APPEAL AGAINST DECISION TO TAKE REMOVAL ACTION ON 20 MAY 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00189

DELIVERED : Friday, 6 May 2022

FILE NO. : APPL 54 OF 2021

Appellant

AND

WESTERN AUSTRALIAN DEPARTMENT OF JUSTICE

Respondent

Catchwords : Industrial law (WA) - Appeal against discharge of probationary prison officer - Jurisdiction to hear appeal - Whether procedural aspects of loss of confidence  provisions in Part X of  Prisons Act 1981 (WA) must be complied with in all cases of discharge of prison officers - No requirement to do so - Appeal dismissed

Legislation : Industrial Relations Commission Regulations 2005 reg 89D, reg 89E

Police Act 1892 (WA)

Prisons Act 1981 (WA) s 13(2), s 51(b), s 99, s 100(1)(a), s 100(1)(b), s 101, s 102, s 103, s 103(1),  s 106, s 106(1), s 106(2)(a), 106(3)(a), s 106(6)

Prisons Regulations 1982 reg 3(4), reg 5, reg 5(2) reg 5(3), reg 5(4)

Public Sector Management Act 1994 (WA) s 76(1)(b), s 78, s 80A 

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr M Humphreys of counsel

Respondent : Mr S Pack of counsel

Solicitors:

Appellant : MacLean Legal

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Frantzen v Director-General Department of Justice [2022] WAIRC 00050; (2022) 102 WAIG 139

GHD Pty Ltd v WorkSafe [2021] WAIRC 00655; (2022) 102 WAIG 89

Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00706; (2013) 93 WAIG 1439

Reasons for Decision

THE COMMISSION:

Brief background

1         The appellant was engaged as a probationary prison officer on 25 September 2020.  After her initial training, the appellant was posted to the Hakea Prison.  On 20 May 2021, the appellant was discharged from her position as a probationary prison officer under reg 5(4) of the Prisons Regulations 1982.  At the time of her discharge, the appellant was within the nine-month probationary period as specified in reg 3(4) of the Regulations.

2         The reason for the appellant’s discharge was because of an improper and unprofessional association with a prisoner.  The respondent contended that the appellant’s actions were contrary to s 51(b) of the Prisons Act 1981 (WA).  When she was discharged, the appellant was paid two weeks’ pay in lieu of notice.  On 17 June 2021, the appellant commenced an unfair dismissal application in the Commission.  Following a conciliation conference on 27 July 2021, the appellant discontinued that application.

This appeal, under Part X of the Prisons Act, was commenced on 8 December 2021.  Prior to the respondent being required to comply with procedural requirements under regs 89D and 89E of the Industrial Relations Commission Regulations 2005, the respondent raised a preliminary issue of jurisdiction.  This was to the effect that the appeal is incompetent, as the appellant was not subject to removal action under Division 3 of Part X of the Prisons Act.  On 17 December 2021, the Commission ordered that this issue be determined as a preliminary matter and the hearing on the issue took place on 24 March 2022.

Contentions of the parties

3         The respondent, in contending that the appeal was beyond the jurisdiction of the Commission, submitted that the statutory scheme under s 106 of the Prisons Act, requires a prison officer to be removed because of ‘removal action’ as defined in ss 99 and 101 of the Prisons Act.  It was submitted that a proper reading of the Prisons Act and the Regulations reveal there are several ways in which a prison officer’s engagement may be ended.  These include the loss of confidence provisions under Division 3 of Part X of the Prisons Act; disciplinary procedures under the Public Sector Management Act 1984 (WA); medical retirement under reg 5(2) of the Regulations; the discharge of a prison officer under reg 5(3) of the Regulations, where false or misleading information is provided in a prison officer’s application for engagement; and discharge under reg 5(4) of the Regulations, where a prison officer has been found to be unsuitable or their performance during their probationary period is unsatisfactory.

4         The respondent contended that it was under the latter provision that the appellant’s discharge took effect, and no action was taken by the respondent through the loss of confidence process under s 101 of the Prisons Act to ground the present appeal.  The respondent did not dispute the fact that a prison officer discharged under reg 5(4) of the Regulations may challenge such a decision by bringing an unfair dismissal claim before the Commission in its general jurisdiction: Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00706; (2013) 93 WAIG 1439 (Sell’s case).

5         The respondent submitted that the appeal could only be competent if it could be established that the terms of s 101 in Part X of the Prisons Act were a code, excluding other statutory remedies.  The respondent further submitted however that this could not be so, given the various alternative ways that a prison officer’s engagement may be ended.  As to procedural fairness, the respondent also did not dispute that in acting under reg 5(4) of the Regulations, the respondent was required to afford the appellant procedural fairness: Sell’s case at [56].  In the present case, the respondent argued that both in form and in substance, the appellant was discharged under reg 5(4) of the Regulations.  Accordingly, the respondent submitted the appeal should be dismissed. 

6         In the alternative, if that were not so, the respondent made further submissions that for the purposes of ss 103(1) and 106(3)(a) of the Prisons Act, an appeal against removal action must be brought before the expiry of the 28 day ‘maintenance period’, which commences the day after a prison officer is removed.  Given that date would, in this case, be 18 June 2021, this appeal has been brought well out of time.  The respondent contended that the time within which an appeal must be brought cannot be extended but even if so, no such application has been made on this occasion.

7         On behalf of the appellant, several submissions were made.  No issue was taken with the respondent’s power to discharge a probationary prison officer under reg 5(4) of the Regulations.  What the appellant submitted however, was the power to do so is conditioned by the procedural steps set out in ss 101 to 103 of the Prisons Act, which apply procedural fairness obligations.  Having taken an oath of engagement under the Prisons Act, the appellant submitted that the effect of this is to require all sworn prison officers who are subject to discharge, to only be discharged after following the procedures in ss 101 to 103 of the Prisons Act, despite the terms of the Regulations.  The appellant further submitted that there is no exclusion from the appeal provisions in s 106 for a probationary prison officer.  In particular, the appellant referred to s 106(6), to the effect that an appeal under that section is the only right of appeal, and this provision is conclusive.  Thus, according to the appellant, even if a probationary prison officer is discharged under reg 5(4) of the Regulations, as in this case, then the procedural fairness requirements set out in ss 101 to 103 of the Prisons Act must apply.

8         Furthermore, given the appellant’s view of the statutory scheme, in particular the terms of s 106(6), the appellant was unable to pursue an unfair dismissal claim before the Commission in its general jurisdiction.  Accordingly, for these reasons, the appellant contended that the appeal was competent and should proceed.

Consideration

9         Division 3 of Part X of the Prisons Act establishes a statutory regime for the removal of prison officers for loss of confidence, very similar to that set out in Part IIB of the Police Act 1892 (WA), applicable to police officers.  The nature of the two jurisdictions, their similarity, and the approach to the disposition of such appeals, was recently considered by the Commission in Frantzen v Director-General Department of Justice [2022] WAIRC 00050; (2022) 102 WAIG 139 and need not be repeated on this occasion.

10      The principles relevant to the construction of statutes are well known.  In GHD Pty Ltd v WorkSafe [2021] WAIRC 00655; (2022) 102 WAIG 89 the Full Bench adverted to these principles at [53] to [54] as follows:

53 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The applicable principles are well‑known, and were summarised in Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 as follows (citations omitted):

The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use.  As the plurality observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

This focus on the statutory text may be seen as an aspect of the rule of law.  It recognises and preserves the role of the legislature, acting within constitutional constraints, in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text.  This point was noted by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:

The danger that lies in departing from the ordinary meaning of unambiguous provisions is that “it may degrade into mere judicial criticism of the propriety of the acts of the Legislature”...  it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.

Additionally, focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates.  As French CJ observed in Alcan:

The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose.  That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [(1991) [1991] HCA 28; 172 CLR 319 at [340] as:  ''dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.” In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read.  Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.

54 Regard must also be given to the purpose and object of the text, to ascertain the intention of the legislature in making the law in question: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428; See too: Programmed Industrial Maintenance v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208.

11      In this case, it is not contentious that the appellant’s engagement as a prison officer was ended by the operation of reg 5(4) of the Regulations, which is in the following terms:

5. Discharge of prison officers

…

(4) Where the chief executive officer is of the opinion during or at the end of the period of probation of a prison officer that the prison officer is unsatisfactory in the performance of his duties or unsuitable to be a prison officer, the chief executive officer may discharge that prison officer.

12      Regulation 5 deals with several circumstances in which a prison officer may be discharged from service.  This includes for medical reasons in reg 5(2); for providing false, incomplete, or misleading information in an application for engagement as a prison officer in reg 5(3); and for reasons of unsuitability or unsatisfactory performance as a prison officer, during or at the end of a period of probation in reg 5(4).

13      As correctly accepted by the respondent, the fact that a probationary prison officer is removed under reg 5(4), does not mean they may be denied procedural fairness: Sell’s case per Kenner C (as he then was) at [56].  The respondent also correctly accepted that a discharged prison officer has the right to bring a claim for unfair dismissal in the Commission’s general jurisdiction, which initially occurred in this case: Sell’s case per Kenner C at [50].  They are not without a remedy, as suggested by the appellant.  We do not accept the appellant’s contention that s 106(6) of the Prisons Act has the effect that she contends.  This provision, which, as noted above, provides that ‘the prison officer does not have any right of appeal against the removal decision other than under this section’, is, by its terms, confined to a ‘removal decision’, as defined in s 99.  For the reasons which we develop below, the appellant was not subject to such a decision in the present circumstances. 

14      The nature of an unfair dismissal claim in the Commission’s general jurisdiction, is not an ‘appeal’ as in s 106 of the Prisons Act.  Section 106 prescribes a limited proceeding, more in the nature of a review of the respondent’s removal decision.  It is not a de novo hearing.  The Commission’s unfair dismissal jurisdiction is quite different.  It is not based on whether the respondent has lost confidence in a prison officer, rather, whether as a matter of fact and law, the dismissal of an employee, for whatever reason, is harsh, oppressive, or unfair.

15      There can be no argument with the appellant’s contention that a probationary prison officer, once sworn in under s 13(2) of the Prisons Act, is a prison officer for the purposes of the Prisons Act and Regulations.  It is also correct to say that there is nothing in Division 3 of Part X that excludes a probationary prison officer from the disciplinary and removal provisions there set out.  However, that is not the issue to be determined in this case.  The appellant can only succeed on her argument for present purposes, if she can persuade the Commission that the provisions dealing with the removal of a prison officer under Division 3 Part X of the Prisons Act, is the only way in which a prison officer may be removed or discharged from service.  For the following reasons, this is not so, firstly, given the various other statutory ways that a prison officer’s engagement may end, and secondly, from the text of Division 3 of Part X itself.

16      The first indication to the contrary is s 100(1) of the Prisons Act, setting out the application of the removal provisions themselves.  This provides as follows:

100. Application of Subdivision

(1) This Subdivision applies if —

(a) the chief executive officer does not have confidence in a prison officer’s suitability to continue as a prison officer; and

 (b) the chief executive officer —

(i) decides not to take, or continue to take, disciplinary proceedings under the Public Sector Management Act 1994 Part 5 against a prison officer; and

(ii) decides instead to take removal action in relation to the prison officer;

…

17      By the terms of Part 5 of the Public Sector Management Act 1994 (WA), disciplinary action may be taken against a prison officer, including a probationary prison officer.  This is because prison officers are prescribed for the purposes of s 76(1)(b) of the PSM Act, as is made clear in s 98 of the Prisons Act.  In Part 5 of the PSM Act, by Division 3 – Disciplinary matters, s 80A defines ‘disciplinary action’ to include several things, including the dismissal of an employee.  There can be no doubt that an employee, including a prison officer who may be subject to disciplinary action under Part 5 of the PSM Act, has the right to procedural fairness and has a further right to challenge a disciplinary action decision, by an application to the Commission under s 78 of the PSM Act.

18      When these provisions of the PSM Act are read together with the other means by which a prison officer may be discharged from service under the provisions of the Regulations referred to above, and under the terms of Division 3 of Part X of the Prisons Act, it makes the proposition that the terms of the latter are not to be regarded as a code, in the sense that they exclude all other statutes, compelling (see generally D Pearce Statutory Interpretation in Australia 9th Edition at p 87).

19      Furthermore, at a narrower level, within the terms of Division 3 Part X itself, there are other significant hurdles to the appellant’s arguments.  First, by s 99 of the Prisons Act, there are a series of defined terms.  Most important for present purposes are the definitions of ‘removal action’, being that set out in s 101; and ‘removal decision’, meaning the decision of the Chief Executive Officer to take removal action.  Section 101 sets out that if the Chief Executive Officer ‘does not have confidence in a prison officer …’, the Chief Executive Officer may take a number of steps there set out, collectively referred to as ‘removal action’.  These steps include an investigation and requesting information from a prison officer.  Thereafter, the Chief Executive Officer may then issue a written notice, setting out the grounds on which he has lost confidence in a prison officer.  The prison officer is given an opportunity to respond.  The Chief Executive Officer must then decide to take or not take removal action, under s 104.  Such removal action may be withdrawn or revoked.

20      The right of appeal by a prison officer against his or her removal is conferred by s 106 of the Prisons Act.  Section 106 is in the following terms:

106. Appeal right

(1) If a prison officer is removed as a result of removal action, the prison officer may appeal to the WAIRC against the removal decision on the ground that it was harsh, oppressive or unfair.

(2) The prison officer may institute the appeal by a notice to the chief executive officer stating —

(a)  the reasons for the removal decision being harsh, oppressive or unfair; and

(b)  the nature of the relief sought.

(3) The appeal cannot be instituted —

(a)  after the maintenance period; or

(b)  if the prison officer has resigned under section 105(1).

(4) For the purposes of proceedings relating to the appeal, the WAIRC is to be constituted by not less than 3 industrial Commissioners, at least one of whom must be —

(a)  the Chief Commissioner; or

(b)  the Senior Commissioner within the meaning of that term in the Industrial Relations Act 1979.

(5) The only parties to the appeal are the prison officer and the chief executive officer.

(6) The prison officer does not have any right of appeal against the removal decision other than under this section.

21      It is clear from s 106(1), that an appeal commenced by a prison officer is from the relevant ‘removal decision’, as defined.  Moreover, such a decision can only arise from ‘removal action’, being the action set out in s 101, taken by the Chief Executive Officer.  Further, by s 106(2)(a), in the notice to the Chief Executive Officer instituting the appeal, the prison officer is required to state the reasons why the relevant ‘removal decision’ of the Chief Executive Officer (as referred to in s 99) is harsh, oppressive, or unfair.  Because of these provisions, it is a jurisdictional gateway, through which an appellant must pass, for there to be both a relevant ‘removal decision’ and ‘removal action’, as a prerequisite to the commencement of an appeal under s 106, and to confer jurisdiction on the Commission to hear and determine it.

22      No such removal decision or removal action has occurred in this case.  Accordingly, the appeal has not been invoked by the appellant in accordance with the statutory scheme set out in Division 3 of Part X and the Commission has no jurisdiction to hear and determine the appeal.

23      In the alternative, the parties made submissions to the effect that if the appeal was within the Commission’s jurisdiction, whether it was brought within time having regard to ss 103 and 106(3)(a) of the Prisons Act.  These provisions deal with the payment of a ‘maintenance payment’ for a period of 28 days after the day on which a prison officer is removed, which is referred to as the ‘maintenance period’.  Section 106(3)(a) provides that an appeal cannot be instituted ‘after the maintenance period’.  Whilst this issue has not yet arisen for consideration under the appeal provisions of the Prisons Act, given that it is not strictly necessary to decide the matter on this occasion, we consider it is best left to another day.

24      Accordingly, for the foregoing reasons, the appeal must be dismissed for want of jurisdiction.