APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 6 MARCH 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00780

DELIVERED : Monday, 15 September 2025

FILE NO. : PSAB 21 OF 2024

Appellant

AND

Director General of the Department of Justice

Respondent

CatchWords : Industrial Law W.A. - Public Service Appeal Board - Appeal against decision to terminate employment - Appeal filed outside timeframe - Extension of time - Relevant considerations applied - Extension of time granted

Legislation : Industrial Relations Act 1979 (WA)

  Young Offenders Act 1994 (WA)

  Young Offenders Regulations 1995 (WA)

  Industrial Relations Commission Regulations 2005 (WA)   

Result : Extension of time granted

Representation:

Appellant : Ms D Levitt (of counsel)

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

Crabtree v Director General, Department of Education [2021] WAIRC 00538; (2021) 101 WAIG 1401

Nottle v Chief Executive Officer (Department of Justice) [2024] WAIRC 00751; (2024) 104 WAIG 1793

Lawn v Director General, Department of Justice [2024] WAIRC 00773; (2024) 104 WAIG 1926

Reasons for Decision

1         Mr Jorg Arno Nottle (Appellant) commenced employment with the Department of Justice (Respondent) as a Probationary Youth Custodial Officer in February 2023. The Appellant was purportedly discharged from this office on 6 March 2024.

2         On 13 August 2024, the Appellant referred the decision to terminate his employment to the Public Service Appeal Board (Board). The referral has not been made within the prescribed timeframe, which is 21 days in accordance with reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA).

3         The Board may extend the time for lodging an appeal.

4         In Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817, the Board in this case set out four key considerations in the determination of whether to grant an extension of time to file an appeal:

(a) the length of the delay;

(b) the reason for the delay;

(c) whether the Appellant has an arguable case; and

(d) any prejudice to the Respondent if the application were granted.

Length of delay

5         The appeal was filed around 4 1/2 months out of time.

6         The Appellant argues that an assessment of the length of delay ought to consider the Appellant’s earlier unsuccessful attempts to bring this matter before the appropriate authority under the Industrial Relations Act 1979 (WA) (IR Act).

7         The Appellant previously filed an application under s 29(1)(c) of the IR Act for unfair dismissal, which was accepted for filing on 4 April 2024 having been lodged on 3 April 2024 (U 28 of 2024). This application was made on the Appellant’s behalf by his lawyers at the time.

8         On 21 May 2024, the Appellant also filed an appeal against removal action under s 11CH(2) of the Young Offenders Act 1994 (WA) (APPL 92 of 2024).

9         The Respondent submits that the Appellant was on notice that the correct jurisdiction to appeal against his discharge from office was the Board, since the Respondent advised of this in its filed response in U 28 of 2024 on 9 April 2024. Accepting it would have then been appropriate for him to take advice as to the correct jurisdiction, the Respondent asserts a reasonable person would have filed an appeal with the Board by at least the end of April. Consequently, this would be a 3 1/2 month delay.

10      The Appellant referred the decision to terminate his employment to the Board on 13 August 2024. The Appellant submits that the correct jurisdiction was not known until APPL 92 of 2024 had been decided on 9 August 2024. 

11      The Board finds that the length of the delay was about 4 1/2 months, which compared to the limit of 21 days provided for in the IR Act, is a significant delay. This element weighs against granting an extension of time. The weight of this may be modified with the consideration of the reasons for the delay.

Reasons for the delay

12      The Appellant submits that he engaged lawyers, Baldwin Legal, and was guided by their advice. The first application made on 4 April 2024 was under s 29(1)(c) of the IR Act. The Appellant filed a Form 2 – Unfair Dismissal Application which was commenced within the 28-day timeframe under U 28 of 2024.

13      On 24 April 2024, the Appellant was advised of the Respondent’s jurisdictional objection to the unfair dismissal application. The Respondent submitted that the Commission did not have jurisdiction because the Appellant was a ‘Government Officer’ within the meaning of s 80C of the IR Act and therefore the Board was the appropriate authority.

14      On 7 May 2024, the Appellant informed the Commission he was no longer represented by Baldwin Legal effective from 6 May 2024. On 8 May 2024, a Form 11 – Notification of Representative Ceasing to Act was filed by Baldwin Legal, formally confirming that they ceased acting on behalf of the Appellant.

15      On 21 May 2024, the Appellant filed an appeal against a decision to remove him on grounds of no confidence in APPL 92 of 2024.

16      On 2 July 2024, the Commission was notified that Ms Laura Campbell of Campbell Legal commenced to represent the Appellant.

17      On 17 July 2024, at a Directions Hearing in U 28 of 2024, the Appellant sought leave to discontinue the matter which was subsequently granted.

18      On 9 August 2024, the Full Bench dismissed APPL 92 of 2024 for want of jurisdiction.

19      The Appellant’s explanation sets out several attempts to make applications to different authorities established by different provisions of the IR Act. The Appellant engaged several different lawyers in his various attempts.

20      The Board considers the Appellant genuinely attempted to bring an application for an independent review of the decision to terminate his employment. The Board accepts that navigating the terrain of the rights of employees engaged in the public sector is not straightforward. The Board notes that subsequent to this application, the legislature has sought to reduce the complexity for public sector employees and employers following the Ministerial Review of the State Industrial Relations System. The Final Report observed:

As the analysis in this chapter will illustrate, the law in Western Australia with respect to the regulation of public sector employment and the public sector jurisdiction of the WAIRC is bafflingly complex. There is a patchwork maze of provisions that lead only to confusion, uncertainty and the possibility, at least, for unfairness. This is quite contrary to the ideal of an accessible, fair and modern State system. Government of Western Australia, Ministerial Review of the State Industrial Relations System, Final Report (2018) 371.

21      Unfortunately for the Appellant, even with the guidance and advice from legal representatives, the avenues initially pursued by the Appellant were ultimately without jurisdiction.

22      Given the original application was made within time, albeit to an authority lacking jurisdiction, and acknowledging the challenges of navigating the regulatory authorities for public sector employment, the Board favours the granting of an extension of time on this element.

Arguable case

23      The Appellant appears to raise the following arguments as to why his dismissal was unfair:

(a) The Appellant was no longer on probation when he was purportedly discharged under reg 52A(2) of the Young Offenders Regulations 1995 and therefore the discharge was not valid;

(b) The letter of discharge was never served on the Appellant but was sent to the Civil Service Association (CSA) and the CSA forwarded the letter to him. It is then said that the Appellant only has possession of ‘a copy’ of the letter of apparent discharge;

(c) It is not entirely clear, but it seems to be alleged that incorrect notice was paid. It is not clear if that is the allegation however as the Appellant refers to the summary of the payment being incorrect, and as such, it is not clear if issue is taken with the payment per se, or just the summary of payment;

(d) The Respondent had no right to stand the Appellant down while the question of suitability was resolved and standing the Appellant down indicated preordained judgment;

(e) Standing the Appellant down caused him severe stress;

(f) The Respondent failed to take into account the Appellant's response;

(g) The Respondent based its decision on matters beyond that which were put to him; and

(h) The Respondent failed to take into account the Appellant's personal circumstances.

24      The Respondent was lawfully able to direct the Appellant away from the workplace on full pay for the period while the Appellant's suitability was assessed. Doing so was a risk mitigation mechanism that does not give rise to questions of preordained judgment. Any stress caused to the Appellant by the mere fact of him being directed away from the workplace while the Appellant's suitability was assessed would not, without something more, sound in a finding of harshness or unfairness or abuse of the right to dismiss.

25      The test for assessing the fairness of discharge of probationary employment was set out in Crabtree v Director General, Department of Education [2021] WAIRC 00538; (2021) 101 WAIG 1401 [30]:

[30] In industrial law, the implications of probationary employment are clear. They were explained by the Full Bench of the Western Australian Industrial Relations Commission in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth [2000] WAIRC 00067; (2000) 80 WAIG 3155. At [49], the Full Bench said:

  the following principles apply—

(a) The employer, throughout the period of probation, retains the right to see whether he/she wants the employee or not in his/her employment.

(b) (i) The employer is entitled to consider the employee as if the employee was still at first interview with the following modifications in this case.

  (ii) There was an identifiable contract of employment for a period, indeed, a fixed term, including a period of probation of three months. This advances the matter beyond a notional first interview situation.

(c) Probation is an extension of the selection process, a period of learning and a time for attention, assessment and adjustment to standards of performance and conduct. (Inherent in that is that it is a time for teaching, training and counselling.)

(d) (i) However, a probationary employee knows that he/she is on trial and that he/she must establish his/her suitability for the post. The employer, on his side, must give the employee a proper opportunity to prove him/herself, but he/she reserves the right to determine the employment with appropriate notice provided he has reason for so doing (see Sommerville v Brinzz Pty Ltd Clerk Vehicle Repair Industry [1994] SAIRComm 8 (31 January 1994), citing Re J M Hamblin v London Borough of Ealing (1975) IRLR 354 and see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit)).

  (ii)   Further, an employee on probation can expect to be counselled and informed that she/he is not meeting the required standards of performance, to be given reasonable training in this respect, and to be warned of the possible consequences of a failure to improve. Provided this is done, an employee who is on probation would have little cause to complain if a decision was taken during the course of or at the end of a probationary period to terminate the employment (see Sommerville v Brinzz Clerk Vehicle Repair Industry (op cit), citing Hull v F F Seeley Nominees Pty Ltd (1988) 55 SAIR 550 at 562).

(e) (i) Consonant with those principles, a probationary employee is able to seek reinstatement, but an employer is entitled to terminate a probationary employee more easily, e.g length of service is not a factor generally, because probationary employment is for a finite period and, in that period, assessment, training and acquisition of skills and demonstration of ability can occur. In addition, any genuine question of compatibility between employer, employee and other employees can be assessed. (This is not a comprehensive inventory of such matters.)

  (ii)   However, probation is not a licence for harsh, oppressive, capricious, arbitrary or unfair treatment of a probationer (see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit) and the cases cited therein).

26      In determining an appeal against a discharge during probation, ‘it is not necessary to determine whether the grounds for concern are substantiated. Instead, the focus is on whether the respondent's concerns were genuinely held and whether the respondent's right to terminate [the officer's] probationary employment was exercised without misuse or abuse.’: Lawn v Director General, Department of Justice [2024] WAIRC 00773; (2024) 104 WAIG 1926 [95].

27      On the information before the Board, it appears the Respondent had concerns, genuinely held, that the Appellant displayed a dismissive, aggressive and belligerent attitude towards his peers and was therefore unsuitable for continued engagement. However, there has not been an opportunity for this material to be tested at a hearing nor to assess this information with regard to any relevant context.

28      In addition, in assessing whether the Appellant has an arguable case, the Board is mindful of the observations of the Full Bench in Nottle v Chief Executive Officer (Department of Justice) [2024] WAIRC 00751; (2024) 104 WAIG 1793 [39]:

We also accept that there is an at least arguable case that the failure to notify Mr Nottle that his probationary employment was extended means that it was not validly extended, that he was therefore a permanent employee at the relevant time, and the power to dismiss under reg 52A was not available to the Chief Executive Officer [39].

29      The Board considers this element favours an extension of time.

Prejudice

30      The Respondent submits that they have suffered the prejudice of having wasted resources on other proceedings commenced by the Appellant in respect of his discharge. However, the Respondent has not otherwise suffered relevant prejudice. The Respondent says this is a neutral consideration and is not a consideration in favour of granting an extension of time.

31      The Appellant says that the Respondent’s written communications contributed to the confusion over the correct jurisdiction.

32      The Board considers this is a neutral consideration.

Conclusion

33      The Board considers the assessment of factors as outlined above, favour the granting of an extension of time.