100317132

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES VICTOR WALKER

APPELLANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF JUSTICE

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

  SENIOR COMMISSIONER A R BEECH

  MS M MARTIN – BOARD MEMBER

  MR B HEWSON – board member

DATE WEDNESDAY, 18 JUNE 2003

FILE NO PSAB 2 OF 2003

CITATION NO. 2003 WAIRC 08495

_______________________________________________________________________________

Result Appeal dismissed.

Representation

Appellant Mr J. Dasey (as agent)

Respondent Mr N. Cinquina

_______________________________________________________________________________

Reasons for Decision

1         This is the unanimous decision of the Board.  The appellant in this matter was notified on 5 February 2003 by his employer that he was suspected of breaches of discipline regarding the inappropriate use of his work computer.  On that day, he left work due to illness and has not returned to work.  On 7 February 2003 Mr Walker was certified by a medical practitioner as unfit for work by reason of stress, depression, agoraphobia and anxiety. 

2         On 25 February 2003 Mr Walker wrote to the respondent setting out his reply to the allegations of a suspected breach of discipline.  On 28 February 2003 he was advised by the respondent of the respondent’s intention to suspend him without pay under s.82 of the Public Sector Management Act 1994.  On 5 March 2003 Mr Walker advised the respondent that he should not be suspended without pay because he was utilising his sick leave entitlements, that he was unfit to return to work in the foreseeable future and that he would advise the respondent prior to any intention to return to work. 

3         On 16 March 2003 Mr Walker was suspended without pay.  He brings this appeal to the Public Service Appeal Board submitting that his suspension without pay was unduly unfair, harsh and oppressive as its sole effect is to bring unwarranted financial hardship upon Mr Walker and his family by preventing his access to his accrued sick leave entitlements.  He seeks an order quashing the decision to suspend him without pay and requiring the respondent to restore to him his outstanding accrued sick leave entitlements whilst he remains unfit for work as from 16 March 2003.  The Board was provided with the medical certificates from Mr Walker’s medical practitioner which covered the period from 7 February 2003 onwards.  One of those medical certificates is dated 20 March 2003 and certifies that Mr Walker was unfit for work from 7 February 2003 for “an unknown period” due to depression and anxiety.  There was also a letter from Mr Walker’s medical practitioner of 13 March 2003 going into details of his present condition. 

4         Mr Walker’s union submitted on his behalf that the issue was one of fairness to Mr Walker.  Mr Walker has been unfit to attend work since 7 February 2003.  As he has been unfit for work, and has not attended the workplace since that date, the respondent had no need to suspend Mr Walker without pay in order to secure his removal from the workplace pending the investigation into the allegations.  Rather, the only effect of suspending Mr Walker without pay has been stopping his income.  It is not suggested that the respondent would have condoned any misconduct on the part of Mr Walker if it had not suspended him without pay. 

5         It was submitted that suspending an employee without pay will have a severe effect on the employee.  In this case, the Board was asked to consider that the effect was greater due to the length of the investigation process.  The investigation has taken more than three months and it was submitted that this is far too long a period for an employee to be suspended without pay.  It was also submitted that by suspending Mr Walker without pay any incentive on the part of the respondent to bring the investigation process quickly to an end was removed. 

6         The Board was also referred to the Public Service Commission Discipline Manual as it relates to the disciplinary process and suspension (exhibit CSA 1, Attachment 9, paragraph 8.11).  It provides in 8.11.3 as follows:

 “An employee may be suspended if:

i the offence is considered to be of such a serious nature that dismissal is a possible outcome; and/or

ii his/her continued presence in the work area is inappropriate due to:

 a. the effective operation of the public sector body;

 b. the interests of the public;

 c. the interests of the employee; or

 d. the interests of his or her fellow employees.”

7         It was submitted that best practice relies on the respondent taking the specific issues set out in 8.11.3 above into account.

8         Mr Walker called evidence from his wife.  Mrs Walker’s evidence is that she has found the withdrawal of Mr Walker’s salary to be extremely stressful and that it has placed the family under great financial stress.  They have a 13 year old daughter living at home.  Their income had comprised his salary plus a parenting allowance.  Now, their sole income is Centrelink benefits which incorporate the parenting allowance.  A written statement was submitted showing the level of the family’s income compared to its outgoings.  Mrs Walker’s evidence is that they have no money for entertainment or clothing and they are making minimum part payments on outstanding accounts, which means they are eventually falling behind.  Any previous savings had been exhausted because of a previous occasion when Mr Walker had been disciplined. 

9         The respondent, however, strongly opposes the appeal.  The respondent submitted that Mr Walker has not denied the allegations made against him and described his response on 25 February 2003 (exhibit DOJ 2) to the allegations as “inadequate”. 

10      The respondent believed that Mr Walker was guilty of a serious act of misconduct.  That misconduct involved 23 instances where it is alleged that Mr Walker inappropriately used a work computer by distributing various e-mail messages and attachments to various other e-mail addresses (as set out in exhibit DOJ 1).  The respondent points to its Computer and Telecommunications Facilities Policy (exhibit DOJ 4) to show that the respondent regards the subject matter of the allegations as “unacceptable use” involving “offensive material”. 

11      Further, on an earlier occasion between April and May 2001 Mr Walker had used the respondent’s computer to access a number of inappropriate internet sites showing pornography.  On 31 January 2002 he had been charged with downloading two programmes from a website on the respondent’s computer in circumstances which were regarded as a serious breach of discipline.  The respondent accepted that Mr Walker had committed 10 minor breaches of discipline by inappropriately using the respondent’s computer to download other material.  The charges Mr Walker admitted included downloading two copyright protected programmes thus exposing the respondent to action for breach of copyright.  The respondent had written to Mr Walker advising that “any similar breaches of discipline committed by you in the future may result in the termination of your employment” (exhibit DOJ 6).

12      The penalty imposed on Mr Walker on that occasion was the subject of an appeal before the Public Service Appeal Board (Victor Walker v. Department of Justice (2002) 82 WAIG 1354).  The Board reduced the penalty which the respondent had imposed.  In doing so the Public Service Appeal Board noted Mr Walker’s long working history with an unblemished record and also had regard to the length of suspension without pay and the financial effect on him on that occasion.  

13      On this occasion the respondent believed that suspending Mr Walker without pay was appropriate because of both the serious nature of the offences and his history of offences on the previous occasion.  The respondent believed that these circumstances were of such a serious nature that dismissal was a possible outcome.

14      The Board has had regard to the above circumstances and the other correspondence tendered during the course of the proceedings.

15      The power to suspend Mr Walker without pay is conferred by s.82 of the Public Sector Management Act.  The Board notes that whether or not an employee is suspended without pay is a discretionary decision for the employer.  It is not the case that an employee is to be suspended without pay as part of every disciplinary process initiated under the Public Sector Management Act.  Rather, a public sector disciplinary process may occur and be concluded without an employee being suspended without pay.  Therefore, the decision by an employer whether or not to suspend an employee without pay pursuant to s.82 must take into account the circumstances which give rise to the disciplinary process and the surrounding circumstances. 

16      It must be acknowledged that it is likely that the suspension without pay of any employee will cause a degree of financial and personal distress to that employee.  This is recognised in the legislation in s.82(3) which allows an employer on its own initiative or on the application of the employee to restore pay to the employee during the suspension for such period as the employer thinks fit.  Therefore the evidence of Mrs Walker will not be sole factor to be taken into consideration by the Board.

17      It is therefore appropriate to also consider the purpose to be achieved by the suspension without pay.  If the intention of suspending Mr Walker without pay was to remove him from the workplace so that he could not re-offend, or to prevent Mr Walker from “covering his tracks”, then suspension without pay was not necessary.  Mr Walker has been absent from the workplace since the allegations were first made, has not returned to the workplace and has no intention of returning to the workplace.  Indeed, he was also prepared to give an undertaking that he would advise the respondent of any future intention to return to the workplace. 

18      The respondent submitted that an employee who is on sick leave may for that reason refuse to co-operate with a disciplinary enquiry.  There is nothing before the Board to allow a conclusion that Mr Walker may have refused to co-operate with the disciplinary investigation.

19      The respondent submitted that Mr Walker was suspended without pay because the nature of the allegations against him, which were not denied as such in his letter of explanation, were sufficiently similar to the misconduct for which he had been previously disciplined and warned that any repeat misconduct would put his employment in jeopardy.  In our view, this submission is patently correct.  The nature of the allegations presently against Mr Walker involve sending e-mails which on their face involve subject matter not unrelated to the pornographic subject matter of the websites set out in the 2001 letter to Mr Walker (exhibit DOJ 5).  Further, some of the 2003 allegations refer to sending games which is a subject not unrelated to the conduct which came before the Public Service Appeal Board in 2002.

20      It is difficult to conclude other than that the respondent was perfectly entitled to conclude that the allegations made against Mr Walker in 2003 were considered to be of such a serious nature that dismissal is a possible outcome.  In our opinion that is a valid reason for invoking the power in s.82 of the Public Sector Management Act.

21      That is not to say that Mrs Walker’s evidence of the effect of the suspension without pay upon Mr Walker’s family is not accepted and understood.  If the financial effect upon Mr Walker’s family was the sole consideration then it would be less difficult to conclude that his suspension without pay was harsh. 

22      However, in circumstances where Mr Walker had been advised that any future similar breach of discipline may result in the termination of his employment, in circumstances where as late as 15 January 2003 (exhibit DOJ 9) Mr Walker wrote to the respondent requesting internet access and gave assurances that he would not misuse the internet system, for Mr Walker to then misuse the respondent’s internal computer system would necessarily result in a loss of trust in him as an employee.  In those circumstances, the suspension of Mr Walker without pay raises issues of the public interest in allowing an employee to be suspended without pay where the nature of the allegations against the employee are serious enough such that dismissal is a possible outcome.  Mr Walker’s previous unblemished record is not available to him on this occasion to balance the issues for consideration.

23      While the financial effect upon Mr Walker, and indeed his family, is not lightly overlooked, and is deeply felt, the balance of the public interest in allowing an employer to stand an employee down whilst an investigation into an allegation of conduct serious enough to warrant dismissal is undertaken on this occasion outweighs the personal circumstances of the employee concerned.  We note the union’s submission that to suspend an employee without pay may remove any incentive on the part of an employer to bring the investigation process quickly to an end.  We consider that the length of time taken by an employer to conduct its investigation is a relevant consideration for the Board.  In the circumstances of this case, we are not of the view that the length of time taken is a factor which would cause us to reach a different conclusion on the appeal.

24      For all of those reasons the circumstances of Mr Walker do not show that the decision to suspend him without pay should be quashed and his appeal is dismissed.