WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH CITATION : 2010 WAIRC 01068 CORAM : THE HONOURABLE J H SMITH, ACTING PRESIDENT ACTING SENIOR COMMISSIONER P E SCOTT COMMISSIONER S M MAYMAN HEARD : THURSDAY, 21 OCTOBER 2010 DELIVERED : WEDNESDAY, 27 OCTOBER 2010 FILE NO. : FBA 16 OF 2010 BETWEEN : PATRICK FELS Appellant AND DEPARTMENT OF AGRICULTURE AND FOOD Respondent ON APPEAL FROM: Jurisdiction : Public Service Appeal Board Coram : Commissioner S J Kenner – Chairman Mr C Floate – Board Member Mr J Serich – Board Member Citation : [2010] WAIRC 00745; (2010) 90 WAIG 1485 File No. : PSAB 29 of 2009 CatchWords : Industrial law (WA) - Appeal against decision of the Public Service Appeal Board - No jurisdiction of the Full Bench to hear appeals from Public Service Appeal Board under the Industrial Relations Act 1979 (WA) s 49, s 49(1), s 49(2), Division 2 of Part IIA, s 80H, s 80I; Public Sector Management Act 1994 (WA) s 86(3)(b), s 86(3)(b)(vi) Result : Appeal dismissed Representation: Appellant : In person Respondent : Mrs L Paxman (of counsel) Reasons for Decision THE FULL BENCH: 1 This is an appeal against the whole of the decision to dismiss an appeal by the Public Service Appeal Board given on 5 August 2010 in matter number PSAB 29 of 2009. The appeal to the Public Service Appeal Board was brought under s 86(3)(b)(vi) of the Public Sector Management Act 1994 (the PSMA) against a decision by the respondent to terminate the employment of the appellant. 2 Pursuant to s 78(1) of the PSMA, an employee who is aggrieved by a decision made in the exercise of a power under s 86(3)(b) of the PSMA may appeal against that decision to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979 (the IR Act) and that Public Service Appeal Board has jurisdiction to hear and determine the appeal under and subject to Division 2 of Part IIA. 3 The appeal against the decision to dismiss the appellant was heard by the Public Service Appeal Board under s 80I of the IR Act. The Public Service Appeal Board is constituted under the IR Act under s 80H of the IR Act whereby the Public Service Appeal Board is established within and is part of the Commission. The Board consists of three members. 4 The appeal from the decision of the Public Service Appeal Board to the Full Bench was brought on for hearing by the Full Bench for the determination of a preliminary issue whether the Full Bench constituted under s 49 of the IR Act has jurisdiction to hear an appeal from a decision of the Public Service Appeal Board. Pursuant to s 49(1) and (2) of the IR Act, an appeal lies to the Full Bench from a decision of the Commission constituted by a Commissioner. The issue was raised by the Full Bench in this matter as like other courts and tribunals, the Full Bench has a duty to decide whether or not it has jurisdiction: R v Blakely; ex parte The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54, 69; 1704 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. Khatri v Price (1999) 166 ALR 380 [15]; R v Judges of the Federal Court; ex parte The Western Australian National Football League (Inc) (1979) 143 CLR 190, 202 - 204, 225 - 226, 228 and 230; Springdale Comfort Pty Ltd v BTAUWA (1986) 67 WAIG 325, 330 and Crown Scientific Pty Ltd v Clarke [2007] WAIRC 00334 [96] – [97]; (2007) 87 WAIG 598, 609 - 610. 5 Whether the Full Bench has jurisdiction to hear an appeal from a decision of a Public Service Appeal Board has been considered comprehensively in two decisions of the Full Bench. The issue was first raised in State Government Insurance Commission v Johnson (1996) 76 WAIG 4142. In that matter the Full Bench held that there was no right of appeal to the Full Bench against the decision of the Public Service Appeal Board. The issue arose again in 2009 in Hill v Commissioner, Corrective Services, Department of Corrective Services (2009) 89 WAIG 417. In Hill the Full Bench found that the decision in Johnson was correctly decided. 6 When this matter came on for hearing before this Full Bench on 21 October 2010 the appellant was invited to make a submission to the Full Bench as to why the decisions of the Full Bench in Johnson and Hill should not be applied by this Full Bench. 7 The appellant who was unrepresented, argued Hill and Johnson should not be followed. He made a very simple submission that he was of the opinion that the Full Bench has the ability to critically analyse whether the Public Service Appeal Board erred in making the decision to dismiss his appeal against his dismissal. The appellant stated that he was of the view that the decision of the Public Service Appeal Board was unequivocally wrong and that he was fully justified in filing an appeal against the decision of the Public Service Appeal Board. He also contended that it was fundamentally unreasonable to claim that the Public Service Appeal Board is a different entity to the Commission constituted by a Commissioner within the meaning of s 49(1) of the IR Act. 8 Whether an appeal from a decision of the Public Service Appeal Board to the Full Bench lies, is not a matter which involves any consideration of the merits of an appeal or any review of whether the decision made by the Public Service Appeal Board was wrong. The issue turns solely on a matter of statutory construction as the Public Service Appeal Board and Full Bench are creatures of statute. 9 The question of whether the decision of the Public Service Appeal Board may be appealed to the Full Bench was extensively considered in Johnson and in Hill. In both matters all members of each Full Bench were unanimously of the view that the effect of s 49 of the IR Act, is that no appeal lies to the Full Bench from a decision of the Public Service Appeal Board because the Public Service Appeal Board is not the Commission constituted by a Commissioner within the meaning of s 49(1) and s 49(2) of the IR Act. The Full Court of the Supreme Court of Western Australia has also observed that no appeal lies from the Public Service Appeal Board to the Full Bench under s 49(2) of the IR Act: Ex parte Minister for Corrective Services (1993) 9 WAR 534, 540 and Ex parte Titelius v Public Service Appeal Board [1999] WASCA 19 [4]. 10 For these reasons the Full Bench made an order on 21 October 2010 that the appeal should be dismissed. 2010 WAIRC 01061