Inability or performance appeals

Appealable decisions

A decision by a CEO under s44(2) to take remedial action of a kind mentioned in s46(1)(b)(ii) or (iii) or (c) is appealable to the Public Sector Appeals Board (PSAB).

Appealable decisions are ones that:

  • reduce the employee’s salary
  • transfer the employee to perform other duties within the agency or in another agency
  • order a period of suspension without pay
  • terminate employment.

Decisions that do not affect an employee’s usual remuneration include:

  • formal cautions
  • orders to undertake training, counselling or other remedial activities
  • requiring the employee to forego a benefit or entitlement arising from employment
  • an order to pay a fine of an amount not exceeding 10 days’ pay.

These are not subject to appeal, however, the employee affected may request the Commissioner to review such decisions pursuant to section 59.

Time frames and how to lodge inability appeals

The appeal period is 14 days, commencing on the day on which written notice of the inability action is given to the person.

This same 14 day time frame applies to requests to the Commissioner for s59 reviews of inability decisions.

Notice of an appeal must be given to the PSAB.

A form for lodging an inability appeal is available here DOCX (36.8 KB), or by request from the PSAB office.

The notice of appeal must state the:

  • Appellant’s name, designation, agency, address for correspondence, email address and contact telephone number
  • date the decision was notified
  • name of CEO or delegate
  • type of inability action (pursuant to section 49C(1)(b)(v) to (vii) or 49C(1)(c)).

Notice of appeal should be provided to:

Public Sector Appeals Board
Level 10
Charles Darwin Centre
19 The Mall
Darwin NT 0800
Phone: (08) 8999 4129

Conduct of appeals

The board may conduct the appeal in any way it considers appropriate and is not bound by the rules of evidence or required to hold a hearing with the parties in person.

In conducting an appeal the board must do so as expeditiously and with as little formality and technicality as is reasonably practicable.

Possible determinations

The Board can make any of the following decisions:

  • affirm the decision
  • vary the decision
  • set aside the decision
  • set aside the decision and return the matter to the relevant CEO for reconsideration
  • set aside the decision and replace it with the Board’s decision

What happens after the appeal

The Board usually reaches a decision on the day of the hearing.  Following a decision, each of the parties to the appeal is contacted by telephone and advised of the board’s determination. Detailed written reasons for decision are then provided to all parties at a later date.

Legislative basis

Part 7 - Employee performance and inability  Sections 44 – 48 and Section 59A and Sections 59C to 59F  Public Sector Employment and Management Act

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Last updated: 24 January 2019

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