CITATION : 2012 WAIRC 00103 CORAM : PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT- CHAIRMAN MS ANGIE SPAZIANI - BOARD MEMBER MR MATTHEW SWINBORN - BOARD MEMBER HEARD : 3 FEBRUARY 2012 DELIVERED : MONDAY, 27 FEBRUARY 2012 FILE NO. : PSAB 7 OF 2010 BETWEEN : MR NATHAN MAHER Appellant AND DIRECTOR GENERAL OF HEALTH AS A DELEGATE OF THE MINISTER OF HEALTH IN HIS INCORPORATED CAPACITY UNDER SECTION 7 OF THE HOSPITALS HEALTH SERVICES ACT 1972 FOR THE METROPOLITAN HEALTH SERVICES BOARD Respondent 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 385 CatchWords : Industrial law (WA) – Public Service Appeal Board – Application for member of the Board to stand aside - perception of bias – application dismissed Result : Application dismissed Representation: Appellant : Mr D Ellis of counsel Respondent : Mr D Matthews of counsel Reasons for Decision MS A SPAZIANI: 1 The appellant, Mr Maher, appeals against the decision to dismiss him. 2 The materials cited by the parties indicate that Mr Maher was dismissed following an investigation into allegations of misuse of the meals and entertainment scheme offered by the respondent as part of salary packaging arrangements. The appellant appears to be one of a number of employees whose conduct was investigated by a team of employees of the respondent, in relation to allegations of misuse of the meals and entertainment scheme. 3 The appellant has raised concerns about my role on the Board, claiming apprehension of bias and a conflict of interest in that I am employed by the employer of the appellant, within the department that managed and administered the case against the appellant and other employees who may have been involved in the misuse of the meals and entertainment scheme. The appellant’s concerns relate to an assertion that I play or played a senior role in the management of the case against Mr Maher and other employees alleged to have been involved, including preparation of the case, making recommendations to the Director General and briefing evidence to the prosecution. 4 I am currently employed by the respondent in this matter, as the Principal Investigator within the Ethical Standards Team of the Corporate Governance Directorate of the Department of Health. This Directorate had involvement in the investigations of the alleged misuse of the meals and entertainment scheme. However, I was not appointed to my current position until July 2011. Mr Maher was dismissed on 25 March 2010. The materials cited by the parties indicate that the matters involving employees alleged to have misused the meals and entertainment scheme have been concluded. This occurred before my appointment to this role. I can clarify that I have not had, and do not have any involvement in the matter of the appellant or other employees alleged to have misused the meals and entertainment scheme. 5 I can clarify that there is no conflict of interest or apprehension of bias on my part as the matters of alleged misuse of the meals and entertainment scheme were concluded prior to my appointment. I have no prior knowledge of Mr Maher, or the case against him by the respondent. 6 I will continue to sit as a member of the Board and to conduct myself independently from the body which nominated me, professionally, ethically and with integrity to bring an impartial mind the case. 2012 WAIRC 00106 APPEAL AGAINST TERMINATION WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MR NATHAN MAHER APPELLANT -v- DIRECTOR GENERAL OF HEALTH AS A DELEGATE OF THE MINISTER OF HEALTH IN HIS INCORPORATED CAPACITY UNDER SECTION 7 OF THE HOSPITALS HEALTH SERVICES ACT 1972 FOR THE METROPOLITAN HEALTH SERVICES BOARD RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT - CHAIRMAN MR M SWINBOURN - BOARD MEMBER MS A SPAZIANI - BOARD MEMBER DATE MONDAY, 27 FEBRUARY 2012 FILE NO PSAB 7 OF 2010 CITATION NO. 2012 WAIRC 00106 386 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. Result Application re perceived bias dismissed Order HAVING heard Mr D Ellis of counsel on behalf of the appellant and Mr D Matthews 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 the appellant's application that Ms A Spaziani withdraw from the Public Service Appeal Board on the grounds of perceived bias be, and is hereby dismissed. A(Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] For and On behalf of the Public Service Appeal Board. 2012 WAIRC 00134 APPLICATION TO DISMISS FOR WANT OF PROSECUTION APPEAL AGAINST TERMINATION WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION