JURISDICTION: South Australian Employment Tribunal

Public Sector Act 2009

HEARING DATE: 28 October 2025, Further written submissions 4 November 2025

JUDGMENT OF: The Honourable President Justice Dolphin

Referral of a question of law - The applicant was issued with what was described as a managerial caution following a complaint that he had used derogatory language to a co-employee when working for the Department for Correctional Services - The caution was issued following an investigation and finding that the applicant had committed an act of misconduct - The Public Sector Act 2009 (the PS Act) permits an aggrieved employee to seek a review by the Tribunal of certain employment decisions and in the case of "prescribed decisions" it empowers the Tribunal to set aside the impugned decision and substitute it with the decision that the Tribunal considers appropriate - Relevantly a "prescribed decision" includes a decision in respect of disciplinary action - The PS Act contains a definition of "disciplinary action" that includes a decision based upon a finding of misconduct - The PS Act also contains another provision under the heading of "Disciplinary action" that identifies being reprimanded, suspended, having remuneration level reduced or having employment terminated as disciplinary action - Following a hearing before a Commissioner the Commissioner made findings of procedural unfairness and referred a question of law to this Full Bench: On the findings made by the Tribunal on 16 May 2025, is it open as a matter of law for the Tribunal to conclude that the respondent's letter dated 23 October 2024 is a "prescribed decision" within the meaning of s 62(8) of the PS Act? - The Department argued that the definition section in the PS Act did not apply to "prescribed decision" and that as the managerial caution was not a reprimand it was not a prescribed decision - The applicant argued that the definition section in the PS Act defined "disciplinary action" for the purposes of defining a "prescribed decision" and that because the managerial caution was made following a finding of misconduct it was a prescribed decision - He also argued that in any event the managerial caution was a reprimand - Held: that as a general proposition a definition section defines what words and phrases mean in an Act and that it would only be in a clear case that some other definition will apply - Held: that the definition of "disciplinary action" contained in the definition section of the PS Act causes no inconsistency or inconvenience if applied to the definition section to "prescribed decision" in that Act such that it applies - Held: that because the managerial caution issued in this case was based upon a finding of misconduct it was a prescribed decision within the meaning of s 62(8) of the PS Act and the question posed is answered accordingly - Public Sector Act 2009, South Australian Employment Tribunal Act 2014.

Winter v Department for Correctional Services [2023] SAET 62

McQuillan v Commissioner for Public Employment (Department of Correctional Services) (1993) 51 IR 356

Public Service Association of South Australia v Commissioner for Public Employment (Department for Correctional Services) [2002] SAIRC 25

Karanastisis v Department for Human Services (SA) [2003] SAIRComm 10

Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130

State of South Australia v McDonald [2009] SASC 219; (2009) 104 SASR 344

_Taylor v Department for Correctional Services [_2025] SAET U/J 2

PMT Partners Pty Ltd (In Liq) v Australian Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301

Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1

1. Any employee may be affected by a range of decisions made in connection with their employment. These can include things such as what work the employee is to perform, what they are to be paid, and whether they are to be transferred, promoted, disciplined or terminated. All employees in this State enjoy some right of external review in connection with some of these decisions, such as whether they are being paid the correct rate of pay and whether their termination from employment was harsh, unjust or unreasonable. But, in the case of employees whose employment is governed by the Public Sector Act 2009 (the PS Act), that right of external review is, with the possible exception of Commonwealth public servants, much more extensive that than which applies to employees generally.
2. In some cases, that right of review includes the right to seek an order from this Tribunal that rescinds the decision and substitutes it with the decision that the Tribunal considers appropriate.[1] In other cases, notwithstanding a finding by the Tribunal that the decision should not be affirmed, all that can be sought is an order remitting the matter back to the relevant agency for further consideration, that may include the Tribunal's directions and recommendations.[2] The defining characteristic as to which alternative is available is whether the decision that is the subject of the review is a "prescribed decision" as defined by s 62(8) of the PS Act. The Tribunal is only empowered to substitute its own decision in connection with prescribed decisions. At the heart of the matter before this Full Bench, is how extensive that right of external review is, in connection with a decision made that the public sector agency is described as a "managerial caution". Is it, or is it not, a "prescribed decision"?
3. That issue arises from the following facts.
4. The applicant, Brendan Taylor, was at all relevant times employed by the Department for Correctional Services (the Department) as a compliance officer and he was bound by and entitled to the rights conferred by the PS Act.
5. In about May 2023, Mr Taylor was working for the Department at its Intensive Compliance Unit (ICU) within the Edwardstown Community Correctional Centre and his duties as a compliance officer included handling stock and equipment. In connection with this role, he worked with others. These included Samuel Peake, Jodie Jacka and Niall Jameson.
6. On 23 May 2023, Mr Taylor was rostered to work on a shift at the ICU with Mr Peake. Mr Peake claimed that during that shift, when he asked Mr Taylor to return "solos" back to stock, Mr Taylor said to him: "not my job, get fucked, not doing it". Mr Peake said that he then told Mr Taylor that if he would not do it, then he would inform the Team Leader. Mr Peake claimed that about 10 minutes later, Mr Taylor stormed past him, threw the equipment into a tub and said loudly as he did so; "there you go you whinging cunt".
7. Towards the end of May 2023, Mr Peake brought this alleged incident to the attention of his line management, following which, on 30 May 2023, the Operations Manager of the ICU, Ms Sheen McMullen, asked Mr Peake whether he was prepared to put his complaint in writing, so that she could formally investigate the matter.
8. Through an email of 7 June 2023, Mr Peake resolved to do so and made a formal the complaint about Mr Taylor's behaviour. Having described the alleged events of 23 May 2023, Mr Peake added that Mr Taylor had been increasingly displaying such behaviour and offensive language when complaining about the workplace, his colleagues, his work duties, and management.
9. On receipt of Mr Peake's email, Ms McMullen contacted Ms Jacka and Mr Jameson for comment.
10. In an email of 14 June 2023, Ms Jacka informed Ms McMullen that she had observed Mr Peak and Mr Taylor in the office having a conversation about returning equipment, but that she continued walking into another room. She said that a short time later, Mr Peake entered shaking his head and looked frustrated. She said that she attempted to assist with the equipment duties required on return to the office, but having received a rude response from Mr Taylor, she returned to the room where Mr Peake and Mr Jameson were located. She said that she then observed Mr Taylor walking back in mumbling under his breath, and that he threw equipment into return tubs and said: "there you go". She added that she heard Mr Taylor call Mr Peake a "whinging 'C' word".
11. In an email of 19 June 2023, Mr Jameson informed Ms McMullen that although he was in the same room as Mr Taylor and Mr Peake, he could not provide any information that Mr Taylor swore at Mr Peake, because he did not hear what was said. He did, however, confirm that Mr Taylor appeared agitated when he returned the "solos" to the box and walked out extremely quickly. Mr Jameson advised Ms McMullen that if she wished to discuss it further, he was happy to do so. Following this they met, and Ms McMullen noted that Mr Jameson said that he did not recall Mr Taylor acting unprofessionally, but it was evident that Mr Taylor and Mr Peake were having issues, and Mr Jameson said to Mr Peake: "don't do anything silly", meaning for him to calm down.
12. In the meantime, Ms McMullen contacted Mr Taylor and arranged to interview him about the complaint and about other unrelated matters.
13. By email dated 4 July 2023, Ms McMullen summarised for Mr Taylor the topics for discussion in the interview that was arranged for 7 July 2023. This included a summary of the misconduct allegation. Ms McMullen advised Mr Taylor that as it would be a formal interview, she was required to caution him regarding his obligation to assist with an investigation, but that he was not required to say anything that may be incriminating.
14. Ms McMullen advised Mr Taylor that he could bring a support person with him and noted that both he and Mr Peake had both informally raised issues with her previously about working together but had subsequently mutually agreed to work together professionally.
15. In due course, the interview took place. Following the interview, no transcript was produced. It seems none was sought, although it was recorded. The following is taken from a summary of the recording that was made by the Commissioner that heard Mr Taylor's application for review.
16. At the commencement of the interview, Ms McMullen noted that the meeting was due to a formal complaint and that Mr Taylor was not fully aware of the complaint as he did not have access to his emails, having been on rostered days off.
17. When the allegations were put to Mr Taylor, he stated that he could not specifically recall the allegations. But he added that he felt that Mr Peake would push his buttons, and he acknowledged that he may have reacted in a way that was not him and said that he wished he could apologise. He acknowledged that he would have been flustered and flat out under pressure. He queried why his colleagues did not call him out on his behaviour, if it had occurred, and had given him the opportunity to say sorry.
18. Ms McMullen noted that Mr Peake had advised her that if it had happened just in front of him, he would have probably pulled Mr Taylor up on it, but decided to report it because the language had been used in front of a female staff member. She said that in her view it was irrelevant whether the language was used in front of male or female colleagues.
19. Mr Taylor commented that he was disappointed in himself. Ms McMullen advised Mr Taylor that Mr Peake had said he would be happy with an outcome of his complaint being just sitting down with Mr Taylor and McMullen to "clear the air". Mr Taylor also suggested the possibility of demonstrating his apology to Ms Jacka in some way and again referred to the stressors he was dealing with at the time.
20. Ms McMullen was empathetic and noted that staff had informally reported concern for Mr Taylor's welfare to her, particularly with heightened responses to minor issues. Mr Taylor acknowledged his frustrations and said that he was trying to implement coping strategies with his psychologist but suggested that staff like his team leader could have come to him and have an informal chat with him about their concerns. Ms McMullen noted Mr Taylor was diligent and helpful in his role and that staff were coming to her from a place of concern.
21. Ms McMullen confirmed that she was reviewing measures and ideas for improvements in the team, and she was trying to stamp out negativity. Mr Taylor noted that he often came up with ideas and solutions and that he wanted to help others. Ms McMullen confirmed she had offered to mediate between Mr Taylor and Mr Peake in the past with issues, but they had cleared the air between themselves. Noting that Mr Peake was happy to meet again, Ms McMullen said that she could sit down with them, but that she would have to check with Ms Jacka if she would be comfortable with this. However, she advised Mr Taylor that she would have to report the matter and could not guarantee any outcome. Ms McMullen summarised how she would report the interview. Mr Taylor repeated his desire to apologise for his behaviour.
22. After the interview was completed, Ms McMullen provided a report for the Department's Chief Executive Officer. She did so by a Minute dated 25 July 2023. In it she outlined her site investigation into the complaint and her assessment of the evidence, including a brief summary of the interview with Mr Taylor. She noted that it would be open to determine that Mr Taylor did use inappropriate, unprofessional and disrespectful language to his colleague, and recommended that consideration be given as to whether there should be any formal disciplinary action.
23. The Minute was sent to the Chief Executive, via the Department's Office for Correctional Services Review. In recommending that any further progress be considered, that Office noted that because Mr Taylor was not cautioned at the commencement of the interview, that might have been a procedural flaw.
24. It would appear that that concern was not acted upon and on 16 August 2023, the Chief Executive referred the matter to the Department's Executive Director, Mr Ryan Harber, for action that included a notation that should he consider disciplinary action is necessary, Mr Harber was delegated with the requisite authority.
25. Presumably, Mr Harber did not regard the matter as pressing, because it was not until nearly seven months later, on 7 March 2024, that he sent a letter of allegations to Mr Taylor outlining the particulars and giving him an opportunity to respond.
26. A few weeks later, on 2 April 2024, Mr Taylor's lawyers wrote to Mr Harber requesting further discovery including the audio and transcript of Mr Taylor's interview. Thereafter was an exchange of correspondence during which it was revealed that the interview was not transcribed and belatedly a recording of the interview was provided by the Department to Mr Taylor's lawyers.
27. Following the receipt of Mr Taylor's response, by letter dated 8 August 2024, Mr Harber advised Mr Taylor that he found the alleged misconduct proven and that it was his intention to issue a managerial caution rather than impose a disciplinary sanction. The letter noted that a managerial caution is not deemed a disciplinary sanction pursuant to s 55 of the PS Act, although the outcome letter would be retained on Mr Taylor's personnel file. We will set out the text of s 55 of the PS Act shortly.
28. On 21 August 2024, and in accordance with his rights under the PS Act, Mr Taylor sought internal review of the findings of misconduct. Following this, the Department engaged an external HR consultant to undertake the review. By report dated 23 September 2024, the consultant, whilst acknowledging it was reasonably open to Mr Harber to make the relevant employment decision, stated that in her view, there were issues around procedural fairness and that Mr Harber should have considered for himself the content of the interview, by listening to it. She therefore recommended halting the process and only recommencing it, once Mr Taylor's interview had been taken into account.
29. Following this Mr Harber listened to the interview and by letter dated 23 October 2024, marked "Private and Confidential", he advised Mr Taylor that having done so he was not persuaded to alter his course of action. In the letter Mr Harber cautioned Mr Taylor regarding his conduct and reminded him of the requirement to treat other persons with respect and courtesy at all times. The letter then stated: "This letter will serve as a record of my findings and decision, and a copy will be retained on your personnel file."
30. Again, Mr Taylor sought internal review. By undated report, a different internal reviewer provided an assessment of the decision. The internal reviewer described that Mr Taylor had been "reprimanded", being the least severe form of a sanction, and that it was proportionate to the proven conduct. She concluded that it was reasonably open to issue Mr Taylor with a managerial caution.
31. By letter dated 10 December 2024, Mr Taylor was advised of the outcome of the internal review. Shortly thereafter, on 20 December 2024, Mr Taylor sought external review by the Tribunal, as was his right under s 62(1) of the PS Act. This in turn resulted in a hearing before a Commissioner
32. In that hearing, Mr Taylor submitted that the Department's decisions were procedurally flawed. He submitted that the recorded interview was flawed and inadmissible because he was not cautioned at any stage during the interview. He added that a transcript of his interview was not provided and that during requests for relevant materials, the Department was errantly uncooperative.
33. Having stated that he could not recall using the language complained of Mr Taylor denied any assertion of aggression towards Mr Peake. He then made the point that that the workplace within ICU was toxic and harmful as evidenced by the decision of Calligeros DPJ in Winter v Department for Correctional Services.[3] In that case Calligeros DPJ commented that the evidence submitted by the parties suggested the use of derogatory language was not uncommon in the ICU and was largely condoned by the Department.
34. Mr Taylor submitted that the Department's approach to the alleged misconduct was disproportionate. He submitted that a managerial caution is a prescribed decision. Having noted that s 62(8) of the PS Act relevantly defines a prescribed decision as "a decision to take disciplinary action",[4] he argued that the phrase should be interpreted broadly.
35. The overarching submission of the Department was that its decisions were not harsh, unjust or unreasonable.
36. It denied that there was any want of procedural fairness. It submitted that whatever flaws may have been identified in the initial internal review, they were remedied because the delegate listened to the hour-long interview before final confirmation of the decisions occurred.
37. The Department denied Mr Taylor's assertion that his workplace was toxic. It denied that derogatory language is common practice in the workplace and denied that the use of such language was condoned.
38. As to the characterisation of the decision, it submitted that the managerial caution issued to Mr Taylor would remain on his file for two years, whereas a record of a disciplinary sanction remains on an employee's file for ten years.[5] It submitted that the relevance of a managerial caution was that if Mr Taylor was to display the same type of misconduct within the next two years, the imposition of a managerial caution would be relevant to the question of whether, and if so what sanction would then be imposed, in the sense that he had been given leniency the first time.
39. In support of its submission that the managerial caution was not a "prescribed decision" the Department argued that s 55 of the PS Act provides an exhaustive list of disciplinary action available in the public sector that informs what is meant by "a decision to take disciplinary action" in s 62(8)(a) of the PS Act.
40. To put this into context we set out the following extracts from the PS Act.
41. Section 3 of the PS Act relevantly provides:

(1) In this Act, unless the contrary intention appears-

employment decision means an administrative decision relating to the employment of a person, including an administrative decision relating to the engagement, promotion, transfer, remuneration, entitlements or termination of employment of a person and a decision to take disciplinary action against a person;

administrative decision means:

(a) a decision; or

(b) failure or refusal to make a decision,

in the exercise or purported exercise of administrative authority;

disciplinary action means action against an employee of a public sector agency on the ground of the employee's misconduct;

misconduct means -

(a) a breach of a disciplinary provision of the public sector code of conduct while in employment as a public sector employee; or

(b) other misconduct while in employment as a public sector employee,

(b) suspend an employee of the agency from duty without remuneration or accrual of leave rights for a specified period,

(a) reduction of the remuneration level of an employee under section 53; or

(b) termination of an employee's employment under section 54.

A public sector agency may, in conjunction with taking disciplinary action -

(a) assign an employee to different duties or to a different place under section 47; or

(b) transfer an employee to other employment under section 9.

(2) Nothing prevents a public sector agency from taking more than 1 form of disciplinary action against an employee for misconduct.

(a) must examine the decision on the evidence or material before the agency, but may, as it thinks fit, allow further evidence or material to be presented to it; and

(b) must determine whether, on the balance of probabilities, the decision is harsh, unjust or unreasonable, and

(c) may -

(i) affirm the decision;

(ii) in the case of a prescribed decision - rescind the decision and substitute the decision with a decision that the body considers appropriate (including a decision restoring any entitlements lost up to the time of the decision);

(iii) remit matters to the agency for consideration or further consideration in accordance with any directions or recommendations of the body.

1. Section 62(8) of the PS Act states that a "prescribed decision" means:

(b) any decision to reduce an employee's remuneration level; or

(c) a decision to transfer an employee, or to assign an employee to different duties or a different place, made in conjunction with a decision to take disciplinary action or reduce an employee's remuneration level; or

(d) a decision to transfer an employee, or to assign an employee to a different place, that reasonably requires the employee to change his or her place of residence.

1. The Department relied upon authorities[6] which it submitted suggest the PS Act and other public sector legislation provide a complete code, including in relation to disciplinary matters. The Department maintained its position that exercising discretion to deal with the matter "managerially" is not a form of disciplinary action.
2. The Commissioner accepted Mr Taylor's submission that the process that led to the relevant decisions was procedurally flawed in a way that vitiated the relevant decisions. She reasoned:

In many respects, the commencement of disciplinary process complied with the requirement of procedural fairness. Ms McMullen was timely in her investigation and sought information from relevant witnesses. However, the procedural flaws apparent in this matter were noted during internal review. These flaws relate to the interview of Mr Taylor and the subsequent delay in consideration of what Mr Taylor said in his interview during the latter stages of the disciplinary process managed by Mr Harber.

Having chosen to interview Mr Taylor, notwithstanding the evidence provided by Mr Peake, Ms Jacka, and Mr Jameson, the respondent failed to follow the Guideline and transcribe the interview. Further, while the email dated 4 July 2023 advising Mr Taylor of the allegations noted the requirement for him to be cautioned, it is clear from the commencement of the interview that he had not had access to this email, and that the interview was arranged via telephone with Ms McMullen. In the absence of a caution being given in the interview, I am not satisfied that Mr Taylor understood the formality in approach to the conduct alleged and that he was under no obligation to answer the questions put to him in the circumstances.

Furthermore, the interview covered many topics. These included both work and non-work related events. During the interview, Mr Taylor is audibly upset discussing the traumatic impact some of these events have had on him.

In my view, the combination of an interview covering multiple topics and the tenor of the interview becoming one of concern for Mr Taylor's wellbeing has created a real risk of conflating a disciplinary process with a performance management discussion or employee wellbeing review. This is particularly so, given that Mr Taylor had not had the advantage of reading Ms McMullen's email notification of her request to interview him with regards to the complaint, which may have provided some indication of the degree of seriousness within which the alleged conduct was being viewed.

Additionally, the summary of the interview provided during the disciplinary process by Ms McMullen did not capture the nuances of Mr Taylor's responses and the deeply emotional and serious impact Mr Taylor's employment duties were having on him.

I find that the flaws with respect to Mr Taylor's interview, and most significantly the omission of Mr Taylor's interview being placed before the decision-maker prior to a decision being made, has resulted in a practical injustice to Mr Taylor.

A decision-maker hearing the interview or reading a full transcript prior to forming any view on misconduct, combined with the ultimate delay in concluding the process and the awareness that some procedural irregularities had occurred, may have decided to take no action at all in the circumstances or to approach the issue in a less formal manner. This is particularly so given the information available suggests that ordinarily, Mr Taylor was a diligent employee and supportive to his colleagues. Further, there appears to be a concession that a hypersensitive reaction to minor issues at work had already been raised by colleagues with management out of concern for Mr Taylor, yet no information has been provided to suggest that he was being provided with support in the workplace.

In my view, the significance of the procedural flaws with respect to Mr Taylor's interview could not be adequately remedied by the same decision-maker listening to the interview after the fact. A fair-minded observer may reasonably think that the decision-maker did not bring an impartial mind to the decision.

Accordingly, the procedural flaws render both decisions unreasonable.[7]

1. Having reached this conclusion, the Commissioner then had to deal with the competing arguments as to characterisation of the employment decisions. Although not expressly stated, we suspect that the Commissioner was mindful that the proper characterisation of a "managerial caution" is a significant issue and that in conformity with the expectation that parties to a review before the Tribunal are not legally represented,[8] she did not have the benefit of submission's from counsel addressing this important issue and that whatever decision she might make in respect of it, could not be the subject of an appeal to a Full Bench of the Tribunal.[9]
2. Be that as it may, the Commissioner decided to exercise the power conferred upon her by s 22(1) of the South Australian Employment Tribunal Act 2014 (the SAET Act) to a question of law to the Full Bench.
3. Following the Commissioner's advice that she intended to refer a question of law the parties conferred and made a joint submission to the Commissioner that the following questions should be the subject of the referral:
   1. For the purposes of the Public Sector Management Act 2009, is it possible as a matter of law for a public sector agency, after making findings of misconduct, to issue in writing to the employee a managerial caution that does not fall within the meaning of a "prescribed decision" in s 62(8) of the PS Act?
   2. On the findings made by the South Australian Employment Tribunal on 16 May 2025, is it open as a matter of law for the Tribunal to conclude that the Department for Correctional Services' letter dated 23 October 2024 is a "prescribed decision" within the meaning of s 62(8).
   3. If the answer to question 2 is "yes", is the Tribunal required as a matter of law to so conclude?
4. As it was, the Commissioner resolved not to act upon the joint submission and instead issued the referral in the following terms:

On the findings made by the South Australian Employment Tribunal on 16 May 2025, can the Tribunal conclude as a matter of law, that the Department for Correctional Services letter dated 23 October 2024, described as a "managerial caution", is a prescribed decision within the meaning of s 62(4)(c)(ii) and (8)(a) [being "a decision to take disciplinary action"] of the Public Sector Act 2009.

1. In the hearing before us, counsel for the Department was critical of the Commissioner's formulation of the question of law. He noted that in a series of recent decisions the Court of Appeal has been at pains to point out the importance of carefully articulating the question of law. He raised specific concern about the Commissioner's use of the word "can" in submitting that the Full Bench's answer might not necessarily resolve the issues between the parties. He submitted that this Full Bench should reformulate the question to read as follows:
   1. For the purposes of the PS Act, is it possible as a matter of law for a public sector agency, after making findings that an employee has engaged in misconduct, to issue in writing to the employee a managerial caution that does not fall within the meaning of a "prescribed decision" in s 62(8) of the PS Act?
   2. On the findings made by the Tribunal on 16 May 2025, is it open as a matter of law for the Tribunal to conclude that the respondent's letter dated 23 October 2024 is a "prescribed decision" within the meaning of s 62(8) of the PS Act?
   3. If the answer to question 2 is "yes", is the Tribunal required as a matter of law to so conclude?
2. Both counsel in the hearing before us agreed that we should construe the question referred by the Commissioner as if it reads in the form of Question 2 set out in the preceding paragraph. In our view that is the only question that we should answer.
3. In contending that on the Commissioner's findings its letter of 23 October 2024 is not a "prescribed decision" within the meaning of s 62(8) of the PS Act, the Department's counsel, Mr Garnaut, commenced by noting that the definition section in the PS Act, s 3, commences with the words "unless the contrary intention appears".
4. He took us to the definition of "disciplinary action" and submitted that in using the expression "an action against an employee of a public sector agency on the ground of the employee's misconduct" it was evident that the legislature was focussing on the end point of the disciplinary process and not the process itself. Hence, he said that it is not concerned with issues such as how the investigation was conducted or whether there were any shortcomings in terms of procedural fairness. He then made the point that the precipitating element is action taken on the ground of "misconduct".
5. He then focussed upon s 55 of the PS Act, noting that it contains the heading "Disciplinary Action". He submitted that properly construed, the section defined disciplinary action as comprising of one of four things, being action to reprimand the employee or suspend the employee, as provided by s 55(1)(a) and (b) or action to reduce the employee's remuneration level, or terminate the employee's employment, as provided by the note to s 55(1).
6. He submitted that two things flowed from this. The first was that s 55 of the PS Act discloses "the contrary intention" as contemplated by s 3 of that Act thus enabling it to supplant the wider definition of "disciplinary action" contained in s 3. Second, that s 55 informs what is meant by the expression "a decision to take disciplinary action" as provided for by s 62(8) of the PS Act in defining what is a "prescribed decision".
7. In other words, on his argument, despite the breadth of the definition of "disciplinary action" contained in s 3 of the PS Act, which would extend to what happened to Mr Taylor, because the so-called managerial caution issued to him was predicated upon a finding of misconduct, that definition does not apply to s 62(8). He argues that the definition that does apply to that sub-section is the narrower one provided for by s 55 and that as Mr Taylor was not reprimanded, suspended, had his remuneration level reduced or had his employment terminated, there was no prescribed decision for the purposes of s 62(8) of the PS Act.
8. In putting this submission, Mr Garnaut accepted that the agency's characterisation of its decision was not decisive and that in a case such as this, it was for the Tribunal to determine whether that action taken was or was not a reprimand. But he submitted that on the facts, this was not a reprimand. By reference to the Macquarie Dictionary, he submitted that a reprimand was a severe formal reproof, which he said this was not. He added that a reprimand would not be expected to have been delivered in a letter marked private and confidential.
9. Mr Boisseau, counsel for Mr Taylor, submitted that the Department's focus upon s 55 of the PS Act was an unnecessary distraction and that it was plain that the expression "disciplinary action" as it appears in s 68(2) of the PS Act derives its meaning from the definition section in that Act, such that if the action taken is founded upon a finding of misconduct, the decision is a prescribed decision.
10. He submitted that when an Act contains statutory definitions, a Court should be slow to conclude that some meaning other than that provided for by a statutory definition applies. He referred us to the joint judgment of Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (In Liq) v Australian Parks and Wildlife Service (PMT Partners),[10] where they spoke of the fundamental importance of construing statutory definitions in accordance with "their natural and ordinary meaning unless some other course is clearly required".[11]
11. He submitted that there was nothing in s 55 of the PS Act or elsewhere in that Act that compelled that other course. He submitted that the fact that s 55 of the PS Act contained the heading "Disciplinary action" did not disclose the intention that it provided an overarching definition of that expression, especially in light of an express definition of that expression elsewhere in that Act and moreover, had the legislature intended that actions of the type envisaged by s 55 were "prescribed decisions" for the purposes of s 62(8) of the PS Act, it might have been expected that it would have said so. He added that the Department's case placed incorrect weight upon s 55, which is not referred to anywhere in s 62 or the definition section of the PS Act, and which relies upon a mere note to s 55(1).
12. He then submitted that in any event, the so called "managerial caution" was in fact a reprimand as it was based on a finding of misconduct and it was a formal rebuke that was placed upon Mr Traylor's personnel file.

1. It is not necessary for us to determine whether the managerial caution that was issued in this case was a reprimand as contemplated by s 55 of the PS Act, because we have come to the conclusion that because the caution was issued upon a finding of misconduct, it was disciplinary action for the purposes of s 62(8) of the PS Act.
2. In Independent Commission Against Corruption v Cunneen,[12] Gaegler J (as he then was) by reference to PMT Partners, made the point that a "statutory definition is ordinarily framed in language chosen for the grammatical meaning it conveys" and that "[t]he definition of a term is the creation of the most basic building block of a statutory structure."[13] Thus, the circumstances where the statutory definition must yield to some other definition must be regarded as rare and only in a clear case.
3. On its face, s 55 of the PS Act appears to do no more than prescribe the types of action that a public sector agency may take under the rubric of disciplinary action. If it was intended to provide an exhaustive list of what disciplinary action that a public sector agency can take, it might have been expected to have made that clear. If it was intended to specify those disciplinary decisions that are prescribed decisions for the purposes of s 62(8) of the PS Act, again, it might have been expected to have made that clear.
4. To apply the statutory definition of "disciplinary action" provided by s 3 of the PS Act to s 62(8) of that Act does not cause any obvious inconsistency or inconvenience. Quite to the contrary, it creates a relatively bright line to determine whether in respect of action taken by a public sector agency directly affecting a public sector employee, the decision to take that action is a prescribed decision. If the action that has been taken is on the ground of the employee's misconduct, it is disciplinary action, such that the decision to take it is a prescribed decision.
5. In contrast to this, the Department's suggested construction could lead to uncertainty. There being no common law or statutory definition of "reprimand", it might be necessary, on a case by case basis, as would be the situation here, to determine whether the sanction imposed was sufficiently severe or formal as to warrant characterisation as a reprimand as contemplated by s 55 of the PS Act and therefore constitute a prescribed decision for the purposes of s 62(8) of that Act.
6. Moreover, it should not be regarded as surprising that the legislature has given this Tribunal the power to rescind a decision to take disciplinary action, as defined by s 3 of the PS Act, in circumstances where the action falls short of being a reprimand. That statutory definition is predicated upon the decision being made on the ground of the employee's misconduct. The agency's finding of misconduct is a stain on an employee's record and reputation. It might undermine the employee's confidence and self-belief. It might adversely affect the employee's prospects of promotion. If it should not have been made, it should be capable of being rescinded. If the misconduct is of a trivial nature or there are other extenuating circumstances that establish that even a managerial caution is harsh, unjust or unreasonable, it might be thought to be reasonable to give the Tribunal the power to make what it considers is, in all the circumstances, the appropriate decision.
7. Accordingly, in answer to the question:

On the findings made by the Tribunal on 16 May 2025, is it open as a matter of law for the Tribunal to conclude that the respondent's letter dated 23 October 2024 is a "prescribed decision" within the meaning of s 62(8) of the PS Act?

1. The matter should now be remitted to the Commissioner to make such orders as she considers appropriate in light of this answer.

[1] Section 62(4) (c)(ii) of the PS Act.

[2] Section 62(4) (c)(iii) of the PS Act.

[3] [2023] SAET 62 [95].

[5] General Disposal Schedule No 30 Version 2 issued under the State Records Act 1997.

[6] McQuillan v Commissioner for Public Employment (Department of Correctional Services) (1993) 51 IR 356; PSA v Commissioner for Public Employment (Department for Correctional Services) [2002] SAIRC 25 [15]; Karanastisis v Department for Human Services (SA) [2003] SAIRComm 10 [29]-[30]; Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; State of South Australia v McDonald [2009] SASC 219; (2009) 104 SASR 344.

[10] [1995] HCA 36; (1995) 184 CLR 301.

[12] [2015] HCA 14; (2015) 256 CLR 1.