Employee’s Appeal Dismissed: Board Deems Reinstatement Impractical Amidst Secondary Employment Breach

The appellant, who served as an Enforcement Manager at the respondent until his dismissal, challenged his termination, contending that the disciplinary process leading to it was marred by ineptitude, procedural unfairness, and a lack of consideration for relevant factors. His involvement in secondary employment, specifically as a director and shareholder of 'Lancelin Beach Breaks,' had decreased due to personal circumstances, including his wife's health issues. Allegations regarding workplace conduct emerged in 2020, culminating in a suspension in early 2021. In September 2021, an additional allegation related to the respondent’s secondary employment policy surfaced, leading to the appellant’s admission of a breach of discipline. Despite requesting an extension and engaging in the disciplinary process, he was ultimately dismissed in November 2021.

The appellant argued that the dismissal should be adjusted due to flaws in the disciplinary procedure causing confusion, inadequate consideration of personal circumstances and health, diminishing involvement in secondary employment, adherence to legal advice during the process, and the disproportionality of the dismissal to the misconduct. The respondent, however, contended that the dismissal was a justified response to the appellant’s breach of the Public Sector Management Act 1994 (WA) and failure to comply with directives on secondary employment.

The Public Service Appeal Board determined that revoking the dismissal and imposing alternate penalties under the PSM Act would not achieve the objective of compliance with s 102(1) of the Act. Considering the appellant’s demonstrated lack of intent to seek approval for secondary employment, the Appeal Board deemed reinstatement inappropriate, as it would place him in breach of statutory obligations. Consequently, the Appeal Board dismissed the appeal, affirming the impracticality of reinstating the appellant in light of the legal framework governing secondary employment.

The decision can be read here.