100316418

AGAINST THE DECISION TO SUSPEND MADE ON 16/7/2002

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES STEPHEN KELLY

APPELLANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF JUSTICE

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

 COMMISSIONER P E SCOTT – CHAIRMAN

 MS D ROBERTSON – BOARD MEMBER

 MS G HUSK – BOARD MEMBER

DATE THURSDAY, 17 APRIL 2003

FILE NO PSAB 12 OF 2002

CITATION NO. 2003 WAIRC 08164

_______________________________________________________________________________

Result Appeal dismissed due to lack of jurisdiction

Representation

Appellant Ms M in de Braekt (of Counsel)

Respondent Mr R Bathurst (of Counsel)

_______________________________________________________________________________

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (“the Board”).

Background

2         The history of this matter is lengthy but is it necessary to set out much of it for the purpose of providing the background to the issues for consideration.  It is not the intention to recite each and every step of the process undertaken such as every telephone call between the Associate to the Board (“the Associate”) and the parties but to cover the important elements.

3         On 22 August 2002, the appellant filed an appeal, in the following terms:

“… against the respondent’s decision on 16 July 2002, to suspend Mr Kelly, without explanation, from his duties at Casuarina Prison, and the on-going approach towards Mr Kelly by the respondent (including but not limited to the unlawful/unfair investigation into unexplained alleged misconduct and unlawful transfer), pursuant to sections 78(1) of the Public Sector Management Act 1994 and/or sections 80I(1)(d) and 80J of the Industrial Relations Act 1979”

4         The schedule to the Notice of Appeal sets out 16 so called Grounds; 15 so called Particulars; a “Request for an extension of time” on the basis that the appeal was filed more than 21 days after the date of the decision appealed against; an application for Urgent Interim Orders and 11 Final Orders Sought.  On 29 August 2002, the appellant filed a declaration of service indicating that the Notice of Appeal had been served on the respondent on 26 August 2002.

5         The appellant had filed an application against the respondent on 26 July 2002, being P 43 of 2002.  That application stated that the applicant “has this day applied to the Commission, pursuant and/or in relation to section 78 of the Public Sector Management Act 1994 and/or sections 29(b), 80E, 80F, 80I and/or 80J of the Industrial Relations Act 1979, for the actions, inactions, any matters or things related to the respondent’s decision on 16 July 2002, to suspend Mr Kelly, without explanation, from his duties at Casuarina Prison, to be reviewed, adjusted, modified, nullified and/or varied in the hearing and determination of the matter.”

6         The Grounds, Particulars, Urgent Interim Orders Sought and the Final Orders Sought are almost identical to those in PSAB 12 of 2002.

7         On 29 August 2002, the Civil Service Association Inc made application to the Commission, against the respondent “for the respondent’s approach towards Mr Stephen Kelly to be reviewed, modified, nullified and/or varied, by the Public Service Arbitrator, upon hearing and determination of the application.”  This is application P 46 of 2002, and the Grounds, Particulars, Urgent Interim Orders Sought and Final Orders Sought are almost identical to those in PSAB 12 of 2002 and P 43 of 2002.

8         This background, in particular reference to the filing of application P 43 of 2002 on 26 July 2002, has relevance to the application for an extension of time in which to file the appeal to the Board.

9         By facsimile transmission of 26 August 2002, addressed to the Registrar, the appellant sought that the appeal “be called on as soon as possible despite the usual 21 days in which respondents have to file a notice of answer and counter proposal …”.  No reasons for urgency were stated.  The appeal was allocated to the Board on 28 August 2002, and by 29 August 2002, the parties’ nominees for the formation of the Board were received.  On 30 August 2002, the Board directed the appellant to advise by 2 September 2002 as to the grounds and reasons for the request that the matter be dealt with urgently, and the respondent was to respond by 4 September 2002.  The parties made their submissions on time.  The respondent’s submission was in the form of a letter, in which the respondent clearly challenged the jurisdiction of the Board to deal with the appeal.  The appellant sought time to reply to the respondent’s submission however, the Board advised the applicant’s representative not to reply at that stage.  The appellant’s representative responded that she had “been instructed to send the reply as it is not fair that we have no reply to the issues raised by the respondent as they were able to reply to our submission.  It is up to the Board whether they consider it.”  The Associate replied that the appellant was not to reply at that stage, that if the Board needed to hear from the appellant it would ask.

10      On 5 September 2002, the Associate to the Board (“the Associate”) wrote to the parties noting that the respondent had advised in its submission of 4 September 2002 that the “preliminary investigation is almost complete and an outcome is expected by the end of the week”. As the investigation was one of the significant aspects of the appeal, on the basis of that advice, the Board set out a process by which the matter could be dealt with including whether the advice of the respondent to the appellant as to its decision as to the “preliminary investigation” was to be provided to the appellant by 9 September 2002 and if it had not done so by that date, then the Board invited the parties’ submissions as to whether the matter ought await the conclusion of the disciplinary process in light of comments made by the Industrial Appeal Court in a recent decision.  The appellant was to provide a response by the close of business on 10 September 2002 and the respondent by the close of business on 11 September 2002.  The parties were advised that if the matter was to be dealt with urgently, the Board would make itself available at short notice and would expect the parties to do so likewise.

11      On 9 September 2002, the respondent advised the Board and the appellant that it would not be able to advise of its position regarding any disciplinary proceedings by close of business that day due to the need to deal with the prison officers’ strikes.

12      Following a reminder by the Associate, the appellant filed the submission requested by the Board on 11 September 2002, a day later than the time specified in the letter of 5 September 2002.  The Associate’s advice to the appellant’s representative that day included a suggestion that “should the appellant wish to have the Board amend the time frames and/or the matters to be dealt with as set out in my letter dated 5 September 2002 then the appellant ought put that to the Board rather than simply allowing the time frames to pass without explanation.”  The respondent then sought an extension of time to allow it to reply, and did so on 12 September 2002.

13      The Board then decided on the basis of the parties’ submissions that the matter would be dealt with urgently, as requested by the appellant and would not await the outcome of the respondent’s considerations.  By letter dated 13 September 2003, the Associate advised the parties that they would be contacted to arrange the hearing as soon as possible and the Board sought confirmation of the parties’ respective positions and that the essential issues were:

“1. The appellant claims:

(a) that the respondent is engaged in ongoing unlawful action in that it has failed to adhere to the disciplinary procedures in the Public Sector Management Act 1994; and

(b) that the direction to Mr Kelly to not attend work constitutes a suspension, and that this suspension does not comply with the requirements of the Public Sector Management Act 1994.

The other matters raised appear to be consequential upon those issues.  The appellant seeks the orders set out in the Notice of Appeal.

2. The respondent says:

(a) that there has been no unlawful action in that the process being undertaken is preliminary to any disciplinary action pursuant to the Public Sector Management Act 1994, for the purpose of the employer deciding whether it has a suspicion upon which to enter into the disciplinary process; and

(b) that the direction to Mr Kelly to not attend work does not constitute a suspension in accordance with the Public Sector Management Act 1994.

The respondent also raises issues of the jurisdiction of the Public Service Appeal Board to deal with the matter and also says that the appeal is out to time.

Due to the urgency of this matter and the nature of the issues to be dealt with the Board believes that an extended half day would be adequate to address the issues provided that certain procedural arrangements were put in place.  The Board directs that:

1. the parties are to prepare detailed outlines of submissions so that there would be no need to deal with detailed submissions on the day; and

2. witness statements are to be filed and are to constitute all of the evidence in chief of witnesses to be called, if evidence is necessary.

If there is a need to have any further procedural matters dealt with the Board has authorised the Chairman to convene a conference for that purpose.”

14      On 16 September 2002 the appellant’s representative, on being contacted by the Associate with a view to listing the matter the following Thursday or Friday, indicated that the hearing could not go ahead that week because there was an issue regarding discovery, that she could not proceed without it and said that she would make an urgent application for discovery. 

15      On 17 September 2002, the appellant made an application for discovery.  The matter of discovery was the subject of a conference.  However, that was unable to resolve the matter.  The Board convened on Thursday 19 September 2002 to hear that application.  At the conclusion of the hearing the Board announced the Order it would issue.  On Friday, 20 September 2002, the Board formally issued its order and on Monday, 23 September 2002 issued reasons for decision in respect of discovery.  In those reasons for decision the Board rejected the appellant’s claim for discovery of a report prepared by the respondent’s Internal Investigations Unit (“the IIU report”) on the basis of public interest privilege.

16      On 15 October 2002, the appellant’s representative wrote to the Board indicating that the documents discovered as a result of the Board’s order did not provide the information necessary, and, in a 4 page letter made what was in effect a submission as to the need for discovery including of the IIU report.  By letter dated 16 October 2002, the Associate replied to the appellant’s representative’s letter of 15 October 2002, noting that the application for discovery which had been before the Board had been dealt with on 19 September 2002 and it appeared that the letter of 15 October 2002 constituted a submission which might not be appropriate for the Board’s consideration at that time.  The Board sought clarification from the appellant as to whether or not he was seeking that the Board consider the reopening of the hearing regarding discovery, or consider the matter afresh.  In any event, it would be appropriate for an application to be made and that could be in the form of a letter should the appellant think it appropriate, stating briefly the grounds of such an application.  The letter noted that the Board would then invite the respondent’s views and consider how to deal with this matter but noted that the Board was not prepared to proceed with the matter by way of a series of correspondence in the nature of the appellant’s letter.  Further, the letter advised the appellant’s representative not to provide any transcripts of the contents of documents discovered as foreshadowed in her letter of 15 October 2002.

17      On 28 October 2002, some 12 days after the Associate’s letter of 16 October 2002, the appellant filed a Notice of Application for “the full discovery, production and inspection of documents.”  It is noted that that application contains what might properly be described as submissions and is approximately 7 pages of detailed argument.

18      The respondent filed a Notice of Answer and Counter Proposal on 6 November 2002.  This clearly identified that the respondent challenged the Board’s jurisdiction, and objected to joinder of the appeal and application before the Arbitrator.

19      On 6 November 2002, the Associate contacted the parties regarding listing the hearing of the second application for discovery and it was set down for 15 November 2002.

20      On 8 November 2002, the appellant filed a Notice of Admit.  The Notice of Admit contains some 67 questions for the respondent to admit or deny.  Around 20 of the questions related to the IIU investigation and report which had been the subject of the first discovery application.

21      On 8 November 2002, the appellant filed a further Notice of Application for discovery, production and inspection of documents.  This application for discovery also related to application P 43 of 2002 and P 46 of 2002, as did the Notice to Admit.  The Notice of Application regarding discovery filed on 23 October 2002 did not relate to P 46 of 2002 although it did relate to P 43 of 2002.  The appellant confirmed that the only difference between the applications filed on 28 October 2002 and 8 November 2002 was that the latter also related to P 46 of 2002. 

22      By correspondence dated 12 November 2002, the appellant requested that the application for interim orders also be dealt with at the hearing on 15 November 2002, and foreshadowed seeking joinder of the applications before the Arbitrator and the appeal before the Board.

23      On 13 November 2002, the Associate advised the parties that only PSAB 12 of 2002 was listed for hearing in respect of the second application for discovery on 15 November 2002, and also advised the appellant’s representative of the Chairman’s concerns regarding whether or not it was possible to join 2 jurisdictions i.e. of the Board and of the Arbitrator for the purpose of any hearing of the applications and the appeal. 

24      On 14 November 2002, the respondent wrote to the Board seeking an extension of time in which to respond to the Notice to Admit, of 30 days.  By correspondence of 18 November 2002, the appellant, in 2 pages of argument, objected to the respondent being granted any extension of time at all.  The remainder of this correspondence included some 2 pages in reply to the respondent having merely foreshadowed that he might apply for the appeal to be dismissed in the public interest, and further contained the reiteration of arguments dealing with joinder and interim orders under application P 46 of 2002, and the status of P 43 of 2002.  In the course of this letter the appellant’s representative said that “whilst it may not be technically possible to join appeals to the Public Service Appeal Board with other applications before the Commission, it is possible to progress them simultaneously and have hearings on the same day, so as to allow parties to adopt evidence and submissions from preceding matters.”

25      It should be noted that, although not strictly relevant to this matter, the Arbitrator convened a conference of the parties in the applications before the Arbitrator (i.e. P 43 and P 46 of 2002) at around this time which covered issues of joinder and interim orders.  By this time, the appellant had before the Commission, the Arbitrator and the Board the multiplicity of applications and appeal referred to earlier, and was seeking a number of interlocutory orders for each.  It should be noted also that by this time the Arbitrator dealing with P 43 and P 46 of 2002, being the same person who is the Chairman of the Board, had dealt with the respondent’s application for an extension of time in which to answer the Notice to Admit in the matters before the Arbitrator, and that the Notice to Admit was identical for each of the 3 matters.  The Board however, did not deal with the respondent’s application for an extension of time.  It is fair to say that by this time, the Chairman’s and Arbitrator’s reservations and concerns regarding a lack of capacity within the Industrial Relations Act 1979 (“the Act”) for the joinder of two separate jurisdictions, or even for a joint hearing for the purpose of considering that matter, had been made known to the parties in conference and via the Associate. 

26      A Notice of Hearing had been provided to the parties on 11 November 2002 as to the second application for discovery and that was heard by the Board on 15 November 2002.

27      By a submission filed on 21 November 2002, the respondent dealt with the Board’s jurisdiction to grant interim orders, stating that no such jurisdiction arose.

28      On 22 November 2002, the respondent replied to the Notice to Admit.  Privilege was claimed in respect of 16 questions.

29      By correspondence dated 22 November 2002, the appellant’s representative wrote to the Board and the Arbitrator a 2 page letter in which, amongst other things, it was indicated that the appellant was not prepared to attend a meeting with the respondent in respect to arrangements for his return to work.  Further, the appellant expressed concern as to proceedings being delayed while waiting for the respondent to provide details of certain matters, requested interim orders and discovery be dealt with by the Arbitrator.

30      By written submission dated 26 November 2002, the appellant replied to the respondent’s submission regarding the issuing of interim orders.

31      In a telephone conversation on 27 November 2002, the appellant’s representative advised the Associate that the respondent had not replied to the Notice to Admit before the Board and requested that that matter be dealt with.

32      On 27 November 2002, the appellant’s representative was advised that PSAB 12 of 2002 would be listed for hearing.  The appellant’s agent advised that she would be available after 7 January 2003.  The Associate discussed with the parties the prospect of listing the matter for hearing on 28 and 29 January 2003. 

33      On 29 November 2002 the respondent provided to the Board a reply submission on issuing interim orders under s.80I of the Act.

34      By correspondence dated 9 December 2002, a 3 page document, the appellant’s representative apologised for delaying her reply to the respondent’s reply to the Notice of Admit but said that she was currently on 3 weeks’ work related training course.  She went on to say that the respondent’s reply to the Notice of Admit was inadequate and improper, and detailed that assertion.  It is noted that the appellant at that point did not seek anything particular, but merely complained about the respondent’s failure to respond as the appellant required.  However, the appellant did “request that the Commission compel the respondent to properly answer all of the 67 statements well in advance of the scheduled hearing date.”  By letter dated 12 December 2002, the Associate wrote to the appellant’s representative advising, once again, that unless otherwise decided in a particular case, written submissions was not the usual manner by which matters would be dealt with by the Board.  The letter noted that it was the Board’s intention to not deal with matters by way of correspondence in the form of submissions and advised that if a party wished to have a particular matter dealt with then that party should clearly and concisely state what is sought, such as a conference or a hearing, and set out in brief terms the issues that that party seeks to have dealt with.  The letter also advised that the Board noted the lengthy submission from the appellant dated 9 December 2002 and other correspondence and advised that should the appellant wish a particular issue or matter to be dealt with by the Board, then the appellant should briefly identify the issue and what was sought i.e. a conference or a hearing.  The Board also advised that “until the Board hears from you in those circumstances, it is not the Board’s intention to deal with your correspondence of 9 December 2002.”  Further the Board noted that it had previously dealt with the issue of the discovery of the IIU Report and did not intend to consider any further submissions regarding that matter.

35      On 12 December 2002, the Board issued Reasons for Decision and an order dismissing the second application for discovery.

36      By late December 2002, it became clear that the hearing scheduled for 28 and 29 January 2003 would be unlikely to be able to proceed on those dates.

37      By facsimile transmission dated 9 January 2003, the appellant’s representative sought that the Board “specifically direct the respondent, by the issuing of very specifically worded Orders to properly answer all of the statements contained within the notice to admit by answering with a denial or admission, and without any other claims of irrelevance or lack of clarity”.

38      On 20 January 2003, the Associate contacted the parties with a view to convening a conference to deal with the Notice to Admit.  This was dealt with at a conference at 10.30 am on 4 February 2003.  At that conference, a number of the questions which the respondent had found difficulty in  answering were clarified, a number were answered specifically including matters in respect of which the respondent had formerly claimed privilege, and the respondent undertook that by midday on Thursday of that week he would endeavour to clarify the issue of public interest privilege claimed, but foreshadowed that he may seek an extension of time until the close of business on Friday depending on whether or not counsel was available to deal with the issue.  The respondent subsequently sought the Board’s leave to deal with those matters by close of business on the Friday and the Board granted leave to do so. 

39      During the conference on 4 February 2003, and following the discussion as to the Notice to Admit, the Board was advised as to the status of the dispute between the parties.  On account of that information, the Board made very particular note of advising the parties that it had concerns as to whether changes occurring with the passage of time and events might mean that it was no longer necessary and appropriate for the matters set out in the appeal to be dealt with by the Board.  Accordingly, the Board invited the parties’ submission in respect of that issue and set out time frames to ensure that that matter could be dealt with so as not to delay the substantive hearing of the appeal which by then was scheduled for 31 March and 1 April 2003.  Accordingly, the Board, as it was raising this issue of its own volition and not responding to an application of one of the parties, invited both parties to put in their submissions by the close of business on 18 February 2003, and then each would have seven days from that date to reply to the other’s submission.  This was confirmed in writing.

40      On 6 February 2003, the respondent filed a Reply to the Notice to Admit and a submission on public interest immunity as it related to the Notice to Admit.

41      The parties’ submissions on whether the matter ought proceed in the public interest, as raised by the Board on 4 February 2003 were due by the close of business on 18 February 2003.  The respondent provided his submission within that time.  Nothing had been received from the appellant by the morning of 19 February 2003, and the Associate was instructed to telephone the appellant’s representative regarding that submission.  The appellant’s representative advised that she had sent an email apologising for not being able to meet the deadline due to other urgent issues having arisen.  She was informed that no such email had been received.  At 12.33pm on 19 February 2003, the appellant’s representative faxed through to the Associate a copy of her email of 18 February 2003 at 5.31pm referred to earlier notifying that she would not be able to deal with that matter.  She also notified that “I shall have this submission and the appellant’s answer to the respondent’s submission on the notice to admit issues in by the close of business this Thursday the 20th February 2003.  I am very sorry about this, but it became impossible to meet those deadlines due to other developments.”  The Board directed the Associate who then sent an email to the appellant on Thursday 20 February 2003 noting her email and indicating that the Board expected that she would provide her submission by close of business that day as she had advised.  However, no submission was received from the appellant by the time undertaken by her.

42      On the morning of 21 February 2003, the appellant’s representative advised the Associate that she had not been able to make the time frame which she had previously advised of the close of business on 20 February 2003 but would do so by midday on 21 February 2003. 

43      By 21 February 2003, the Board became concerned to ensure that given the delay in receiving the appellant’s submission, that submissions in reply would be filed within the specified time frame.  Accordingly, that day the Associate wrote to the parties in the following terms, formal parts omitted:

“I am directed by the Public Service Appeal Board to write to the parties in respect of the above matter and the filing of submissions which were due to be received by the Board on the 18th February 2003, and submissions in reply.

The Board notes with concern that the appellant did not file his submissions by the time required by the Board, i.e. close of business on the 18th February 2003.  Nor did his representative seek leave to file that submission late, merely advising that it would be filed by the close of business on the 20th February 2003.  The Board also notes that the submission was not filed by the 20th February 2003, and that the appellant’s representative advised on the 21st February 2003 that it would then be filed by midday on the 21st February 2003, once again not seeking the Board’s leave for an extension of time in which to file.

As noted in my letter of 4 February 2003, each party would have seven days from 18 February 2003 in which to reply to the other party’s submission.  The Board reminds the parties of the requirement to have their submissions in reply to the Board and to each other no later than 5.00pm on 25 February 2003.  Late submissions will not be accepted without the Board’s leave.  This is to ensure that both parties make their submissions within the required time, that neither is disadvantaged by any delay on the part of the other party, and to enable the Board to deal with the matter as quickly as possible bearing in mind that the substantive appeal is currently scheduled to be heard on Monday, 31 March and Tuesday, 1 April 2003.

In the meantime, if you should have any queries please do not hesitate to contact me on 9420 4484.”

44      At 1.00pm on 21 February 2003, the appellant’s representative telephoned the Associate and advised her that her car had broken down, she was not in the office that day and this was the reason she had been unable to file her submission by 12.00 noon that day.  She apologised for the delay and said that her car should be fixed within half an hour and she would then fax her submission to the Commission.  By 3.00pm that day no such submission had been received by the Board and as directed by the Board, the Associate unsuccessfully attempted to contact the appellant’s representative on her mobile telephone, on her home telephone and at her office.  Her mobile telephone had been disconnected, there was no answer on her home telephone, and she was not in her office.  The appellant’s supervising solicitor was also unable to contact the appellant’s representative.

45      On 21 February 2003 at 4.18pm, not having been able to contact the appellant’s representative since 3.00pm that day on the telephone numbers she had provided, the Associate advised the appellant’s representative by email as follows:

“Dear Ms In de Braekt

I have unsuccessfully attempted to contact you on telephone numbers provided by you since 3pm today.  The Board has directed me to advise you of the following:

1. as you failed to meet the deadline for submissions in this matter of(sic) close of business on the 18th February 2003;

2. and that without seeking leave to extend the time for filing your submission you advised on the 19th February 2003 that you would make submissions by COB on the 20th February 2003;

3. and on the morning of the 21st February 2003 that without seeking leave to extend time for filing your submissions you advised that your submission would be made by 12 noon;

4. that at 1pm you advised of further difficulties in getting your submission filed but that the situation should be rectified within 1/2 hour and you would then fax your submission to the Board.

5. by 3.30pm no submission has been received by the Board.

6. The Board directs that unless your submission is received by 5pm tonight, the submission will not be accepted.”

46      At 4.30pm that day, a submission was received by facsimile transmission from the appellant’s representative.  However, that submission dealt with the public interest privilege regarding the Notice to Admit, and not the matter on which the Board sought the parties’ submission i.e. whether the matter ought proceed in the public interest on account of possibly changed circumstances.  It is noted that in the appellant’s representative’s facsimile of her email of 18 February 2003, there was reference to submissions on both the matter raised by the Board and the Notice to Admit being to the Board by close of business on 20 February 2003.

47      On 21 February 2003, the respondent provided an Amended Reply to the Notice to Admit.

48      On Monday, 24 February 2003 at the Board’s direction, the Associate, by email, advised the appellant’s representative that the submission provided by her on the previous Friday was not the one sought by the Board in its letter of 4 February 2003.  At 4.00pm on 24 February 2003, the appellant filed a “Submission on Proposed Dismissal in the Public Interest”.  At the direction of the Board, the Associate sent an email to the appellant’s representative advising her that:

“Further to the Board’s letter of the 4th February 2003 and the direction of the Board on the 21st February 2003 the Board notes that a submission on dismissing the appeal in the Public Interest was filed in the Registry at 4.30pm yesterday.  No application to file the submission late or any explanation for the late filing has been received.  In the circumstances the late submission will not be accepted.”

49      The Associate also spoke to the appellant’s representative that day by telephone.  She advised the Associate that the submission that she had filed on 24 February 2003 was her submission in reply.  Although the Board had concerns that neither the title nor the terms of the submission in any way indicated that it was a submission in reply, the Board decided to accept that submission as the submission in reply.  The respondent was due to have provided its submission in reply to the appellant’s submission however, because no initial submission had been received from the appellant the respondent requested a further 7 days in which to reply to the appellant’s submission and the appellant consented to that further time being granted.

50      By facsimile transmission dated 25 February 2003, the appellant’s representative wrote to the Board a document some 3 and a half pages in length which appeared to constitute some sort of complaint about the way in which the Board was proceeding to deal with the matter and raised the possibility of perception of bias on the part of the Board, particularly as the Board had raised the issue of whether the matter ought to proceed in the public interest, and the respondent had not objected to any delay on the part of the appellant in filing the submission. 

51      At the direction of the Board the Associate wrote to the parties on 5 March 2003, formal parts omitted, as follows:

“I am directed by the Public Service Appeal Board (“the Board”) to write to the parties in this matter.

The Board notes the Appellant’s “Submission on the Proposed Dismissal in the Public Interest” filed on the 24th February 2003, and the Respondent’s request of the 26th February 2003 for a further seven days to reply to that submission.

The Board notes the Appellant’s consent to that request and agrees to the Respondent having a further seven days to reply.

The Board also notes Ms In de Braekt’s facsimile transmission of the 25th February 2003, in particular that the Appellant raises the issue of perception of bias, and has requested that the Board forward the matter to the Chief Commissioner for re-allocation.  In the circumstances, the Board is of the view that it is appropriate to hear formally from the parties on that matter before deciding whether or not to accede to the Appellant’s request.  Accordingly, a hearing will be convened for that purpose.

The Board further notes that it invited the parties to make written submissions on whether or not the matter should proceed in the public interest on the 4th February 2003, and that the Appellant raised no objection to the matter being dealt with by written submissions until three weeks later when the process of written submissions was due to be concluded.  However, as the Appellant has now raised that matter, the Board intends to provide an opportunity for the parties to speak to their submissions and call any necessary evidence.  Accordingly, immediately following the hearing to deal with the issue of perceived bias, the parties will have an opportunity to speak to their submissions and call any evidence on the issue of whether or not the matter should proceed in the public interest.  The Board intends to then proceed to determine the issue of perceived bias.  If the Board determines that there is a perception of bias, it will forward the matter to the Chief Commissioner for re-allocation, and a new Board will be convened and that newly convened Board will determine how the matter should proceed.

However, if having heard from the parties as to perceived bias, the Board as presently constituted decides that there is no perception of bias, and that it is appropriate to proceed to deal with the matter, it intends to then consider the submissions and any evidence as to whether or not the matter should proceed in the public interest.

Should the Board decide not to dismiss the matter, it intends soon thereafter to move to deal with the Notice to Admit and other interlocutory matters before proceeding to deal with the substantive Appeal.

I will contact you in the next couple of days regarding your availability for a hearing for the perceived bias matter and an opportunity to speak to submissions and call evidence regarding whether or not the matter should proceed in the public interest.”

52      Between 11 March 2003 and 27 March 2003, the appellant’s representative wrote to the Board on a number of occasions setting out a number of concerns and complaints.  Included in those was a request that the Board simply refer the matter to the Chief Commissioner for reallocation on the grounds of alleged perception of bias.  The correspondence of 11 March 2003, a 3 page facsimile transmission, also set out 8 questions asked of the Board by the appellant including:

“…

6. When and why did the Commission decide that matters should not be assessed on the state of affairs that existed at the time the appeal/applications were commenced?

7. Why didn’t the Commission first deal with the outstanding interim orders and notice to admit issues, before moving its own motion that the matter should be dismissed, in the public interest prior to hearing?

8. Why did the Commission move its own motion to dismiss the matter in the public interest, prior to substantive hearing, rather than leave such motions to the parties, as per the Commission’s usual approach?”

53      During the period immediately following 5 March 2003, the Board unsuccessfully attempted to set the matters referred to in the letter of that date for hearing prior to 3 March 2003 so that it might be able to deal with those preliminary matters in such a way as to preserve the 31 March and 1 April 2002 for the hearing of the appeal, should it decide the preliminary issues in such a way as to allow it to hear that appeal.   However, it was not possible to find a mutually convenient date for the members of the Board and the parties and their representatives.

54      On 31 March 2003 the Board convened.  The transcript of hearing notes that the Board had previously advised the parties that it intended to deal with the matter of perception of bias and provide the parties with an opportunity to speak to their submissions in respect of whether the matter ought proceed in public interest.  It also noted that there was still, as identified by the respondent from the outset, in its correspondence of 4 September 2002 and in its written submissions of 18 February 2003 dealing with whether the matter ought proceed in the public interest, the issue of the Board’s jurisdiction, and that there was a need for the issue of the extension of time to be dealt with as well as other issues.  Accordingly, the Board proposed to deal with matters in the following order, subject to the comments of the parties; perception of bias; the application for an extension of time; the issues of jurisdiction and whether it was in the public interest to proceed; and the other interlocutory matters.  The Board also noted that if it found a perception of bias it would refer the matter to the Chief Commissioner; that if an extension of time was not granted then the matter could not proceed, and that if there was no jurisdiction then, of course, there was no ability for the Board to deal with the matter.  It also noted that if it was not in the public interest to proceed then it would, of course, not do so. 

55      The history of this matter demonstrates an approach on the part of the appellant’s representative which causes the Board concern and frustration.  The appellant’s representative requested that the matter be dealt with urgently.  The Board moved to do so as quickly as it could and proposed to do so.  As soon as the Board had decided that it would hear the matter urgently, the appellant filed an application for discovery and asked that that be dealt with first.  That application was dealt with.  The appellant was not happy with the discovery order issued and filed a second application for discovery which was also dealt with.  In the meantime, the appellant filed the Notice to Admit and then protested at the answers given in the reply.  During conference, following the Board’s attempt to resolve issues associated with the Notice to Admit, it received information as to the status of the matter which caused it to ask whether it is in the public interest to proceed, and the appellant’s representative then protested about the Board’s wanting to be satisfied as to that matter.

56      The appellant’s representative has been advised by the Board on a number of occasions that it is not appropriate to deal with matters by way of lengthy correspondence, which is argumentative and demanding in tone, and has been advised of the appropriate way to deal with matters i.e. by advising in brief terms of what is sought, whether it be a hearing or a conference, the issue to be dealt with in brief terms, such as discovery or a notice to admit, and very brief grounds as to the issue.  The appellant’s representative has consistently either failed or refused to adopt that approach and has continued to provide to the Board lengthy correspondence much which constitutes submissions, or its purpose is not clear other than to complain or demand.  Further, the appellant’s representative has been very assertive in her complaints that the respondent’s actions have not always been what she would seek or anticipate, and yet on a number of occasions has failed to meet time frames set by the Board, and set time frames for herself without seeking leave of the Board for any extension of time, but simply indicating what she would do and then failing to meet her own time frames.  During the course of the hearing of this matter, she has treated the Board with discourtesy and on one occasion, in a most unprofessional manner, advised the Board that she did not understand the ruling given by the Board and would continue to ask questions in cross examination which the Board had already ruled were not relevant, and advised the Board that it would simply have to raise with her questions of relevance on each occasion she asked a question which was not relevant.  Her tone in correspondence and her approach during the process has been quite unprofessional and lacking in courtesy.  Further, if there has been any delay in the matter proceeding, it has been on account of the appellant’s representative’s approach to undertaking this appeal.  In the circumstances, we have felt, unhappily, that it is necessary and appropriate to record our concerns and frustrations as to the progress of this matter. 

Perceived Bias

57      The basis of the appellant’s raising the issue of perceived bias relates to two matters, the first being the letter from the Board’s Associate dated 4 February 2003 to the parties which said that “given that since the appeal was filed the circumstances dealt with in the appeal have changed with the passage of time and events, the parties’ submissions are sought as to whether the issues set out in the appeal are now appropriate and necessary to be dealt with by the Board, and the aspect of the public interest in this matter proceeding.  The Board notes too, that matters based on the same circumstances as those which are dealt with in the appeal are before the Public Service Arbitrator.”  The second matter is that notwithstanding a number of requests by the appellant, the Board had not dealt with applications for interim orders and not finalised the Notice to Admit.  The appellant says that these matters raise a reasonable perception of bias that indicates a predetermined mindset as to the outcome such that a bystander may conclude that there is perceived bias or predetermination.  The appellant says that the Board’s “motion” in respect of s.27(1)(a) of the Act crossed the line between the Board being the arbitrator and a litigant.  The appellant relies on a number of documents which went to form Exhibit 2 dealing with the Notice to Admit and the interim orders. 

58      We note the authorities regarding perceived bias.  In Johnson v Johnson (2000) 201 CLR 488 at 492-494, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ set out the governing principles in dealing with perceived bias:

“11. … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done.  It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision."  The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".

13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case."  Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

14. There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.”

59      Kirby J also dealt with the issue at p 504-505:

“46. If a court of appeal were deciding an allegation of prejudgment for itself, according to its own knowledge and standards, a number of considerations might be taken into account in a case such as the present:

1. Appellate judges realise that most adjudicators strive to be independent and impartial and to make adjustments (so far as they can) for factors of which they are aware which might impact on their decision-making. By their training and experience, most such adjudicators are conscious of the high expectations imposed upon them.

2. Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice.  Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns.  A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.

3. Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process.  Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment.  Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.

4. The adversary system depends on vigorous interaction not only between the parties and their representatives but also between the adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system.”

60      The comments of the High Court in that case highlight the appropriateness of adjudicators raising issues with the parties for their comments.  They also note the active role taken by the adjudicators in the management of the process.  Those comments are most relevant to the circumstances often faced by the Commission, and, in this case, the Board.

61      As noted earlier, the Board in the conference on 4 February 2003 raised a concern as to whether or not the matter ought proceed in the public interest on account of possibly changed circumstances since the filing of the appeal.  Section 27 of the Act sets out the powers of the Commission.  Subsection (1)(a) provides a power to refrain from further hearing and determination in particular circumstances, including that further proceedings are not necessary or desirable in the public interest.  Section 80L of the Act provides that s.27 applies to the Board.

62      The Commission, and in this case, the Board, is not obliged to act only upon the initiative of either of the parties.  If the Board has a concern that it may not be in the public interest that a matter be dealt with, or dealt with further, it is not only entitled but obliged to raise it with the parties.  Having heard from the parties, it may or may not decide that it is in the public interest to proceed.  The Board took particular care in the terminology used both during the course of the conference of 4 February 2003 and in the letter from the Associate to the parties of the same date to ensure that no suggestion ought be inferred from its expression that it had in any way decided that it was not in the public interest to proceed.  The Board merely invited the parties to make submissions on that matter.  As with issues of jurisdiction, or any other matter, where the Commission has a concern as to the status or the standing of a matter then it has an obligation to raise it.

63      The Commission has a power to dismiss matters where it is not in the public interest to proceed.  That is a special power provided to the Commission on the basis that the Commission’s purpose is resolving disputes, not necessarily enabling parties to continue to litigate matters where it may not be in the public interest that such matters proceed.  We note that there are many occasions in matters before the Commission where both parties would be happy for the Commission to arbitrate to resolve their dispute, notwithstanding that the subject of the dispute may not be an industrial matter or the Commission may not have the power to deal with the matter.  The employer and the employee or the union, as the case may be, want the matter resolved and they may not raise jurisdiction as an issue.  However, where the Commission has some concern as to its authority and power to deal with a particular matter, it has an obligation to raise that with the parties.  It is the same with the powers of the Commission under s.27(1)(a) and it is within the Commission’s purview, and that of the Board, to raise such concerns in the public interest.  That is all that has occurred in this case.  If the Board’s intention was unclear to the appellant, then the Board can only note that it has not advocated the dismissal of the matter in the public interest but merely raised a concern, and an objective analysis of the manner in which it was raised ought confirm this. 

64      In those circumstances, the Board is not satisfied that the tests applicable for perceived bias have been met in respect of this aspect. 

65      As to the issues of the Board not having dealt with the matter of interim orders and the Notice to Admit prior to 31 March and 1 April 2003, notwithstanding written submissions from the parties over a period of time and other correspondence, the Board noted at the commencement of the hearing on 31 March 2003 and we reiterate now that until the matter of jurisdiction is heard and determined, the Board is not in a position to consider the application for interim orders or deal with the Notice to Admit.  Without jurisdiction, the Board is unable to even contemplate issuing interim orders.  In respect of the Notice to Admit, this is a tool for the purposes of the arbitration of the matter.  We have set out in the background to this matter the appellant’s attempt to have the matter called on for hearing and yet at the same time seeking not to proceed when the Board attempted to set the matter down for hearing on the basis that preliminary matters were not resolved.  Those preliminary matters could not be resolved until the issue of jurisdiction had been determined.

66      As set out in Johnson v Johnson (supra), and in accordance with the unique role established for the Commission by the Act, the Board has a responsibility to manage the process of a particular case as it sees appropriate.  The Board has done that.  The fact that the appellant would have preferred a different process does not meet the test of perceived bias.  Accordingly, at the hearing on 31 March 2003, the Board decided to dismiss the appellant’s allegation for perceived bias. 

Extension of Time

67      The appeal in this matter was filed on 22 August 2002 and is against a decision of the respondent said to have been made on 16 July 2002.  Section 80J of the Act and regulation 45 of the Industrial Relations Commission Regulations 1985 require that such an appeal be filed within 21 days of the date of the decision appealed against.  Section 27(1)(n) of the Act gives the Board the power to extend any prescribed time or any time fixed by an order of the Commission.  Section 80L of the Act enables the Board to utilise the powers of s.27.

68      The appellant says that because the respondent has not dealt with or responded in any particular way to the issue of the extension of time which was first raised in the Notice of Appeal filed on 22 August 2002 until a few days before the hearing of the matter that is ought be seen to have waived its right to object to the application.

69      Until the application for extension is granted, there ought be no assumption made that the extension will be granted as a matter of right.  The question is whether the circumstances meet the tests for an extension of time.  Those tests are set out in Esther Investments Pty Ltd v Markallinga Pty Ltd (1989) 2 WAR 196; Tip Top Bakery v TWU (1994) 74 WAIG 1189; Ryan v Haselby and Lester trading as Carnarvon Waste Disposals(1993) 73 WAIG 1752 and Robowash Pty Ltd v Michael (1997) 78 WAIG 2323.  They are as follows:

(a) Prima facie time limits imposed by the Act are to be complied with and it is for to the applicant to establish the circumstances such that the discretion to extend time should be exercised in his or her favour;

(b) an extension of time is not automatic and the discretion residing with the Commission to extend time is for the purpose of enabling the Commission to do justice between the parties;

(c) it is for an applicant to demonstrate that strict compliance with the legislation will work an injustice and be unfair in all of the circumstances;

(d) considerations relevant to whether it would be unfair to not extend time include -

(i) the length of any delay;

(ii) the explanation for the delay;

(iii) the steps taken if any, by the applicant to evidence non acceptance of the circumstances challenged;

(iv)  the merits of the substantive application in the sense that there is a case to be answered; and

(v) whether there would be any prejudice to the respondent in granting the application to extend time, although the absence of prejudice to the respondent without more, is not a sufficient basis of itself, to grant an application for an extension of time. 

70      We note with concern the appellant’s representative’s characterisation of the basis upon which the appellant decided to file an appeal to the Board as being based on advice given by the Arbitrator in a conference convened in respect of application P 43 of 2002.

71      A party has an obligation to select the jurisdiction to which that party seeks to proceed.  At the time the matter was commenced the appellant’s representative was a registered agent.  It is true that the appellant filed an application before the Arbitrator prior to filing an appeal to the Board.  That application was the subject of a conference before the Arbitrator.  The application sought to refer the matter of the appellant’s complaint to the Commission under its general jurisdiction under s.29 of the Act, to the Arbitrator and to the Board.  If there was any suggestion during the conference convened by the Arbitrator that the appellant ought make an appeal to the Board, then it is most likely to have been on the basis that he ought select a jurisdiction and proceed with the matter before that jurisdiction rather than take a scattergun approach to the matter and expect that the Commission will sort out what he wants and deal with the matter accordingly.

72      The respondent opposes an extension of time and says that it is for the appellant to demonstrate adequate reasons for the extension.

73      In this particular case, the length of delay is a matter of two weeks and one day.  The appellant argues that by way of application P 43 of 2002 filed prior to the appeal, the appellant had made clear the intention to challenge the respondent’s decision the subject of the appeal.  From a matter of days following the employer’s decision appealed against the appellant has steadfastly made clear his objection and challenge to that decision.  According to the appellant, when the matter went before the Arbitrator in conference in that matter, the appellant was able to elicit further information from the respondent which assisted in the clarification of the issues and the state of affairs such as to enable the appellant to proceed to file the appeal. 

74      As to the merits of the appeal, those merits include serious questions as to the respondent’s decision making processes and its fair treatment of the appellant.  If those matters alleged are:

(a) within jurisdiction;

(b) prima facie correct;

then there may certainly be a case to be answered.

75      As to whether or not there would be prejudice to the respondent, the appellant argues that this is the appropriate jurisdiction in which to complain about certain aspects of the respondent’s decision, that whilst there may be applications before the Arbitrator, the Arbitrator’s jurisdiction does not cover that aspect which is within the jurisdiction of the Board.  If the appeal is not allowed to proceed on the basis of a denial of the extension of time application then the appellant will have no opportunity to challenge those particular aspects which are within the Board’s jurisdiction. 

76      Whilst we acknowledge and express concern at the prospect that there are a number of applications and an appeal all in train dealing with the same circumstances and that the respondent may be required to defend each and every one of those and that this may be oppressive to the respondent and an abuse of process, we note that the respondent has been made aware of the appellant’s challenge since before the time expired for the filing of the appeal.

77      In all of the circumstances, the Board was unanimously of the view, at the date of hearing, that an extension ought be granted to enable the filing of the appeal.  Such an extension is granted.

Jurisdiction

78      The next issues to be dealt with, and as agreed between the parties were heard together, are issues of jurisdiction and whether the matter ought proceed in the public interest.

79      The appeal is said to be “against the respondent’s decision on 16 July 2002, to suspend Mr Kelly, without explanation, from his duties at Casuarina Prison, and the ongoing approach towards Mr Kelly by the respondent (including but not limited to the unlawful/unfair investigation into unexplained alleged misconduct and unlawful transfer), pursuant to sections 78(1) of the Public Sector Management Act 1994 and/or sections 80I(1)(d) and 80J of the Industrial Relations Act 1979”.

80      The appellant says that the respondent has made a decision pursuant to s.78(1)(b) of the Public Sector Management Act 1994 (“the PSM Act”) and that it had entered into a disciplinary process pursuant to s.80(1) of the PSM Act.  Accordingly, there is an appeal pursuant to s.78(1)(b).  This also grounds the appeal as it relies upon s.82 of the PSM Act, as the appellant says that the respondent’s decision to send the appellant home on 16 July 2002 constitutes a suspension.  The appellant also says that s.82 of the PSM Act deals with suspension both with and without pay.  Accordingly, the respondent’s decision to suspend the appellant falls within the jurisdiction of the Board by virtue of s.78 of the PSM Act, in particular s.78(1)(b).

81      On the other hand, the respondent says that the investigation undertaken by the respondent was a preliminary one, that it was for the purpose of the respondent determining whether complaints against the appellant had validity for the purpose of determining whether it could have a suspicion that he had breached discipline such as to enable it to move to the disciplinary process under the PSM Act.  It says that the process did not proceed beyond the preliminary investigation and the respondent has decided not to instigate a disciplinary process against the appellant.  The respondent also says that he has not suspended Mr Kelly.

82      The Board has heard evidence called by the respondent by Ms Stephanie Withers and from the appellant.  That evidence demonstrates and we make the following findings.  The appellant is and has been employed by the respondent as a psychologist for some 10 years.  During that time he has worked in a variety of different areas including as Project Manager for the Naltrexone Treatment programme, Policy Director for the Special Handling Unit within Casuarina Prison, Project Manager for the Suicide Prevention Taskforce and has co-ordinated the Forensic Case Management Team at Hakea Prison and Casuarina Prison.  He has also worked in Bandyup, Hakea, Albany, Wooroloo and Karnet Prisons.  From 2 April 2002 to 16 July 2002, he was working as a clinical psychologist in the Prison Counselling Service at Casuarina Prison.  The appellant was the subject of some complaints.  Ms Withers participated in a meeting with a number of other officers employed by the respondent to discuss what was to occur in respect of those complaints.  One such officer was Mr Terry Simpson, whom Ms Withers described as the head of prisons, who had the authority to make a decision to investigate the complaints and to send the appellant home while the investigation was completed.  During the course of the meeting, Mr Simpson made such a decision.  Mr Alan Piper, the respondent, signed a letter advising the appellant of the decision.  On 16 July 2002, Ms Withers and a number of other officers of the respondent met with the appellant and his union representative and he was given the following letter, signed by the respondent, which reads, formal parts omitted:

“PRELIMINARY INQUIRY INTO YOUR CONDUCT

As the result of information received from Casuarina Prison it has come to my attention that you may have acted improperly in dealing with prisoners.  It is necessary that preliminary inquiries be conducted into this information and accordingly, the matter has been referred to the Department’s Internal Investigations Unit.

Hence, I advise that you are not required to report for duty until such time as I advise otherwise.  During this period you will continue to receive your salary in accordance with your current contract of employment.

You are not to attend any Department of Justice workplace unless you receive my express permission to do so.  Your access to the Department’s computer network will be suspended until further notice.

You are expected to co-operate with this investigation and remain contactable during your normal working hours.  You must also be in a position to return to duty should I so direct.”

(Exhibit 4)

83      The appellant did as he was instructed and continued to be paid his normal salary.  However, after a couple of weeks he went on sick leave, and until the day of hearing has been on a combination of sick leave, annual leave and long service leave.

84      On 2 August 2002, a further letter was sent to the appellant by the respondent which states, formal parts omitted:

“I refer to the correspondence you received from Mr Alan Piper, dated 16 July 2002, in which you were directed not to report for duty until such time as you were advised otherwise. 

The Department is continuing to conduct preliminary inquiries in regard to the information previously received and it is expected the preliminary inquiries will be completed within the next 14 to 21 days.

Should it become known that you may have committed any suspected breaches of discipline you will be advised of that information in accordance with the procedures contained in the Public Sector Management Act 1994.

I am aware that you have submitted a sick leave certificate for the period ending 23 August 2002.  I therefore advise, that upon the expiration of your sick leave, I require you to report to Ms Jackie Tang, Director, Operational Services and Sentence Management at Level 12, 141 St Georges Terrace, Perth.  Ms Tang will advise you of the duties you will undertake upon your return.”

(Exhibit 5)

85      On 7 October 2002, the respondent again wrote to the appellant, this time in the following terms, formal parts omitted:

“Outcome of Preliminary Inquiry

I refer to the correspondence you received from the Department dated 16 July 2002, and 2 August 2002, advising that the Department was conducting a preliminary inquiry into information that you may have acted improperly in dealing with prisoners.

I now advise that no disciplinary action will be initiated against you as a result of the preliminary inquiry.

However, I advise that there are concerns about your performance.  When you return to work from sick leave, I require you to report to Ms Jackie Tang, Director, Operational Services and Sentence Management who will discuss these performance issues with you and provide you with an opportunity to respond.  Ms Tang will also advise you of the duties you will undertake in future.”

(Exhibit 3)

86      Having observed Ms Withers as she gave evidence, we note the following.  She said that the respondent undertook a preliminary investigation for the purpose of determining the validity of complaints against the appellant and if those complaints had validity then the respondent would have “charged” the appellant.  Ms Withers later claimed that she used the term “charge” loosely.  She did not mean to refer to charges formally laid following the employer forming a suspicion then entering into and conducting a disciplinary investigation, which is the first part of the process for disciplinary action pursuant to the PSM Act.  It is only at that stage that there is a “charge” against the employee.  We accept Ms Withers’ evidence in that regard and find that Ms Withers did not intend to use the term “charge” as it is used in the PSM Act but meant that the allegations would be put to the appellant for his response with a view to commencing the disciplinary process if the preliminary investigation resulted in a suspicion being formed that he had misconducted himself.  Further, we generally accept Ms Withers’ evidence that she was part of the decision making process and was one of the decision makers within a group with Mr Simpson, albeit that that the letter to the appellant was signed by Mr Piper.  Ms Withers’ evidence is of the reality and practicality of the decision making process within an organisation.  Such decisions are not made alone or in isolation.  They tend to be made by one person taking advice and receiving information from others, and are often made by consensus.  One person has the formal authority and takes the responsibility for the decision, but it is nonetheless a decision arrived at following consideration by a group.  In this case, I find that on the balance of probabilities the group made a decision for which Mr Simpson and, ultimately, Mr Piper, the respondent, hold responsibility. 

87      Also, Ms Withers’ evidence has been consistent that the investigation undertaken by the respondent was a preliminary one for the purpose of determining whether any complaints against the appellant had validity for the purpose of determining whether the respondent might hold a suspicion upon which to establish a disciplinary process.  We conclude that the terminology used in the letters, which were Exhibits 3, 4 and 5, to the appellant was not merely self serving.  The letters accurately reflected the preliminary nature of the investigation.  Ultimately, the respondent decided that the complaints against the appellant were not valid for the purpose of establishing a disciplinary process, and did not proceed to do so. 

88      The appellant’s evidence is of attending the meeting on 16 July 2002, of being sent home, and of receiving the correspondence of 16 July, 2 August and 7 October 2002.  He also gave evidence which was directed to a different aspect of the matter than Ms Withers’ evidence, and that evidence related mainly to the question of whether the matter ought proceed in the public interest and whether the passage of time and events had meant that there was no need for the matter to proceed.

89      The jurisdiction of the Board is set out in s.80I of the Act.  Although the appeal makes reference to s.80J, that section deals with how and by whom appeals may be instituted.  It is of no particular assistance in deciding this matter. The appellant relies on s.80I(1)(d) of the Act and s.78(1) of the PSM Act.

90      Section 80I(1)(d) of the Act provides:

“80I.  Appeals

(1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine — 

(a) …

(b) …

(c) …

(d) an appeal by a Government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision referred to in subsection (1)(b) of that section;

(e) …

and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).

91      Section 52 of the PSM Act deals with Chief Executive Officers and is not relevant.  Subsection (3) of s.80I of the Act provides that there is no appeal from a decision made under particular regulations, which are not relevant for the purposes of this matter.  Therefore, this appeal is against a decision said to have been made against a decision referred to in subsection (1)(b) of s.78 of the PSM Act.

92      Section 78(1)(b) of the PSM Act provides:

 “78. Rights of appeal and reference

(1) Subject to subsection (3) and to section 52, an employee who —

(a) …

(b) is aggrieved by a decision made in the exercise of a power under section 79(3)(b) or (c) or (4), 82, 86(3)(b), (8)(a), (9)(b)(ii) or (10)(a), 87(3)(a), 88(1)(b)(ii) or 92(1),

may appeal against that decision to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.”

93      Subsection (3) provides:

“(3) Despite section 29 of the Industrial Relations Act 1979, but subject to section 52, an employee — 

(a) against whom proceedings have been taken under this Part for a suspected breach of discipline arising out of alleged disobedience to, or disregard of, a direction which is by virtue of section 94(4) a lawful order for the purposes of section 80(a); and

(b) who is aggrieved by a decision made in the exercise of a power under section 82, 86(3)(a), (8)(a), (9)(b)(i) or (10)(a), 87(3)(a) or 88(1)(b)(i),

may refer the decision referred to in paragraph (b) to the Industrial Commission as if that decision were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.”

94      The appellant says that the respondent had in reality commenced the disciplinary process. 

95      The PSM Act sets out how the process is to be commenced in s.81.  It commences with the employer suspecting that a breach of discipline has been committed (s.81(1)) and concludes at s.92 after a process of investigation, findings and imposition of penalty, charges, inquiry, findings and penalty have been dealt with.  In this case, we have found that the respondent undertook a preliminary investigation to determine whether to suspect a breach of discipline had been committed.  We conclude that the preliminary investigation was one which occurred in advance of, and is not covered by the processes which are set out in sections 81-92.  The employer had decided not to suspect the appellant of a breach of discipline following that preliminary investigation.  The process simply did not get to the point where s.81 commences.  Therefore, the decision of the employer to enter into that preliminary investigation was not a decision made in the exercise of a power under the sections of the PSM Act referred to in s.78(1)(b) or (3).

96      Therefore, there is no right of appeal to the Board pursuant to s.80I(1)(d) of the Act or s.78 of the PSM Act in respect of the preliminary investigation.

97      As to the aspect of the appeal which is based on an allegation that the decision to send the appellant home constituted a suspension under s.82 of the PSM Act, that section provides:

“82. Suspension without pay

(1) If an investigation is initiated under section 81, the employing authority may at any time before proceedings against the respondent are terminated within the meaning of subsection (2) suspend the respondent, if still its employee, without pay.

(2) When proceedings against a respondent for a suspected breach of discipline are terminated by — 

(a) the taking of action under section 83 or 84 that is not cancelled under section 85, or the taking of action under section 86(3), 88(1) or 89; or

(b) a finding that no breach of discipline was committed by the respondent,

the employing authority shall terminate any suspension of the respondent without pay under subsection (1) and, if no breach of discipline has been found to have been committed by the respondent, restore to the respondent the pay of which the respondent has been deprived during the period of that suspension.

(3) An employing authority may, in relation to an employee who has been suspended without pay under subsection (1), on its own initiative or on the application of that employee restore pay to that employee for such period as the employing authority thinks fit.”

98      Subsection (1) clearly provides that it relates to an investigation being initiated under s.81 of the PSM Act.  We have already concluded that the investigation by the respondent was preliminary in nature, and was not pursuant to s.81 which requires that there already be a suspicion of a breach of discipline, which there was not.   The preliminary investigation was aimed at establishing whether there was any validity to the complaints for the purpose of deciding whether to suspect a breach of discipline.

99      Secondly, s.82 clearly deals with suspension without pay, not suspension with pay.  Stripped of its extraneous parts, it reads: “If an investigation is initiated under section 81, the employing authority may … suspend the respondent (i.e. in this case the employee) … without pay”.  The section is headed “Suspension Without Pay”.

100   On the basis that the appellant was not suspended without pay, s.82 has no application.  It is unnecessary to decide whether or not he was suspended.  All that is necessary for the purpose of this matter is to decide whether he was suspended without pay.  He was not.

101   Accordingly, we conclude that there is no right of appeal to the Board arising from any action under s.82 of the PSM Act.

102   Accordingly, there is no valid appeal before the Board, in accordance with its jurisdiction.  The appeal ought be dismissed.

Whether in Public Interest to Proceed

103   If we are wrong in that, we note that on 1 April 2003, the Board did not require Ms in de Braekt to address in her submissions the questions of whether or not the appeal ought proceed in the public interest on the basis that it had concluded that the matters raised in the appeal had not been resolved by the effluxion of time and the passage of events.  This is because the appeal seeks not merely the cessation of the disciplinary process but also seeks orders that the employer not recommence the process and that the appellant be placed back in Casuarina Prison.  It is quite clear that the mere conclusion by the respondent that it will not enter into a disciplinary process based on the outcomes of the IIU report has not resolved the appellant’s complaint about not returning to Casuarina Prison.

104   The evidence indicates that following the investigation by the Internal Investigations Unit and the respondent deciding to take no disciplinary action against him as a result of the enquiry, the respondent had concerns about the appellant’s performance.  Therefore, on 7 October 2002, he was directed that when he returned from sick leave he was required to report to a particular person to discuss those performance issues with a view to decisions being taken about his future work.  It is quite clear that the appellant has refused to meet with the respondent without an undertaking from the respondent that he will return to Casuarina Prison, as the appellant believes that it is only a return to Casuarina Prison which will enable him to be seen to have cleared his name and be vindicated.  Following the letter of 17 October 2002, and the failure of the parties to meet to discuss the appellant’s performance, this issue has not been resolved even though the respondent has decided not to take disciplinary action against him.  It has not entirely resolved the matter the subject of the appeal.  Accordingly, had the Board the jurisdiction to deal with the matter, we would not have dismissed the appeal in the public interest as the passage of time and events had not resolved the matter or meant that it was merely academic to proceed.