Details 

Created: 17 January 2020

The Public Service Appeal Board (Board) has upheld an appeal and quashed a decision to dismiss the appellant for substandard performance pursuant to s 79 of the Public Sector Management Act 1994 (PSM Act).

The Board drew legal principle from the Full Bench authority Director General, Department of Education v Patrick Guretti (2014), and found that, for the employing authority to form the opinion that an employee’s performance is substandard, two steps must occur:

1. ‘Prima facie’ evidence of substandard performance and a denial, against the evidence, of substandard performance; and
2. A process of investigation, by which facts are ascertained, that results in a finding of substandard performance.

The Board considered a report produced by a third-party consultant on behalf of the respondent. The Board found that the consultant did not conduct anything like an investigation. The report had no analysis of whether the appellant’s performance was substandard or not but was simply a review of the fairness of the process conducted by the employer. The Board noted that, in a letter to the consultant, the Respondent had only asked for what amounted to a review of what had been already done. The Board held that the consultant did not do what was required by section 79(5) of the PSM Act.

The Board then considered the consequences of a failure to comply with s 79(5) of the PSM Act by not conducting an investigation before terminating the Appellant’s employment. The Board found that although legal precedent indicated they could determine the matter in the appellant’s favour because of the failure to comply with the PSM Act, they did not consider it to stand as authority that they must do so. They found that the consequences will depend on an interpretation of what Parliament intended.

In deciding what Parliament intended, the Board was influenced by the following:

1. Parliament intended the Board to conduct appeals by way of hearing de novo;
2. Bodies within the Western Australian Industrial Relations Commission should aim to resolve disputes if it is possible to do so rather than to allow them to continue; and
3. The terms of s 78(5) of the PSM Act.

The Board determined that it may decide the matter on its merits and cure procedural defects at the hearing of the appeal but found that it was not required to under the PSM Act.

The Board decided not to determine the matter on its merits. The Board found it was unable to come to any meaningful conclusion about the appellant’s work performance based on the lack of quality and quantity of evidence before it.

The Board found that the appeal would succeed on the basis that the legislative process provided for by s 79(5) of the PSM Act was not carried out. It also found that it would not remit the matter back to the respondent to recommence investigation of the appellant’s performance.

The appeal was upheld and the decision to dismiss the appellant was quashed.

The decision can be read here.