Division 3 Disciplinary appeals
97 Notice of certain decisions etc
(1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee:(a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee,(b) a decision to reduce the rank, classification, position, grade or pay of the employee,(c) a decision to impose a fine or forfeit pay,(d) a decision to annul the appointment of an employee appointed on probation,(e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer,(f) a decision to dismiss the employee,(g) a decision to direct or to require the employee to resign.(2) A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4).(3) If the employer is unable to give the employee notice of the decision within 14 days after it is made, the employer may apply to the Commission for an order as to the giving of the notice.(4) On receipt of an application under subsection (3), the Commission may make such order as the Commission thinks fit as to the giving of the notice or may make an order dispensing with the giving of the notice.(5) A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (4).(6) In subsection (1) (f):dismiss includes dispensing with the services of an employee (including under any right or power of the Crown to dispense with the services of an employee).
(7) For the purposes of this Division:(a) a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 98 regardless of whether the decision was made for disciplinary reasons, and(b) a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect.
(1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer.(2) Such an appeal may be made on the ground that the decision appealed against was made substantially in reprisal for a protected disclosure within the meaning of the Protected Disclosures Act 1994.(3) However, employees of the following classes cannot appeal to the Commission against an appealable decision referred to in section 97 (1) (d), (f) or (g):(a) employees engaged under a contract of employment for:(i) a specified period of time that is less than 6 months, or(ii) a specified task that is of less than 6 months duration,(b) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either:(i) the period, or the maximum duration, is 3 months or less, or(ii) if the period, or the maximum duration, is more than 3 months—the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee concerned,(c) employees engaged on a casual basis for a short period except those who:(i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and(ii) would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer.
99 Alternative rights of appeal
(1) Nothing in section 98 derogates from or otherwise affects any right of appeal a public sector employee may have, or other proceedings which may be instituted by the employee or on his or her behalf, under this or any other Act or law or any industrial award or agreement (whether enacted, existing or made before, on or after 1 July 2010) in respect of an appealable decision.(2) A public sector employee may not appeal to the Commission under section 98 in respect of an appealable decision if:(a) the employee has elected, in writing, to forgo a right of appeal under section 98 in respect of the decision, or(b) the employee makes an appeal or institutes other proceedings, or proceedings are instituted on the employee’s behalf, in respect of an appealable decision under an Act or law or an industrial award or agreement referred to in subsection (1).(3) If an employee appeals to the Commission under section 98 in respect of an appealable decision, the employee may not then, in respect of that decision, appeal or institute other proceedings or proceedings may not be instituted on his or her behalf under an Act or law or an industrial award or agreement referred to in subsection (1).
100 Appealable decisions may be carried into effect despite right of appeal
(1) An appealable decision may be carried into effect whether or not an appeal may be (or has been) made against the decision under this Division.(2) However, if the decision appealed against is a decision of a kind referred to in section 97 (1) (d), (f) or (g), a permanent appointment is not to be made to the position held by the employee when the decision was made until:(a) the time for making an appeal against the decision has expired without an appeal having been made, or(b) if an appeal is made within that time—the appeal is determined or has lapsed.