The Industrial Appeal Court dismissed a prison officer’s appeal against the decision of the majority of the Commission for want of jurisdiction.

The majority of the Commission dismissed the prison officer’s appeal against his employer’s removal action on the ground that was harsh, oppressive or unfair. This decision did not enliven the Industrial Appeal Court’s jurisdiction to hear an appeal of a decision from the Commission, under s 110E of the Prisons Act 1981 (WA), that removal action was harsh, oppressive or unfair.

Background

The appellant was a prison officer, employed by the respondent under s 13(2) of the Prisons Act, from April 2000 until July 2021. The appellant was dismissed after testing positive for cannabis, during a random drug test at Hakea Prison on 11 August 2020.

The appellant appealed to the Commission pursuant to s 106(1) of the Prisons Act, on the ground that the removal decision was harsh, oppressive or unfair.

On 6 May 2022, the Commission, by majority, comprising Chief Commissioner Kenner and Commissioner Emmanuel, dismissed the appeal. Senior Commissioner Cosentino delivered separate reasons, in which she found that the removal decision was unfair.

Contention

The appellant appealed to the Industrial Appeal Court on the ground that the majority of the Commission erred in law:

1. in deciding that the true meaning of reg 38(2) of the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 (WA) had the effect of requiring the respondent to take removal action; and
2. by concluding that s 107(1)(a) of the Prisons Act does not require the Commission to consider all of the reasons for the removal decision.

The appellant contended that, in the circumstances of this case, where one of the Commission members who heard the appeal has decided that the decision to take removal action relating to the appellant was harsh, oppressive or unfair, s 110E is enlivened, which in turn enlivens the jurisdiction of the Court to hear an appeal under s 90 of the Industrial Relations Act.

The respondent filed a notice of motion seeking an order that the appeal be dismissed for want of jurisdiction. This was contended on the basis that the Court does not have jurisdiction to hear an appeal from a decision of the Commission under s 110B of the Prisons Act read with s 90 of the Industrial Relations Act on the ground that the majority of the Commission erred in deciding that the removal decision was not harsh, oppressive or unfair.

Findings

The Court dismissed the appeal for want of jurisdiction.

The Court only has jurisdiction to hear an appeal if the Commission has made a 'decision', under s 110E of the Prisons Act, that the removal decision was harsh, oppressive or unfair.

However, no appeal can lie against 'reasons for decision' of the Commission or a member of the Commission given in any proceeding. Section 35(1) of the Industrial Relations Act distinguishes a decision from reasons for decision.

The reasons for decision of the Senior Commissioner do not constitute a decision within the meaning of s 35 or s 90(1), as modified, of the Industrial Relations Act.  Absent a decision that reflects the Senior Commissioner's reasons, the appellant's right of an appeal to this Court is not enlivened.

The decision can be read here.