Case explores rights of workers in temporary higher-level positions
The Western Australian Industrial Relations Commission (WAIRC) recently dealt with a case where a worker challenged the early end of her temporary work assignment.
She argued this amounted to dismissal from her position. The worker's main argument centred on whether ending a temporary arrangement could be considered dismissal, especially when the arrangement ended months before its scheduled completion date.
This case raised questions about job security and employment rights in temporary work situations.
A level 6 assistant superintendent at the Department of Justice started working in a temporary level 7 manager role in October 2023. The acting arrangement was meant to last 12 months, but the department ended it early in March 2024.
During her acting role, the worker managed the Aboriginal Visitors Scheme in the Strategic Reform division. This was different from her permanent role as assistant superintendent in the Corrective Services division.
The temporary arrangement entitled her to a higher duties allowance under the Public Service Award 1992. This gave her additional pay while performing higher-level duties.
On 16 February 2024, the worker had a discussion with her line manager about negative feedback from Aboriginal Visitors Scheme clients. This discussion led to further meetings on 20 and 23 February 2024.
At the 23 February meeting, senior management told the worker her acting arrangement would end on 22 March 2024, about seven months earlier than planned. They asked her to work from home until the end date.
The worker argued this early termination was unfair. She said being told she was "not a good fit" went against public sector employment standards. The department maintained she was still employed in her permanent role.
The Industrial Relations Act 1979 (WA) allows workers to appeal against dismissal decisions. The Commission had to determine if ending an acting arrangement qualified as dismissal under this law.
Evidence showed the worker knew the role was temporary. She described it as "an acting opportunity at a higher duties allowance" and understood she would return to her assistant superintendent role without a permanent placement.
The department argued that offering someone the chance to perform higher duties with extra pay didn't create a new employment contract under the Public Sector Management Act 1994 (WA).
The Commission found no previous cases supporting the idea that ending an acting arrangement counted as dismissal. They stated: "Neither party could refer us to (and we are not aware of) any authority that supports the proposition that ending an acting arrangement and returning an employee to their substantive position amounts to dismissal."
They explained their reasoning: "Where an employee continues to hold their substantive position, and merely ceases acting in a higher duties arrangement, that employee has not been sent away or removed from office, employment or position."
The Commission concluded: "The true characterisation of what happened in this case is that [the worker] was given an opportunity to perform the full duties of a higher role... That arrangement did not create a new employment contract that amounted to an appointment under the PSM Act."
Based on these findings, the Commission dismissed the worker's appeal. They said they couldn't examine whether the department's decision was fair because ending an acting arrangement wasn't a dismissal under the law.
