REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2017 WAIRC 00181 CORAM :Senior Commissioner S J Kenner HEARD : Monday, 5 December 2016, Tuesday, 14 February 2017, WRITTEN SUBMISSIONS MONDAY, 24 OCTOBER 2016, WEDNESDAY, 9 NOVEMBER 2016, MONDAY, 9 JANUARY 2017, WEDNESDAY, 25 JANUARY 2017, FRIDAY, 10 FEBRUARY 2017 DELIVERED : TUESday, 28 March 2017 FILE NO. : APPL 25 OF 2016 BETWEEN : Raymond Stanley Willis Applicant AND Department of Education Services Respondent Catchwords : Industrial Law (WA) - Substituted voluntary severance for registrable employees - Preliminary issue - Whether or not declining a request for substituted voluntary severance is a relevant "section 94 decision" for the purposes of s 95(1) of the Public Sector Management Act 1994 (WA) capable of being referred to the Commission under s 95(2) - Principles applied - The Director General's consideration of the matter and his refusal to act constituted a decision to not approve the substituted voluntary severance - The non-approval of the proposed substituted voluntary severance was a decision for the purposes of s 95(1) of the Act Legislation : Industrial Relations Act 1979 (WA) Interpretation Act 1984 (WA) Public Sector Management Act 1994 (WA) Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) Result : Jurisdiction found Representation: Counsel: Applicant : Mr J Woodford of counsel Respondent : Mr R Bathurst of counsel Solicitors: Applicant : Barone Criminal Lawyers Respondent : State Solicitor’s Office Case(s) referred to in reasons Bradley Owen Collard v Chief Executive Officer Department for Child Protection and Family Support [2016] WAIRC 00733]; (2016) 96 WAIG 1450 Griffith University v Tang (2005) 221 CLR 99 Bradley Owen Collard v Chief Executive Officer Department for Child Protection and Family Support [2016 WAIRC 00733]; (2016) 96 WAIG 1450 McGregor v Western Australian Department of Education (2016) 96 WAIG 534 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35 Case(s) also cited: Chase Oyster Bar Pty Ltd v Hamo Industries (2010) 78 NSWLR 393 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Health Services Union of Western Australia (Union of Workers) v Director General of Health (2008) 88 WAIG 543 Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority (2008) 169 FCR 483 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 === REASONS FOR DECISION === ¶1 The applicant Mr Willis is the Assistant Director, Non-Government Schools Funding for the Department of Education Services. He has held that position since November 2013. Prior to holding this, Mr Willis was the Chief Finance Officer of the Department, which position he held from May 2008. ¶2 In about April 2016 Mr Willis became aware that an employee employed in another government department may be interested in transferring into his position at the Department, rather than taking a severance. Accordingly, Mr Willis explored the possibility of a substituted voluntary severance under reg 12 of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA). This would mean that Mr Willis, who was keen to receive a voluntary severance from the Department, and had been for some time, could do so. Mr Willis confirmed with the other employee his interest in taking over his role at the Department. ¶3 In relation to this possibility, Mr Willis’ evidence was that in earlier discussions with Mr Lloyd, the Department’s Executive Director Corporate Governance and Funding, Mr Lloyd was supportive of the possibility of a substituted voluntary severance. This was denied by Mr Lloyd in his evidence. Mr Willis further said that the other person’s Department was awaiting a suitability assessment in respect of the officer’s suitability for the role. There was no dispute that this person was a “registrable employee” for the purposes of the Regulations. ¶4 Events moved on. Mr Willis met with Mr Lloyd on 14 April 2016 and discussed with him the reasons why he wished to pursue a substituted voluntary severance. A few days later, on 19 April 2016, Mr Willis said he was advised in person by Mr Lloyd that the Department had declined his request for a substituted voluntary severance. It was Mr Willis’ evidence that Mr Lloyd informed him he had spoken with the Public Sector Commission and their advice was that whether or not to proceed with a substituted voluntary severance was at the discretion of the Department. The outcome of the Department’s consideration was set out in an email from Mr Lloyd to Mr Willis. ¶5 Mr Willis is aggrieved by this process. He has complained that the Department failed to fairly and properly apply the terms of the relevant Regulations and has referred this matter to the Commission under s 95(2) of the Public Sector Management Act 1994 (WA). The Department denied it failed to act fairly and properly, but in any event, maintained that the claim made by Mr Willis does not fall within the Commission’s jurisdiction, because there was not, at any material time, a relevant “section 94 decision” for the purposes of s 95(1) of the PSMA, that was capable of being referred to the Commission under s 95(2). ¶6 The question of whether there has or has not been a relevant “section 94 decision” is now to be determined as a preliminary issue. ¶7 In terms of the facts relevant to the determination of the preliminary issue, in addition to the above outline, Mr Lloyd testified that as Mr Willis’ line manager, he met regularly with him as part of his responsibilities. In October 2014, Mr Lloyd said he held a performance management meeting with Mr Willis at which various matters were discussed. At that meeting, Mr Willis expressed a desire to take what he described as an “enhanced voluntary severance”. Mr Lloyd said he understood this to mean a severance proposal which contained more generous terms to that which would usually apply in the government sector. ¶8 It was also Mr Lloyd’s evidence that Mr Willis had previously raised this possibility with him, over the two years prior to their October 2014 meeting. Mr Lloyd further said he informed Mr Willis that he was not aware of any opportunities for such an option at that time. Mr Lloyd did say however, if in the future the possibility of a voluntary severance did become available, which did not require the giving up of Mr Willis’ salary from the Department’s budget, then he would support this being considered by the Department. Mr Lloyd said he gave no undertaking as alleged by Mr Willis during the October 2014 meeting. Since this time, it was Mr Lloyd’s evidence that Mr Willis regularly mentioned to him his continued interested in taking a voluntary severance from the Department. ¶9 Mr Lloyd confirmed that in April 2016 during the course of a regular meeting with Mr Willis, Mr Willis again raised the possibility of a voluntary severance. He referred to an employee who was presently employed in the Department of Finance transferring into his position and Mr Willis taking a substituted voluntary severance. Mr Lloyd said that whilst he made no commitment to Mr Willis at that meeting, he was open to pursuing the matter further. ¶10 In this respect, the following day, Mr Lloyd met with the Director General of the Department. Mr Lloyd’s evidence was that one matter raised in this discussion was the option of recruiting a lower level employee into Mr Willis’ position, when he ultimately left the Department. Proceeding with a voluntary substituted severance, with an employee at the same level as Mr Willis, would preclude this option for the future. At the end of this conversation, Mr Lloyd understood the Director General would consider Mr Willis’ proposal further over the ensuing weekend and they would meet again the following Monday to discuss it further. This took place. Mr Lloyd said that when he met again with the Director General on the following Monday, the Director General told him that he did not wish to proceed with Mr Willis’ “proposal” for a substituted voluntary severance. The reason being that to do so, would preclude the option of having Mr Willis’ job performed differently and at a lower classification level, at a later time. Mr Lloyd met with Mr Willis later on the Monday and informed him of the outcome of his meeting with the Director General. ¶11 There was also an affidavit filed by the registrable employee concerned, Mr Adams. Mr Adams is a registrable level 8 employee at the Department of Finance. Prior to being registered, Mr Adams held the position of Assistant Director at the Office of Energy/Public Utilities Office from March 2010 to May 2014. Mr Adams confirmed Mr Willis’ evidence that he was approached about the possibility of pursuing a substituted voluntary severance with Mr Willis. He outlined the steps he took during March and April 2016 in this respect. Mr Adams confirmed that he made a decision to pursue the transfer to the Department through the substituted voluntary severance process, on 11 April 2016. Mr Adams said he understood that the Department of Finance would pay for any relevant training at the Department of Education Services, until Mr Willis’ resignation would take effect in June 2016. ¶12 The above is a sufficient narration of the essential background facts. I now turn to consider the contentions put by the parties in relation to the preliminary issue. But before doing so there is one further matter to comment on. [Amendment to claim] ¶13 By order of the Commission of 17 February 2017 Mr Willis’ claim was amended by consent. The amendment had the effect of substituting paragraphs 21 and 22 of the original referral with amended paragraphs 21 and 22 as contained in a letter from Mr Willis’ solicitor dated 9 January 2017. Furthermore, Mr Willis recast his claim in relation to the relevant “decision” as expressed at par 5 of his draft submissions in reply on jurisdiction filed on 10 February 2017. So recast, it provides as follows: 5. The Applicant claims that the decision to enter into discussions on substituted redundancy and then withdraw was in all the circumstances not a fair and proper application of the regulations to or in relation to him. [Section 94 decision – contentions of the parties] ¶14 Both parties filed written outlines of submissions in relation to the preliminary issues. Additionally, an opportunity was given for further oral submissions at a hearing listed by the Commission. ¶15 For the Department, it was contended that the existence of a “section 94 decision” is a jurisdictional fact. In the absence of such a decision, then no matter may be referred to the Commission under s 95(2) of the PSMA. The Department submitted that the claim by Mr Willis, however expressed or characterised, was not a “section 94 decision”, that being one made or purported to be made under the Regulations. This was so, as the submissions went, because, in reliance on Griffith University v Tang (2005) 221 CLR 99 as adopted and applied by the Commission in McGregor v Western Australian Department of Education (2016) 96 WAIG 534, two essential criteria were not met. Firstly, the relevant decision must be expressly or impliedly required or authorised by the Regulations. Secondly, the relevant decision must of itself, confer, alter or otherwise affect legal rights or obligations and in that sense, derive from the Regulations. ¶16 As to the first criterion, it was submitted by the Department that for it to decline to give Mr Willis a substituted voluntary severance under reg 12 of the Regulations, is not to make a relevant “decision”, which is expressly or impliedly required or authorised by the Regulations: McGregor at pars 26-27; 29. Secondly, the other criterion is not met in this case. This is because on the Department’s view, not only was there no “decision”, given there was merely a refusal to act, but also, the Department, in declining to act on Mr Willis’ request, did not confer, alter or otherwise affect any legal right or obligation that he had. ¶17 Furthermore, contrary to the submissions made by Mr Willis, there is nothing in ss 23(2) or 26 of the Industrial Relations Act 1979 (WA), which alters the conclusion to be reached that the claim by Mr Willis is unable to be referred to the Commission under s 95(2) of the PSMA. ¶18 Detailed and lengthy written submissions were made on Mr Willis’ behalf. I only summarise the key contentions made for the purposes of the disposition of this preliminary issue. ¶19 The broad submission was that the terms of s 95(1) of the PSMA, as the relevant definition, does not deal with the Commission’s jurisdiction nor does it provide the basis for a want of jurisdiction argument. Rather, Mr Willis contended that what is available is the possibility of there being an error of law within jurisdiction, that being a determination by the Commission as to whether a relevant decision is made under the Regulations as part of determining the merits: Lipohar v The Queen (1999) 200 CLR 485 at 517 per Gaudron, Gummow and Hayne JJ. In the present case, on the facts as set out in Mr Lloyd’s affidavit, it was clear that both Mr Lloyd and the Director General were discussing Mr Willis’ “request” for a substituted voluntary severance under reg 12. This was not just a “proposal”. ¶20 The Commission’s jurisdiction according to Mr Willis, is found in s 95(5) of the PSMA. Thus the objection raised by the respondent is not jurisdictional at all, so the submission went. What s 95(1) does is specify and ensure that it is the regulations referred to in s 94 that are to be considered, when inquiring into the relevant “decision”. The contention was put by Mr Willis that the Department failed to act within the relevant authority provided by the Regulations. In the alternative, if there was authority to act, then the exercise of it, by the Department withdrawing from determining Mr Willis’ request, was not a fair and proper application of the Regulations. ¶21 Furthermore, Mr Willis maintained that when viewing the statutory scheme established under the PSMA as a whole and also, when read with the history of reg 12 of the Regulations, Mr Willis took steps to explore a suitable match for his position, and in accordance with the appropriate process, made a proper request to his employer for the approval of his severance and resignation. The action of the Director General of the Department, in concluding that it wished to retain a discretion as to the manner in which Mr Willis’ position may be ultimately dealt with, was a relevant “decision” for the purposes of reg 12. In addition, the submission of Mr Willis was that the Department’s reliance on the notion of a “decision made under an enactment”, as referred to by the High Court in Tang and as adopted and applied by the Commission in McGregor, was misplaced. ¶22 Mr Willis also contended that the circumstances of Tang, dealing with judicial review of administrative decisions, under a specific and distinguishable statutory scheme, does not apply in the present circumstances. The present relevant decision making is in relation to employment matters and is not a decision of an administrative character. The submission was made that the test espoused in Tang was developed for a very different reason to the present case under consideration. Mr Willis said that as a general principle, the purpose of judicial review is to place a check and balance on the exercise of State power. In this case, the Director General of the Department was not acting as the State in relation to the circumstances applicable to Mr Willis. He was not exercising a power which was available to him to be exercised over the populace generally. Rather, the Director General was exercising specific powers governed by statute and regulation, as the employer. ¶23 In essence, Mr Willis’ submission was that the relevant decision by the employer was not one of an administrative character, but rather, was simply one as to whether the employer properly and fairly abided by obligations placed on it in relation to one of its employees. ¶24 At the outset of the hearing of this matter, the Department informed the Commission that it had reconsidered its submissions in relation to jurisdiction and on reflection, submitted that the approach to the application of the relevant regulations is that as set out by the Commission as presently constituted in Bradley Owen Collard v Chief Executive Officer Department for Child Protection and Family Support [2016] WAIRC 00733; (2016) 96 WAIG 1450 and it no longer adopted the approach in Tang. In Collard, when dealing with a complaint by Mr Collard that his employer had failed to comply with the terms of various regulations in relation to his redeployment, I said in relation to the statutory scheme in s 95 the of the PSMA as follows at pars 9-16: 9 Before considering the evidence, I make some observations about these provisions and their interpretation. 10 It is clear that before a matter may be referred to the Commission, there must be a “decision made” or “purported to be made” “under regulations referred to in section 94”. A decision made “under” the Regulations is one that is made by virtue of, pursuant to or in accordance with and conformable to them: Perth Finishing College v Watts (1989) 69 WAIG 2307 at 2312 citing Garbin v Wild (1965) WAR 72 and R v Clyne ex parte Harrop (1941) VR 200 per O’Bryan J at 201. 11 As to a decision “purported to be made”, there is no reason in my view to give this phrase other than its ordinary and natural meaning. This would encompass a decision in the sense of “1. That which is conveyed or expressed … 2. That which is intended to be done or effected by something…” (Shorter Oxford English Dictionary). Of course, the necessary nexus must exist between the purported decision and it being taken “under” the Regulations as referred to above. There is no issue taken in this case that the Department made a relevant decision for the purposes of s 95(1) of the PSM Act. 12 By s 95(2) of the PSM Act, once a relevant decision has been taken, either an employer with a sufficient interest in the matter, or the employee aggrieved by the decision, may refer the matter to the Commission. On such a referral, the matter before the Commission is taken to be an industrial matter for the purposes of the IR Act. Such a referral is required to be made within the period of 21 days after the relevant decision, as prescribed by s 95(3) of the PSM Act and reg 44 of the Regulations. Presumably, the power to extend time in s 27(1)(n) of the IR Act would be able to be exercised in an appropriate case. The present application was referred to the Commission within the 21 day time limit. 13 On a matter having been validly referred to the Commission under s 95(2), by s 95(5), the exercise of the Commission’s jurisdiction is confined and is not at large. This is despite the terms of ss 95(2) and (4) of the PSM Act, which, when read together, would appear to suggest that all of the powers of the Commission under the IR Act are able to be exercised. 14 The terms of s 95(5) limit the Commission’s jurisdiction to a determination as to “whether or not” the regulations have been “fairly and properly” applied. In my view, the phrase “fairly and properly applied” should, in the absence of any indication to the contrary in the terms of s 95 or the Regulations, be construed in accordance with their ordinary and natural meaning. “Fairly”, relevantly means “2. Equitably, candidly, impartially … 3. Becomingly; proportionately … legitimately …”. Further, “properly” relevantly means “1. Excellently; genuinely, thoroughly … 2. Suitably, appropriately …”. (Shorter Oxford English Dictionary). Of course, given that such a matter referred to the Commission is to be taken as an industrial matter and the IR Act applies to it, the jurisdiction of the Commission, even so confined, is to be discharged in accordance with equity, good conscience and the substantial merits of the case: s 26(1) IR Act. 15 The Commission, in determining whether reg 10 has been fairly applied, in my view, is required to consider objectively, the circumstances of the transfer, in light of all the evidence. When read with reg 11(2), the employer must be “satisfied” that the employee “cannot” be transferred within his or her department or organisation, before a voluntary severance can be considered. This necessarily implies that the employer has taken all reasonable steps to locate a suitable alternative position for the employee and none is available. The use of the word “cannot” in reg 11(2), strongly suggests that if an employee can be transferred, as opposed to being offered a voluntary severance, they should be. 16 This process should involve consideration of the circumstances of the employer, as well as those of the employee. These circumstances will ordinarily involve the employee’s skills, experience qualifications and attributes. Furthermore, the employer’s interests will obviously involve a proper assessment of any positions which are available and into which the registrable employee can be transferred, in light of the attributes of the employee. There is nothing in the Regulations that requires the employer to create a position for a registrable employee where none otherwise exists. ¶25 Furthermore, the Department submitted that whilst the Commission’s decision in McGregor, referred to the approach taken in Tang, the actual outcome of that case and the Commission’s reasoning was consistent with and conformable to the approach adopted in Collard. In response, Mr Willis agreed with the revision of the Department’s position in relation to the approach to interpretation and that the approach taken in Collard should be followed. [Section 94 decision - consideration] ¶26 It is trite to observe that the interpretation of delegated legislation such as the Regulations, attracts the same principles of interpretation applicable to statutes. (See also s 5 Interpretation Act 1984 (WA)). In that context, the well settled contemporary approach to interpretation is to construe a statutory provision in context having regard to the purpose and object of the relevant provisions in question: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where McHugh, Gummow, Kirby and Hayne JJ said at 384: … The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. ¶27 Also, consistent with these general principles, by s 18 of the Interpretation Act a purposive approach to the construction of the Regulations is to be adopted. ¶28 It is convenient to set out the statutory provisions now. Section 95 of the PSMA provides as follows: 95. Jurisdiction of Industrial Commission in relation to section 94 decision (1) In this section — section 94 decision means a decision made or purported to be made under regulations referred to in section 94 (other than a decision which is a lawful order by virtue of section 94(4)). (2) A section 94 decision may be referred to the Industrial Commission — (a) under the Industrial Relations Act 1979 section 29(1)(a); or (b) by an employee aggrieved by the decision, as if it were an industrial matter that could be so referred under that Act. (3) A referral under subsection (2) must be made within the period after the making of the decision that is prescribed under section 108. (4) The Industrial Relations Act 1979 applies to and in relation to a section 94 decision referred under subsection (2) as if the decision were an industrial matter referred to the Industrial Commission in accordance with that Act. (5) In exercising its jurisdiction in relation to a decision referred under subsection (2), the Industrial Commission must confine itself to determining whether or not regulations referred to in section 94 have been fairly and properly applied to or in relation to the employee concerned. (6) The Industrial Commission does not have jurisdiction in respect of a section 94 decision if the employment of the employee concerned is terminated. ¶29 Regulation 12 of the Regulations is in the following terms: 12. Substituted voluntary severance for registrable employees (1) If — (a) a registrable employee is willing to be transferred to the office, post or position of another employee in the same or another department or organisation who wishes to resign his or her office, post or position (the other employee); and (b) the making of a severance payment under this Part to the other employee has been approved by the employing authority of that employee, the other employee may, with the prior approval of the employing authority of his or her department or organisation, resign his or her office, post or position. (2) On the resignation by the other employee of his or her office, post or position under subregulation (1), the employing authority of the department or organisation of the registrable employee must — (a) transfer the registrable employee to that office, post or position; and (b) make payments to the other employee under regulations 13, 14 and 15. ¶30 It is clear that the terms of Part 6 – Redeployment and redundancy of employees of the PSMA and the Regulations are to be considered as part of a scheme in relation to redeployment and redundancy in the public sector. So much is clear from a cursory reading of reg 3 of the Regulations, as to the terms used, consistent with the same subject matter and meanings in Part 6 of the PSMA. ¶31 The Regulations, as part of the statutory scheme for redeployment or redundancy of employees in the public sector, make provision for various arrangements to apply to affected employees. Part 2 provides for processes under which a person may become a “registrable employee”. Part 3, which is the relevant part in this case, deals with voluntary severance. This part provides for the offer of voluntary severance, including substituted voluntary severance, to an employee and the amount of severance payments which follow. Part 4 then deals with the “registration” of an employee, the provision of special leave, retraining and general management of such employees in accordance with processes established by the Public Sector Commissioner. Part 5 deals with the redeployment of a registered employee to another department or organisation or the acceptance of a position in the private sector. Finally, Parts 6 and 7 deal with the termination of employment of a registered employee and the privatisation and contracting out of the activities of a department or organisation. ¶32 Returning then to s 95(1), read with the terms of reg 12. Whilst s 95(1) refers to a “section 94 decision”, it is clear that the relevant decision is one made under the regulations and not Part 6 of the PSMA. In this sense, s 95(1) appears to be an identifier, marking out the boundary of decisions capable of referral to the Commission. Lawful orders, taking effect under s 94(4) of the PSMA, are excluded from referral to the Commission. ¶33 In the absence of any separate definition of “decision” in either s 3 of the PSMA or reg 3 of the Regulations, I see no reason not to give the words used their ordinary and natural meaning. Nothing else in s 95 or in Part 6 of the PSMA, when read as a whole, suggests otherwise (see DC Pearce and RS Geddes Statutory Interpretation in Australia 6th ed at par [4.8]). The Shorter Oxford English Dictionary defines “decision” to mean “1. The act of deciding (a contest, question etc.); settlement, determination, a conclusion, judgement … 2. The making up of one’s mind; a resolution …” ¶34 In my view, taken in the context of the statutory scheme as a whole, the “decision” in question, will also take its colour from the particular regulation(s) that are being invoked in each case. For example, in reg 8(1), an employing authority may make a “determination” that an employee becomes a “registrable employee”. Such a step is, plainly from the language used in reg 8(1), a discretionary step. However, once made, such a determination would clearly be a “decision” for the purposes of s 95(1), understood in its ordinary and natural sense. Similarly, it seems to me that the revocation of such a determination, as prescribed by reg 8(7), would be a decision too. ¶35 Likewise, in reg 10(1), an employing authority may “transfer” a registrable employee to another office, post or position. As with reg 8(1), the act of a transfer must logically have as an integral preparatory step, the employer considering and making up its mind about a transfer and thus, “deciding” to invoke the power available to it to do so. It would be illogical and it would defy common sense, to suggest that such a step and the exercise of such a power, would occur in a vacuum. Someone within an employing organisation, with the requisite authority, must “come to the conclusion” or “make up their mind”, and thus reach a decision, that the employee be moved to another office or position. ¶36 However, simply because there may be a relevant “decision” to make an employee registrable under reg 8(1) or to transfer an employee under reg 10(1), does not mean an employer not making an employee registrable or not transferring an employee, constitutes a “decision” for the purposes of s 95(1). This is because neither regs 8(1) or 10(1) for example, require or empower the employer to reach the conclusion that a person not be determined to be registrable or that an employee not be transferred, as the case may be. This was the essence of the conclusion reached by Emmanuel C in McGregor, but for different reasons to those outlined above. ¶37 It is with this discussion in mind, that I now return to the terms of reg 12. As set out earlier, reg 12 is in Part 3 of the Regulations, dealing with the general subject matter of “voluntary severance”. Regulation 11 provides for the process of the making by an employing authority, of an offer of voluntary severance. As with regs 8(1) and 10(1), in my view reg 11(2) does not require nor empower an employing authority to decide not to offer a voluntary severance. Therefore, arguably, for the same reasons, such a course of action would not be a relevant “section 94 decision” open to review by the Commission. ¶38 The substituted voluntary severance provision in reg 12 however, deals with a different process to a voluntary severance in reg 11 and is expressed in language in contrast to that used in reg 11 and the others that I have made mention of. The terms of reg 12 involves four parties. The first is the registrable employee. The second is the “other employee” (in this case Mr Willis) and the other two parties are the respective employing organisations. The regulation requires the identification of a suitable registrable employee to take the position of the other employee, who will in turn, receive the benefits of the severance payments as prescribed in regs 13, 14 and 15. There is no step such as the making of an offer by the employer in this situation, as there is by way of contrast, in reg 11. ¶39 However, what is required in this case, is that the proposed severance payment to the other employee, must be “approved” by the relevant employing authority. If so, the other employee may resign, again with the approval of his employing authority. Once that occurs, the other employee will then be paid the appropriate severance payment not by his organisation, but by the employing authority of the registrable employee. The registrable employee is also then transferred to the employing authority of the other employee. ¶40 As I have mentioned earlier, in my view, the nature of the relevant “decision” for the purposes of s 95(1), takes its colour from the terms of the particular regulation in question. In the context of reg 12, the requirement under reg 12(1)(b) for the “approval” of a severance payment to the other employee, is a crucial step in the process. Such approval must be forthcoming, otherwise the substituted voluntary severance process proceeds no further. This is the clear meaning of reg 12, read in its ordinary and natural sense. ¶41 In terms of the previous discussion, in particular applying the ordinary and natural meaning of “decision”, it is beyond doubt in my view, that the approval of such a proposal for a voluntary severance, in the circumstances outlined in reg 12, must involve the relevant officer(s) of the employing authority coming to a conclusion or making up their minds, as to whether or not, such approval should be forthcoming. If so, again, it is plain that such an approval would constitute a “decision” for the purposes of s 95(1) of the PSMA. It is inconceivable in my view, and would be contrary to the proper administration of the public sector and the use of public resources, if a substituted voluntary severance arrangement could be entered into without a proper officer making a decision to authorise it. ¶42 Having reached this point, the next question is whether the non-approval of a substituted voluntary severance by an employing authority under reg 12(1)(b), could also constitute a “section 94 decision” in the terms of s 95(1). I have no doubt that it can. It is axiomatic that the opposite to the approval of something is to not approve it. Instead of saying “yes” one says “no”. In the case of a request for a substituted voluntary severance, this is put by the “other employee” to his or her employing authority, after the identification of a suitable “registrable employee” to take part in the process. The employing authority considers the request of the other employee. If it is not approved, the process goes no further. ¶43 In this circumstance, the relevant officer(s) of the employing authority will necessarily “come to a conclusion or make up their mind” to not approve and proceed with the making of the severance payment. In its ordinary and natural sense, this would clearly constitute a decision. Similarly, given that by s 50(2)(c) of the Interpretation Act, a statutory power to approve something includes the power to withdraw such an approval, any such withdrawal would also arguably constitute a decision under s 95(1) of the PSMA. ¶44 If the above interpretation of reg 12(1)(b) were not so, then it would seem that an employing authority could simply refuse an approval, the necessary prior steps in reg 12 having been met, without any reason, and be immune from challenge. This could lead to arbitrary and capricious outcomes. An employing authority could decline the approval of a substituted voluntary severance because it simply did not like the colour of an employee’s shoes. I do not consider that this could have been the intention of the legislature to preclude the review of such a step, given the terms of the statutory scheme. What such a step leads to, of course, is not a guarantee that the “other employee” will achieve what they want by a referral to the Commission. This is because the jurisdiction of the Commission is limited to an enquiry as to whether the Regulations have been “fairly and properly applied”. ¶45 Having reached this point, consideration needs to be given to the facts before the Commission, as to whether what occurred in Mr Willis’ case, amounted to the Department’s “non-approval” of his proposed substituted voluntary severance, and was thus “a section 94 decision”. ¶46 An outline of the evidence has been set out earlier in these reasons. It was indisputably clear on the evidence that over a considerable period of time, Mr Willis raised with the Department the issue of him taking a voluntary severance. Mr Lloyd’s evidence was that such an arrangement may be possible, but only on the basis that the Department not be required to give up Mr Willis’ salary and position in its budget. It was also clear on the evidence that prior to Mr Willis’ meeting with Mr Lloyd on 14 April 2016, steps had been undertaken by Mr Willis to identify a suitable registrable employee, Mr Adams, to move into his position at the Department. Mr Adams confirmed that he was willing and able to do so by this time. At the meeting on 14 April 2016, Mr Willis put his request for a substituted voluntary severance to Mr Lloyd, in accordance with the steps Mr Willis had taken prior to the meeting. Mr Lloyd, whilst not making any firm commitment to Mr Willis, undertook that his request would be considered. ¶47 I have no doubt that by 14 April 2016 Mr Willis had identified a person, Mr Adams, willing to participate in a substituted voluntary severance under reg 12 of the Regulations. Mr Willis had discussed relevant issues with the human resources departments at both the Department and the other organisation, the Department of Finance. Preparatory steps had been put in place. Mr Willis informed Mr Lloyd of the proposal for a substituted voluntary severance and that he had identified Mr Adams as a registrable employee. Mr Lloyd did not finally commit to Mr Willis’ proposal, but was open to the idea and would take the matter to the Director General of the Department for further consideration. Mr Willis sent an email to Mr Lloyd (see attachment I to Mr Willis’ affidavit) on 15 April 2016 at 9.06 am, to confirm the content of the meeting the previous day. ¶48 Mr Lloyd did discuss the matter with the Director General on 15 April 2016. They discussed various options. As noted above, according to Mr Lloyd, the Director General informed him that he would consider Mr Willis’ request further over the ensuing weekend and they would talk about the matter again the following Monday. This then took place. The Director General informed Mr Lloyd that he was not willing to proceed with Mr Willis’ request. The Director General’s conclusion was that the Department wished to retain the option of performing Mr Willis’ role differently and at a lower level in the future. ¶49 Mr Lloyd said that he met with Mr Willis on that Monday afternoon and informed him of the Director General’s “position” on the proposed substituted voluntary severance. As to these matters, Mr Lloyd said at pars 20 and 21 of his affidavit as follows: 20. I met with Mr Willis in the afternoon of Monday, 18 April 2016 and told him the Director General’s position on his proposed substituted voluntary severance. 21. On 19 April 2016, I received an email from Mr Willis regarding the decision not to support his proposed substituted voluntary severance. Attached to this statement, marked “DL2”, is a copy of the email that I received from Mr Willis. Although the email from Mr Willis suggests that I did not act consistently with my comments to Mr Willis at the performance management meeting on 28 October 2014, that was not the case. I was supportive of the option of Mr Willis leaving the Department being considered. However, ultimately, the Director General was not satisfied pursuing a voluntary severance was the best course of action. Having heard his reasoning, I concurred with the Director General’s view. ¶50 Whilst the language used in Mr Lloyd’s affidavit couched the outcome in terms of the Department “not proceeding with Mr Willis’ proposal” and the “position” of the Director General, I have no doubt on the evidence when taken in context, that the Director General’s “consideration” of the matter of Mr Willis’ proposed substituted voluntary severance over the weekend of 16 and 17 April 2016 and the outcome of his discussion with Mr Lloyd on Monday 18 April, constituted a “decision” to not approve the substituted voluntary severance for Mr Willis. There was plainly a process of deliberation and consideration of Mr Willis’ substituted voluntary severance request. The Director General, with final authority in relation to these matters, undertook to and did further consider Mr Willis’ proposal and “came to a conclusion and made up his mind” to not agree to it. He did not approve it. He said no. ¶51 I have no doubt also that on these facts the Director General of the Department, in not approving the substituted voluntary severance for Mr Willis, for reasons identified by Mr Lloyd in his affidavit, came to this decision under reg 12 and as such, this was a decision for the purposes of s 95(1) of the PSMA. The request by Mr Willis for a substituted voluntary severance went no further. [Conclusion] ¶52 I consider therefore that the Department made a reviewable decision for the purposes of this application. The Commission will so declare. The matter will be re-listed for hearing on the merits in due course.