100317626

ALLEGED BREACHES OF DISCIPLINE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LAND ADMINISTRATION

RESPONDENT

CORAM COMMISSIONER P E SCOTT

 PUBLIC SERVICE ARBITRATOR

DATE WEDNESDAY, 30 JULY 2003

FILE NO PSACR 7 OF 2003

CITATION NO. 2003 WAIRC 08890

_______________________________________________________________________________

Result Application dismissed

Representation

Applicant Mr J Ross

Respondent Mr A Cameron

_______________________________________________________________________________

Reasons for Decision

The Dispute

1         The Schedule to the Memorandum of Matters Referred for Hearing and Determination pursuant to s.44 (“the Schedule”) of the Industrial Relations Act 1979 (“the Act”) sets out the dispute between the parties.  It is:

“1. The Civil Service Association of Western Australia Incorporated (“the applicant”) says that:

(a) The respondent undertook a disciplinary process against Mario Amaroso, Domenic Audino and Greg Sheppard (“the employees”) in respect of the allegations of inappropriate and excessive use of the Department of Land Administration’s information technology equipment and systems;

(b) The process did not comply with the statutory requirements and therefore the whole process was invalid and void;

(c) The respondent has conceded that the process was flawed, but proposes to recommence the process; and

(d) The applicant says that to recommence the disciplinary process would be harsh, oppressive and prejudicial to the employees.

2. The applicant seeks the following relief:

(a) A finding that the disciplinary process undertaken against the employees is dead;

(b) A finding that the whole process and every step in it was invalid and thus a nullity;

(c) An Order that all decisions arising from the process be quashed; and

(d) An Order that the respondent be barred from any further action against the employees in respect of the allegations.

3. The Chief Executive Officer, Department of Land Administration (“the respondent”) seeks to recommence the disciplinary process and says that:

(a) As the purported disciplinary proceedings were void, and because of the operation of section 55 Interpretation Act (WA) 1984, the respondent is able to recommence disciplinary proceedings against the employees;

(b) There is no prejudice to the employees being subject to properly constituted disciplinary proceedings under the Public Sector Management Act; and

(c) If the respondent is prevented from proceeding with disciplinary proceedings because of previous technical defects this would not be in accordance with equity, good conscience and the substantial merits of the case.”

The Facts

2         The parties have prepared a statement of agreed facts as follows:

“1. Mr Amoroso, Mr Sheppard and Mr Audino (together, the “Employees”) are employed in the valuation services section of the Department of Land Administration (“Department” or “DOLA”).

2. In late November and early December 2002, the Employees were notified in writing, in accordance with section 81 of the Public Sector Management Act 1994, that it was suspected that they had committed breaches of discipline relating to “the inappropriate and excessive use of DOLA equipment and systems and the storage of non-work related material.” [Tab 1]

3. The suspected breaches of discipline letters were handed to Mr Amoroso and Mr Audino on 26 November 2002 and to Mr Sheppard on 3 December 2002.  At the time the Employees were handed the letters, they were given the opportunity to peruse a hard copy of the e-mails related to the suspected breach of discipline proceedings.

4. In early December 2002, the Employees in accordance with section 81(1) of the Public Sector Management Act provided an explanation to the suspected disciplinary matters. [Tab 2]

5. The Department, taking the explanations from the Employees to be admissions of committing the alleged breaches of discipline, found each of the Employees guilty of minor breaches of discipline and purported to reprimand them and fine them two days’ pay. [Tab 3]

6. In late December 2002, the Employees wrote to the Department pursuant to section 85 of the Public Sector Management Act denying that they had admitted committing the suspected breaches of discipline and objecting to the findings that had been made and the penalties that had been imposed.  The Employees also complained that, in their view, the process that had been followed in the disciplinary proceedings was not appropriate. [Tab 4]

7. The Department notified the Employees by letters dated 16 January 2003 that an investigation was to be conducted by Ms Martine Martin, Manager Workforce Services, supported by an external investigator, to determine if the Employees had committed the alleged breaches of discipline and to audit the process followed by the Department in conducting the disciplinary proceedings. [Tab 5]

8. The external investigator, Mr Steve Young, conducted an investigation into the conduct of the Employees. [Tab 6]

9. On 21 February 2003, the Civil Service Association lodged application PSAC 7 of 2003.

10. By letter dated 14 March 2003, the Department indicated that it would discontinue the disciplinary proceedings against the Employees and would recommence the disciplinary process from the beginning with different people. [Tab 7]

11. On 7 April 2003, Commissioner Scott issued an interim order preventing the Department from recommencing disciplinary proceedings against the Employees pending the outcome of PSAC 7 of 2003.”

(Exhibit 1)

3         Where there is reference to Tab numbers in the statement of agreed facts, these relate to documents contained within a file of agreed documents submitted by the parties.  However, the applicant objected to the document referred to as Mr Young’s report, being Tab 6 of that folder, being in evidence. I did not receive that document into evidence.

Leave to Counsel

4         The first issue is that at the hearing on 23 June 2003, I refused leave to the respondent to appear by counsel and indicated that I would reserve my reasons in respect of that. 

5         The applicant has agreed with the respondent that s.55 of the Interpretation Act 1984 (WA) would have application in this matter and does “not contend that there is ipso facto, a legal barrier to exercising a power where a previous exercise (of power) was flawed” (the applicant’s letter of 23 May 2003 (Exhibit 5)), and says that no issues of law of any significance would arise in the matter which required the respondent to be represented by counsel.  In fact, the parties agreed that the issue before the Arbitrator is whether it is fair and reasonable that the alleged breaches of discipline be the subject of a new disciplinary process, or whether the employees will suffer prejudice by that new process being allowed to occur.

6         There is no automatic right to appear and it is a matter of discretion as set out in s.31(4) of the Act as follows:

“(4) Where a question of law is raised or argued or is likely in the opinion of the Commission to be raised or argued in proceedings before the Commission, the Commission may allow legal practitioners to appear and be heard.”

7         It is true that there are legal principles and precedent associated with the question before me.  However, the issue of substance identified on 23 June 2003, and set out in the Schedule is essentially not a question of law but of unfairness.  Accordingly, at that time I agreed with Beech SC in The Civil Service Association of Western Australia Incorporated v Director General, Department of Justice [2003 WAIRC 07881].  As the dispute was one in which questions of law were not likely to be raised in any substantial manner I refused the counsel leave to appear.

8         Interestingly, the applicant did not consent to counsel representing the respondent when this matter first came on for hearing on the grounds that legal issues were not the substance of the matter but that the issue was one of fairness and equity, and of the prejudice to the employees concerned.  However, when the substance of the matter was heard, as noted later in these Reasons, two of the applicant’s major arguments relied upon legal principles, not on issues of fairness in their normal context. 

The Applicant’s Case

9         The first point made by the applicant is that the whole of the disciplinary process, the investigation and each step of that process, is null and void because of the flaws in the process, and the applicant seeks a declaration accordingly.

10      The applicant also says that it would be harsh, oppressive and prejudicial to the employees for the employer to restart that process.  The first basis of this claim is the doctrine of res judicata.  The applicant says that under the Public Sector Management Act 1994 (“PSM Act”) the Chief Executive Officer (“CEO”) is the employing authority and the accountable person in respect of the disciplinary process.  The CEO has already passed judgement according to the applicant, thus preventing further proceedings. 

11      The applicant also relies on double jeopardy saying that this prevents the prosecution of employees a second time.  To restart the process would be an abuse of process given that the respondent has not complied with the statutory requirements of the disciplinary process, and each step within that process is required to be complied with. 

12      The applicant also says that because the process was flawed and is dead, all aspects of the matter including the allegations, the evidence collected, the investigation and the findings are also dead, i.e. legally cut off from further action. 

13      Further, the applicant says that the CEO is no longer independent and that there is a reasonable perception of bias.  In cases such as this, the applicant says, there must be a presumption of innocence, and yet the CEO has already made a determination and imposed penalties.  The respondent’s letter of 16 January 2003 (Exhibit 3) to the employees confirms this view, and says that even if there was insufficient evidence to substantiate a disciplinary process, he may decide to take other punitive action.  This letter is said to be written in a threatening tone. 

14      Also, the applicant says that other senior staff within the Department have played a major role in the flawed process and have openly expressed views as to the employees’ guilt.  I note that no evidence was presented to support this contention.

15      The respondent’s letter to the Commission of 14 March 2003 (Exhibit 4) is also said by the applicant to have expressed strong views which demonstrate that he is not impartial, but is prejudiced and has preconceived views.  As the CEO, the decision maker in this matter has been fully involved in the void process and cannot by extricated from it.

16      Additionally, the applicant says that to allow the respondent to restart the process would be to encourage incompetency and unfair decision making. 

17      Accordingly, the applicant seeks the remedies set out in paragraph 2 of the Schedule.

The Respondent’s Case

18      The respondent says that the matters identified as the relief sought in paragraphs 2(a), (b) and (c) of the Schedule are not in dispute between the parties, and that if granted the declarations and orders sought would have no practical effect.  As the role of the Public Service Arbitrator (“the Arbitrator”) is to resolve industrial disputes, not to create them where they do not exist, the respondent says that these matters are irrelevant and unnecessary to be dealt with.  The respondent says that the only live issue is whether the Arbitrator ought to prevent the respondent from starting anew the disciplinary process following procedural flaws in the previous process.  The respondent says that res judicata and double jeopardy are not relevant principles.  The respondent uses the analogy of a mis-trial where technical procedural errors have caused the trial to be flawed.  The remedy for that is another trial, not the abandonment of the whole issue. 

19      The respondent says that the applicant’s concession regarding the application of the Interpretation Act 1984 is properly made but that the applicant’s arguments in respect of res judicata and double jeopardy are efforts to pull back that concession. 

20      According to the respondent, the involvement of the CEO in any disciplinary process is mandatory pursuant to the PSM Act and describes the flaws in the previous process as being fairly minor departures from the requirements of that Act, and that this should not prevent the CEO from exercising the responsibilities which fall to him.  In that regard the respondent refers to the decision of Anderson J (with whom Parker and Hasluck JJ agreed) in Civil Service Association of Western Australia Inc v Director General of Department of Community Development IAC 4 of 2002 [2002] WASCA 241 at paragraph 49, where the Industrial Appeal Court found that having been directed to put a particular report out of his mind, there was no good reason to suspect that the person undertaking an investigation would not do so.

21      The respondent says that the primary evidence upon which the new disciplinary process in this matter would be based, being the emails and other material, would be handed over to a new investigating team which would consider that evidence and report their findings to the CEO.  The CEO, not having previously been involved in the day to day investigation could consider the matter anew.  The CEO had previously understood the employees to be admitting the allegations when the employees say that they in fact denied the allegations.  The CEO would now hear from the employees as a part of the new investigation process with a new investigating team.

22      The respondent also says that as a matter of equity, good conscience and substantial merits, the Arbitrator ought not allow minor technicalities in the previous disciplinary process to defeat the merits of the matter, that to grant the application would be to allow the merits of the matter, being serious allegations against the employees, to be swept under the carpet.  The respondent says that the allegations are not baseless, and they are not asserted to be by the applicant, and accordingly it would be outrageous to prevent the allegations from being investigated due to what the respondent describes as very minor, technical breaches of the PSM Act. 

23      The respondent also refers to the decision of Ipp J in an application for a Writ of Certiorari against the Anti Corruption Commission, Special Investigator Mr Geoffrey Millar QC and Others file number CIV 2345 of 1997 (Lib No: 980249S) where His Honour said in effect that notwithstanding that the Commissioner of Police had suspended police officers on the basis of findings given and opinions expressed unlawfully by the Anti Corruption Commission, nothing should prevent the Commissioner of Police from considering the matter of discipline against officers afresh.  The respondent says that where the Supreme Court says that it is acceptable for senior officers to be able to put matters out of their minds and to deal with matters afresh, then there is no reason for the Arbitrator to prevent the CEO from proceeding again with these matters.

24      Finally, the respondent relies on a decision of the Arbitrator as presently constituted in Civil Service Association of Western Australia Incorporated v Director General, Department of Family and Children’s Services [2002 WAIRC 07217] to the effect that the Arbitrator should not interfere with or put a stop to disciplinary processes unless they are baseless or the process is so flawed as to taint the whole process and the outcome, and that such matters should proceed to conclusion.  An employee aggrieved by the outcome could appeal against the process and the outcome following the conclusion of the process. 

Conclusions

25      It is clear that in respect of the first 3 aspects of relief sought, the parties are in agreement that the disciplinary process and the decisions arising from the process are null and void.  It is not my intention to make any particular findings in that regard.  The nature of the flaws in the process has not been argued before me.  Although the documentation may be seen on its face to indicate some flaws, those matters were not argued before me and I am unable to reach any conclusions or make findings in regard to them.  Suffice it to say that the parties agree that there were flaws in that process.  Having said that though, I note in passing that one of those alleged flaws as noted in point 5 of the agreed facts is that the respondent took the explanations provided by the employees to be admissions and the employees deny that they are admissions.  The employees’ responses in early December 2002 indicate that they expressed remorse and embarrassment and say that they will not err again.  It is not surprising that these might have been viewed as being admissions.

26      In any event, it would seem that that is not the end of the problems with the process but, as noted earlier, I do not intend to deal with those as they were not argued before me.  Nor am I able to conclude as the respondent asserts that the flaws were minor in nature.

27      The second issue raised by the applicant is that the doctrine of res judicata would prohibit the process being re-commenced.  I am of the view that res judicata does not arise in this matter for a number of reasons.  The principle of res judicata is set out in EFFEM Foods Pty Limited v Trawl Industries of Australia Pty Limited and Others (1993) 115 ALR 377, where their Honours Northrop and Lee JJ referred to the doctrine as set out in Spencer Bower and Turner as follows:

“In English jurisprudence a res judicata, that is to say that a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies.”

28      (see also W J and F Barnes Pty Ltd v Commissioner of Taxation (Cth) (1957) 76 CLR 294 per Kitto J at 315)

29      The matter which the applicant says is subject to res judicata is a process and a decision by an employer pursuant to an administrative process set out in the PSM Act.  That process and decision is not a final judicial decision.  The employer is not a judicial tribunal.  The process did not constitute litigation in its usual sense.  Accordingly, the circumstances of this case do not meet the tests applicable for res judicata.

30      I also note that the parties have agreed that the process and the decision are null and void.  Accordingly, they are of no effect and have no status.  It is not then a matter of re-litigating something which is null and void.

31      Also, the parties are agreed that s.55 of the Interpretation Act 1984 applies.  This provides:

“55. Exercise of power may be corrected

 Where a written law confers a power or imposes a duty upon a person to do any act or thing of an administrative or executive character or to make any appointment, the power or duty may be exercised or performed as often as is necessary to correct any error or omission in any previous purported exercise or performance of the power or duty, notwithstanding that the power or duty is not in general capable of being exercised or performed from time to time.”

32      Clearly the disciplinary process set out in the PSM Act is administrative in character, as identified in s.55 of the Interpretation Act 1984, and there is the ability in accordance with that act to exercise the power “as often as is necessary to correct any error or omission in any previous purported exercise or performance of the power”. 

33      As to the issue of double jeopardy, that is a principle by which a person should not be tried more than once for the same offence (see Cooke v Purcell (1988) 14 NSWLR 51).  Once again as noted earlier, the first disciplinary process was null and void and has no status.  Mr Cameron used the analogy of a criminal case where there has been a mis-trial.  As he says, the appropriate action is to retry the case.

34      In the circumstances in this matter, in any event, the applicant says that the basis upon which it protests at the respondent recommencing the disciplinary process is of prejudice to the employees.  The question then arises as to what prejudice they would suffer.  The applicant relies on the respondent, being the CEO, having reached a conclusion, and there being a perception of bias.

35      The applicant also says that the terms of the letter to the employees of 16 January 2003 (Exhibit 3) and the letter to the Commission of 14 March 2003 (Exhibit 4) give rise to a perception of bias.

36      It is clear from the authorities and from the Interpretation Act (WA) 1984 that a public sector employer can be expected to put out of his or her mind matters which are recognised as having been dealt with erroneously (see the Supreme Court of Western Australia in an application for a Writ of Certiorari against the Anti Corruption Commission, Special Investigator Mr Geoffrey Miller QC (supra) and the Industrial Appeal Court in Civil Service Association of Western Australia Inc v Director General of Department for Community Development (supra)).  It is true that this case can be distinguished from the latter in that the report which was to be put out of mind was to be put out of the mind of the investigator, not the decision maker.  That does not alter the fact that there is an expectation in public sector management that this is capable of being done.  The question remains as to whether the CEO’s correspondence demonstrates that this is not a reasonable expectation in this case.  In particular, it is the fifth paragraph of the letter from the respondent to the employees of 16 January 2003 (Exhibit 3) which the applicant says demonstrates that the CEO had predetermined the issue and was prejudiced.  Paragraph 5 says:

“Should Ms Martin conclude that there is insufficient evidence to support a charge of breach of discipline then no further action will be pursued under the disciplinary provisions contained under Division 3 of Part 5 of the Public Sector Management Act 1994.  It may be recommended though that other management action be taken, including performance management.”

37      I do not regard this as being threatening to the employees but rather as setting out that a number of options are possible.  It does not reach any conclusion nor indicate any view of the outcome but merely foreshadows possible outcomes.  The word ‘may’ in the last sentence of the paragraph should be read as an implication that it may or may not occur, according to the recommendation and, of course, the CEO’s discretion.  In any event, the options depend on the recommendations which might be forthcoming from the investigation. 

38      The letter of 14 March 2003 to the Commission provides, formal parts omitted:

“REGARDING APPLICATION NO. PSA C 7 OF 2003

I refer to the conciliation conference held before you in relation to the above matter on 11 March 2003.  In light of the comments you made at that conference, DOLA will discontinue the current disciplinary proceedings against Messrs Sheppard, Audino and Amoroso.

However, DOLA has a strong view regarding the transmittal, storage or downloading of inappropriate and/or pornographic material.  Therefore, DOLA will recommence the disciplinary process against Messrs Sheppard, Audino and Amoroso from the beginning in order to correct any errors that may have occurred in the process to date.  DOLA will appoint different people to conduct the disciplinary process.”

(Exhibit 4)

39      It is the second paragraph which causes the applicant concern.  Having examined the paragraph, I conclude that the respondent is making a general statement of opinion about a type of behaviour regarding matters of the nature of the allegations against the employees.  It does not indicate that the respondent has taken a strong view that the employees themselves are guilty of that type of behaviour, of any view of their behaviour at all.  Accordingly, I am not satisfied that the correspondence could be construed as indicating a prejudgement that the employees have behaved in a particular way or is threatening. 

40      The applicant also says that if the process and the outcome are void then the respondent is barred from using any of the evidence which first brought the allegations to light.  I find that this is not so.  What is null and void is the investigation process and the outcome.  The evidence which precipitated the investigation remains alive.  That evidence stands on its own and existed prior to there being any disciplinary process.  It is the disciplinary process, not the evidence, which was tarnished.

41      Accordingly, there is no reason to suggest, now that the respondent is aware that the employees do not admit the alleged breaches, that he could not proceed to deal with an investigation appropriately.  The fact that the employer has made an error in assuming that the explanations constituted that admission does not indicate a preconceived idea in that regard. 

42      I am of the view that this is a situation where, notwithstanding that an employer has erred in the application of the process set out in the PSM Act, to deny the employer the opportunity to properly investigate and consider the allegations when on the face of it the allegations are not baseless would be unjustified.  The employer has given an undertaking to commence the process anew with a different investigating team and, according to the authorities, ought to be able to put the previous investigation and outcomes out of his mind.  That is not to say that employers who enter into disciplinary processes can approach them in a cavalier manner, can continue with them, cease them and recommence them at any point to overcome errors or flaws in the process if they had paid scant regard to the requirements of the legislation.  It is not suggested that this particular process ought to be done over and over until the respondent gets it right but rather the respondent ought have a second opportunity to investigate what clearly are serious allegations, allegations which are not baseless.  It may be stressful and difficult for the employees to face a further investigation.  However, allegations of the nature of those against the employees should not be ignored because of the breaches in the process which might occur.  On this occasion, the circumstances are such that I am not inclined to order that the respondent be barred from any further action in respect of the allegations.  To do otherwise would be to allow technicalities to overcome issues of equity and merit.  This would be contrary to the requirements of s.26(1) of the Act, which sets out the approach to be taken by the Commission, and in this case the Arbitrator, in dealing with disputes.

43      Accordingly, the matter will be dismissed.