REFERRAL OF A DECISION TAKEN BY THE EMPLOYER ON 16 SEPTEMBER 2025

CITATION : 2026 WAIRC 00187

CatchWords : Industrial Law (WA) - Preliminary issue - Whether the decision-maker who made the decision imposing disciplinary action had the requisite authority to make the decision

Legislation : Industrial Relations Act 1979 (WA)

Health Services Act 2016 (WA)

Public Sector Management Act 1994 (WA)

Interpretation Act 1984 (WA)

Result : Preliminary matter determined: Decision-maker had the requisite authority to impose disciplinary action

1. On 7 October 2025, the applicant (Ms Neskovic), filed a Form 5 - Application to Refer Public Sector Matter (Form 5) to refer the decision taken by the respondent (CAHS) on 16 September 2025 to impose disciplinary action under the Health Services Act 2016 (WA) (HS Act) of:
   • (a) Improvement Action in the form of training; and
   • (b) Disciplinary Action by way of: A reprimand in the form of a warning.
2. On 30 October 2025, CAHS filed a Form 4 - Response, stating:
   1. The discipline process was carried out in accordance with the WA Health Discipline Policy. ... The decision was made by an appropriately appointed Decision Maker who considered all relevant evidence including the Applicant's responses, witness statements and an investigation report.
3. On 6 February 2026, the matter was listed for a Directions Hearing, at which the following Directions ([2026] WAIRC 00071) were made:

1. THAT the issue of the decision-maker's authority to make the decision imposing disciplinary action on 16 September 2025, be heard and determined as a preliminary matter (Preliminary Matter), on the papers.
2. THAT the respondent file the documents relevant to the Preliminary Matter by Friday, 13 February 2026.
3. THAT the applicant file any witness statements and submissions relevant to the Preliminary Matter by Friday, 20 February 2026.
4. THAT the respondent file any witness statements and submissions relevant to the Preliminary Matter by Friday, 27 February 2026.

1. THAT the parties have liberty to apply.
2. On 10 February 2026, CAHS filed the Agreed Documents, in accordance with Direction 2:
   • (a) [CAHS] (Board) Instrument of Delegations and Authorisations No. 2 of 2023 (AD-1).
   • (b) The [CAHS] Authorisations and Delegations Schedule (AD-2).
3. On 20 February 2026, Ms Neskovic filed her witness statement, stating: (cross-references omitted)
   1. On 5 December 2024, I received a letter titled 'Suspected Breach of Discipline - Opportunity to Respond' which also suspended me from duty on full pay (Suspension Letter).

1. The Suspension Letter is signed by Ms Terri-Lee Barrett [(Ms Barrett)], whose position in the letter is stated as 'A/Executive Director - Child & Adolescent Community Health'.

1. On 16 September 2025, I received a letter titled 'Breach of Discipline - Confirmation of Findings and Disciplinary Actions' (Final Decision Letter).

1. The Final Decision Letter is signed by [Ms Barrett], whose position in the letter is stated as 'Nurse Director - Child & Adolescent Community Health'.
2. On 20 February 2026, Ms Neskovic filed submissions, in accordance with Direction 3, stating:
   1. The disciplinary powers relevant to the Final Decision Letter fall within EM03 items in AD-2, including:
      • EM03.03 - determine and notify disciplinary action of a reprimand following a finding of breach of discipline; and
      • EM03.12 - notify an employee in writing of a finding of breach of discipline and/or improvement action (excluding dismissal).
   2. AD-2 attaches express conditions to the exercise of EM03 powers, including (depending on the item):
      • that the authorised officer be a designated decision-maker;
      • that consultation occur with Workforce Services; and
      • that authority be exercised in accordance with documented arrangements.
   3. The Final Decision Letter does not:

(b) state that the signatory was a designated decision-maker for the relevant EM03 function(s); or

(c) record that consultation with Workforce Services occurred prior to the determination.

1. The Suspension Letter dated 5 December 2024 states that the matter was being dealt with as a disciplinary matter and that the signatory was an 'authorised and delegated decision-maker' but does not identify the relevant EM item(s) or delegation instrument relied upon.
2. On the material presently filed for determination of the Preliminary Matter, there is no document evidencing:

(a) allocation of the decision-maker under documented arrangements;

(b) that the signatory was a designated decision-maker for the relevant EM03 function(s) at the relevant time;

(c) that the signatory was occupying a position listed in AD-2 with the relevant EM03 function(s) at the relevant time, including any acting arrangement; or

(d) compliance with any express consultation or other conditions attached to the relevant EM03 power.

1. Production of delegation instruments alone does not establish lawful authority unless compliance with any attached conditions is demonstrated in the circumstances of this case.
2. On 27 February 2026, CAHS filed a witness statement of Mattison Staples, Manager Integrity and Ethics, stating:
   1. The Integrity and Ethics Team at CAHS are responsible for the delivery of Decision Maker training, to ensure that staff appointed as Decision Makers in disciplinary matters understand their role, obligations and responsibilities.
   2. The Integrity and Ethics Team maintains a register of current Decision Makers who have undertaken the decision maker training, and it sets out their current tier level in line with [AD-2].
   3. Annexure A to this Witness Statement is a document prepared by me and sets out the names and positions of Decision Makers and their tier level at 5 December 2024 and 16 September 2025.
   4. Annexure A confirms that [Ms Barrett], who is substantively employed by CAHS in the position of Nurse Director - Child and Adolescent Community Health is a Tier 3 Decision Maker.
   5. The role of Executive Director - Child and Adolescent Community Health, which Ms Barrett occupied on 5 December 2024, is a Tier 2 Decision Maker.
3. On 27 February 2026, CAHS filed submission in accordance with Direction 4, stating:

[CAHS'] Submissions on the Preliminary Matter

1. Paragraph 6(a) of AD-1 delegates the functions and powers listed in column 2 of AD-2 to person/s occupying a position listed in column 5 of AD-2.
2. AD-2 sets out the delegated authority to make decisions for items EM03.01 - EM03.12, which pertain to Employment, specifically Discipline Matters.
3. Item EM03.09 deals with the delegated authority to determine to suspend an employee on [full pay], pending a finding of a breach of discipline. As per EM03.09, the power to suspend is delegated to person/s occupying a position categorised as Tier 3.
4. Authority to suspend an employee on full pay, pending a finding of a breach of discipline in accordance with Item EM03.09, also extends to an employee of [CAHS] occupying any position of a higher tier as well (Paragraph 5 of AD-1).
5. The CAHS Authorisations Tiers Document on page 9 of AD-2 specifies a Tier 3 as the following positions: Chief, Co-Director, Director, Coordinator of Nursing (excluding community health) and General Counsel. AD-2 also sets out that a Tier 2 is people occupying the positions of an Executive Director and Director Office of the Chief Executive.
6. On 5 December 2024, the date the Applicant was notified of their suspension on full pay, the Decision Maker occupied the position of Executive Director - Child and Adolescent Community Health (EDCACH), a Tier 2 Position. The Decision Maker's substantive position is Nurse Director - Child and Adolescent Community Health (NDCACH), a Tier 3 position.
7. Given the position of EDCACH is a Tier 2 position, the Decision Maker clearly had the authority to make the decision to suspend the Applicant on 5 December 2024.

1. [CAHS] relies upon its submissions set out in paragraphs 19-20 and 23 above.
2. Item EM03.02 prescribes the authority to decide to take improvement action or no action in respect of a suspected breach of discipline is delegated to person/s occupying a position categorised as Tier 3.
3. Item EM03.03, prescribes the authority to decide to determine and notify the disciplinary action of a reprimand to be taken in response to a finding of a breach of discipline is delegated to person/s occupying a position categorised as Tier 3.
4. On 16 September 2025, the date the Applicant was notified of the decision to impose improvement action and disciplinary action, the Decision Maker occupied the position of NDCACH, a Tier 3 position.
5. Given the above, the Decision Maker clearly had the authority to make the decision to impose improvement action and disciplinary action on 16 September 2025.

1. The crux of the Applicant's submissions now appears that on each occasion a delegated decision is made, there must be a written record notifying that employee impacted setting out the following:

1. The specific EM item relied upon; 2. The signatory was a designated decision-maker for the relevant EM function; and

1. That consultation with any relevant Department of [CAHS] occurred prior to the determination.
2. [CAHS] submits there is no requirement in the HS Act nor in AD-1 or AD-2 to provide such written record. Notably, the Applicant is unable to point to any such requirement under any instrument in their submissions to support their position.
3. Notwithstanding the above, [CAHS] contends that all relevant conditions, limitations and restrictions outlined in column 4 of the relevant EMs in AD-2 were complied with. Ms Barrett was a designated CAHS Decision Maker. [CAHS] refers the Commission to Annexure A of MS-1, which contains a list of authorised and delegated CAHS Decision Makers during the relevant period of this matter.
4. Further, the Applicant was informed by the Decision Maker in writing, at the commencement of the discipline process on 5 December 2024, that Ms Barrett was the authorised and delegated decision maker for the matter. The letter of 5 December 2024 appears as Annexure 1 to the Witness Statement of the Applicant filed on 20 February 2026.
5. AD-2 is a wide-ranging document covering the delegation of decisions related to a full spectrum of matters involved in the running of a Health Service, having to provide a written document in the form the Applicant claims is required, every time a delegated decision was made to those impacted, would be an impractical and highly ineffective manner in which to run a health service.
6. AD-1 and AD-2 clearly provided authority for the Decision Maker to suspend the Applicant on full pay in accordance with section 164 of the HS Act and impose disciplinary action and improvement action in accordance with section 163(3) of the HS Act.
7. On 28 February 2026, Ms Neskovic lodged responsive submissions to CAHS' submissions, purportedly in accordance with the Directions at [3] above. CAHS opposed Ms Neskovic lodging responsive submissions, and Ms Neskovic subsequently applied for leave to do so. I was prepared to grant Ms Neskovic leave to file responsive submissions, and I have had regard to them.
8. In her responsive submissions, Ms Neskovic states:
   1. At paragraphs 33-35, [CAHS] characterises the Applicant's case as requiring that each time a delegated decision is made, the employee must be provided a written record identifying (a) the EM item, (b) designation status, and (c) consultation.
   2. That is not the Applicant's submission. The Applicant's submission is: where authority is exercised under a delegation instrument that is expressly conditioned (including consultation / designation / policy compliance), [CAHS] must prove compliance with those conditions in the circumstances of this case.
   3. Further, AD-2 itself states that the exercise of authority is to be documented in writing (email suffices in most instances). [CAHS'] 'no writing requirement' proposition is therefore overstated.
   4. The relevant delegated powers actually exercised on 16 September 2025.
   5. The Final Decision Letter imposed:
      • improvement action, and
      • disciplinary action by reprimand.
   6. The relevant AD-2 items for those actions are:
      • EM03.02 (decide improvement action / no action),
      • EM03.03 (determine and notify reprimand), and
      • EM03.12 (notify employee in writing of findings and/or improvement action (excluding dismissal)).
   7. The mandatory AD-2 conditions (verbatim anchors)
   8. AD-2 imposes express conditions on the exercise of each of EM03.02, EM03.03 and EM03.12, including (in substance and as stated in AD-2):
      • EM03.02: the authorised officer must act in consultation with Workforce Services, and must be a designated decision-maker, and must act in accordance with the Discipline Policy / CAHS Discipline Guide / related templates (and the 'lower tier' restriction).
      • EM03.03: the officer acts in consultation with Workforce Services, and must be a designated decision-maker, and must act in accordance with the Discipline Policy / related templates (and the 'lower tier' restriction).
      • EM03.12: the officer must notify the employee in writing (within the timeframe stated in AD-2), and must act in consultation with Workforce Services, and must be a designated decision-maker, and must act in accordance with the Discipline Policy / CAHS Discipline Guide / related templates.
   9. These are not optional internal preferences; they are the express conditions attached to the very authority [CAHS] relies upon.
   10. What [CAHS'] filed evidence proves - and what it does not
   11. [CAHS] relies on AD-1/AD-2 and the witness statement of [Mr Staples] with Annexure A (a general register/list of trained decision-makers).
   12. This material may prove only that there is a delegation framework and that Ms Barrett held a Tier 3 role on 16 September 2025 (and acted in a Tier 2 role on 5 December 2024).
   13. Critically, it does not prove compliance with the mandatory conditions attached to EM03.02, EM03.03 and EM03.12 in this case, particularly the consultation with Workforce Services condition.
   14. The key evidentiary gap: no proof of 'consultation with Workforce Services'
   15. [CAHS] asserts (para 35) that 'all relevant conditions... were complied with.' That is a submission, not evidence.
   16. [CAHS] has filed:
       • no statement from Ms Barrett addressing whether, when, and with whom Workforce Services consultation occurred prior to issuing the Final Decision Letter.
       • no statement from Workforce Services (including the HR/Workforce officer referred to in the correspondence); and
       • no contemporaneous record (email, file note, minute, CMS extract) evidencing pre-decision Workforce consultation.
   17. Mr Staples' evidence is confined to decision-maker training and a register/list; he does not give evidence of Workforce Services consultation in this matter.
   18. 'In accordance with Discipline Policy / documented arrangements' - why directions are reasonable
   19. AD-2 conditions require the exercise of EM03 authority to be 'in accordance with' the Discipline Policy / Discipline Guide / templates. The Discipline Policy expressly contemplates that documented arrangements exist for (among other things) appointment/change of decision-maker and recording decisions/case records.
   20. If [CAHS'] case is that AD-2 authority was validly exercised, then the documentary footprint of compliance should exist and be readily producible. [CAHS] has filed none of it.

1. The Preliminary Matter requires me to determine if Ms Barrett had the requisite authority to make the decision imposing disciplinary action, which Ms Neskovic was notified of by the Final Decision Letter dated 16 September 2025. While unnecessary in determining the Preliminary Matter, I will also briefly address Ms Barrett's authority to suspend Ms Neskovic, which she was notified of by the Suspension Letter dated 5 December 2024.
2. Ms Neskovic's application is made pursuant to s 29(1)(j) of the Industrial Relations Act 1979 (WA) (IR Act): 'an industrial matter under the [HS Act, s 171] that is a decision or finding made in relation to an employee or former employee to which Part 11 of [the HS Act] applies'.
3. Section 29(2)(c) of the IR Act provides that, subject to s 29(3), applications made pursuant to s 29(1)(j) of the IR Act 'must be made no later than 28 days after the day on which the decision or finding is made'.
4. Section 171(1) of the HS Act provides that a decision under s 163(3)(b) of the HS Act to take disciplinary action in relation to an employee or former employee is an 'industrial matter' for the purposes of the IR Act.
5. Section 163(3)(b) of the HS Act (see [30] below) provides that if the employing authority finds that the employee has committed a breach of discipline (other than a lawful redeployment breach of discipline), the employing authority must decide to take disciplinary action, improvement action, both disciplinary action and improvement action, or no further action.
6. Section 7(1) of the IR Act defines an 'employing authority' as:

(a) in relation to a public service officer, another employee to whom the Public Sector Management Act 1994 [(PSM Act)] Part 5 applies or a public sector body - has the meaning given in section 5 of [the PSM Act]; or

(b) in relation to a health services employee - has the meaning given in the [HS Act] section 103.

1. Section 103(1)(b) of the HS Act provides that an 'employing authority' in relation to a health service provider, health executive or an employee (other than a chief executive) of a health service provider, means:
   • (i) if the health service provider is a board governed provider - the board; or
   • (ii) if the health service provider is a chief executive governed provider - the chief executive.
2. Sections 104(1) and (2) of the HS Act provide that unless specified in the HS Act or regulations, the PSM Act applies to the administration and management, human resource management and conduct of health service providers and employees under the HS Act, and that a reference in the PSM Act to an 'employing authority' is a reference to an employing authority as defined in s 103 of the HS Act (at [17] above).
3. CAHS is a health service provider established under Part 4 of the HS Act.
4. There is no dispute that CAHS is a 'board governed provider' pursuant to s 103(1)(b)(i) of the HS Act (at [17] above). Therefore, powers conferred on the 'employing authority' under the HS Act vests in CAHS' Board.
5. Section 78A of the HS Act states:

(1) A board may delegate any function of the board under another provision of this Act, including the board's functions as an employing authority, to -

(c) a staff member of the health service provider or another health service provider.

(2) A delegation under this section must be in writing signed by each member of the board.

(3) A person or committee to whom a function is delegated under this section cannot delegate that function.

(4) A person exercising or performing a function that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) Nothing in this section limits the ability of the board to perform a function through an officer or agent.

1. There is no dispute that by paragraph 6(a) of AD-1, CAHS' Board delegated the functions listed in column 2 of AD-2 pursuant to s 78A of the HS Act (at [21] above), to persons occupying a position listed in column 5 of AD-2:
   1. The [CAHS Board], being the employing authority of all employees (other than the Chief Executive) of [CAHS] pursuant to section 103(1)(b) of the [HS Act], hereby:

(a) delegates, pursuant to section 78A of the [HS Act], to the person/s occupying a position listed in column 5 of [AD-2] to perform the functions or powers listed in column 2 of [AD-2], subject to the conditions or restrictions (if any) listed in column 4 of [AD-2], in relation to the following item numbers in column 1 of [AD-2]:

EM02.01 - 02.10, EM03.01 - 03.14, EM04.01 - 04.03, EM06.01 - 06.02, EM07.01 - 07.02, EM08.01, EM09.01 - 09.05, RM10.01 - 10.03, EM11.01 - 11.04, EM13.01 - 13.04, EM14.01 - 14.07, EM21.01 - 21.02, EM22.05, EM23.01 - 23.18; ...

1. Paragraph 5 of AD-1 states: 'A reference to a tier in [AD-2] includes all tiers of a higher level.'
2. AD-2 sets out the delegated authority for Disciplinary Matters under items EM03.01 to EM03.15.
3. Each EM identifies:
   • (a) The function or power delegated (column 2).
   • (b) Any conditions, limitations and restrictions on the exercise of power (column 4); and
   • (c) The tier of the position to which the power is delegated (column 5).
4. As outlined at [6], [8] and [10] above, the parties identified the following EM items as relevant:

Decision to take improvement action or no action in respect of a suspected breach of discipline

In accordance with the Discipline Policy, CAHS Discipline guide, related templates.

N.B. Only exercisable in respect of a person in a position in a lower tier to the authorised officer.

In consultation with Workforce services. The authorised officer must be a designated decision maker.

Determine and notify the disciplinary action of a reprimand to be taken in response to a finding of breach of discipline

In accordance with the Discipline Policy and related templates in consultation with Workforce services. The authorised officer must be a designated decision maker.

N.B. Only exercisable in respect of a person in a position in a lower tier to the authorised officer.

Determine to suspend an employee on full pay, pending a finding of a breach of discipline

In accordance with the Discipline Policy, CAHS Discipline guide, related templates and the Management of Notifiable and Reportable Conduct procedure

In consultation with Workforce services and where relevant, the governance accountability lead for the profession.

The authorised officer must be a designated decision maker.

Notify the employee in writing within 30 days of any finding discipline and or improvement action (excluding dismissal)

In accordance with the Discipline Policy, CAHS Discipline guide, related templates, and the Management of Notifiable and Reportable Conduct procedure.

In consultation with Workforce services and where relevant, the governance accountability lead for the profession.

The authorised officer must be a designated decision maker.

1. While the parties have referred to EM03.02, and it is therefore included in the table at [26] above, I am not persuaded that it applies to the Preliminary Matter.
2. The Suspension Letter dated 5 December 2024 states that it was written 'about a matter that is being dealt with as a disciplinary matter pursuant to Part 11 of the [HS Act]'. Accordingly, it was issued in accordance with s 162(a) of the HS Act:
   1. Options in relation to suspected breach of discipline

If an employing authority of an employee is made aware, or becomes aware, by any means that the employee may have committed a breach of discipline, the employing authority may -

(a) decide to deal with the matter as a disciplinary matter under this Division in accordance with the relevant regulations; or

(i) to take improvement action with respect to the employee; or

1. The use of the word 'or' between s 162(a) and (b) (at [28] above), provides that decisions made under s 162(a) and (b) are made in the alternative to each other: s 17 of the Interpretation Act 1984 (WA) provides that in written law the words 'or', 'other' and 'otherwise' must be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added.
2. Therefore, CAHS having made a decision under s 162(a), means that CAHS' did not make a decision under s 162(b) (see column 3 of EM03.02 at [26] above). Furthermore, CAHS' subsequent decisions in the disciplinary process are decisions under s 163(2) or (3) of the HS Act:

(2) Even though an employing authority decides to act under section 162(a), the employing authority may, at any stage of the process, decide instead that it is appropriate -

• (a) to take improvement action with respect to the employee; or

• (b) that no further action be taken.

(3) After dealing with a matter as a disciplinary matter under this Division -

• (a) if the employing authority finds that the employee has committed a lawful redeployment breach of discipline, he employing authority must take disciplinary action by dismissing the employee; and
• (b) if the employing authority finds that the employee has committed a breach of discipline that is not a lawful redeployment breach of discipline, the employing authority must decide -
  • (i) to take disciplinary action, or both disciplinary action and improvement action, with respect to the employee; or
  • (ii) to take improvement action with respect to the employee; or (iii) that no further action is to be taken.

1. The Suspension Letter performed two functions:
   • (a) Notifying Ms Neskovic of the decision to deal with allegations of a suspected breach of discipline as a disciplinary matter and providing her with an opportunity to respond (s 162(a) decision); and
   • (b) Having decided to deal with the matter as a disciplinary matter under s 162(a), suspending Ms Neskovic on full pay, pending the outcome (s 164(1)(a) decision).
2. Accordingly, and for the reasons at [28]-[31] above:
   • (a) EM03.01 'Decision to deal with a suspected breach of discipline as a disciplinary matter' applies to the function at [31(a)] above. However, EM03.01 was not raised by either party, does not apply to the Final Decision Letter, and is unnecessary to address given EM03.09 applies to the function at [31(b)] above. Therefore, EM03.01 will not be considered any further in these reasons.
   • (b) As CAHS did not make a decision pursuant to s 162(b) of the HS Act, EM03.02 does not apply to the Suspension Letter, nor does it apply to the Final Decision Letter. Therefore, despite the parties referring to EM03.02, it will not be considered any further in these reasons.
   • (c) However, I accept that:

(i) EM03.09 applies to the decision to suspend Ms Neskovic on full pay pending a finding of a breach of discipline in the Suspension Letter.

(ii) EM03.03 applies to both the decision to reprimand, and the notification of the reprimand, in the Final Decision Letter.

(iii) EM03.12 applies to the notification of the improvement action, by way of training, in the Final Decision Letter. Unlike EM03.03 which refers to 'Determine and notify', EM03.12 only refers to 'Notify'. However, an employee will not be notified of the decision to impose improvement action unless the decision to impose improvement action was first made. For this reason, I consider the function of 'determining' the improvement action to be subsumed within the function of notifying the employee in writing of the improvement action under EM03.12.

(d) As outlined at [13] above, Ms Neskovic is, subject to s 29(3) of the IR Act, out-of-time to refer any decision made on 5 December 2024 to the Commission.

(e) Furthermore, the Commission's jurisdiction is confined to hearing and determining an 'industrial matter' outlined in s 171(1) of the HS Act. Relevantly, s 171(1) does not include a decision under s 162(a) to deal with a matter as a disciplinary matter, nor a decision under s 164(1)(a) to suspend an employee or former employee on full pay.

1. As outlined in the table at [26] above, EM03.03, EM03.09 and EM03.12 all indicate that the function in column 2 of those EM items is delegated to a person who holds a Tier 3 position.
2. Further, as outlined in the table at [26] above, EM03.03 is only 'exercisable in respect of a person in a position in a lower tier to the authorised officer'. Ms Neskovic states in her Form 5, that she is employed in the position of Clinical Nurse Manager - CSSD (Senior Registered Nurse Level 4).
3. The 'CAHS Authorisations Tiers Document' in AD-2:
   • (a) Defines Tier 3 as comprising 'Chief, Co-Director, Director, Coordinator of Nursing (excluding community health) and General Counsel'.
   • (b) Defines the position of Clinical Nurse Manager (community health) as falling within Tier 5 and the position of Clinical Nurse Manager (excluding community health) as falling within Tier 4.
4. There is no dispute that Ms Neskovic holds a position that is a lower tier to Tier 3. The 'lower tier' restriction in EM03.03 is therefore satisfied.

Did Ms Barrett hold a position to which the relevant powers were delegated?

1. The evidence of Mr Staples (at [7] above) establishes that on 16 September 2025, Ms Barrett occupied the substantive position of Nurse Director - Child and Adolescent Community Health, which is classified as a Tier 3 position under AD-2. This is not contested.
2. As EM03.03 and EM03.12 each delegate authority to a person occupying a Tier 3 position, I am satisfied that Ms Barrett held a position to which the relevant disciplinary powers were delegated on 16 September 2025.
3. The evidence of Mr Staples (at [7] above), establishes that on 5 December 2024, Ms Barrett occupied the acting position of Executive Director - Child and Adolescent Community Health, which is classified as a Tier 2 position under AD-2. This is also not contested.
4. As EM03.09 delegates authority to a person occupying a Tier 3 position, and given that paragraph 5 of AD-1 provides that authority delegated to a specified tier extends to persons occupying positions of a higher tier (at [23] above), I am satisfied that Ms Barrett held a position to which the relevant disciplinary powers were delegated on 5 December 2024.

1. AD-2 attaches as a condition in column 4 to the exercise of EM03.03 that the 'authorised officer must be a designated decision maker'. The same requirement appears in column 7 ('Comments and Additional Information') for EM03.09 and EM03.12 but does not appear in column 4 for EM03.09 and EM03.12.
2. I am not persuaded that the matters in column 7 carry the same force as those in column 4, for the following reasons:
   • (a) Paragraph 6(a) of AD-1 delegates functions 'subject to the conditions or restrictions (if any) listed in column 4' of AD-2. It makes no reference to column 7. The terms of the delegation in AD-1 are therefore pursuant to columns 2, 4 and 5, with column 7 sitting outside the operative terms of AD-1.
   • (b) The distinction between a column headed 'Conditions, Limitations and Restrictions' and one headed 'Comments and Additional Information' reflects a deliberate drafting choice. The former imposes binding constraints; the latter provides supplementary guidance or commentary.
   • (c) Section 78A(4) of the HS Act (at [21] above) provides that a delegate is taken to act 'in accordance with the terms of the delegation'. The 'terms of the delegation' are set out in paragraph 6(a) of AD-1 and the columns it references. Column 7 is not among them.
3. However, even if column 7 matters are treated as carrying equivalent force to column 4 conditions, would not change the outcome. I find at [48] below, that Ms Barrett was a designated decision-maker at the relevant times. Therefore, the classification of the 'designated decision maker' requirement as a column 4 condition or a column 7 comment, has no practical consequence to the determination of the Preliminary Matter.
4. I note that AD-1 and AD-2 do not define the term 'designated decision maker'. In the absence of a statutory or instrument-specific definition, the term bears its ordinary meaning: a person who has been identified, appointed, or assigned as a decision-maker.
5. The evidence of Mr Staples (at [7] above), establishes that CAHS maintains a formal register of decision-makers, categorised by tier level. Ms Barrett appears on that register in her substantive position as a Tier 3 decision-maker at 16 September 2025, and the acting position Ms Barrett held at 5 December 2024 is listed on that register as a Tier 2 decision-maker. This evidence is uncontested and is sufficient to establish that she was 'designated' within the ordinary meaning of the term.
6. Ms Neskovic did not adduce any evidence that Ms Barrett was not so designated, nor did she challenge the accuracy or authenticity of the register produced as Annexure A to Mr Staples' witness statement. I accept Mr Staples' evidence on this point.
7. I do not accept any suggestion that the term 'designated decision maker' requires a separate, matter-specific written instrument of designation for each disciplinary proceeding. That construction finds no support in the text of AD-1 or AD-2, would impose an impractical administrative burden, and is inconsistent with the structure of the delegation framework which confers authority on classes of position-holders by tier rather than on a case-by-case basis.
8. For the preceding reasons, I am satisfied that Ms Barrett was a designated decision-maker at the relevant times.

Ms Neskovic's arguments concerning the conditions on exercise

1. The substance of Ms Neskovic's challenge to Ms Barrett's authority concerns the conditions attached to the exercise of the EM03 powers, as set out in column 4 of AD-2.
2. As outlined at [6] and [10] above, Ms Neskovic identifies that these conditions include requirements that the authorised officer:

(c) act in accordance with the Discipline Policy, CAHS Discipline guide, and related templates.

1. Condition (b) is addressed at [41]-[48] above, and is satisfied on the evidence.
2. As to conditions (a) and (c) (at [50] above), Ms Neskovic contends that CAHS has not filed evidence demonstrating compliance. She correctly observes that CAHS' assertion at paragraph 35 of its submissions that 'all relevant conditions... were complied with' is a submission, not evidence.
3. Ms Neskovic notes that CAHS did not file a witness statement from Ms Barrett addressing whether consultation with Workforce Services occurred, no statement from any Workforce Services officer, and no contemporaneous records evidencing pre-decision Workforce Services consultation.
4. Ms Neskovic contends that Mr Staples' evidence is confined to decision-maker training and the register.
5. I accept Ms Neskovic's observation that, on the evidence before me, CAHS has not adduced specific evidence demonstrating that consultation with Workforce Services occurred in connection with the decision of 16 September 2025.
6. However, the question I must determine as the Preliminary Matter is whether Ms Barrett had the requisite authority to make the decision.
7. For the reasons that follow, I consider the conditions that Ms Neskovic relies upon do not go to the question of authority.
8. The determination of the Preliminary Matter requires me to distinguish between two concepts:

(a) The existence of authority, i.e. whether the relevant power was validly delegated to a person occupying the position held by Ms Barrett; and

(b) The proper exercise of authority, i.e. whether the conditions regulating how the delegated power is to be exercised were complied with in this particular matter.

1. The delegation of the EM03 powers to Ms Barrett operates by virtue of paragraph 6(a) of AD-1, which delegates the powers in column 2 of AD-2 to persons occupying positions listed in column 5 of AD-2. The language of paragraph 6(a) is significant. It provides that the delegation is made 'to the person/s occupying a position listed in column 5'. Column 5, together with the tier definitions in AD-2, defines the class of persons upon whom authority is conferred. That is the source of Ms Barrett's authority. She possesses it by virtue of occupying a Tier 3 position (and in the case of the decision made on 5 December 2024, a higher Tier 2 position).
2. The conditions in column 4 of AD-2, including the requirement for consultation with Workforce Services and acting in accordance with the Discipline Policy, are expressed as conditions 'subject to' which the delegation is made. They prescribe the process by which the decision is to be made once authority exists. They do not define or limit who has been delegated the power; that function is performed by column 5. A condition that requires an officer to consult with Workforce Services before exercising a power is, by its nature, a condition that presupposes the officer already possesses the power to exercise. One does not consult about the exercise of a power one does not hold.
3. In short, the distinction lies between having authority and exercising it properly.
4. A Tier 3 decision-maker who does not consult with Workforce Services before making a disciplinary decision does not lose the authority to make the decision. Rather, the resulting decision may be susceptible to challenge on the grounds of procedural fairness.
5. To accept Ms Neskovic's contention, that compliance with every condition in column 4 must be demonstrated before authority can be established, would produce the result that no Tier 3 officer possesses any disciplinary authority at any given point in time, unless and until they have, in a specific matter, consulted with Workforce Services and complied with the Discipline Policy. Authority would be simultaneously conferred by column 5 and withheld by column 4 until case-specific steps were taken. That construction would render the delegation instrument internally incoherent. It would also produce the result that a delegate's authority would depend on whether, in each individual matter, they had completed the required procedural steps. That is not how delegation operates. The authority is conferred by the delegation instrument upon the occupant of the position, while the conditions regulate the exercise of that authority.
6. However, even if column 4 conditions are not characterised as going solely to the exercise rather than the existence of authority, the result would be the same due to s 78A(4) of the HS Act (at [21] above).
7. Section 78A(4) provides that a person exercising a function that has been delegated to them under s 78A(1), is taken to do so in accordance with the terms of the delegation unless the contrary is shown. The effect of s 78A(4) is twofold:
   • (a) Firstly, it creates a statutory presumption that Ms Barrett exercised the delegated functions in accordance with the terms of the delegation, including the column 4 conditions.
   • (b) Secondly, it places the onus on Ms Neskovic to show that Ms Barrett did not exercise the delegated functions in accordance with the terms of the delegation.
8. Ms Neskovic has not adduced any evidence that Ms Barrett did not comply with the column 4 conditions. Her submissions refer to an absence of evidence from CAHS demonstrating compliance. However, an absence of evidence of compliance is not evidence of non-compliance. Section 78A(4) provides that, contrary to Ms Neskovic's submissions at [10] above, it is not for CAHS to prove compliance with the matters in column 4 of AD-2. The presumption in s 78A(4) operates unless and until it is rebutted by Ms Neskovic.
9. Ms Neskovic notes that the following section of AD-2 requires the exercise of authority to be documented in writing: (emphasis added)

The following guidelines apply to a person who is exercising a function, duty or power pursuant to an authorisation or delegation. The authorised person must take note of and, where appropriate, adhere to the following guidelines:

Authority is given to specific positions, or classes of positions, not individuals.

Officers exercise authority, in accordance with an authorisation schedule, by virtue of the position they occupy. A person formally appointed to act in a position, or any person whilst occupying a position in an acting capacity, has the authority to exercise the powers, duties and functions of the position they occupy in addition to the powers, duties and functions authorised by an authorisation schedule.

Authority is not to be sub-delegated or sub-authorised

The authority granted to officers in an authorisation schedule is not to be given to others; that is, the authority cannot be further authorised or delegated to another person.

Officers are to exercise authority responsibly, in their own capacity.

Officers are to exercise authority with due care and diligence, and within the limitations of their position and any applicable legislative and policy requirements. Officers are to exercise authority in their own capacity, and not under coercion.

Officers are not to exercise authority where it would create a conflict of interest, or confer a benefit on them personally. In such situations, authority is to be exercised by another person who is able to do so, under an authorisation schedule. For example, an officer may not approve their own overtime, leave etc.

The exercise of authority is to be documented in writing.

When officers exercise authority, in accordance with an authorisation schedule, they are to document the exercise of that authority in writing, under their signature; an email with an officer's signature block is sufficient for this purpose, in most instances.

1. The requirement to document the exercise of authority is a requirement governing how the power is exercised and recorded after the event. It is not a condition precedent to the authority existing. Its terms are satisfied when the officer documents the exercise of authority 'in writing, under their signature', with an email signature block being 'sufficient for this purpose, in most instances'. The AD-2 Guidelines for Authorisations and Delegations (at [67] above) does not prescribe the content of the documentation beyond requiring a written record under the officer's signature. It does not require identification of the specific EM item, recitation of the officer's delegation status, or recording of compliance with column 4 conditions.
2. Ms Barrett exercised her authority by issuing the Final Decision Letter (and earlier, the Suspension Letter), both of which are in writing and bear her signature. Therefore, the AD-2 Guidelines for Authorisations and Delegations (at [67] above) is satisfied in any event.
3. Ms Neskovic submits that the Final Decision Letter does not identify the specific EM item relied upon, does not state that the signatory was a designated decision-maker for the relevant EM03 functions, and does not record that consultation with Workforce Services occurred. CAHS submits that there is no requirement in the HS Act, AD-1, or AD-2 for a disciplinary decision letter to contain this information.
4. I accept CAHS' submission. The purpose of a notification letter under s 167(1) of the HS Act is to inform the employee of the finding as to whether they have committed a breach of discipline, and if so, the action to be taken. Neither s 167(1) of the HS Act, AD-1, nor AD-2 requires the letter to specify the delegation item relied upon, to recite the decision-maker's designation status, or to record compliance with column 4 conditions. Ms Neskovic has not identified any legislative provision or clause in AD-1 or AD-2 to the contrary. The absence of this information from the Final Decision Letter does not bear upon whether the decision-maker had authority to make the decision.
5. Ms Neskovic appears to conflate who may exercise the delegated function, with the conditions that attach to how the delegated function is to be exercised. Who may exercise the delegated function is answered by determining the Tier requirement at column 5, the 'designated decision maker' requirement and the 'lower tier' restriction. They confirm the decision-maker's authority to exercise the delegated function. How the delegated function is to be exercised is answered by reference to consultation with Workforce Services and acting in accordance with the Discipline Policy and documentation, which are case-specific and contingent on the circumstances of each matter. As outlined at [58] above, there is a distinction between the existence of authority and the proper exercise of the authority.
6. I note that the distinction at [58] above does not prevent Ms Neskovic from raising at the substantive hearing that the decision to impose disciplinary action under the HS Act was unfair. However, the Preliminary Matter is confined to whether the decision-maker held the requisite delegated authority. Questions concerning the propriety of the exercise of that authority remain for the substantive hearing.
7. For the reasons above, I am satisfied that Ms Barrett, in her capacity as Nurse Director - Child and Adolescent Community Health (a Tier 3 position), had the requisite authority under AD-1 and AD-2 to make the decision of 16 September 2025 imposing improvement action and disciplinary action on Ms Neskovic, pursuant to items EM03.03 and EM03.12 of AD-2.
8. Although the Preliminary Matter is confined to the decision of 16 September 2025, both parties addressed the authority of the decision-maker to suspend Ms Neskovic on 5 December 2024, pursuant to s 164(1)(a) of the HS Act. For completeness, I note that on that date, Ms Barrett occupied the acting position of Executive Director - Child and Adolescent Community Health, a Tier 2 position. The power to suspend an employee on full pay, pending a finding of a breach of discipline under EM03.09 is delegated to persons occupying Tier 3 positions. As paragraph 5 of AD-1 provides that authority delegated to a specified tier extends to persons occupying positions of a higher tier, Ms Barrett, in a Tier 2 position on 5 December 2024, had authority to exercise the Tier 3 power of suspension. Therefore, there is no issue as to Ms Barrett's authority to suspend Ms Neskovic on 5 December 2024.

1. The Preliminary Matter is determined as follows: The decision-maker, Ms Barrett, had the requisite authority to make the decision imposing disciplinary action on Ms Neskovic on 16 September 2025.
2. Having determined the Preliminary Matter, the following Directions issued on 6 February 2026 ([2026] WAIRC 00071) will apply unless varied:

1. THAT the applicant's referral of the decision imposing disciplinary action on 16 September 2025, be listed for a 3-day hearing not before 1-week following the date of Direction 9 below (Hearing).
2. THAT by no later than 2-weeks following the date of the Commission determining the Preliminary Matter, the applicant file any outlines of witness evidence that she intends to rely upon at the Hearing.
3. THAT by no later than 2-weeks following the date of Direction 6 above, the respondent file any outlines of witness evidence that they intend to rely upon at the Hearing.
4. THAT by no later than 3-weeks following the date of Direction 7 above, the applicant file an outline of the legal submissions that she intends to rely upon at the Hearing.
5. THAT by no later than 3-weeks following the date of Direction 8 above, the respondent file an outline of the legal submissions that they intend to rely upon at the Hearing.