Western Australian Industrial Relations Commission

Appeal by a Prison Officer or Youth Custodial Officer against their removal

Appeal by a Prison Officer or Youth Custodial Officer against their removal

Amendments made to the Prisons Act 1981 and the Young Offenders Act 1994 provide that a prison officer or a youth custodial officer who has been removed as a result of a loss of confidence process may appeal to the WA IR Commission (Commission) on the ground that the removal decision was harsh, oppressive or unfair.

In the case of a prison officer, the appeal is brought pursuant to s 106 of the Prisons Act 1981 here.

In the case of a youth custodial officer, the appeal is brought pursuant to s 11CH of the Young Offenders Act 1994 here.

The process of the appeal is the same for both a prison officer and for a youth custodial officer. Set out below is some preliminary information regarding the appeal process. It is intended as a guide only. You will need also to read the appeal rights as they are set out in the Act applicable to you, and the steps described in Part 9A or 9B of the Industrial Relations Commission Regulations 2005 here.

Commencing an appeal

The appeal is instituted by filing in the Commission within 28 days after the day the prison officer or youth custodial officer is removed 3 copies of:

Note that an appeal cannot be instituted more than 28 days after the day the prison officer or youth custodial officer is removed or if they have resigned.

Once it is filed

A copy of the filed Form with the appeal number and the stamp of the Commission will be returned to the appellant. The appellant must serve a stamped copy of the Form on the Chief Executive Officer of the Department of Corrective Services of WA (by personal delivery or by post) within 7 days after the Form has been filed. The appellant must then complete and file in the commission a Form 4 – Statutory Declaration of Service which certifies that the appellant has served it.

What happens next

The Chief Executive Officer is to file and serve on the appellant a Notice of Answer within 28 days of receiving the Form stating:

(i)   the Chief Executive Officer’s reasons for deciding to take removal action;
(ii)   a list of all documents that the Chief Executive Officer considered before making the decision
(iii)  

a summary of facts or issues of law relied upon by the Chief Executive Officer including any relevant matters set out in section 107(4) of the Prisons Act 1981 or section 11CI(4) of the Young Offenders Act 1994.

    and
(iv)  

a reply containing any matters the Chief Executive Officer wishes to raise in relation to the appellant’s case.

The Commission may then ask whether either the appellant or the Chief Executive Officer requests the appeal to go to conciliation. Conciliation will be before a member of the Commission who will not hear the appeal. It may take 2 – 4 weeks for conciliation to occur. Further programming of the hearing of the appeal will cease until it is known whether or not conciliation results in an agreed settlement of the appeal.

If there is no request for conciliation then within 14 days of serving the notice of answer, the Chief Executive Officer is to file 3 copies of every document relied upon by the Chief Executive Officer in the appellant’s case and serve it on the appellant. Within 14 days of receiving these documents, the appellant is to file 3 copies of every document relied upon by the appellant and serve it on the Chief Executive Officer.

Note that the Commission may direct that these times be varied if necessary, eg if there is conciliation occurring.

The Commission is likely to enquire how long the appellant and the Chief Executive Officer think they will need to present their respective cases (eg is it likely to take more than one day of hearing for both their cases? One day of hearing is usually between 10.30 am to 1.00 pm and 2.15 pm to 4.00pm).

The Commission will set the date the appeal itself is likely to be heard. This date will usually take into account the availability of the appellant or their representative, the
availability of the Chief Executive Officer’s representative, and the dates the Commission has available.

'New Evidence'

Section 108 of the Prisons Act 1981 and s 11CJ(1) of the Young Offenders Act 1994 mean that the appeal is to be heard and determined on the basis of the following documents —

(a)  

a document or other material that was examined and taken into account by the chief executive officer in making the removal decision;

(b)   the notice given under section 102(1);
(c)  

a written submission made to the chief executive officer by the prison officer under section 102(2);

(d)   a decision notice;
(e)   a notification of the removal;

If an appellant or the Chief Executive Officer wants the Commission to take into account any other document or evidence they will need to ask the Commission for permission (called ‘seeking leave’) to tender new evidence. Note that s 108 of the Prisons Act 1981 and s 11CJ(1) of the Young Offenders Act 1994 impose conditions on granting leave to tender new evidence.

An application seeking leave to tender new evidence is made by completing a Form 1 – Notice of application (general)(available here) and attaching to it a copy of the new evidence for which leave to tender is being sought.

After the application has been filed the applicant must serve a stamped copy of the application and the new evidence on the other party to the appeal (by personal delivery or by post). The applicant must then complete and file in the WAIRC a Form 4 – Statutory Declaration of Service which certifies that the applicant has served it.

The Commission will give the other party to the appeal time to consider it and to reply to the application. The other party to the appeal is to serve a copy of the reply on the applicant. The application to tender new evidence will then be listed for hearing and the Commission will hear the application and decide whether it will be granted.

Note that the appeal itself will not be able to be heard until after the application for leave to tender new evidence is decided by the Commission.

 

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Contact Us

Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

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