REFERRAL OF A DECISION TAKEN BY THE EMPLOYER ON 15 JANUARY 2025

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00767

DELIVERED : TUESday, 9 September 2025

FILE NO. : P 4 OF 2025

Applicant

AND

South Metropolitan Health Service

Respondent

CatchWords : Dismissal application under s 27(1)(a) of the Industrial Relations Act 1979 (WA) – Jurisdiction of the Commission – Certain decisions and findings as industrial matters under the Industrial Relations Act 1979 (WA) – Out of time – Dismissal application upheld

Legislation : Industrial Relations Act 1979 (WA) ss 23(3)(d), 23(3)(h)(ii), 23A, 27(1)(a), 29(1), 36AA(2)(c)

  Health Services Act 2016 (WA) ss 147, 148, 164(1)(a), 171

Result : Application to dismiss upheld

  Substantive application dismissed

Representation:

Applicant : On his own behalf

Respondent : Mr M Aulfrey (as agent)

Case(s) referred to in reasons:

Bellamy v Chairman Public Service Board (1986) 66 WAIG 1579

Jade Smith v Minister for Corrective Services [2022] WAIRC 00848; (2023) 103 WAIG 51

Palaloi v Director General, Department of Education [2025] WASCA 130

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431

United Professional Firefighters Union of Western Australia v Department of Fire and Emergency Services [2023] WAIRC 00399; (2023) 103 WAIG 1470

Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 01044; (2025) 105 WAIG 45

Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00706; (2013) 93 WAIG 1439

Reasons for Decision

1         In July 2024 Dr Lee was employed as a Senior Registrar in Psychiatry by South Metropolitan Health Service (Health Service) on a 0.2 FTE basis on a fixed-term contract from 5 August 2024 until 2 February 2025. In September 2024 Dr Lee was directed not to attend work until further notice.

2         Dr Lee says he was suspended from work via an email sent on 15 January 2025. He seeks reinstatement under his employment contract or an apology.

3         The Health Service asks the Commission to dismiss application P 4 of 2025 (Dismissal Application). Essentially, it says that the Commission does not have jurisdiction, Dr Lee does not have standing, the application is out of time and the Commission cannot make the orders that Dr Lee seeks.

What the Commission must decide

4         I must decide whether to dismiss application P 4 of 2025.

Legislation

5         Section 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) provides:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it –

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied –

   (i)  that the matter or part is trivial; or

(ii)  that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

…

Should the Commission dismiss application P 4 of 2025?

6         This matter was heard at an in person hearing after the parties each had an opportunity to file outlines of any witness evidence, documents and written submissions. Neither party relied on any witness evidence. They each filed a bundle of documents, which became Exhibit R1 and Exhibit A1.

7         I have carefully considered the parties’ documents and submissions.

Background

8         The Health Service employed Dr Lee under a fixed-term contract to work one day per week. Early in the employment relationship, for reasons not explained to Dr Lee, it seems the Health Service decided that it did not want Dr Lee to attend work.

9         Dr Lee only worked attended the workplace on one day, 25 July 2024.

10      By letter dated 11 September 2024, the Health Service told Dr Lee:

…you will not be required to present for work until further notice. I direct you not to present for work unless otherwise instructed or authorised by me.

You will be paid in accordance with your contract of employment for the period of your employment. By way of reminder, your employment is for a fixed term and expires on 12th January 2025.

…

Please note these directions are not Disciplinary Action, and should  not be interpreted as such.

For the avoidance of doubt, these directions have no scheduled end date and remain in place until further notice or the end of your employment contract, whichever occurs first.

…

Whilst you are not currently required to attend for rostered duty, as you are an employee of Rockingham Peel Group, you are still required to comply with any and all lawful instructions of SMHS in the interim. Failing to comply with a lawful directive may amount to a breach of discipline.

11      It is not in dispute that the letter dated 11 September 2024 mistakenly refers to the end of the fixed-term of employment as 12 January 2025, instead of 2 February 2025. Indeed, Dr Lee wrote to the Health Service on 14 January 2025, pointing out as much. In that email, Dr Lee said:

I request that my contract continue to maintain and extend to its full and due course. In the ‘letter of direction’ from Kathleen Smith… it erroneously states that my employment is for a fixed term and expires on 12th January 2025. As per the details – verbatim from the contract, the exact end date for the contract is 2nd February 2025.

12      He went on to request a copy of his job description.

13      The Health Service responded to Dr Lee’s email on 15 January 2025, addressing the two matters Dr Lee raised in his email. In relation to the end date of the fixed-term contract, the Health Service said:

I confirm I have reviewed your contract of employment and concur that the end date stated in the contract is 2 February 2025. As such I have instructed the Mental Health Administration team to update your contract end date accordingly. As directed by Ms Kathleen Smith, you are not required to present for work until further notice and I direct you not to present for work unless otherwise instructed or authorised by Ms Kathleen Smith.

14      It is not in dispute that:

1. Dr Lee was employed by the Health Service from 5 August 2024 until 2 February 2025 under a fixed-term contract of employment; and
2. the Health Service directed Dr Lee to not present for work unless otherwise directed and continued to pay him for the period of his fixed-term contract.

15      It is clear from Dr Lee’s Form 5 – Application to Refer Public Sector Matter (Form 5) that Dr Lee has referred to the Commission the Health Service’s decision dated 15 January 2025, which he says was a decision to suspend him on full pay. Dr Lee is aggrieved that he was not given reasons for the decision and he feels he has been treated unfairly.

The Health Service’s case

16      In summary, the Health Service argues:

1. section 23(3)(d) of the IR Act prevents the Commission from regulating suspension from duty if there is another provision under another Act, however expressed, for an appeal in a matter of that kind: Bellamy v Chairman Public Service Board (1986) 66 WAIG 1579. Section 171 of the Health Services Act 2016 (WA) (HS Act) provides an avenue for an employee to contest a decision to suspend, but only if it is a suspension on partial pay or without pay;
2. Dr Lee has no standing to refer this matter to the Commission because:
   1. section 29(1)(j) of the IR Act gives individuals standing to appeal suspension matters where s 171 of the HS Act names them as industrial matters; and
   2. under s 171 of the HS Act, a decision to suspend on full pay is not an industrial matter. Only decisions to suspend on partial pay or without pay may be referred to the Commission as industrial matters. The Health Service denies that Dr Lee was suspended, but argues that if he was suspended, it was not on partial pay or without pay;
3. even if Dr Lee was suspended, his period of employment was not extended. The contract of employment ended on 2 February 2025. The Commission cannot grant the remedies sought. Dr Lee seeks reinstatement and an apology but the Commission cannot order either remedy. Dr Lee does not say he was unfairly dismissed. The Commission cannot order reinstatement in those circumstances, because of the effect of ss 23A and 23(3)(h)(ii) of the IR Act; and
4. Dr Lee’s referral was made out of time because it is about a decision made on 11 September 2024. To the extent that the Form 5 says Dr Lee appeals a direction from 15 January 2025, that direction is not a ‘decision’ and is merely a restatement the Health Service’s earlier direction made on 11 September 2024.

17      The Health Service argues that the Commission’s power to dismiss under s 27(1)(a) of the IR Act is broad and there is no particular level of satisfaction to be achieved by the Commission for the exercise of the power: The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431 at [27]. In all the circumstances, the Health Service submits that the Commission should uphold its Dismissal Application and dismiss application P 4 of 2025.

Dr Lee’s case

18      In response to the Health Service’s Dismissal Application, essentially Dr Lee criticises the way the Health Service has dealt with him.

19      In summary Dr Lee argues:

1. the matter is not trivial. Unfair dismissal and suspension are serious. He says ‘an employee cannot be suspended (forcefully instructed not to work) and then have the Employer claim it is neither a suspension nor a decision’ and ‘[an] employee sent away from contractual employment by their employer must be either Dismissed or Suspended (or injured) – both are decisions. Such detrimental action by an employer must be seen as a dismissal or a decision, not neither’;
2. the Health Service has acted arbitrarily, has not explained the reasons for its actions and its communication methods have been inappropriate. He argues that the Health Service has potentially breached the industrial agreement and says no reasonable employer would hire someone only to tell them not to come to work;
3. he has been denied procedural fairness;
4. ‘such a matter generally warrants investigation to ensure fair employment practices and adherence to industrial agreements’;
5. it is in the public interest for public sector employers to follow natural justice principles and industrial agreements. Further, addressing the Health Service’s deceptive workplace behaviour is in the public interest;
6. the Commission has broad powers and jurisdiction, and he has standing to refer the matter because it relates to being ‘suspended unlawfully and unreasonably’;
7. despite agreeing that he was suspended on full pay, at the hearing Dr Lee argued that his payslip showed that hours were deducted from his accrued annual leave, which he says is evidence of ‘less than full pay’; 
8. he is unsure of which subsection of s 171 of the HS Act he relies on and he does not point to any section beyond s 171(1)(a) of the HS Act; and
9. his application was not filed late, because it was filed within 28 days of the direction dated 15 January 2025.

20      Dr Lee makes various submissions about the meaning of ‘decision’ and argues that Mr Clive Mulroy’s email dated 15 January 2025 amounts to a decision to impose the continued suspension until 2 February 2025.

Consideration

21      The principles that the Commission must apply when considering whether to dismiss an application under s 27(1)(a) of the IR Act are well established. Recently, the Industrial Appeal Court in Palaloi v Director General, Department of Education [2025] WASCA 130 confirmed at [26] that the approach taken by the Full Bench in relation to s 27(1)(a) was correct, describing the Full Bench’s approach at [13]:

The Full Bench said that the power of the Commission to dismiss a matter under s 27 of the Act is a broad power. However, given that a person who brings proceedings before the Commission is entitled to have the jurisdiction invoked, the statutory power to dismiss a matter under s 27(1)(a) of the Act is to be exercised sparingly and only in a clear case... (footnotes omitted)

22      This approach is consistent with that taken in many Commission decisions, including in Jade Smith v Minister for Corrective Services [2022] WAIRC 00848; (2023) 103 WAIG 51 at [24]. Recently the Commission in Court Session in Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 01044; (2025) 105 WAIG 45 set out the principles from [4] – [6]. I respectfully adopt and apply that reasoning in this matter.

23      Section 29(1)(j) of the IR Act enables an employee who is aggrieved by certain industrial matters to refer that matter to the Commission.

24      Section 36AA(2)(c) of the IR Act provides that the Commission has jurisdiction to enquire into and deal with a decision or finding that is an industrial matter under s 171 of the HS Act.

25      Section 171 of the HS Act defines the following as industrial matters for that purpose:

171. Certain decisions and findings are industrial matters for purposes of Industrial Relations Act 1979

(1) Subject to section 118, each of the following is an industrial matter for the purposes of the Industrial Relations Act 1979 —

(a) a decision under section 147, 148 or 164(1)(a) to suspend an employee or former employee on partial pay or without pay;

(b) a decision under section 150(1), 163(3)(b) or 166(b) to take disciplinary action in relation to an employee or former employee;

(c) a decision under section 159(1)(b) or (c) in relation to an employee or former employee;

(d) a finding mentioned in section 165(5)(a)(ii) made in relation to an employee or former employee;

(e) a decision under section 168(1) to terminate the employment of an employee or former employee;

(f) if proceedings have been taken under this Part against an employee or former employee for a suspected breach of discipline arising out of alleged disobedience to, or disregard of, a lawful redeployment direction —

(i) a finding mentioned in section 163(3)(a), 165(5)(a)(i) or 166(a) made in relation to the employee or former employee; or

(ii) a decision under section 164(1)(a) to suspend the employee or former employee on partial pay or without pay.

Note for this section:

See the Industrial Relations Act 1979 section 36AA and Part II Division 2AA Subdivision 3 for the jurisdiction of the Commission (as defined in the Industrial Relations Act 1979 section 7(1)) to hear and determine an industrial matter mentioned in this section.

(2) In subsection (1) —

lawful redeployment direction means a direction which is a lawful order for the purposes of section 161(a) by virtue of section 174A.

[Section 171 inserted: No. 43 of 2024 s. 141.]

[172, 173. Deleted: No. 43 of 2024 s. 141.]

26      It is clear that Dr Lee is aggrieved by the way the Health Service has dealt with him. However, the Commission does not have jurisdiction to enquire into and deal with every employment matter that may arise. For Dr Lee to have standing, there must be an industrial matter as defined by s 171 of the HS Act for him to refer. As I explain below, there is not. Fundamentally, almost all of Dr Lee’s submissions are misconceived or irrelevant.

27      In response to the Form 5’s question ‘What are the grounds of your application?’, Dr Lee sets out that he is aggrieved by Mr Mulroy’s direction dated 15 January 2025 suspending him from work on full pay. A fair reading of the Form 5 makes it clear that Dr Lee has referred a decision to suspend him on full pay.

28      The Health Service directed Dr Lee not to attend work on 11 September 2024, reiterated that direction on 15 January 2025 and continued to pay him for the duration of his employment contract, until it expired with the passing of time on 2 February 2025. However, that does not necessarily amount to a decision made under ss 147, 148 or 164(1)(a) of the HS Act to suspend Dr Lee.

29      On what is before me, I cannot find that a decision was made under ss 147, 148 or 164(1)(a) of the HS Act to suspend Dr Lee. But even if I am wrong about that, it would not make a difference to the outcome in this case. This is because a decision to suspend on full pay is not an industrial matter that may be referred by an individual to the Commission under s 29(1) of the IR Act.

30      Dr Lee’s submission that ‘an employee sent away from contractual employment by their employer must be either Dismissed or Suspended’ is misconceived. Suspension under the statute is not the only option available to an employer. In any event, in this case the Health Service directed Dr Lee not to attend work but it still paid Dr Lee his salary. Even if Dr Lee could establish that he was suspended under the HS Act, which I do not accept, any such suspension was on full pay. There is no standing under the IR Act (and HS Act) for an employee to refer a decision to suspend on full pay to the Commission. It is only a decision under ss 147, 148 or 164(1)(a) to suspend on partial pay or no pay that can be referred to the Commission.

31      There is no evidence before the Commission that Dr Lee was subject to a disciplinary process or disciplinary action under the HS Act. Further, I am not persuaded by Dr Lee’s argument that an issue in relation to the accrual or payment of his annual leave means that Dr Lee was suspended on partial pay. At the directions hearing on 26 March 2025, Dr Lee confirmed that the only matter he is appealing in this application is his suspension on full pay. It is not in dispute that Dr Lee was paid throughout his employment as though he had been working. Dr Lee is not aggrieved about being suspended on partial pay. He is aggrieved that the Health Service directed him to stay away from work, paid him as though he were working, and did not explain the reasons for the Health Service’s decision to do so.

32      Dr Lee does not rely on any other decision or finding referred to in s 171 of the HS Act. The circumstances of this matter do not provide any other referral avenues available to an individual under s 29 of the IR Act.

33      The matter that Dr Lee has referred to the Commission is not an industrial matter under s 171 of the HS Act. Dr Lee does not have standing to refer this matter to the Commission. It follows that the Commission lacks jurisdiction to deal with his application.

34      Section 23(3)(d) of the IR Act creates a further difficulty for Dr Lee. As I said in United Professional Firefighters Union of Western Australia v Department of Fire and Emergency Services [2023] WAIRC 00399; (2023) 103 WAIG 1470 at [8]:

In Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00706; (2013) 93 WAIG 1439 (Sell’s case), Kenner C (as he was then) said at [17]: ‘[s]ection 23(3)(d) is a clear statement of legislative intention that the Commission shall not exercise its powers in relation to the specified subject matter, if there is “provision, however expressed”, for that same subject matter, including a right of appeal, prescribed by other legislation. This provision is clearly intended to prevent matters within the prescribed subject matter, from being dealt with in more than one jurisdiction.’

35      The effect of s 23(3)(d) of the IR Act is that the Commission cannot regulate the suspension from duty in employment of an employee in circumstances where a provision of another Act, here the HS Act, already does so and provides for an appeal in a matter of that kind.

36      For completeness, I will deal with the Health Service’s arguments in relation to the lack of a remedy in this case. Dr Lee seeks reinstatement and an apology. The Commission does not have the power to order either of those remedies in the circumstances. To the extent Dr Lee’s submissions focus on unfair dismissal and the Commission’s powers under s 23A of the IR Act, those submissions are not relevant. Application P 4 of 2025 is not an application that Dr Lee has been harshly, oppressively or unfairly dismissed. Indeed, in February 2025 Dr Lee discontinued his unfair dismissal application (application U 86 of 2024). In this case, the Commission would not have the power to order the remedies Dr Lee seeks. Further, I accept the Health Service’s submission that Mr Mulroy’s direction dated 15 January 2025 merely reiterated the direction made on 11 September 2024 by Ms Kathleen Smith that Dr Lee was not to present for work.

37      In circumstances where Dr Lee lacks standing to refer application P 4 of 2025, and the Commission lacks jurisdiction to deal with it, I am satisfied that this is a clear case where the power under s 27(1)(a)(ii) and (iv) of the IR Act should be exercised. It is consistent with the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case.

38      The Dismissal Application is upheld. The Commission will order that application P 4 of 2025 be dismissed.