)100423591

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF JUSTICE (FORMERLY KNOWN AS MINISTRY OF JUSTICE)

RESPONDENT

CORAM COMMISSIONER J L HARRISON

 PUBLIC SERVICE ARBITRATOR

DATE OF ORDER MONDAY, 15 NOVEMBER 2004

FILE NO/S PSACR 51 OF 2002

CITATION NO. 2004 WAIRC 13300

_______________________________________________________________________________

Catchwords  Public Service Arbitrator – Application to complete implementation of promotion – Actions of Director General and Executive Director unlawful –     – Principles of natural justice and procedural fairness – Whether denied and whether statutory provisions complied with – Actions unfair, unlawful and inappropriate – Order to implement promotion – Industrial Relations Act 1979 (WA) s 80E(1) s 80E(5) s 80E(7); Public Sector Management Act 1994 (WA) s 7 s  9

Result Application granted

Representation

Applicant Mr J Dasey 

Respondent Mr R Andretich (of counsel)

_______________________________________________________________________________

Reasons for Decision

1         The Civil Service Association of Western Australia Incorporated (“the applicant”) applied to the Public Service Arbitrator (“the Arbitrator”) on 17 December 2002 for an urgent conference pursuant to s44 and s80(e) of the Industrial Relations Act 1979 (“the Act”).  The applicant was seeking an interim order pursuant to s44(6)(ba) that the Director General Department of Justice (“the respondent”) not abolish the Level 7 Principal Policy Officer position (P001035) (“the Level 7 position”) or appoint a person other than Mr Neville Jones to that position prior to the final determination of this application.  The particulars of this application as set out in Schedule A to the application are:

 “Mr Neville Jones, a member of the Association, is employed by the Respondent.

 Mr Jones applied for an advertised position of Level 7, Principal Policy Officer, and was interviewed by the selection panel on 10 September 2002.

 On 7 October 2002 the Executive Director approved the panel’s recommendation to appoint Mr Jones to the advertised position.

 On 11 October 2002 a letter was sent to Mr Jones by a Recruitment Officer from the Respondent’s Department advising him that he was the successful applicant and that subject to any appeal pursuant to the Public Sector Standards, he would be appointed to be (sic) position.

 The deadline for the lodgement of appeals pursuant to the Public Sector Standards was 24 October 2002.  No appeals were lodged.

 On 24 October 2002 Mr Jones was advised by the Chairperson of the selection panel, Mr Bill Cullen, that the Respondent himself had forwarded a memorandum to Mr Cullen expressing concerns about Mr Jones’ work performance and “requesting” that referee reports be obtained from specific persons chosen by the Respondent himself.

 Mr Jones received a letter dated 5 December 2002 from Ms Stephanie Withers, Director Human Resources, in which he is advised that he would not be appointed to the advertised position.  The letter further advises that the vacancy will not be filled, and the Respondent is “seriously considering abolishing this position”.

2         At the outset the respondent maintained that the Arbitrator did not have jurisdiction to deal with this application.  After reviewing submissions from the parties on this issue I issued a decision that the Arbitrator had jurisdiction to deal with this application as the subject matter of this application did not relate to a breach of a Public Sector Standard.

3         A number of interlocutory matters and related applications surrounding the appointment of Mr Jones to the Level 7 position delayed the hearing of this matter until June 2004.  In the interim the respondent abolished the Level 7 position in January 2003.

4         As conciliation proceedings did not resolve the issues in dispute, the matter was referred for hearing and determination.  The schedule of memorandum of matters referred for hearing and determination is as follows:

“1. The applicant contends that the following actions were unlawful and should be declared void:

a) The actions of the Director General relating to the construction and forwarding of his memorandum dated 23 October 2002, concerning Mr Neville Jones, and the instructions to officers contained therein; and

b) The actions of the Executive Director, selection panel members, human resources officers and any other officer, in direct response to the Director General’s memorandum dated 23 October 2002, relating to Mr Jones.

2. The applicant seeks the following orders:

a) Within seven (7) calendar days of the date of the issuing of this Order, the respondent is to complete the implementation of Mr Jones’ promotion to the position of Principal Policy Officer Level 7 (position number P001035) so that Mr Jones is substantively confirmed in the position with effect from the date on which the position was advertised.  Mr Jones is to be permitted to perform all of the position’s duties and is to receive all benefits, entitlements, privileges, powers, authority, responsibility, amenities and status which should reasonably accompany the position.

b) Within seven (7) calendar days of the date of this Order the Director General is to e-mail a copy of these Orders and accompanying Reasons for Decision to all staff with email facilities within the respondent’s employ.  No derogatory comments about Mr Jones are to be contained in the email or in any other written communications to staff.  A copy of the email is to be given to staff without email facilities.

Background

1. The Applicant’s member Mr Neville Jones is a permanent Level 6 Public Service Officer employed by the Respondent.

2. Mr Jones applied for a Level 7 vacancy in position 001035 Principal Policy Officer (“the position”).

3. The selection panel interviewed Mr Jones on 10 September 2002 and subsequently assessed Mr Jones as the recommended applicant.  On 26 September 2002 such a recommendation was forwarded to the Executive Director, who had delegated authority to appoint an officer to fill the subject vacancy.

4. On 11 October Mr Jones was advised through a letter from a Recruitment Officer that he had been recommended for appointment.

5. The Director General by memo dated 23 October 2002 requested that the Chairperson of the selection committee, Mr Cullen, consider the referee reports and consult with the Manager Human Resources, before advising Mr Piper of Mr Cullen’s recommendation regarding Mr Jones’ suitability for the position.

6. The appointment of Mr Jones did not proceed.

7. On 5 December Mr Jones received a letter from the Director Human Resources stating that notwithstanding the letter of 11 October the position would not be filled and that as a result of referee reports which had been received the Executive Director felt that Mr Jones was unable to meet the requirements of the vital aspects of the essential criteria.”

Applicant’s Evidence

5         Mr Jones has worked with the respondent for 23 years and his current position with the respondent is a Level 6 Senior Policy Officer, Court Services Division.  Mr Jones gave evidence that he has acted in Level 7 positions with the respondent over the past ten years and he once acted as a Level 8 employee for seven weeks.

6         After Mr Jones applied for the Level 7 position in August 2002 he received the following letter from the respondent, dated 11 October 2002 (formal parts omitted):

 “P001035, PRINCIPAL POLICY OFFICER, LEVEL 7, POLICY, PLANNING & RESEARCH, CJJ DIVISION

 I am pleased to advise that you have been recommended for appointment to the above position.

 Applicants not recommended may lodge a formal application for a review if they are of the opinion that there has been a breach of (sic) standard relating to the recruitment, selection and appointment process.  The period allowed to lodge a formal application for review closes 5.00pm 24 October 2002.

 In view of the requirement to offer unsuccessful applicants the opportunity for review you will appreciate your appointment is not yet assured.  I will advise you further in due course.”

(Exhibit R1)

7         Mr Jones understood from this letter that he would be appointed to the Level 7 position subject to no complaints being lodged prior to 24 October 2002 alleging a breach of a Public Sector Standard.  On or about 23 October 2002 Mr Bill Cullen contacted Mr Jones informing him that the Director General, Mr Alan Piper, had some concerns regarding Mr Jones’ performance and as a result he asked Mr Cullen to obtain referee reports concerning Mr Jones’ suitability for the Level 7 position.  As Mr Jones was concerned about Mr Piper’s actions he raised the matter with the applicant and the respondent’s Director of Human Resources Ms Stephanie Withers.  Mr Jones asked Ms Withers for a copy of the Director General’s letter to Mr Cullen requesting that referee reports be obtained and he was told by Ms Withers that he would be given the opportunity to review the referee reports prior to any decision being made about filling the Level 7 position.  Ms Withers also told him that if the referee reports were ‘fine’ he would be appointed to the Level 7 position.  Mr Jones confirmed that in early November 2002 his representative sent correspondence to the respondent complaining about the requirement that referee reports be obtained and requested that Mr Jones’ appointment proceed, but no response was received.

8         Following is the Director General’s memorandum dated 23 October 2002 which was sent to Mr Cullen (formal parts omitted):

 “Re: Principal Policy Officer (Position No 001035) – Recruitment, Selection and Appointment Process

 Routinely I am advised of senior appointments within the Division.  As such I have recently been advised of the recommended appointment of Mr Neville Jones to the position of Principal Policy Officer within the Community and Juvenile Justice Division.

 It has previously come to my attention that there are some concerns in regards to Mr Jones’ skills and abilities as per the following:

• Deficiency in his ability to engage and consult with stakeholders when developing policies/strategies.

• Deficiency in his ability to develop policies/strategies that meet the needs of the business area.

• Deficiency in his ability to complete projects satisfactorily.

• Deficiency in his ability to play a leadership role within the Department.

• Lacks the confidence of his colleagues to represent the Department at senior decision-making forums.

I have been informed that referee reports were not sought by the panel to clarify Mr Jones’ suitability for the position.  Although, I recognise that this is not a mandatory requirement, given the concerns I have outlined above, I request that the panel seek written referee reports from the following personnel.

• Mr Gary Thompson, Executive Director, Courts

• Mr Stephen Kay, Director Court Development

• Mr Alan Thompson, (Referee nominated by Mr Jones)

• Dr Bob Fitzgerald (Referee nominated by Mr Jones)

I have sought advice from the Human Resources Directorate, which has prepared the attached referee report to be completed by the referees.  Based on the outcome of these referee reports and in consultation with Mr Terry Bransby, Manager HR (CJJ), I wish to be advised of your recommendation regarding Mr Jones’ suitability for the position before any such appointment is confirmed.”

(Exhibit A1.3)

9         On or about 11 December 2002 Mr Jones received the following letter, dated 5 December 2002, from Ms Withers (formal parts omitted):

 “P001035, PRINCIPAL POLICY OFFICER, LEVEL 7, POLICY & PLANNING, CJJ DIVISION

 Notwithstanding the letter of recommendation to the position of Principal Policy Officer P001035, dated 11 October 2002, we regret to advise a decision had been made not to proceed in filling this vacancy.

 In conjunction with your application and interview, your nominated referees, plus two Departmental referees were contacted.  Referee reports provided by Mr Thompson and Dr Kay indicate that there are issues around your appointment to this position.  Drawing from this information Mr Harvey feels that you are unable to meet the requirements of the vital aspects of the essential criteria.

 Also, Mr Harvey is currently looking at the organisational structure within Policy & Planning and is seriously considering abolishing this position, as he believes the structure is ‘top heavy’ and more resources need to be directed to lower level policy positions.

 Appointments in the public sector are subject to the provisions of the Public Sector Management (Examinations and Review Procedures) Regulations 2001.  Accordingly, as an applicant, it is open to you to make application for a review of this process, if you are of the opinion that the Recruitment, Selection and Appointment Standard (see reverse of page 2) has been breached.

 In lodging your claim, specify which part of the Standard you believe has been breached and why, along with a brief explanation as to how the outcome of the selection process has adversely affected you.

 Your claim must be received in this office by 5.00pm, 19 December 2002.  Claims cannot be accepted after this date.  Your claim should be forwarded either by email to humanres@justice.wa.gov.au, fax to (08) 9264 1273, post to The Recruitment Officer, GPO Box F317, Perth  WA  6841, or hand delivered to the Human Resources Directorate, 11th Floor, 141 St Georges Terrace, Perth.”

(Exhibit A1.13)

10      Mr Jones stated that it was only after he received this letter that he was given access to the referee reports (except for Dr Fitzgerald’s report which had previously been emailed to him).

11      Mr Jones stated that the respondent had previously not made him aware of the performance issues raised in the Director General’s letter to Mr Cullen (Exhibit A1.3).  Mr Jones confirmed that his last performance appraisal was conducted by the respondent in 1996.  It was Mr Jones’ view that the Director General’s allegations outlined in the memo dated 23 October 2002 were without substance.

12      Mr Jones gave the following information about the four referees who were asked to prepare reports on Mr Jones subsequent to him being selected for the Level 7 position.  Mr Jones stated that he had worked with Dr Fitzgerald between 1993 and 2001 and that Dr Fitzgerald had a good working knowledge of Mr Jones’ abilities and the work he had undertaken.  Mr Jones stated that he worked with Mr Alan Thompson between 1994 and 2002, he was Mr Jones’ direct manager for a number of years and he worked closely with him.  Mr Jones stated that he had little contact with Dr Kay.  Mr Jones gave evidence that even though he formally reported to Dr Kay he did not deal with him on a day to day basis as most of his dealings were with Ms Lesley McComish as acknowledged by Dr Kay in his report.  Mr Jones stated that Dr Kay would have some knowledge of Mr Jones’ ability but Ms McComish was the person in the best position to assess his work.  Mr Jones confirmed that even though he had worked adjacent to Mr Gary Thompson for approximately eighteen months he had little to do with Mr Jones’ areas of work even though Mr G Thompson signed off on much of his work.

13      Mr Jones stated that as a result of not being appointed to the Level 7 position he has suffered substantial economic loss.  He also stated that the Director General’s opinions about him have become well known within the respondent’s operations and this has had a negative impact on his future career prospects with the respondent and Mr Jones believes that he has become ineligible to take up a permanent Level 7 position within the respondent’s operations as a result of the Director General’s actions.  Mr Jones stated that this dispute has had a negative impact on his health and he was shattered by what has transpired after working for so many years with the respondent.  Mr Jones stated that throughout 2003 he acted in a Level 7 position dealing with policy development and legislation and he was paid at the top level of the Level 7 salary range.  Whilst in this position he stated that there has been no criticism about his work, only positive responses.

14      Mr Jones stated that subsequent to these events Dr Kay discussed with him the possibility of acting in Ms McComish’s Level 7/8 position supervising a number of Level 7 employees, if her position became available.  Mr Jones stated that in the event this vacancy did not arise.

15      Under cross-examination Mr Jones agreed that the letter he received dated 11 October 2002 (Exhibit R1) refers to him being recommended for appointment to the Level 7 position and was not a formal offer of appointment to the position.  Mr Jones then went on to state that based on his knowledge of how the respondent operates he understood the Level 7 appointment would automatically proceed unless an application was lodged alleging a breach of a Public Sector Standard.  Mr Jones understood that this letter formed part of the respondent’s process of making a formal offer to an employee.

16      Mr Jones stated that he had not worked with the respondent’s substantive Executive Director, Mr Robert Harvey, up to the time he was selected for the Level 7 position.  Mr Jones understood that if he was appointed to the Level 7 position this would entail working with Mr Harvey and that he would report to him through Mr Cullen.

17      Mr Robert Carter was the respondent’s Acting Executive Director, Community and Juvenile Justice (“CJJ”) in October and November 2002.  Mr Carter confirmed that he signed off on the selection panel’s recommendation that Mr Jones be appointed to the Level 7 position and certified that the selection panel had followed proper processes.  Mr Carter stated that under the respondent’s selection process a selection report is generated once a selection panel finalises its decision, the appointment process is then reviewed by the respondent’s human resources section and the recommendation is then given to the Executive Director for endorsement.  Mr Carter stated that he had no concerns about the selection process used to fill the Level 7 position and he stated that he had no concerns about endorsing the recommendation that Mr Jones be appointed to the Level 7 position.

18      Mr Cullen was the selection panel’s chairperson for the Level 7 position and he stated that he was allocated this role as the Level 7 position would report to him.  Mr Cullen stated that he believed that the selection panel was competent to make the selection for the Level 7 position.  He stated that there were fourteen applicants for the Level 7 position, that there was a reasonably strong field of candidates and seven applicants were selected to be interviewed.  Mr Cullen stated that Mr Jones was the most competitive applicant and that the selection panel’s decision to recommend him for the Level 7 position was unanimous.  He stated that no referee reports were sought as the selection panel concluded it was not necessary.  Mr Cullen stated that he expected Mr Jones to be appointed to the Level 7 position and he was aware that Mr Carter had endorsed the selection panel’s decision.  Mr Cullen confirmed that after the selection panel had recommended Mr Jones for appointment to the Level 7 position he was later asked to obtain referee reports about Mr Jones.  Mr Cullen stated that Mr G Thompson initially refused to provide a referee report for Mr Jones as he claimed he did not have a strong knowledge of Mr Jones’ work but he did fill out parts of the referee report.  Mr Cullen stated that he was not asked to have Mr Jones comment on the referee reports and the selection panel did not reconvene to consider the reports as the selection panel relied on its previous decision to select Mr Jones on the basis of the information it had at the time and because the selection panel believed it had already made a correct decision to recommend Mr Jones for the Level 7 position.  After obtaining the referee reports as requested Mr Cullen submitted them to Mr Harvey, who had by this time returned to the Executive Director, CJJ, position in November 2002, for his attention.

19      Ms McComish confirmed that she was on the selection panel for the Level 7 position.  She stated that Mr Jones was the most able applicant for the Level 7 position.  Ms McComish stated that she had worked closely with Mr Jones and had been familiar with his work since early 2002.

Respondent’s Evidence

20      Ms Withers gave evidence in chief by way of a witness statement (Exhibit R2).  Ms Withers is currently the respondent’s Acting Director, Business Management, Prisons Division and she has held this position since 23 February 2004.  She was previously the respondent’s Director Human Resources and was in this position when applications were called to fill the Level 7 position.  Ms Withers confirmed that Mr Cullen was the selection panel’s chairperson and that the panel recommended Mr Jones to be promoted to the Level 7 position.  Ms Withers stated that the selection panel followed the recommended selection process which is based on the following:

“(a) Department of Justice Recruitment and Selection Policy, 1996;

(b) Public Sector Standards in Human Resource Management 2001;

(c) Public Sector Management Act, 1994;

(d) Public Sector Management (Examination & Review Procedures) Regulations, 2001; and

(e) Equal Opportunity Act of Western Australia, 1984.”

(Exhibit R2)

21      Ms Withers understood that the selection panel chose not to obtain referee reports as the recommended applicant was well known to panel members and she stated that even though panels are advised to seek referee reports it is not an essential step in the selection process.

22      Ms Withers gave evidence that the letter sent to Mr Jones on 11 October 2002 (Exhibit R1) was not a binding offer by the respondent to Mr Jones for him to be appointed to the Level 7 position and that recommendations for promotion can be withdrawn at any stage for a number of reasons prior to the written confirmation of an appointment.  These reasons include organisational restructures, a redeployee referral or if a breach of process occurred.  Ms Withers stated that a promotion is not considered final until the recommended applicant is provided with a written “offer of promotion” outlining the relevant employment conditions and the recommended applicant accepts, signs and returns the offer to the respondent’s Human Resources Directorate.

23      Ms Withers understood that on 23 October 2002 the Director General, Mr Piper, raised the issue of Mr Jones’ suitability for the Level 7 position with Mr Cullen on the basis that he had previously been made aware of concerns about Mr Jones’ skills and abilities.  Ms Withers confirmed that Mr Piper documented these deficiencies and requested that four referee reports be obtained from four persons nominated by him (two of whom Mr Jones had nominated as referees).  After the requested referee reports were obtained Ms Withers stated that the respondent’s substantive Executive Director, CJJ, Mr Harvey, dealt with Mr Piper’s request.  Ms Withers gave evidence that in his position of Executive Director Mr Harvey had been delegated by the Director General with the authority to select and appoint persons for positions in his division.

24      In a memorandum sent to Ms Withers dated 3 December 2002, Mr Harvey stated that some of the referee reports raised issues about Mr Jones’ appointment to the position and these concerns accorded with his views about Mr Jones.  Mr Harvey also referred to the ‘preponderance’ of Level 7 positions and he stated that consideration was being given to the respondent decreasing its number of Level 7 positions.  Following is a copy of the memorandum sent by Mr Harvey to Ms Withers (formal parts omitted):

 “Re: Appointment Process – Principal Policy Officer P001035

 I refer to the matter relating to the appointment of Mr Jones to the position of Principal Policy Officer within Community and Juvenile Justice.

 It is clear from the referee reports provided by Mr Gary Thompson and Dr Steven Kay that there are some issues around Mr Jones’ appointment to the position of Principal Policy Officer.

 My personal belief is that Mr Jones’ approach does not display a contemporary view of policy development.  This view is that current technology provides policy officers access to vast amounts of knowledge and they are becoming more influencers and managers of stakeholders.  The selection criteria “Relationship Building and Networking” pertaining to this position states that the successful applicant is to have the ‘ability to communicate effectively with diverse audiences, using a variety of strategies, establishing relationships with stakeholders and represent and promote the agency”.  The above-mentioned referee reports question Neville’s ability to do this.

 It is also apparent, within the current organisational structure of the Community & Juvenile Justice Division, that there is a preponderance of Level 7 positions and given this circumstance, serious consideration is being given to creating more operational levels with the Division and decreasing the number of Level 7 positions.  The Principal Policy Officer position may as a consequence be abolished.

 All things considered I have decided not to proceed with filling the vacancy for Principal Policy Officer, P001035.”

(Exhibit A1.10)

25      Ms Withers stated that once Mr Harvey decided not to proceed with filling the Level 7 position she wrote to Mr Jones on 5 December 2002 informing him that the referee reports provided to Mr Harvey indicated that there were issues about his appointment and that the Level 7 position was not being filled as Mr Harvey was reviewing the respondent’s organisational structure.  Ms Withers confirmed that even though Mr Jones had the opportunity to lodge an appeal if he believed the standard on recruitment, selection and appointment had been breached Mr Jones did not apply to have Mr Harvey’s decision reviewed.  Ms Withers confirmed that the Level 7 position was abolished on 16 January 2003.

26      Under cross-examination Ms Withers stated that she believed the referee reports requested by Mr Piper acknowledged Mr Jones’ strengths and weaknesses.  Ms Withers gave evidence that it was unusual for a delegated officer to re-visit a selection panel’s decision after the selection panel’s recommendation had previously been endorsed.  Ms Withers stated that as the person delegated with the power to appoint a person to the Level 7 position, Mr Harvey had the right to reject the selection panel’s decision as long as he did not do so arbitrarily or capriciously.  Ms Withers stated the following:

 “…They have to raise issues with me, and - - it does happen, occasionally, that a delegate will say "No.  We believe the panel has erred", and I say "It is your decision.  You're the one who signs it", so - - but I say to them "You must be clear about what is wrong", and in the case - - with this one, where it was the view that the panel had not addressed this issue, really, of positioning and capacity to influence the agenda within the department, I - - I said to Robert "Well, really, we need to get referees, and they'll either confirm the issues you've raised, or disappear them", but it is always the right of a delegate - - because they actually make the decision - -“

(Transcript page 45)

27      When asked why Mr Jones was unsuccessful in gaining the Level 7 position Ms Withers confirmed that she told Mr Jones that he was unable to meet the requirements of vital aspects of the essential criteria.  When Ms Withers was asked which criteria in particular she was relying on she referred to the reasons outlined in the memorandum from Mr Harvey which stated that:

“The selection criteria “Relationship Building and Networking” pertaining to this position states that the successful applicant is to have the ‘ability to communicate effectively with diverse audiences using a variety of strategies, establishing relationships with stakeholders and represent and promote the agency’. The above mentioned referee reports question Neville’s ability to do this.”

(Exhibit A1.10)

 Ms Withers conceded that three of the four referee reports did not comment negatively about Mr Jones in relation to this selection criteria.

28      Ms Withers was aware that Mr G Thompson was initially reluctant to write a referee report about Mr Jones.

29      Ms Withers stated that she was unaware if any negative assessments about Mr Jones’ ability had ever been put to him.  Ms Withers confirmed that she advised Mr Jones that he would have the opportunity to review the four referee reports prior to a final decision being made about the Level 7 position and she was unaware that Mr Jones had not been given this opportunity prior to the final decision being made not to fill the Level 7 position.  Ms Withers stated that she did not instruct Mr Bransby not to give the referee reports to Mr Jones until after he had received the letter dated 5 December 2002 advising that the Level 7 position would not be filled.

30      Under re-examination Ms Withers confirmed that the letter she sent to Mr Jones on 5 December 2003 conveyed the views of Mr Harvey and were not her personal views.  Ms Withers stated that Mr Jones should have been given copies of the four referee reports and be given the right of reply before any decision was made about the Level 7 position.  Ms Withers confirmed that redeployees may be considered for a position prior to a position being advertised and that on rare occasions if a redeployee becomes available after a position has been advertised then this person may be redeployed into the advertised position in preference to the recommended applicant.

31      Mr Harvey gave evidence in chief by way of a witness statement (Exhibit R4).  Mr Harvey is currently employed by Edith Cowan University as its Executive Dean.  When Mr Jones applied for the Level 7 position Mr Harvey was the respondent’s substantive Executive Director, CJJ.  Mr Harvey stated that the Level 7 position was located in the Policy Planning and Research Branch and indirectly reported to him through the Manager of Policy Planning and Research, Mr Cullen.

32      Mr Harvey confirmed that when Mr Carter was acting in Mr Harvey’s absence he endorsed the recommendation made by the selection committee that Mr Jones fill the Level 7 position.  Mr Harvey stated that he became aware of the Director General’s concerns about Mr Jones’ appointment after receiving a copy of the memo Mr Piper sent to Mr Cullen in his capacity as chairperson of the selection panel.  Mr Harvey stated that he noted the Director General’s concerns and also that the Director General had requested that the selection panel seek written referee reports from Mr G Thompson, Dr Kay, Mr A Thompson and Dr Fitzgerald, the last two of whom were referees nominated by Mr Jones.

33      Mr Harvey understood that after the referee reports were received they were forwarded to him for consideration as he had delegated authority to make the appointment to the Level 7 position.  Mr Harvey stated that he reviewed the referee reports and noted that the reports provided by Mr G Thompson and Dr Kay raised issues concerning Mr Jones’ appointment to the Level 7 position.  Mr Harvey quoted the following from the Level 7 position’s job description which he understood reflected the role of the Level 7 position:

“Principal Policy Officer develops, advocates, promotes and implements community and juvenile justice policy pertinent to statewide (sic) prison services, community justice services and juvenile justice services.  The Principal Policy Officer provides leadership and innovation in community and juvenile justice policy and some legislation and establishes collaborative and cooperative internal and external stakeholder relationships.  The position performs within an environment of competing stakeholders (sic) needs and issues and extensively consult with a wide range of key stakeholders, including external special interest groups.”

(Exhibit R4)

Mr Harvey stated that when taking this description into account he believed that Mr Jones could not bring to the Level 7 position the required leadership and communications skills and it was his view that even though the selection panel may have decided that Mr Jones was the best applicant for the position this did not necessarily justify his appointment to the Level 7 position.  On this basis Mr Harvey determined that Mr Jones did not meet the requirements of the Level 7 position.  Mr Harvey stated that he had acted independently in deciding whether to appoint Mr Jones to the Level 7 position even though he was aware of the Director General’s views about Mr Jones.  Mr Harvey stated that his conclusions about Mr Jones’ suitability for the position were set out in the memorandum he prepared and addressed to Ms Withers dated 3 December 2002 (Exhibit A1.10).  During this period Mr Harvey was also reviewing the organisational structure of the respondent’s Community and Juvenile Justice area and as a result of this review Mr Harvey concluded that the respondent had a preponderance of Level 7 positions which required reducing and substituting with more operational level positions.  Mr Harvey stated that on this basis he determined that the Level 7 position was to be abolished, which he understood occurred in January 2003.

34      Mr Harvey stated that he had some dealings with Mr Jones even though he was employed in a separate directorate.

35      Mr Harvey confirmed that when he decided not to appoint Mr Jones to the Level 7 position he based his decision on the information he knew about Mr Jones as well as the four referee reports.  When asked why he believed Mr Jones was not suitable for the Level 7 position Mr Harvey stated that Mr Jones had a number of strengths including being hard working and conscientious as well as a good knowledge of relevant legislation.  However, the Level 7 position required a person who was able to engage with stakeholders, who was able to produce consensus outcomes in an intelligent fashion, and the position required a person to be an energetic communicator who had an awareness of the political nuances of the issues being dealt with.  It was Mr Harvey’s view that Mr Jones did not have these engagement skills which were necessary for the position.  Even though Mr Harvey was aware that there was a capable field of applicants for the Level 7 position the issue for him was whether the person chosen was capable of meeting the requirements of the Level 7 position.  Mr Harvey stated that he was surprised that Mr Carter signed off on recommending Mr Jones for the Level 7 position.

36      Under cross-examination Mr Harvey stated that the Director General did not ask him to review Mr Jones’ appointment.  He stated that the review of the Level 7 position’s appointment arose from the Director General’s request to Mr Cullen that the selection panel review its decision.  After Mr Cullen wrote to Mr Harvey advising that he did not wish to have anything further to do with the Level 7 position as the selection panel had already made its recommendation Mr Harvey then became involved in the process.

37      Mr Harvey gave evidence that the information contained in his memo to Ms Withers dated 3 December 2002 about Mr Jones not fulfilling the necessary requirements for the Level 7 position was based on Mr G Thompson and Dr Kay’s referee reports.  Mr Harvey stated that he took additional information into account as well as his own judgements about the position’s requirements when deciding whether Mr Jones should be appointed to the Level 7 position.  Mr Harvey conceded that both Dr Kay and Mr G Thompson had limited knowledge of Mr Jones’ work.  Mr Harvey stated that he was unaware if Mr G Thompson and Dr Kay supervised Mr Jones and he stated that he did not obtain a report from Mr Jones’ supervisor Ms McComish about Mr Jones as it was the Director General’s decision who was to provide the referee reports.  When Mr Harvey reviewed the comments regarding the selection criteria relating to relationship building and networking in the four referee reports he acknowledged that three of the referee reports were positive about Mr Jones fulfilling the Relationship Building and Networking selection criteria and one report was silent on this criteria (transcript page 110).  Mr Harvey also conceded that the selection panel concluded that Mr Jones met the requirements of this criteria.

38      Mr Harvey stated that he disagreed with the selection panel’s decision to recommend Mr Jones as the position required additional communication and representation skills than those detailed in the Level 7 position’s selection criteria and Mr Harvey stated that he considered more than what was detailed in the Level 7 position selection criteria relating to relationship building and networking when making his decision not to appoint Mr Jones.

39      Mr Harvey confirmed that he was not aware that Mr G Thompson initially stated that he was not in a position to provide a referee report on Mr Jones.  When asked about Mr Harvey’s familiarity with Mr Jones’ work, Mr Harvey could not recall specific work with which he had been involved but he stated that he was aware that Mr Jones had completed some policy reviews.  Mr Harvey was unaware that Mr Jones did not see the referee reports prior to him making a decision about the Level 7 position and he stated that Mr Jones should have been given the opportunity to review the reports but he conceded that he did not do anything to ensure that this eventuated.  Mr Harvey stated that he did not instruct the referee reports to be withheld from Mr Jones.  When asked if he was aware that Mr Jones had previously acted in Level 7 positions Mr Harvey stated that it would not surprise him nor would this have influenced him in arriving at the decision he made.

40      In re-examination Mr Harvey stated that relationship building was not the only criteria which he took into account when deciding not to appoint Mr Jones to the Level 7 position.  He stated that other relevant skills that Mr Jones lacked included the ability to engage.  Mr Harvey stated that Mr Jones had a traditional style and lacked innovation which was inconsistent with the dynamic nature of the Level 7 position.  He also took into account that the Level 7 position came within his area of responsibility, he had certified the job description for this position, it was a job he had created and he had specific views about how he saw this position being undertaken.

Submissions

Applicant

41      The applicant argues that once the selection panel’s decision was endorsed by the respondent’s acting Executive Director, Mr Carter, then the recommendation to appoint Mr Jones to the Level 7 position had been accepted by the respondent subject to a breach of a standard arising.  The applicant argues that the subsequent interference in that decision by Mr Piper and Mr Harvey was unlawful and the Arbitrator therefore has the power to void Mr Harvey’s decision not to fill the Level 7 Position.  The applicant maintains that in the circumstances it is appropriate to appoint Mr Jones to the Level 7 position and if the position is no longer available then the respondent should regard Mr Jones as a substantive Level 7 employee and deal with him accordingly.

42      The applicant relies on the following submissions in support of its claim that Mr Jones was treated unlawfully by the respondent.

43      The applicant argues that the Commission has the power to review administrative decisions made within the public sector and maintains that the respondent’s actions towards Mr Jones breached the principles of administrative law.  As a public authority the respondent is bound by the principles of administrative law when making decisions about its employees and the Arbitrator must have regard to these principles when assessing this application (Civil Service Association of WA Incorporated v Director General, Ministry of Justice [2002] 82 WAIG 2858; Civil Service Association of Western Australia Incorporated v Director General, Education Department of WA [2002] 82 WAIG 2982).

44      The applicant argues that once the respondent’s Executive Director was delegated with the power to make an appointment to the Level 7 position this decision rested with the Executive Director and therefore there was no legal authority for the Director General to intervene in this decision as once a statutory power is delegated by a delegator to a delegatee the delegator is divested of that power.  This power only then resides with the delegatee and the delegator has no lawful right to exercise or to interfere with the exercise of that power given to the delegatee (Blackpool Corporation v Locker [1947] 1 KB 349).  Further, the applicant argues that once Mr Carter endorsed the selection panel’s recommendation Mr Harvey had no power to revisit the decision.

45      The applicant maintains that the communication of a lawful decision to a person prevents a public authority from altering or withdrawing that decision.  Furthermore, good conscience prevents a public authority from resiling from a lawful decision communicated to the affected party.  In this instance Mr Jones assumed he was the successful applicant for the Level 7 position when he received the letter from the respondent dated 11 October 2002 and the only impediment to him being appointed was whether or not there had been a breach of a Public Sector Standard.  Mr Jones therefore had a reasonable expectation that he would be appointed to the Level 7 position (R v North and East Devon Health Authority, ex parte Coughlan (Secretary of State for Health and another intervening) [2000] 3 All ER 850).  Mr Jones was entitled to rely on the normal processes being utilised by the respondent without the intervention of the Director General or Mr Harvey (Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346).  Further, Mr Jones had no opportunity to review the additional referee reports even though he was told he would be able to do so prior to any final decision being made about the filling of the Level 7 position.  When a reasonable expectation is held, a person should not have their expectations dashed without being given the opportunity to comment otherwise natural justice is denied (FAI Insurances Limited and The Honourable Sir Henry Arthur Winneke and Others [1981-1982] 151 CLR 342).

46      The applicant argues that estoppel and legitimate expectations are matters that sit outside the Recruitment, Selection and Appointment Standard (which deals with the selection process) and does not deal with questions of administrative law and subsequent decision making.

47      The applicant argues that the assessment process for the Level 7 position was concluded when the selection panel’s decision was communicated to Mr Jones.  The applicant argues that after the letter was sent to Mr Jones communicating the decision that he was the recommended applicant the only qualification to his appointment was whether or not a breach of standard was lodged.  The applicant argues that the decision could only be changed if it proceeded on a factually incorrect basis or misleading information was given and in this instance these issues did not arise. The applicant argues that the selection process was not able to be reopened at the Director General’s direction or recommendation nor by Mr Harvey once the selection panel’s decision had already been lawfully made and communicated to the successful candidate.  Even if in this instance Mr Harvey had the power to reopen the process it could only have been a decision made by Mr Harvey and no one else (including the Director General) as Mr Harvey was the person delegated with the power to complete the exercise of filling the Level 7 position.  The applicant argues that the letter from the Director General to Mr Cullen was specifically designed to pressure Mr Harvey into changing the decision to appoint Mr Jones to the Level 7 position.  Mr Harvey’s decision is therefore unlawful and should be declared void (Kevin Charles O’Neill and Commonwealth of Australia [1984] No. V84/59 Compensation).

48      The applicant argues that if the Director General had an issue with Mr Jones’ performance it should have been formally dealt with under the relevant provisions of the Public Sector Management Act 1994 (“the PSM Act”).  Further, the applicant claims that when the decision was made to review Mr Jones’ appointment to the Level 7 position this exercise of power was invalid as it was used for a purpose apart from the purpose that had been delegated to Mr Harvey.  As statutory powers are to be used for the purpose for which they were intended they cannot be used for improper purposes, or beyond the sound range of discretion (The Queen v Toohey; Ex parte Northern Land Council [1980-1981] 151 CLR 170).  The applicant argues that the power to promote officers, cannot lawfully or properly be used to performance manage an officer, or penalise an officer for perceived substandard performance, when no issues of substandard performance have previously been put to the officer, and no substandard performance processes have been applied to the officer.

49      The applicant argues that an administrative decision is flawed if irrelevant factors are taken into account.  The applicant maintains that Mr Harvey took an irrelevant consideration into account when he allowed the Director General’s comments about Mr Jones’ alleged performance deficiencies to interfere with the implementation of Mr Jones’ promotion, and/or to revise the selection panel’s decision.  In this instance general knowledge about Mr Jones should not have been taken into account as this knowledge was irrelevant and did not demonstrate that Mr Jones did not fulfil the essential selection criteria for the Level 7 position (Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1985-1986] 162 CLR 24).

50      The applicant maintains that the respondent caused serious harm to Mr Jones, both personally and professionally, by the Director General putting views about his perceptions of Mr Jones’ alleged substandard performance in writing to the selection panel, which ultimately led to Mr Jones’ promotion not going ahead.  The respondent did not therefore act from a fully informed, reasonable, proper and lawful basis.  Mr Jones’ reputation, professional standing, career prospects and self esteem have been seriously damaged by the respondent’s actions and Mr Jones has suffered substantial harm due to the Director General’s actions and his long term prospects within the respondent’s operations have been stymied given the Director General’s views on Mr Jones.  Additionally Mr Jones has incurred a significant financial detriment by not having his promotion to a substantive Level 7 position implemented, and taking into account superannuation consequences, this will result in an ultimate loss to Mr Jones in the long term in the vicinity of $100,000.

51      The applicant argues that Mr Jones was denied natural justice and procedural fairness given the actions of the Director General and the Executive Director in relation to Mr Jones’ non-appointment to the Level 7 position.  Further, the applicant maintains that the respondent breached ss7-9, s70 and s79 of the PSM Act in its treatment of Mr Jones.

52      The applicant maintains that it is not open to the respondent to review a decision after an initial decision has already been made unless errors or omissions were made.  The applicant maintains that as there was no error or omission in this instance then the power to overturn or review an administrative decision was not open to the respondent (Venture Management Limited v Commissioner of State Taxation [unreported] delivered 5 June 1991; Waltons Stores (Interstate) Ltd v Maher [1988] 164 CLR 387).

Respondent

53      The respondent maintains that the letter sent to Mr Jones on 11 October 2002 (Exhibit R1) was not an offer of appointment or an appointment in itself.  It merely advised Mr Jones of the outcome of the selection process and that he had been recommended for appointment to the Level 7 position.  Even though it was reasonable for Mr Jones to be optimistic that his appointment would follow there was no automatic right that this appointment would proceed nor was the respondent precluded from not implementing the selection panel’s recommendation.  Ms Withers gave evidence that the letter sent to Mr Jones dated 11 October 2002 did not constitute a binding offer of promotion and whilst rare, recommendations by selection committee are not always implemented.  A promotion is not considered final until an applicant was provided with a formal offer that had been accepted, signed and returned to the Human Resources Directorate and such an offer was not made to Mr Jones.  As Mr Harvey determined that Mr Jones’ appointment should not proceed, Mr Jones was then advised that he was not to be appointed.

54      The respondent concedes that as part of the review of the selection committee’s decision Mr Jones was not provided with the opportunity to comment on the referee reports obtained at the request of the Director General.  However, the respondent maintains that the PSM Act does not expressly or by implication require an applicant for appointment or promotion to be accorded a hearing before the employing authority, if the employing authority decides to refuse his or her appointment on material which is adverse to that applicant unless he or she has a legitimate expectation of such a hearing and even though Mr Jones may have had an expectation of being able to respond to the referee reports obtained before the decision was made this hearing would not have changed the outcome (Stead v State Government Insurance Commission (1986) CLR 141).

55      The respondent submits that there is no prohibition on the respondent bringing to the attention of its delegatee (in this case Mr Harvey) matters which the Director General felt may be relevant to Mr Jones’ appointment.  It was then open to Mr Harvey to determine what influence if any those matters may have on his decision provided he exercised an independent mind in making this decision.

56      The respondent maintains that Mr Harvey was entitled when making his decision whether to appoint Mr Jones to the Level 7 position to take into consideration any relevant material coming into his possession (Minister for Aboriginal Affairs v Peko-Wallsend Limited & Ors [op cit]).  Furthermore, s59(1)(a) of the Interpretation Act 1984 provides that where a written law confers power on a person to delegate the exercise of any power or the performance of any duties conferred or imposed upon him or her under a written law, such delegation shall not preclude a person so delegating from exercising or performing at any time a power or duty so delegated.

57      Even though a delegation was made in this case, under s33 of the PSM Act, the Director General is still able to exercise the power of appointment at any time.  In this case the Director General did not exercise his power of appointment but, if the applicant’s submissions are accepted then the Director General was able to exercise this power himself or through Mr Harvey given s59(1)(a) of the Interpretations Act 1984.

58      The respondent rejects the applicant’s submissions that the Commission should review the decision not to appoint Mr Jones on the basis of illegality in the administrative sense.  The respondent maintains that judicial review of an administrative act is the province of the superior courts and the power to undertake judicial review is within the exclusive province of the Supreme Court as part of its inherent jurisdiction and no state courts or tribunals have been conferred with this power.  The respondent concedes that as part of its arbitral functions the Commission can review the exercise of statutory powers in connection with an employees’ employment but this is not the same as arguing that the Commission can engage in judicial review and declare the exercise of power as being unlawful and therefore invalid.

59      The respondent concedes that it is within the Commission’s jurisdiction to determine whether the conditions imposed by statute have been satisfied before a power provided to an employer in connection with an employee’s employment can be exercised (Civil Service Association of WA Incorporated and Director General, Ministry of Justice [op cit]).  The respondent argues that this case however is not authority for the proposition that the Commission has jurisdiction to generally engage in the judicial review of decisions made by public authorities in connection with employment.  It is simply authority for the proposition that where the statutory prescribed conditions in connection with an employment power are not met the Commission may declare a decision made ultra vires and therefore void, as opposed to finding it unfair.

60      The respondent submits that the Commission should not order that the respondent re-establish the Level 7 position and order that Mr Jones be appointed to this position based on Mr Jones having a legitimate expectation that he would be appointed to this position.  The respondent maintains that a judicial review can only focus on the process and if the process is flawed then the only order that can issue is that the decision was invalid and that the decision needs to be made in accordance with the law – there can be no examination of the merits.

61      The respondent rejects the applicant’s claim that there was any evidence that the refusal to appoint Mr Jones was to punish him for alleged deficiencies in his performance.

62      The respondent maintains that if the Commission finds that it can review the decision not to appoint Mr Jones then there is no power to require the respondent to appoint Mr Jones to the Level 7 position as the Commission then becomes involved in determining the merit and fairness of the decision not the lawfulness of the decision.  As these matters are covered by the Recruitment, Selection and Appointment Standard, under s80E(7) of the Act, the Arbitrator’s jurisdiction is therefore excluded from dealing with the matter and if Mr Harvey’s decision is to be set aside on the basis of judicial review any further decision cannot be made under the Arbitrator’s jurisdiction given the existence of this Standard.  Further, the respondent submits that any order that the Commission issues that the respondent appoint Mr Jones to the re-established position would be beyond the Arbitrator’s jurisdiction because of the operation of s80E(7) of the Act.  The respondent argues in any event that no order should be made because of the substantial time delay in hearing this matter.

63      As the position that Mr Jones applied for has been abolished there are doubts about the Arbitrator’s power to require the position to be re-established and at the very least such an order should not be made in the public interest as it is generally the province of an employer to determine the structure of its business, the qualifications of the people they will employ and who they will employ and the Commission should not lightly interfere with this right (Western Australian Prison Officers’ Union of Workers v Hon Minister for Corrective Services [1989] 69 WAIG 2217; Re Cram and Others Ex parte NSW Colliery Proprietors’ Association Limited and Others [1987] 163 CLR 117 at 136-137; Amalgamated Metal Workers and Shipwrights Union of Western Australia and Others v Robe River Iron Associates [1986] 67 WAIG 2).

Findings and Conclusions

Credibility

64      I listened carefully to the evidence and carefully observed each witness whilst they gave their evidence.  In my view each witness gave their evidence honestly and to the best of their recollection.  However, I qualify this by saying that in my view Mr Harvey was tentative and unconvincing when giving evidence about the basis on which he determined that Mr Jones was unsuitable to be appointed to the Level 7 position.

65      Even though the Level 7 position was abolished in January 2003 the applicant is seeking an order that Mr Jones’ selection for the Level 7 Position be finalised by Mr Jones being appointed to this position with effect from the date on which the position was advertised and that Mr Jones be permitted to perform the duties and receive all of the benefits, entitlements and privileges which accompany the Level 7 position.  The respondent opposes the order sought and claims that it had every right not to appoint Mr Jones to the Level 7 position even though he was recommended by the selection panel for appointment to this position.

66      I have already found that in this instance the Arbitrator has jurisdiction to deal with this application as the applicant’s claim does not relate to a breach of a public sector standard, specifically the standard applying to recruitment, selection and appointment (Civil Service Association of Western Australia Incorporated v Director General Department of Justice [2004] 84 WAIG 869).  In arriving at this decision I accepted that the applicant’s complaint relates to whether or not the Director General and Mr Harvey acted in a lawful manner when they became involved in the appointment process for the Level 7 position after the selection panel decided to recommend Mr Jones for appointment to this position and after this decision was endorsed by Mr Carter who, as the respondent’s acting Executive Director CJJ, was delegated with the responsibility of filling the Level 7 position.

67      I reject the argument raised by the respondent at the hearing that the Arbitrator does not have the power to review the actions of both Mr Piper and Mr Harvey in relation to this matter as such a review would constitute the judicial review of an administrative act which is the province of superior courts.  The Full Bench decision in Civil Service Association of Western Australia Incorporated v Director General Ministry of Justice (op cit) is authority confirming that the Arbitrator has express power when dealing with an industrial matter relating to a government officer to review, nullify, modify or vary any act of a Chief Executive Officer as an employer which is invalid and to give any relevant orders or directions, which can review, modify, vary or nullify such an act when statutory provisions in connection with an employee’s employment are not met.  At  p2862 of this decision his Honour, the President stated:

“There was also a submission that there was no jurisdiction in the Commission to declare the transfer invalid because what was being sought was the judicial review of an administrative act.  That, it was submitted, on behalf of the respondent, was outside the jurisdiction of the Commission constituted by the Arbitrator, which, so constituted is not a superior court.  Jurisdiction in this matter was said to be conferred, as I have said, by s.80E of the Act.

S.80E(1) of the Act reads as follows:-

“(1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally.”

S.80E(5) of the Act prescribes what the Arbitrator may do in the exercise of his jurisdiction.  S.80E(5) reads as follows:-

“80E. Jurisdiction of Arbitrator:

(5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any Government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.”

The section seems to prevent the Arbitrator interfering with any employer’s exercise of its/his/her duties under the section in relation to any government officer or office under the administration of the employer in relation to any matter within the jurisdiction of an Arbitrator.

However, it is clearly and unambiguously prescribed in s.80E(5) as follows, namely that:-

“any act, matter or thing done by an employer in relation to any such matter ((ie) within the jurisdiction of an Arbitrator), is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him or his jurisdiction in respect of that matter under this Division.”

It is quite clear, therefore, that the decision to transfer and the request or direction for transfer of Ms Bowles was within the jurisdicition (sic) of the Arbitrator.  I say that for the reason which I express hereinafter.

The purported transfer of Ms Bowles was the act, matter or thing was liable to be reviewed, nullified, modified or varied by the Arbitrator in this case.  That is so because it was an act, matter or thing purported to be done or done by an employer as prescribed in the PSM Act, s.80(E)(5), in relation to a matter within the jurisdiction of the Arbitrator.  The purported transfer was clearly a matter within the definition of “industrial matter” in s.7 of the Act because it affected or related to or pertained to the work privileges, rights or duties of both the employer and the employee in an “industry” as defined in s.7.

Accordingly, it was open to the Commission to find that it was unlawful, or ultra vires by way of the review, or to enable the Arbitrator to modify or vary the act of the respondent.

Most cogent in this case is the power which exists under s.80E(5) of the Act to nullify.  To “nullify” means, in its most relevant definition “To render or declare legally void or inoperative: to nullify a contract” (see “The Macquarie Dictionary” (3rd Edition)).

There is also, therefore, expressly conferred on the Arbitrator the power to nullify ((ie) to render or declare void the decision and other acts matters or things done to effect or to attempt to effect) the transfer to Hakea Prison of Ms Bowles.  Equally as cogent is the express power to review contained in s.80.E(5).

Since the express power and jurisdiction exists to nullify any act of the Chief Executive Officer, as an employer, it follows that the Arbitrator is not prevented from doing acts or giving orders or directions which are usually confined to the process of judicial review in a court in order to review, modify, vary or nullify such an act.  If there was a restriction on that power, Parliament would have expressly said so.  It did not.  Further, the act sought to be reviewed clearly fits within the definition of an “industrial matter” as it appears in s.7 of the Act (see also s.80E(1)).  I would therefore find that the power to nullify, modify or otherwise deal with the decision to transfer in accordance with the Act was within jurisdiction.  I say that because the decision to transfer Ms Bowles and the purported transfer of Ms Bowles was an act which affected and directly related to the rights, duties and obligations of both an employer and an employee in an industry as defined.  The act sought to be nullified, modified, reviewed or varied was and is an act, matter or thing done by an employer in relation to a matter within the jurisdiction of the Arbitrator namely an industrial matter relating to a government officer (see s.80E(1)).  It is therefore within jurisdiction whether the act complained of is or was an administrative act or not.

There was, therefore, clearly, express jurisdiction to vary modify or indeed to render void by declaration all or any of the acts, matters or things done effected or attempted to be done or effected by the respondent.

In that this related to what was done or sought to be done pursuant to statutory power under the PSM Act there was clear jurisdiction to nullify, vary or modify what was done.

The Ishmael Case (op cit) is authority for a number of propositions.  These include S80E(7) of the Act which deprives the Arbitrator of jurisdiction to enquire into or deal with or refer to the Commission in Court Session or the Full Bench any matter in which a procedure referred to in s.97(1)(a) of the PSM Act is or may be prescribed under that Act.

However, the question for the Arbitrator was not and could never be whether there was a breach of the prescribed standards, because the prescribed standards could only be applicable to an act of transfer or purported act of transfer which was lawful and/or within power, not one which was void.  S.97(1)(a) of the PSM Act does not operate in its terms, it is trite to observe, to deprive the Arbitrator of jurisdiction to determine whether there is a valid exercise of power under s.65 of the PSM Act.  Indeed, it confers it.”

68      It is not disputed in this case and I find that Mr Jones is a government officer and that this issue concerns an industrial matter as defined in the Act as it relates to Mr Jones’ rights as an employee.  In this instance the question to be determined is whether Mr Piper and Mr Harvey engaged in a valid exercise of power when Mr Piper became directly involved in the selection process for the Level 7 position.  It is therefore my view that the Arbitrator has the jurisdiction to deal with this application.

69      The respondent and its employees are required to adhere to the requirements of the PSM Act and the Western Australian Public Sector Code of Ethics (“the Code”) (see s30 of the PSM Act) at all times when fulfilling their roles and functions.  It is also the case that public sector departments and agencies are subject to the general principles of administrative law when applying statutory rules, regulations and acts of Parliament (Civil Service Association of Western Australia Incorporated v Director General, Education Department of WA [op cit]).

70      It was not in dispute and I find that after Mr Piper and Mr Harvey became involved in the Level 7 position’s selection process this resulted in the selection panel’s recommendation that Mr Jones be appointed to the Level 7 position and Mr Carter’s endorsement of the selection panel’s decision effectively being overturned and even though Mr Jones was unanimously chosen by the selection panel as its preferred candidate for the Level 7 position and the selection panel’s decision had been ratified by the person delegated by the Director General to fill this position Mr Jones was not appointed to the Level 7 position.  The relevant sequence of events is as follows:

1. After Mr Jones applied for the Level 7 position he was interviewed on 10 September 2002 along with a number of other competitive applicants.  Mr Jones was subsequently assessed by the selection panel to be the recommended applicant for appointment to the Level 7 position and the respondent’s then Acting Executive Director CJJ, Mr Carter, who had been delegated by the Director General, Mr Piper, with the authority to fill the Level 7 position endorsed the selection panel’s recommendation on 7 October 2002.  This confirmation was then forwarded to the respondent’s Human Resources Department for further action.  As part of the respondent’s customary processes I find that Mr Jones was formally notified by letter on or about 11 October 2002 that he had been recommended for appointment to the Level 7 position and that his appointment was not yet assured due to ‘the requirement to offer unsuccessful applicants the opportunity for review’ (Exhibit R1).  Even though it is clear that this letter did not constitute a formal offer of employment to Mr Jones for the Level 7 position, I find that when Mr Jones was sent this letter confirming him to be the selected candidate Mr Jones was advised that he would be appointed to the Level 7 position subject to whether or not a complaint was lodged in a specified time frame by one of the unsuccessful applicants claiming a breach of the standard relating to the recruitment, selection and appointment process.  In the event, no complaint was lodged within the required timeframe by any applicant for the Level 7 position alleging any breach of this standard.  I accept that when considering applicants for the Level 7 position the selection panel carried out its functions in an appropriate and transparent manner even though the selection panel chose not to obtain referee reports for Mr Jones as Ms Withers confirmed that obtaining referee reports is not an essential step in the selection process for a selection panel.  I also accept Ms Withers’ evidence that the selection panel followed the respondent’s recommended selection process taking into account the guidelines outlined in the Department of Justice Recruitment and Selection Policy, 1996, the Public Sector Standards in Human Resource Management 2001, the PSM Act, the Public Sector Management (Examination & Review Procedures) Regulations, 2001 and the Equal Opportunity Act of Western Australia, 1984.  A review of the selection panel’s report confirms that Mr Jones was assessed as meeting all of the essential selection criteria for the Level 7 position, he was considered to have outstanding skills and experience in a number of relevant areas and he was considered to be the most competitive candidate for the Level 7 position (Exhibit A1.1).

2. On 23 October 2002 Mr Piper wrote to the selection panel’s Chairperson, Mr Cullen, detailing a range of general performance concerns about Mr Jones and requesting that the selection panel seek written referee reports about him from four persons, two of whom were referees nominated by Mr Jones and two of whom were nominated by Mr Piper.  Attached to this memorandum was a pre-prepared referee report which had been prepared after Mr Piper sought advice from the respondent’s Human Resources Directorate.  Mr Piper’s memorandum to Mr Cullen concluded with the statement “Based on the outcome of these referee reports and in consultation with Mr Terry Bransby, Manager HR (CJJ), I wish to be advised of your recommendation regarding Mr Jones’ suitability for the position before any such appointment is confirmed.”.

3. After the referee reports were obtained the selection panel decided not to review its original decision to recommend Mr Jones for appointment to the Level 7 position as it believed it had already fulfilled its functions and had no further role to play in the process.

4. By this point Mr Harvey had returned as Executive Director CJJ and instead of the selection panel’s decision not to review its decision to recommend Mr Jones for appointment to the Level 7 position being referred back to Mr Piper as instructed Mr Harvey became involved in the filling of the Level 7 position.  After Mr Harvey reviewed the referee reports he sent a memo to Ms Withers on 3 December 2002 advising her that as there were issues about Mr Jones’ capacity to fulfil the Level 7 position and as he was considering a restructure of the Policy and Planning area and the possibility that the Level 7 position may be abolished, he advised her that the Level 7 position would not be filled (Exhibit A1.10).

5. On 5 December 2002 Mr Jones was notified by Ms Withers that notwithstanding the letter sent to him on 11 October 2002 advising him that he was the recommended applicant for the Level 7 position, he would not be appointed to the Level 7 position on the basis of the referee reports received from Mr G Thompson and Dr Kay and Mr Harvey’s personal belief that Mr Jones’ approach did not meet the requirements of ‘vital aspects of the essential’ selection criteria.

6. In the interim Mr Jones’ representatives had written to the respondent complaining about the selection process being reopened and seeking that Mr Jones be appointed to the Level 7 position however, the respondent did not reply to this correspondence.

71      It was not in dispute and I find that the Director General delegated the power to fill the Level 7 position to the Executive Director CJJ and that the Director General has the power to make this delegation under s33 of the PSM Act.  Even though the Director General divested himself of the power of appointment for the Level 7 position I accept that the Director General was not precluded from exercising or performing at any time this power or duty which was so delegated (see s59(1)(a) of the Interpretation Act 1984).  It is my view however that there is not an unfettered right on the part of the delegator to interfere in the selection process or to seek to take over the selection process unless the delegator him or herself exercises this power in accordance with proper procedures and processes applying in the public sector as well as the relevant statutes.

72      I find that Mr Piper acted inappropriately and contrary to the statutory requirements on him by writing the memo to Mr Cullen on 23 October 2002 and initiating a review of the selection process for the Level 7 position as it is my view that Mr Piper did not have the power to interfere in the selection process in the way he did.  I find that in doing so Mr Piper’s actions were contrary to a number of the provisions of the PSM Act and the Code and the requirement on him to adhere to the necessity to afford an employee the right to procedural fairness.  Even though I accept that there was no prohibition on the Director General bringing to the attention of his delegate (Mr Harvey) matters which he believed may have been relevant to Mr Jones’ appointment, in this instance this is not what took place.

73      I have based my conclusions on the following.  Sections 7 and 9 of the PSM Act read as follows:

“7. General principles of public administration and management

The principles of public administration and management to be observed in and in relation to the Public Sector are that — 

(a) the Public Sector is to be administered in a manner which emphasises the importance of service to the community;

(b) the Public Sector is to be so structured and organised as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities;

(c) public sector bodies are to be so structured and administered as to enable decisions to be made, and action taken, without excessive formality and with a minimum of delay;

(d) administrative responsibilities are to be clearly defined and authority is to be delegated sufficiently to ensure that those to whom responsibilities are assigned have adequate authority to deal expeditiously with questions that arise in the course of discharging those responsibilities;

(e) public sector bodies should have as their goal a continued improvement in the efficiency and effectiveness of their performance and should be administered with that goal always in view;

(f) resources are to be deployed so as to ensure their most efficient and effective use;

(g) proper standards of financial management and accounting are to be maintained at all times; and

(h) proper standards are to be maintained at all times in the creation, management, maintenance and retention of records.”

9. General principles of official conduct

The principles of conduct that are to be observed by all public sector bodies and employees are that they — 

(a) are to comply with the provisions of — 

(i) this Act and any other Act governing their conduct;

(ii) public sector standards and codes of ethics; and

(iii) any code of conduct applicable to the public sector body or employee concerned;

(b) are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and

(c) are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees.”

74      The Code provides that all Public Sector employees are to act in an open and accountable manner, they must protect people’s rights to due process and they must treat employees courteously and with due consideration.  Further, employees are to be informed about decisions and actions affecting them.

75      I have already stated that I accept that Mr Piper had the right to bring to the attention of the delegate and the selection panel relevant information that may not have been considered in filling the level 7 position.  However, in doing so Mr Piper was required to act in a fair and transparent manner.  In this case I find that when Mr Piper re-opened the selection process for the Level 7 position his actions were contrary to the requirements on him under s7(d) and s9(a)(iii) and s9(c) of the PSM Act and those sections of the Code concerning the necessity to act in an open manner and at the same time protect a person’s right to due process and afford employees the opportunity to be informed about any decision affecting them.

76      I find that by nominating two of the four referees who were required to write reports about Mr Jones, Mr Piper did not act in an open and transparent manner towards Mr Jones as an inference could be drawn that the two referees selected by Mr Piper were deliberately chosen to achieve a pre-determined outcome as Dr Kay and Mr G Thompson had a limited knowledge of Mr Jones’ skills and abilities and Mr G Thompson initially refused to fill out this report due to his limited knowledge about Mr Jones.  I find that Mr Jones was denied procedural fairness when he was not given the opportunity to review the pro forma referee report for the Level 7 position prior to it being sent to the referees nominated by Mr Piper as the report asked referees to comment on Mr Jones’ specific abilities as well as his ability to fulfil the essential criteria for the Level 7 position.  In unilaterally deciding on the structure of the referee report it is my view that Mr Piper did not ensure Mr Jones’ right to due process as provided for in the Code.  I find that Mr Jones was denied due consideration and courtesy as provided for in the Code and s9(c) of the PSM Act when the Level 7 position’s selection process was re-opened on the basis of Mr Piper’s personal views about Mr Jones’ performance without any explanation given to Mr Jones for Mr Piper’s actions.  In doing so I find that Mr Piper did not act in an open and accountable manner towards Mr Jones as required under the Code nor was Mr Jones afforded procedural fairness as Mr Jones was unable to respond to Mr Piper’s personal views about his abilities.  It is a fundamental principle of administrative law that a decision maker must afford an opportunity to be heard to a person whose interest will or may be adversely affected by a decision and this did not happen in this instance.  I find that Mr Jones was treated unfairly and was again denied procedural fairness when Mr Piper did not ensure that Mr Jones was able to respond to the referees’ views about his suitability or otherwise for the Level 7 position prior to a decision being made about filling the Level 7 position.  I also find that Mr Piper did not ensure that the respondent’s administrative responsibilities were clearly defined as required under s7(d) of the PSM Act when he sought a review of Mr Jones’ selection and then required Mr Cullen to advise him of Mr Cullen’s recommendation regarding Mr Jones’ suitability for the Level 7 position before any such appointment was confirmed.

77      I conclude that Mr Piper’s action in becoming involved in the selection process for the Level 7 position was not a valid exercise of his powers and as a result it is my view that Mr Piper’s intervention in the Level 7 position’s selection process should be nullified and declared void.  It follows and I find that the subsequent review of Mr Jones’ appointment to the Level 7 position by Mr Harvey should not have taken place as Mr Harvey only became involved in a review of the Level 7 selection process as a result of Mr Piper’s intervention.

78      As I have decided that Mr Piper’s actions in becoming involved in the Level 7 position’s selection process should be declared void, it follows that Mr Harvey would therefore not have become involved in the selection process for the Level 7 position.  In any event I find that even if Mr Harvey had the ability to review the selection panel’s decision to recommend Mr Jones for appointment to the Level 7 position it is my view that the way in which he intervened was contrary to the requirements of the PSM Act and the Code. I find that when Mr Harvey concluded that Mr Jones was unsuitable for the Level 7 position after the four referee reports were obtained at Mr Piper’s request he acted contrary to the requirements on him of parts of s9(a) of the PSM Act and parts of the Code.  Further, I find that as a result of the process adopted by Mr Harvey, Mr Jones was denied procedural fairness.

79      It is not in dispute that when the selection panel decided not to review its original decision to recommend Mr Jones as it believed it had fulfilled its function and had no further role, Mr Harvey considered the referee reports which were generated after Mr Piper’s intervention in the selection process.  After taking into account his own personal views about Mr Jones’ capacity and suitability for the requirements of the Level 7 position, in particular his views about Mr Jones’ inability to fulfil the selection criteria relating to relationship building and networking, Mr Harvey then decided that Mr Jones should not be appointed to the Level 7 position.  I have already found that Mr Harvey was not convincing when he attempted to explain his reasons for reaching the view that Mr Jones was unable to meet the requirements of the vital aspects of the essential criteria for the Level 7 position.  It is clear that the referee reports reviewed by Mr Harvey did not contain any adverse comments about Mr Jones’ ability to satisfy the selection criteria relating to relationship building and networking.  Mr Harvey therefore had no basis for making the claim he did in his memorandum to Ms Withers, dated 3 December 2002, that according to two of the referee reports Mr Jones did not satisfy the requirements of the selection criteria relating to “Relationship Building and Networking” (Exhibit A1.10) and when giving evidence in these proceedings Mr Harvey conceded that all of the referee reports contained no negative feedback about Mr Jones being unable to meet the specific requirements of this criterion which the respondent complained Mr Jones did not meet (see Exhibit A1.4, A1.5, A1.7 and A1.8).  In endeavouring to explain his decision that Mr Jones was unsuitable to fulfil the requirements of the Level 7 position Mr Harvey gave evidence that he also took into account his own views about Mr Jones’ strengths and weaknesses and other comments in two of the referee reports none of which was ever put to Mr Jones for his response.  I find that as Mr Jones was not given the opportunity to respond to Mr Harvey’s views about his abilities Mr Jones was denied procedural fairness.  I find that the process adopted by Mr Harvey was contrary to the Code as he was not being open and transparent nor did he afford Mr Jones due consideration and courtesy when making his decision not to appoint Mr Jones to the Level 7 position.  In my view Mr Harvey did not ensure that Mr Jones was afforded procedural fairness as Mr Jones was not given the opportunity to respond to the referee reports prior to Mr Harvey making a decision about the Level 7 position.  I also find that Mr Jones was denied due consideration and courtesy as required under s9(c) of the PSM Act and the Code when Mr Jones’ representative complained to Mr Harvey about the process being re-opened and requesting that he be confirmed in the Level 7 position, no response was provided by Mr Harvey to his concerns.  In the circumstances, as Mr Harvey did not comply with the statutory requirements on him when he intervened in the selection process for the Level 7 position it is therefore my view that Mr Harvey’s actions are invalid and therefore should be nullified.

80      I now must decide on a remedy in relation to this application.  It is not in contest that the Level 7 position for which Mr Jones was the successful candidate was abolished some months after Mr Jones would have been confirmed into the Level 7 position (January 2003).  Having considered the arguments of both parties it is my view it would be inappropriate to require the respondent to re-establish the Level 7 position.  I accept that the Level 7 position has been abolished for over 18 months and it would be inappropriate in the circumstances to require the respondent to re-instate this position.  However, I conclude that Mr Jones should be appointed to a substantive Level 7 position within the respondent’s operations on the basis that Mr Jones would have been appointed to the Level 7 position prior to it being abolished if Mr Piper and Mr Harvey had not intervened in the process.  Furthermore, it is clear that Mr Harvey did not decide to review the recommendation that Mr Jones be appointed to the Level 7 position of his own volition and only did so as a result of Mr Piper’s intervention, nor did Mr Harvey’s review of the filling of the Level 7 position arise as a result of any proposed restructure.

81      In reaching this view I also take into account that Mr Jones has had a successful and lengthy employment history with the respondent (23 years) and that no concerns about his performance were raised with Mr Jones until the Director General issued his memorandum on 23 October 2002 (Exhibit A1.3).  I accept that Mr Jones is currently classified as a Level 6 employee and has acted in a number of positions at Level 7 with the respondent for extended periods, and that in 2003 Mr Jones spent most of the year acting in a Level 7 position.  I take into account that Mr Jones was selected for the Level 7 position on merit after a transparent and competitive process was undertaken in accord with the respondent’s standard processes, the selection panel decided that Mr Jones met all of the selection criteria for the Level 7 position, the selection panel’s decision was signed off by the person delegated with the responsibility to fill the position and the selection panel decided to stand by its original decision after the four referee reports were obtained.  I find that both Mr Cullen and Ms McComish, who were on the selection panel, were well placed to determine that Mr Jones had the skills and ability to fulfil all of the requirements of the Level 7 position, particularly given that the Level 7 position would report to Mr Cullen, and Ms McComish had worked with Mr Jones on a regular basis for a some time.  Further, I accept that Mr Jones had not been advised of any concerns that the respondent had about his performance, the respondent had sufficient confidence in his ability to act in Level 7 positions on numerous occasions and no other applicant for the Level 7 position lodged a complaint claiming a breach of the Recruitment, Selection and Appointment Standard.

82      It is therefore my view that Mr Jones be appointed to the status of a Level 7 employee within the respondent’s operations effective from the date that the Level 7 position would normally have been filled by Mr Jones.  The parties are to confer within seven days of the date of this decision as to what that date is and advise the Commission accordingly.