REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00017

DELIVERED : TUESDAY, 10 JANUARY 2023

FILE NO. : APPL 36 OF 2022

Applicant

AND

William (Bill) Johnston Minister for Corrective Services

Respondent

CatchWords : 28-day limitation period in s 29(2) does not apply to referrals made under s 78(2)

Legislation : Health Services Act 2016 (WA): s 172(2), s 172(4) & s 172(5)

  Health Services (General) Regulations 2019 (WA): r 13

   Industrial Relations Act 1979 (WA): s 23, s 23A, s 29, s 29(1), , s29(1)(b), s 29(1)(b)(i), s 29(1)(b)(ii), s 29(1)(c), s 29(1)(d), s 29(2), s 29(3), s 80J & s 80J(a)

  Industrial Relations Commission Regulations 2005 (WA): r 63A & r 107(2)

   Public Sector Management Act 1994 (WA): s 78(1), s 78(2), s 78(2)(b) & s 82A(3)(b)    

Result : Declaration made

Representation:

Applicant : Mr C Fordham (of counsel)

Respondent : Mr J Carroll (of counsel)

Cases referred to in reasons:

Aurion Gold v Bilos [2004] WASCA 270; (2004) 144 IR 122

Federal Commissioner of Taxation v Tomaras [2018] HCA 62

Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70

Guest v Kimberley Land Council [2009] WAIRC 00668; (2009) 89 WAIG 2063

Johnston v Mr Ron Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553

Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114

Magyar v Department of Education [2019] WAIRC 00321; (2019) 99 WAIG 804

Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595

Reasons for Decision

1         Ms Fagan has referred to the Commission the Minister for Corrective Service’s (Minister) decision to take disciplinary action against her by way of dismissal on 30 May 2022.

2         Ms Fagan referred this decision to the Commission on 15 August 2022. The parties are in dispute about whether Ms Fagan’s referral was made out of time.

What I must decide

3         I must decide whether a limitation period of 28 days applies to Ms Fagan’s referral.

Background

4         In her referral to the Commission, Ms Fagan argues that the disciplinary finding that she disobeyed a lawful order is incorrect and her dismissal by way of letter dated 26 May 2022 is unfair. She asks the Commission to reinstate her and make an order for continuity of service.

5         The Minister raised a preliminary issue for the Commission to deal with before Ms Fagan’s referral can be heard and determined. He says that a limitation period of 28 days applies to this type of application. The Minister argues that Ms Fagan’s referral was made outside that limitation period and she has not sought leave for her referral to be accepted out of time.

6         Ms Fagan disagrees that a limitation period of 28 days applies to her referral.

7         The parties asked the Commission to deal on the papers with the question of whether Ms Fagan’s referral is out of time. The parties each filed written submissions.

8         Ms Fagan’s matter is referred to the Commission by way of s 78(2) of the Public Sector Management Act 1994 (WA) (PSM Act) on the basis that she is aggrieved by a disciplinary decision made under s 82A(3)(b) of the PSM Act.

Background and relevant provisions

9         The Commission has a broad jurisdiction to enquire into and deal with any industrial matter: s 23 of the Industrial Relations Act 1979 (WA) (IR Act). The IR Act limits who can refer matters to the Commission and imposes limitation periods on some applications.

10      The PSM Act provides a right of appeal to the Commission in respect of certain decisions and findings. Section 78(2) of the PSM Act provides:

(2) Despite section 29 of the Industrial Relations Act 1979, but subject to subsection (3), an employee or former employee who —

(a) is not a Government officer within the meaning of section 80C of that Act; and

(b) is aggrieved by —

(i) a decision made in respect of the employee under section 79(3)(b) or (c) or (4); or

(ii) a finding made in the exercise of a power under section 87(3)(a)(ii); or

(iii) a decision made under section 82 to suspend the employee on partial pay or without pay; or

(iv) a decision to take disciplinary action made under section 82A(3)(b), 88(b) or 92(1),

may refer the decision or finding mentioned in paragraph (b) to the Industrial Commission as if that decision or finding were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.

11      There is no s 29(b) of the IR Act and there was not when s 78(2) of the PSM Act was enacted either. At that time, s 29 of the IR Act provided:

 29. Who may refer industrial matters to Commission

  (1) An industrial matter may be referred to the Commission —

  (a) in any case, by —

  (i) an employer with a sufficient interest in the industrial matter; or

  (ii) an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or

  (iii) the Minister;

   and

  (b) in the case of a claim by an employee —

  (i) that he has been harshly, oppressively or unfairly dismissed from his employment; or

  (ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,

   by the employee.

  (1a) A party to an employer‑employee agreement has the right to refer to the Commission constituted by a commissioner where the Commission so constituted is the relevant industrial authority under Part VID —

  (a) any question, dispute or difficulty that the Commission as so constituted has jurisdiction to determine under section 97WI; or

  (b) an allegation referred to in section 97WK(2).

  (2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

  (3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.

12      Section 29 of the IR Act was amended on 20 June 2022 by the Industrial Relations Legislation Amendment Act 2021 (WA). Section 29 of the IR Act now provides:

29. Who may refer industrial matters to Commission

  (1) An industrial matter may be referred to the Commission —

  (a) in any case, by —

  (i) an employer with a sufficient interest in the industrial matter; or

  (ii) an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or

  (iii) the Minister;

   and

  (b) except as provided in section 51Q(2), in the case of an equal remuneration order — by an application made by any of the following —

  (i) an employee to be covered by the order;

  (ii) an organisation in which employees to be covered by the order are eligible to be enrolled as members;

  (iii) an organisation in which employers of employees to be covered by the order are eligible to be enrolled as members;

  (iv) UnionsWA;

  (v) the Chamber;

  (vi) the Minister;

  (vii) the Commissioner for Equal Opportunity;

   and

  (c) in the case of a claim by an employee that the employee has been harshly, oppressively or unfairly dismissed from the employee’s employment — by the employee; and

  (d) in the case of a claim by an employee that the employer has not allowed the employee a benefit, other than a benefit under an award or order, to which the employee is entitled under the contract of employment — by the employee; and

  (e) in the case of an industrial matter mentioned in section 7(2A) — by the worker.

  (1a) A party to an employer‑employee agreement has the right to refer to the Commission constituted by a commissioner where the Commission so constituted is the relevant industrial authority under Part VID —

  (a) any question, dispute or difficulty that the Commission as so constituted has jurisdiction to determine under section 97WI; or

  (b) an allegation referred to in section 97WK(2).

  (2) Subject to subsection (3), a referral under subsection (1)(c) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

  (3) The Commission may accept a referral by an employee under subsection (1)(c) that is out of time if the Commission considers that it would be unfair not to do so.

13      In effect, s 29(1)(b)(i) was replaced by s 29(1)(c) and s 29(1)(b)(ii) was replaced by s 29(1)(d).

14      The PSM Act has not been consequentially amended.

15      The parties agree that the reference in s 78(2) of the PSM Act to s 29(b) is a typographical error and it should be a reference to s 29(1)(b) of the IR Act.

16      The parties also agree that Ms Fagan:

1. seeks to refer the Minister’s decision to take disciplinary action in the form of dismissal under s 82A(3)(b) of the PSM Act; and
2. is a person aggrieved by that decision.

The Minister’s case

17      The Minister says that s 78(2) of the PSM Act allows certain decisions or findings to be referred to the Commission ‘as if that decision or finding were an industrial matter mentioned in section 29(b) of that Act’.

18      Further, s 29(2) of the IR Act provides that ‘a referral under subsection (1)(c) is to be made not later than 28 days after the day on which the employee’s employment is terminated’.

19      The Minister says that the constructional question is whether the limitation period of 28 days prescribed by s 29(2) of the IR Act applies to the type of referral described in s 78(2) of the PSM Act, where the referral relates to a decision to dismiss. In essence, the Minister says that the reference to s 29(b) in s 78(2) of the PSM Act should be properly understood as a reference to s 29(1)(c) of the IR Act.

20      The Minister draws the Commission’s attention to two relevant authorities: Johnston v Mr Ron Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553 (Johnston) and Magyar v Department of Education [2019] WAIRC 00321; (2019) 99 WAIG 804 (Magyar).

Johnston

21      The Minister says that in Johnston, Kenner C (as he was then) observed, without deciding the issue, that the 28-day limitation period would arguably not apply to referrals made under s 78(2) of the PSM Act, because one could argue that referrals would be made ‘under’ s 78(2) of the PSM Act and not s 29(1)(b)(i) of the IR Act, so on that basis s 29(2) of the IR Act would not apply.

22      The Minister submits that taking this approach would ignore ‘important words in s 78(2), namely, that a referral can be made as if the decision or finding were an industrial matter mentioned in s 29(1)(c) of the IR Act’ (original emphasis). 

23      The Minister says that these words ‘as if that decision or finding were an industrial matter’ would not be needed if s 78(2) of the PSM Act itself provided the basis for referral to the Commission. If that were the case, s 78(2) could simply have said: ‘Despite s 29 of the IR Act, an employee or former employee who is aggrieved by [the identified findings and decisions] may refer the decision or finding to the [WAIRC], and the IR Act applies to and in relation to that decision accordingly.’

24      Instead, s 78(2) says ‘as if that decision or finding were an industrial matter’. The Minister says the effect of these words is ‘to create a statutory fiction that the decision or finding is referred to in s 29(1)(c) of the IR Act, and the referral is then under s 29(1)(c) of the IR Act (as enlarged by s 78(2) of the [PSM Act]).’ Because the referral is ‘under’ s 29(1)(c) of the IR Act, the limitation period in s 29(2) of the IR Act applies when the referral relates to a dismissal.

Magyar

25      The Minister also refers to Magyar and says that in that matter, the applicant referred three decisions to take disciplinary action to the Commission. Those decisions had been made by the respondent around 1.5 years or more before the referrals were made and were not dismissals. Two of those applications were dismissed on the basis that it was not in the public interest for the matters to proceed given the challenge to the decisions was not made within a reasonable period of time: Magyar at [13]-[22].

26      The Minister argues that while limitation periods are not referred to in Magyar, ‘it is implicit from the decision that it was accepted that no statutory time limits applied to the referrals under consideration’.

Conclusion

27      The Minister argues that the Commission should afford a construction that gives all of the words in the provision work to do. This approach is consistent with common sense. There are statutory limitation periods that apply to ‘any other appeal or referral’ of a matter relating to dismissal, where that referral is made by an individual employee to the Commission or Public Service Appeal Board. There is an obvious need for ‘such time limits’ so that allegations of unfair dismissal can be dealt with promptly. There should be clear words to the contrary in the IR Act or PSM Act.

28      Taking into account the typographical error in s 78(2) of the PSM Act and the recent amendments to the IR Act, the Minister argues that the reference to s 29(b) in the PSM Act should properly be understood as a reference to s 29(1)(c) of the IR Act.

29      The Minister argues that on that basis, Ms Fagan’s referral is ‘well out of time’. The Commission should find that Ms Fagan needs leave to refer her matter out of time.

Ms Fagan’s case

30      Ms Fagan says the ‘jurisdictional fact’ in dispute appears to be whether her referral is properly identified as a referral under s 78(2) of the PSM Act or a referral under s 29(1)(c) of the IR Act.

31      Ms Fagan argues that the nature of this dispute is not particular to her matter and goes to ‘the legislative will behind the framework of the PSM Act and the IR Act.’ Ms Fagan relies on Ritter AP’s reasons (with Scott C, as she was then, and Mayman C agreeing) in Guest v Kimberley Land Council [2009] WAIRC 00668; (2009) 89 WAIG 2063 at [75] where he cites with approval the following passage from Brennan J’s reasoning at 141-142 of Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70:

There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants. (Ms Fagan’s emphasis)

32      Ms Fagan says that ‘an issue of this significance cannot be swayed by the brief explanatory description contained in [her] initiating claim form.’ 

Ms Fagan’s standing

33      Ms Fagan says that the provisions under s 29(1)(b) of the IR Act were not themselves a source of power, but conferred standing on an employee to refer particular industrial matters to the Commission: Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114 (Cool or Cosy).

34      In this matter, Ms Fagan initially sought to refer her application by relying on standing conferred by s 29(1)(c) of the IR Act. She discontinued that referral and filed a new one ‘with standing conferred by s 78(2) of the PSM Act’. Whether her referral is made with standing conferred by s 29(1)(c) of the IR Act or by s 78(2) of the PSM Act, the Commission’s powers to deal with her referral ‘emanate from s 23A of the IR Act’.

35      Ms Fagan argues that she has standing to make her referral to the Commission under s 78(2) of the PSM Act because she meets the ‘criteria for standing’ under that provision, being that:

(a) she is a former employee within the meaning of the PSM Act;

(b) she is not a government officer within the meaning of s 80C of the IR Act; and

(c) she is aggrieved by the Minister’s decision to take disciplinary action under s 82A(3)(b) of the PSM Act.

36      These conditions mean that arguably, an employee may not qualify for standing under the PSM Act to refer to the Commission a matter relating to that employee’s dismissal, where the dismissal arose without an identifiable decision to take disciplinary action. Ms Fagan submits that this is a meaningful difference between ‘asserting standing under the IR Act as compared to standing under the PSM Act’ and this difference is ‘intended to be so’.

Construction of s 78(2) of the PSM Act

37      Ms Fagan notes that Johnston was delivered before ‘the principles explained by the Industrial Appeal Court in Cool or Cosy’.

38      Considering those decisions, Ms Fagan said the following meanings can be adduced from the PSM Act and the IR Act:

(a) as with the relevant provisions in s 29 of the IR Act, s 78(1) and s 78(2) of the PSM Act confer standing on a person to refer matters set out in those sections;

(b) the standing provisions in the IR Act and the PSM Act are not a source of power; and

(c) where a referral is made with standing conferred by s 78(2) of the PSM Act, the Commission’s powers to deal with that referral are found in either s 23 or s 23A of the IR Act, depending on whether the referral involves a claim of harsh, oppressive or unfair dismissal.

39      Ms Fagan says that s 78(2) of the PSM Act exists as a standing provision. This is important because it helps to interpret the meaning of words in that provision, including the words: ‘Despite section 29 of the Industrial Relations Act 1979…’ Here, the ability for an employee to have standing to refer a matter under s 78(2) of the PSM Act exists ‘despite’ s 29 of the IR Act. The Cambridge Dictionary meaning of the word ‘despite’ is: ‘without taking any notice of or being influenced by’.

40      The effect of this is that the standing conferred by s 78(2) of the PSM Act is independent of and unaffected by the existing standing provisions of the IR Act.

41      Further, Ms Fagan argues that the meaning of the words ‘subject to subsection (3)’ in s 78(2) of the PSM Act ‘should be read as providing standing subject to subsection (3) of the PSM Act, and not s 29(3) of the IR Act.’ 

42      Ms Fagan disagrees with the Minister’s submission that a referral made under the PSM Act should be deemed to have been made under s 29(1)(c) of the IR Act. She says ‘the nature of the statutory fiction is to make provision for standing for specific circumstances even though those words and circumstances do not actually exist within s 29 of the IR Act.’ Further, she says: ‘That s 78(2) has been framed as a deeming provision does not import an assumption that other provisions of the IR Act relating to standing have application.’

Conclusion

43      Ms Fagan submits that the Commission need not look beyond the plain words of s 29(2) and s 29(3) of  the IR Act to see that the 28-day limitation period and ability to seek leave to apply out of time only relate to a referral made under s 29(1)(c) of the IR Act. These do not apply to referrals made through any other standing provision.

44      She says it would be ‘a misapplication of legal principle to construe either s 29(2) or s 29(3) by imputing an intention upon parliament for those particular provisions to apply other than to the referral that is listed within the subsections themselves.’

Magyar Full Bench

45      After the parties’ written submissions were filed, the Commission identified a further decision that it considered may be relevant to the question in issue, Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595 (Magyar Full Bench).

46      My Associate wrote to the parties and said:

The Commission has asked me to write to you to bring to your attention the Full Bench decision in Magyar v Department of Education [2019] WAIRC 00781, in particular [19], where Kenner SC (as he was then) said (with Emmanuel and Walkington CC agreeing):

It would appear that the reference to “section 29(b) of that Act”, in s 78(2)(b) of the PSM Act, is a drafting error as there is no such provision and nor was there at the time of the enactment of s 78(2)(b) of the PSM Act and it seems it was intended to refer to “section 29(1)(b)” instead. This matter was considered in Johnston v Mr Ron Mance, Acting Director-General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553.  As it is only applications under s 29(1)(b)(i) of the Act that are subject to a statutory time limit of 28 days, with an opportunity for a late claim to be considered by the Commission, there is no time limit on claims made under s 78(2) of the PSM Act. No time limit is referred to in reg 63A of the Industrial Relations Commission Regulations 2005 either.

The Commission would like to hear the respondent’s view in relation to the above case, and the applicant’s response to the respondent’s view.

47      The Minister replied to my Associate and expressed the following view:

As with the two decisions referred to in the respondent's written submissions ([Johnston  and Magyar]), [Magyar Full Bench] dealt with a referral under s 78(2) of the PSMA to the WAIRC by an employee or former employee aggrieved by a decision to take disciplinary action under Part 5 of the PSMA where the disciplinary action was not dismissal (see [5] of the decision). None of those three cases gave rise to the issue as to whether the PSMA and IR Act, properly construed, imposed a time limit on referrals to the WAIRC when the disciplinary action taken under Part 5 of the PSMA was dismissal. For that reason, if [19] of [Magyar Full Bench] is properly understood as finding that no time limit applies in those circumstances, the respondent submits that such a finding is obiter dicta which was not (at least on the face of the decision) the subject of argument. The respondent maintains his submissions set out in [22] to [32] of his written submissions on the preliminary issue that the provisions properly construed do place a time limit on such referrals.

48      Ms Fagan submitted that Magyar Full Bench represents a ‘meaningful authority that supports the proposition that a referral under s 78(2)(b) of the PSM Act is of a different category to a referral under s 29(1)(c) of the IR Act, even where a referral includes an allegation of harsh, oppressive or unfair dismissal.’

49      Further, counsel for Ms Fagan said:

The Applicant understands by the comments at [18] in [Magyar Full Bench], that the observations made by the Commission at [19] of that decision were designed to draw a distinction between the present case and other case authorities where an applicant had applied expeditiously (within a strict limitation period), but the applicant had then not proceeded expeditiously after a case had been commenced.

We understand the distinction in [Magyar] to be that the applicant in that case apparently did not act expeditiously at the point where he delayed in the initial filing of his referrals under s 78(2)(b) of the PSM Act.

The Commission went on to observe at [19] that, contrary to applications made under s 78(2)(b) of the PSM Act, “it is only applications under s 29(1)(b)(i) of the Act that are subject to a statutory time limit of 28 days” (our emphasis). On the plain words that appear at [19] of the reasons in Magyar, the Full Bench has drawn a distinction in the way that a referral is to be treated under s 78(2)(b) of the PSM Act as compared to a referral under s 29(1)(b)(i) of the IR Act (now being 29(1)(c) of the IR Act).

The distinction that was made by the Full Bench in [Magyar Full Bench] between a referral under what is now s 29(1)(c) of the IR Act and s 78(2)(b) of the PSM Act does not seem to be just obiter.

The Commission went on in [Magyar Full Bench] to rely upon the finding made at [19] of the decision to identify the appropriate legal principles to be applied in the disposition of that appeal.

Consideration

50      The only fair reading of Ms Fagan’s statement that ‘the referral is made under s 29(1)(b) of the Industrial Relations Act 1979 as expanded by s 78(2) of the Public Sector Management Act 1994’ in her referral on Form 5 is that she contests the disciplinary action taken against her under the PSM Act. For the reasons that follow, I consider that the limitation period in s 29(2) of the IR Act does not apply to Ms Fagan’s referral.

51      Ms Fagan made a number of submissions in relation to jurisdiction that were not relevant to the matter in issue. In my view, it is beyond doubt that even if the limitation period in s 29(2) of the IR Act applied to Ms Fagan’s referral, the Commission would nevertheless have jurisdiction to hear and determine her referral, subject to the discretionary power to accept such a referral out of time: EM Heenan J in Aurion Gold v Bilos [2004] WASCA 270; (2004) 144 IR 122 at [65].

52      Ms Fagan appeals the Minister’s decision made under s 82A(3)(b) of the PSM Act to take disciplinary action in the form of dismissal. Pursuant to s 78(2) of the PSM Act, Ms Fagan has referred the Minister’s decision as if that decision were an industrial matter mentioned in s 29(1) of the IR Act.

53      The Minister says the Commission should construe s 78(2) of the PSM Act and s 29 of the IR Act such that the limitation period in s 29(2) of the IR Act applies to appeals made under s 78(2) of the PSM Act. This is because the Minister says the reference in s 78(2) of the PSM Act to s 29(b) should be understood to be a reference to s 29(1)(c) of the IR Act.

54      In short, I am not persuaded that is the correct construction.

55      Section 78(2) of the PSM Act provides a right of appeal of certain decisions and findings. It also confers standing for employees who are not government officers to refer a decision or finding to the Commission. In my view, an application of this type comes to the Commission by way of an appeal under s 78(2) of the PSM Act. The referral can be made as if it were an industrial matter mentioned in s 29(1) of the IR Act, but that does not mean that the referral is made under s 29(1)(c) of the IR Act. The phrase ‘Despite section 29 of the Industrial Relations Act 1979…’ in s 78(2) of the PSM Act supports a construction that standing to refer under s 78(2) is unaffected by the standing provisions within s 29, including s 29(1)(c).

56      The previous s 29(1)(b) was repealed and in effect replaced by s 29(1)(c) and (d) of the IR Act. I do not accept the Minister’s submission that the reference in s 78(2) of the PSM Act to s 29(b) of the IR Act must be understood to be a reference to s 29(1)(c) (formerly s 29(1)(b)(i)). It has long been accepted by the Commission (and its constituent authorities) that the reference in s 78(2) of the PSM Act to s 29(b) of the IR Act is a typographical error that was intended to be reference to s 29(1)(b) of the IR Act, not a more narrow reference to s 29(1)(b)(i) of the IR Act - see for example Magyar Full Bench per Kenner SC (as he was then), Emmanuel and Walkington CC at [19], Johnston per Kenner C (as he was then) at [14] and Ayling v Director General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824 per Smith SC (as she was then) at [1].

57      Recently the Full Bench in Magyar Full Bench held at [19]:

It would appear that the reference to “section 29(b) of that Act”, in s 78(2)(b) of the PSM Act, is a drafting error as there is no such provision and nor was there at the time of the enactment of s 78(2)(b) of the PSM Act and it seems it was intended to refer to “section 29(1)(b)” instead. This matter was considered in Johnston v Mr Ron Mance, Acting Director-General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553.  As it is only applications under s 29(1)(b)(i) of the Act that are subject to a statutory time limit of 28 days, with an opportunity for a late claim to be considered by the Commission, there is no time limit on claims made under s 78(2) of the PSM Act. No time limit is referred to in reg 63A of the Industrial Relations Commission Regulations 2005 either.

58      As the Minister submits, in Magyar Full Bench the disciplinary action appealed was not dismissal and the parties did not make arguments in relation to whether a limitation period applies where the disciplinary action taken is dismissal. However the Full Bench expressed a clear view about that issue, concluding that only applications under s 29(1)(b)(i) (now s 29(1)(c) of the IR Act are subject to a statutory limitation period of 28 days, and that there is no limitation period on claims made under s 78(2) of the PSM Act. Respectfully, I share that view. I am not persuaded by the Minister’s arguments in this case that it is wrong.

59      Considering the wording of s 78(2) of the PSM Act and s 29 of the IR Act, I find that the referral in this matter is still a referral under s 78 of the PSM Act, and not a referral under s 29(1)(c) of the IR Act.

60      More broadly, I agree with the Minister that in the case of a referral that appeals a decision to dismiss, there are obvious reasons why such matters should be dealt with promptly. Short limitation periods apply to certain applications or appeals in relation to decisions to dismiss. For example, s 29(2) of the IR Act provides that an unfair dismissal application made under s 29(1)(c) of the IR Act must be made within 28 days. Section 172(2) of the Health Services Act 2016 (WA) (HS Act) confers standing for government officers to appeal certain decisions and findings, including a decision to dismiss arising from disciplinary proceedings. Section 80J of the IR Act provides that such an appeal must be made within the prescribed time, being 21 days: reg 107(2) Industrial Relations Commission Regulations 2005 (IRC Regulations). Section 172(4) of the HS Act confers standing for employees who are not government officers to refer certain decisions or findings to the Commission, including a decision to dismiss arising from disciplinary proceedings, ‘as if the decision or finding were an industrial matter that could be so referred’ under the IR Act. Section 172(5) of the HS Act provides that such a referral must be made within the prescribed period, being 28 days: reg 13 of the Health Services (General) Regulations 2019). An appeal under s 78(1) of the PSM Act to the Public Service Appeal Board, including an appeal against a decision to dismiss, must be made within 21 days: s 80J(a) of the IR Act and reg 107(2) of the IRC Regulations.

61      However, it is not always the case that a limitation period is provided by statute in a matter involving or connected to dismissals. For example, Parliament has not imposed a limitation period for disputes about dismissal that come before the Commission by way of s 44 of the IR Act. Relevantly here, Parliament has not imposed a limitation period for referrals made under s 78(2) of the PSM Act and reg 63A of the IRC Regulations does not refer to a limitation period. The limitation period in s 29(2) of the IR Act only applies where the referral is made under s 29(1)(c) of the IR Act.

Conclusion

62      The limitation period of 28 days in s 29(2) of the IR Act does not apply to Ms Fagan’s referral in application APPL 36 of 2022.

63      This matter will be programmed for hearing.