The respondent applied for the dismissal of the proceedings in this matter under the Industrial Relations Act 1979 (WA). The respondent argued that the Commission lacked the power to regulate dismissal in the employment of TAFE lecturers due to the operation of specific sections of the IR Act when read with the Public Sector Management Act 1994 (WA).

In the substantive matter, the applicant filed a Form 1B, seeking a conference related to an unfair dismissal of Mr Whitehurst by the respondent. In reply, the respondent stated that the Commission lacked the power to hear the matter, and Mr Whitehurst could refer the dismissal decision to the Commission under the PSM Act.

The core issue was whether s 23(3)(d) of the IR Act, which limits the Commission’s jurisdiction if there is provision for an appeal in the other Act, applies to s 78(2) of the PSM Act. The applicant denied such a provision, emphasising the distinction between ‘appeal’ and ‘referral’ and citing legislative history. The respondent contended that the words ‘however expressed’ in s 23(3)(d) encompass a broader meaning than ‘appeal’ in other IR Act provisions.

After considering the legislative history, definitions, and purpose of the relevant sections, Commissioner Tsang concluded that s 23(3)(d) applied. Thus, the Commission lacked jurisdiction to hear the applicant’s application. The decision rested on the expansive meaning of ‘appeal’ and the intention to leave review matters under the PSM Act within its limits. Consequently, Commissioner Tsang dismissed the application for want of jurisdiction.

The decision can be read here.