisfied both tests, they were employed ‘on the salaried staff’ and were a government officer. The Commission found it did not have jurisdiction as the applicant was a government officer and dismissed the application. The Commission noted that the respondent was incorrectly identified, but that it was unnecessary to make any findings as to whether the application should be dismissed on this basis.
The decision can be read here.