WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2026 WAIRC 00112 CORAM : PUBLIC SERVICE APPEAL BOARD COMMISSIONER T KUCERA - CHAIRPERSON MS ANGELA BERRAGAN - BOARD MEMBER MR BRUCE HAWKINS - BOARD MEMBER HEARD : ON THE PAPERS DELIVERED : THURSDAY, 26 FEBRUARY 2026 FILE NO. : PSAB 9 OF 2024 BETWEEN : MARK KOSTNER Appellant AND SMALL BUSINESS DEVELOPMENT CORPORATION Respondent CatchWords : Public Service Appeal Board – dismissed under s 27(1)(a) of the Industrial Relations Act 1979 (WA) – Continuation of appeal barred by appeal – Settlement agreement – No 526 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 106 W.A.I.G. jurisdiction to hear the appeal or order relief sought Legislation : Freedom of Information Act 1992 (WA) Industrial Relations Legislation Amendment Act 2024 (WA) Industrial Relations Act 1979 (WA) Public Sector Management Act 1994 (WA) Result : Appeal dismissed Representation: Counsel: Appellant : Mr Mark Kostner Respondent : Mr Ray Andretich (of counsel) Case(s) referred to in reasons: Deborah Harvey v Commissioner for Corrections, Department of Corrective Services [2016] WAIRC 00899; (2016) 97 WAIG 1521 Foseberry v Mt Newman Mining Co Pty Limited [1988] WAIRC 11882; (1988) 68 WAIG 1882 Jade Smith v Minister for Corrective Services [2022] WAIRC 848; (2022) 103 WAIG 51 Margaret Meo v Department of Communities [2023] WAIRC 660; (2023) 103 WAIG 1519 Mark Kostner & Peter Newton Frey v Small Business Development Corporation [2024] WAIRC 00944; (2024) 104 WAIG 2357 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Reasons for Decision 1 This decision relates to whether an Appeal to the Public Service Appeal Board (Board), that Mark Kostner (appellant) filed on 26 April 2024 (appeal) should be dismissed under section 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) on two grounds: i. because the parties have reached a binding settlement in relation to the subject matter giving rise to the appeal; and ii. the Board lacks the jurisdiction to deal with the matter or make orders in the form the appellant has sought as an outcome in the appeal. Background 2 By the appeal, the appellant sought a review of a decision the Small Business Development Corporation (respondent) had made, to withdraw an offer of part time employment, pursuant to the terms of a fixed term contract, for the period 29 February to 30 June 2024 (fixed term employment offer). 3 Before being issued with the fixed term employment offer, the appellant was employed by the respondent under a casual employment arrangement, that was to end on or around 29 February 2024. 4 Under the fixed term employment offer, the appellant’s employment with the respondent would have continued, even if only for a specified period. 5 It is not disputed the appellant did not initially accept the fixed term employment offer. It is also conceded the appellant raised a complaint, at or about the same time on whether the continuation of his employment in this way, was contrary to the provisions of The Public Sector CSA Agreement 2022 (CSA Agreement 2022). 6 On 11 March 2024, the respondent by way of an email, formally withdrew the fixed term employment offer. Following this, the appellant on 13 March 2024, filed an unfair dismissal application in U 22 of 2024 (unfair dismissal claim). 7 In the unfair dismissal claim, the appellant alleged that he was dismissed when his casual employment arrangement was ended and that the circumstances in which this dismissal occurred were unfair. 8 After the appellant filed the unfair dismissal claim, he then, on or around 4 April 2024, tried to accept the fixed term employment offer by returning it signed to the respondent. 9 By this stage, the lines between the parties had well and truly been drawn. The respondent in its correspondence with the appellant had advised that it was not prepared to engage the appellant under the fixed term employment offer until the outcome of the unfair dismissal claim was determined. 10 In the appeal, the appellant by way of relief sought an order that would require the respondent to treat the appellant’s acceptance of the fixed term employment offer on 4 April 2025, as binding on the parties. The appellant also sought an order that he be ‘back-paid’ his salary to 29 February 2024. Directions hearing 11 On 29 April 2024, the respondent filed a Form 4 - Response to the appeal. Following this, the Board listed the appeal for a directions hearing that was held on 12 April 2024. 12 During the directions hearing, the parties broadly agreed that the outcome the appellant was seeking in both the appeal and the unfair dismissal claim, was a remedy in respect of the termination of his employment. 13 Noting this, the Board suggested, the appeal be adjourned pending the outcome of the unfair dismissal claim, which the parties accepted. It was on this basis the appeal was adjourned with the parties’ consent. The parties were asked to provide an update to the Board on the progress of the unfair dismissal claim. 106 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 527 Unfair dismissal claim 14 After the appeal was adjourned, the Board did not hear anything further from the parties. In the meantime, the appellant’s unfair dismissal claim was dismissed on 1 November 2024. 15 Commissioner Walkington who had been allocated the unfair dismissal claim, was asked to consider whether she had the jurisdiction to hear the matter. The respondent argued the Commission could not hear the unfair dismissal claim because the appellant was employed as a ‘government officer’. 16 On Friday 1 November 2024, Commissioner Walkington accepted this argument and dismissed the unfair dismissal claim: Mark Kostner & Peter Newton Frey v Small Business Development Corporation [2024] WAIRC 00944; (2024) 104 WAIG 2357 at [47] to [49]. 17 Notwithstanding the outcome in the unfair dismissal claim, the parties held settlement negotiations. Without the Board’s knowledge, the parties reached a settlement (settlement). 18 Despite the settlement, the appellant did not file a Form 1A – Multipurpose Form - Notice of Discontinuance to finalise the appeal. The respondent did not notify the Board the parties had reached a settlement either Inquiries on whether the appeal may be discontinued 19 On 14 August 2025, Commissioner Kucera’s associate, on the Board’s behalf, made inquiries with the parties, as to whether the appeal could be discontinued or should be programmed for further hearing. 20 The appellant responded in the following way: “Thank you for the opportunity to indicate whether PSAB 9/2024 should be discontinued or programmed for further hearing. I confirm that, following the settlement concluded earlier this year, I do not seek any further personal compensation. However, substantial evidence in my possession shows that the Small Business Development Corporation (SBDC) – and certain senior officers – committed multiple contraventions of the Industrial Relations Act 1979 and the Public Sector CSA Agreement 2022, then attempted to conceal those breaches by improperly withholding documents under the Freedom of Information Act 1992. When faced with proceedings in the industrial magistrates' court, the SBDC quickly settled the matter rather than have the matter and evidence scrutinised. Because these breaches affect the integrity of a public agency and have broader implications for other casual employees, I respectfully submit that the Commission should list the matter for a compliance/penalty hearing (or directions hearing) on the following bases: Issue Relevant power Failure to conduct mandatory conversion review (CSA Agreement cl 19.9–19.13) and associated underpayments WAIRC jurisdiction to make compliance orders and refer penalties to the Industrial Magistrates Court under s 83C– 83E IR Act Victimisation for exercising workplace rights General order / compliance powers – Industrial Relations Act s 44 Ongoing non-disclosure of records relevant to industrial entitlements Compliance order or referral for investigation If the Commission considers these compliance and penalty aspects beyond the present file, I ask that the matter be formally referred to the Public Sector Commission (minor misconduct) and, if appropriate, the Corruption and Crime Commission (serious misconduct), so that the documentary evidence can be examined in the public interest. For these reasons, I respectfully request that PSAB 9/2024 be programmed for a short directions hearing so the scope of any compliance or penalty proceedings can be settled.” 21 Counsel for the respondent responded in the following terms: To the extent that there are matters that are within the jurisdiction of the Board raised, PSAB of 9 of 2024 was settled by exchange of letters in April of this year. The issues Mr Kostner proposed to raise are fresh. They are not matters presently within his application and are in any event not within the jurisdiction of the Board. As there is no substantive matter left the application should be dismissed if Mr Kostner is not prepared to discontinue it. 22 In reply, the appellant in a further email stated as follows: i) Jurisdiction The SBDC submits that any issues I now raise are “fresh” and not within the jurisdiction of the Public Service Appeal Board. I respectfully disagree. The compliance breaches and associated concealment arise out of the same employment relationship and the same course of conduct that was before the Board. The Board retains power under sections 44 and 83C–83E of the Industrial Relations Act 1979 to: a) Inquire into alleged breaches of the Public Sector CSA Agreement 2022 (failure to conduct the conversion review and underpayment of entitlements); b) Make compliance orders or, if necessary, refer contraventions to the Industrial Magistrates court for 528 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 106 W.A.I.G. penalty. Whether the Board will ultimately exercise that power is, with respect, a matter for the Board – not for the respondent – and is best determined at a short directions hearing. ii) Settlement does not bar compliance proceedings The letters exchanged in April 2025 resolved my private monetary claims. They did not compromise statutory compliance or public-interest matters, nor did they prevent the Board (or any other body) from exercising its own jurisdiction over breaches of the industrial laws once evidence emerged. iii) Proposed course Accordingly, I repeat my earlier request that the Board list a brief directions hearing to: a) Determine whether the compliance and penalty aspects should proceed; or b) Alternatively, if the Board considers it lacks jurisdiction, make a formal referral to the Public Sector Commission and/or the Corruption and Crime Commission so the appropriate authority can examine the evidence. Dismissal at this stage would pre-empt a jurisdictional question that has not been argued. Details of the Settlement 23 On 20 August 2025, the Board emailed the parties and asked them to provide a copy of the document or documents setting out the terms of the settlement. 24 In response, the respondent’s counsel provided a copy of the exchange of correspondence between the parties, which the respondent says describes the terms of the settlement that were reached between the parties (settlement correspondence). 25 The Board has noted that the appellant was himself being represented by a lawyer when the settlement was being negotiated and at the time the settlement correspondence was exchanged between the parties. 26 There is no dispute that the terms of the settlement are reflected in the settlement correspondence. The settlement correspondence is in three parts. 27 The first was in the appellant’s settlement proposal that was contained in an email his counsel sent to the respondent on 27 March 2025 (appellant’s proposal). It was in the following terms: (a) Small Business Development Corporation pay our client the sum of $25,805.48 (gross). (b) Small Business Development Corporation provide our client with a statement of service setting out the date he commenced employment, duties and position during his employment, and the date that his employment ended. (c) The parties enter into a deed of settlement and release in agreed terms including confidentiality as to the terms of settlement. 28 The second is in the counter-offer the respondent provided on Thursday, 10 April 2025 (respondent’s counteroffer) which was in the following terms: Our client is prepared to pay your client the sum of $25,805.48, to be taxed as an eligible termination payment, and to provide him with a statement of service of the kind you described below [27 March email]. In exchange your client will agree to release our client from any claim asserting a right, or for relief or a remedy of any kind relating to any entitlement arising in the course of his employment (however arising) and the cessation of his employment. Our client is not minded negotiate other terms in a deed of settlement and does not consider a deed of settlement embodying any agreement is necessary in this case. 29 The third and final part is in the appellant’s acceptance of the respondent’s counteroffer in a further email which was contained in an email the appellant’s counsel sent on 22 April 2025 as follows: Our client has accepted your client’s offer as per your email dated 10 April 2025. Board’s 8 September email to the appellant 30 Upon receiving the exchange of correspondence between the parties that describes the settlement, on 8 September 2025, Commissioner Kucera’s associate, sent an email to the appellant (Board’s 19 September email) as follows: Dear Mr Kostner, I refer to PSAB 9 of 2024 (appeal) that was made to the Public Service Appeal Board (Board). You would recall the appeal was adjourned at directions hearing that was convened by the Board on 7 June 2024, pending the outcome of a related application to the