The Public Service Appeal Board has upheld the decision of North Metropolitan Health Service to dismiss an Oncologist, finding that he engaged in serious misconduct after approving substantial overtime payments of over $244,000 to a worker who was not entitled to overtime; and that he breached his duty of fidelity and good faith when he engaged the same worker on a contract that was detrimental to the employer.

Background

The applicant was a Consultant Medical Oncologist, and was engaged by the respondent since 2003, and was for a period, the Head of the Department between 2007-2013.

In 2019, Corruption and Crime Commission proceedings concluded that another employee of the Department engaged in serious misconduct for unsubstantiated overtime payments. The employee was primarily employed by the Department as a Clinical Trials Manager, and was later engaged at the initiative of the appellant under an independent contractor arrangement (‘Worker’)

Between 2019-2020, the respondent conducted investigations into the appellant’s role in relation to the payment of these overtime payments and contract. Broadly, the two allegations that were found to be substantiated by the respondent were:

Allegation 1. That the appellant had failed to exercise an appropriate level of oversight and scrutiny in relation to the payment of the overtime payments to the Worker, constituting a breach of discipline contrary to s 161 (d) of the Health Services Act 2016 (WA) (‘HS Act’) as the appellant was negligent or careless in the performance of his functions; and

Allegation 3:  That the appellant breached his duty of fidelity and good faith to his employer when he approved the engagement of the Worker on a contract which was detrimental to the respondent, constituting a breach of discipline contrary to s 161(c) of the HS Act as the appellant committed an act of misconduct (allegation 3).

The appellant appealed against his dismissal to the Appeal Board.

Contentions     

The parties agreed that the period in question was between November 2014 and November 2017.

In relation to Allegation 1, the appellant denied that he had oversight of the Worker, and if he did, contended that he was not negligent or careless.  The appellant submitted that he was only the Worker’s manager at the time that he was Head of Department, and denied that the approval of the overtime was not his role or responsibility; and that he did not have any training or an understanding of the approval of overtime.

The respondent submitted that evidence before the Appeal Board supported that the appellant was the Worker’s manager, and that the appellant admitted this before the CCC. The respondent contended that any reasonable, sensible, intelligent person reviewing the overtime forms would have seen the hours worked were significant.

In relation to Allegation 3, the appellant contended that he believed he had the authority to approve the contract, and that the engagement was vital to the function of the Clinical Trials Unit.

The respondent contended that the appellant engaged the Worker under the contract to allow the achievement of higher earnings than she would have been entitled to as an employee, to the detriment of the respondent.

The appellant contended that where the allegations were made out, that no penalty beyond a reprimand was appropriate.

Findings

The Appeal Board found Allegation 1 was substantiated. The Appeal Board considered that the appellant was in a supervisory position to the Worker, and that he was approving payment of overtime in circumstances where he had not properly reviewed the amount of overtime claimed, the reasons for the overtime or whether the overtime had been worked at all, and this amounted to negligence and carelessness in the performance of his functions.

The Appeal Board found Allegation 3 was substantiated.  The Appeal Board found that appellant negotiated the terms of the contract despite knowing he lacked the authority to do so. The Appeal Board found that the appellant approved overtime while being aware he did not have authority to do so, and knowing that the Worker was not entitled to overtime.

The Appeal Board noted that the appellant failed to take responsibility for his actions, and considered that termination of employment was a fair penalty in the circumstances, and dismissed the application.

The decision can be read here.

17 September 2020

The Public Service Appeal Board has upheld an appeal against the decision of the WA Country Health Service to dismiss a security officer who was convicted of assault occasioning bodily harm on the basis that the dismissal was harsh, unfair, and disproportionate.

The appellant worked as a full-time security officer with the Health Service for ten years. In July 2019, he was convicted of assault occasioning bodily harm in relation to an incident between him and a member of his extended family.

Section 150(3) of the Health Services Act 2016 (WA) provides that “... if an employee is convicted or found guilty of a serious offence, the employing authority may take such disciplinary action or improvement action… as the employing authority considers appropriate.”

In reliance on that provision, the Chief Executive wrote to the appellant and informed him that the Health Service had decided to take disciplinary action by way of dismissal.

The appellant argued that his dismissal was harsh because it was disproportionate to the misconduct in question, having regard to the circumstances of the offence.

The respondent contended that because of the nature of the appellant’s conduct, and because the position he held required him to provide security for patients, visitors and other staff, the decision to dismiss the appellant was appropriate.

The Board found that the appellant’s conviction arose in unique circumstances and was the culmination of provocation in the context of long-running, complex, cultural family tension and the stress of his wife’s recent illness. The Board also considered the appellant’s positive character references, unblemished work history and his acknowledgement of the seriousness of the matter. It found that he does not represent a threat to patient, staff, or visitor safety.

The Board determined that, on the evidence, the decision to dismiss was harsh, unfair, and disproportionate, that a warning and improvement action in the form of training was an appropriate penalty, and ordered that the appellant be reinstated without loss and with continuity of employment benefits.

The decision can be read here.

Details  Created: 02 June 2020

The Public Service Appeal Board (Appeal Board) has upheld an appeal by the Director Clinical Services at the Women and Newborn Health Service against the decision of the North Metropolitan Health Service to suspend the Director without pay for alleged breach of discipline.

The appellant received letters from the respondent that set out several allegations of suspected breaches of discipline. The first serious allegation made by the respondent contended that the appellant allowed five doctors employed at the Health Service to be credentialled on a temporary basis, contrary to the respondent’s relevant policy and proper clinical practice. The second serious allegation contended that the appellant either disbanded or did not facilitate four key committees within her area of responsibility.

The appellant submitted that the respondent failed to comply with the policy framework in relation to discipline. She argued that the respondent’s refusal to provide her particulars of the allegations, copies of documents referred to in the letters and access to her work email amounted to a denial of procedural fairness on the basis that she did not have a reasonable and proper opportunity to respond to the allegations made against her.

The appellant also argued that such a suspension would cause her profound reputational damage, that there was no prima facie case for the allegations, no indication that the Health Service had considered alternatives to suspension, and no basis for the respondent’s decision to suspend the appellant without pay.

The appellant sought to be restored to her position pending the outcome of the disciplinary investigation and that she be paid for her loss of remuneration meanwhile.

The Appeal Board found that the respondent failed to comply with the policy framework in relation to discipline by refusing to provide the appellant relevant documents and denying access to her work emails in order for her to properly consider and respond to the allegations. The Appeal Board found that this was unreasonable, unfair, and prejudicial to the appellant.

The Appeal Board also found that, with regard to the strength of the evidence, the financial impact and the indeterminate time for the investigation to conclude, the appellant was denied procedural fairness in the circumstances leading to her suspension without pay. The Appeal Board further determined that the respondent had not established justification to exercise the power of suspension without pay.  

The Appeal Board upheld the appeal and ordered that the suspension be on full pay and that the Director be paid remuneration for loss of income.

The decision can be read here.

Details 

Created: 05 May 2020

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the respondent to impose a penalty of a permanent reduction in classification following admissions by the appellant of misconduct over a six-year period.

The appellant occupied a Level 8 position with the respondent and formed part of the senior management team for several years.

In March 2019, the respondent made four allegations of suspected breaches of discipline under s 80 of the Public Sector Management Act 1994 (WA) (PSM Act). The allegations were in connection to the misuse of the respondent’s computer system, unauthorised release of official information and inappropriate behaviour.

The appellant admitted to the misconduct and the respondent imposed a penalty of permanent reduction in work classification from Level 8.3 to Level 5.4.

The appellant appealed on the basis that the penalty was harsh and unfair given the mitigating circumstances that he advanced in response to the allegations, including his unblemished record and personal issues. He sought that the penalty be reduced to a reprimand and a reduction in classification to Level 8.1.

The respondent argued that the penalty was appropriate and a higher-level position was not suitable for the appellant given his breach of trust and the respondent’s lack of confidence in the appellant as a result of his misconduct.  

The Board found, in considering the appellant’s engagement in sustained misconduct, profound abuse of the respondent’s email system, numerous breaches of the respondent’s code of conduct and his senior position, that the respondent’s decision to permanently reduce the appellant’s work classification was entirely appropriate. The Board found that the personal matters referred to by the appellant in his mitigation submissions could not be relied upon in mitigation of sustained misconduct over many years.

Respondent’s submission as to scope of Appeal Board’s powers under s 80I(1) of Act

The Board also dealt with a submission made by the respondent that the Board’s power to “adjust” the respondent’s decision under s 80I of the Industrial Relations Act 1979 (WA) (Act) only extended to reversing or quashing the decision. The respondent submitted that it was not open to the Board to “change” the decision in such a way as to replace it with a different decision as sought by the appellant, to impose a reprimand and a Level 8.1 classification instead.

The Board considered the powers of the Board under s 80I of the Act to “adjust” a decision of an employer to dismiss a manager for misconduct and found that its meaning was to be considered in the context of an appeal under s 80I(b) of the Act.

The Board then referred to s 80A of the PSM Act, and noted that one category of disciplinary action is a “reduction in the level of classification of the employee” and that this was the relevant ‘decision’ in this case. Thus, the Board found the meaning of “adjust” in this case is to be considered in the context of the relevant disciplinary decision to reduce the appellant’s level of classification.

The Board found that its power to “adjust” the respondent’s reduction in classification decision involved the power to “reform” it in some way. This is plainly not limited to reversing it.

The Board determined that such decisions involve “reforming” or changing a reduction in classification decision, which is the relevant decision to be adjusted under s 80I(b) of the Act. This does not involve the making of a new decision by the Board.  

The decision can be read here.

Details 

Created: 31 March 2020

The Public Service Appeal Board (Board) has unanimously dismissed an appeal and found that the appellant was not dismissed from her employment, but rather that her fixed term contract had ended in accordance with the parties’ agreement.

The appellant, a government officer, was employed on a series of fixed term contracts. After her final contract ended, the appellant filed an appeal under s 80I(d) of the Industrial Relations Act 1979 (WA) against what she said was the respondent’s decision to dismiss her. She argued that she was unfairly dismissed because the respondent did not offer her a further fixed term contract or a permanent position.

The respondent argued that the appellant was not dismissed but was employed on a fixed term contract that came to an end by the effluxion of time. The respondent claimed there was no dismissal and the Board did not have jurisdiction to hear and determine the appellant’s appeal.

In deciding whether it had jurisdiction to hear the appeal, the Board had to determine whether the appellant was dismissed.

The Board applied relevant legal principle and found that it was not persuaded that the appellant was dismissed. It found that the failure to offer a subsequent contract was not a dismissal and that the employment ended in accordance with the final fixed term contract. The Board found that it was the effluxion of time in accordance with the parties’ agreement, and not any action on the part of the respondent, that resulted in the contract and the employment relationship ending.

The Board dismissed the appeal for want of jurisdiction.

The decision can be read here.