100423124

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF AGRICULTURE

RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECH

 PUBLIC SERVICE ARBITRATOR

DATE FRIDAY, 11 JUNE 2004

FILE NO PSACR 54 OF 2003

CITATION NO. 2004 WAIRC 11714

_______________________________________________________________________________

Result Application for an order granted in part

Catchwords Employee required to take annual leave pending investigation – Investigation not part of formal disciplinary process – Annual leave re-credited by employer – Whether employee now overpaid – Application for an order that the period be leave with pay  –  Industrial Relations Act 1979 (WA) s 44(9), s 80E

Representation

Applicant Mr J. Dasey and with him Mr O.J. Wood

Respondent Mr J. Lange

_______________________________________________________________________________

Reasons for Decision

1         The relevant facts of the dispute before the Public Service Arbitrator are as follows.  Mr Robinson is an employee of the respondent.  He works in the quarantine section at the international airport.  The respondent submits, and I agree with the submission, that the position has a great deal of responsibility attached to it.  On 14 December 2002 Mr Robinson reported for work in circumstances where the respondent alleges he was late, under the influence of alcohol, unshaven and unkempt. 

2         A discussion occurred between Mr Robinson and Mr Lockwood (the manager of the airport) which resulted in Mr Robinson advising Mr Lockwood in writing that he disputed being forced to take leave without a formal letter from the respondent outlining the allegations that had been made against him (exhibit A1).  Mr Lockwood then sent a memorandum to Mr Robinson which advised:

 “Please be advised that the incident last Saturday the 14th December 2002 where you were alleged to have arrived for duty in an unacceptable state is to be further investigated.

 As a consequence of this investigation I am directing you to take annual leave for two weeks or until further notice commencing today the 17th of December 2002.”

3         Mr Robinson took the annual leave as he was directed.  On 2 January 2003 he received a further memorandum from Mr Lockwood which directed him to stay on annual leave “until the 14th January 2003 or until otherwise advised” (exhibit A3).  Mr Robinson did so.

4         On 30 December 2002 Mr Robinson received a letter from the respondent dated 18 December 2002 which is headed :

 “Section 80 - Breach of Discipline (Public Sector Management Act 1994)”

5         It put various allegations to Mr Robinson which the respondent considered may constitute a breach of discipline pursuant to s.80 of that Act and required Mr Robinson to provide a full response in writing by 6 January 2003 (exhibit A5 and A6).

6         On 2 January 2002 Mr Robinson’s union, the applicant in this matter, responded on behalf of Mr Robinson.  Relevantly, the letter stated that the union considered that a disciplinary approach was not the most appropriate approach.  The letter stated that Mr Robinson was facing certain health issues and accepted that he had made some errors of judgment.  The union stated that the most appropriate way of dealing with the issue was to treat it as one relating to health. 

7         It is sufficient to state that on 10 January an agreement was reached between Mr Robinson and the respondent that subject to him accepting a planned programme outlined in a letter to him he would be able to commence work on Monday 13 January 2003 working day shifts.  Mr Robinson accepted this proposition (exhibit A7). 

8         In summary therefore, at his employer’s direction Mr Robinson had taken annual leave between 17 December 2002 and 13 January 2003.  Mr Robinson had been paid properly for that leave in accordance with the Public Service Award 1992: his normal salary for the period of the leave plus the shift penalties for the shifts he would have worked had he not been on leave. 

9         In approximately June 2003 the union queried the respondent’s right to direct Mr Robinson to take annual leave.  It argued that his annual leave entitlement had not fully accrued when he was first directed to take annual leave.  Therefore the direction was not validly given because the employer may only direct fully accrued periods of annual leave be taken.  The respondent had other options open to it to deal with the issues and there was no reason for Mr Robinson to have been absent from the workplace while those issues were addressed.  The union’s claims culminated in this application being brought to the Commission in October 2003.  The union sought that Mr Robinson’s annual leave entitlements be reinstated and that Mr Robinson be placed on leave with pay for the period 17 December 2002 to 13 January 2003. 

10      Conferences before the Public Service Arbitrator did not result in any agreement being reached.  However on 5 December 2003 the respondent informed the union that it would re-credit Mr Robinson’s period of annual leave between those dates to him (exhibit A9).  The Commission understands that this was done.  As a consequence the respondent now considers that Mr Robinson has been overpaid by the amount of the salary and shift loadings he had been paid for that period.  This amounts to $2,376.65.  That is, from the respondent’s point of view, Mr Robinson is to be regarded as having been on leave without pay (or perhaps suspended without pay, it is not entirely clear) for the period for which he had in fact been directed to take annual leave and did so. 

11      The request for repayment of the “overpayment” (exhibit A12) refers to repayment of the salary “equivalent for the absence”.  It appears to be common ground that the right to suspend an employee without pay pursuant to s.82 of the Public Sector Management Act 1994 did not apply to Mr Robinson because the provisions of s.81 of that Act had not been followed.  Therefore, I do not conclude that the respondent considers Mr Robinson should be seen as having been suspended without pay.  Rather, the issue is simply that the respondent now requires the money paid to Mr Robinson for that period to be repaid because in fact he was absent from work.  No action to actually recover what the respondent now regards as an overpayment has been taken pending the determination of these proceedings.

12      These proceedings are to decide the claim of the union that an order should issue deeming Mr Robinson to have been on leave with pay (that is, the salary and shift penalties actually received by him) for the period 17 December 2002 to 13 January 2003.  In support of its claim, Mr Dasey presented a thoughtful submission that did not stress the legality of what occurred.  Rather, he commended as appropriate and compassionate the decisions of the respondent to treat the issues presented by Mr Robinson as health issues and also to keep Mr Robinson on pay.  The union merely stated that it was inappropriate or unfair to require Mr Robinson to expend an annual leave entitlement on what was not a period of annual leave.  The union stated that there were other options open to the respondent had it decided that Mr Robinson should not attend that particular workplace for a period.  For example the respondent could have directed Mr Robinson to work in another department.

13      The union stated that annual leave is for a period of rest and recreation and directing Mr Robinson to take annual leave whilst an allegation made against him is investigated is not rest and recreation.  The union submitted that there was no power to suspend Mr Robinson in these circumstances.  It stated, however, that if there had been and Mr Robinson had been lawfully suspended with pay pursuant to the Public Sector Management Act 1994 then upon the suspension being terminated by a finding that there was no breach of discipline Mr Robinson would have had restored to him the pay of which he had been deprived during the period of the suspension.  Therefore, it is only fair that irrespective of the later decision of the respondent to re-credit Mr Robinson’s annual leave, Mr Robinson should be paid for the period.  Mr Robinson should not now suffer from the unilateral action of the respondent to re‑credit his leave entitlement.

14      The union stated that Mr Robinson had no input into the decision to require him to take annual leave and in fact disagreed with it.  On that basis, for the Commission to consider that Mr Robinson should be paid for a period which otherwise would be unpaid was consistent with the authorities.  The union stated that the length of the period was also largely due to the gap between 18 December and 30 December 2002 being the time when the respondent wrote the letter and Mr Robinson received it. 

15      The respondent disagrees.  Mr Lange submitted that Mr Robinson was the instigator of the events in that he did turn up for work on 14 December 2002 as alleged.  This presented the respondent with a problem: in its view, Mr Robinson could not fulfil his duties.  The respondent did not create that situation.  Mr Lange stated that in the public sector annual leave is able to be taken before it accrues.  Thus, even if it could be said that at the precise time the respondent required Mr Robinson to take annual leave he did not have any accrued leave, it should not be forgotten that employees have the ability to take leave that is not accrued before it finally accrues.  It is only fair that the employer can direct an employee to take leave that has not yet accrued.  It was submitted that in any event annual leave accrued as at 1 January 2003 and therefore the second direction to Mr Robinson to take leave (exhibit A3) did apply to accrued leave even if the first direction did not. 

16      Whilst the respondent acknowledged that Mr Robinson did take annual leave and did so under protest, the respondent also points to this not being formally challenged by Mr Robinson, through his union, for the approximate 10 months until this application was lodged in the Commission. 

17      Further, whilst it is correct to say that annual leave is for the purpose of rest and recreation, the emphasis in this matter should be on the “rest” because, on the paperwork at least, it was apparent that Mr Robinson needed a period of rest. 

18      Further, the respondent stressed the fairness with which it approached the problem presented by Mr Robinson.  It did not wish to suspend Mr Robinson because of his financial circumstances and that it was approaching the Christmas period.  The respondent therefore acted with compassion in all of the circumstances including treating the issue presented by Mr Robinson as a health issue and not as a disciplinary issue. 

19      The respondent stated that the decision that it took to re-credit Mr Robinson’s leave was in response to Mr Robinson’s own request through his union.  The respondent pointed to the application (exhibit A8) which claims the very thing which the respondent has now done.  The respondent is now, very properly and appropriately in accordance with relevant financial legislation, seeking to recover what has become an unauthorised payment.  The respondent objects to any decision of the Commission which involves the Commission ordering payment for the period because Mr Robinson did not in fact work that period and certainly did not work the shifts for which shift penalties are paid.  It would be unreasonable for the Commission to require the respondent to have to pay when work was not in fact performed.  Overall, the respondent considers it has acted most fairly. 

Consideration

20      The union requested that the Commission approach the matter on the basis of deciding what is fair without regard to technicality.  The respondent stated that it has agreed to part of Mr Robinson’s request and is now obliged to recover what has become an overpayment.  Both issues are able to be addressed if the facts of what occurred are kept firmly in mind. 

21      Firstly, Mr Robinson contributed to the situation in which he found himself by his conduct on 14 December 2002.  He occupies a position which has a great deal of responsibility attached to it and he should conduct himself accordingly.  He did not do so on that occasion.  It is very much to the respondent’s credit, and to the union for its own approach, that the issue presented by Mr Robinson was dealt with as a health issue.  That was most appropriate and I formally record the Commission’s approval for that approach. 

22      From the range of choices open to the respondent when it was presented with Mr Robinson’s conduct it decided, again for the very best of reasons, not to suspend Mr Robinson or stand him down without pay.  Rather, the respondent elected to adopt a course of action which meant that Mr Robinson would continue to be paid.  That decision is the complete opposite of its present position.  The effect of the respondent’s present decision to re-credit Mr Robinson’s leave and require repayment of the monies it has already paid to him is that Mr Robinson will be regarded as having been stood down without pay for that period.  Yet that will completely undo the very commendable consideration it had towards Mr Robinson in December 2003.

23      I do not consider the respondent is able to justify its present position by saying, as it does, that it is the union’s claim that Mr Robinson’s leave be re-credited.  The union’s claim was that Mr Robinson’s annual leave entitlements be reinstated and that Mr Robinson be placed on leave with pay for the period 17 December 2002 to 13 January 2003.

24      Further, the respondent’s present position cannot alter the facts which actually occurred in the period 17 December 2002 to 13 January 2003.  The facts are that:

(1) the respondent directed Mr Robinson to take annual leave;

(2) Mr Robinson did so; and

(3) Mr Robinson was paid the salary and shift penalties appropriate to that leave.

25      When Mr Robinson was paid that sum of money he was fully entitled to it.  The money was not paid to him as a result of some mistake either in fact or in law made by the respondent.  Mr Robinson was quite entitled to receive it and, indeed, to spend it.  It is quite unfair for Mr Robinson to be put in a position now whereby he is being required to repay the very sum of money which the respondent itself paid to him, and which he was entitled to receive, merely because the respondent has decided to re-credit that leave to him.  In the conclusion to which I have come, the respondent, having relied upon its compassionate treatment of Mr Robinson in December 2003 to justify the decision it made to require Mr Robinson to take annual leave, cannot fairly now go back and do something today which it was not prepared to do and did not do in December 2002.  

26      The union argued that it was quite unfair also for Mr Robinson to have been directed to take leave for what was essentially a disciplinary matter.  There is, in my view, some strength to this argument.  There is a regime set out in the Public Sector Management Act 1994 for dealing with disciplinary matters although it should not be overlooked, and I am sure no one has overlooked it, that adherence to that regime may lead to suspension without pay which is a circumstance which neither Mr Robinson nor the respondent thought appropriate.  Viewed in that light the decision of the respondent to direct Mr Robinson to take leave was at least a preferable alternative to suspension without pay.  There may indeed have been other alternatives open to the department although the point made by it that Mr Robinson is likely to have required at least some rest is not without merit.  (Given the common ground that the issue was to be regarded as a health issue it may have been appropriate for that period to be sick leave rather than annual leave but that is not an issue before me nor is it one raised by either party and I therefore take the comment no further.) 

27      The union also correctly argued, on the facts, that the problem presented by Mr Robinson did not require his absence from work for the period 17 December 2002 to 13 January 2003.  The union has quite rightly submitted that there is no reason in the material before the Commission to show that Mr Robinson could not have returned to work somewhat sooner than 14 January 2003.  Indeed, on the evidence before the Commission once the respondent formally addressed the issues in the letter received by Mr Robinson on 30 December 2002 an agreement was then reached in a further eleven days with Mr Robinson on 10 January 2003 to the planned program.  That rather suggests that even if Mr Robinson was unfit for work on 14 December 2002, the nature of the problem and its solution was resolvable in eight days.

28      In considering the facts of the matter including the role played by Mr Robinson himself in conducting himself in a manner that caused the concern in the first place, and the commendably compassionate view taken of Mr Robinson and his circumstances by the respondent, the equity and good conscience of the matter is that Mr Robinson be deemed to have been on annual leave for the period it took to address the problem and agree the solution to it: eleven days.  The balance of the period is to be deemed as leave with pay (including shift penalties) because there is no reason why Mr Robinson should have been absent from the workplace for the length of time that he was in fact absent.  This decision does not require the respondent to now pay any money to Mr Robinson and therefore the authorities to which I was taken by the respondent are not, with due respect, relevant to the decision now reached.

29      A minute of an order giving effect to this decision now issues.