REFERRAL OF A MATTER UNDER THE PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00302

DELIVERED : MONday, 29 MAY 2023

FILE NO. : APPL 42 OF 2021

Applicant

AND

Director General, Department of Education

Respondent

CatchWords : Industrial Law (WA) - Jurisdiction - Endorsement of employment file not to be permitted future employment without prior reference to the Director, Standards and Integrity - Whether endorsement of employment file is a decision to take discliplinary action - Matters an individual may refer to the Commission - Estoppel

Legislation : Industrial Relations Act 1979 (WA), s 7(1), s 7(2A), s 23(2a), s 23(3)(e)(ii), s 27(1)(a)(ii), s 27(1)(a)(iv), s 29(1), s 29(1)(c), s 29(1)(d), s 29(1)(e), s 44(7), s 44(7)(a)(i), s 44(7)(a)(iii), s 53, s 54   

  Public Sector Management Act 1994 (WA), s 78, s 78(2), s 78(2)(b)(iv), s 80(c), s 80A, s 81, 82A(3)(b), s 82A(3)(b)(iii)

  Result : Application dismissed

Representation:

Applicant : Mr J T Waterton (on his own behalf)

Respondent : Mr J Carroll (of counsel)

Cases referred to in reasons:

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

Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) and the Plumbers and Gasfitters Employees’ Union of Australia, West Australian Branch, Industrial Union of Workers and the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers and the Australian Builders’ Labourers’ Federated Union of Workers – Western Australin Branch (1986) 67 WAIG 466

State School Teachers’ Union of W.A. (Incorporated) v Director General, Department of Education [2014] WAIRC 00753; (2014) 94 WAIG 1469

State School Teachers’ Union of W.A. (Incorporated) v Director General, Department of Education [2015] WAIRC 00875; (2015) 95 WAIG 1661

The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] 181 CLR 404

Reasons for Decision

The application

1         This is an application to determine whether the Commission has jurisdiction to hear the applicant’s (Mr Waterton’s) application which challenges the respondent endorsing his employment record on the following terms:

[N]ot to be permitted future employment with the Department of Education without prior reference to the Director, Standards and Integrity.

2         In these reasons for decision, the above endorsement is referred to as a ‘flag’.

Background

3         By letter dated 19 February 2021, the respondent wrote to Mr Waterton alleging he had committed three acts of misconduct amounting to breaches of discipline pursuant to s 80(c) of the Public Sector Management Act 1994 (WA) (PSM Act) on 4 December 2020 when he taught a class of Year 5 students as a relief teacher at Butler Primary School (Allegations Letter).

4         The Allegations Letter informed Mr Waterton that the respondent had made a decision to treat the allegations of misconduct as a disciplinary matter in accordance with s 81 of the PSM Act. Furthermore, a Senior Investigator from the respondent’s Standards and Integrity Directorate had been appointed to conduct an investigation.

5         The Allegations Letter advised Mr Waterton that, given he was not currently employed, he is deemed a ‘former employee’. Consequently, should a breach of discipline be established, the action that may be taken against him is a reprimand and/or a fine not exceeding five days’ pay.

6         By letter dated 7 March 2021, Mr Waterton responded to the Allegations Letter.

7         By letter dated 22 March 2021, the respondent informed Mr Waterton that the investigation had concluded, the disciplinary process concerning allegation 1 would be discontinued, allegations 2 and 3 were substantiated, and the proposed action regarding allegations 2 and 3 entailed issuing a reprimand (Proposed Outcome Letter).

8         The Proposed Outcome Letter states:

The nature of your conduct leads me to question your overall suitability to be offered further work with the Department, either on a casual or more permanent basis. For these reasons, I intend to have your employment record endorsed ‘not to be permitted future employment with the Department of Education without prior reference to the Director, Standards and Integrity.’

The endorsement of your record is not a disciplinary measure, nor is it a refusal to reemploy you. However, should you seek employment with the Department in the future you will need to address the concerns about your conduct to the satisfaction of the Employee Suitability Assessment Committee.

This could take the form of a written or verbal submission from you or could entail an interview with a representative of the Department but would be decided at the relevant time.

9         By letter dated 1 April 2021, Mr Waterton responded to the Proposed Outcome Letter.

10      By letter sent on 7 May 2021, Mr Waterton was notified that the respondent maintained that he had committed breaches of discipline in respect to allegations 2 and 3, pursuant to s 82A(3)(b) of the PSM Act (Outcome Letter).

11      The Outcome Letter informed Mr Waterton that he would be reprimanded for the breaches of discipline.

12      The Outcome Letter states:

Reprimand

I must be able to rely on employees in important positions, such as that of teachers, to act appropriately towards students. I expect all employees of the Department to comply with the standards set out in the Department of Education's Code of Conduct.

The community also has an expectation that employees of the Department will behave in an exemplary manner and uphold the values and standards of the Department. In my view, your actions did not meet these expectations.

Endorsement of Employment Record

I proposed to endorse your employment record ‘not to be permitted future employment with the Department of Education without prior reference to the Director, Standards and Integrity’, and provided you with an opportunity to respond.

I have considered your response and maintain the view that the endorsement of your employment record is appropriate.

13      On 7 May 2021, Mr Waterton filed a Form 2 – Unfair Dismissal Application (U 36/2021).

14      On 31 May 2021, the respondent filed a Form 2A – Employer Response to Unfair Dismissal Application (Form 2A).

15      In the Form 2A, the respondent raised a jurisdictional objection, asserting that Mr Waterton lacked a continuous employment relationship with the respondent, resulting in no dismissal.

16      U 36/2021 was listed for conciliation conferences on 15 June 2021 and 25 August 2021. The second conference was adjourned to allow for Mr Waterton to obtain legal advice.

17      On 17 November 2021, Mr Waterton discontinued U 36/2021.

18      On 18 November 2021, Mr Waterton filed a Form 5 – Referral of a matter under the Public Sector Management Act 1994 (Form 5).

19      In the Form 5, Mr Waterton challenged the respondent’s decision to take disciplinary action against him as a result of a finding that a breach of discipline has been committed, pursuant to s 82A(3)(b) of the PSM Act.

20      On 8 December 2021, the respondent filed a Form 4 – Response (General) (Response). The Response states:

Imposition of the reprimand

19.  Because the Applicant was a former employee, the only penalties open were that of a reprimand and/or a fine not exceeding five day’s pay.

20.  If the Commission accepts that the misconduct occurred, or that it was reasonably open for the Respondent to find that the misconduct occurred, a reprimand was appropriate.

The “flag”

21.  The decision to endorse the Applicant’s employment record with the flag was not part of the disciplinary action taken by the Respondent.

22.  The flag is an administrative measure which is only of relevance if the Applicant seeks further employment with the Respondent (which he has not), and it does not preclude his future employment. Any application for future employment with the Respondent would be assessed separately through the Employee Suitability Assessment Committee.

21      Following a conciliation conference on 8 February 2022, directions were issued to program the matter to hearing. Subsequently, on 29 March 2022, Mr Waterton filed seven outlines of witness evidence.

22      The respondent raised concerns about the evidence that Mr Waterton intended to call and requested a conciliation conference to discuss the proposed evidence. Following a conciliation conference on 12 April 2022, Mr Waterton was directed to re-file the outlines of witness evidence.

23      On 21 June 2022, Mr Waterton filed nine outlines of witness evidence.

24      On 30 June 2022, the respondent filed 14 outlines of witness evidence, 12 of which were from students.

25      The matter was listed for a third conciliation conference on 19 August 2022 and a Directions Hearing on 6 October 2022. At the Directions Hearing, the Commission raised a jurisdictional concern with Mr Waterton regarding the remedies he sought in his Form 5. Additionally, the respondent objected to Mr Waterton’s outlines of witness evidence, arguing that they did not provide the respondent with a clear understanding of the case to answer.

26      After hearing from the parties, directions were issued granting Mr Waterton leave to file an amended Form 5 to amend the remedies sought by 3 November 2022. Directions were also issued requiring Mr Waterton to file amended outlines of evidence by 1 December 2022.

27      Mr Waterton did not comply with the directions issued at the Directions Hearing on 6 October 2022. In response to a query from the Commission about his non‑compliance, Mr Waterton requested an extension until 5 December 2022 to file an amended Form 5, citing a recently received notification from the respondent revoking the reprimands imposed. The respondent did not oppose Mr Waterton’s extension request. Consequently, directions were issued, by consent, to extend the time for Mr Waterton to file an amended Form 5 to 5 December 2022.

28      On 5 December 2022, Mr Waterton filed an application for leave to amend his Form 5, citing the respondent’s decision to endorse his employment record with the flag. This change was prompted by the respondent’s revocation of the reprimands initially imposed on 7 May 2021, as expressed in a letter to Mr Waterton dated 25 October 2022. Mr Waterton attached a copy of this letter to his application. The letter states:

In light of proceedings APPL 42 of 2021 and the need for a significant number of student witnesses to be called to give evidence if the proceedings proceed to trial, I have had cause to reconsider whether public interest considerations weigh in favour or against maintaining the reprimands in relation to the two allegations (Allegations 2 and 3) which I found to be substantiated.

Ultimately I have decided that public interest considerations weigh against maintaining those reprimands. In particular, I consider that the potential stress and trauma for the student witnesses in having to give evidence in a formal setting, considering their age, weighs against the reprimands remaining in place, particularly where the Department owes a duty of care to those students. Additionally, although of lesser weight, the significant amount of public resources that will be required to proceed to trial in APPL 42 of 2021 also weigh against the reprimands remaining in place.

Accordingly, I have decided to revoke the reprimands I imposed upon you and by this letter I revoke those reprimands. For the avoidance of doubt, I do not withdraw my findings that you breached discipline as set out in Allegations 2 and 3. Despite those findings of breach of discipline, rather than impose reprimands, I have decided to act under section 82A(3)(b)(iii) of the Public Sector Management Act 1994 (WA) and take no further action.

29      On 20 December 2022, the respondent filed an application for an order that the proceedings be dismissed under s 27(1)(a)(ii) or s 27(1)(a)(iv) of the Industrial Relations Act 1979 (WA) (Act) (Jurisdictional Objection).

30      At a Directions Hearing on 15 February 2023, the Jurisdictional Objection was listed for hearing on 22 March 2023, and directions were issued requiring the parties to file outlines of evidence and documents and their outline of legal submissions in advance of the hearing.

31      The hearing, part-heard on 22 March 2023, was adjourned to enable Mr Waterton to file material addressing the true nature of the Jurisdictional Objection. Mr Waterton had misconceived the Jurisdictional Objection as relating to whether his matter was an industrial matter as defined by s 7 of the Act, and whether his matter was precluded by s 23(2a) of the Act which states:

Notwithstanding subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.

32      The part-heard hearing of the Jurisdictional Objection was listed for further hearing on 26 April 2023.

The respondent’s contentions

33      Mr Waterton was formerly employed by the respondent as a teacher and subject to Part 5 of the PSM Act, which contains a statutory scheme for dealing with disciplinary matters.

34      Part 5 of the PSM Act states, that if an employing authority finds that an employee has engaged in a breach of discipline, the employing authority may take ‘disciplinary action’, defined by s 80A of the PSM Act to mean any one or more of the following (emphasis added):

(a)  a reprimand;

(b)  the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made;

(c)  transferring the employee to another public sector body with the consent of the employing authority of that public sector body;

(d)  if the employee is not a chief executive officer or chief employee, transferring the employee to another office, post or position in the public sector body in which the employee is employed;

(e)  reduction in the monetary remuneration of the employee;

(f)  reduction in the level of classification of the employee;

(g)  dismissal;

35      Section 78 of the PSM Act provides appeal and referral rights for employees and former employees aggrieved by certain decisions made under Part 5 of the PSM Act.

36      Section 78(2) of the PSM Act states (emphasis added):

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

…

(b)  is aggrieved by —

…

(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.

37      The reference to s 29(b) of the Act in s 78(2) of the PSM Act is a drafting or printing slip and should be read as s 29(1)(b): Johnston v Mance, Acting Director-General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553 [14]. The respondent contends that, given recent amendments to the Act, the reference to s 29(b) of the Act in s 78(2) of the PSM Act should now be read as s 29(1)(c) of the Act. I agree.

38      The respondent contends that when she revoked the reprimands, there was no longer any ‘decision to take disciplinary action’ which Mr Waterton could seek to have referred to the Commission under s 78(2) of the PSM Act.

39      The respondent contends that the endorsement of Mr Waterton’s employment record with the flag is not a ‘decision to take disciplinary action’. The flag is an ‘administrative part of the respondent’s process for employing teachers. It is the means to an end because it ensures that [Mr Waterton] is not offered further employment in the respondent’s schools unless his application is first approved by the Director, Standards and Integrity’: State School Teachers’ Union of W.A. (Incorporated) v Director General, Department of Education [2015] WAIRC 00875; (2015) 95 WAIG 1661 (Appleton) [21].

Mr Waterton’s contentions

40      Mr Waterton accepts that the respondent revoked the reprimands and decided instead to act under s 82A(3)(b)(iii) of the PSM Act and take no further action. He accepts that a decision under s 82A(3)(b)(iii) of the PSM Act is not one that can be referred to the Commission.

41      Mr Waterton accepts the respondent withdrew a decision to take disciplinary action against him. Consequently, he no longer seeks to refer a decision of the respondent to the Commission under s 78(2) of the PSM Act.

42      Mr Waterton contends that the Commission’s jurisdiction to hear his matter pertaining to the flag arises under s 29(1) of the Act, for the following reasons.

43      Firstly, a determination that the Commission lacks jurisdiction to hear his application would contravene s 23(3)(e)(ii) of the Act, as the Commission would be providing for his non‑employment.

44      Secondly, the preferred construction of s 29(1) of the Act is one that affords the Commission jurisdiction to hear his application, taking into account the text and context of s 29(1) of the Act and the purpose of the Act.

45      Thirdly, the respondent should be estopped from applying for an order that the proceedings be dismissed because of the conduct of the respondent.

Consideration

Non-employment

46      In State School Teachers’ Union of W.A. (Incorporated) v Director General, Department of Education [2014] WAIRC 00753; (2014) 94 WAIG 1469 (Munforti), the State School Teachers’ Union of W.A. (Incorporated) (SSTU) brought an application seeking an order that the respondent remove the flag from its member’s (Mr Munforti’s) employment record.

47      The SSTU’s application in Munforti was brought under s 44 of the Act.

48      Section 44(7) of the Act states (emphasis added):

The Commission may exercise the power conferred on it by subsection (1) –

(a)  on the application of –

(i)  any organisation, association or employer; or

(ii)  the Minister on behalf of the State; or

(iii)  an employee in respect of a dispute relating to an entitlement to long service leave;

or

(b)  on the motion of the Commission itself whenever industrial action has occurred or, in the opinion of the Commission, is likely to occur.

49      Section 7(1) of the Act defines an ‘organisation’ as meaning ‘an organisation that is registered under Division 4 of Part II’ and defines an ‘association’ as meaning ‘an association that is registered under Division 4 of Part II’.

50      Section 53 outlines the organisations of employees which can be registered, and s 54 outlines the organisations of employers which can be registered, under Division 4 of Part II of the Act.

51      Relevantly, the SSTU is an organisation of employees.

52      Mr Waterton is not a member of the SSTU.

53      Section 23(3)(e)(ii) of the Act states (emphasis added):

The Commission in the exercise of the jurisdiction conferred on it by this Part must not –

(e) provide for –

…

(ii) non-employment by reason of being or not being a member of an organisation;

54      Mr Waterton contends that a finding that the Commission lacks jurisdiction would breach s 23(3)(e)(ii) of the Act because it would provide for his non-employment by reason of him not being a member of an organisation, because:

(a)  if he was a member of the SSTU, the SSTU would have standing to bring an application to the Commission to review the flag on his employment record under s 44(7)(a)(i) of the Act, as the SSTU did in Munforti;

(b)  whilst he does not seek employment with the respondent, the flag results in non‑employment with the respondent; and

(c)  the flag has the potential to have an adverse impact on his future employment prospects in other professions, and therefore could potentially result in non-employment in the future.

55      The respondent contends that Mr Waterton’s argument is misconceived, as s 23(3)(e)(ii) of the Act limits the Commission’s powers when it has jurisdiction. The issue of whether the Commission holds jurisdiction is an anterior question that must be addressed, and s 23(3)(e)(ii) of the Act is not relevant to that question.

56      I agree with the respondent’s contention. Section 23(3)(e)(ii) of the Act does not assist Mr Waterton. The words ‘in the exercise of the jurisdiction conferred on it by this Part’ make clear that s 23(3)(e)(ii) of the Act is applicable only if the Commission possesses jurisdiction.

Construction of s 29(1) of the Act

57      Mr Waterton contends that s 29(1) of the Act should be construed to provide him with standing to continue his application. He asserts it would be an unreasonable result that if he was a member of the SSTU that the SSTU could bring an application under s 44(7)(a)(i) of the Act to contest the flag on his employment record, as they did in Munforti, but as an individual he does not have standing to contest the flag on his employment record under s 29(1) of the Act.

58      Section 29(1) of the Act outlines the parties that have standing to refer an industrial matter to the Commission.

59      Section 29(1)(c), s 29(1)(d) and s 29(1)(e) of the Act outline the matters that an individual may refer to the Commission. These provisions state (emphasis added):

(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.

60      Section 7(2A) of the Act (referred to in s 29(1)(e) of the Act) states that a matter relating or pertaining to the bullying or sexual harassment of a worker is an industrial matter.

61      Mr Waterton does not contend that his matter arises under s 29(1)(d) or s 29(1)(e) of the Act.

62      Although Mr Waterton accepts that the respondent did not dismiss him, he contends that the Commission has jurisdiction to hear his matter under s 29(1)(c) of the Act.

63      He submits that this is because s 29(1)(c) of the Act should be construed to apply to a claim that he has been harshly, oppressively or unfairly treated.

64      Alternatively, he submits that s 29(1) of the Act should be construed such that ‘an additional provision could be read in on the basis that the purpose of the Act is not to prevent [him], in this situation, from bringing [his] matter before the Commission whilst an organisation could.’

65      The respondent contends that both the text and context of the Act clearly indicate an intended distinction between unions and individual employees concerning the types of claims each can bring before the Commission. The respondent submits that this differentiation is explicitly supported by the second reading speech of the Industrial Arbitration Bill 1979 (WA) which enacted the Industrial Arbitration Act 1979 (WA), the predecessor to the Act, which states:

One of the special privileges contained in the earlier legislation was to give unions sole right of access to industrial tribunals to the exclusion not only of other unions but also of individual employees. The individual employee was dependent upon the union or, in some cases, the Industrial Registrar or other official, if he or she wished to seek remedy under the Act for any grievance he or she might have had. In 1963 some modification was made but this was extremely limited.

The Bill provides employees with the capacity to move under the industrial law to protect certain basic entitlements. These are limited and therefore do not threaten the existence or viability of unions or provide an incentive for them to leave the system.

The Bill enables an employee, on his own account, to refer to the commission a claim that he has been unfairly dismissed or that he has not been allowed a benefit to which he is entitled under his contract of employment – a right he did not have before.

66      The respondent maintains that if such a distinction leads to an unreasonable result as Mr Waterton suggests, the Commission cannot rectify it by introducing new provisions or amending existing ones in a manner that directly conflicts with the Act’s current provisions. Instead, addressing any unreasonable result falls under the purview of parliament.

67      I agree. The provisions of s 44 and s 29(1) of the Act are plain on their reading.

68      Section 44 provides an organisation of employees, such as the SSTU, with standing to bring matters on behalf of its members, that an individual does not have standing to bring.

69      Parliament’s intention for an organisation of employees having standing to bring matters on behalf of its members, that an individual does not have standing to bring, was set out in the second reading speech when introducing the provisions which are now s 29(1)(c) and s 29(1)(d) of the Act.

70      Mr Waterton accepts he no longer has standing to seek to have the Commission review a decision of the respondent under s 78(2) of the PSM Act.

71      As Mr Waterton is not contesting an entitlement to long service leave, he does not have standing to pursue an application under s 44(7)(a)(iii) of the Act.

72      As Mr Waterton accepts he was not dismissed, he does not have standing to pursue an application under s 29(1)(c) of the Act.

73      Section 29(1)(c) of the Act cannot be interpreted to encompass not only harsh, oppressive, or unfair dismissal but also any harsh, oppressive, or unfair treatment of an employee.

74      Section 29(1) of the Act does not permit a construction that would allow Mr Waterton to challenge the endorsement of his employment record with a flag.

75      In the absence of any other provision allowing Mr Waterton to challenge the endorsement of his employment record with a flag, I find that the Commission lacks jurisdiction to hear Mr Waterton’s Form 5.

76      If this finding leads to an unreasonable result as contended by Mr Waterton, I agree with the respondent’s contention that this is a matter for parliament.

Estoppel

77      Mr Waterton contends that the respondent should be estopped from pursuing the Jurisdictional Objection for the following reasons.

78      Firstly, Mr Waterton claims the respondent’s conduct has been unconscionable. Mr Waterton argues the unconscionability stems from procedural deficiencies in the investigation process concerning the misconduct allegations. Additionally, he asserts that since the respondent chose to call 12 student witnesses, her claim of revoking the reprimands in the best interests of the students is both pious and disingenuous.

79      Secondly, Mr Waterton claims the respondent made a promise, which he reasonably relied and acted upon, that if he discontinued U 36/2021 and filed a Form 5 the respondent would not object to the Commission hearing and determining an appeal on that basis.

80      The respondent contends that estoppel does not arise. Any procedural deficiencies are irrelevant to the jurisdictional question. Moreover, the respondent’s email to Mr Waterton states that she ‘would not object to the WAIRC hearing and determining the appeal on that basis’ – with ‘that basis’ referring to an appeal against the decision to impose the reprimands. As the reprimands have been withdrawn, there is no longer a necessity for Mr Waterton to seek a Commission review of the reprimands. Consequently, the respondent has not resiled from a promise that could give rise to estoppel.

81      Regardless, the respondent maintains that Mr Waterton’s argument is misplaced, as even if an estoppel properly arose, the parties cannot confer jurisdiction upon the Commission when none exists. Similarly, estoppel cannot confer jurisdiction to the Commission when such jurisdiction is non-existent.

82      I agree with the respondent’s contentions for the following reasons.

83      Firstly, neither the parties nor estoppel can grant jurisdiction to the Commission when jurisdiction is absent.

84      Jurisdiction has to be determined as a preliminary issue and on the balance of probabilities: The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] 181 CLR 404 (426).

85      The Commission is obliged to enquire into and determine whether it has jurisdiction before proceeding further: Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) and the Plumbers and Gasfitters Employees’ Union of Australia, West Australian Branch, Industrial Union of Workers and the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers and the Australian Builders’ Labourers’ Federated Union of Workers – Western Australian Branch (1986) 67 WAIG 466 (467).

86      Secondly, upon examining the correspondence between the parties in U 36/2021, I find no grounds for Mr Waterton to claim that the respondent made a promise which he relied upon to his detriment.

87      In the Form 2A filed in U 36/2021, the respondent placed Mr Waterton on notice that she considered the unfair dismissal application filed by Mr Waterton to be without foundation because ‘it did not, and could not, either consider or impose a penalty of dismissal.’

88      In the email sent by the respondent’s representative to Mr Waterton on 30 August 2021, the representative states that the respondent, having not dismissed Mr Waterton but imposed reprimands against him, acknowledges his right to appeal the reprimands under s 78(2)(b)(iv) of the PSM Act. The email highlights that the respondent was indifferent to the form used by Mr Waterton (be it a Form 5 or another form) so long as he made it clear that he was appealing against the reprimands rather than arguing he had been dismissed. In such a case, the respondent’s jurisdictional objection (that he had been dismissed) would no longer be applicable.

89      The relevant sections of the email the respondent’s representative sent to Mr Waterton on 5 November 2021, that Mr Waterton seeks to rely upon as supporting the argument for an estoppel, states:

I confirm that if you discontinue the current matter and commence a new appeal against your reprimand by filing a Form 5, the Respondent will not object to the WAIRC hearing and determining the appeal on that basis. In particular, the Respondent will not argue that there is any prejudice to it arising from the time between the imposition of the reprimand and the filing of the appeal.

To be completely transparent, there is in the Respondent’s view a question about whether the “flag” on your employment record is part of the disciplinary action against you. The Respondent’s view is that it is merely the administrative consequence of the disciplinary action, being the reprimand.

However, it appears to me this is another technical point it is unnecessary to resolve for the purposes of achieving your primary object of having the WAIRC rule on whether the disciplinary findings against you were fair or not, which it will do in the course of reviewing the reprimand.

90      A fair reading of the above email indicates that the respondent only represented that she would not oppose Mr Waterton filing a Form 5 to contest the reprimands, which she did not do.

91      Furthermore, the respondent reiterated the stance expressed in the Form 2A, that she does not consider the flag to be an issue that can be referred to the Commission. The respondent has consistently maintained this position.

92      No interpretation of the above email suggests that the respondent was precluded from revoking the reprimands. Moreover, there is no implication that once the reprimands were revoked, that the respondent would be prevented from arguing that there was no longer a decision to take disciplinary action that was referable to the Commission under s 78(2) of the PSM Act.

Conclusion

93      Mr Waterton did not assert that the Commission’s jurisdiction arises under s 78(2) of the PSM Act and consequently did not argue that the endorsement of his employment record with a flag constituted a decision to take disciplinary action.

94      In the circumstances, I find no reason not to follow Appleton, and find that the endorsement of Mr Waterton’s employment record with a flag is not a decision to take disciplinary action, but an ‘administrative part of the respondent’s process for employing teachers. It is the means to an end because it ensures that [Mr Waterton] is not offered further employment in the respondent’s schools unless his application is first approved by the Director, Standards and Integrity’ [21].

95      As a result, I find that when the respondent revoked the reprimands, there was no longer a decision by the respondent that Mr Waterton could seek to refer to the Commission under s 78(2) of the PSM Act.

96      For the reasons stated, s 29(1) of the Act does not allow Mr Waterton to challenge in the Commission the endorsement of his employment record with a flag.

97      Given that no other provision under the Act allows for Mr Waterton to proceed with his Form 5, I am satisfied that his application should be dismissed in accordance with s 27(1)(a)(ii) or s 27(1)(a)(iv) of the Act.

98      Accordingly, application APPL 42 of 2021 will be dismissed.