APPEAL AGAINST THE DECISION OF THE EMPLOYER GIVEN ON 12 MARCH 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00736

DELIVERED : MONday, 29 July 2024

FILE NO. : PSAB 7 OF 2024

Appellant

AND

Shire of Halls Creek

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Whether the Board has jurisdiction to review, hear and determine the appeal – Whether the appellant is a government officer - Whether the appellant is a public service officer – Whether the appellant is on the salaried staff of a pulic authority – No jurisdiction – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)

Public Sector Management Act 1994 (WA)  

Result : Application dismissed

Representation:  (on the papers)

Case(s) referred to in reasons:

Deborah Mills v Shire of Broome [2010] WAIRC 00389; (2010) WAIG 667

City of Albany v Joe O’Keefe [2005] WAIRC 02224; (2005) 85 WAIG 3257

Reasons for Decision

1         The appellant, Mr Phillip Cassell, filed a Form 8B – Notice of Appeal on 25 March 2024 against his employer’s decision to terminate this employment. The appeal purports to be made to the Public Service Appeal Board under s 80I(1)(c) of the Industrial Relations Act 1979 (WA).

2         In his appeal, Mr Cassell identifies his ex-employer as the Shire of Halls Creek. He describes his position title whilst employed with the Shire as its Chief Executive Officer.

3         These details on the face of it raised a question for the Board as to whether Mr Cassell is a government officer for the purpose of s 80I(1)(c) of the Act. If he is not, then the Board has no jurisdiction and Mr Cassell has no standing to appeal to the Board.

4         The Board directed that the issue of its jurisdiction be determined as a preliminary issue on the papers and invited Mr Cassell to submit written submissions as to why he was a government officer with standing to appeal to the Board.

5         We have considered Mr Cassell’s submissions. They do not persuade us that we have jurisdiction and accordingly, we dismiss Mr Cassell’s appeal for the following reasons.

Mr Cassell’s employment

6         In his notice of appeal, Mr Cassell says he was employed by the Shire from 22 March 2022 to 12 March 2024 as its Chief Executive Officer. The Shire terminated Mr Cassell’s employment based on the findings of an internal investigation into misconduct involving the sale of an asset.

7         He seeks that the termination be rescinded on the basis that it was an unfair decision in circumstances where he says he was acting in the best interests of stakeholders, had not concealed his intentions and did not cause the Shire to suffer any loss. He asks the Board to rescind the termination decision but he does not seek reinstatement. Rather he seeks to have his earlier resignation from his employment take effect.

Mr Cassell’s submissions

8         In his written submissions, Mr Cassell refers to s 23 of the Act which gives the Commission authority to ‘enquire into and deal with any industrial matter’. He says that s 29(1)(c) of the Act permits an industrial matter to be brought before the Commission by employees in local government against local government entities. In this regard he refers to two cases, Deborah Mills v Shire of Broome [2010] WAIRC 00389; (2010) WAIG 667 and City of Albany v Joe O’Keefe [2005] WAIRC 02224; (2005) 85 WAIG 3257.

9         Mr Cassell’s submissions do not address the issue for determination, that is, whether he is a government officer and whether the Board has jurisdiction. There is no doubt that the Commission has authority to enquire into and deal with unfair dismissal claims by local government employees against local government employers, subject to the limitations set out in s29AA., But Mr Cassell has not made an unfair dismissal claim to the Commission under s 29(1)(c). He has appealed to the Public Service Appeal Board.

The Board’s jurisdiction

10      The Board’s jurisdiction is set out in s 80I of the Act. Relevantly, the Board has jurisdiction to review, hear and determine an appeal by a government officer that the government officer be dismissed.

11      Section 80C(1) of the Act defines ‘government officer’ to mean:

(a) every public service officer; and

(aa) each member of the Governor’s Establishment within the meaning of the Governor’s Establishment Act 1992; and

(ab) each member of a department of the staff of Parliament referred to in, and each electorate officer within the meaning of, the Parliamentary and Electorate Staff (Employment) Act 1992; and

(b) every other person employed on the salaried staff of a public authority; and

(c) any person not referred to in paragraph (a) or (b) who would have been a government officer within the meaning of section 96 of this Act as enacted before the coming into operation of section 58 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984,

but does not include —

(d) any teacher; or

(e) any railway officer as defined in section 80M; or

(f) any member of the academic staff of a post-secondary education institution

12      Mr Cassell has not identified which part of this definition he might come within as an employee of a local government.

Is Mr Cassell a public service officer?

13      ‘Public service officer’ is defined in s 7 of the Act to mean ‘a public service officer within the meaning of the Public Sector Management Act 1994’.

14      The Public Sector Management Act 1994 (WA) defines, in s 3, ‘public service officer’ to mean ‘an executor officer, permanent officer or term officer employed in the Public Service under Part 3’.

15      ‘Public Service’ is defined in Part 3, s 34 of the Public Sector Management Act as constituted by:

(a) departments; and

(b) SES organisations, insofar as any posts in them, or persons employed in them, or both, belong to the Senior Executive Service; and

(c) persons employed under this Part, whether in departments or in the Senior Executive Service in SES organisations, or otherwise.

16      The Shire is neither a department, nor an SES organisation as defined in the Public Sector Management Act.

17      There is no suggestion that Mr Cassell’s employment is pursuant to Part 3 of the Public Sector Management Act.

18      As Mr Cassell was not employed under Part 3 of the Public Sector Management Act nor employed by a department or SES organisation, he is not a public service officer as defined. He is therefore not a government officer as defined within s 80C(1)(a) of the Act.

Is Mr Cassell on the salaried staff of a public authority?

19      Although there is no evidence before us, we are willing to assume that Mr Cassell was on the Shire’s salaried staff. The question then is whether the Shire is a public authority for the purpose of s 80C(1)(b).

20      Section 7 of the Act, defines ‘public authority’ to mean:

[T]he Crown, the Government in Executive Council, any Minister of the Crown in right of the State, the President of the Legislative Council or the Speaker of the Legislative Assembly or the President of the Legislative Council and the Speaker of the Legislative Assembly, acting jointly, as the case requires under the Parliamentary and Electorate Staff (Employment) Act 1992, the Governor or the Governor’s delegate under the Governor’s Establishment Act 1992, State Government department, State trading concern, State instrumentality, State agency, or any public statutory body, corporate or unincorporate, established under a written law but does not include a local government, regional local government or regional subsidiary.

21      The Shire of Halls Creek is undoubtedly a local government and therefore, clearly excluded from the definition of public authority. Mr Cassell therefore cannot be a salaried employee of a public authority for the purposes of s 80C(1)(b).

22      On the face of it, none of the other components of the definition apply. Accordingly, Mr Cassell is not a government officer within s 80C(1) of the Act and does not have standing to bring an appeal.

23      The appeal is beyond the Board’s jurisdiction and will be dismissed.