WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CORAM: FRANKLYN J (Presiding Judge) ANDERSON J SCOTT J HEARD: 3 JUNE 1997 DELIVERED: 20 AUGUST 1997 FILE NO/S: APPEAL IAC 3 of 1997 BETWEEN: STATE GOVERNMENT INSURANCE COMMISSION Appellant AND TERENCE HURLEY JOHNSON Respondent. JUDGMENT— FRANKLYN J (Presiding Judge)— This matter was heard by a court comprised of myself, Anderson and Scott JJ. Scott J is unable to be present and I would ask Anderson J to publish his reasons firstly. ANDERSON J— I would allow the appeal, set aside the decision of the full bench and refer the matter back to the full bench with a direc- tion that the question referred to be answered in the negative. I publish my reasons. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 77 W.A.I.G. 2170 FRANKLYN J— I agree with the reasons of Anderson J and also publish my reasons to the same effect. Scott J has authorised me to publish his reasons which are also in agreement with those of Anderson J. Catchwords— Industrial law—Unfair dismissal- Public Service Appeal Board—Jurisdiction—Power to award compensation for loss caused by dismissal—Industrial Relations Act 1979 (WA) ss80H, 80I, 80L Representation— Counsel— Appellant: Mr P R Momber Respondent: Mr P M Nisbet QC & Ms M C Davis Solicitors— Appellant: Jackson McDonald Respondent: Community & Public Sector Union Case(s) referred to in judgment(s)— Nil Case(s) also cited— Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579 Pepler RRIA v Adste (1988) 68 WAIG 11 Re Caterham v Godstone [1904] AC 171 Robe River Iron Associates v Association of Drafting Su- pervisory and Technical Employees of Western Australia (1988) 68 WAIG 11 FRANKLYN J— I am wholly in agreement with the reasons for decision in this appeal to be published by Anderson J. The jurisdiction of the Public Service Board is that and only that conferred on it by the Industrial Relations Act 1979 (“the Act”). Anderson J has set out the relevant provisions of s801(1) which confers on the Board the “jurisdiction to hear and deter- mine” the appeals identified in subparas (a) to (e) thereof and “to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e)” (underlining added). No other section confers jurisdiction. Section 80L to which (inter alia) we were referred in argument does not confer additional jurisdiction. It provides that “subject to this Division” (Division 2 of Part IIA of the Act) certain provisions of the Act “shall apply with such modifications as are prescribed and such other modifications as may be necessary, to the exercise by a Board of its jurisdic- tion under the Act” (underlining added). It is clear therefrom that that section confers no jurisdiction but rather makes pro- vision for the manner in which the jurisdiction conferred by s801 may be exercised, the powers which the Board may ex- ercise in the exercise of that jurisdiction and the formal requirements to apply to its decisions and determinations. None of the powers thereby conferred expressly or implicitly au- thorises the making of an award of compensation. I add that in my view the meaning of the word “adjust” used in s801, as found by the majority of the Full Bench, is totally inappropriate to a decision on an appeal against a decision, determination or recommendation that “the Government of- ficer be dismissed”. The meaning attributed by the majority is “to settle or bring to a satisfactory state”, that being a corrup- tion of the dictionary meaning found by the majority to be the most apposite, viz “to settle or bring to a satisfactory state so that parties are agreed in the result”. It is thus not the diction- ary definition and deprives it of the test of agreement necessary to “settle” or achieve a “satisfactory state”. It is difficult to conclude that a disputed award of compensation can be satis- factory to an employer or that refusal of compensation can be satisfactory to a dismissed employee. Nor does the definition logically permit the construction that the jurisdiction is con- ferred on the Board to determine what is a “satisfactory state”. A “satisfactory state” is an objective situation tested by its acceptance by those relevant to the issue who might otherwise be dissatisfied. It cannot reasonably be construed, on the defi- nition applied, as equivalent to “the satisfaction of the Board”. I too would allow the appeal, set aside the decision of the Full Bench and refer the matter back to it with a direction that the question referred to it be answered in the negative. ANDERSON J— The respondent was employed by the appellant as a man- ager and had been so employed for several years. On 18 August 1994 the appellant dismissed the respondent for misconduct. The respondent lodged an appeal to the Public Service Appeal Board claiming his dismissal was “harsh, unjust or unfair”. In his notice of appeal he sought “an order to be reinstated ... without loss of service or benefits”. When the appeal came on for hearing the respondent amended his notice of appeal to seek only “a declaration of unfair dismissal and compensation, commensurate with his length of service and salary, in the amount of $76,381”. This raised the question of the jurisdiction (or power) of the Board to award compensation to a dismissed employee who did not seek to be reinstated. The question was argued as a preliminary issue and the Board decided it did have jurisdic- tion to hear and determine the claim for compensation. The appellant then requested the Board to refer to the Full Bench of the Industrial Relations Commission that same question which it formulated in the following terms— “Does the Public Service Appeal Board have jurisdiction to award compensation in a claim of unlawful or unfair dismissal where there is no existing or prospective con- tinuing relationship of employer and employee?” This is a question of the proper construction of the legisla- tion which confers on the Board such appellate powers as it does have. Obviously the Board has no jurisdiction or powers except those which it obtains under the relevant statute. The Board is established and its functions and jurisdiction are set out in Part 11A of the Industrial Relations Act 1979. Section 80H provides, relevantly— “80H (1) For the purposes of an appeal under s80I there shall be established, within and as part of the Commis- sion [the Industrial Relations Commission], a Board to be known as the Public Service Appeal Board ...” As to jurisdiction, s80I provides— “80I. (1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this sec- tion, a Board has jurisdiction to hear and determine— ... (e) an appeal ... by any Government of- ficer ... from a decision, determination or recommendation of the employer of that Government officer that the Gov- ernment officer be dismissed, and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).” Neither s52 of the Public Sector Management Act 1994, which refers to chief executive officers, nor sub-s(3) of s80I, which refers to appeals from decisions to do with redeploy- ment and redundancy, has any application. None of the paras (a), (b), (c) or (d) has any relevance. Thus if the Board has the jurisdiction or power to hear and determine a claim for com- pensation by a dismissed government employee that jurisdiction or power must be found within s80I(1)(e) and spe- cifically within the power “to adjust all such matters as are referred to in” para (e). The word “adjust” has various applications in common par- lance and in any given case it obtains its precise meaning or sense from the context in which it is used. In this legislation, the context is provided by each of the paragraphs (a) to (e) of s80I(1) and in the case under consideration the context is pro- vided by para (e). The only “matter” which is referred to in that paragraph is “a decision, determination or recommenda- tion ... that the Government officer be dismissed”. It is that, and only that, which may be “adjusted” in the exercise of this particular aspect of the Board’s jurisdiction. The power to “ad- just” a decision or determination can only be a power to reform the decision in some way. In the case of a decision or determi- nation by an employer to dismiss an employee with one month’s pay in lieu of notice, the most obvious way to do that would be to reverse it. Whether there may be other ways of adjusting such a decision is perhaps an open question. It may be argu- able that the power to adjust a decision of dismissal includes a power to adjust the period of notice. The issue does not arise in this case because no such adjustment was sought by the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2171 77 W.A.I.G. respondent. He made no claim to reform the decision in that way, that is, by altering the period of notice. He made only a claim for monetary compensation on the ground that the deci- sion of dismissal itself was unfair. Hence, the Board was not asked to change the decision in any way. To give compensa- tion to a dismissed employee is perhaps to change and thus to adjust the rights and obligations flowing from the decision to dismiss, or to super-add a consequence to the decision to dis- miss, but it is not to adjust the decision to dismiss. Senior counsel for the respondent, Mr Nisbett QC, submit- ted that there can be discerned from the legislation as a whole an intention that the powers of the Board in respect to unfair dismissals are to be the same mutatis mutandis as the powers of the Commission. I cannot accept this submission. The pow- ers of the Commission are conferred by s23A and, by sub-s(1)(ba), expressly include a power to award compensa- tion for loss or injury caused by the dismissal, limited to six months’ remuneration. Section 80I is quite specific in its con- ferral of jurisdiction on the Board and s80I is quite specific in its statement as to which sections of the Act apply to the Board in the exercise of its jurisdiction. Section 23A is not one of those sections. There is nothing elsewhere in the Act or aris- ing out of its history which enables the conclusion to be reached as a matter of construction that Parliament intended that the Board should have the same power. As I have tried to explain, it is not a conclusion that can be reached simply by adopting an expansive approach to the notion of adjusting a decision or determination of dismissal. I would allow the appeal, set aside the decision of the Full Bench and refer the matter back to the Full Bench with a di- rection that the question referred to it be answered in the negative. SCOTT J— I have had the opportunity of reading the draft reasons to be published by Anderson J in this matter. I agree both with his Honour’s reasons and with the conclusion that he ultimately reaches. The Public Service Appeal Board is established under Part IIA of the Industrial Relations Act 1979 and its functions in relations to appeals are governed by s80I. That section rel- evantly provides, for the purposes of this appeal— “(1) Subject to section 52 of the Public Sector Manage- ment Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine— ... (e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any Government officer who occu- pies a position that carries a salary lower than the prescribed salary from a decision, deter- mination or recommendation of the employer of that Government officer that the Govern- ment officer be dismissed, and to adjust all such matters are referred to in para- graphs ... (e).” The argument in this case turns on the meaning of the word “adjust” in para 80I. The Full Bench of the Industrial Rela- tions Commission in its reasons for determination of 7 March 1997 (No PSAB 16 of 1994) held that the word “adjust” was a word of wide import. The learned President said at 22— “I would also add that the specific word ‘adjust’, connot- ing a power to do what is necessary to be done, also leads one to the conclusion that the legislature contemplated taking any necessary steps to resolve a matter. That that is so is corroborated by the meaning ‘adjust’ as defined in the MacQuarrie Dictionary 2nd Edition most appositely to mean— ‘to settle or bring to a satisfactory state, so that par- ties are agreed in the result’.” The Full Bench therefore held that the word “adjust” in s80I was a word of sufficiently wide import to enable the Public Service Appeal Board to assess compensation for wrongful dismissal. For the reasons advanced by Anderson J, in my opinion, the word “adjust” in s80I is not a word of wide import in the con- text of the section. The meaning to be given to the word “adjust” must be construed in the light of the totality of s80I and par- ticularly in the context of the jurisdiction granted by that section under the various subheadings (a) to (e) which grant to the Board its powers and jurisdiction. In my opinion, the word “adjust” must be read ejusdem generis so that its meaning must be referable to the jurisdictional powers contained within each of those subsections where relevant. In my view it cannot be said that the addition of that word at the end of the section, of itself, creates a head of jurisdiction otherwise not contained within the subparagraphs. As Anderson J in his judgment explains, there are circum- stances in which appropriate adjustments can be made within the context of s80I as ancillary to the exercise of the powers under that section. In my view, it is quite inappropriate to con- strue the word “adjust” in such a manner as to grant to the Board jurisdiction to award compensation in the circumstances of this case as contended for by counsel for the respondent. I would also allow the appeal and set aside the decision of the Full Bench.