WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2014 WAIRC 00383 CORAM : PUBLIC SERVICE APPEAL BOARD COMMISSIONER J L HARRISON- CHAIRPERSON MR B DODDS - BOARD MEMBER MR S WARD - BOARD MEMBER HEARD : BY WRITTEN SUBMISSIONS: THURSDAY, 20 FEBRUARY 2014, TUESDAY, 11 MARCH 2014 DELIVERED : WEDNESDAY, 7 MAY 2014 FILE NO. : PSAB 26 OF 2013 BETWEEN : SILVANA CIZERLE Appellant AND DEPARTMENT OF HOUSING Respondent Catchwords : Industrial Law (WA) – Public Service Appeal Board – Appeal against decision issued by respondent following a formal grievance investigation – Preliminary issue – Whether Board has jurisdiction – Application not seeking to appeal a decision referred to in s 80I(1) of the Act - Appeal dismissed Legislation : Industrial Relations Act 1979 s 80C(1), s 80F and s 80I Public Sector Management Act 1994 s 29, s 78 and s 97(1) Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 Result : Dismissed Representation: Appellant : In person Respondent : Ms A Wood and Mr S Thackrah (of counsel) Reasons for Decision 1 These are the unanimous reasons for decision of the Public Service Appeal Board (the Board). 2 Silvana Cizerle (the appellant) lodged an appeal to the Board on 22 November 2013 in relation to a decision made by the Department of Housing (the respondent) arising out of an investigation into a grievance she had lodged with the respondent. The appellant claims the investigation into her grievance was flawed and the investigation’s report contained inaccuracies. The appellant also complains that she has been denied access to her substantive position and her requests for special consideration with respect to undertaking duties have been ignored by the respondent. 3 The Board’s jurisdiction is set out in s 80I the Industrial Relations Act 1979 (the Act) as follows: (1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine — (a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers; (b) an appeal by a government officer, who is the holder of an office included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975, under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section; (c) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary not lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed; (d) an appeal by a government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section; 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 605 (e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed, and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e). (2) In subsection (1) prescribed salary means the lowest salary for the time being payable in respect of a position included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975. (3) A Board does not have jurisdiction to hear and determine an appeal by a government officer from a decision made under regulations referred to in section 94 of the Public Sector Management Act 1994. 4 Section 80C(1) of the Act defines an employer and government officer as follows: employer — (a) in relation to a government officer who is a public service officer, means the employing authority of that public service officer; and (b) in relation to any other government officer, means the public authority by whom or by which that government officer is employed; government officer means — (a) every public service officer; and (aa) each member of the Governor’s Establishment within the meaning of the Governor’s Establishment Act 1992; and (ab) each member of a department of the staff of Parliament referred to in, and each electorate officer within the meaning of, the Parliamentary and Electorate Staff (Employment) Act 1992; and (b) every other person employed on the salaried staff of a public authority; and (c) any person not referred to in paragraph (a) or (b) who would have been a government officer within the meaning of section 96 of this Act as enacted before the coming into operation of section 58 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 1, but does not include — (d) any teacher; or (e) any railway officer as defined in section 80M; or (f) any member of the academic staff of a post-secondary education institution; 5 For the Board to have jurisdiction to deal with this application the appellant must be a government officer employed by an employer as defined and the appeal must be lodged under the provisions of s 80I(1)(a), (b), (c), (d) or (e) of the Act. Submissions Respondent 6 The respondent argues that the Board does not have the power to deal with this appeal under s 80I(1) of the Act. 7 For the appellant to be able to lodge an appeal under s 80I(1)(a) the investigation must involve the interpretation of the Public Sector Management Act 1994 (the PSM Act) or regulations made pursuant to it. The appellant does not appeal against an interpretation of s 29 of the PSM Act or any PSM Act regulations and s 29 of the PSM Act only provided the basis for the respondent’s investigation into the appellant’s complaint and the decision made by the respondent in relation to her grievance. 8 Section 29 of the PSM Act states as follows: Subject to this Act and to any other written law relating to his or her department or organisation, the functions of a chief executive officer or chief employee are to manage that department or organisation, and in particular ... (l) subject to Part 7 and the Industrial Relations Act 1979, to resolve or redress the grievances of employees in that department or organisation; Part 7 of the PSM Act deals with procedures for seeking relief in respect of a breach of a public sector standard. Section 97(1) provides that: The functions of the [Public Sector] Commissioner under this Part are — (a) to make recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards. The Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (the PSM Regulations) were made pursuant to Part 7 of the PSM Act. One of these regulations allows the Public Sector Commissioner to issue guidelines as to how breaches of public sector standards are to be managed by a Chief Executive Officer. The Grievance Resolution Standard is one such guideline. The respondent applied the Grievance Resolution Standard in making its decision about the appellant’s complaint and the decision did not rely on the interpretation of either the PSM Act or the PSM Regulations. Furthermore, public servants aggrieved by alleged breaches of public sector standards must lodge an appeal with the Public Sector Commissioner, which the appellant did and was unsuccessful. 9 The respondent submits that the provisions of s 80I(1)(c) and (e) of the Act are not relevant to this appeal as the appellant has not been dismissed. The appellant is a level 6 employee and she acted in a level 7 role from 3 April 2012 to 10 February 2013 and was paid at the level 7 rate until the expiry of this acting arrangement on 10 February 2013. The appellant’s return to a level 6 appointment on 10 February 2013 was a result of her acting arrangement coming to an end by the effluxion of time. 606 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Decisions about the duration of temporary acting arrangements are made at the respondent’s discretion and the appellant continues to be employed and paid as a level 6, which is her substantive classification level and which is specified in her letter of appointment. This appeal does not satisfy the criteria set out in s 80I(1)(d) of the Act as the respondent has not made any decision about the appellant under the disciplinary or substandard performance processes contained in Part 5 of the PSM Act. The provisions of s 80I(1)(b) of the Act also do not apply to the appellant’s appeal. Appellant 10 The appellant argues that the Board can hear this application as she is appealing a decision made by the respondent which did not comply with the provisions of s 29 of the PSM Act. The appellant also claims that lodging an appeal under the Act is an agreed pathway of appeal if an employee of the respondent is unhappy with the outcome of a grievance. The appellant made submissions going to the merit about how her grievance was handled by the respondent however these issues are not relevant to the issue of whether the Board has jurisdiction to deal with this application. Consideration 11 There is no dispute and the Board finds that the appellant is a government officer within the meaning of s 80C(1) of the Act and that the respondent is an employer as defined in this section. 12 This application relates to the appellant seeking to appeal the outcome of an investigation conducted by the respondent into a grievance she lodged with the respondent. 13 The Board has the power to hear and determine an appeal lodged pursuant to s 80I(1) of the Act. The Board finds that this appeal cannot be dealt with under s 80I(1)(a) of the Act as this appeal does not relate to an interpretation of a provision of the PSM Act or regulations made under this act. The Board is also satisfied that s 80I(1)(b) and (d) do not apply to this appeal as this application does not relate to any disciplinary action or substandard performance issues arising out of s 78 of the PSM Act. The Board finds that the provisions contained in s 80I(1)(c) and (e) of the Act are not relevant to this appeal as the appellant has not been dismissed and remains employed by the respondent. 14 The appellant indicated that if the Board does not have jurisdiction under s 80I of the Act to deal with her appeal, she will seek leave to lodge an appeal to the Public Service Arbitrator under s 80F of the Act. It is a matter for the appellant if she wishes to pursue another appeal using a different section of the Act. 15 This application is not within the Board’s jurisdiction and will be dismissed. 2014 WAIRC 00384 NOTICE OF APPEAL AGAINST DECISION GIVEN ON 1 NOVEMBER 2013