Second Appeals for Same Position Struck Out

The Transport Appeal Boards decided that they lacked jurisdiction to hear second appeals for the same position, striking out the appeals of unsuccessful applicants who did not appeal the initial appointment.

Transport Appeal Boards New South Wales Medium Neutral Citation: [NAME] & others v [NAME] [2011] NSWTAB 20 Hearing dates: 12 September 2011 Decision date: 12 September 2011 Jurisdiction: Civil Before: Bishop C (Board) Decision: Appeals struck out Catchwords: JURISDICTION: Rights of appeal where a second and subsequent appointment arises for the same position.

HELD: no right of appeal - only exception where eligibility list activated for first time appointment - appeals struck out. Legislation Cited: Transport Appeal Boards Act 1980 Category: Principal judgment Parties: [NAME] (Appellants) [NAME] (Respondent) Representation: [NAME] (Appellants) [NAME] (Respondent) [NAME](s): TAB 1113, 1115, 1118, 1119, 1126, 1127, 1128, 1135, 1137, 1141 & 1230 of 2011

DECISION

Introduction 1This matter concerns the following: * Appeals by [NAME] (TAB11/1113) and [NAME] (TAB11/1128) against the decision of [NAME] to appoint [NAME] to the position of Crew Support Officer; * Appeals by [NAME] (TAB11/1115), [NAME] (TAB11/1119), [NAME] (TAB11/1127), [NAME] (TAB11/1135) and [NAME] (TAB11/1230) against the decision of [NAME] to appoint [NAME] to the position of Duty Manager Level 1, [NAME]; * Appeals by [NAME] (TAB11/1119), [NAME] (TAB11/1126) and Suresh Madala (TAB11/1141) against the decision of [NAME] to appoint [NAME] to the position of Duty Manager Level 1, [NAME]; and, * Appeals by [NAME] (TAB11/1137) and [NAME] (TAB11/1142) against the decision of [NAME] to appoint [NAME] to the position of Customer Service Team Leader, North Ryde PMR.

Issue(s) 2RailCorp contends that the Board lacks jurisdiction to hear the appeals and as a result they should be struck out.

Background

Appeals against the appointment of [NAME] to the position of Crew Support Officer. 3Hardeep [NAME] and [NAME] applied for the position of Crew Support Officer. On 30 March 2011 [NAME] notified them by email that their applications were unsuccessful and that [NAME] (and two other persons at other nominated locations) had been selected for appointment to the position of Crew Support Officer Flemington and also advised them of their appeal rights (Exhibit 1-2). 4The two appellants did not file appeals to the Transport Appeal Boards within 21 days of 30 March 2011. 5On 20 to 21 June 2011 the Board heard a number of appeals against [NAME] for the position of Crew Support Officer at Flemington and by decision issued on the 21 June 2011 allowed an appeal (TAB11/962) against [NAME]'s recommendation to appoint [NAME] to the position of Crew Support Officer, Flemington (Exhibit 1-3) 6Following the Board's decision, [NAME] placed [NAME] on the eligibility list for the position in accordance with section 7.13 of the Recruitment Selection and Appointment Procedure (Exhibit 1-4). 7RailCorp subsequently activated that eligibility list for an additional Crew Support Officer vacancy at Flemington in accordance with section 6.4 of the Recruitment Selection and Appointment Procedure and selected [NAME] for appointment to the additional position of Crew Support Officer Flemington. 8RailCorp notified the two appellants of its recommendation to appoint [NAME] to the position of Crew Support Officer Flemington, by email dated 2 August 2011, which also advised them as to their rights of appeal (Exhibit 1-5). 9The two appellants filed their Notices of Appeal against [NAME]'s decision to recommend the appointment of [NAME] on 10 and 20 August 2011 respectively.

Appeals against the appointment of [NAME] and [NAME] to the positions of Duty Manager Level 1, [NAME] and [NAME] respectively. 10On 17 September 2010 [NAME] advertised for the position of Duty Manager Level 1 ("DM1") at various listed locations (Exhibit 2-2). Applicants were asked to select the locations for which they were applying in their online applications (Exhibit 3-3). 11On 15 April 2011 [NAME] notified by email all unsuccessful applicants, including the six appellants listed above, and also advised them of their appeal rights (Exhibit 3-4). 12A number of unsuccessful applicants lodged appeals with the Transport Appeal Boards (as currently constituted), which were heard on 18 July 2011. By decision of the Board issued on 19 July 2011 an appeal was allowed against [NAME] (TAB11/986) and an appeal was allowed against [NAME] (TAB11/1003). All other appeals were disallowed (Exhibit 3-5). 13Following the Board's decision, [NAME] placed [NAME] and [NAME] on the eligibility list for the position in accordance with section 7.13 of the Recruitment Selection and Appointment Procedure. (Exhibit 3-6). 14RailCorp subsequently activated that eligibility list in accordance with sections 6.4 of the Recruitment Selection and Appointment Procedure for DM1 positions at the locations of [NAME] (which had not been filled) and [NAME] for appointment to the position of [NAME] and [NAME] for appointment to the position of [NAME]. 15RailCorp notified the six Appellants (listed above) of its recommendation to appoint [NAME] to the position of [NAME] and [NAME] to the position of [NAME] by email dated 10 August 2011 (in the same terms as the earlier email)(Exhibit 3-7). 16The six appellants filed their Notices of Appeal against [NAME]'s recommendations to appoint [NAME] and [NAME] to the positions of [NAME], respectively, within 21 days from 10 August 2011.

Appeals against the appointment of [NAME] to the position of Customer Service Team Leader, North Ryde PMR. 17The two appellants (as listed above) applied for the position of Customer Service Team Leader North Ryde, and on 15 April 2011 [NAME] notified them by email that their applications were unsuccessful. The email also informed them that [NAME] had been selected for appointment to the position of CSTL Macquarie University and that [NAME] had been selected for appointment to the position of CSTL North Ryde. The email also advised them as to their appeal rights (Exhibit 2-2). 18The two appellants did not file appeals in the Transport Appeal Boards against either [NAME] for the position of CSTL Macquarie University or [NAME] for the position of CSTL North Ryde within 21 days of 15 April 2011. 19Nazrul [NAME] filed appeals TAB11/1006 and TAB11/1028 for the position of CSTL Qualified Wynyard (which were lapsed and disallowed respectively). 20Appeals against [NAME] for the position of CSTL North Ryde were lapsed under s.22 of the Transport Appeal Boards Act 1980 when Mr [NAME] declined [NAME]'s offer for that position. 21On 22 July 2011 the Board, as currently constituted, heard appeals against [NAME]'s recommendation to appoint [NAME] for the position of CSTL Macquarie University. By decision of 25 July 2011 the Board allowed an appeal (TAB11/968) against the recommendation to appoint Mr [NAME] to the position of CSTL Macquarie University (Exhibit 2-3). 22Following the Board's decision, [NAME] placed Mr [NAME] on the eligibility list for the position in accordance with section 7.13 of the Recruitment Selection and Appointment Procedure. 23RailCorp subsequently activated the eligibility list in accordance with sections 6.4 of the Recruitment Selection and Appointment Procedure for the position at North Ryde as it was declined by [NAME] and selected Mr [NAME] for appointment to the position of CSTL North Ryde. 24By email dated 10 August 2011, [NAME] notified the two appellants of its recommendation to appoint Mr [NAME] to the position of CSTL North Ryde (Exhibit 3-5). 25The two appellants filed their Notices of Appeal against [NAME]'s recommendation to appoint Mr [NAME] on 28 and 30 August 2011 respectively.

Respondent's Submissions on Jurisdiction 26RailCorp submitted that a number of the appellants had the opportunity to lodge appeals against the recommended appointee(s) (as listed above) when they received the first email notifying them that were unsuccessful and advising of [NAME]'s recommendation to appoint the nominated person(s) and they chose not to exercise their appeal rights at that time. The appointees duly participated in the appeals process, as was required of them. 27RailCorp submitted that it was not the intention of the legislation for recommended officers to be subjected to the appeals process for the same position on more than one occasion. 28Further, the appeals process also involved a significant amount of administration by [NAME] and the parties. To hear appeals such as those of the appellants would allow unnecessary duplication and inefficiency in the process. 29RailCorp submitted that unsuccessful applicants who chose not appeal initially should not be given further opportunity to do so and the Board should dismiss the appellants' appeals. 30It was also submitted that in the situation where an appellant had lodges an earlier appeal for a position and had that appeal disallowed by decision of the Board ([NAME] against [NAME] in TAB 11/1014), then such an appellant did not hold rights to a further appeal against that same person, for the same position, but at a different location . Such an appeal should therefore be struck out for want of jurisdiction. 31It was submitted that, similarly, where appellants had the opportunity to, but did not, lodge appeals with the Board against appointees for the position (DM1) at the location which they nominated at that time, then they did not have rights of appeal for substantially the same position on a second occasion. Those appeals should therefore be struck out for want of jurisdiction. 32RailCorp submitted that in the situation where an appellant ([NAME]) nominated only a location other than the locations of the appointees above, (i.e. [NAME] or Redfern) then such an appellant did not hold rights of appeal against either [NAME] or [NAME]. Such an appeal should therefore be struck out for want of jurisdiction. 33In relation to further appeals not listed above, [NAME] submitted that it had not raised a jurisdictional argument against the appeals lodged by [NAME] (TAB11/1185), [NAME] (TAB11/1123) and [NAME] (TAB11/1122) against the appointment of [NAME], or the appeals lodged by [NAME] (TAB11/1136), [NAME] (TAB11/1131) and [NAME] (TAB11/1114) against the appointment of [NAME], as the appellants did not nominate either [NAME] or [NAME] as a location for which they were applying (being the locations for which [NAME] and [NAME] were, respectively, initially recommended). 34RailCorp submitted however, that as a consequence [NAME] and [NAME] did not have the opportunity to file appeals with the Board against [NAME] for the location of [NAME] or [NAME] for the location of [NAME] within 21 days of 15 April 2011. 35RailCorp sought the Board's guidance as to whether it was appropriate that these appeals proceed, given that it was not the intention of the legislation for recommended officers to be subjected to the appeals process for the same position on more than one occasion.

Appellant's Submissions on Jurisdiction 36The [NAME] submitted that in relation to the Crew Support Officer position ([NAME]) the appellants accepted that they did not appeal against the Board's decision of 30 March 2011. However they contended that they should be able to appeal against what was in effect an appointment to a different job. 37It was submitted that the appellants contended that in making the decision not to appeal they felt obliged to consider their prospects of success. Given that an original appeal by [NAME] against [NAME] was allowed, they may not have been successful. However, now that [NAME] had her appeal allowed their likelihood of successes may have increased. 38It was submitted that as a matter of procedural fairness the appeals should be allowed as being within the jurisdiction of the Board. 39It was also submitted that, in any event, [NAME] and [NAME] were appealing against the second appointment of [NAME], not the first. 40In relation to the appeals against the other positions, it was acknowledged that the appellants in question had not appealed on the first occasion (either because they had not nominated that location or chose not to appeal against the then recommended appointee(s)), however the appellants now sought to appeal against the recommendations for those appointments on this second occasion because they considered they had greater merit than the recommended appointees.

Findings 41The Board has carefully considered the submissions of the parties, the relevant circumstances in which these appeals arise as set out in the Background above, the provisions of [NAME]'s Recruitment Selection and Appointment Procedure, as well as the provisions of the relevant legislation. 42The Board considers that the legislation does not contemplate or allow for what could be termed a "second bite of the cherry" in respect of promotional appeals. 43Therefore the Board determines that where an unsuccessful applicant/applicants for a position appeals the appointment of an appointee/appointees as a consequence of the selection committee process; and where those appeals come to the Transport Appeals Board resulting in one or more appellants being successful, with those appointees who are overturned as a consequence then being placed on an eligibility list; and where such eligibility list is subsequently activated for the same position, that no further second appeal lies with respect of either any unsuccessful appellant(s) or any original candidate(s) for the position who did not initially lodge an appeal against the first appointment for the position. 44The only exception to this will arise where an applicant applied for a position and nominated a particular location(s) (for example in the case of Duty Manager Level 1 where a number of locations were listed for the filling of vacancies) or only one location, but where, as a result of the selection committee process and subsequent administrative process as to placement of successful appointees, no person was appointed to such a location but an eligibility list created and subsequently activated to fill that position, then a candidate who nominated that location does have appeal rights as that is essentially a first time appointment. 45Unsuccessful candidates who did not nominate other locations that were subsequently filled do not have second appeal rights if they did not appeal the appointments to those other locations when they were first advised that those positions had been filled. 46The only other persons the Board views as having appeal rights is in the situation where candidates do not initially lodge an appeal against an appointment(s) and an eligibility list is created as a consequence of the selection committee process with that eligibility list subsequently being activated to fill a position(s), or similarly, where an appellant lodges an appeal against an appointee who does not take up a position thus leading to the subsequent activation of an eligibility list and a first time appointment. In such a situation an appeal lodged by either an unsuccessful candidate, or an unsuccessful appellant, would represent a first time application as it would result from a first time appointment from an eligibility list and there would be a right to appeal against such an appointment. 47The Board therefore finds that there is no jurisdiction to hear the appeals and issues the orders as set out below.

Order(s) 48All appeals are struck out for want of jurisdiction. Elizabeth Bishop Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2011