CITATION : 2013 WAIRC 01011 CORAM : PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT- CHAIRMAN MR G SUTHERLAND - BOARD MEMBER MS G HUSK - BOARD MEMBER HEARD : TUESDAY, 19 NOVEMBER 2013 DELIVERED : FRIDAY, 29 NOVEMBER 2013 FILE NO. : PSAB 12 OF 2013 BETWEEN : HENRY TURLINSKI Appellant AND GOVERNING COUNCIL OF PILBARA INSTITUTE Respondent CatchWords : Public Service Appeal Board - Decision to dismiss - Termination of employment - Breach of discipline - Failure to obey a lawful direction - Validity of direction - Reporting structure Result : Appeal dismissed Representation: Appellant : In person Respondent : Mr D Anderson of counsel Reasons for Decision 1 These are the unanimous reasons for decision of the Public Service Appeal Board (the Board). Background 2 The appellant appeals against the respondent’s decision to dismiss him for failing to obey a lawful instruction, such instruction being given on 19 April 2013. 1864 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. 3 The respondent is a vocational education and training college operating from a number of campuses in the Pilbara. On 8 February 2010, the appellant was appointed to the position of Technical Officer based at the Tom Price campus and also served the Newman campus. The position was responsible for developing and implementing preventative maintenance plans, undertaking maintenance and repairs of trades equipment, preparing teaching aides and equipment, and the maintenance of the grounds and gardens at Tom Price and Newman campuses. 4 Whilst the appellant was based at Tom Price, he was required to travel to Newman approximately twice per month. The appellant’s letter of appointment (exhibit R5) noted that he reported to Bill McDonald, Director Karratha Group. His Job Description Form (exhibit R6) noted, under the heading of Reporting Structure, that the position of Technical Officer Level 3, his position, reported to Director Karratha Group, Level 8. The evidence demonstrates that from the middle of 2009, the respondent undertook a process of reviewing its structure and staff were notified that a link had been placed on the homepage of the intranet titled ‘Organisational Realignment’. This commenced a three-stage process which included changes to staff reporting arrangements (see also exhibits R13 and R14). This process allowed for feedback from staff and for them to raise particular issues. There was an implementation schedule which set out how the changes to the structure would be effected. 5 The evidence demonstrates that from the end of 2010, the appellant was reporting to people other than Mr Bill McDonald, and that over time he reported to a number of different people. 6 In early April 2012, Mr Shaun McLoughlin was appointed to the position of Manager Planning and Facilities – West. The appellant’s position had come under the direction of that position and the appellant was to report to Mr McLoughlin. By email dated 2 April 2012, the appellant and another member of staff were informed by Mr Craig Holland as follows ‘Just to let you know that as at tomorrow you will both be reporting directly to Shaun’ (exhibit R1). 7 Mr McLoughlin gave evidence that from the time he commenced employment in that position, the appellant reported to him and did not challenge him in his role as his manager. He described their relationship as very professional and that he had to deal with matters associated with managing the appellant such as the approval of funding for expenditure, leave applications, approval to travel, attendance at meetings, etc, approval for works, and the appellant’s credit card reconciliation. The appellant himself says that he did not raise the issue of Mr McLoughlin not having authority to direct him at any point prior to the termination of his employment. 8 The circumstances leading to the appellant’s dismissal are that in travelling to Newman from Tom Price, the appellant commenced very early in the morning on the first day of the trip and worked until 4.30 pm. He would stay in a hotel overnight which cost the respondent approximately $295 per night. If he could stay in the respondent’s own accommodation unit, this was cheaper for the respondent but also more convenient for him. He could refresh himself and change before starting out at the end of the second day’s work in Newman to travel back to Tom Price. This was after a full day’s work, travelling for approximately three hours, getting home around 7.00 pm. He had done this with his previous Director’s concurrence for approximately three years. 9 The appellant says he worked well and put his heart and soul into his work. He liaised with the various authorities at Karratha regarding Tom Price, and Port Hedland regarding Newman. He says he worked cooperatively but very independently. 10 In April 2013, apparently having approved the appellant’s travel arrangements for approximately a year, Mr McLoughlin raised concerns with him about those travel arrangements. Those concerns were that they constituted a safety issue and he wanted to find ways to reduce costs. Under the existing arrangements the appellant was working overtime at the beginning and end of the two days to enable him to travel. The appellant and Mr McLoughlin entered into a lengthy exchange of emails and meetings during which the appellant was formally directed by Mr McLoughlin to accept his direction to change the travel arrangements to ensure that he left Tom Price and returned within working hours and did not undertake travel outside of those arrangements. The appellant objected and the two of them negotiated without success. However, the email communications clearly indicate, and the appellant does not challenge, that he was not willing to accept the instructions. At one stage, the appellant contacted the Managing Director of the respondent seeking to involve her for the purposes of retaining his independence and not being required to comply with the direction. 11 In any event, on Friday 19 April 2013, as part of a lengthy email, following a telephone meeting between Mr McLoughlin and the appellant, Mr McLoughlin issued the appellant with an instruction. At the end of this email, Mr McLoughlin included an instruction under the heading ‘Instruction’. I then instructed you to accept my direction in relation to your travel times to Newman and have provided you with a deadline of Monday 22 April, 12.00pm Midday to respond to this in writing. In accepting this direction I expect to receive an update Approval to Travel form for your next trip to Newman. Failure to comply with this instruction by the deadline will result in us moving from the current Stage I to Stage II of the Substandard Performance Process. The appellant confirmed his refusal to accept the instruction to make changes to the travel arrangements and options being discussed. 12 There is no dispute that the appellant declined this instruction explicitly including continuing to attempt to negotiate a different arrangement. 13 There was a meeting between the appellant and Mr McLoughlin on 22 May 2013 where the appellant was once again advised that there was a requirement for him to comply with the direction. 14 Ultimately, following a process where the appellant was advised that the matter was being dealt with as a disciplinary one, that he had failed to comply with a reasonable direction, he was provided with an opportunity to respond and he did respond. In providing his response, the appellant did not accept the direction. In fact, he appeared to acknowledge in his letter to the Managing Director that the long working day and travel arrangements ‘could create a safety issue, but never did’ (exhibit R8). He again put forward a proposal in an endeavour to find common ground, but ultimately still declined to accept the direction. 15 On 13 May 2013, the respondent found that the appellant had committed a serious breach of discipline in his refusal to accept the direction. He was advised that consideration was being given to the termination of his employment and that he had an opportunity to respond (exhibit R9). The appellant responded by letter dated 17 May 2013, reiterating that he had previously 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1865 reported directly to Mr Bill McDonald and that his travel arrangements had been approved by Mr McDonald and undertaken that way for the last three years. He said that his previous comments regarding the travel arrangements and safety may have been misconstrued. In any event, he said ‘I can’t conform to Facilities Manager West directions when I know that the directions are against me personally and against smoothness of my work’ (exhibit R10). 16 On 22 May 2013, there appears to have been a meeting with Mr McLoughlin at which the appellant was provided with a further warning that unless he agreed to comply with the direction, his employment would terminate. He declined to accept the direction. By letter dated 22 May 2013, the Managing Director terminated his employment forthwith. Ground of the Appeal 17 The only ground on which the appellant pursues this appeal is that Mr McLoughlin did not have the authority to direct him, and therefore, the direction was invalid. In those circumstances, the dismissal was unfair. 18 He also says that his Job Description Form only required him to liaise with Mr McLoughlin and that he did not agree to the changes in organisational structure which resulted in him reporting to the Manager Planning and Facilities – West. He said he could not both report to and liaise with Mr McLoughlin. Considerations and Conclusions 19 The evidence demonstrates, and we find, that firstly the appellant had an opportunity to participate in the process engaged in by the respondent to restructure the organisation. It must be stated though, that there is no requirement for him to consent to a change in the person to whom he reports. To require this would make management of staff impossible. When he commenced employment, the appellant reported to a particular person occupying a particular position. That person, Mr McDonald, left the employment. Further, the reporting lines changed as a result of the organisational restructure. 20 Secondly, there is no evidence within the more than 20 communications which passed between the appellant and Mr McLoughlin and others between 15 April 2013 and the letter of termination on 22 May 2013, to indicate that the appellant’s objection to accepting the direction was due to Mr McLoughlin having no authority to give him that direction. He negotiated with Mr McLoughlin as if he accepted Mr McLoughlin’s authority. 21 Further, the evidence is that for the year from April 2012, when Mr McLoughlin took up the position, until the time of termination of employment, in all other respects in day-to-day operational requirements and staff management issues, the appellant readily reported to Mr McLoughlin. 22 Given that the appellant did not raise this ground of objection until after the dismissal, we find that it was not a genuine objection. Further, if there was any doubt as to Mr McLoughlin’s authority to direct the appellant, by email dated 23 April 2013, the Managing Director, Lyn Farrell, advised the appellant as follows: I am unafraid [sic] I must also say to you that I am not going to discuss this matter further with you. You have been given a reasonable instruction by your Manager and I expect you to follow it. (exhibit R9) 23 Further still, the formal correspondence which began with the suspected breach of discipline was under the signature of the Managing Director, on behalf of the appellant’s employer, and there could then have been no question that the appellant’s employer was requiring him to comply with the direction given to him by Mr McLoughlin. 24 In all of those circumstances, we conclude that not only did Mr McLoughlin have authority to issue a direction to the appellant and the appellant was obliged to comply with that direction, but the appellant knew this to be the case. In those circumstances, the direction which he refused to comply with was a valid direction and as such his ground of appeal is not sustainable. 25 The appeal will be dismissed. 2013 WAIRC 01012 APPEAL AGAINST DECISION TO TERMINATE EMPLOYMENT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES HENRY TURLINSKI APPELLANT -v- GOVERNING COUNCIL OF PILBARA INSTITUTE RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT - CHAIRMAN MR G SUTHERLAND - BOARD MEMBER MS G HUSK - BOARD MEMBER DATE FRIDAY, 29 NOVEMBER 2013 FILE NO PSAB 12 OF 2013 CITATION NO. 2013 WAIRC 01012 1866 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. Result Appeal dismissed Order HAVING heard Mr H Turlinski on his own behalf and Mr D Anderson of counsel on behalf of the respondent, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this appeal be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] On behalf of the Public Service Appeal Board. NOTICES—Union Matters— 2013 WAIRC 01044 NOTICE FBM No. 9 of 2013 NOTICE is given of an application by The Civil Service Association of Western Australia Incorporated to the Full Bench of the Western Australian Industrial Relations Commission for an alteration to its Rule 6 - Membership. The proposed alteration seeks to insert into Rule 6 - Membership, a new sub rule (b)(iv). The proposed alteration is highlighted in bold and underlined text below: EXISTING RULE 6 - MEMBERSHIP 6 - MEMBERSHIP (a) Membership shall be confined to any person who is: (1) employed as a public service officer under and within the meaning of the Public Sector Management Act 1994 (WA); or (2) employed under the Forests Act, the Main Roads Act or any Act now in force or hereafter enacted whereby any Board, Commission or other body is constituted to administer any such Act; or (3) otherwise employed in any of the established Branches of the Public Service, including State trading concerns, business undertakings and government institutions controlled by Boards; or (4) employed by the State of Western Australia; or (5) employed by the Crown or by any Minister of the Crown in right of the State of Western Australia; or (6) employed by any statutory body representing the State of Western Australia; or (7) employed by any instrumentality or authority whether corporate or unincorporated acting under the control of or for or on behalf of or in the interest of the State of Western Australia; or (8) employed in either House of Parliament of the State of Western Australia either - (i) under the separate control of the President or Speaker or under their joint control; or (ii) by a Committee appointed pursuant to the Joint Standing Rules and Orders of the Legislative Council and the Legislative Assembly. (9) employed by any company or corporation in which issued shares are held by or for or on behalf of or in the interest of the State of Western Australia, or, if there are no issued shares, in which the Governing body by whatever name called includes nominees appointed by or on behalf of or in the interest of the State of Western Australia. (10) in accordance with the agreement dated 30 May 2005 between the Civil Service Association of Western Australia and the Health Services Union of Western Australia as to the division of future membership coverage, a salaried employee (being a professional, administrative, clerical, technical and supervisory employee) employed either – (i) by the Metropolitan Health Service or by any other Western Australian State government person, enterprise or corporation in the Perth Dental Hospital and Community Dental Health Services or any other entity or unit howsoever described or named which provides any of the services provided by the Perth Dental Hospital and Community Dental Service henceforth; or (ii) by the Metropolitan Health Service or by any other Western Australian State government person, enterprise, corporation, agency or management unit for the provision of alcohol and drug addiction services in substitution of the operations and services provided by the Alcohol and Drug Authority. (11) all salaried employees (being professional, administrative, clerical, technical and supervisory employees) employed by the Metropolitan Health Service Board ("Board") or by any other Western Australian State Government person, enterprise or corporation in the Perth Dental Hospital or any other such entity or unit 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1867 howsoever described or named (including Perth Dental Hospital and Community Dental Services) which provides any of the services provided by Perth Dental Hospital or the Dental Services Branch of the Health Department of Western Australia as at 6 May 1998. (12) all salaried employees (being professional, administrative, clerical, technical and supervisory employees) employed by the Board in the Graylands Selby - Lemnos and Special Care Health Services ("GSL") who, as at 6 May 1998 were financial members of the CSA until such time as they resign, retire or are permanently transferred of redeployed from the GSL or cease to be a member of the CSA. (b) (i) Provided that the following persons shall not be eligible for membership: Persons who are employed by an employer bound by an award made or an industrial agreement registered under the Industrial Relations Act 1979 and in force on 1st March, 1985 and to which an organization of employees registered under the aforementioned Act other than The Civil Service Association of Western Australia Incorporated is party, in the callings which on 1st March, 1985 were mentioned in any such award or agreement or in a classification, not specifically mentioned in the award or agreement as at the 1st of March, 1985 the duties of which are the same or substantially similar to any classification which was so mentioned. Notwithstanding the above, employees of the Lotteries Commission of WA, or however so named, shall be eligible for membership of The Civil Service Association of Western Australia Incorporated. (ii) Notwithstanding the proviso in rule 6(b)(i), and without limiting the generality of rules 6(a)(10) and 6(a)(11), dental technicians, their apprentices or their trainees employed in the Perth Dental Hospital or Community Dental Health Services or any other entity or unit however described or named which provides any of the services formerly provided by Perth Dental Hospital or Community Dental Health Services shall be eligible for membership of The Civil Service Association of Western Australia Incorporated. (iii) Provided further that save and except for the employees referred to in Rule 6(a)(11) and (12) all salaried employees (being professional, administrative, clerical, technical and supervisory employees) (including those listed in Schedule A to the Rules of the Hospital Salaried Officers’ Association of Western Australia (Union of Workers)) employed by the Boards of any public hospital constituted under the Hospital and Health Services Act 1927 (as amended) in such hospitals or for the provision of health services in any district or area in which such board or boards are required or have a duty to provide such services shall not be eligible for membership of The Civil Service Association of Western Australia Incorporated. (c) In addition and notwithstanding the provisions of subrule (b) of this rule, membership shall be confined to: (1) salaried officers employed by any University within Western Australia, engaged in professional, administrative, supervisory, technical, or clerical capacities other than: (i) the Vice-Chancellor/s; (ii) persons paid according to academic salary rates and who are substantially engaged in teaching duties or on original research; (iii) persons whose conditions of engagement provide that their salary and status shall be equivalent to those of the academic staff. (d) In addition to and notwithstanding the provisions of subrule (b) of this rule, membership shall be confined to tradesmen who are employed as Foremen Tradesmen or Sub-Foremen Tradesmen by Ministers of the Crown, Government Instrumentalities, Agencies or Trading Concerns, excepting the Western Australian Government Railways Commission, the State Electricity Commission of Western Australia, the Metropolitan (Perth) Passenger Transport Trust and the Government Printing Office. Provided that the following persons shall not be eligible for membership: (i) Supervisor Shipwrights and Supervisor Dockers employed by the State Shipping Service. (ii) Assistant Dockmaster, South Slipway employed by the Hon. Minister for Works. (e) Notwithstanding any of the foregoing, such persons who are employees of the Civil Service Association of Western Australia (Incorporated) provided that such persons: (1) are not eligible to hold the offices of President, Senior Vice-President, Junior Vice-President, Honorary Treasurer or Executive Committee member, and (2) shall not include any persons employed in Level 1 and Level 2 positions and who are eligible for membership of the Australian Municipal, Administrative, Clerical and Services Union of Employees, WA Clerical and Administrative Branch. (f) No person under the age of fourteen years shall be a member. PROPOSED RULE 6 - MEMBERSHIP 6 - MEMBERSHIP (a) Membership shall be confined to any person who is: (1) employed as a public service officer under and within the meaning of the Public Sector Management Act 1994 (WA); or (2) employed under the Forests Act, the Main Roads Act or any Act now in force or hereafter enacted whereby any Board, Commission or other body is constituted to administer any such Act; or 1868 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. (3) otherwise employed in any of the established Branches of the Public Service, including State trading concerns, business undertakings and government institutions controlled by Boards; or (4) employed by the State of Western Australia; or (5) employed by the Crown or by any Minister of the Crown in right of the State of Western Australia; or (6) employed by any statutory body representing the State of Western Australia; or (7) employed by any instrumentality or authority whether corporate or unincorporated acting under the control of or for or on behalf of or in the interest of the State of Western Australia; or (8) employed in either House of Parliament of the State of Western Australia either – (ii) under the separate control of the President or Speaker or under their joint control; or (ii) by a Committee appointed pursuant to the Joint Standing Rules and Orders of the Legislative Council and the Legislative Assembly. (9) employed by any company or corporation in which issued shares are held by or for or on behalf of or in the interest of the State of Western Australia, or, if there are no issued shares, in which the Governing body by whatever name called includes nominees appointed by or on behalf of or in the interest of the State of Western Australia. (10) in accordance with the agreement dated 30 May 2005 between the Civil Service Association of Western Australia and the Health Services Union of Western Australia as to the division of future membership coverage, a salaried employee (being a professional, administrative, clerical, technical and supervisory employee) employed either – (i) by the Metropolitan Health Service or by any other Western Australian State government person, enterprise or corporation in the Perth Dental Hospital and Community Dental Health Services or any other entity or unit howsoever described or named which provides any of the services provided by the Perth Dental Hospital and Community Dental Service henceforth; or (ii) by the Metropolitan Health Service or by any other Western Australian State government person, enterprise, corporation, agency or management unit for the provision of alcohol and drug addiction services in substitution of the operations and services provided by the Alcohol and Drug Authority. (11) all salaried employees (being professional, administrative, clerical, technical and supervisory employees) employed by the Metropolitan Health Service Board ("Board") or by any other Western Australian State Government person, enterprise or corporation in the Perth Dental Hospital or any other such entity or unit howsoever described or named (including Perth Dental Hospital and Community Dental Services) which provides any of the services provided by Perth Dental Hospital or the Dental Services Branch of the Health Department of Western Australia as at 6 May 1998. (12) all salaried employees (being professional, administrative, clerical, technical and supervisory employees) employed by the Board in the Graylands Selby - Lemnos and Special Care Health Services ("GSL") who, as at 6 May 1998 were financial members of the CSA until such time as they resign, retire or are permanently transferred of redeployed from the GSL or cease to be a member of the CSA. (b) (i) Provided that the following persons shall not be eligible for membership: Persons who are employed by an employer bound by an award made or an industrial agreement registered under the Industrial Relations Act 1979 and in force on 1st March, 1985 and to which an organization of employees registered under the aforementioned Act other than The Civil Service Association of Western Australia Incorporated is party, in the callings which on 1st March,1985 were mentioned in any such award or agreement or in a classification, not specifically mentioned in the award or agreement as at the 1st of March, 1985 the duties of which are the same or substantially similar to any classification which was so mentioned. Notwithstanding the above, employees of the Lotteries Commission of WA, or however so named, shall be eligible for membership of The Civil Service Association of Western Australia Incorporated. (ii) Notwithstanding the proviso in rule 6(b)(i), and without limiting the generality of rules 6(a)(10) and 6(a)(11), dental technicians, their apprentices or their trainees employed in the Perth Dental Hospital or Community Dental Health Services or any other entity or unit however described or named which provides any of the services formerly provided by Perth Dental Hospital or Community Dental Health Services shall be eligible for membership of The Civil Service Association of Western Australia Incorporated. (iii) Provided further that save and except for the employees referred to in Rule 6 (a) (11) and (12) all salaried employees (being professional, administrative, clerical, technical and supervisory employees) (including those listed in Schedule A to the Rules of the Hospital Salaried Officers’ Association of Western Australia (Union of Workers) employed by the Boards of any public hospital constituted under the Hospital and Health Services Act 1927 (as amended) in such hospitals or for the provision of health services in any district or area in which such board or boards are required or have a duty to provide such services shall not be eligible for membership of The Civil Service Association of Western Australia Incorporated. (iv) Notwithstanding the proviso in rule 6(b)(i), technical officers and their supervisors employed in zoological or veterinary nursing functions by the Zoological Parks Authority [its transferee, transmittee, assignee or successor, however described] shall be eligible for membership of the Civil Service Association of Western Australia Incorporated. (c) In addition and notwithstanding the provisions of subrule (b) of this rule, membership shall be confined to: (1) salaried officers employed by any University within Western Australia, engaged in professional, administrative, supervisory, technical, or clerical capacities other than: 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1869 (i) the Vice-Chancellor/s; (ii) persons paid according to academic salary rates and who are substantially engaged in teaching duties or on original research; (iii) persons whose conditions of engagement provide that their salary and status shall be equivalent to those of the academic staff. (d) In addition to and notwithstanding the provisions of subrule (b) of this rule, membership shall be confined to tradesmen who are employed as Foremen Tradesmen or Sub-Foremen Tradesmen by Ministers of the Crown, Government Instrumentalities, Agencies or Trading Concerns, excepting the Western Australian Government Railways Commission, the State Electricity Commission of Western Australia, the Metropolitan (Perth) Passenger Transport Trust and the Government Printing Office. Provided that the following persons shall not be eligible for membership: (i) Supervisor Shipwrights and Supervisor Dockers employed by the State Shipping Service. (ii) Assistant Dockmaster, South Slipway employed by the Hon. Minister for Works. (e) Notwithstanding any of the foregoing, such persons who are employees of the Civil Service Association of Western Australia (Incorporated) provided that such persons: (1) are not eligible to hold the offices of President, Senior Vice-President, Junior Vice-President, Honorary Treasurer or Executive Committee member, and (2) shall not include any persons employed in Level 1 and Level 2 positions and who are eligible for membership of the Australian Municipal, Administrative, Clerical and Services Union of Employees, WA Clerical and Administrative Branch. (f) No person under the age of fourteen years shall be a member. The matter has been listed for hearing before the Full Bench at 10:30am on Monday, 3 February 2014 in Hearing Room 2 (Level 18). A copy of the Rules of the organisation and the proposed rule alterations may be inspected at Level 16, 111 St Georges Terrace, Perth. Any organisation/association registered under the Industrial Relations Act 1979, or any person who satisfies the Full Bench that he/she has a sufficient interest or desires to object to the application may do so by filing a notice of objection (Form 13) in accordance with the Industrial Relations Commission Regulations 2005. S. BASTIAN REGISTRAR 3 December 2013