Archive: Jun 13, 2022, 12:00 AM
Commission finds no jurisdiction to hear appeal by probationary prison officer discharged under different statutory scheme
The Commission has found it had no jurisdiction to hear an appeal by a prison officer against removal action, finding that the officer was instead discharged under a separate statutory scheme.
The appellant was engaged as a probationary prison officer and posted to the Hakea Prison. During the appellant’s nine-month probationary period, the appellant was discharged from her position by the operation of reg 5(4) Prisons Regulations 1982 (Regulations), due to an improper and unprofessional association with a prisoner.
The appellant previously commenced an unfair dismissal claim in the Commission, however discontinued that application following conciliation. The appellant then brought a claim under Division 3 of Part X of the Prisons Act 1981 (WA), appealing against the decision to remove her as a prison officer.
The respondent raised a preliminary issue of jurisdiction. The respondent submitted that there were several ways under the Prisons Act and Regulations that a prison officer’s engagement may be ended. The respondent claimed that the appellant was not subject to removal under Division 3 of Part X of the Prisons Act, as she was discharged under reg 5(4) of the Regulations, which enables the Chief Executive Officer to discharge a probationary prison officer during or at the end of their probation.
The appellant contended that sworn prison officers who are subject to discharge, are only to be discharged under the procedures in ss 101 to 103 of the Prisons Act. The appellant contended that there was no exclusion from the appeal provisions in s 106 for a probationary prison officer, and that a probationary officer must be afforded procedural fairness under ss 101 to 103
The Commission confirmed that a probationary prison officer who is sworn in under s 13(2) of the Prisons Act is a prison officer for the purposes of the Prisons Act and Regulations. Further that Division 3 of Part X did not exclude a probationary prison officer from the disciplinary and removal provisions set out under that legislation. The Commission considered, however, that there were multiple ways that a prison officer may be removed from their engagement, and Division 3 of Part X did not apply to the exclusion of all other legislative schemes.
The Commission noted that while a prison officer’s right to appeal a removal decision or action is conferred by s 106 of the Prisons Act, that such no such removal decision or removal action had occurred in this case. Rather, the Commission found that the appellant was discharged from her probationary position under reg 5(4) Prisons Regulations 1982 (Regulations), due to an improper and unprofessional association with a prisoner.
The Commission found that there was no jurisdiction to hear and determine the appeal. The appeal was dismissed.
The decision can be read here.