The appellant commenced employment as a Probationary Youth Custodial Officer with the respondent in February 2023. His employment was purportedly terminated in March 2024, and he subsequently sought to challenge this decision.

The appellant made several unsuccessful attempts to bring his case before the appropriate authority, including applications under the Industrial Relations Act 1979 (IR Act) and the Young Offenders Act 1994. In August 2024, the matter was referred to the Public Service Appeal Board (the Appeal Board), at which time it was more than four months outside the prescribed 21-day timeframe as stipulated in the Industrial Relations Commission Regulations 2005.

Initially, the appellant, represented by legal counsel, filed an unfair dismissal application under s 29(1)(c) of the IR Act within the prescribed timeframe. The respondent objected to the Commission’s jurisdiction, asserting that the appellant was a “Government Officer” and that the Appeal Board was the appropriate jurisdiction. The appellant’s legal representation changed several times, and he pursued multiple avenues, all of which were ultimately found to be without jurisdiction.

On the merits, the appellant raised several arguments regarding the validity of his dismissal, including:

• The status of his probation at the time of discharge;
• The service and content of the discharge letter; and
• Issues of procedural fairness.

The Appeal Board found that the appellant had an arguable case and considered the prejudice to the respondent to be neutral, noting that the main prejudice cited was the expenditure of resources on other proceedings. The appellant argued that the assessment of delay should consider his earlier, unsuccessful attempts to pursue the matter in other jurisdictions. The respondent contended that the appellant was on notice of the correct jurisdiction in April 2024 and, therefore, the delay should be considered as three and a half months.

The Appeal Board found that the appellant made genuine attempts to seek an independent review and acknowledged the complexity of the regulatory framework for public sector employment in Western Australia. The Appeal Board noted that the original application was made within time, albeit to the wrong authority. Despite the significant delay and the reasons for it, the existence of an arguable case favoured granting an extension of time for the appeal to be heard.

Accordingly, an extension of time was granted.

The decision can be read here.