40Appeals against promotions or directions to act

#### 40 Appeals against promotions or directions to act (1) An employee who considers that: (a) he should have been promoted to a vacant position in the Railway Service in preference to an employee promoted to that position; or (b) he should have been directed temporarily to perform the duties of a position having a higher classification than the position held by him in preference to the employee directed temporarily to perform those duties; may appeal against the promotion or direction, as the case may be. (2) Subsection (1) does not authorize an employee to appeal against a direction that another employee temporarily perform the duties of a position for a period that does not exceed 1 month. (3) Upon an appeal or appeals being made against a promotion to a vacant position or against a direction temporarily to perform the duties of a position, a Promotions Appeal Board shall make a full inquiry into the claims of the appellant or appellants and into the claims of the employee promoted to the vacant position or of the employee directed temporarily to perform the duties of the position, as the case may be, and determine the appeal or appeals. (4) The by‑laws may make provision for and in relation to the grounds on which, the manner in which, and the time within which, an appeal may be made under this section and for and in relation to the conduct of inquiries by Promotions Appeal Boards, including provision for a Promotions Appeal Board to act as a central Promotions Appeal Board to determine an appeal, in a case where all the parties to the appeal do not perform their duties in the same State or Territory, after examining reports made to it by 2 or more other Promotions Appeal Boards and making such further inquiries (if any) as it thinks necessary into the claims of all the parties to the appeal. (5) Where an appeal is allowed, the Commission shall: (a) in the case of an appeal against a promotion to a vacant position—cancel the promotion and promote the appellant to the vacant position; or (b) in the case of an appeal against a direction temporarily to perform the duties of a position—cancel the direction and direct the appellant temporarily to perform the duties of the position. (6) Where there are 2 or more appellants in respect of one promotion to a vacant position or one direction temporarily to perform the duties of a position, the Promotions Appeal Board determining the appeals shall, if it considers that 2 or more appellants have established the grounds of their appeals, allow the appeal of 1 only of those appellants, being the appellant whom it considers to have the best claim to promotion to the vacant position or to the direction temporarily to perform the duties of the position, as the case may be. (7) Where, in respect of a promotion or a direction, an appeal has, or appeals have, been duly made but the appeal or each of the appeals has been disallowed or has become inoperative, the Commission shall confirm the promotion or the direction appealed against. (8) For the purposes of this section, an appeal shall be taken to have become inoperative if: (a) the appeal is withdrawn; (b) the appellant ceases to be an employee; or (c) the appellant ceases, by reason of the confirmation of his promotion to another position or for any other reason: (i) in the case of an appeal against a promotion to a vacant position—to be eligible for promotion to that position; or (ii) in the case of an appeal against a direction temporarily to perform the duties of a position—to be eligible to be directed temporarily to perform those duties.