REFERRAL OF A DECISION TO TAKE DISCIPLINARY ACTION ON 23 MAY 2025

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00231

DELIVERED : MONDAY, 20 APRIL 2026

FILE NO. : P 18 OF 2025

Applicant

AND

South Metropolitan Health Services

Respondent

CatchWords : Dismissal application under s 27(1)(a) of the Industrial Relations Act 1979 (WA) – Jurisdiction – Dismissal application upheld – Application dismissed – Applications that may be made by individual employees under s 29 – Employer direction suspending an employee on full pay pending the outcome of an investigation – whether employer direction is reasonable and lawful

Legislation :       Health Services (Health Service Providers) Order 2016 (WA) O 9

  Health Services Act 2016 (WA) ss 6, 104, 140, 147, 148, 164, 171

  Industrial Relations Act 1979 (WA) ss 7(1), 27(1)(a), 29, 36AA

  Public Sector Management Act 1994 (WA) ss 3, 6, 34, 76, 78

Result : Application to dismiss upheld

  Substantive application dismissed

Representation:

Counsel:

Applicant : Mr Mohamed Islam Edoo

Respondent : Mr Michael Aulfrey (as agent)

Case(s) referred to in reasons:

Barry John O’Loughlin v Wesfarmers Kleenheat Gas Pty Ltd [2001] WAIRC 04214; 81 WAIG 3147

Cooke v The Royal Melbourne Hospital unreported IRCA No: VI 2189 of 1995

Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA

Dr Kenneth Lee v South Metropolitan Health Service [2025] WAIRC 00767; 106 WAIG 357

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

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

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

Reasons for Decision

Introduction

1         On 23 May 2025 Mr Quai-de-Azam Edoo (applicant) who is employed by the South Metropolitan Health Service (respondent), as a ‘Program manager’, was directed to not attend for work (employer direction) while the respondent investigates allegations of inappropriate behaviour that have been made against him (investigation).

2         After he received the employer direction, the applicant on 23 June 2025, filed a Form 5 - Application to Refer Public Sector Matter (Form 5) with the Western Australian Industrial Relations Commission (Commission), in which he challenged the employer direction (claim).

3         In the claim, the applicant, who is not represented, seeks by way of relief, orders to vary the employer direction, so he can return to work.

4         By way of its Form 4 - Response, (response) which was filed on 27 June 2025, the respondent says the Commission does not have the jurisdiction to hear the substantive claim (jurisdictional objection).

5         In addition to its response, the respondent on 21 July 2025, filed an application under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) to dismiss the claim on similar grounds (strike out application).

6         This decision deals with both the respondent’s jurisdictional objection and its strike out application, both of which involve the same issue, whether the Commission has the jurisdiction to hear the claim.

Employer direction

7         By way of background and as a starting point, it is worthwhile extracting the employer direction in the terms in which it was issued to the applicant in the letter he received below:

 Dear Mr Edoo

 DIRECTION NOT TO ATTEND FOR WORK

 I have been made aware of concerns you may have been demonstrating behaviours that are not in accordance with the WA Health Code of Conduct, and are impacting on, your role as Program Manager, Mental Health Services, Fiona Stanley Fremantle Hospitals Group, South Metropolitan Health Service (SMHS).

 In order to promptly assess these concerns and decide what, if any action is required in respect of them in the best interests of SMHS and yourself, I therefore direct you as follows:

1. You are directed not to attend the workplace for work related purposes until further notice. For the avoidance of doubt, you do not have an anticipated return to work date at this time.
2. Further, you are directed not to access, or seek the assistance of any other person to access, any SMHS database or SMHS IT resource, or other SMHS record, until directed or approved otherwise by me in writing beforehand. You are not authorised to make or attempt any such access.
3. Further, you are not to contact any SMHS employee or contractor within your workplace directly, indirectly, and/or via a third party. You are specifically directed not to attempt to make contact with any employee, through any means, who works at a SMHS worksite. This direction is to remain until directed otherwise, except where it has been explicitly authorised by me in writing beforehand. This includes emailing or any contact via social media platforms.

 I make these directions on the basis it is not appropriate, in the interests of patients, staff and yourself to allow you to return to the workplace until SMHS has had the opportunity to evaluate these concerns and decide how they are to be dealt with.

 For the avoidance of doubt, these are lawful directives given by SMHS which you are required to comply with. Failing to comply with a lawful directive may amount to a breach of discipline.

 Whilst you are not required to attend for duty, you are, as an employee of SMHS, obligated to comply with any lawful direction from SMHS within this period. This will include attendance to any appointments set by SMHS. During this period, and until advised otherwise you will be paid according to your contract of employment. You must remain in contact via the abovementioned email address and your mobile number 0403703184.

 For clarity, my decision to make these directions is not to be interpreted as SMHS making any finding or decision for the purpose of s 162 of the Health Services Act 2016 (the Act) and should not be construed as being disciplinary action or a suspension of your employment under s 164 of the Act.

 …

8         There is no dispute that the applicant, because of the employer direction, has been suspended on pay while the investigation is held.

The claim

9         On the first page of his Form 5 which sets out the particulars of the claim, the applicant states that he is referring an industrial matter to the Commission under s 78 of the Public Sector Management Act 1994 (WA) (PSM Act).

10      The applicant has raised a number of grievances in the claim about the employer direction and the investigation which include the following:

1. the applicant has been provided with insufficient details of the allegations against him;
2. he has been denied procedural fairness, both in the lead up to his suspension and the matters giving rise to the investigation into his alleged conduct;
3. the applicant requires further information about the investigation process; and
4. he contends the investigation should be conducted by an independent investigator.

11      More significant though, is that the applicant seeks a variation of the employer direction, even while the investigation is occurring, that will allow him to return to work when the person who he believes is the complainant, is not there.

12      The applicant has also sought an amendment to the employer direction so that he will be allowed to work from home when the complainant is at work. The applicant said this amendment will prevent any disruption to the provision of the respondent’s services and a build-up of work.

13      He has also contended the proposed variations will minimise any adverse impact the issuance of the employer direction would have on his reputation.

Response to the claim – PSM Act

14      From the very outset, the respondent has argued the Commission does not have the jurisdiction to hear the claim. There are several limbs to this argument, the first of which relates to way in which the claim is framed.

15      The respondent says the applicant cannot refer a matter to the Commission under s 78 of the PSM Act because it is not an employer to which the provisions of this statute apply. Rather, the respondent says that it is covered by the Health Services Act 2016 (WA) (HS Act).

16      Regarding the application of the PSM Act, the respondent raised the following points in Appendix A of its response:

1. The Applicant is employed by the Respondent, South Metropolitan Health Service (SMHS).
2. SMHS is a Health Service Provider (HSP) established under the authority of the Health Services Act 2016 (WA) (HS Act), specifically by clause 9(1) of the Health Services (Health Service Providers) Order 2016 (WA).
3. Section 78 of the Public Sector Management Act 1994 (PSM Act) applies only to employee tranches at section 76 of the PSM Act. The Applicant is not a ministerial officer nor a member of any class of employees prescribed for the purposes of section 76 of the PSM Act.
4. Section 76 includes public service officers. The Applicant is not a public service officer. Section 3(1) of the PSM Act says the term ‘public service officer’ “means an executive officer, permanent officer or term officer employed in the Public Service under Part 3 [of the PSM Act].”
5. Section 104(3) of the HS Act provides that Part 3 of the PSM Act does not apply to HSP employees.
6. Section 34 of the PSM Act defines the Public Service as departments, SES organisations, and persons employed under Part 3 of the PSM Act.
7. SMHS is not a department as defined by section 35 of the PSM Act and is not a SES organisation named in Schedule 2 to the PSM Act. Its employees are not employed under Part 3 of the PSM Act. SMHS is not constituted as part of the Public Service for the purposes of the PSM Act.
8. Section 36AA(2)(c) of the Industrial Relations Act 1979 (IR Act) therefore does not apply. For the Commission to have jurisdiction over an industrial matter at section 78 of the PSM Act, it must be a decision against an employee to whom section 76 of the PSM Act applies. The Applicant does not meet that criterion.

Response to the claim - the HS Act.

17      The respondent’s second argument is that even if the applicant’s Form 5 was amended and brought as an ‘industrial matter’ under s 171 of the HS Act, the claim would still not be within the Commission’s jurisdiction.

18      In Appendix B of its response, the respondent contended that while s 171 of the HS Act, allows some ‘industrial matters’ to be referred to the Commission by individual employees, the applicant’s suspension on full pay because of the employer direction, is not one of them.

19      For context, the right of an individual employee who is employed by a health service provider to challenge particular types of employment decisions, appears in s 171 of the HS Act, which provides:

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

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

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

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

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

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

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

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

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

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

Note for this section:

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

(2) In subsection (1) —

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

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

20      The respondent says the Commission does not have the jurisdiction to hear the claim under s 171 of the HS Act because the respondent has not, at this stage decided to take disciplinary action against the applicant.

21      Likewise, the respondent says that even if it can be said the applicant’s suspension under the employer direction has been made pursuant to s 164(1)(a), because it is on full pay, it is not an industrial matter that may be referred to the Commission under s 171 of the HS Act.

22      It was submitted that only suspensions on partial or no pay fall within the description of an ‘industrial matter’ under s 171 that may be referred to the Commission.

Commissioner’s email to the applicant

23      After the claim was filed, the matter was initially allocated to Commissioner Emmanuel. On receiving the response, Commissioner Emmanuel’s associate sent an email to the applicant dated Wednesday 2 July 2025 that was in the following terms:

I refer to application P 18/2025 (which has been allocated to Commissioner Emmanuel), and to the response filed on 27 June 2025 by South Metropolitan Health Services.

Commissioner Emmanuel directs you to consider the matters raised in the response (in particular, Appendices A and B) and tell the Commission by 4pm on Wednesday, 9 July 2025 whether you wish to discontinue application P 18/2025 in the circumstances.

24      In a reply email dated 9 July 2025, the applicant said the Commission had the jurisdiction to hear the claim. He did not however address the jurisdictional arguments that were set out in the response, which Commissioner Emanuel had directed him to answer.

Strike out application

25      On Thursday 17 July 2025, Commissioner Emmanuel listed the claim for a directions hearing, to be held on Tuesday 5 August 2025. In the lead up to this hearing the respondent filed the strike out application.

26      Attached to the strike out application was a comprehensive outline of submissions (respondent’s outline) together with a list of authorities.

27      By its strike out application, the respondent contends the applicant’s claim has no reasonable prospects of success because the Commission does not have the jurisdiction to hear the claim and for this reason, the matter should be dismissed under s 27(1)(a) of the IR Act.

Commission’s power to hear the application to dismiss

28      The respondent’s application to dismiss was made under Section 27(1)(a) of the IR Act which provides:

27. Powers of Commission

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

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

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

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

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

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

   …

Principles to be applied in an application under s 27(1)(a)

29      The principles the Commission must apply when considering whether to dismiss an application under s 27(1)(a) of the IR Act are well established.

30      Recently, the Industrial Appeal Court in Palaloi v Director General, Department of Education [2025] WASCA 130 (Palaloi) confirmed at [26] the approach that was taken by a Full Bench of the Commission in relation to an application under s 27(1)(a) is correct.

31      At [13] the Industrial Appeal Court in Palaloi summarised this approach in the following way:

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

32      The application of the way in which the Industrial Appeal Court has confirmed s 27(1)(a) of the IR Act is to be applied is also consistent with the approach the Commission has taken in decisions, including Jade Smith v Minister for Corrective Services [2022] WAIRC 00848; 103 WAIG 51 at [24], by the Commission in Court Session in Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 01044; 105 WAIG 45 and more recently by Commissioner Emmanuel in Dr Kenneth Lee v South Metropolitan Health Service [2025] WAIRC 00767; 106 WAIG 357 (Dr Lee’s case).

Programming directions

33      At the directions hearing that was convened on 5 August 2025, Commissioner Emmanuel made directions as follows (programming directions) [2025] WAIRC 00463:

1. THAT by 4pm on Tuesday, 19 August 2025, the applicant file his response to the respondent’s application to dismiss application P 18 of 2025 (Dismissal Application), any materials on which he seeks to rely, and written submissions opposing the Dismissal Application;
2. THAT application P 18 of 2025 be listed for a short hearing to determine the Dismissal Application; and
3. THAT the parties have liberty to apply.

Applicant’s submissions

34      In accordance with the programming directions, the applicant on 11 August 2025, filed an outline of submissions in opposition to the strike out application (applicant’s first outline).

35      In his first outline the applicant submitted that because he is employed in an administrative and management role, he is by virtue of s 104 of the HS Act, covered by the PSM Act. The applicant submitted the HS Act does not apply to his employment because he is not employed in a nursing or clinical position.

36      The applicant contended the respondent had, with the issuance of the employer direction, taken disciplinary action at the initial stage of the investigation. After making this submission and despite arguing the PSM Act applied to his employment, the applicant in his first outline did not explain why in his view, the Commission could hear the claim.

37      The applicant instead dedicated most of his first outline to a critique of the employer direction and how he was denied procedural fairness. In other words, the applicant’s submissions did not address the issue of whether the Commission has the jurisdiction to hear the claim.

Hearing of the jurisdictional objection and strike out application

38      After the filing of the applicant’s first outline, the jurisdictional objection and strike out application was twice listed for a hearing before Commissioner Emmanuel.

39      As a result of circumstances beyond the parties’ and the Commission’s control, which included personal illness, the hearing dates on Wednesday, 1 October 2025 and Tuesday, 16 December 2025 both had to be vacated.

40      Following this, Commissioner Emmanuel relisted the application to dismiss for a hearing to be held on Friday, 6 March 2026.

41      On Friday, 20 February 2026 the claim was reallocated for me to hear the application to dismiss. The hearing of the application to dismiss went ahead as planned.

42      During the hearing of the application to dismiss, the applicant indicated that he needed more time consider the submissions raised in the respondent’s outline and to read through copies of the cases the respondent had referred to in its submissions and list of authorities, including the decision Commissioner Emmanuel issued in Dr Lee’s case.

43      Noting the applicant was unrepresented and the respondent would not suffer any prejudice because the employer direction would remain in place pending a decision in the application to dismiss, I adjourned the hearing on the following basis:

1. THAT by 4pm on 20 March 2026, the applicant is to file any further written submissions in opposition to the application to dismiss;
2. THAT the application to dismiss be determined on the papers; and
3. THAT there be liberty to apply.

44      When adjourning the matter, I strongly encouraged the applicant to seek legal advice in relation to the application to dismiss.

Applicant’s second outline

45      On Friday, 20 March 2026 the applicant filed a brief outline of submissions in opposition to the application to dismiss (applicant’s second outline).

46      In the opening paragraph of the applicant’s second outline, the applicant indicated that due to the complexity of the case and the volume of the materials to be reviewed, it was unfeasible in the timeframe for him to engage his lawyer in this matter.

47      Despite this, the applicant stated in his second outline that his lawyer is:

 ‘monitoring the case and will engage when he feels it’s appropriate’.

48      After making these statements, the applicant’s second outline, much like his first, did not address the issue of whether the Commission has the jurisdiction to hear the substantive claim.

49      The applicant’s submissions were in the main, directed at the effect of the employer direction has had on him and the applicant’s claim that he was denied natural justice when he was presented with it.

50      The applicant submitted the Commission has a general authority to hear and determine any matter that is put before it. It was submitted that a person who brings a proceeding before the Commission is entitled to have the jurisdiction invoked.

51      Relying upon the submissions made in the applicant’s first outline, the applicant submitted the Commission could hear the claim. He also submitted the strike out application should be dismissed.

Consideration – the application to dismiss

52      In reaching a decision in the application to dismiss, I have considered both parties outlines of submissions and the authorities they referred to.

53      To the extent it is relevant, I am satisfied the applicant, in the period after he filed the claim, to the end of the 14 days, immediately following the hearing of the application to dismiss, was given a reasonable opportunity to obtain legal advice on the jurisdictional objection.

54      I am also satisfied the applicant was given a reasonable opportunity to respond to the respondent’s submissions and the cases listed in the respondent’s list of authorities. However, despite being afforded this opportunity, the applicant in his submissions, did not ultimately address the issue of whether the Commission has the jurisdiction to hear the claim.

55      For the reasons to follow I will explain why I have accepted the respondent’s argument the claim should be dismissed because it has no reasonable prospects of success. In short, I accept that the Commission does not have the jurisdiction to hear the claim.

Definition of an industrial matter

56      To decide the jurisdictional objection, there are two issues that need to be resolved. The first is whether the claim involves an ‘industrial matter’ within the meaning of s 7(1) of the IR Act.

57      If so, the second is whether the industrial matter is one that may be referred to the Commission. This is because the Commission does not have the jurisdiction to enquire into and deal with every industrial matter that may arise: Commissioner Emmanuel in Dr Lee’s case at [26].

58      In the context of the present case, it is clear that disputes involving the suspension of employees, who work for state government health service providers, with only partial payment or without pay (emphasis added) may give rise to an industrial matter within the meaning of the IR Act: see s 171 HS Act and s 7(1)(h) of the IR Act referred to above.

59      There is also little doubt a dispute over the terms on which an employee may be suspended from their employment, with pay, pending the outcome of an investigation into that employee’s conduct is something that may give rise to an industrial matter. This is because of the breadth of the definition of an ‘industrial matter’ in the IR Act.

60      While the definition of an industrial matter under s 7(1) of the IR Act, is lengthy, in its core meaning is ‘any matter affecting or relating to or pertaining to the work … of employers or employees in any industry or of any employer or employee therein…’: Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA at [24].

61      However, and although a dispute over the suspension of an employee on full pay might be an industrial matter the Commission could consider, the issue of whether that industrial matter may be referred by an individual employee, is what decides the application to dismiss in this present case.

Matters that may be referred to the Commission

62      Like breadth of the definition of an ‘industrial matter” of the scope the Commission’s jurisdiction of the Commission to inquire into and deal with industrial matters is also broad. There is however a limit on the type of industrial matters that may be referred to the Commission by individual employees.

63      The provision in the IR Act that makes this point clear, and which describes the ‘industrial matters’ that may be referred to the Commission appears in s 29, the relevant parts of which I have extracted below:

29. Who may refer industrial matters to Commission

(1)           An industrial matter may be referred to the Commission —

(a)           in any case, by —

(i)            an employer with a sufficient interest in the industrial matter; or

(ii)          an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or

(iii)        the Minister;

…

(c)           in the case of a claim by an employee that the employee has been harshly, oppressively or unfairly dismissed from the employee’s employment — by the employee; and

(d)           in the case of a claim by an employee that the employer has not allowed the employee a benefit, other than a benefit under an award or order, to which the employee is entitled under the contract of employment — by the employee; and

…

(g)           in the case of a decision mentioned in section 36AA(2)(b) — by a public service officer; and

…

(i)            in the case of an industrial matter under the Public Sector Management Act 1994 section 78 that is a decision or finding made in relation to an employee or former employee to which Part 5 of that Act applies — by the employee or former employee; and

(j)            in the case of an industrial matter under the Health Services Act 2016 section 171 that is a decision or finding made in relation to an employee or former employee to which Part 11 of that Act applies — by the employee or former employee; and

...

(2)           Subject to subsection (3) —

(a)           a referral under subsection (1)(c) must be made no later than 28 days after the day on which the employee’s employment is terminated; and

(b)           a referral relating to a decision mentioned in section 36AA(2)(b) must be made no later than 28 days after the day on which the decision is made; and

(c)           a referral relating to a decision or finding that is an industrial matter under the Public Sector Management Act 1994 section 78 or the Health Services Act 2016 section 171 must be made no later than 28 days after the day on which the decision or finding is made; and

(d)           a referral of a breach of public sector standards claim must be made no later than 28 days after the end of the agency resolution period mentioned in section 36AJ(c)for the claim.

…

64      While industrial matters involving disputes over what happens when an employee has been suspended on pay, pending the outcome of an investigation into that employee’s conduct could potentially be referred to the Commission, they may only be referred by an ‘organisation’ under s 29(1)(a)(ii) of the IR Act.

65      In the present case, this would mean that while a dispute over the issuance of the employer direction could be referred to the Commission, it would have to be by way of an application made by an industrial organisation, to which the applicant is either a member or eligible to be a member.

66      The right of an industrial organisation to make an application challenging the employer direction in circumstances of the present case though is a point to which I will return.

Application of the HS Act

67      The claim in this matter was referred to the Commission under s 78 of the PSM Act. In his first outline, the applicant submitted that he was entitled to do this because his employment is covered by the PSM Act.

68      There are however two difficulties with this submission. Firstly, it is not in dispute that the respondent, who employs the applicant, is a health service provider that was established under clause 9(1) of the Health Services (Health Service Providers) Order 2016 (WA): see s 6 of the HS Act.

69      Second and because there is no dispute the applicant is employed by the respondent, it follows the applicant must also be an employee within the meaning of s 6 of the HS Act which states:

employee means a person employed in a health service provider and includes —

(c)           a person employed in the health service provider under section 140;

…

70      In relation to the definition of an employee under the HS Act, s 140 relevantly provides:

140. Employees of health service provider

(1)           An employing authority of a health service provider may employ and manage employees for and on behalf of the State.

(2)           Employees employed under subsection (1) are in addition to employees employed as health executives in the Health Executive Service.

(3)           Subject to any relevant industrial instrument, the terms and conditions of employment of employees employed under subsection (1) are the terms and conditions the employing authority determines.

[Section 140 amended: No. 1 of 2023 s. 56.]

71      When each of the sections referred to are viewed alongside other provisions within the HS Act, including ss 147, 148 and 164(1)(a), it is clear the HS Act, much like the PSM Act was intended to regulate various aspects of the relationship between health service providers as defined and their employees.

72      Although the PSM Act contains similar provisions and in parts, is referred to in the HS Act, that does not mean all the provisions of the PSM Act apply to the applicant’s employment with the respondent.

Application of the PSM Act

73      The applicant’s argument regarding his right to make a claim under s 78 of the PSM Act centres on s 104, that appears in Part 9 of the HS Act, which I have extracted below:

104. Application of PSM Act

(1)           Unless otherwise specified in this Act or by the regulations, the PSM Act applies to administration and management, human resource management and conduct of health service providers and employees under this Act.

(2)           For the purposes of subsection (1) the PSM Act applies as if —

(a)           a reference in that Act to an employee were a reference to an employee as defined in section 6;

(b)           a reference in that Act to an employing authority were a reference to an employing authority as defined in section 103.

(3)           The PSM Act Part 3 does not apply to employees.

74      Part 3 of the PSM Act, which is excluded by s 104(3) of the HS Act as set out above, deals with the constitution of the Public Service as defined in ss 6 and 34 of the PSM Act. It also describes the basis upon which public service officers and senior executives are employed.

75      Section 78 of the PSM Act appears in Part 5 of the PSMA Act. It deals with the right of employees to refer a claim to the Commission, who are affected by the types of industrial matters described; including those involving dismissals, suspensions, disciplinary decisions or findings of substandard performance.                

76      However, the only employees who can refer a claim under s 78 of the PSM Act must be employed in one the categories described in s 76 (Application and effect of Part 5) as follows:

1. public service officers as defined under s 3 of the PSM Act;
2. ministerial officers;
3. any other employee as prescribed under regulations under the authority of the PSM Act.

77      Regarding these categories, a ‘public service officer’ under s 3 of the PSM Act is defined as ‘an executive officer, a permanent officer or term officer employed in the Public Service under Part 3’.

78      It does not matter that the applicant might be employed by the respondent in an administrative or management role. As s 104(3) of the HS Act says that Part 3 of the PSM Act does not apply to employees as defined under the HS Act, the applicant cannot be a public service officer under Part 3, who is entitled to bring a claim to the Commission under s 78 of the PSM Act.

79      Similarly, I accept the respondent’s submission that there is no suggestion the applicant is employed as a ministerial officer. There are also no regulations that would place the applicant into the position of an employee under the PSM Act.

80      I therefore consider that because the applicant is not an employee within the description under s 76 the PSM Act, it cannot be said that s 104 of the HS Act, creates a right for the applicant to bring a claim to the Commission under s 78 of the PSM Act.

Purpose of s 104 of the HS Act

81      I consider that the function of s 104 of the HS Act is quite different to the purpose being advanced by the applicant in his submissions.

82      Rather than extending the right of employees who are employed by health service providers to bring a claim under s 78 of the PSM Act, it would appear the purpose of s 104(1) and (2) is to require health service providers to adopt public administration and management principles, as set out in the PSM Act.

83      More specifically, it appears the requirements of the PSM Act, such as the Public Sector principles that are described in Part 2 are intended to apply to health service providers under s 104 (1) and (2) of the HS Act.

84      This means that a reference to an employee in Part 2 of the PSM Act to which the ‘Human resource management principles’ (see s 8 PSM Act) and the ‘Principles of conduct by public sector bodies’ (see s 9 of the PSM Act) would, because of s 104, also apply to employees under the HS Act.

85      As I have indicated in the preceding paragraphs, I do not consider that s 104 of the HS Act creates a right for an employee to make a claim under s 78 of the PSM Act. Put another way, I do not accept the Commission has jurisdiction to hear the claim because of s 104 of the HS Act.

Section 171 of the HS Act

86      The right of an individual employee who is employed by a health service provider to challenge a suspension decision is confined by s 171 of the HS Act which I earlier referred to in the preceding paragraph [19].

87      If an employee can establish that they were the subject of a decision as set out in s 171 of the HS Act, s 36AA(2)(c) of the IR Act provides that the Commission has jurisdiction to enquire into and deal with an application to challenge that decision.

88      While there is no dispute the employer direction at issue in the present case involves a suspension, it is not a decision where the employee was suspended under either ss 147 or 148 of the HS Act.

89      I also do not consider the employer direction, although seemingly made in accordance with 164(1)(a) of the HS Act, is one that may be referred to the Commission under s 171 of the HS Act either.

90      Section 164 of the HS Act relevantly provides:

164. Action against employee pending decision on breach of discipline

(1)           If an employing authority has decided to act under section 162(a) in relation to an employee, the employing authority may, in accordance with the relevant regulations —

(a)           suspend the employee on full pay, partial pay or without pay; or

(b)           alter the employee’s scope of practice or duties.

(2)           Subject to subsection (3) a suspension or alteration arising from a decision referred to in subsection (1) has effect until a decision is made under section 163(2) or (3) or 166 in respect of the suspected breach.

(3)           The employing authority may at any time remove, or vary the terms of, the suspension or alteration.

(4)           Unless the employing authority otherwise directs, any pay withheld under subsection (1) is forfeited to the State if it is decided to take disciplinary action with respect to the employee for the breach of discipline.

(5)           An employee is entitled to have any pay of the employee that is withheld under subsection (1) and not forfeited under subsection (4) restored to the employee.

91      The effect of the applicant’s suspension on full pay is that even though the employer direction may have been made in accordance with s 164(1)(a) of the HS Act, because it did not result in his suspension on partial payment or without pay, the applicant in an individual capacity, does not have the right under s 171 of the HS Act or s 29 of the IR Act to make an application to the Commission to challenge his suspension: Dr Lee’s case at [29] – [30].

92      It is on this basis that I consider the Commission does not have the jurisdiction to hear the applicant’s claim.

Disciplinary action

93      I do not consider the applicant has a right to make a claim to the Commission under s 171 of the HS Act because he is the subject of disciplinary action that has been taken by the respondent.

94      There is nothing on the face of the text in the employer direction that suggests the respondent has made any findings in relation to the allegations about his behaviour giving rise to the investigation, let alone a final decision on any disciplinary action.

95      It is not unusual or unlawful for employees to be suspended or stood down on full pay while an investigation is conducted into allegations of inappropriate behaviour. Such employer directions are generally accepted as giving rise to reasonable and lawful directions: see Commissioner JH Smith in Barry John O’Loughlin v Wesfarmers Kleenheat Gas Pty Ltd [2001] WAIRC 04214; 81 WAIG 3147 at [30] citing the decision of Judicial Registrar Millane in Cooke v The Royal Melbourne Hospital unreported IRCA No: VI 2189 of 1995.

96      Accordingly, I do not accept the applicant is the subject of disciplinary action that would allow him to make a claim under s 171 of the HS Act either.

Application by an industrial organisation

97      I have earlier indicated that although the applicant’s suspension and the respondent’s conduct of an investigation may give rise to ‘industrial matter’ that could be referred to the Commission, this could only be by way of a fresh application that would have to be made by an organisation referred to in s 29(1)(a)(ii) of the IR Act.

98      While this might present a pathway to refer a dispute to the Commission about the effect of the employer direction and the way the investigation is being conducted, I do not consider orders resulting in an amendment to or the revocation of the suspension, as sought by the applicant, would by any means, be assured.

99      It is my view, the Commission, in view of the general principle I referred to in the preceding paragraph [95] would be reluctant to set aside an employer direction suspending an employee on full pay while the employer investigates allegations of inappropriate behaviour in the workplace.

100   That said, the Commission, even with the obligation to provide procedural fairness, and while there may be many allegations or the allegations are complex, would expect that any investigation regarding alleged inappropriate workplace behaviour, is conducted and completed in a timely manner.

Conclusion

101   For all the reasons set out in the preceding paragraphs, I have concluded the Commission does not have the jurisdiction to hear the claim. It is on this basis that I consider, there are no reasonable prosects the applicant could succeed in the claim.

102   Accordingly, I have decided the application to dismiss should be decided in the respondent’s favour. I will therefore make an order under s 27(1)(a) of the IR Act dismissing the claim.