A DISPUTE REGARDING THE SUBSTANTIVE CLASSIFICATION OF AN EMPLOYEE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Director General, Department of THE Premier and Cabinet

APPLICANT

-v-

MR Chris Read

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Commissioner J L Harrison

HEARD Tuesday, 13 January 2009, Wednesday, 14 January 2009

DELIVERED FRIday, 13 march 2009

FILE NO. PSACR 57 OF 2005

CITATION NO. 2009 WAIRC 00114

Catchwords Industrial Law (WA) - Dispute regarding substantive classification and rate of pay of an employee - Claim by respondent for payment at higher classification level granted whilst on secondment - Claim that respondent has been treated harshly and unfairly - Respondent seeking secure, meaningful work in non-threatening environment - Whether agreement reached for salary maintenance - Terms of agreement considered - Respondent's claims upheld in part - Industrial Relations Act 1979 s 44; Public Sector Management Act 1994

Result Declaration and Order issued

Representation 

Applicant Mr G Moore

Respondent Mr C Read on his own behalf

Reasons for Decision

1         On 23 December 2005 the Director General, Department of the Premier and Cabinet (“the applicant”) applied to the Public Service Arbitrator (“the Arbitrator”) pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) seeking the assistance of the Arbitrator in relation to a dispute over the substantive classification of its employee Mr Chris Read (“the respondent”).  The application was initially allocated to Commissioner P E Scott as Arbitrator and she conducted conciliation proceedings which were unavailing.  On 26 September 2007 the matter was referred for hearing and determination and a memorandum of matters issued, which was amended on 15 October 2007.  On 25 October 2007 the application was then allocated to the Arbitrator as currently constituted.

2         The schedule of the memorandum of matters referred for hearing and determination, as amended on 15 October 2007, is as follows:

“1. The Applicant says that:

(a) The Respondent is a permanent public service officer employed in accordance with the Public Sector Management Act 1994 (WA) and classified at Level 6.

(b) The Respondent was originally placed at his substantive classification Level 6 from the Western Australian Industrial Relations Commission (“WAIRC”) to the Office of the Parliamentary Commissioner for Administrative Investigation (“the Ombudsman’s Office”) after which he was formally seconded.  During his secondment the Applicant was paid at the equivalent of Level 7 as a result of a salary review under the Ombudsman’s Workplace Agreement.

(c) The Respondent formally transferred to the Department of Premier (sic) and Cabinet (“DPC”) in July 2000 at his substantive public service classification of Level 6.  By agreement his salary was maintained at Level 7.3 appropriate to the (sic) at the Ombudsman’s Office until such time as the Public Service General Agreement rate for Level 6.4 exceeded his current rate of pay.

(d) The Respondent’s salary now equates to the Level 6 maximum salary point under the Public Service General Agreement 2006.

(e) The Applicant believes that the appropriate classification level for the Respondent is his substantive classification of Level 6.

2. The Applicant seeks that the Public Service Arbitrator (“the Arbitrator”) determine that the Respondent is classified at the appropriate level.

3. The Respondent says that:

(a) He is a permanent public service officer employed by the Department of Premier (sic) and Cabinet (“DPC”) since 1 July 2000.

(b) He was substantively employed at Level 6.4 with the WAIRC as an Information Technology Manager when he was seconded to the Ombudsman’s Office.  His position at the WAIRC was abolished during his period of secondment.

(c) During the time he was first employed within the Ombudsman’s Office:

(i) In 1998, he was formally re-classified to Level 7.1 and over the following 18 months progressed to Level 7.3.  He asserts that this was his substantive level.

(ii) He made reports in accordance with Public Sector Standards and the Code of Ethics in respect of his concerns about the management of a computer based project within the Ombudsman’s Office.  As a consequence of his raising those concerns, his employment at the Ombudsman’s Office was terminated on 30 June 2000.

(d) The concerns raised by him have since been validated by reports tabled in Parliament.

(e) Since the time he raised his concerns and was subsequently dismissed, whistleblower legislation has been enacted (the Public Interest Disclosure Act 2003).  This legislation was not retrospective and accordingly did not provide him with protection now afforded to whistleblowers.

(f) As a consequence of his whistleblowing, he has suffered significant detriment.

(g) The Ombudsman’s Office’s refusal to extend his secondment constituted victimisation.

(h) As to the issue of his level of classification, the respondent says that discussions involving the Public Sector Standards Commissioner, the WAIRC and the DPC have failed to properly recognise his substantive level.

(i) His employment by DPC has been by agreement subject to resolution of the dispute as to the appropriate level of such appointment.  The DPC has refused to accept that his employment in the Ombudsman’s Office was substantively at Level 7 and it has acted inconsistently during the subsequent time in respect of the appropriate level of classification and in respect of salary maintenance.

(j) The DPC imposed salary maintenance some months after he was employed by DPC and was (sic) contrary to the agreement between the parties which included payment at Level 7.3 and the continuation of increments.

(k) His health and well-being have been severely adversely affected by the way he has been treated over the course of his dealings with the issues.

(l) He seeks:

(i) Declarations that:

(aa) For all intent (sic) and purposes Mr Read ought to have been paid at Level 7.3 from the commencement of his employment by DPC; and

(bb) He has been harshly and unfairly treated throughout the process; and

(ii) Orders that:

(aa) The Respondent pay Mr Read according to the declaration (i)(aa) above; and

(bb) The Respondent provide Mr Read with secure, meaningful work in a non- threatening environment.”

3         During the hearing it became clear that a number of facts were agreed to by the parties.  These agreed facts are as follows:

• The respondent is a permanent public service officer employed by the applicant in accordance with the Public Sector Management Act 1994 (“the PSM Act”).
• The respondent is currently employed at a substantive Level 6 classification.
• The respondent was a substantive Level 6 employee at the Western Australian Industrial Relations Commission (“the WAIRC”) until 1993 when he undertook a temporary role at the Office of the Parliamentary Commission for Administrative Investigation (“the Ombudsman’s Office”).  The respondent was then seconded for two three-year periods to undertake investigative duties at the Ombudsman’s Office.
• During the respondent’s secondment at the Ombudsman’s Office he was paid under the Office of the Parliamentary Commissioner for Administrative Investigations (Ombudsman) Workplace Agreement (“the Ombudsman’s Workplace Agreement”), dated 11 August 1997, and from 17 October 1997 he was reclassified under the Ombudsman’s Workplace Agreement as a Level 7 employee.
• On 1 July 2000 and by agreement of the respondent, the applicant and the WAIRC the respondent transferred to the applicant at his substantive public service classification of Level 6 but the respondent continued to be paid his Level 7.3 salary, notwithstanding his substantive classification being a Level 6.  In August 2000 the respondent’s Level 7.3 rate of pay was increased in line with a salary increase provided for under the Ombudsman’s Workplace Agreement.
• After transferring to the applicant on 1 July 2000 the respondent’s salary was frozen at the Level 7.3 rate of pay as at August 2000 until the rate of pay of the top of the Level 6 classification exceeded this rate of pay.
• The respondent is currently being paid the maximum salary point of Level 6 under the current Public Service General Agreement.

4         During the hearing it became clear that the respondent did not dispute that his substantive classification is at Level 6.  The outstanding issues in dispute between the parties therefore are whether or not the respondent should have continued to be paid at a Level 7.3 rate of pay from the commencement of his employment with the applicant on 1 July 2000 along with the pay increases relevant to this level subsequent to August 2000, whether the respondent was treated unfairly and harshly by the applicant with respect to the dispute about his rate of pay and whether or not the applicant should provide the respondent with secure, meaningful work in a non-threatening environment.

Applicant’s evidence

5         Mr Gregory Moore is the applicant’s Manager of Human Resource Services.

6         Mr Moore gave evidence about the respondent’s employment history.  Mr Moore confirmed that the respondent was seconded from the WAIRC at his substantive Level 6 classification to work at the Ombudsman’s Office as a permanent public service officer over three periods.  The first period was June 1993 to 30 June 1994 when the respondent was “on loan” to the Ombudsman’ Office and Mr Moore stated that this arrangement was similar to the respondent being on a secondment.  The respondent was then twice seconded to the Ombudsman’s Office - the first from 1 July 1994 to 30 June 1997 and the other from 1 July 1997 to 30 June 2000 (see Exhibit A1).

7         Mr Moore stated that the terms of the respondent’s secondment were governed by Administrative Instruction 304 which applied pursuant to the Public Service Act 1978 (repealed by s 119 of the PSM Act) and was effective from 28 August 1991 through to 1 January 1996 (Exhibit A2).  Mr Moore stated that Administrative Instruction 304 required that when an employee transfers to another agency at the end of their secondment they resume their original position, that is, in the case of the respondent his Level 6 position even though he had been in receipt of a higher salary and on a different classification at the Ombudsman’s Office.  Mr Moore stated that even if the position at the Ombudsman’s Office that the respondent had been seconded to was reclassified this did not mean that the respondent’s substantive classification had changed.

8         Mr Moore confirmed that the respondent applied for and was granted advancement to a Level 7 salary effective from 17 October 1997 under Clause 14.5 of the Ombudsman’s Workplace Agreement (see Exhibits A3 and A4).

9         Mr Moore stated that after the Ombudsman made a decision not to offer the respondent a further secondment after 30 June 2000 and after discussions between the applicant, the WAIRC and the respondent, an agreement was reached whereby the respondent would transfer to the applicant effective 1 July 2000.  Mr Moore stated that letters were exchanged between the applicant and the WAIRC in April 2000 and correspondence relevant to the respondent’s transfer was also exchanged between the parties at the end of June 2000 (see Exhibits A5 and A6).  Mr Moore maintained that this correspondence confirms that the respondent agreed to transfer to the applicant as a substantive Level 6 employee.

10      Mr Moore stated that subsequent to 1 July 2000, a number of discussions were held between the applicant and the respondent over his classification and his rate of pay (see letters and emails at Exhibit A7).

11      Under cross-examination Mr Moore confirmed that the applicant sometimes assists employees who are between positions or for other reasons by transferring them to the applicant.  Mr Moore stated that when the Ombudsman made a decision not to renew the respondent’s secondment at the Ombudsman’s Office, the applicant assisted the respondent to find alternative employment.  Mr Moore stated that it was not unusual for the level of an employee’s classification to take some months to be finalised, nor was it unusual that a range of opinions and views be canvassed to assist in this process.  Mr Moore maintained that the respondent’s situation with respect to his transfer was not extraordinary and he stated that the respondent was not treated differently because he was a “whistleblower”.  Mr Moore stated that the applicant decided to transfer the respondent to assist the Ombudsman’s Office.

12      Mr Aaron Pittock is an Acting Manager in the Public Sector Commission.  In this role he manages the workforce management area which deals mainly with the Senior Executive Service and Chief Executive Officers about contracts and other employment issues across the public sector.  Mr Pittock confirmed that Approved Procedure 1 is the procedure used in the public service for classifying and reclassifying positions up to Level 8 (see Exhibit A8).  Mr Pittock stated that Approved Procedure 1 applies to public sector agencies, and other agencies which have public sector positions within them, and details the function of a Chief Executive Officer (“CEO”) when classifying positions.  Mr Pittock gave evidence that Approved Procedure 1 qualifies a CEO’s authority to classify positions by prescribing a procedure and a system to classify positions.  Mr Pittock stated that any reclassification of a position is based on significant increases in the work value of a position over time such that it warrants a new classification.

13      Mr Pittock gave evidence that secondments in the public service usually last between six and twelve months however this period can be extended when agreed between the employing authority of the seconded employee and the employer he or she is working for at the time.  Mr Pittock gave evidence that employees on secondment retain the classification they had with their substantive employer and after their secondment ceases they retain this substantive classification even if they were paid at a higher level whilst on secondment and Mr Pittock stated that an employee returning from secondment to their substantive position after working at a higher level would not be reclassified at that higher level.  Mr Pittock stated that Approved Procedure 1 does not apply to employees who are on the supernumerary list at an agency and it only applies to substantive established public service positions.  Mr Pittock stated that when an employee transfers to a new employer the transfer provisions contained in the PSM Act and the public sector standard with respect to transfers apply and he gave evidence that under the terms of the PSM Act and the public sector standard with respect to transfers an employee’s substantive classification is the classification which applies to an employee after their transfer is effected.

14      Ms Kathryn Andrews is the applicant’s Acting Manager Human Resource Services Branch.  In this role she manages 22 staff who undertake human resource functions.  Ms Andrews gave evidence about the applicant’s supernumerary list on which the respondent is listed.  Ms Andrews stated that an employee becomes a supernumerary when their substantive position has been abolished or is no longer available for that employee to undertake or they have transferred from another agency and there is no substantive position for that employee.  Ms Andrews stated that a supernumerary employee has no specific duties and their title is taken from their previous position.  Ms Andrews stated that some employees on the supernumerary list are registered as re-deployees.  Ms Andrews stated that the respondent has been on the supernumerary list since he transferred to the applicant in 2000 because he had no substantive position to transfer into with the applicant.  Ms Andrews said it was not unusual to have employees on the supernumerary list for a number of years.  Ms Andrews stated that an employee remains on the supernumerary list until a new position is found and in the interim employees may undertake acting positions.  Ms Andrews gave evidence that a supernumerary employee is not able to be reclassified as they have no duties or a substantive position.  Ms Andrews stated that in 2000 in her role with the applicant as Co-ordinator Personnel Payroll she confirmed the respondent’s classification and rate of pay in a memorandum dated 3 August 2000 subsequent to his transfer from the Ombudsman’s Office to the applicant and she gave evidence that this memorandum confirms that the respondent was to continue to be paid at Level 7.3 until the applicant’s current agreement for Level 6 caught up (Exhibit A9).

15      Under cross-examination Ms Andrews stated that the granting of special leave where an employee receives his or her wages but does not attend work is discretionary and she is not aware that the entitlement to special leave is provided for in any awards or agreements or public sector procedure.  Ms Andrews gave evidence that salary maintenance is also an informal process that is not provided for in any procedure.  Ms Andrews stated that it arose in the past because workplace agreements contained varying salary rates for the same classification at different agencies and departments and she stated it was not an unusual practice to provide employees with salary maintenance after they transferred to a different agency, particularly in the 1990s, so as not to financially disadvantage an employee when he or she transferred from one agency to another.

Respondent’s evidence

16      Ms Helen Morton is a Member of the Legislative Council of the Western Australian Parliament and she has held this position since 2005.  Ms Morton gave evidence that she assisted the respondent from time to time after May 2005.  Ms Morton stated that her interest in the respondent’s situation arose out of her then role as the Shadow Minister for Public Sector Management.  Ms Morton stated that she had a meeting with Mr Malcolm Wauchope, the Director General of the Department of the Premier and Cabinet, on 30 September 2005 to discuss issues surrounding the respondent’s rate of pay and Ms Morton also stated that she was concerned that the respondent was being paid a salary but was not being provided with work.  Ms Morton felt that the respondent was being treated unjustly as he had been removed from the Ombudsman’s Office and his salary was limited to a Level 6 rate of pay and Ms Morton believed that the respondent was being treated unfairly by not being allowed to remain at the Ombudsman’s Office and undertake the work he was previously doing and she believed that the respondent’s transfer to the applicant where his salary was maintained at Level 7.3 until the Level 6 salary caught up, was punishing the respondent.

17      Ms Laurene Dempsey was the Ombudsman’s solicitor between October 1997 and November 2001.  Ms Dempsey is currently the Assessor for Criminal Injuries Compensation.  Ms Dempsey became involved with issues concerning the respondent in early 2000 and she stated that at the request of Mr Murray Allen, the Ombudsman at the time, she became the respondent’s support person when his health deteriorated.

18      Ms Dempsey stated that at a meeting she attended on 11 February 2000 Mr Allen told the respondent that there had been an irretrievable break down in his relationship with him given complaints the respondent had made about him to two external agencies and he told the respondent that he was not inclined to renew the respondent’s contract which was due to expire on 30 June 2000 and he stated that he would advise the respondent of his decision about his contract in April 2000.

19      Ms Dempsey gave evidence that she was present at a meeting with the respondent, Mr Wauchope and Ms Michelle Reynolds the applicant’s Manager of the Management Executive Branch in June 2000.  Ms Dempsey recalled that the issue of the respondent refusing to accept his salary being paid at a Level 6 was raised but she could not specifically recall how Mr Wauchope responded to this issue at this meeting.  Ms Dempsey gave the following evidence during examination-in-chief about this meeting:

“I think it was early June?---Right.

There were two such meetings, you only sat in on the first one?---I do, I certainly do recall of (sic) a meeting with Mal Wauchope and yourself.

Do you recall there being any mention of salary maintenance at that meeting?---I do recall, I’m sorry I can’t be specific as to the exact conversation. But I actually do recall some stage Mr Wauchope sort of...using the two terms I guess in the one sentence and you actually interrupting him and saying well you’ve used maintain and salary in the same sentence, do you mean salary maintenance in which case that is just not an option and something I won’t accept. I do recall that at the meeting. Is that what you - - -

That...yes, that was the...my concern. How did he respond to that?---I really can’t...I can’t recall specifically as to whether then he would have hedged or indicated that something that he looked at et cetera, et cetera. I’m sorry I can’t take it much further there Chris.”

(Transcript p 67)

20      Ms Dempsey confirmed that it was not until 20 June 2000 that the respondent was officially told that he would not be reappointed to the Ombudsman’s Office and the respondent was then advised that he would be transferred to the applicant.

21      Ms Dempsey understood that the applicant had legal advice that the respondent could not transfer to the applicant at his Level 7 classification and this became a ‘bone of contention’ between the parties.

22      Ms Dempsey stated that she was given the role of brokering an arrangement between the respondent and the applicant with respect to the respondent’s transfer to the applicant as both Mr Allen and Ms Reynolds refused to talk to the respondent.

23      Ms Dempsey stated that a draft letter was prepared by the applicant dated 27 June 2000 to clarify the terms of the respondent’s transfer to the applicant.  This letter is as follows, formal parts omitted:

“TRANSER TO THE MINISTRY OF PREMIER AND CABINET

I refer to our recent discussions on the matter of your substantive transfer to this Ministry.

Consistent with our discussions I now wish to confirm that your transfer to this Ministry, in complying with the provisions of the Public Sector Management Act 1994 and relevant Public Sector Standards, will be at Level 6 and is effective from 1 July 2000.  I have sought written agreement to this transfer from your current employing authority.

As agreed your salary will be maintained at the current rate of pay applicable to a Level 7.3 officer payable under the Ombudsman’s Workplace Agreement 2000.  I confirm that you will also receive the August increase payable under that agreement.  As you may be aware the agreement does not provide for any further increases in salary.  As such, any future salary increase for you, beyond August, will be subject to further consideration at a later date.

I trust you find these arrangements acceptable and welcome you to the Ministry.  Should you have any further queries in relation to this matter please contact Ms Michelle Reynolds, Manager, Executive management on 9222 9656.”

(Exhibit A5)

24      Ms Dempsey stated that after the respondent received this letter he still had a problem with his salary being at a Level 6 rate of pay and Ms Dempsey stated that after receiving this letter she then had further discussions with Ms Reynolds.  During these discussions Ms Reynolds confirmed with her that the respondent could not maintain his Level 7.3 classification under the Ombudsman’s Workplace Agreement as his substantive classification but he would be paid as a Level 7.3 employee.

25      Ms Dempsey gave the following evidence in examination-in-chief:

“… My understanding is that your substantive position back at the Industrial Relations Commission was no longer there. And, I mean it had been years that you’d been at the Ombudsman's Office so I mean it (sic) unrealistic in any event you going back there. So, what to do with you and where you would go. I think it was brokered that Premier and Cabinet department would take you on. Then it was the situation as to what was...on what level? At the time you were at the Ombudsman's Office the Ombudsman indicated that he would call for reclassification of various people, people who had been there for quite some time and when Murray Allan (sic) turned up he started employing people on different levels and higher levels which created some concern for people that had been there quite some time, saying well do we get some recognition for all the experience that we’ve got and the skills that we’ve got? And he indicated that he would look at various people’s submissions and proposals that they be reclassified. I certainly recall that you were one that applied and then went through classification process and were classified to a level 7 from the 6 that you were. Roger Watson I think was another, Eamon Ryan perhaps as well, but various officers there. So, you had been reclassified I think a couple of years prior to that to a level 7. So, at the time you were a level 7.3 as at the 30th of June, 2000. A legal issue was raised by Premier and Cabinet I understand that given the nature of the office with the Ombudsman you could be transferred but not on the basis that reclassification would not be recognised. It would go back after being a level 6.3, that became the bone of contention. Eventually at some stage you were dealing, I think, directly with Malcolm Wauchope’s office through Michelle Reynolds, at some stage not only did Murray Allan (sic) refuse to talk to you anymore but so did Michelle Reynolds. So, I got the go between to broker some sort of arrangement for your transfer back to Premier and Cabinet between Michelle Reynolds and Murray Allan (sic).

HARRISON C: And, what was that arrangement?---There was a draft letter which was supposed to indicate the arrangement that had been forwarded, my recollection was on the 27th of June, that used the terms, you know, maintain salary in a sentence which caused once again, Chris Read, quite some concern. It was...the brokering was always arranged that Chris was to be paid a level 7.3. The difficulty that arose was at that time workplace agreements were afoot and each agency had actually negotiated its own workplace agreement. The concerned (sic) expressed by Michelle Reynolds is but level 7.3 sort of differs depending upon where you are placed and which agency you are placed. The whole idea was that you weren’t going to be in Premier and Cabinet for very long. And, this was a discussion that I had with Michelle Reynolds over the...you know the ensuing weeks coming up to the 30th of June. It was intended that you be placed somewhere, another agency, as soon as possible, you know so your skills could be utilised. The difficulty is that each agency sort of was paid, you know, different amounts depending upon the workplace agreement. Indeed, the Ombudsman's Office had only recently sort of negotiated a new workplace agreement and as at August, 2000 another increment was going to be paid. So, not to disadvantage you depending upon with what agency you were going to be placed, in fact you might end up sort of going down in salary from a level 7.3. It was at least recognised that you would get that increment at the Ombudsman's Office. But, thereafter depending upon what agency that you would be placed with you would pick up and be paid the level 7.3 at that agency.  The first draft that came through of the 27th of June by using the two terms maintaining salary, once again you said, no, no, no, it’s not part of the agreement, I won’t agree to that at all, it’s not acceptable. Once again I went back to Michelle Reynolds who once again reiterated that that’s not the intention, it’s not the intention to maintain your salary until of course you drop down to a level 6 again. It’s something to which you would never agree, something you indicated that you would always not agree to or not accept. So, working on the basis that they could not in fact maintain your classification it was understood that you’d get an allowance to some effect, doesn’t matter what it was called or how it was done that you would be paid a level 7.3, however much that would be depending upon the agency that you went to. And, that was the agreement that was brokered and understood. As far as I’m aware that was the agreement that was understood with Michelle Reynolds through Mal Wauchope, with Murray Allan (sic) and with Alex Erington (sic).

…

HARRISON C: So what do you understand was the arrangement then when...so when Mr Read commenced on the 1st of July, 2000 am I to understand from what you’ve just said that he effectively was to have salary maintenance until...at a substantive level 6 but pay at level 7.3 until he was actually put into a position with a JDF where he would then be paid at a level 7.3?---He would maintain the salary of a 7.3 based on the Ombudsman’s workplace agreement.

Yes? With the increment in August?---With the increment in August. Then he would be...it was always then assumed and this was the problem that was explained to me that you wouldn’t know then what he was going to be paid by way of him being a level point...7.3 because of course each agency was paying different amounts of salary at that time.

So a 7.3 rate was different in one agency to another?---At that time it was (indistinct). He was going to be paid a level 7.3. And, that was going to be his pay no matter where he was placed, whether it be sort of in a level 6 position or 7 position with another agency.  In other words it was not...he was not going to maintain then as fixed that August 2000 increment at the Ombudsman until if that sort of then dropped to be a level 6.3 which was his substantive. It was always understood that that’s exactly what he would not agree to and that he did not agree to.

Thank you.

MR READ: So, what...just to be perfectly clear, does that equate to salary maintenance?---My understanding is of the word salary maintenance is it is a HR term that indicates that in fact your salary will be maintained until it drops to meet your level - - -

Frozen?---That’s what I’d always understood. Whether that’s incorrect and you were always concerned when sort of the use of the word maintain and salary was produced in the one sentence. That’s not what I want. And, that was always very clear that’s not what you would have ever accepted.

No. So, to phrase it differently was I going to continue to receive increases after August, 2000?---Oh yes, oh yes. But it was...and that was something that was quite specifically discussed between myself and Michelle Reynolds, you were going to receive increases but it couldn’t be sort of said what increases because we didn’t know what agency you’d be placed with.  We weren’t going to be sitting in Premiers at all. You know the idea was that there was work for you to be done and Premiers would just be your base agency for the time being.

...

MR READ: All right. Would it be accurate to say that my salary was not going to be frozen as of June or August, 2008 (sic)?---Absolutely accurate. You were to receive...you were to paid a level 7.3 on the basis of any agency that you were at that would therefore include any increments payable to you from time to time.

HARRISON C: But not the Department of Premier and Cabinet?---No necessarily so. But if Chris was at the Department of Premier and Cabinet as his, you know, agency where he was being placed to do work he would be paid at that level.

In a substantive position or super numery (sic) position or either?---Either. He could be basically be doing some level 5 work, 6 work or even 7 but be paid a level 7.3 depending upon the agency.”

(Transcript pp 67, 68 and 69)

26      Under cross-examination Ms Dempsey stated that she told Ms Reynolds that the respondent had problems with some of the contents of the draft letter dated 27 June 2000 and she gave evidence that the changes included in the letter from Mr Wauchope dated 30 June 2000 to the respondent were consistent with her discussions and what had been agreed with Ms Reynolds.  Ms Dempsey stated that this letter confirmed that the respondent could not transfer to the applicant as a Level 7 and he had to retain his Level 6 classification but his salary would be maintained at that of a Level 7 employee.  This letter is as follows (formal parts omitted):

“TRANSER TO THE MINISTRY OF PREMIER AND CABINET

I refer to our recent discussions on the matter of your substantive transfer to this Ministry.

Consistent with our discussions I now wish to confirm that your transfer to this Ministry, in complying with the provisions of the Public Sector Management Act 1994 and relevant Public Sector Standards, will be at Level 6 and is effective from 1 July 2000.  I have sought written agreement to this transfer from your current employing authority.

As agreed your salary will be maintained at that rate of pay applicable to a Level 7.3 officer on the Ombudsman’s Workplace Agreement.  I confirm that you will also receive the August increase payable under that Agreement.  As you may be aware, the Agreement does not provide for any further increases in salary.  As such, any future salary increase for you, beyond August, will need to be considered separately at that time.

I trust you find these arrangements acceptable and welcome you to the Ministry.  Should you have any further queries in relation to this matter please contact Ms Michelle Reynolds, Manager, Executive management on 9222 9656.”

(Exhibit A5)

27      Ms Dempsey stated that the respondent did not need to mention the issue of salary maintenance in his letter dated 30 June 2000 which accepted his transfer to the applicant, as this issue had been sorted out.

28      The respondent has a computer science degree and worked for 20 years in Information Technology.  In March 1989 he joined the public service as a Level 6 Information Technology Manager at the WAIRC.  The respondent confirmed that he commenced a trial in 1993 to undertake investigative work at the Ombudsman’s Office and remained there for seven years after being offered two three-year rolling secondment contracts.  The respondent is currently a public service officer attached to the applicant and he transferred to the applicant on 1 July 2000.

29      The respondent outlined his work history since 1 July 2000.  Soon after he commenced employment with the applicant the respondent worked for two years in the Department of Local Government as an investigator in a supernumerary position which had no Job Description Form (“JDF”).  During this period the respondent undertook a three month assignment with the Ministry of Justice.  The respondent stated that no permanent position has been found for him since July 2000.  The respondent stated that his health deteriorated around mid 2002 and he took sick leave and annual leave to cope and in mid 2002 the respondent underwent a medical assessment given his inability to concentrate and he was told by the applicant to remain at home and await further instructions.  The respondent stated that around this time he was diagnosed with depression.  The respondent stated that he was off work for about two and a half years from mid June 2002 and he has been paid his normal salary during this period and he is still being paid this salary even though he has not returned to work with the applicant.

30      Since November 2004 the respondent has been participating in a return to work programme and he is currently undertaking a rehabilitation programme working up to 16 hours per week in private enterprise retraining as a financial planner.  The respondent stated that he would like to work in a full-time position in the public service, commencing on a part-time basis, and he stated that his ability to work full-time would be dependent on improvements to his health however he gave evidence that he is currently not ‘fit’ for full-time employment.

31      The respondent gave evidence that he was unsure if his former position at the WAIRC had been abolished as at July 2000 but he stated that after working for seven years at the Ombudsman’s Office there was no prospect of him returning to the WAIRC.

32      The respondent confirmed that under the Ombudsman’s Workplace Agreement he was reclassified to a Level 7.3 in 1998 and this salary increase was backdated to 1997 when the reclassification process commenced.

33      The respondent detailed his whistleblowing activities.  The respondent stated that in 1999 he became distressed by the Ombudsman wasting public money on funds for a computer programme and he believed that in doing so the Ombudsman was breaching the Public Sector Code of Ethics.  The respondent stated that he endeavoured to raise his concerns internally but when he was unsuccessful he referred the Ombudsman’s actions to external authorities.  The respondent maintained that after he raised the issue of the Ombudsman wasting public money with these external agencies the Ombudsman resigned.  The respondent stated that prior to the Ombudsman resigning, he had maintained that the respondent’s criticism of him was unwarranted and he told the respondent that his second three-year secondment ceasing on 30 June 2000 would not be renewed.

34      The respondent stated that when he transferred to the applicant on 1 July 2000 at a substantive Level 6 he should have been classified and paid at a Level 7 and he claimed this was supported by correspondence from the Deputy Ombudsman, Mr Alex Errington, at the time (Exhibit A6).

35      The respondent stated that as a result of his claim that he should be classified and paid at a Level 7 a number of discussions were held prior to his transfer to the applicant on 1 July 2000 on these issues.  The respondent said one meeting was held in early June 2000 with Mr Wauchope, himself, Ms Dempsey and Ms Reynolds in attendance.  The respondent stated the following about this meeting:

“All right. What took place at this meeting?---We were feeling each other out to see who would agree to what and where we could reach consensus on that. Mr Walker (sic) made the point … he said something to the effect of, "Look, level is all very well but I suspect that what is really of concern to you is your salary and we can maintain that," and he carried on talking.  Of course, my ears pricked up immediately that I heard "salary" and "maintain" in the same breath. I was sitting there thinking, "What is he saying now? Is he talking about salary maintenance?" I was listening intently to see whether he was going to clarify that as he continued talking, but he didn't. Then I began thinking, "I really don't want to interrupt him, but at the same time he is going on and I'm not really hearing what he is saying because" … and this is a point that really needs to be clarified, so I did interrupt him and I said, "I'm sorry, Mr Walker (sic), it really … you've made a very important point and I'm not sure I understand it.  I've heard you say 'salary' and 'maintain' and that fills me with concern. I need to be clear as to whether you're actually talking about salary maintenance, which has specific connotations in the Public Service." He didn't say yes and he didn't say no. He launched into a very lengthy explanation which recounted all the circumstances prevailing at the time, primarily … and I think it's worth enunciating those … the prevailing arrangements then were the Liberal government's workplace agreements, where every agency … most agencies had their own workplace agreement. … ”

(Transcript p 88)

The respondent stated that at some point during this meeting his redeployment was also discussed.  The respondent gave evidence that Mr Wauchope eventually told him in this meeting that he would be receiving some pay increases but it was not clear when and how much he would receive.  The respondent stated that he understood from this discussion, that he would receive “a continuing stream of” increments after transferring to the applicant (transcript p 88).

36      The respondent stated that as the issue of his classification and rate of pay remained unresolved a meeting was held on 22 June 2000 between Mr Wauchope, the Public Sector Standards Commissioner, the Ombudsman, Mr Les Smith and Ms Reynolds.  The respondent was not in attendance.  The respondent maintains that arising from this meeting he was advised by Mr Errington that at this meeting it was decided that it was open to the applicant to offer the respondent a Level 7 position and that this would occur.

37      The respondent stated that he was disappointed with the contents of the letter dated 27 June 2000 as he was only being offered a Level 6 appointment and he claimed that the letter was ambiguous with respect to the salary he was to be paid (Exhibit A5).  After receiving this letter the respondent contacted Ms Reynolds to discuss whether his salary would be maintained or whether he would be given salary maintenance and she told him that his salary was to be frozen.  In response the respondent wrote a letter to Mr Wauchope dated 28 June 2000.  The respondent understood that Mr Wauchope took exception to his letter and the offer of him transferring to the applicant was withdrawn and as the respondent’s position was still undecided on the morning of 30 June 2000 Ms Dempsey approached him and offered to broker an arrangement that afternoon and he agreed to this course of action.  The respondent understood that Ms Dempsey then approached Ms Reynolds and they reached an agreement whereby the respondent would remain as a substantive Level 6 employee however he would receive ongoing salary increases as a Level 7.3 employee and his salary would not be frozen.  The respondent stated that he told Ms Dempsey that he agreed to this proposal.  The respondent stated that after he received a telephone call on the afternoon of 30 June 2000 advising him that his father was unwell and he had to visit him in hospital Ms Dempsey wrote the letter confirming his transfer to the applicant on 30 June 2000 (see Exhibit A5).

38      The respondent maintained that there were three significant changes in the letters from Mr Wauchope dated 27 June 2000 and 30 June 2000 which indicated that the applicant had shifted its position from 27 June 2000 with respect to the salary he was to be paid.  The letter of 27 June 2000 refers to his salary being maintained ‘at the current rate of pay applicable’ whereas this was changed to ‘maintained at that rate of pay applicable’ in the letter dated 30 June 2000, the draft letter dated 27 June 2000 refers to the Ombudsman’s Workplace Agreement 2000 but the letter dated 30 June 2000 does not limit the reference to a workplace agreement to the 2000 agreement and the letter dated 27 June 2000 refers to the respondent’s rate of pay being subject to further consideration at a later date and the letter dated 30 June 2000 refers to the respondent’s salary being “considered separately at that time”.  The respondent maintains that the letter dated 30 June 2000 confirms that an agreement had been reached between the parties in the terms claimed by him, that is that he would not be subject to any salary freeze subsequent to receiving the August 2000 increment to his Level 7.3 salary.

39      The respondent gave evidence that it was not until December 2000 that he became aware that he was being subject to salary regression and his salary was not being maintained at the Level 7.3 rate of pay.  The respondent stated that he was also told by Ms Reynolds that the only way he could be given a salary increase was undefined and would only occur in exceptional circumstances.  The respondent gave evidence that because he disputed his salary being frozen a number of meetings were held about the issue of salary maintenance and the maintenance of his Level 7.3 salary and the respondent tendered documentation with respect to these discussions subsequent to December 2000 (see Exhibit R1).

40      The respondent stated that he never agreed to salary maintenance and the freezing of his salary and he maintained that because the Ombudsman resigned as a result of his criticisms he should not be punished for doing the right thing.

41      The respondent stated that he wants to undertake meaningful work with a view to eventually undertaking full-time work.

42      The respondent maintains that it is not in the public interest that he should suffer any detriment within the public service given his whistleblowing activities which have since been vindicated by a number of inquiries.

43      The respondent maintains that his classification and his rate of pay are different issues and he claims that there is no impediment to pay him as a Level 7.3 even though his substantive classification is at Level 6.  The respondent believes that he has been treated differently to other employees in a similar situation and cited a case where a number of employees whose jobs had been made redundant at the Ombudsman’s Office had their contracts rolled over to the Corruption and Crime Commission at the level at which they were classified at the Ombudsman’s Office.

44      Under cross-examination the respondent confirmed that he wanted to be employed in a permanent position but he stated that he was not capable of looking for this type of work at this point in time.  The respondent agreed that the applicant had been supporting him since June 2000 and even though he has not been working the applicant has been paying his salary and the respondent confirmed that his medical and rehabilitation treatment has been paid for by the applicant.  The respondent stated that he hoped he would be ready to return to work in six months subject to a medical clearance.  The respondent maintained that he was currently on special leave as determined by the applicant and this leave was not provided for under public sector rules and regulations and he agreed that he was not required to attend work due to duty of care issues.

45      The respondent stated that he did not attend the meeting held on 22 June 2000 between Mr Wauchope, the Public Sector Standards Commissioner, the Ombudsman, Mr Smith and Ms Reynolds and he agreed that there was no documentation confirming Mr Errington’s advice to the respondent following this meeting that he was to be classified as a Level 7.

Submissions

46      The applicant argues that it is appropriate that the respondent be paid at the top of Level 6 as this is his substantive classification and this reflects the agreement reached between the parties as at 30 June 2000.  The applicant submits that when the respondent initially transferred to the applicant in July 2000 he was given a personal salary classification because an agreement was reached between the parties that the respondent’s salary was to be maintained at the rate applicable to a Level 7.3 officer under the Ombudsman’s Workplace Agreement.  The applicant maintains that notwithstanding the respondent’s circumstances when he left the Ombudsman’s Office the respondent is a substantive Level 6 employee and this was and is the level at which he is to be paid by the applicant.  The applicant argues that the authority of Mietek Banaszczyk v Minister for Public Sector Management and Another (2004) 84 WAIG 2872, on which the respondent relies, can be distinguished from the respondent’s case as it relates to a different set of circumstances.

47      The applicant recognises that the respondent has had specific and difficult issues to contend with however the applicant submits that it has endeavoured to assist the respondent with his rehabilitation and in finding him suitable employment.  The applicant also maintains that it has been a reasonable employer.  The applicant is prepared to negotiate the respondent’s return to work but this is dependent on a number of issues including the respondent obtaining a medical clearance, discussions being held about his level of pay and the duties to be undertaken, the respondent’s inability to function as a Level 6 employee at this point in time and the extent to which job security can be offered to the respondent within the public sector as well as the nature of the meaningful work being sought by the respondent at an appropriate level.

48      The respondent maintains that even though he has been paid a salary and not worked for six of the last eight years his situation has had a severe physical and mental detrimental impact on his health and it has impacted on relationships within his family and on his sense of identity and self-worth.  The respondent argues that it has only been in recent times his health has improved.

49      The respondent argues that the salary he should be paid is that of a Level 7.3 employee given the agreement reached between the parties on 30 June 2000 and the respondent argues that under this agreement he was promised to be given salary increases that would normally accrue to a Level 7.3 employee after August 2000 but he has not received these increases.

50      The respondent argues that the issues of salary maintenance and the undertaking that he would receive some pay increases as agreed between himself and the applicant are incompatible and this adds weight to his argument that the agreement reached between the parties on 30 June 2000 contemplated him receiving pay increases.

51      The respondent maintains that the applicant has not recognised his extraordinary circumstances and has relied on technicalities even though it can “finesse” public sector management rules and the respondent relies on the authority of Mietek Banaszczyk v Minister for Public Sector Management and Another (op cit) in support of his claim to be paid at a higher rate of pay than Level 6.

52      The respondent argues that he should not suffer any detriment with respect to his level of salary for engaging in whistleblowing activities which were subsequently vindicated and the respondent argues that given that his activities as a “whistleblower” were appropriate it is in the public interest that he should not suffer any financial detriment and the respondent relies on the Public Interest Disclosure Act 2003, which was passed by the Western Australian Parliament after June 2000, which enables people in his position who have suffered a detriment as a result of his or her whistleblowing activities to seek and be given redress.

Findings and Conclusions

Credibility

53      I listened carefully to the evidence given by each witness and closely observed them.  I find that all witnesses gave their evidence honestly, in a considered manner and to the best of their recollection.  I therefore accept the evidence given by each witness.  In particular I find that the respondent’s evidence with respect to his recollection about the details of his agreement with the applicant concerning the rate of pay he was to receive after his transfer to the applicant on 1 July 2000 was both detailed and consistent and his evidence with respect to this issue was supported by a number of documents tendered during these proceedings and was also corroborated by the evidence given by Ms Dempsey (see Exhibit R1).

54      I have already noted that the declaration being sought by the applicant that the respondent be classified as a Level 6 employee is not in contest between the parties as the respondent accepts that this was and remains his substantive classification as at 1 July 2000 when he transferred to the applicant and I will therefore issue a declaration to this effect.  What is in dispute is the salary the respondent should have been paid subsequent to his transfer to the applicant on 1 July 2000.  The respondent argues that he reached an agreement with the applicant that upon his transfer to the applicant on 1 July 2000 his rate of pay was to remain at his existing Level 7.3 rate, including the increase in August 2000 provided for under the Ombudsman’s Workplace Agreement, and the respondent claims that as part of this agreement he was and remains entitled to receive ongoing increments relevant to this classification notwithstanding the fact that his substantive classification is at the top of Level 6.  In contrast the applicant argues that the agreement between the parties with respect to the respondent’s rate of pay was that he would have his salary maintained at the rate of pay of a Level 7.3 employee, as at August 2000, and from this point onwards his salary would remain at this rate until it equated to the rate of pay of a Level 6.4 employee, which is the respondent’s substantive classification.  In doing so the respondent’s pay was to be subject to salary maintenance.  The other issues requiring determination are whether the respondent was treated unfairly and harshly by the applicant with respect to how the dispute about his rate of pay was handled by the applicant and whether an order should issue that the applicant provide the respondent with secure, meaningful work in a non-threatening environment.

Background

55      The agreed facts with respect to this application are detailed at paragraph 3 of this decision.  These facts confirm the respondent’s agreement to be transferred to the applicant on 1 July 2000 as a substantive Level 6 employee, that after July 2000 the respondent was to be paid his Level 7.3 salary, including the increase due to him in August 2000, and his salary was not increased by the applicant until the Level 6.4 rate of pay applicable to the applicant’s employees became greater than this rate of pay.  Since July 2000 the respondent has remained on the applicant’s supernumerary list and he has not been redeployed into an alternative position within the Western Australian public sector notwithstanding efforts by both the applicant and the respondent to seek out suitable employment and it was also not in contest that since mid 2002, even though the applicant has continued to pay the respondent’s salary, the applicant has not required the respondent to work within the Western Australian public sector.  It is also the case that since November 2004 the respondent has been working on a part-time basis in the private sector and has been participating in a rehabilitation programme.

56      It is clear that by early 2000 the working relationship between the respondent and the Ombudsman at the time, Mr Allen, had broken down as a result of complaints made by the respondent to external authorities about Mr Allen’s conduct and because of this breakdown Mr Allen indicated to the respondent that his second three-year secondment in all likelihood would not be renewed after 30 June 2000.  I also accept that after the complaints made by the respondent against Mr Allen were investigated, Mr Allen resigned from his position as Ombudsman.

57      I find that after Mr Allen foreshadowed to the applicant that it was unlikely that his secondment to the Ombudsman’s Office would be renewed a number of meetings were held to deal with the respondent’s future employment within the public sector and these discussions involved a range of persons including the respondent, Ms Dempsey who was employed by the Ombudsman’s Office and had been asked by Mr Allen to be the respondent’s support person given his deteriorating health, Ms Reynolds and Mr Wauchope representing the applicant, the Public Sector Standards Commissioner, the Ombudsman and Mr Smith who was the former Electoral Commissioner.  I find that at these meetings the respondent’s classification level was discussed given that the respondent’s classification was at the time as a Level 7 employee under the Ombudsman’s Workplace Agreement and his substantive classification at the WAIRC was as a Level 6 employee and the other issue discussed was the salary to be paid to the respondent after he was to be transferred out of the Ombudsman’s Office given the salary differential between these classifications.

58      I find that as both of these issues were not resolved during these meetings further discussions took place between Ms Reynolds, Ms Dempsey and the respondent in the week leading up to the respondent’s transfer to the applicant on 1 July 2000.  I find that during this week the respondent made it clear to the applicant that he was unhappy about reverting to a Level 6 classification when his transfer to the applicant was effected and he disputed his transfer to the applicant as a Level 6 employee.  The respondent maintained that his rate of pay should be no less than that of a Level 7.3 employee on an ongoing basis and I find that the respondent made it clear to the applicant that he would not accept salary maintenance to a Level 6.4 and his salary being frozen at his Level 7.3 rate of pay as at August 2000.

59      I find that two letters were exchanged between the parties in the week prior to 1 July 2000 in an endeavour to confirm the basis upon which the respondent’s transfer to the applicant would take place and the rate of pay to apply to the respondent subsequent to his transfer.  The first letter was in draft form and I find that it was written by Ms Reynolds on behalf of Mr Wauchope (see paragraph 23).  I find that after receiving this draft letter the respondent wrote to Mr Wauchope on 28 June 2000 opposing the proposition put in this draft letter that his current salary be subject to salary maintenance and be frozen as at August 2000 and remaining static until the Level 6.4 salary rate caught up to his Level 7.3 salary, he also opposed being transferred as a substantive Level 6 employee and the respondent told Mr Wauchope that as a result he rejected being transferred to the applicant.  The respondent’s letter to Mr Wauchope is as follows, formal parts omitted:

“Proposed Transfer to the Ministry of Premier and Cabinet

I refer to your draft letter of 27 June.

Our discussion on Friday, 23 June 2000 was very amicable and at the time I was satisfied that we had reached sincere agreement on a reasonable resolution of the current issue of my proposed transfer to the Ministry.  However, subsequent discussions with your Office and the draft letter under reply differ very significantly from my understanding of what we agreed.  There are two major areas of concern.  First, it now seems that Redeployment will be seeking to place me in a level 6 position.  It was my clear understanding at the time in the context of our discussion and Mr Errington’s account of the previous day’s meeting that it was intended to redeploy me as a level 7/3.  Furthermore, I specifically sought and received assurance at our meeting on Friday that salary maintenance was not being applied.  However, from subsequent discussions with your Office and the contents of your draft letter it now seems that my salary may be frozen as at August 2000, whereafter I would effectively be subject to progressive passive regression to level 6 salary.

I am not inclined to consent to a voluntary transfer to your Office on this basis and I conssequently (sic) intend to contest the Ombudsman’s decision not to renew my contract here.  This decision was not conveyed to me until last Wednesday.  I consider that this delay may have been prejudicial to the process I have invoked under the Ombudsman’s Workplace Agreement to extend my employment in this Office.  I will now have to proceed with the dispute settling procedures outlined in that Agreement, which I have already invoked, and advise that I reserve all my rights.

This matter has already dragged on for far too long, draining the time and nervous energy of a large number of people who all have better things to do.  I remain open to further discussion and reasonable offer.”

(Exhibit A5)

60      I find that subsequent to the respondent sending this letter to Mr Wauchope further discussions took place between Ms Dempsey on behalf of the respondent and Ms Reynolds on behalf of Mr Wauchope, in order to resolve the impasse between the parties.  I find that as late as the afternoon of 30 June 2000 the issue of the rate of pay to apply to the respondent after August 2000 and the level at which the respondent was to transfer to the applicant was resolved between Ms Reynolds and Ms Dempsey, acting on instructions from Mr Wauchope and the respondent respectively, and the terms of this agreement were confirmed in Mr Wauchope’s letter to the respondent dated 30 June 2000 (see paragraph 26).  This letter confirms that the respondent accepted being transferred to the applicant as a Level 6 employee and it also refers to the respondent’s salary being maintained at the rate of pay applicable to a Level 7.3 employee, including the August 2000 increase under the Ombudsman’s Workplace Agreement.  The letter also states “any future salary increase for you, beyond August, will need to be considered separately ...”.

61      The issue to be determined is whether the agreement the respondent and his representative Ms Dempsey reached with the applicant contemplated the respondent receiving the actual rate of pay of a Level 7.3 employee or if the respondent’s rate of pay was to revert to that of a Level 6.4 employee under salary maintenance.

62      In deciding the terms of the agreement reached between the respondent and the applicant with respect to the respondent’s rate of pay subsequent to 1 July 2000 I take into account that the only direct evidence about the terms of this agreement given at the hearing was the evidence of the respondent and Ms Dempsey as the applicant chose not to call Ms Reynolds and Mr Wauchope to appear at these proceedings.  I find on the evidence given by Ms Dempsey and the respondent, which was not broken down in cross-examination, that the agreement that was reached between Ms Reynolds acting on behalf of Mr Wauchope and Ms Dempsey acting on behalf of the respondent on 30 June 2000 was as follows:

• the respondent would be transferred to the applicant as a substantive Level 6 employee given that this was his substantive classification when he transferred to the Ombudsman’s Office, even though he was reclassified to a Level 7.3 position under the Ombudsman’s Workplace Agreement;
• subsequent to the respondent’s transfer to the applicant on 1 July 2000 he was to be paid a Level 7.3 rate of pay under the Ombudsman’s Workplace Agreement and he would receive the August 2000 increase under that agreement;
• the parties agreed that the respondent’s Level 7.3 rate of pay would be the respondent’s minimum rate of pay that he was to be paid and further increases to this Level 7.3 rate of pay would be given to him under the relevant industrial instrument applying at the respondent’s workplace;
• even if the respondent was to remain working with the applicant and was not redeployed into another position his salary would remain at the Level 7.3 rate of pay, and he would continue to be paid the increments due to that classification under the relevant industrial instrument.

63      In reaching this conclusion it is my view that Mr Wauchope’s letter to the respondent dated 30 June 2000 contemplates the respondent receiving future salary increases to his Level 7.3 rate of pay as at August 2000 which would not be the case if the respondent’s salary was to be subject to salary maintenance.  Even though Ms Andrews gave evidence that she was instructed by her manager to apply salary maintenance to the respondent’s Level 7.3 rate of pay and wrote a memorandum to this effect, as the person who instructed her to do this did not give evidence in these proceedings and was unavailable to be cross-examined I am unable to given any weight to the terms of this memorandum.

64      There was no dispute that the respondent did not immediately contest his salary being frozen however I find that it was not until December 2000, after the respondent had discussions with his redeployment co-ordinator Mr John Brindal, that he became aware he was being subject to salary maintenance and being paid as a Level 6.4 employee as opposed to his salary being that of a Level 7.3 employee.  I find that when the respondent realised that his salary had been effectively frozen and that he would not be entitled to receive his Level 7.3 salary plus any increments due to this level he immediately corresponded with representatives of the applicant claiming that he had never agreed to accept a salary level of 6.4.  I find that the respondent’s objection to his salary being frozen and the nature of the correspondence between the applicant and the respondent at this point in time is consistent with the evidence given by the respondent about his understanding of the agreement reached with the applicant about being paid as a Level 7.3 employee and adds weight to the conclusion I have reached about the terms of the respondent’s agreement with the applicant.

65      As I have found that the respondent reached an agreement with the applicant that he be paid as a Level 7.3 employee and that this agreement contemplated that he would receive future pay increases due to that level I will issue a declaration that the respondent should have been paid the rate of pay attached to a Level 7.3 employee and should have continued to be paid this rate of pay subsequent to August 2000.  As it is unclear which industrial instrument/s applied to this classification for the applicant’s employees since July 2000 I will hear further from the parties as to the quantum due to be paid to the respondent in light of this conclusion.

66      The respondent submits that he should not have suffered a financial detriment as a result of his whistleblowing activities and the Commission should therefore take into account the public interest when deciding his entitlement to be paid at the rate of pay he was receiving whilst at the Ombudsman’s Officer.  In my view it is unnecessary to consider this submission as I have already determined the dispute before me relevant to the salary to be paid to the respondent.

67      The respondent relies on the authority of Mietek Banaszczyk v Minister for Public Sector Management and Another (op cit) in support of his claim to be paid as a Level 7.3 employee.  Again I have already determined the rate of pay the respondent should have been paid subsequent to his transfer to the applicant on 1 July 2000, however for completeness I find that the respondent cannot rely on this authority as the issue in dispute with respect to that application relates to the salary to be paid to an employee who had been registered as a redeployee.  This application also turns on an interpretation of the Public Sector Management (Redeployment and Redundancy) Regulations 1994 which is a different set of circumstance to the respondent’s situation.

68      The respondent is seeking the issuance of the following declaration:

“That he has been harshly and unfairly treated throughout the process.”

I am of the view that the applicant did not thoroughly investigate the respondent’s claims about his understanding of the agreement he maintained he had reached about his salary level after August 2000 and as a result of this disagreement and the inability of the parties to reach agreement with respect to this dispute I find that this issue preoccupied the respondent and may well have contributed to his poor health at the time and subsequently.  However, I balance this with the applicant, in particular Mr Moore, handling the respondent’s difficult health and employment issues professionally and with sensitivity during this period and subsequently, which has now been over a number of years.  It is also the case that the applicant has assisted the respondent by continuing to pay him on an ongoing basis even though he has not been fit to work since some time in 2002 and has been funding the costs of the respondent’s rehabilitation.  In the circumstances, I decline to issue the second declaration being sought by the respondent.

69      The respondent is seeking an order that the applicant provide him with secure, meaningful work in a non-threatening environment.  Under the respondent’s rehabilitation programme he is working approximately 20 hours per week at a classification level well below Level 6 and the respondent gave evidence that he is at least six months away from being in a position to contemplate a return to work in the public sector given his current state of health.  I find that in view of the respondent’s continuing poor health at this point in time and as the respondent remains unfit to return to work in the public sector, as confirmed by the respondent during the hearing, it is not desirable nor appropriate to issue this order.  I also accept the applicant’s contentions that there are a number of issues that need to be worked through prior to the respondent returning to work in the public sector including the respondent’s health, clarification about how secure the respondent’s employment will be within the public sector, clarification about the rate of pay to be paid to the respondent given the limited range of duties it appears the respondent is able to undertake and what the respondent maintains is a non-threatening environment.  Given the uncertainties surrounding the respondent’s return to work it is my view that in the circumstances it is inappropriate to issue the second order being sought by the respondent.

70      I will therefore declare that the respondent is a substantive Level 6 employee and that he ought to be have been paid at Level 7.3 from the commencement of his employment with the applicant and any increases to that level subsequent to August 2000.  After hearing further from the parties as to quantum I will issue an order that the applicant pay the respondent the amount which is the difference between what he should have been paid as a Level 7.3 employee since August 2000 and what he was paid given that the respondent’s salary has been frozen since this date.