PUBLIC SECTOR MANAGEMENT ACT 1994 - SECT 78
PUBLIC SECTOR MANAGEMENT ACT 1994 - SECT 78
78 . Appeals etc. against some decisions under s. 79, 82A, 82, 87, 88 or 92
(1) Subject to
subsection (3) and to section 52, an employee or former employee who —
(a) is,
or was, a Government officer within the meaning of section 80C of the
Industrial Relations Act 1979 ; and
(b) is
aggrieved by —
(i)
a decision made in respect of the Government officer
under section 79(3)(b) or (c) or (4); or
(ii)
a finding made in respect of the Government officer in
the exercise of a power under section 87(3)(a)(ii); or
(iii)
a decision made under section 82 to suspend the
Government officer on partial pay or without pay; or
(iv)
a decision to take disciplinary action made in respect of
the Government officer under section 82A(3)(b), 88(b) or 92(1),
may appeal against
that decision or finding to the Industrial Commission constituted by a Public
Service Appeal Board appointed under Division 2 of Part IIA of the
Industrial Relations Act 1979 , and that Public Service Appeal Board has
jurisdiction to hear and determine that appeal under and subject to that
Division.
(2) Despite section 29
of the Industrial Relations Act 1979 , but subject to subsection (3), an
employee or former employee who —
(a) is
not a Government officer within the meaning of section 80C of that Act; and
(b) is
aggrieved by —
(i)
a decision made in respect of the employee under
section 79(3)(b) or (c) or (4); or
(ii)
a finding made in the exercise of a power under
section 87(3)(a)(ii); or
(iii)
a decision made under section 82 to suspend the employee
on partial pay or without pay; or
(iv)
a decision to take disciplinary action made under
section 82A(3)(b), 88(b) or 92(1),
may refer the decision
or finding mentioned in paragraph (b) to the Industrial Commission as if that
decision or finding were an industrial matter mentioned in section 29(b) of
that Act, and that Act applies to and in relation to that decision
accordingly.
(3) Despite section 29
of the Industrial Relations Act 1979 , but subject to section 52, an employee
or former employee —
(a)
against whom proceedings have been taken under this Part for a suspected
breach of discipline arising out of alleged disobedience to, or disregard of,
a direction which is by virtue of section 94(4) a lawful order for the
purposes of section 80(a); and
(b) who
is aggrieved by —
(i)
a decision made under section 82 to suspend the employee
on partial pay or without pay; or
(ii)
a finding made in respect of the person referred to in
section 82A(3)(a), 87(3)(a)(i) or 88(a),
may refer the decision
or finding referred to in paragraph (b) to the Industrial Commission as if
that decision or finding were an industrial matter mentioned in section 29(b)
of that Act, and that Act applies to and in relation to that decision or
finding accordingly.
(4) In exercising its
jurisdiction under subsection (3) in relation to a direction consisting of a
lawful order referred to in section 94(4), the Industrial Commission shall
confine itself to determining whether or not that direction has been, or is
capable of having been, complied with.
(5) If it appears to
the Industrial Commission or the Public Service Appeal Board that the
employing authority failed to comply with a Commissioner’s instruction
or the rules of procedural fairness in making the decision or finding the
subject of a referral or appealed against, the Industrial Commission or Public
Service Appeal Board —
(a) is
not required to determine the reference or allow the appeal solely on that
basis and may proceed to decide the reference or appeal on its merits; or
(b) may
quash the decision or finding and remit the matter back to the employing
authority with directions as to the stage at which the disciplinary process in
relation to the matter is to be recommenced by the employing authority if the
employing authority continues the disciplinary process.
[Section 78 amended: No. 39 of 2010 s. 95.]