Transport Appeal Boards New South Wales Medium Neutral Citation: Mackay v RailCorp New South Wales [2011] NSWTAB 14 Hearing dates: 21 July 2011 Decision date: 02 August 2011 Before: Macdonald C (Board) Decision: Appeal disallowed on jurisdictional ground Catchwords: JURISDICTION - Appeal by Robert Mackay against appointment of Ann Tuckey to position of Duty Manager Level 2 at Springwood - RailCorp advertised job vacancies for Duty Manager Level 2 at various locations - 162 applicants - Robert Mackay's application ultimately unsuccessful but was placed on the eligibility list - Robert Mackay lodged an appeal against the appointment of Ann Tuckey to Springwood - RailCorp offered Mackay a vacant position at Springwood as Duty Manager Level 2 at Springwood - he accepted that offer but did not withdraw his appeal - RailCorp raised jurisdictional objection with Transport Appeal Board that Mackay was ineligible to pursue his appeal as he was no longer an ":unsuccessful applicant" pursuant to appeal rights found in Transport Administration (Staff) Regulation 2005 - HELD: Jurisdictional objection upheld - Robert Mackay appeal disallowed. Legislation Cited: Transport Administration (Staff) Regulation 2005 Category: Principal judgment Parties: Robert Mackay (Appellant) RailCorp New South Wales (Respondent) Representation: Michael Cartwright, Rail Tam and Bus Union (Appellant) Melanie Robinson, RailCorp (Respondent) File Number(s): TAB 1005 of 2011 DECISION Board Decision 1The Transport Appeal Board does not have the jurisdiction to consider the appeal by Robert Mackay against the appointment of Ann Tuckey to the position of Duty Manager Level 2 - Springwood Railway Station. Background 2RailCorp advertised a number of positions available to be filled. One of those advertised positions was Duty Manager Level 2, Permanent Full Time, Customer Services, Various Locations. The advertisements were placed in September 2010. 3There were 162 applications for this Duty Manager Level 2, Various Locations. The Selection panel carried out the usual selection process. At the end of that selection process, eight (8) of the 162 applicants were successful in being selected for the position of Duty Manager Level 2. 4Relevantly, for the purposes of this Decision, Ann Tuckey was one of the eight successful applicants and she was appointed as Duty Manager level 2 at Springwood Railway Station. Robert Mackay was unsuccessful but his application did reach the final stage of the selection process: Interview. He was place don the eligibility list. 5On 4 May 2011, Mr Mackay lodged a Notice of Appeal - Transport Promotion to the Transport Appeal Board ("the Board"). His appeal was against Ann Tuckey and her appointment to Springwood Railway Station. 6The day before he lodged his appeal, RailCorp offered Mr Mackay a position of Duty Manager Level 2 at Springwood Railway Station. He accepted this offer on 5 May 2011. 7Despite accepting this Duty Manager Level 2 at Springwood Railway Station, he maintained his appeal against Ann Tuckey's appointment as Duty Manager Level 2 at Springwood Railway Station. 8On 24 June, Mr Mackay was advised by RailCorp that it would be challenging the validity of his appeal on jurisdictional grounds. SUBMISSIONS RailCorp's Submissions 9RailCorp made the following submissions on jurisdiction: (a) The appellant in appeal TAB 1005/11 is not an unsuccessful applicant for the position of Duty Manager Level 2 at Springwood and therefore the Transport Appeal Board does not have jurisdiction to determine the appeal. (b) Clause 41 of the Transport Administration (Staff) Regulation 2005 ("the Regulation") relevantly states: "(3) An appeal may be lodged only by a RailCorp officer who was an unsuccessful applicant for the vacant position". (c) The Regulation affords RailCorp officers who were not successful in their applications for a position, the opportunity to have their merit re-considered against the officer that RailCorp considered the most meritorious. The officer who is found to have the greatest merit by the Board is appointed to the position. (d) The practical effect of the Regulation is to afford RailCorp officers who were not successful in their applications the opportunity to be appointed to the position and location that they were unsuccessful in, being offered as a result of the recruitment process. (e) Given Mr Mackay's offer and acceptance of a position of Duty Manager Level 2 at Springwood, he cannot be considered to be an "unsuccessful applicant for the vacant position" as required by clause 41 of the Regulation. (f) It is further submitted that Mr Mackay is a recommended officer for a position which is substantially the same as the position offered to Ms Tuckey. Should his appeal be heard and should he be found by the Board to have greater merit that Ms Tuckey, then Mr Mackay would be appointed into substantially the same position that he has already been offered. (g) Given that Mr Mackay is defending his own offer of a position of Duty Manager Level 2 at Springwood against appeals made by unsuccessful applicants, and appealing for Ms Tuckey's position of Duty Manager Level 2 at Springwood, there is a practical possibility that he could be found most meritorious for both positions of Duty Manager Level 2 at Springwood. It is submitted that such an outcome is contrary to the intention of the Regulation. Union's Submissions 10The union made the following submissions on behalf of Mr Mackay, that the Board had jurisdiction to hear his appeal against Ann Tuckey: (a) The Duty Manager Level 2 positions at Springwood both have different position numbers. (b) The positions have different entitlements e.g. Acting in higher grades and different seniority for future staff reviews or station reforms. (c) The foregoing issues (a) and (b) were issues that could be considered by the Board as part of the merit selection process. CONSIDERATION 11The submission of RailCorp is that the Board is jurisdictionally barred from considering the appeal by Robert Mackay against the appointment of Ann Tuckey to the position of Duty Manager Level 2 at Springwood. RailCorp supports that submission through its interpretation of Clause 41 of the Regulation. Clause 41 is headed up: "Promotion appeals by RailCorp officers". Specifically, RailCorp relies upon Clause 41 (3) which says: "An appeal may be lodged only by a RailCorp officer who was an unsuccessful applicant for the vacant position". 12RailCorp submitted that Robert Mackay was not an unsuccessful candidate for the vacant position because he had been offered and accepted the position for which he lodged an appeal. 13Having considered the evidence on this issue, the Board concurs with RailCorp's submission. 14The Board has jurisdiction to hear appeals through the operation of Clause 41 of the Regulation. Specifically, Clause 41(3) states that, "An appeal may be lodged only by a RailCorp officer who was an unsuccessful applicant for the vacant position". The relevant vacant position advertised was "Duty Manager Level 2, Permanent Full Time, Customer Services, Various Locations". (Ex 2) One of those advertised locations was Springwood. Mr Mackay lodged an appeal because (a) he was an unsuccessful applicant and (b) he wanted to be placed at Springwood. 15Given that Robert Mackay was offered the position for which he appealed (Duty Manager Level 2 at Springwood), then he was/is no longer an "unsuccessful applicant" pursuant to the appeal right found in Clause 41(3) of the Regulation. For the foregoing reasoning, Robert Mackay is ineligible to lodge an appeal. 16If Robert Mackay had of lodged an appeal because he was (a) an unsuccessful candidate and (b) he named a location other than Springwood, then the Board's decision would have been the same - that is, ineligible to appeal. This is so, given that the advertised position ("the vacant position", per Clause 41(3)) was for "Various Locations". Thus Mr Mackay would be ineligible to lodge his appeal because (a) he was not an "unsuccessful applicant" and (b) he was appointed to one of the "Various Locations", as advertised. 17The union, on behalf of Robert Mackay, submitted that Ann Tuckey's appointment to Duty Manager Level 2 would be more advantageous to her than Robert Mackay's appointment to Duty Manager, Level 2. No evidence was produced to support that assertion and RailCorp denied the assertion. Without evidence, the Board could not given any weight to this assertion. 18The Board notes for present purposes, that there may be another reason why the Board would lack the jurisdiction to consider this appeal, or any appeal, based on an applicant for a position not getting his/her preferred location. 19The Board was provided with evidence that the appointment of a successful applicant to a location is carried out by a body (sometimes called "HR", sometimes called "HR/Recruitment Unit" and sometimes called "Recruitment Unit") whose appointment function may lay outside the jurisdiction of the Board. If that is so, then the Board could not hear an appeal based on a job applicant not being appointed to a particular location. The Board would need further evidence about the appointment body (or bodies) and the Board's appeal power per the Regulation (or any other statutory instrument) and the impact of RailCorp's policy (policies) on this particular jurisdictional ground, before being able to make a decision on this point. A Macdonald 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 August 2011