100317174

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 DIRECTOR GENERAL, MINISTRY OF JUSTICE

RESPONDENT

CORAM COMMISSIONER S J KENNER

DATE MONDAY, 30 JUNE 2003

FILE NO/S P 27 OF 2001

CITATION NO. 2003 WAIRC 08587

_______________________________________________________________________________

Catchwords  Employee discipline – Disciplinary charges – Disciplinary charges withdrawn – No penalties imposed on officers – Report prepared as to whether other officer acted improperly – Order for production of report sought – Jurisdiction of public service arbitrator – Principles of equity – Whether denied –– Report ought not be provided – Jurisdiction to order apology doubted – No jurisdiction  to award compensation – Application dismissed –  Industrial Relations Act 1979 (WA) s 7, s 26(1)(a), s 27(1)(a), s 33(3), s 33(4), s 33(5), s 49(a), s 80E, s 80F, s 80I; Public Sector Management Act 1994 (WA) s 29(1); Prisons Act 1981 (WA) s 9; Freedom of Information Act 1992 (WA) s 90, Sch 1, cl 5(1)(b); Workplace Relations Act 1996 (Cth) “industrial matter”; “industrial dispute”

Result Application dismissed. Order issued

Representation

Applicant Ms M In De Braekt of counsel

Respondent Mr R Andretich of counsel

_______________________________________________________________________________

Reasons for Decision

1          This application is brought pursuant to ss 80E and 80F of the Industrial Relations Act 1979 (“the Act”).  The application relates to a matter that has a long and somewhat torturous history.  The applicant seeks orders for the production of a copy of a document known as the “Hedges Report” to three senior present and former officers of the prison's division of the respondent, Messrs John MacColl, James Fisher and Dean McClue (“the Senior Officers”).  The report was prepared by Mr Frank Hedges, arising, in short, from concerns expressed by the Senior Officers, concerning disciplinary proceedings taken against them, which were ultimately abandoned, pursuant to the Public Sector Management Act 1994 (“the PSM Act”).

2          The specific orders sought by the applicant are set out in the notice of application and are as follows:

1. The decision of the respondent to deny Messrs MacColl, Fisher and McClue access to the “Hedges Report” and related documents is void ab initio.

2. The respondent is to provide to the applicant and to Messrs MacColl, Fisher and McClue, complete and unedited copies of the Hedges Report and all related documents, within 7 calendar days of the date of this order.

3. Within 7 days of the date of this order, the respondent is to provide a written apology to the employees for any detriment they suffered as a result of the disciplinary proceedings taken against them and subsequently discontinued by the respondent.

4. The respondent is to pay Messrs MacColl, Fisher and McClue damages (insert specific amount)* within 7 days of the date of this order, for breaching its obligation to maintain faith and confidence in the employment relationship, by failing to provide them with a copy of the Hedges Report.

  * The applicant respectfully reserves the right to address the PSA on the quantum of damages payable by the respondent, in the event that the applicant proves its case, and accordingly a specific amount of damages would then need to be inserted.

3          The respondent, by notice of answer and counter proposal, objected to and opposed the applicant's claim for relief.  Furthermore, issue was taken with the Commission's jurisdiction to make orders as sought by the applicant primarily on the grounds that the subject matter of the application was not an industrial matter, for the purposes of s 7 of the Act.  This matter came before Scott C and she determined, by decision dated 19 December 2001 that the subject matter of the application was an industrial matter for the purposes of the Act: (2002) 82 WAIG 104.

4          The substantive application was reallocated to the Commission as presently constituted.

Background

5          As I have already observed, the history of the matters underlying these proceedings, is long indeed.  The proceedings arise from an incident that occurred in September 1992, in relation to the recovery of a prisoner from the roof of the special handing unit at Casuarina Prison on 19 September 1992.  Disciplinary proceedings were commenced by the respondent, arising out of this incident.  Given the extensive history, which was set out in some detail in the respondent's written outline of submissions, I reproduce relevant parts of that outline, as it helpfully traces the background to the present proceedings as follows:

“The applicant has sought orders in connection with disciplinary proceedings instituted by the Director General against three employees, Mr MacColl, Mr McClue and Mr Fisher.  Those disciplinary proceedings were commenced at the time when Mr MacColl was the Acting Director of Prison Operations, Mr Fisher, the Superintendent of Casuarina Prison and Mr McClue the Deputy Superintendent.  The employees are Public Service Officers under the Public Sector Management Act.

The events in respect of which the disciplinary actions were commenced concerned the recovery of Prisoner Chapman from the roof of the Special Handling Unit in Casuarina Prison on the 19th of September, 1992.

Superintendent Peter Moore was appointed by the then Director General, Mr Grant, by notice dated the 30th of September, 1994, to undertake an inquiry at Casuarina pursuant to section 9 of the Prisons Act into matters coming within the terms of the notice.  One of those matters investigated was the recovery of Chapman.  Mr Moore's investigations led him to believe that Chapman may have been assaulted by seven MSU officers to an extent beyond that which was reasonable to secure his recovery.  It was possible then that Fisher and McClue who were present witnessed the assault but had failed to mention it in their initial reports and interviews he had with them in October of 1994 whilst conducting his section 9 investigation.

On the basis of Mr Moore's investigations Mr McClue was on the 26th of May 1995 charged under the Public Sector Management Act with witnessing Prisoner Chapman's assault but that he had “failed to report fully and accurately the circumstances of the above incident in your formal statement provided to Reporting Officer Superintendent Peter R Moore on 10th October, 1994 at Casuarina Prison”.  The charge was made by the then Director General, Mr Grant.

Mr Fisher was charged by the Director General on the 25th of May, 1995, with having witnessed prisoner Chapman being assaulted by the use of force which was excessive to that necessary and that Mr Fisher was “negligent in the discharge of your duties in failing to report fully and accurately the circumstances of the above incident in your formal statement sworn in the presence of Superintendent Moore at 19 Pier Street, Perth, on the 11th of October, 1994”.

Mr Fisher was the subject of a further charge in similar terms except that he was alleged to have been “negligent in the discharge of your duties in failing to report fully and accurately the circumstances of the above incident in your formal written report dated 21st September, 1992.”

Mr MacColl was not present at Casuarina during the recovery of prisoner Chapman.  He was charged under the Public Sector Management Act on the 16th of March, 1995 by Director General Grant, that in preparing “your report dated 4th December, 1992, in the manner and in all the circumstances alleged herein you were neglectful in complying with the Executive Director's instruction, dated 26th November, 1992 to re-examine and re-evaluate the pertinent circumstances relating to the Chapman incident, with the appropriate level of care and attention which could reasonably be expected of a person in your position, resulting in your report being less than full and accurate as it should have been as to the fact and detail and making it, consequently, misleading in content.”

The product from Mr Moore's section 9 enquiries was referred to the Director of Public Prosecutions who carried out his own investigations.  The result was that criminal charges were laid against the seven MSU officers, Mr McClue, Mr Fisher and one other.  Mr McClue and Mr Fisher were charged on the 16th of January, 1995 with being accessories after the fact and attempting to pervert the course of justice.  Those charges proceeded to a committal hearing on the 26th of June, 1995, at which both gave evidence.  Both were committed for trial to the District Court, as were the 7 MSU officers.

The indictment against Mr Fisher and Mr McClue is in identical terms.  It provides: 

“On the 10th of October, 1994, at Casuarina by providing false or misleading information as to the circumstances in which Derek Chapman, a prisoner at Casuarina, sustained injuries on the 19th of September, 1992, to Peter Ronald Moore, an officer appointed pursuant to section 9 of the Prisons Act 1981 to enquire into and report upon any matter which touched upon or bore upon the fulfilments of duties and activities of employees of the Ministry of Justice at Casuarina Prison and their effect on the prisoners at that prison, attempted to pervert the course of justice upon the prosecution of a prison officer or officers in respect of any disciplinary offence or criminal offence arising out of the said inquiry.”

A second count against each provides: 

On the 11th of October, 1994, at Perth by providing false or misleading information as to the circumstances in which a chemical agent was applied to Derek Chapman, a prisoner at Casuarina Prison, on 19th September, 1992 to Peter Ronald Moore, an officer appointed pursuant to section 9 of the Prisons Act 1981 to enquire into and report upon any matter which touched upon or bore upon the performance of duties and activities of employees of the Ministry of Justice at Casuarina Prison and their effect on prisoners at that prison attempted to pervert the course of justice upon the prosecution of a prison officer or officers in respect of any disciplinary offence or criminal proceeding arising out of the said inquiry.  (28 of the Respondent's Docs)

The similarity between the indictment and the disciplinary charges is apparent.

On application by the accused, including Messrs Fisher and McClue, a voir dire was held before Judge Jackson in the District Court on the 16th of February, 1996 specifically to determine the admissibility of the statements made to Mr Moore in October, 1994, which are germane to the disciplinary and criminal charges.  It was submitted that the statements were given under compulsion and unfairly obtained.  In his reasons Judge Jackson dismissed both of these contentions and referred unfavourably to the attack which was made upon Mr Moore's character (63 of Respondent's Docs).  He found Superintendent Moore to be “an impressive and courageous witness” and “where there is a significant or relevant difference between the evidence called by the Crown and that of any of the accused I prefer that led by the Crown.  Let me explain here that I positively disbelieve a number of the accused's for reasons I will for the most part only touch on.  Those reasons include not only that some of the accused made serious allegations against Superintendent Moore …but that their own evidence lacked credibility.  Some of them went out of their way indeed to blacken Superintendent Moore's name by innuendo that he was untrustworthy.  In my assessment a number of the accused were untrustworthy and dishonest witnesses themselves.  That this includes people of the rank of Prison Superintendent is a matter of grave concern.”  (615 Transcript).

In relation to Mr Fisher Judge Jackson accepted Mr Moore's evidence where there was a difference with Mr Fisher's.  Mr Fisher's evidence that he did not voluntarily attend the interview on the 10th of October sat ill “with his evidence that there had been no wrongdoing during the Chapman incident; indeed that he had recommended commendations for those involved, that he was not worried about appearing before the inquiry, which he wished to reach a truthful understanding, and that he wanted to tell what he knew.” 

In relation to Mr McClue again Judge Jackson preferred Superintendent Moore's evidence.  He concluded at page 622 of the transcript:  “I see nothing legally wrong with the procedures followed or the uses to which the provisions have been put - nor anything inconsistent with public policy.  The implication that Fisher, McClue and Touchell were tricked into admitting that they were present falls very poorly from men of experience and seniority entrusted with the management of prisons and the care of prisoners.”

It is important to note that the voir dire proceedings continued for one week and were devoted to simply the admissibility of the statements taken by Mr Moore during the section 9 proceedings from the ten accused.  Against the assessment made by Judge Jackson and the time devoted to determining whether the statements were properly obtained one wonders what purpose has been achieved in going over this ground again.

What Judge Jackson identified as unworthy gratuitous attacks made by the employees on Mr Moore has been a feature of his involvement in the section 9 proceeding from the time he was appointed to conduct them.  This is something that I will return to later.

The disciplinary charges were stayed pending the outcome of the criminal hearings.  The MSU officers trials proceeded in the first instance only in relation to the attempt to pervert the course of justice in respect of which the charges of acquittal were returned by the jury on the 28th of November, 1996.  Fisher, McClue and Touchell's trial on this charge proceeded in December of 1996 with the jury returning an acquittal on the 18th of December 1996 in relation to the counts involving an attempt to pervert the course of justice.

On the 14th of January, 1997, the Director of Public Prosecutions advised Fisher and McClue that he would discontinue the prosecution of the remaining offences of being accessories after the fact to an indictable offence.  A nolle prosequi was provided to the Court on the 19th of February, 1997.  (30 of Respondent's Docs)

By letter dated 31st January, 1997, the then Director General, Mr Byron, advised each of the employees that he had reviewed the outstanding disciplinary matters involving them and had decided that the charges would not be proceeded with.  It is important to quote the remainder of his letter to the employees:

“I also therefore wish to inform you that, unless you expressly request to the contrary, any record appearing on your personal file held by the Ministry pertaining to the institution of the disciplinary proceedings leading up to and including the laying of the charge, is to be removed from that file.

As your employer I advise that neither the history of the disciplinary proceedings generally, nor any record relating thereto, which is required to be retained by the Ministry, will be allowed so far as the Ministry is concerned to prejudice your future in the Ministry of Justice.”  (31, 67, 118 of Respondent's Docs)

Throughout the section 9 investigation and the disciplinary process the employees have alleged procedural irregularity, abuse of position, bias and dishonesty on the part of Mr Moore, notwithstanding his behaviour being the subject of scrutiny on three occasions by the District Court, the Director of Public Prosecutions and the Magistrate in the committal proceedings.

Initial complaints made to the Director General regarding the section 9 process and disciplinary proceedings were resolved to the satisfaction of the Director General to whom they were made but not to the employees.  Ultimately complaints regarding Mr Moore's conduct made to the Anti Corruption Commission and the Public Sector Standards Commission were referred to the Director General for investigation in January, 1999.  The Anti Corruption Commission recommended that an independent person be appointed to investigate the complaints.  As a result the Director General entered into an agreement with Mr Frank Hedges, dated the 22nd of February, 1999, by which it was agreed Mr Hedges was to be “engaged to conduct a preliminary investigation of all of the matters contained in the complaints of Messrs J P Fisher, A D McClue, M T Touchall, J A Schilo and J D R MacColl outlined in a letter dated 7th January, 1999 from the Anti‑Corruption Commission ………. the consultant shall report to the Director General on the result of his preliminary investigation and make recommendations as to whether an inquiry should be undertaken under the Public Sector Management Act 1994.”  Paragraph 4 of the agreement is the relevant paragraph in so far as Mr Hedges' task is concerned and clause 3 of the schedule to the agreement.  (86 of Respondent's Docs)

Mr Hedges completed his report around September of 1999.  The Director General considered the report and advised the employees for reasons contained in his letters, to which I will refer later, that he was not prepared to provide the report or to action its recommendations.  His decision was accepted by the agencies which referred the employee's complaints, that is the Anti Corruption Commission and the Public Sector Standards Commissioner.”

Jurisdiction

6          As I have already observed, Scott C has previously determined in this matter, that the subject matter of these proceedings is an industrial matter for the purposes of s 80E(1) of the Act, dealing with the jurisdiction of a Public Service Arbitrator.  Relevantly, s 80E(1) provides as follows:

  (1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally.”

7          Despite the earlier determination by Scott C on this question, counsel for the respondent, Mr Andretich pressed the point again, before the Commission as presently constituted, that the subject matter of these proceedings did not constitute an industrial matter, for the purposes of s 80E(1) of the Act, and was therefore beyond jurisdiction and power.

8          I do not consider myself bound by the decision of Scott C on this question.  I note that the decision of Scott C was the subject of an appeal to the Full Bench of this Commission in appeals FBA 3 and 4 of 2002: (2002) 82 WAIG 752.  FBA 3 of 2002, an appeal instituted by the respondent in these proceedings, raised the issue which Mr Andretich now presses again.  For reasons not relevant for present purposes, appeal FBA 3 of 2002 was dismissed on the basis that the Full Bench was not persuaded that there was a sufficient factual substratum in the decision of Scott C under appeal, to demonstrate that there was a serious question of jurisdiction to be determined.  It was held therefore, that the Full Bench had not been persuaded, that in the public interest an appeal should lie, for the purposes of s 49(2)(a) of the Act.  Appeal FBA 4 of 2002, was discontinued by leave.  As a consequence of those proceedings, the Full Bench did not determine the question of jurisdiction now raised again.

9          It is trite to observe that it is not every matter that constitutes an industrial matter for the purposes of the Commission's and Arbitrator's jurisdiction under the Act.  There has been an abundance of authority by way of decisions of the Full Bench and the Industrial Appeal Court, as to the scope and meaning of industrial matter for the purposes of s 7 of the Act.

10       As part of dealing with the issue of jurisdiction, it is necessary to canvas the evidence led in these proceedings, as that goes directly in my opinion, to the necessary substratum of fact, in order that the question of jurisdiction can be determined. Extensive evidence was given in these proceedings by the Senior Officers, Mr D Seal, a former employee relations manager of the respondent, Ms Maureen Smith, a management consultant and Mr Alan Piper, the executive director of the respondent.  The respondent also called a number of witnesses including the original inquirer under s 9 of the Prisons Act 1981 (“the s 9 Inquiry”) Mr Moore, Mr Terry Simpson and Ms Stephanie Withers, other senior officers of the respondent.

11       It would appear to me that, notwithstanding the proceedings before Scott C were dealt with on the basis of submissions only, for the question of jurisdiction to be determined, a substratum of facts would need to be established, as to if and how the report the central subject of these proceedings, known as the “Hedges Report”, concerns the “work, privileges, rights or duties” of the officers concerned, in connection with the employee/employer relationship on foot at the material times.  I have some doubts, as to whether that matter can be determined in isolation from evidence as to the relevant facts, including jurisdictional facts, as they existed at the material times.

12       Mr MacColl has been employed continuously in this State as a public servant for 27 years.  Since about 1993, Mr MacColl has been employed by the respondent and prior to that, the Department of Corrective Services.  As at the time of these proceedings, Mr MacColl held the position of director regional prisons, prison services level 9 of the respondent.  In this capacity, Mr MacColl was responsible for the management of all regional prisons and work camps in the State.  He was a member of the senior executive service.

13       Mr MacColl, in his affidavit tendered as exhibit A52, outlined the background to the preparation of the Hedges Report, which commenced in September 1992, concerning the recovery of prisoner Mr Derek Chapman from the Casuarina prison.  In particular, Mr MacColl testified in relation to charges laid against him in March 1995 under the PSM Act, arising from his alleged negligent report into the Chapman incident.

14       As a consequence, Mr MacColl said that he was transferred from the respondent to the Education Department for 12 months from March 1995. In July 1996, when he attempted to return to work with the respondent, Mr MacColl testified that he was advised that if he did so, no meaningful work would be assigned to him.  From July to November 1996, Mr MacColl said that the respondent expected him to remain at home, whilst still being paid.  Instead, Mr MacColl did other things.

15       During the two-year period in relation to which these disciplinary proceedings took place Mr MacColl said that he was subject to considerable stress and anxiety, by reason of the publicity that the matters received in the press.  In January 1997, MacColl, along with Mr Fisher and Mr McClue commenced proceedings in the Supreme Court for prerogative writs in relation to the outstanding disciplinary and substandard performance proceedings.  Shortly thereafter, on 31 January 1997, MacColl, along with Mr Fisher and Mr McClue, were advised by the respondent that it no longer intended to pursue the disciplinary charges and no further action would be taken.  Mr MacColl said that the respondent provided no reasons for its decision and he never received any apology or expression of regret, privately or publicly, for the stress and detriment he said he suffered during the course of this period.  It was Mr MacColl’s evidence that he found the manner in which the respondent discontinued the proceedings, to be hurtful and demeaning, particularly given the length of time that the matters had been on foot.

16       Mr MacColl testified about complaints he made in 1998 to the Anti Corruption Commission (“ACC”) about the manner in which the respondent had conducted itself in the disciplinary proceedings taken against him.  In October 1998, Mr MacColl was advised by the ACC that it had recommended to the respondent, that a review of its conduct in the disciplinary proceedings against Mr MacColl be undertaken. As a consequence of several freedom of information applications, and other steps taken, Mr MacColl received copies of documents described as the “Smith Report”; the “Wallace Report”, and the “Flack Report”, arising from the respondent's conduct in the s 9 inquiry and subsequent disciplinary and substandard performance proceedings and his transfer to the Education Department.  Copies of these reports were provided to Mr MacColl.

17       In February 1999, Mr MacColl was informed that Mr Frank Hedges had been appointed to enquire into both his and Mrs Fisher and Mr McClue's complaints concerning the respondent's handling of the disciplinary proceedings.  Mr MacColl gave evidence about the involvement he had in this process, including being interviewed by Mr Hedges on at least two occasions.  In April 2000, Mr MacColl became aware that Mr Hedges had concluded his inquiries, and the Hedges Report had been produced.  Despite requests, Mr MacColl was denied access to a copy of the Hedges Report.  Mr MacColl became aware that copies of the Hedges Report had been provided to the ACC and the Office of the Public Sector Standards Commissioner, both of whom were satisfied with the content of it and no further action would be taken.  A copy of the Hedges Report was not given to the Senior Officers, on the grounds of confidentiality.

18       Ultimately, the Senior Officers approached the applicant to commence proceedings before the Arbitrator, in relation to these matters.

19       Mr MacColl gave evidence generally about the impact of not receiving a copy of the Hedges Report had on him.  He testified that from his participation in the inquiry, he always had an expectation that a copy of it would be provided to him at the conclusion of the process.  This was so on Mr MacColl's evidence, because the inquiry had been initiated by himself and his colleagues, and in his view, directly related to him.  Mr MacColl testified that it was always his understanding, that through his full and frank participation in the Hedges inquiry, that its purpose was to provide an open and transparent examination of the respondent's treatment of him and Mrs Fisher and Mr McClue.  It was Mr MacColl's evidence, that seeing the Hedges Report, would, because of all of the stress and disruption to his life arising from the disciplinary proceedings, bring “closure” to the whole affair.  He said that for nearly two years, he had these matters constantly on his mind.  He testified that the Hedges Report may help to clarify any misunderstandings and inaccuracies, arising from the disciplinary proceedings. 

20       In general terms, Mr MacColl testified that as a consequence of the respondent's failure to provide a copy of the report to him, he has experienced stress and anxiety, anger and a loss of faith and confidence in the respondent's commitment to openness and transparency under the PSM Act. 

21       Mr Fisher has been continuously employed as a public servant in the prison system for about 29 years in this State.  At the time of these proceedings, he held the position of assistant director, training and specialist services level 9 at the respondent.  In that position, Mr Fisher was responsible for staff training, information analysis and emergency support work.  As with the other Senior Officers, Mr Fisher outlined the background to the alleged misconduct and criminal charges brought against him.

22       Mr Fisher referred to the publicity surrounding the Chapman incident, and the stress and anxiety that this caused both he and his family.  Additionally, Mr Fisher referred to complaints by he and his colleagues, to various agencies, concerning the conduct of the s 9 Inquiry and subsequent events.  He testified that he received a copy of the Smith Report, and accordingly, assumed, from his participation in the Hedges inquiry, that likewise, he would receive a copy of the Hedges Report.  Mr Fisher testified as to the effect that the respondent's failure to provide a copy of the Hedges Report has had on him, in terms of frustration, anger and a loss of confidence and respect for the respondent.  It was his evidence, that from his dealings with Mr Hedges, he had the clear impression that when the inquiry was complete, he would receive a copy of the Hedges Report.

23       In relation to the Smith Report, Dr Smith was called by the applicant.  She gave evidence about her background in conducting inquiries on behalf of public sector agencies, having formerly occupied a senior management role in a government department.  Dr Smith testified that in September 1999, she was requested to undertake an inquiry and report on Mr MacNaughton, the then manager of the internal investigations unit of the respondent, concerning his investigation into Mr Fisher.  She testified that she was to inquire into possible non-compliance with the terms of the Public Sector Code of Ethics, public sector standards, the offender management Code of Conduct, and general principles of human resource management under the PSM Act.  Dr Smith said there was no reference to a grievance or grievance resolution in her terms of reference.  Her evidence was she was requested to undertake this inquiry under s 29(1) of the PSM Act.

24       Having completed her enquiries and submitted a report to the respondent in October 1999, it was her evidence that she understood a copy of the Smith Report was given to Messrs MacNaughton and Fisher.  Her evidence also was that where such reports directly affect the rights and interests of particular persons, those persons are generally given a copy of the report, even if possible disciplinary proceedings may arise.

25       In relation to the respondent's policy on the release of reports, the applicant called Mr David Seal to give evidence.  Mr Seal was employed by the respondent between May 1996 and April 2000, in various employee relations management roles.  He testified that in these positions, he had regular involvement in various enquiries, discipline proceedings, and other matters, which required him to have a sound knowledge of the respondent's policies, practices and procedures.

26       According to Mr Seal, he was never aware of any policy as such, that would preclude the provision of the Hedges Report, to the Senior Officers.  Mr Seal testified that occasions where reports may not be provided, involved investigations by the internal investigations unit, and possibly equal opportunity complaints.  Mr Seal said he was aware of the allegations made by Messrs Fisher, MacColl and McClue.  His evidence was that from his experience, he was surprised that they were not provided with a copy of the Hedges Report.

27       The author of the Hedges Report, Mr Hedges, was also called to give evidence.  He testified that in February 1999 he was engaged by the director general of the respondent, to conduct a preliminary investigation into complaints made by Mrs Fisher, Mr MacColl and Mr McClue, into the manner in which they were allegedly treated by the respondent flowing from the s 9 Inquiry.  Mr Hedges outlined the process he undertook in his inquiry, and that he interviewed the Senior Officers concerned.  As to the release of any report, it was Mr Hedges’ evidence that this matter was not directly raised by the respondent with him.  However, it was Mr Hedges’ evidence that he thought it likely that there may be some content of the report not known to the Senior Officers, and from a personal perspective, would have no difficulty in a copy of his report being made available to them.

28       Mr Moore is presently in the position of monitor, custodial contracts in the prisons division of the respondent.  He has been employed by the respondent for about 22 years.  Mr Moore gave evidence about how he became involved in the Chapman incident and his conduct of the s 9 Inquiry.  Mr Moore testified that from the outset of the section 9 Inquiry process, Messrs Fisher, MacColl and McClue accused him of bias.  As a result, it was agreed with the then director general of the respondent, that Mr Moore would make no “end of line” decisions as to any outcomes from the s 9 Inquiry, with all such decisions being made by the director general, upon legal advice.

29       In terms of the section 9 Inquiry itself, Mr Moore testified that the enquiries into the Chapman incident, was only one of some 37 lines of inquiry the subject of the process. In terms of his relationship with the Senior Officers, Mr Moore testified that since the s 9 Inquiry, he has come under sustained attack from them through various agencies, referred to above.

30       In relation to the Hedges Inquiry, Mr Moore said that because his concerns as to the process, he declined to be interviewed.  This was also because he was the subject of the inquiry process.

31       Overall, Mr Moore described the Senior Officers’ conduct, flowing from the s 9 Inquiry, as a form of vendetta against him which in his view, would only continue if the Hedges Report was released.  It was Mr Moore's strong view in evidence, that if the Hedges Report was made available to the Senior Officers, then it would be selectively used against him as a part of this ongoing and very long standing campaign.  This campaign against him, included according to Mr Moore, contrived allegations as to his conduct, which were never substantiated.  In short, Mr Moore said that if the Hedges Report is released, then there will be no end to these matters.

32       Allegations in relation to damage to the careers of the Senior Officers were responded to by Mr Terry Simpson.  Mr Simpson is the executive director prisons division of the respondent.  He testified that he has known the Senior Officers and has worked with them for a considerable period of time.  Mr Simpson testified that all three of the Senior Officers are well thought of and highly regarded within the prison system.  His evidence was that in his view, from his direct experience, none of them had been prejudiced in any way, as a result of the discontinuance of the disciplinary proceedings.

33       As to any policy in the release of such a report, Mr Simpson said that according to his understanding, reports such as the Hedges Report are not released and are available only to those who “need to know”, which in this case, did not include himself.

34       In relation to the respondent's policy on such matters, Ms Withers, the director of human resources, testified that reports in relation to whether disciplinary charges should be instituted against an employee are not released by the respondent.  This has been the case as far as she can recall and for as long as she has occupied her present position, since January 1997.

35       Ms Withers testified that because of the nature of these enquiries and reports, confidentiality is paramount.  This is because of the potential damage that may be caused by the release of such documents, given that no decision may be made to institute disciplinary proceedings.  In the case of the Hedges Report, Ms Withers said that it would be consistent with this practice, for the Senior Officers to not be given a copy of it.  It would be normal procedure however, for the subject of the inquiry, in this case Mr Moore, to be given an opportunity to respond.

36       In terms of other reports, Ms Withers distinguished the Smith Report as being a grievance report pursuant to s 29(1)(l) of the PSM Act.  In relation to the Flack and Wallis Reports, she testified they were produced by the Public Sector Standards Commission, and not the respondent. It was a decision by that agency, to release those reports.

37       The question of confidentiality of such investigation reports, was also dealt with in the evidence of Mr Langmair the manager of the internal investigations unit of the respondent.  He outlined the role of the internal investigation unit, and the types of inquiries used by it.  Mr Langmair’s evidence was that given that investigations conducted by his unit rely heavily upon information given by various persons including informants, in the interests of protecting identities of persons providing information, those reports are not released.  His evidence was the release of reports such as this, would greatly diminish the capacity of the respondent to properly investigate such kinds of matters.

38       The Smith Report was also commented on by Mr Harvey, who was at the time of that matter, executive director offender management of the respondent.  Mr Harvey gave evidence that Dr Smith was retained to investigate allegations made by Mr Fisher, with such an investigation having the purpose of forming part of the grievance resolution process in accordance with s 29(1)(l) of the PSM Act.  He testified that there was no intention that this process be used as a preliminary investigation into whether discipline ought to be imposed.  As it was a grievance resolution report, copies were provided to both Messrs MacNaughton and Fisher for comment.

39       Mr Piper, the director general of the respondent was called to give evidence by the applicant under summons.  He has been a public servant for about 30 years.  Mr Piper said that the Hedges Report was a result of a preliminary investigation by Mr Hedges into the conduct of Mr Moore, arising from complaints by the Senior Officers.  The Hedges Report, according to Mr Piper, does not deal with whether the Senior Officers were treated properly or improperly, in relation to the disciplinary proceedings commenced against them.

40       It was Mr Piper's evidence that it was not his practice, previously or now, to publish disciplinary reports because of the large number of vexatious complaints that are made.  Mr Piper sought to compare and contrast the Hedges Report from the Smith matter, with the latter being a grievance inquiry properly involving both the complainant and the subject.

41       It was said by Mr Piper, that the respondent's long standing practice, as far as he could recall, was for disciplinary reports not being released given their nature and potential prejudicial effect on other employees.

42       Mr Piper also expressed the view, that given the concerns expressed by the Senior Officers, the content of the Hedges Report does not deal with them, rather it deals with Mr Moore, and he did not consider that provision of the Hedges Report would in any way bring closure to the matter for the Senior Officers.  In this regard, Mr Piper referred to a letter dated 15 December 2000, to each of the Senior Officers.  In that letter, Mr Piper confirmed that the Hedges Report would not be released, as it was treated as a confidential report and exempt matter pursuant to clause 5(1)(b) of Schedule 1 of the Freedom of Information Act 1992 (“FOI Act”).  Given its significance, that letter, formal parts omitted, is reproduced as follows:

“As you are aware, Mr Hedges has finalised his review into the matters referred from two external agencies.  As a matter of policy, this is being treated as a confidential report to myself and is held as an exempt matter under clause 5(1)(b) to Schedule 1 of the Freedom of Information Act 1992.  I therefore do not intend to release the report outside the provisions of the FOI Act.  I am willing, however, to share with you the outcome of the review and how the decision was derived at.

The review found that some matters could be dismissed and other matters may merit further inquiry under the Public Sector Management Act 1994.  I took careful consideration of Mr Moore’s submission in defence of the allegations and took legal opinion on the recommendations.

It was considered that, due to the detailed nature of the review and the elapse of time, it was unlikely that a further inquiry would be able to further clarify or substantiate the suspected breaches.  Where evidence of suspected breaches was obtained, advice indicated that the circumstances were such that these suspected breaches, if substantiated, were not likely to result in significant sanctions and not serious enough to warrant further action.

On this basis, I have decided not to pursue further action against Mr Moore under the Public Sector Management Act 1994.  The file has been closed and I assure you that the events have been vigorously reviewed to the satisfaction of both external parties. “

43       It was Mr Piper's evidence that the Senior Officers did not take up his invitation, set out above, to discuss with them the outcome of the review and how the decision was arrived at.

44       As to any impact on their careers, Mr Piper testified that he held the Senior Officers in high regard, and they were appointed to senior positions within the respondent, contrary to any assertion by them that their careers had in some way been damaged by this whole matter.

Consideration

Industrial Matter

45       At the outset of these reasons reference is made to the repeated challenge by counsel for the respondent, to the Commission's jurisdiction to enquire into and deal with this matter, on the basis that it is not an “industrial matter” for the purposes of the Act.

46       In light of all of the evidence, in my opinion, the claim for the provision of the Hedges Report is clearly an industrial matter attracting the Commission's jurisdiction.  It is clear to me that the allegations by the Senior Officers, in relation to the conduct of Mr Moore, arising from the s 9 Inquiry had a direct and not inconsequential relationship to their employment relationship with the respondent.  That is, in my opinion, a claim for the production of the Hedges Report, is a matter “affecting or relating to” the work, privileges rights or duties of the Senior Officers of the respondent.  I note also that as a consequence of the terms of s 185 of the Labour Relations Reform Act 2002, which came into effect on 1 August 2002, the definition of “industrial matter” now includes any matter “pertaining to” the above. 

47       There are a number of factors relevant to this conclusion.  Firstly, is the case that the Hedges Inquiry came about from complaints by the Senior Officers themselves.  Those complaints alleged that Mr Moore’s enquiries into the Senior Officers were inappropriate and contrary to the PSM Act.  The complaints also alleged that Mr Moore engaged in an unlawful conspiracy and attempted to pervert the course of justice, contrary to the Criminal Code.  Whilst counsel for the respondent attempted to suggest that the allegations were against Mr Moore personally, in my opinion, given that Mr Moore was at all times acting for and on behalf of the respondent, the allegations against Mr Moore, must be seen as allegations against the respondent, in terms of its conduct.

48       In my view, the provision of the Hedges Report as a claim touches the relationship of employer and/or employee, in a direct and not inconsequential way.  I pause to observe however, that authorities dealing with the scope and definition of “industrial matter” and “industrial dispute” under the Workplace Relations Act 1996 (Cth), and its predecessors, are not directly in point as the definition of industrial matter under s 7 of the Act is considerably wider.

49       Plainly, in my view, the Senior Officers, on their evidence, felt aggrieved as a consequence of their participation in the Hedges Inquiry, and the failure by the respondent to furnish a copy of the Hedges Report at its conclusion.

50       Furthermore, the provision of reports arising from investigations, in my opinion, given that the Senior Officers were complainants, is a matter affecting or relating to their work, in terms of any possible impact upon their working careers, whether that is so or not; their privileges, in terms of whether or not there is any right, entitlement or obligation on the respondent to provide such reports; their rights, in the same vein, and whether the respondent, as an employer, has a duty to provide such reports to employees in the circumstances of the Senior Officers.  In my opinion, the present claim is a matter that affects or relates to, these various matters and is therefore an industrial matter for the purposes of the Act.

51       Whilst it may be the case, that the disciplinary proceedings originally commenced against the Senior Officers were ultimately discontinued some years ago, it is plain on all of the evidence, that the provision of the Hedges Report has been an ongoing issue between the Senior Officers and the respondent, as soon as the decision to not make it available was made known to them.  On the evidence, it is not the case of a matter that has been dormant for many years and has only recently been revived.  On the contrary, as I have already observed, the matter has had a long and somewhat torturous history, in relation to dealings between the respondent and the Senior Officers.

52       Additionally in my opinion, it matters not whether the Hedges Report, or any other report for that matter, is categorised as confidential or not, for the purposes of determining the jurisdiction of this Commission. Whether a document is truly confidential or not, may condition the nature of the orders that are made by the Commission, however the confidentiality or otherwise of a document, does not alter the character of the claim as an industrial matter.  Section 27(1a) and s 33(3), s 33(4) and s 33(5) of the Act at least in part, recognise these types of matters.

53       I therefore reject the submission of the respondent that the claim for the Hedges Report is not an industrial matter for the purposes of the Act.

54       However, given the terms of the FOI Act, in particular schedule 1 of it, I consider it strongly arguable that the Hedges Report, notwithstanding my conclusions below, would be an exempt document for the purposes of that Act, in any event.  If that were so, given the terms of s 90 of the FOI Act, dealing with obligations on the Supreme Court not to disclose the content of exempt matter on a review of a decision of the Information Commissioner’s under the FOI Act, this would seem to be a powerful reason for the Commission to not order its production in any proceedings before it.

55       In relation to the nature of the Commission's jurisdiction, in response to submissions by the applicant, counsel for the respondent also submitted that the Commission's jurisdiction is statutory and there is no general equitable jurisdiction conferred upon the Commission or the Commission constituted as an Arbitrator under the Act.  Whilst it is trite to observe that the Commission is not a court of equitable jurisdiction, in my view, given that the touchstone of the Commission's jurisdiction is to enquire into and deal with industrial matters “in accordance with equity, good conscience and the substantial merits of the case” under s 26(1)(a) of the Act, it is appropriate for the Commission to have regard to relevant equitable principles, as part of “inquiring into and dealing with” an industrial matter. 

56       The injunction in s 26(1)(a), governs the manner of the exercise of the Commission's jurisdiction, and somewhat tritely, is not a source of power in itself.  However, what it does permit is the departure from strict legal entitlement, in circumstances where the equity and good conscience compels such a conclusion.  For example, in a contractual benefits claim, in circumstances where the applicant may be strictly entitled to a benefit under his or her contract of employment, but the circumstances of the case reveal that the applicant engaged in some form of misconduct or deceit in relation to the matter the subject of the claim, the Commission is empowered in my opinion, pursuant to s 26(1)(a), to deny an applicant relief.  This approach would appear to accord with the two important maxims of equity, they being that “he who seeks equity must do equity and that “he must also come with clean hands”.  In my opinion, there is nothing inconsistent with the Commission's jurisdiction, for the application of these broad principles, having regard to s 26(1)(a) of the Act.

Provision of the Hedges Report

57       I am satisfied from the evidence and I find that the purpose of the Hedges Inquiry was to conduct a preliminary investigation only, as to whether any disciplinary proceedings should be instituted against Mr Moore.  The purpose of the inquiry was not to investigate the conduct of the Senior Officers and I find accordingly.

58       It being a preliminary investigation, I am satisfied on the evidence that the purpose of the Hedges inquiry, was to ascertain whether there was any further basis for conducting further disciplinary enquiries as to Mr Moore's conduct.  In that sense, in my opinion irrefutably, the process was examining not the Senior Officers themselves, but Mr Moore and whether, the respondent as the employer, ought to commence proceedings of a disciplinary nature, against him.

59       On the evidence, I accept that there is a distinction between grievance enquiries and reports, and disciplinary matters.  That distinction is borne of both logic and practicality.  In the case of grievance matters, by their nature, they will involve two or more persons, between whom there is conflict in the workplace arising from the conduct of one or other of those persons.  Naturally, a complainant in that circumstance, having initiated complaints as to his or her treatment by that person, would logically be entitled to know not just the outcome of the inquiry, but additionally, to receive a copy of any report generated. In my opinion, there is a qualitative difference between such a process, and a preliminary investigation by an employer, into the conduct of an employee, as to whether disciplinary proceedings should be commenced against that employee.  Ultimately, the question of whether discipline ought to be imposed or not, is a matter for an employer.

60       The nature of such processes is that no doubt from time to time, unsubstantiated and malicious allegations may be made by employees against other employees and/or management. It would in my opinion, be quite counter-productive to harmony in an organisation, for reports prepared in relation to such matters, to simply be released upon request.  Not only may the subject matter of the inquiry be prejudiced as a result, additionally, other persons who may have contributed to the inquiry process may not, for good reason, wish to have their identities disclosed to either the subject matter of the inquiry or the persons who initiated it.

61       Each case will no doubt largely turn on its own facts and circumstances.  From the evidence in this matter, in particular from Mr Piper, subject to the terms of the FOI Act in any case, there are strong policy reasons as to why such materials ought not to be disclosed, unless good cause is shown to the contrary.  I must accept Mr Piper's evidence, in the absence of evidence to the contrary, that the content of the Hedges Report deals with the conduct of Mr Moore and sheds little if any light, on the conduct and behaviour of the Senior Officers.  Whether such a report ought to be released, in the circumstances, will also be conditioned to an extent, by the extent to which if any, the content of any such report bears directly upon the circumstances of a complainant.  If it does not, but rather concerns itself with the conduct of another employee, I can see little policy reason why such material ought to be generally disclosed.  This is particularly so in the case of disciplinary matters, where the decision to either institute disciplinary proceedings or not, is solely the province of the employer, in this case the respondent, under the PSM Act.

62       From all of the evidence and the entire history of this matter, I do not consider as a matter of equity and good conscience, that the provision of the Hedges Report would in any way bring closure for the Senior Officers, and on the contrary, may only serve to fuel the fire of conflict which clearly has existed between them and Mr Moore, over many years past.

63       In this regard, I accept the evidence of Mr Moore, that this matter has over many years, caused him considerable anguish and stress.  Likewise, I also accept that the Senior Officers concerned, have suffered stress and anxiety, as have their families.

64       Having carefully considered all of the evidence, in the context of the long history of this matter, I am simply not persuaded that the provision of a copy of the Hedges Report would serve any useful purpose, and may indeed, open up old wounds which in my opinion, should now be well left alone.

65       I should also add that I do not accept that the careers of the Senior Officers have in any way been detrimentally affected, by the discontinuance of the disciplinary proceedings.  I accept the respondent's evidence that they were and continued at the time of these proceedings, to be regarded as senior and well respected officers of the respondent.  Indeed, the positions which the Senior Officers occupied, was testimony to that in my opinion.  There was no evidence before the Commission, upon which any alternative finding could be made.

Apology

66       A further order sought by the applicant on behalf of the Senior Officers was that the respondent apologise to them “for any detriment suffered as a result of the disciplinary proceedings taken against them and subsequently discontinued by the respondent”.

67       I have considerable doubts as to whether the Commission has jurisdiction and power to order any party to provide an apology.  Notwithstanding the question of jurisdiction and power, in any event, in my opinion, on the facts of this matter, I do not regard an apology as being appropriate.  The furnishing of an apology conveys an acknowledgement by the person giving it, of wrongdoing against the other party.  In all of the circumstances of the present matter, there is no warrant in my opinion, for the respondent to apologise to the Senior Officers.

68       The disciplinary proceedings that were instituted were discontinued.  The director general of the respondent, advised the Senior Officers of this and that there would be no further action taken in relation to these matters and none of the history of the issues, would influence his decision in relation to the careers of the Senior Officers. In my opinion, the discontinuance of the disciplinary proceedings alone was a strong statement by the respondent, that it did not regard the Senior Officers in any poor light.  On the contrary, such discontinuance must be seen logically, as a resolution in the favour of the Senior Officers.

69       Likewise, the acquittal of the Senior Officers of the criminal charges in the District Court is restorative of the Senior Officers’ characters and cannot be held against any of them in the future.

70       In my opinion, having regard to all of these matters, even if there was jurisdiction for the Commission to order an employer to provide an apology, which in my opinion is very doubtful, there is no merit in it in this case.

Damages

71       The final head of relief sought in these proceedings, by the applicant, is damages in favour of the Senior Officers, for breaches of the obligation to maintain faith and confidence in the employment relationship.

72       Earlier, I have set out the relevant provisions of the Act in relation to the jurisdiction of an Arbitrator.  By s 80E(1) the Arbitrator has exclusive jurisdiction to “enquire into and deal with any industrial matter relating to a Government officer, a group of officers or Government officers generally.”  Furthermore, s 80E(5) provides as follows:

 (5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any Government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.”

73       The jurisdiction and powers of an Arbitrator, and for that matter, the Public Service Appeal Board, do not extend, as opposed to for example, the Commission in unfair dismissal matters, to any express power to award compensation.  Furthermore, the Commission has no general jurisdiction and power to award damages as such: Perth Finishing School v Watts (1989) 69 WAIG 2307 at 2313.

74       In State Government Insurance Commission v Johnson (1997) 77 WAIG 2169, the Industrial Appeal Court held that the jurisdiction of the Public Service Appeal Board, pursuant to s 80I(1) of the Act, did not extend to the awarding of compensation.

75       Similarly, in my opinion, the jurisdiction of an Arbitrator under s 80E of the Act does not extend to the awarding of damages or compensation.  I do not consider that the express powers of an Arbitrator under s 80E(5) of the Act, dealing as they do with the power to “review, nullify, modify or vary” any decision of an employer falling within the Arbitrator’s jurisdiction, encompasses a power to award compensation.  In my opinion, the awarding of compensation or damages, would be an act done as a consequence of the decision of the employer, and not one that “reviews, nullifies, modifies or varies” the decision itself, taken by the employer.

Conclusion

76       For the foregoing reasons, the application is dismissed.