APPEAL AGAINST THE DECISION OF BULLYING, HARRASSMENT AND NON RENEWAL OF CONTRACT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Kylie Oliver

APPELLANT

-v-

Malcolm Goff, Managing Director, Challenger Tafe

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

 Commissioner P E Scott - CHAIRMAN

 MR T RYNN - BOARD MEMBER

 MR K TRENT - BOARD MEMBER

HEARD 

DELIVERED TUESDAy, 8 AUGUST 2006

FILE NO. PSAB 3 OF 2006

CITATION NO. 2006 WAIRC 05224

CatchWords Industrial Law (WA) - Appeal against non-renewal of appellant's contract - Whether PSAB has jurisdiction - Appellant was not dismissed - Refusal to employ or refusal to re-employ - PSAB has no jurisdiction - Appeal dismissed - Industrial Relations Act 1979 (WA) s.23(1); (2)(a) and (b); s.29(1)(b)(ii); and s.80I(1)(e) and (3) - Public Sector Management Act 1994 s.9 and s.52 - Workplace Agreements Act 1993

Result Appeal Dismissed

Representation 

Applicant In person

Respondent Ms A Young

Reasons for Decision

1         These are the unanimous reasons for decision of the Public Service Appeal Board (“the PSAB”).

2         A Notice of Appeal to Public Service Appeal Board was lodged by the appellant on 3 March 2006.  The Appeal is said to be against the decision “of bullying & harassment, the non renewal of my contract” and is said to have been made on 27 February 2006, on the grounds of “bullying & harassment, the non renewal of my contract.” 

3         The respondent filed a Notice of Answer and Counter Proposal on 20 April 2006, which stated:

“Ms Oliver ceased employment with Challenger TAFE on 31 December 2005. 

College policy Q10.001/4 point 5.7.4, states “The employee’s employment with the College ceases on the expiry date prescribed in their contract.  Unless specified otherwise in the contract, further employment at the College is subject to the person being selected for an advertised position on a competitive basis.”

Ms Oliver was employed on a 6-month fixed term contact commencing 13 December 2004 with a cessation date of 30 June 2005 “after which a new contract may be offered.”  The contract was renewed for a further six months until 31 December 2005. 

At the end of the contract period, the position was advertised in accordance with College policy. 

The Respondent submits:

The Commission lacks jurisdiction to hear and determine this matter.

• The application is out of time as it was not made within the 21 day time limit prescribed by Regulation 107(2) of the Industrial Relations Commission Regulations 2005.

• The decision on which this appeal is based was not a decision to dismiss but was a failure to offer to employ and that a failure to offer a contract of employment does not constitute dismissal. 

• The employment contract lapsed due to the effluxion of time.

The Respondent denies any unfairness procedural or otherwise in the failure to offer a contract of employment to Ms Oliver.”

4         On 23 May 2006, at the direction of the PSAB, the Associate to the PSAB wrote to the appellant in the following terms, formal parts omitted:

“I am directed to write to you by the Public Service Appeal Board (“PSAB”) to which this appeal has been allocated.

The PSAB notes that in the Form 11 – Notice of Appeal to Public Service Appeal Board filed by you, in that part of the form where you are to set the decision against which you appeal, you have recorded:

 “of bullying and harassment, the non renewal of my contract.”

In its Form 5 – Notice of Answer and Counter Proposal, the respondent says that the PSAB lacks jurisdiction to deal with your appeal for a number of reasons.  Two of those reasons are:

“• The decision on which this appeal is based was not a decision to dismiss but was a failure to offer to employ and that a failure to offer a contract of employment does not constitute dismissal.

  • The employment contract lapsed due to the effluxion of time.”

The PSAB’s jurisdiction is set out in s.80I of the Industrial Relations Act 1979, a copy of which is attached for your information.  Section 80I also makes reference to various sections of the Public Sector Management Act 1994, to which you might also wish to refer. 

Prior to considering the issue of whether to accept this appeal beyond the 21 days allowed for its referral to the PSAB, and prior to hearing the merits of your appeal, it is necessary for the PSAB to consider whether it has jurisdiction to deal with the appeal.

Accordingly, the PSAB directs that you put to the PSAB in writing any submission you wish to make as to whether or not the PSAB has jurisdiction to deal with your appeal.  Such submission is to be made within 21 days of the date of this letter.  The respondent will then have 21 days in which to respond to any submission you may make.

You should be aware that if no submission is received from you within 21 days, the PSAB may consider that you do not intend to proceed with the appeal and may dismiss it without further reference to you.  Therefore, should you wish to proceed it is essential that you respond to the issue of jurisdiction within 21 days.

Should you have any queries please contact me on 9420 4484.  Please be aware that I am unable to provide you with advice other than in respect of procedural matters.” 

5         By letter dated 29 May 2006, the appellant responded to the PSAB in writing.  This submission defined workplace bullying and outlined allegations of bullying directed at her.  The appellant acknowledged that she was not dismissed but says that she was not given the opportunity to have her contract renewed and there was a failure to offer a contract.  She says that “At the end of the contract if ongoing work is available, employers should consider offering employees this employment.”  She noted that she was not given an opportunity to be taken from the appointment pool when the job was advertised.

6         As to the jurisdiction of the Commission, the appellant cited s.23 of the Industrial Relations Act 1979 (“the IR Act”), subsections (1), (2)(a) and (b) and referred to the requirement of the Public Sector Standards that the process be “open, competitive and free of bias, unlawful discrimination, nepotism or patronage.  The decisions need to be transparent and capable of review.  Termination decisions must be fair and all entitlements must be provided.”  She also referred to the General Principles of Human Resource Management and to the requirements of s.9 of the Public Sector Management Act 1994 (“PSM Act”) dealing with the General Principles of Official Conduct. 

7         The final aspect of the appellant’s submission was that she was ill in October and November 2005 and combined with various medical appointments and being placed on medication, she was unable to forward her appeal to the Commission.  Once her condition stabilised, she was strong enough to forward the application.  She notes the provisions for extensions of time for such applications to be filed and that there is no time limit in respect of filing a claim for contractual entitlements made pursuant to s.29(1)(b)(ii) of the IR Act.  The appellant also makes reference to enforcement proceedings pursuant to the IR Act and the Workplace Agreements Act 1993. 

8         The respondent filed its submission on 22 June 2006, which in effect reiterated the Notice of Answer and Counter Proposal and also responded to the aspects of the submission made by the appellant dealing with jurisdiction. 

Conclusions

9         The PSAB has jurisdiction as defined by s.80I of the IR Act.  Its jurisdiction is limited by the legislation and there is a requirement for it to deal with those matters only.  The appellant was a government officer.  According to s.80I(1)(e) of the IR Act, and subject to s.52 of the PSM Act and subsection 3 of s.80I, (neither of which is relevant), the PSAB has jurisdiction to hear and determine an appeal by a government officer who occupies a position carrying a salary lower than the prescribed salary against the decision of the employer that the government officer be dismissed.  That is the limitation upon the PSAB’s jurisdiction.  Unless there was a dismissal, there is no jurisdiction. 

10      The appellant does not argue that she was dismissed, and it is clear that there was no dismissal. 

11      It is quite clear that whilst the appellant might wish to challenge the respondent’s decision not to offer her further employment, the uncontroverted statement of the appellant is that her contract was not renewed.  This does not constitute a dismissal.  It may constitute a refusal to employ or to re-employ but that is not a matter with which the PSAB can deal.  (see Ronald Thomas Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579 (FB))

12      As there was no decision to dismiss, there is no capacity for the PSAB to hear the appeal.  Accordingly, the appeal ought be dismissed as the PSAB has no jurisdiction to deal with it.