APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 23 FEBRUARY 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00967

DELIVERED : TUESDAY, 12 NOVEMBER 2024

FILE NO. : PSAB 6 OF 2024

Appellant

AND

Director General, Department of Justice

Respondent

CatchWords : Public Service Appeal Board – Whether the ending of an acting arrangement constitutes a dismissal – Appellant was not dismissed – No jurisdiction to hear appeal – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA): s 80I(1), s 80I(1)(d)

  Public Sector Management Act 1994 (WA): s 8(1), s 64, s 67(f), s 80A

Result : Appeal dismissed

Representation:

Appellant : On her own behalf

Respondent : Mr M McIlwaine (of counsel)

Cases referred to in reasons:

Bone Densitometry Australia Pty Ltd trading as Perth Bone Densitometry v Lenny [2005] WAIRC 02081; (2005) 85 WAIG 2981

Gallotti v Argyle Diamond Mines Pty Ltd t/a Argyle Diamonds [2002] WAIRC 06828, (2002) 82 WAIG 3011

Gallotti v Argyle Diamonds Pty Ltd [2003] WAIRC 07928; (2003) 83 WAIG 919

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

Hudston v North Metropolitan Health Services [2019] WAIRC 0036; (2019) 99 WAIG 238

Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611

Mathew v East Metropolitan Health Service [2024] WAIRC 00277; (2024) 104 WAIG 675

Townes-Vigh v North Metropolitan Health Service [2020] WAIRC 00188; (2019) 99 WAIG 238

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         Ms Sharon Lawson works for the Director General, Department of Justice (Department). Her substantive position is Assistant Superintendent Offender Services, which is a level 6 role. On 9 October 2023, Ms Lawson began an acting arrangement that meant she would work in a level 7 role, Manager Executive Support, until 7 October 2024 (Acting Arrangement). However, in February 2024, the Department informed Ms Lawson that the Acting Arrangement would end on 22 March 2024.

3         Ms Lawson characterises the end of the Acting Arrangement as a dismissal. She says this is because the Department sent her away from the position which was the subject of the Acting Arrangement. She says this decision was harsh, oppressive or unfair because the reason that she says was given to her for the decision (that she was ‘not a good fit’) is contrary to the Department’s obligations under public sector employment standards.

4         The Department says that the Board has no jurisdiction to hear Ms Lawson’s appeal. It argues that Ms Lawson was not dismissed or constructively dismissed. Her employment relationship with the Department is ongoing.

Questions the Board must decide

5         The Board must decide:

1. Did the Department dismiss Ms Lawson by ending the Acting Arrangement; and if so

2. Should the Board adjust that decision?

Background

6         The following background is not in dispute.

7         On 26 August 2019, the Department appointed Ms Lawson as a permanent full-time public service officer in the position of Assistant Superintendent Offender Services Level 6, Position Number 014493. Ms Lawson’s substantive position is located at Wandoo Rehabilitation Prison in the Department’s Corrective Services division.

8         On 9 October 2023, Ms Lawson started a 12-month acting opportunity in the position of Manager Executive Support, Level 7, Position Number 4232 to manage the Aboriginal Visitors Scheme (AVS) in the Department’s Strategic Reform division. The end date of the Acting Arrangement was 7 October 2024.

9         As a result of the Acting Arrangement, Ms Lawson was entitled to a higher duties allowance (HDA) in accordance with cl 19 of the Public Service Award 1992 (Award).

16 February Discussion

10      On 16 February 2024, Ms Lawson had a discussion with her line manager, Ms Emma Roebuck (16 February Discussion), during which Ms Lawson told Ms Roebuck about negative feedback from AVS clients about Ms Roebuck and Ms Gina Hill (Acting Deputy Director General, Strategic Reform). Ms Lawson told Ms Roebuck that people in the community thought she was the ‘white c--- director telling the Aboriginal staff what to do’ and that they did not have a high opinion of Ms Hill.

11      Ms Lakeisha Mongoo, a new employee at the Department, witnessed the 16 February Discussion.

20 February Meeting

12      On 20 February 2024, Ms Lawson met with Ms Roebuck and Mr Trent Davies (20 February Meeting). At the time, Mr Davies was acting in Ms Hill’s position. They discussed the 16 February Discussion.

23 February Meeting

13      On 23 February 2024, Ms Lawson met with Ms Gina Hill, Ms Rhodessa Krakouer and Ms Louise Koyd (23 February Meeting).

14      At the meeting, Ms Hill told Ms Lawson that the Acting Arrangement would end on 22 March 2024 and that Ms Lawson would be given meaningful work to do from home from Monday 25 February 2024 until 22 March 2024.

15      Ms Lawson remains employed by the Department.

Witnesses

16      Ms Lawson, Ms Krakouer and Mr Dennis Hodges gave evidence for Ms Lawson.

17      Ms Roebuck and Mr Davies gave evidence for the Department. Neither party called Ms Mongoo to give evidence.

18      Generally the witnesses presented as credible and reliable. We make further observations about the evidence below.

The legal framework for this appeal

19      Ms Lawson appeals under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act) against what she says is the Department’s decision to dismiss her.

20      Under s 80I(1) of the IR Act, the Board’s remedial power is limited to ‘adjusting’ the decision Ms Lawson appeals.

21      This appeal is by way of hearing de novo and procedural defects can be cured by the de novo hearing before this Board: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 at [65].

Did the Department dismiss Ms Lawson by ending the Acting Arrangement?

22      Essentially, we accept the Department’s submissions. For the reasons that follow, we do not consider that the ending of the Acting Arrangement amounts to dismissal.

23      There are some differences in the witnesses’ accounts about what happened on 16, 20 and 23 February 2024.

24      Ms Lawson had a very good recollection of events. She was a cooperative, forthcoming witness. Generally speaking Ms Lawson’s evidence rang true to us and we consider her to be a reliable, credible witness.

25      Considerable time has passed since the events in question. In some respects, Ms Roebuck’s recollection was not as good as Ms Lawson’s, and there were some relatively minor inconsistencies in her evidence. Generally Ms Roebuck made concessions when they were due.

26      Ms Krakouer and Mr Hodges were credible witnesses but ultimately their evidence did not go to whether the Department dismissed Ms Lawson.

27      We are satisfied that Ms Lawson and Ms Roebuck both gave a truthful account of the 16 February Discussion to the best of their recollection. We attribute the differences in their evidence to their different perceptions of an interaction that was likely stressful for both of them.

28      Broadly Mr Davies’ evidence about the 20 February Meeting was consistent with that of Ms Roebuck.

29      Ultimately we consider it unnecessary to make findings about exactly what happened during the 16 February Discussion or at the 20 February Meeting, because it would not change the outcome in this matter. We would not be able to find that Ms Lawson was dismissed on any witness’ version of events.

30      It is clear that what happened at the 16 February Discussion and the 20 February Meeting led the Department to decide to end the Acting Arrangement early. But ending the Acting Arrangement early, in circumstances where Ms Lawson was still employed by the Department and had a permanent substantive position, does not amount to a dismissal.

31      It is not in dispute that in August 2019 Ms Lawson was appointed as a permanent full-time public service officer to the position of Assistant Superintendent Offender Services. In October 2023 Ms Lawson started the Acting Arrangement as Manager Executive Support. It is not in dispute that the Acting Arrangement was to be temporary. The evidence does not support a finding that Ms Lawson was appointed to the Manager Executive Support role under s 64 of the Public Sector Management Act 1994 (WA) (PSM Act), thereby vacating her substantive position by operation of s 67(f) of the PSM Act.

32      Indeed Ms Lawson’s evidence was that she understood it was ‘an acting opportunity at a higher duties allowance’ and that, if she were not ‘placed permanently into that Manager AVS position’, and no other position in the Strategic Reform division were created, then she would be ‘going back’ to her Assistant Superintendent role. Ms Lawson rightly conceded that she remains employed in her substantive position.

33      It is clear to us that no stage did the Department and Ms Lawson intend that Ms Lawson would relinquish her substantive position to take up the Acting Arrangement. On the oral and documentary evidence we must find that instead the parties intended that Ms Lawson would be entitled to a higher duties allowance under cl 19 of the Award while she performed the higher duties of the Manager Executive Support position.

34      We accept that in some circumstances a significant demotion can amount to a dismissal. But that simply is not what happened in this case. The submission that ending the Acting Arrangement amounts to a demotion and therefore a dismissal is misconceived. We agree with the Department’s submission that demotion can be a dismissal, but for that, the parties would need to enter into a new employment contract, ‘which is fundamentally different to the terms of the substantive contract or the previous employment contract. And that’s not what happened here.’

35      The Commission and its constituent authorities have consistently held that a dismissal involves being sent away or removed from office, employment or position, citing Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611; Gallotti v Argyle Diamond Mines Pty Ltd t/a Argyle Diamonds [2002] WAIRC 06828, (2002) 82 WAIG 3011 at [55] – [62] and Gallotti v Argyle Diamonds Pty Ltd [2003] WAIRC 07928; (2003) 83 WAIG 919 at [47] – [50]. See for instance the Full Bench in Bone Densitometry Australia Pty Ltd trading as Perth Bone Densitometry v Lenny [2005] WAIRC 02081; (2005) 85 WAIG 2981 at [48] and the Public Service Appeal Board in Hudston v North Metropolitan Health Services [2019] WAIRC 0036; (2019) 99 WAIG 238 at [37], Townes-Vigh v North Metropolitan Health Service [2020] WAIRC 00188; (2019) 99 WAIG 238 at [25] and Mathew v East Metropolitan Health Service [2024] WAIRC 00277; (2024) 104 WAIG 675 at [20].

36      Neither party could refer us to (and we are not aware of) any authority that supports the proposition that ending an acting arrangement and returning an employee to their substantive position amounts to dismissal.

37      Ms Lawson says that being sent away from the Manager Executive Support position amounts to being ‘sen[t] away or remove[d] from office, employment or position’ in accordance with Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 (Gersdorf). We do not agree. Where an employee continues to hold their substantive position, and merely ceases acting in a higher duties arrangement, that employee has not been sent away or removed from office, employment or position in the sense discussed in Gersdorf.

38      In effect, Ms Lawson says she was dismissed because she brought to Ms Roebuck and Ms Hill’s attention the derogatory name that members of the Aboriginal community had called Ms Roebuck and their dislike of Ms Hill. We agree that what happened during the 16 February Discussion and at the 20 February Meeting is the reason the Department ended the Acting Arrangement, but that does not mean there was a dismissal.

39      We cannot accept the argument that Ms Lawson’s conduct must have been dealt with as a disciplinary matter under Part 5 – Substandard performance and disciplinary matters of the PSM Act. While we agree that dismissal can be a form of disciplinary action taken under s 82A of the PSM Act, that a person is dismissed does not automatically mean that dismissal was by way of disciplinary action in disciplinary proceedings under s 82A. Further, here there was no dismissal.

40      Ms Lawson argues that if the Department did not dismiss her as a result of disciplinary action, ‘then it must have arisen as a result of an arbitrary or capricious administrative act’, which would be contrary to s 8(1) of the PSM Act. In our view, we can only consider arguments about arbitrary or capricious administrative behaviour in this matter if we find that Ms Lawson was dismissed. Further, the Board’s jurisdiction does not extend to considering whether Ms Hill had authority to end the Acting Arrangement.

41      Even if there were ‘a lacuna in the PSM Act (and, possibly, the Award) in respect of acting opportunities’ as argued by Ms Lawson, that could not confer jurisdiction that the Board otherwise lacks.

42      Ms Lawson made a number of submissions relating to what she says is the effect of s 67 of the PSM Act. She says she was appointed to the temporary position of Manager Executive Support, in line with s 64 of the PSM Act and Public Sector Commissioner’s Instruction 2: Filling a Public Sector Vacancy. Ms Lawson says that the effect of that appointment, together with s 67 of the PSM Act, means the ‘only way the office in which [she] was acting became vacant is because [she] was dismissed because of a decision made by the respondent’. Section 67 of the PSM Act says:

67. Vacation of offices

The office of a public service officer (other than an executive officer) becomes vacant if —

(a) that public service officer dies; or

(b) in the case of a term officer, the term officer completes a term of office and is not reappointed; or

(c) that public service officer is dismissed, or retires from office, under this Act; or

(d) the employment of that public service officer in the Public Sector is terminated under section 79(3) or under regulations referred to in section 95A; or

(e) that public service officer resigns his or her office in writing addressed to his or her employing authority and that employing authority accepts that resignation; or

(f) that public service officer is appointed or transferred under this Part to another office, post or position (unless it is an appointment and the Commissioner authorises the offices, posts or positions being held concurrently by that public service officer).

[Section 67 amended: No. 39 of 2010 s. 52 and 70; No. 8 of 2014 s. 12.]

43      Ms Lawson says that (a), (b), (d), (e) and (f) did not apply, and in relation to (c), she did not retire.

44      There are many difficulties with Ms Lawson’s submissions about this matter and we cannot accept them. Fundamentally, we agree with the Department’s submission at hearing that the true characterisation of what happened in this case is that Ms Lawson was given an opportunity to perform the full duties of a higher role. When she accepted that opportunity and performed the full duties of the higher role, Ms Lawson was entitled under the Award to be paid a higher duties allowance for doing so. That arrangement did not create a new employment contract that amounted to an appointment under the PSM Act. Further, that the acting opportunity had an expiry date did not elevate it to be a fixed-term appointment under the PSM Act. As Ms Lawson was not appointed to the Manager Executive Support position, she could not be (and was not) dismissed from it. Accordingly the Board’s jurisdiction is not enlivened.

45      For these reasons, we find that the Department did not dismiss Ms Lawson.

46      At its heart, Ms Lawson’s appeal is about contesting the Department’s decision to end the Acting Arrangement early. In circumstances where we have found that there was no dismissal, the appeal is outside of the Board’s jurisdiction. We cannot consider the fairness or otherwise of the Department’s decision and we do not have the power to adjust it.

47      We must dismiss application PSAB 6 of 2024.