Dispute about suspension of public sector employee outside Commission’s jurisdiction
The applicant was employed in the public sector as a Senior Registrar in Psychiatry with the respondent on a 0.2 FTE fixed-term contract from August 2024 to February 2025. By letter in September 2024, the employer confirmed with the applicant that he was not required to attend work until further notice, and in the meantime would be paid in accordance with his fixed-term contract of employment.
The applicant referred the matter to the Commission under the Industrial Relations Act 1979 (WA) (IR Act)’s new provisions about matters relating to public sector employment. The applicant was, seeking reinstatement or an apology, claiming he was suspended from work without adequate explanation, arbitrarily, without reasons or procedural fairness.
The employer applied to have the matter dismissed, arguing that the Commission lacked jurisdiction to hear the matter, the remedies sought by the applicant were unavailable to him, and the application was out of time.
The respondent put forward several arguments including reference to s 23 of the IR Act which prevents the Commission from regulating suspensions if another Act provides an appeal mechanism. The respondent also referred to s 171 of the Health Services Act 2016 (WA) (HS Act), stating that appeals to the Commission are only allowed for suspensions on partial pay or without pay, not full pay. Since the applicant was suspended on full pay, the respondent argued that the matter did not qualify as an “industrial matter” under the HS Act and the IR Act. Additionally, it argued that the Commission could not order reinstatement or an apology in these circumstances.
Commissioner Emmanuel found that only suspensions on partial pay or without pay are industrial matters that may be referred to the Commission. Commissioner Emmanuel concluded that while the applicant was directed not to attend work, he continued to be paid as though working, which did not amount to a suspension under the HS Act. Further, there was no evidence of disciplinary action or a relevant decision under the HS Act, nor could the Commission order reinstatement or an apology, as there had been no dismissal. Accordingly, the application was dismissed.
The decision can be read here.