100214644

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES

RESPONDENT

CORAM COMMISSIONER P E SCOTT

 PUBLIC SERVICE ARBITRATOR

DATE MONDAY, 16 DECEMBER 2002

FILE NO P 41 OF 2001

CITATION NO. 2002 WAIRC 07217

_______________________________________________________________________________

Result Application dismissed

Representation

Applicant Ms M in de Braekt

Respondent Mr D Matthews (of Counsel)

_______________________________________________________________________________

Reasons for Decision

1         This is an application to the Public Service Arbitrator (“the Arbitrator”) for an order that the respondent cease a disciplinary process against Mr H in respect of minor breaches of discipline by Mr H during the course of a work-related trip to Broome in 2000.

2         It is relevant to note that the respondent has already completed a disciplinary process relating to allegations of serious or major breaches of discipline against Mr H said to have occurred on the same trip to Broome, and the respondent imposed a penalty.  That completed process was the subject of an appeal to the Public Service Appeal Board (“the Board”), PSAB 4 of 2001.  The disciplinary process relating to the minor breaches now before the Arbitrator was conducted in tandem with the disciplinary process relating to the serious or major breaches, the subject of the appeal to the Board.  The Arbitrator convened to hear the parties on this matter immediately following the hearing by the Board, and the parties adopted much of the evidence and submissions which had been put to the Board so far as they are relevant to the matter before the Arbitrator.  The Reasons for Decision of the Board in PSAB 4 of 2001 issued on 13 December 2002 largely set out the circumstances of the trip to Broome and the history of the disciplinary process.

3         The reason that these matters are before the Arbitrator rather than the Board is that in respect of the minor breaches of discipline, the respondent has not completed the disciplinary process, in that the respondent has found that Mr H had committed minor breaches of discipline and has put to Mr H a proposed penalty of a reprimand.  In accordance with the procedures set out in the Public Sector Management Act 1994, by letter dated 9 October 2001, Mr H was invited to respond to that proposed penalty by 16 October 2001.  On the basis of an error in that letter, where it referred to serious breaches of discipline as opposed to minor breaches of discipline, the respondent wrote to Ms in de Braekt on behalf of the applicant on 17 October 2001 indicating that error and on that basis, providing a further seven days in which Mr H was to provide a written response, that is until 24 October 2001.  The application to the Arbitrator was filed on 24 October 2001, seeking, in effect, that the respondent be prevented from continuing with the disciplinary process and bringing it to an end on the basis of what were said to be significant procedural flaws including that Mr H had been denied natural justice, and that he had not committed breaches in circumstances which related to his employment entitling the respondent to undertake any disciplinary enquiries. 

4         The Reasons for Decision of the Board set out concerns as to the terms of the Notice of Application to the Board.  I repeat those concerns as they arise in respect of the schedule to the Notice of Application to the Arbitrator, which sets out some 49 purported Grounds, 57 purported Particulars and 8 Orders sought.

5         The circumstances under which the minor breaches of discipline are alleged to have occurred relate to the trip to Broome undertaken by Mr H and Ms G in November 2000.

6         In considering this matter, I note paragraphs 19 and 20 of the decision of the Industrial Appeal Court in Civil Service Association of Western Australia Inc –v- Director General of Department of Community Development [2002] WASCA 241 where His Honour, Anderson J says:

“19 In examining this contention, the Arbitrator might have been expected to confine herself to those facts which were alleged by Ms S in support of her complaint.  The Arbitrator might have been expected to simply ask herself the question whether if all of the factual material put forward by Ms S in support of her complaint was true, did that factual material disclose grounds on which the Director could suspect that Mr H had committed a breach of discipline whilst serving as an employee.  I think that would have been the proper and better approach.  Instead the Arbitrator heard evidence from Mr H, and only from him.  Mr H was allowed to give evidence to the Arbitrator to the effect that his "official duties" ceased when he left the training venue to return to his motel.  He was allowed to give his version of the circumstances under which he, Ms S and the other members of the group came to be socialising.  He gave his version of his behaviour and of the behaviour of Ms S and as to how events unfolded during the course of the evening and early morning; and he was allowed to give evidence contradicting the account given by Ms S of the sexual assault upon her.

20 I do not consider that this was appropriate.  If an employing authority suspects that there may have been an actionable breach of discipline, and there are reasonable grounds for that suspicion, the authority ought to be allowed to carry out its statutory duty to conduct an investigation to see whether there was in truth an actionable breach of discipline.  Prima facie it would not seem to be a proper exercise of jurisdiction by the Public Service Arbitrator to stop the employing authority from doing so on the basis of the Public Service Arbitrator's own investigation of the facts.  No doubt it is perfectly proper for the Public Service Arbitrator to stop baseless disciplinary proceedings.  However, I think the judgment as to whether the proceedings are or are not baseless should be made by reference only to the matters alleged in the complaint.”

7         Accordingly, the role of the Arbitrator in dealing with such a matter as this is not the same as the role of the Board and is to deal with the matter by considering whether there is a basis for the disciplinary proceedings, or whether they are baseless. 

8         This is to be done by reference only to the matters alleged in the complaint.  The complaint is that made by Ms G, and as reflected in the allegations put to Mr H, is:

“That on 22 November 2000, whilst travelling to Broome on work-related business, you initiated a conversation of a personal and sensitive nature with Ms (G).  Pursuant to Finding 5.1 of the Report it is alleged that in doing so you acted inappropriately and thereby:

1. Committed an act of misconduct in contravention of Section 9(a) of the Public Sector Management Act 1994, General Principles of Official Conduct, by failing to comply with the WA Public Service Code of Ethics, specifically the key principles of Justice, Respect for Persons and Responsible Care, in your official duties as Manager CSTC towards Ms (G), then a sub-ordinate contractor;

2. Committed an act of misconduct in contravention of Section 9(b) of the Public Sector Management Act 1994, General Principles of Official Conduct, by failing to act with integrity in the performance of your official duties as Manager CSTC towards Ms (G), then a sub-ordinate contractor;

3. Committed an act of misconduct in contravention of Section 9(c) of the Public Sector Management Act 1994, General Principles of Official Conduct, by failing to exercise the proper courtesy, consideration and sensitivity in your dealings with Ms (G), then a sub-ordinate contractor;”

(Exhibit A(7))

9         These allegations follow a preliminary investigation to determine whether the respondent should suspect a breach of discipline.

10      I find that if all of the factual material put forward by Ms G in support of her complaint is true, then the respondent could have suspected a breach of discipline.  The conduct alleged related to the conversation between Ms G and Mr H while they waited for their flight, and during the course of their flight to Broome, the purpose of which was to undertake work for the respondent. The conversation took place during working hours, on a trip paid for by the respondent.  It was between a manager and a subordinate contractor.  Based on the complaint by Ms G and the preliminary investigation by Ms Abbott, the respondent had grounds to conduct an investigation, and begin a formal disciplinary process. The complaint therefore could not be described as baseless.  Accordingly, the disciplinary process ought not be brought to a halt in the circumstances described by His Honour, Anderson J.

11      A matter not addressed by the Industrial Appeal Court in CSA v Director General, Department of Community Development (supra) is whether the process ought be brought to a halt by the Arbitrator on the basis of procedural flaws or breaches.  There are potentially many steps during the course of a disciplinary process where procedural flaws or breaches may occur.  There are issues of degree, i.e. those flaws may be of a minor nature and of little real effect, or they may have the effect of tainting the whole process and the ultimate outcome.  I am of the view that the decision of the Industrial Appeal Court does not indicate that the Arbitrator is not able to deal with such matters on the basis that the procedure being applied in a particular case is so flawed as to taint the whole process. 

12      The legislature clearly intended that the Board would deal with disciplinary processes both as to any flaws in or breaches of the process and as to the merits of the matter by way of a hearing de novo.  Unless there are baseless disciplinary proceedings, or where there are significant flaws or breaches in the process which will so taint the whole process and the outcome, those matters should proceed to finality and an employee aggrieved may then proceed before the Board and have the whole process and the outcome dealt with.  I am indeed concerned that a use of applications to the Arbitrator to stop the process could occur at any and every stage.  If this were the approach to be taken by an applicant, disciplinary proceedings would become bogged down at every stage by applications for them to be ceased.  This would not be a proper use of the Arbitrator’s jurisdiction.  This is particularly so when there is clearly a provision for the rectification of any problems at the conclusion of any process.  Further, it would be only in circumstances where there was clearly a baseless disciplinary process or a very clear and significant breach of the process which would have the effect of undermining the whole process and the outcome that such an application could be justified or warranted.  Applications to stay the process based on breaches of or flaws in the process which would not be so significant as to taint the whole process and the outcome ought be discouraged.

13      I also express my concern that this application is brought to the Arbitrator to cease the disciplinary process at this, the very last stage of the process, particularly given that essentially the same process has been the subject of an appeal to the Board.

14      I have found that the disciplinary process in this matter was not baseless.  Also, as found by the Board in PSAB 4 of 2001, the disciplinary process in this matter, being conducted as it was in tandem with that process considered by the Board, does not suffer the significant flaws or breaches alleged such as to warrant the process being halted.  I adopt the Reasons for Decision of the Board in that regard.  I also take account of the very late stage which the disciplinary process had reached before this application was filed, and the remedy available being an appeal to the Board.

15      Accordingly, the application will be dismissed.