Managing a Breach of the Public Sector Standard Claims framework

1. Framework

1.1 Introduction

The Public Sector Management Act 1994 forms the legislative framework for public sector standards in human resources management. These standards are:

The Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (the Regulations) set out the timeframes in which a claim can be made and, together with the Industrial Relations Act 1979, the procedures for resolving claims.

This framework supports the Department’s Managing a Breach of the Public Sector Standard Claims policy.

1.2 Application

Breach provisions apply where a reviewable decision is made to which a Public Sector Standard applies.

Refer to Appendix A for information on:

human resource decisions to which Recruitment and Transfer breach claim rights and notifications apply
which breach claims may delay certain human resources activities.

Breach claims cannot be made on certain types of decisions:

Recruitment

for appointments to fill vacancies of 12 months or less, where no possibility of permanency or an extension beyond 12 months was communicated
by a suitable applicant to an appointment pool about decisions to appoint people to fill a vacancy from the pool
a temporary move to a specific project at the same level with the same agency – employees can raise concerns through an agency’s internal process

Grievance Resolution

against Level One and Level Two grievances covered by the School Education Act Employees’ (Teachers and Administrators) General Agreement 2023

Discipline

against the Discipline Standard, as separate legislative appeal provisions apply

Redeployment

a redeployment placement (for registrable and registered employees) as different rules apply (if a redeployee applies for a position outside of the redeployment process, a claim may be possible)
against the Redeployment Standard for redeployment and redundancy matters covered by Part 6 of the Public Sector Management Act 1994 and the Public Sector Management (Redeployment and Redundancy) Regulations 2014.

Refer to the Public Sector Commission's Public Sector Standards in Human Resources Management for further information on exclusions under each Standard.

1.3 Notifiable employment decisions

Notification must be provided for certain reviewable decisions to which a public sector standard applies. The notification must include the person’s right to make a claim, and the applicable procedures and timeframes.

Recruitment decisions may be made following an advertised process, or using limited search methods under Commissioner’s Instructions 48, Commissioner’s Instructions 49, and Commissioner’s Instructions 50.

Notifications are required for the following recruitment decisions:

appointments to fill a vacancy of more than 12 months
appointments to fill a vacancy of 12 months or less if the vacancy was filled with the possibility of extension past 12 months and/or permanency
for selection to form part of an appointment pool
acting appointments to fill a temporary vacancy where it was filled with the possibility of permanency

Notifications are required for the following grievance decisions:

Conclusion of a formal grievance under the Department’s Grievance Framework

While the Regulations do not require the Department to notify employees of applicable breach rights under the Transfer, Redeployment, Performance Management, or Termination Standards, it is recommended that managers consult with and communicate decisions to relevant employees, helping them understand the process followed and the reasons for the decision.

1.4 Prescribed timeframes for lodgement

The Regulations prescribe timeframes for a person making a claim in relation to a reviewable decision.

Breach claim timeframes

Decisions requiring notification under the Recruitment Standard	The date given in the notification will be a minimum of 4 business days. The panel may provide a longer lodgement period.
Decisions requiring notification under the Grievance Resolution Standard	The date given in the notification will be 10 business days after the day on which the person was given notification.
All other reviewable decisions to which Standards apply	The date will be 10 business days after a person becomes aware of the reviewable decision, or 30 business days after the decision was made, whichever period expires first.

The Public Sector Commissioner has the discretion to approve the late lodgement of claims after the prescribed lodgement period or early claims before a reviewable decision is made.

The Department has 21 calendar days to attempt to resolve the claim from the day after the claim is lodged.

1.5 Responsibilities of principals and line managers and panel chair

Recruitment Standard

For ‘notifiable employment decisions’ principals, hiring managers and panel chairs must:

give written notice to unsuccessful applicants that:
- a breach of public sector standards claim may be lodged
- how a breach claim may be made and
- the breach claim closing date.
include contact details to allow applicants to seek feedback on their application
be available during any specified breach period to provide feedback, if sought
allow 24 hours for Employee Relations to advise of a breach claim, or seek clearance at the end of the breach claim period before appointment(s) are made
suspend a proposed appointment to a vacancy or the transfer of an employee where there is an active breach (multiple vacancies can be filled provided at least one is kept vacant)
be available to assist in the Department’s review of the process and provide documentation and information as required
implement remedies and relief related to the outcome of the review in a timely manner.

Grievance resolution standard

For ‘reviewable grievance decisions’, principals and line managers at the conclusion of a formal grievance process, must give written notice to complainants and any employee who was the subject of a grievance:

that a breach of public sector standards claim may be lodged
how a breach claim may be made
the breach claim closing date.
This notification is also required where the decision results in no action taken.

This notification is also required where the decision results in no action taken.

1.6 Responsibilities of claimants

Lodging a claim

A person may lodge a breach of Standard claim by writing to the Department, setting out the reasons why they consider the Standard has been breached and how they have been adversely affected by that breach.

Prior to lodging a breach claim of the Recruitment Standard, applicants are advised to seek information from the selection panel chair or delegate to gain an understanding of the process undertaken and the reason/s for the decision. The breach claim process reviews the process used to assess applicants. It is not intended to reassess an individual's competitive merit for a position or to re-evaluate applications.

For claims against the Grievance Resolution Standard, the review process does not include judging or reassessing the merits of the grievance.

The process for the claimant is as follows:

lodge the claim in writing with the Department
- within the breach period stated in the letter of notification under the Recruitment Standard or Grievance Resolution Standard
- within the prescribed timeframe for lodgement for all other ‘reviewable decisions’ to which the Recruitment, Transfer, Redeployment, Performance Management or Termination Standards apply
set out the reasons why you believe the Standard has been breached
- how you have been adversely affected by the breach
- any documentation to support the claim
submit the claim marked “Private and Confidential” to employeerelations.breachclaim@education.wa.edu.au

Refer to the Public Sector Commission website:

1.7 Withdrawing a claim

A claimant can withdraw the claim in writing:

at any time during the breach claim process to cease the process
to finalise the claim where an explanation or action resolves the claim.

1.8 Unresolved claims

Breach claims that have not been resolved by agreement or withdrawn during the agency resolution period:

will be forwarded by the Department to the Public Sector Commission if the claim relates to the Recruitment Standard
may be referred by the claimant or their union to the Western Australian Industrial Relations Commission (WAIRC) if the claim relates to Standards applying to Transfer, Performance Management, Grievance Resolution, Redeployment and Termination.

The WAIRC requires claimants to refer unresolved claims no more than 28 days from the end of the agency resolution period. The WAIRC may accept a referral outside this time limitation. Refer to the WAIRC’s guidance Application to refer breach of public sector standards claim.

1.9 Central services support

If a breach claim is lodged, the Department must make reasonable attempts to resolve the claim with the claimant within 21 calendar days after the claim was lodged.

Employee Relations Directorate will:

acknowledge receipt of the claim in writing
discuss the claim with the claimant
provide the claimant with relevant information outlining the resolution process
assess the claim
discuss the Department’s assessment with the claimant as soon as practicable and
notify the claimant of the process for referring their unresolved claim.

The Director, Industrial and Employee Relations:

refers unresolved Recruitment Standard claims to the Public Sector Commissioner for conciliation or review after the agency resolution period
where required, notifies the Commissioner and claimant of the Department’s response to the Commissioner’s review within 10 business days; and within 10 days after relief, if provided
notifies claimants with an unresolved claim related to Transfer, Performance Management, Grievance Resolution, Redeployment and Termination of employment, that the claimant (or their union) may refer the claim to the WAIRC within 28 days from the end of the agency resolution period.

1.10 Records management

Principals, hiring managers and panel chairs are responsible for managing records in accordance with the State Records Act 2000, and the Department’s Records Management policy and related procedures.

Documented records of human resource decisions should be clear and concise and may include:

how and why a decision was made
actions taken to address effectively any conflicts of interest (perceived or actual)
remedial actions, if any
reasons for delays or deviation from usual practices, where applicable
records of communications.

2. Definitions

Agency resolution period

The period for a public sector body to resolve the claim with the claimant is 21 calendar days, commencing the day after the claim was lodged.

Breach claim

A claim of a breach of Standard made in accordance with the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005.

Claimant

A person who makes a claim.

Business day

Any day other than a Saturday, Sunday or public holiday

Notifiable employment decision

Notifiable employment decision means a reviewable decision in respect of:

appointments to fill a vacancy of more than 12 months
appointments to fill a vacancy of 12 months or less if the vacancy was filled with the possibility of extension past 12 months and/or permanency
for selection to form part of an appointment pool
acting appointments to fill a temporary vacancy where it was filled with the possibility of permanency.

Reviewable grievance decision

The decision that ends the formal grievance process.

Reviewable decision

A decision made by an employing authority as a result of the completion of a process to which a Public Sector Standard applies.

3. Contact information

Industrial and Employee Relations

Telephone: 9264 4921 (option 2)

Email: employeerelations.breachclaim@education.wa.edu.au

Aset Penerbit