The Commission has dismissed the appeal of a prison officer who returned a positive result for methamphetamine and amphetamine while on duty.

Background

The appellant was engaged as a prison officer. On 18 July 2020, whilst on duty, the appellant was the subject of a targeted drug test, which returned a presumptive positive result for methamphetamine and amphetamine.

The appellant was provided an opportunity to explain the presumptive positive test result. The appellant denied that he deliberately ingested methamphetamine or amphetamine, however admitted to being in the presence of a person who he suspected had been smoking methamphetamine.

A toxicology report indicated that the appellant ingested methamphetamine, estimated between 24 and 48 hours prior to the specimen being collected.  The toxicology report concluded that the test result was not consistent with environmental or passive exposure to methamphetamine, nor with medications the appellant said he was taking at the time. The report stated that the level of impairment of executive function of the appellant would be significant. 

The appellant was removed as a prison officer, and appealed against his removal under s 106 of the Prisons Act 1981 (WA).

Contentions

The respondent’s grounds for loss of confidence in the officer were outlined broadly, as:

1. There was inconsistency between the appellant’s explanation of why he tested positive and the toxicology report, causing the respondent to form the view that the appellant was using illicit drugs
2. There was inconsistency between the appellant’s explanation of why he tested positive and the toxicology report, causing the respondent to form the view that the appellant had been dishonest in explaining the results.
3. The appellant admitted to socialising with associates who he believed to use illicit drugs
4. The appellant demonstrated a highly dismissive attitude towards the association with drug users.

The appellant contended that his removal was harsh and unfair because the drug testing was performed incorrectly and with less scrutiny in comparison to drug testing conducted on a prisoner. The appellant contended that the respondent erroneously made assumptions about his lifestyle and that his name has been ‘slandered’. The appellant denied that he engaged in a lifestyle linked to illicit drug usage and possession, and referred to the impact of his removal on himself and his family.

Findings

The Commission outlined that the relevant test to be applied in these proceedings was to be the approach that is also adopted by the Commission to appeals against removals of Police Officers under the Police Act 1982 (WA). This being that ‘having regard to the circumstances of a particular case, and in the overall context of whether a removal is harsh, oppressive or unfair, it was open to the Chief Executive Officer to lose confidence in a prison officer by reason of their integrity, honesty, competence, performance, or conduct’. [21]

The Commission was not persuaded that the testing procedures were unfair or non-compliant with the relevant Australian Standard, and that it was reasonable for the respondent to rely upon these test results.

The Commission found that, given the inconsistencies between the appellant’s interview and toxicology reports, that it was open to the respondent to conclude that the appellant was not being honest.

The Commission acknowledged the impact that a removal from the prison service may have on the officer and officer’s family, but noted that Commission is required to have regard to the public interest, in particular the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of prison officers.

The Commission held that the appellant did not establish that his removal was harsh, oppressive or unfair, and that it was open to the respondent to lose confidence in the appellant. The appeal was dismissed.

The decision can be read here.