The Public Service Appeal Board (PSAB) has dismissed an appeal, finding that the decision to terminate probationary employment was not harsh or unreasonable or otherwise effected in a manner that was contrary to the purpose and principles of probationary employment.

The employee was employed by the Director General of the Department of Education (Employer) for a particular project. His employment was subject to an initial six-month probationary period. Around 1 month prior to the end of the probationary period, his manager held a meeting with him to discuss various concerns, which needed to be resolved before the completion of the probationary period. Soon afterwards, the Employer made the decision to "annul" or end the probationary employment, stating that it was because the employee was not appropriate or compatible to continue in the role.

The employee appealed from this decision to the PSAB under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act). The appeal was therefore different in nature to an appeal from a substandard performance process under s 79(1) of the Public Sector Management Act 1994 (WA).

The PSAB was required to consider how to approach an appeal set against a background of performance and conduct concerns, but which did not involve termination following a substandard performance process. The PSAB noted that, as an appeal under s80I(1), it involved the review of the Employer's decision de novo, based on the evidence before it. However, mindful of the purpose and implications of probationary employment as set out in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth [2000] WAIRC 00067; (2000) 80 WAIG 3155, the PSAB was not inclined in this appeal to entirely disregard the Employer's decision, though the appeal was to be determined de novo. The PSAB considered it may legitimately have regard to, and place weight upon, the subjective view of the Employer about the employee's suitability for ongoing employment in determining the appeal. Further, that the employment was probationary, warrants limiting the exercise to rehearing only those aspects of the matter that are strictly necessary to deal with the appellant's grounds of appeal.

In considering the appeal, the PSAB considered four factual issues and found that no adjustment to the decision appealed against was warranted, and therefore the appeal was dismissed.

The decision can be read here.

The Public Service Appeal Board (Board) has dismissed an appeal for want of jurisdiction, on the basis that it had no jurisdiction to hear the matter as the employee was not a public service officer and there was no appealable decision.

The employee was employed by the East Metropolitan Health Service (the Health Service) as a Level 2 Clinical Nurse Anaesthetic Research on a fixed term contract. At the end of the fixed term, and contrary to what the employee was led to expect, neither a further contract nor permanency was offered. The employee lodged an appeal to the Board under s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) after having her complaint to the Office of the Parliamentary Commissioner for Administrative Investigations (Ombudsman) rejected. The Ombudsman rejected the complaint because it said the employee could seek a remedy in the WAIRC. The Health Service objected to the appeal, saying that the decisions being appealed against are not matters within the Board's jurisdiction.

The Board was required to determine whether the employee was a public service officer with standing to appeal a decision under s 80I(1)(a) of the IR Act. The Board found that she was not, and so the Board was without jurisdiction to hear and determine the appeal.

The Board expressed sympathy for the employee for bringing her appeal to the Board it in the way that she had noting that it has been observed many times that the structure of the IR Act concerning its constituent authorities, particularly the Board and the Public Service Arbitrator, are overly and unnecessarily complex and confusing.

In this case, the confusion was also compounded by the information the employee received from Ombudsman.

The decision can be read here.

The Public Service Appeal Board has dismissed an appeal against the decision to take disciplinary action on the grounds that the Appeal Board does not have jurisdiction to deal with or determine the matter.

Background

The appellant was a Registered Nurse employed by WA Country Health Service (WACHS) as a Level 2 Community Health Nurse. On 19 February 2021, the respondent found a breach of discipline had occurred and determined to impose a sanction on the appellant of a reprimand and improvement action.

The appellant complied with the improvement action but disputed the finding of a breach of discipline. On 12 March 2021, the appellant commenced an appeal against the decision.

Contentions

The appellant had no opinion as to whether she was a “government officer” for the purposes of s 80C(1) of the Industrial Relations Act 1979 (WA) (IR Act). However, the appellant wished to continue the appeal within the general jurisdiction of the IR Act.

The respondent argued that the decision the appellant sought to appeal was not within the jurisdiction of the Appeal Board. The respondent contended that although the appellant is employed by a public authority, she is not on the “salaried staff” to bring her within the definition of a “government officer”.

Findings

The Appeal Board considered whether the appellant was on the “salaried staff” of the respondent and accordingly whether the appeal was within its jurisdiction.  

The Appeal Board recognised that although there is no fixed meaning of “salaried staff”, the structure of the employee’s remuneration and the services for which the remuneration is paid should be strongly considered. Specifically, the presence of the following characteristics may indicate “salaried staff”:

• the employee receives a fixed regular payment for their personal services;
• the payments are usually made monthly or quarterly, as opposed to daily or weekly; and
• the employee is in the administrative, technical, and professional ranks of the public sector.

It was determined that despite reference in the appellant’s employment contract to her “salary”, she was paid a wage, calculated by reference to an hourly base rate of pay for the hours she worked. Further, because penalties, allowances and overtime rates were payable depending on the work performed, the appellant’s earnings were not entirely fixed.

The Appeal Board also determined the nature of the services the appellant provided were not for administrative, managerial, or technical services. Therefore, her employment could not be described as being in the administrative or professional ranks of the public service.

The Appeal Board concluded that the appellant did not earn a salary, nor was she a member of the respondent’s “salaried staff”. Therefore, as the appellant was not within the definition of a “government officer” for the purposes of s 80C(1) of the IR Act, her appeal is beyond the Appeal Board’s jurisdiction.

The appeal was dismissed.

The decision can be read here.

The Commission has determined that an employee's contract ended at the initiative of the employer, finding that the Commission has jurisdiction to hear and determine the unfair dismissal application.

Background

The applicant was initially employed on a full-time basis under a fixed term contract by WA Country Health Service (WACHS) as a Cook. At the expiry of the full-time contract, the applicant accepted a second contract from the respondent for casual employment for a fixed period of three month from 25 May 2020 to 25 August 2020. Both of the applicant’s employment contracts were covered by the WA Health System – United Voice WA – Hospital Support Workers Industrial Agreement 2017 (Industrial Agreement).

The applicant received an email from the respondent on or about 21 August 2020 confirming that her contract was at an end as of 25 August 2020 and that no further shifts would be provided to her. On 13 October 2020, the applicant filed an application for unfair dismissal against the respondent, 21 days out of time.

Contentions

The applicant appeared to accept that her engagement was pursuant to a three-month contract. However, she sought an explanation as to why she was offered a three-month contract when the casual position was advertised as an 18-month contract.

The grounds for the applicant’s application comprised a general list of grievances against the respondent in relation to matters arising in the course of employment, rather than addressing whether there was a dismissal, and if so, the fairness of it.

The respondent asserted that the applicant was appointed under a fixed term contract, which ended with the effluxion of time. The respondent contended that there was no dismissal and consequently, the Commission had no jurisdiction to hear or determine the matter under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (IR Act).

Findings

The Commission first considered the effect of the terms of the Industrial Agreement on the applicant’s employment contract. The Commission outlined that under the Industrial Agreement, the applicant’s employment must be categorised as either casual or fixed term, but it cannot be in both categories. As the applicant was engaged and paid on a casual basis, her employment was casual, thus excluding the possibility that it was fixed term.

Further, the Commission noted that the IR Act provides that contractual fixing or limiting of time for the end of the contract is of no effect, to the extent that it is inconsistent with the Industrial Agreement. Accordingly, there can be no agreed term limiting the length of the applicant’s employment.

The Commission determined the applicant’s employment did not end by the effluxion of time, but at the respondent’s initiative. Therefore, there was a “dismissal” for the purposes of the IR Act and the Commission had jurisdiction.

The Commission considered whether to grant the applicant leave to make her unfair dismissal application out of time. Given the applicant’s employment was determined not to be fixed term, and her employment did not terminate by the effluxion of time, the respondent had ultimately dismissed the applicant for misconceived or erroneous reasons. Considering the merits of the case, the Commission granted the applicant leave to make her unfair dismissal application out of time.

The decision can be read here.

The Public Service Arbitrator (Arbitrator ) has declared that an employer is estopped from offering two employees further contracts at a pay level lower than Level 21 of the employer’s pay scale.

Background

The employees are Senior Medical Practitioners under the WA Health System – Medical Practitioners – AMA Industrial Agreement 2016 (Industrial Agreement). The  pay structure  for Senior Medical Practitioners under the Industrial Agreement has a maximum of  Level 18, while  for a Consultant the maximum is level 24.

In February 2007, practitioners employed by the respondent began to be paid according to a new pay scale (Pay Scale), which set out how practitioners could progress according to caseload and academic milestones.  The employees completed a Masters Degree in Clinical Forensic Medicine and progressed to the top level of the Pay Scale - Level 21.

In April 2016, a senior executive approved contract variations which allowed the employees to progress to  Level 23.

In April 2017, the respondent indicated that the Level 23 contract variation would be rescinded, and all new contracts offered to practitioners would align with the pay scale set out in the Industrial Agreement.

The applicant sought a declaration that the respondent is bound by the Pay Scale. The issue of the employees being classified as Level 23 was raised, but later withdrawn by the applicant.

Contentions

The applicant contended that the respondent was estopped from offering employees a contract at a classification level lower than Level 21, on the basis that it would be unconscionable for the respondent to withdraw the Pay Scale.

The applicant presented evidence that the Pay Scale was approved, administered and used by administrators from 2007-2018. The applicant contended that the Pay  Scale was an incentive to entice doctors to do further study so that the service would be a leading service for the respondent and Western Australia.

The applicant submitted that the employees relied on the representation that the Pay Scale would provide a career pathway. The applicant further submitted that by completing the Masters Degree, the employees suffered detriment in time, cost of study and ongoing fees, and the loss of an opportunity to specialise in another field. Further, the applicant submitted that the employees could not reasonably use the Masters Degree obtained anywhere else in Western Australia.

The respondent contended that there was no evidence that the Pay Scale was approved by an officer with the authority to do so. Further, the respondent contended that the completion of the Masters Degree was within the ordinary professional development of the employees.

Notwithstanding that the employees’ work was good, the respondent contended that it would be unfair for the employees to be paid the same as the Consultants employed by the employer, particularly where the employees did not qualify and were not eligible to be appointed to Consultant level.

Findings

The Arbitrator considered the principles of promissory estoppel as set out by Quinlan CJ and Vaughan JA in Wilson v Arwon Finance Pty Ltd [2020] WASCA 137.

The Arbitrator found that the Pay Scale amounted to a representation by the respondent that the SARC doctors would progress up the pay levels as they achieved academic and/or case load milestones.

The Arbitrator considered that the senior executive who approved the above industrial payment had actual authority to do so. The Arbitrator noted, however, that this actual authority may not be necessary for an estoppel to arise.

By approving and applying the Pay Scale, the Arbitrator concluded that the respondent induced and maintained the assumption that the employees would be paid under the Pay Scale, if they obtained the academic qualification and milestone.   This was supported by the evidence led by the applicant that the existence of the Pay Scale was the reason the employees obtained their Masters Degrees.  

The Arbitrator found that the employees incurred financial, temporal, professional and personal costs in the process of undertaking the onerous Masters Degree, notably because the course required inflexible interstate travel requirements, and that this commitment went beyond what was reasonable for ordinary continuing professional development.

The Arbitrator declared that the respondent was estopped from offering the employees a further contract at a lower pay level than Level 21, as set out in the Pay Scale.  It was  determined that such an order was necessary to prevent unconscionability and was proportionate to the detriment suffered by  the employees.

The decision can be read here.