100424667

AGAINST THE DECISION TO DISMISS MADE ON 3/11/2003

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES KAY DALLIMORE

APPELLANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF EDUCATION AND TRAINING

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

  COMMISSIONER J L HARRISON – CHAIRPERSON

 MR B HEWSON – BOARD MEMBER

  MS C BREUDER – BOARD MEMBER

DATE OF ORDER THURSDAY, 24 FEBRUARY 2005

FILE NO/S PSAB 11 OF 2003

CITATION NO. 2005 WAIRC 00409

_______________________________________________________________________________

Catchwords Public Service Appeal Board – Appeal against decision to terminate employment – Principles applied – Compliance with statutory scheme –  Procedural fairness considered– Appeal upheld – Industrial Relations Act 1979 (WA) s 80I Public Sector Management Act 1994 (WA) s 80, s 81, s 83, and s 86

Result Appeal against dismissal upheld

Representation

Appellant Mr M Amati (as agent)

Respondent Mr D Newman

_______________________________________________________________________________

Reasons for Decision

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

2          On 21 November 2003 Kay Dallimore (“the appellant”) lodged an appeal to the Board against the decision to terminate her made on 3 November 2003 by the Director General Department of Education and Training (“the respondent”).  The schedule to the application is as follows:

 “GROUNDS:

1. The Applicant seeks an Appeal to the Public Service Appeal Board pursuant to Section 80I(1)(e) and Section 26 of the Industrial Relations Act 1979.

2. The dismissal of the Applicant on the (sic) 3 November 2003 from her position as a School Registrar was harsh, oppressive and unfair.

3. That the Respondent failed to comply with the Public Sector Management Act 1994, Part 5 Division 3.

4. The Respondent is unable to rely on reasons stated in the termination letter to be factually correct.

5. That even if the discipline (sic) deficiencies are found, the penalty of dismissal is too severe.

 REMEDY SOUGHT:

1. An Order quashing the decision to dismiss the Applicant and the reinstatement of the Applicant with no loss of salary, continuity or entitlements.

2. Any other Orders the Appeal Board considers necessary to resolve this matter.”

3          A statement of agreed facts was filed by the parties in relation to this matter and reads as follows:

“1. For the material time Ms Dallimore was employed by the Respondent at Queens Park Primary School as a Ministerial Officer under the terms of the Education Department Ministerial Officers Salary Allowance and Conditions Award 1987.

2. The appellant is a Government Officer within the meaning of that definition as per section 80C of the Industrial Relations Act 1979, and the Respondent is an Employing authority for the purposes of the same section.

3. The Appellant is employed by the Respondent pursuant to section 235(c) of the School Education Act 1999 (the “SE Act”) in the class of “other officers”.

4. Part 5 of the Public Sector Management Act 1994 – Substandard performance and disciplinary matters, is imported into the SE Act against “other officers”, via section 239 of the SE Act.

5. The position occupied by the Appellant is that of level 3 School Registrar.  The Appellant has held a position of School Registrar for some 23 years.

6. The Appellant has been the School Registrar at Queens Park Primary School for approximately four years.

7. The Principal, Ms Paula Gray, has been the Appellant’s line manager for approximately 18 months.

8. One of the functions required of the appellant was to receive, open, sort and distribute the school’s mail.

9. The Principal, (sic) permitted the Appellant to open all mail directed to her either by name or position, other than mail marked Private and Confidential.

10. Following discussions with Ms Margaret Stinton, 7 March 2003 and 10 March 2003, the Principal, (sic) agreed to allow Ms Stinton an opportunity to gain work experience in the office of the school and that this could commence the following day, Tuesday 11 March 2003.

11. Due to a long standing flexible hours arrangement with the past Principal, and which Ms Gray permitted to continue, the Appellant was away from the school on Friday 7 March 2003.

12. The Appellant was also absent on approved leave on Monday 10 March 2003.

13. A note was left in the Appellant’s office advising of the work experience situation commencing on Tuesday 11 March 2003.

14. Ms Stinton attended the school on the morning of Tuesday 11 March 2004 (sic) and leaving (sic) at lunchtime.

15. Ms Stinton reported to Ms Gray that her experience at the school was uncomfortable and unpleasant.

16. Ms Stinton did write to the Principal regarding her experience at the school in a letter dated Friday 14 March 2003.

17. The letter (envelope) is Australia Post date stamped Monday 17 March 2003.

18. The Appellant did receive the letter from Ms Stinton on or around 19 March 2003.

19. The Appellant did open the letter from Ms Stinton in accordance with her duties.

20. The Appellant did read aloud parts of the letter relating to herself to at least 2 other members of staff in the office at the time.”

(Exhibit 1)

4          The parties agreed on a chronology of events in relation to this matter as follows:

“1. On 10 March 2003 arrangements were made for a work experience person at the Queens Park Primary School.

2. On 11 March 2003 the work experience person arrives at the school as arranged.

3. On 19 March 2003 a letter arrives at the school from the work experience person.

4. On 19 March 2003 the alleged letter is found shredded in the school’s shredder.

5. By letter dated 7 April 2003, the Director General, Mr Paul Albert advised the applicant in writing that:

(a) she may have acted in a manner that could constitute a suspected breach of discipline pursuant to s.80 of the Public Sector Management Act 1994 (“Act”).  Specifically it was alleged that:

(i) On 19 March 2003 the Applicant intercepted a letter personally addressed to the Principal of Queens Park Primary School, from a person known as Mrs Stinton, and read parts of the letter out aloud to staff members.

(ii) On 19 March 2003, the Applicant intercepted and shredded a letter personally addressed to the Principal of Queens Park Primary School, from a person known as Mrs Stinton.

(b) the above alleged conduct, if proven, amounted to breaches of sections of the School Education Act 1999, Public Sector Management Act 1994, principles of the Western Australian Public Sector Code of Ethics and the Department’s Staff Conduct Policy.

(c) in accordance with s.81(1) of the Act, the Applicant was given ten working days to furnish a response to the above allegations.

6. By letter dated 28 April 2003, the Applicant furnished a response to the allegations.

7. By letter dated 20 May 2003, the Applicant was advised that following careful consideration of the Applicant’s response, a formal investigation would be initiated pursuant to s.81(2)(a) of the Act.

8. By letter dated 20 May 2003, an investigator Mr Peter Burgess was appointed to investigate and prepare a report as to whether or not the employee was guilty of a breach of discipline.

9. By letter dated 20 June 2003, the investigator submitted his report.

10. By letter dated 2 July 2003, the respondent advised that:

(a) following careful consideration of the investigator’s report and the Applicant’s response to the allegations, the Applicant was charged with a serious breach of discipline against allegation (i) as per section 83(1)(b); and a minor breach with a proposed penalty of reprimand and fine not exceeding 1 days pay against allegation (ii) pursuant to s.83(1)(a) of the Act.

(b) pursuant to s.86(1)(c) the Applicant was required to state in writing within ten working days whether she admits or denies the charges.

(c) pursuant to s.85(a) the Applicant was notified that an objection to a minor breach of discipline would constitute a charge of committing a breach of discipline.

11. By letter dated 14 July 2003, the Applicant furnished a response to the charges by objecting to charge (i) and proposed penalty; and denying charge (ii).

12. By letter dated 22 July 2003, the Respondent advised the Applicant of the implications of lodging an objection under s.85 of the Act and to give the Applicant the opportunity to either formally accept or deny the breaches of discipline.

13. By letter dated 28 July 2003, the Applicant objected to the breaches of discipline.

14. By letter dated 8 August 2003, the Respondent pursuant to s86 advised that:

(a) pursuant to s.83(1)(b) the Applicant would be charged with committing serious breaches of discipline, being:

● On Wednesday, 19 March 2003, at Queens Park Primary School, you opened a letter personally addressed to Ms Paula Gray, Principal, Queens Park Primary School, from a person known as Mrs Stinton, and read parts of the letter out aloud to staff members.

● On Wednesday, 19 March 2003, at Queens Park Primary School, you intercepted and shredded a letter personally addressed to Ms Paula Gray, Principal, Queens Park Primary School, from a person known as Mrs Stinton.

(c) pursuant to s.86(1)(c) the Applicant was given ten working days to furnish a response to the charges.

15. By letter dated 18 August 2003, the Applicant furnished a response denying the charges.

16. By letter dated 28 August 2003, Joe Baskwell of Insurance Support Services was appointed to hold a disciplinary inquiry pursuant to s.86(4) of the Act.

17. By letter dated 28 August 2003, the Applicant was advised that following the denial of the truth of the charges a disciplinary inquiry would be held pursuant to s.86(4) of the Act.  The charges were:

● On Wednesday, 19 March 2003, at Queens Park Primary School, you opened a letter personally addressed to Ms Paula Gray, Principal, Queens Park Primary School, from a person known as Mrs Stinton, and read parts of the letter out aloud to staff members.

● On Wednesday, 19 March 2003 at Queens Park Primary School, you opened and shredded a letter personally addressed to Ms Paula Gray, Principal, Queens Park Primary School, from a person known as Mrs Stinton.

18. On 7 October 2003 the inquirer submitted his report and recommendations arising from the inquiry.

19. By letter dated 3 November 2003, the Applicant was advised that following the conclusion of the disciplinary inquiry the (sic) employment would be terminated pursuant to s86(9)(b)(ii) and 86(3)(b)(vi) of the Act.

20. On 21 November 2003 the Appellant made application to the Public Service Appeal Board.”

(Exhibit 2)

Background

5          In November 2003 the Civil Service Association of Western Australia Incorporated (“the CSA”) sought an urgent conference pursuant to s44 of the Industrial Relations Act 1979 (“the Act”) for the purpose of conciliating the appellant’s employment with the respondent (PSAC 60 of 2003) and an interim reinstatement order was sought and granted pending the hearing and determination of a number of issues in dispute between the parties in relation to the appellant’s termination (see Civil Service Association of Western Australia Incorporated v Director General Department of Education and Training [2004] 84 WAIG 564).

Appellant’s Evidence

6          The appellant stated that as she was not given any notice that Ms Margaret Stinton would commence work experience at Queens Park Primary School (“the School”) she told Ms Gray on the morning of 11 March 2003 that there was no work for Ms Stinton to undertake.  Ms Gray responded by saying Ms Stinton could answer the telephone.  The appellant told Ms Gray that she was annoyed that she had arranged for Ms Stinton to undertake work experience without consulting her and even though Ms Gray stated that she would later discuss this issue with the appellant, this did not occur.  As the appellant had no time to instruct Ms Stinton and had a busy workload she allocated her telephone duties.

7          The appellant stated that during the morning of 11 March 2003 an incident happened between her and Ms Stinton involving a student enrolment form which caused tension between the appellant and Ms Stinton.  The appellant stated that the necessary paperwork had been completed to enrol a student and she put the enrolment form next to the computer.  The appellant understood that Ms Gray then gave Ms Stinton a number of jobs to complete including filing this form.  The appellant stated that when she told Ms Stinton not to file the form as the student’s information had not been put into the computer Ms Stinton disagreed with the appellant’s instruction and insisted on doing what Ms Gray had told her to do.

8          The appellant stated that she did not believe she was rude to Ms Stinton when she attended the School.  The appellant stated that she had an intense work load at the time, she had been away from the School for two working days and as a result she did not have the time to train Ms Stinton.  The appellant stated that if she had known beforehand that Ms Stinton would be undertaking work experience she would have prepared work for her.  The appellant claimed that the only indication that she had that Ms Stinton was attending the School was via a note left for her on the morning of 11 March 2003 by the School Officer.

9          The appellant stated that Ms Stinton was cool, business like and bristly and had a strange demeanour given that she was being assisted to undertake work experience.

10       The appellant stated that when opening the mail on 19 March 2003 she opened and read the letter from Ms Stinton, which was addressed to Ms Gray.  The appellant conceded that she then read aloud those comments in the letter which related to herself to three colleagues who were in the office at the time.  The contents of this letter are as follows (formal parts omitted):

“I am writing to thank you very much for giving me the opportunity to attend your school to obtain some work experience.

As I explained in my phone call to you, I have been out of the workforce for some 14 years while raising my family and I am looking to return to part time clerical work.  I am currently studying at TAFE and I felt as though some practical office experience after such a long absence from the workforce would be most beneficial.

I am therefore reluctant to inform you that I will not be returning to your school in this capacity.  Your Registrar, who I know as Kay, made it very difficult for me and also quite clear that I was nothing short of an inconvenience to her.  I am very disappointed that she felt it necessary to treat me in this way as I only hoped to be of help rather than a hindrance to her.

I would like to add though that the other members of your staff whom I met both during the morning at reception and while on my morning tea break were all very supportive and welcoming.

I thank you once again for your kindness and for giving me this opportunity.”

(Exhibit A1.1)

11       The appellant stated that she then tore the letter’s envelope in half and put it in the bin which was her usual practice.  The appellant stated that she was upset at the time that Ms Stinton had formed a wrong opinion of her and objected to comments in the letter about her.

12       The appellant stated that she was authorised to open all of the School’s mail, including mail addressed to the Principal as long as she did not open any personal mail addressed to staff or any letters marked private and confidential.  The appellant stated that the envelope used by Ms Stinton did not have private and confidential written on it (Exhibit R2).  As Ms Gray expected her to open and read correspondence sent to the School the appellant believed that she had not breached any of the School’s policies when she opened and read the letter from Ms Stinton.

13       The appellant claimed that at the time she read parts of Ms Stinton’s letter to her colleagues on the morning of 19 March 2003 she did not mention Ms Stinton’s name.

14       The appellant stated that after reading Ms Stinton’s letter she wanted to respond to Ms Stinton about her complaint.  She therefore took a photocopy of Ms Stinton’s letter.  The appellant testified that as she sorts the mail in order of importance for Ms Gray, she put the original of Ms Stinton’s letter in a bundle of junk mail for review by Ms Gray on the basis that she did not believe the letter to be important to the running of the School.  The appellant stated that when she put the letter in Ms Gray’s junk mail pile she was not intentionally trying to hide the letter from Ms Gray.  The appellant then put the photocopy of Ms Stinton’s letter into her handbag so that she could compose a response to Ms Stinton that evening.  As the appellant was upset about Ms Stinton’s letter she contacted her partner Mr Harry Smith and after discussing the matter with him she decided that it was not a good idea to write to Ms Stinton as the letter was not addressed to her.  The appellant gave evidence that Mr Smith advised her to shred the photocopy of the letter and to let Ms Gray deal with Ms Stinton’s complaint.  The appellant stated that she then shredded the photocopy of Ms Stinton’s letter just prior to leaving the School at around 3.30 or 4.00pm on 19 March 2003.  The appellant denied that she shredded the original of Ms Stinton’s letter.  The appellant stated that it would not have made sense to shred the original of Ms Stinton’s letter when she had already read parts of the letter to three staff, one of whom was a good friend of Ms Gray.

15       The appellant stated that from time to time Ms Gray misplaced documents and as a result some staff make copies of documents before giving them to Ms Gray.  The appellant stated that Ms Gray’s desk was always “busy”.

16       The appellant stated that her relationship with Ms Gray was variable and not as good as it could have been.  The appellant stated that she had limited communication with Ms Gray, occasionally their relationship was tense and she described Ms Gray as being autocratic and non inclusive.  The appellant believed that Ms Gray was unfamiliar with the role of the Registrar.  The appellant also described Ms Gray as being a confident and exuberant person who at times shoots from the hip, she sometimes makes decisions without thinking, and that Ms Gray makes decisions without consultation and she prides herself on her power to manipulate people.  As an example of lack of consultation the appellant stated that from time to time she was required to attend professional development courses arranged by Ms Gray without being consulted (Exhibit A1.2).  The appellant stated that due to Ms Gray’s limited communication about what was happening at the School embarrassing incidents sometimes occurred.

17       The appellant stated that in 2002 Ms Gray spoke to her about two complaints involving the appellant being rude.  Even though the appellant and Ms Gray discussed these complaints Ms Gray did not tell the appellant the names of the complainants.

18       The appellant stated that subsequent to Ms Gray laying the complaints against her she understood Ms Gray spoke to a Principal within the local school district about the charges and as a result the appellant lodged a complaint about this which was investigated by the respondent’s Complaints Management Unit (“the CMU”).  The appellant stated that she was unaware of the outcome of this investigation.

19       When the appellant received the letter from the respondent dated 7 April 2003 outlining the two allegations against her she understood the whole thing had been a mistake because she knew she had shredded a photocopy of Ms Stinton’s letter.  As the appellant was confused and thought a mistake had occurred she emailed Ms Gray on 16 April 2003 as follows:

“Just to clear up the matter of the “letter”.

I was quite upset when I read the letter and I allowed other staff members to read it too.  I wanted to write a reply to the lady explaining the circumstances – that I had come back after a day off, which was quite harrowing, to be informed by note from the school officer that I was to have a work experience person for the day.  It is only common courtesy to ask me or at least inform me of your intentions as my workload was horrendous.  I had no time to show her anything or had any work that I could possibly give her to do except answer the phone – so I basically ignored her and went about my work.  The only time we spoke was when you had asked her to file an enrolment form but I asked her not to file it as it had not been put on the system.  She curtly told me that you had instructed her to and therefore she was going to do it.  I asked her to give me the form – her attitude was very abrupt and not at all suitable for a school office.

I realise from your words on Tuesday morning when I spoke to you about Mark Williams coming to see me that the whole thing was possible (sic) set up by you because you knew how I would react and that you had asked the lady to send in a letter knowing full well that I would be the one opening it.  You told me then that you had been waiting for the letter because “youn (sic) wanted it”.

I photocopied the letter to take home to do a reply and placed the original on your desk.  I then decided that it wasn’t worth getting so upset about it so I shredded the copy before leaving that day.  As you were away for several days at that time the letter is no doubt still on your desk under a pile of paperwork.

Can I please ask why you did not confront me about the letter – why go to this degree when you know that I have had a past grievance with a Principal – I have worked hard at Queens Park PS (sic) and have wonderful references from my past two Principals there.  I obviously upset you somewhere along the way and you won’t be happy until you see me gone.

I really didn’t see this coming as you have been outwardly friendly to me and we have been working well together and I have also been working quite long hours on different projects required for the renovation of the office.

I will never understand why this has happened and the effect it has had on me has affected my health, physically and mentally.”

(Exhibit A1.4)

20       The appellant understood that the whole issue would be sorted out when the respondent realised that she had shredded the photocopy of Ms Stinton’s letter.

21       The appellant stated that she was not aware that the original of Ms Stinton’s letter had been shredded until she was informed by Mr Peter Burgess who had been appointed by the respondent to investigate the charges against her.

22       The appellant stated that she received a copy of the transcript of her interview with Mr Joe Baskwell, who was the Inquirer appointed by the respondent, on or about 1 October 2003 and she made amendments to Mr Baskwell’s summary of her evidence and then forwarded the statement to him.  The appellant stated that on advice from the CSA she did not sign the statement she gave to Mr Baskwell.  The appellant confirmed that Mr Baskwell’s report did not include a copy of her most up to date statement (Exhibit A1.7).

23       The appellant admitted having a verbal altercation with the Principal of Kewdale Primary School in the last days of school term in 1999 and agreed that as a result a grievance was lodged against her.  The appellant stated that the matter was investigated and that this lead to the appellant being transferred to the School in 2000 (Exhibit A1.8).

24       Under cross-examination the appellant was asked if she was angry when Ms Stinton arrived to undertake work experience.  The appellant stated that she was upset more than angry because Ms Gray had not informed her that Ms Stinton would be attending the School.  The appellant was asked why she did not tell Mr Burgess who was standing in the School office when she read out parts of Ms Stinton’s letter on 19 March 2003.  The appellant stated that she did not recall who was in the office at the time.  The appellant conceded that she would have been the last person to handle Ms Stinton’s letter prior to putting it on Ms Gray’s desk on 19 March 2003.  The appellant stated that it was problematic having people undertake work experience in a school because of the issue of confidentiality and the requirement for staff to have a police clearance in order to work at a school.

Respondent’s Evidence

25      Mr Baskwell undertook an inquiry into the charges against the appellant and generated a report summarising his investigations, his findings and his recommendations (Exhibit R1).  Mr Baskwell stated that on the basis of the evidence before him he concluded that on the balance of probabilities the appellant shredded Ms Stinton’s letter.  Mr Baskwell stated that he made his recommendations about proposed action against the appellant taking into account that the relationship between the appellant and Ms Gray was generally positive and that the appellant had been employed as a registrar for 23 years.  The issues he investigated appeared to be a one off matter and on this basis he decided that the appellant being demoted was the appropriate penalty.

26      When asked why he did not include the appellant’s amended statement in his final report Mr Baskwell stated that this was an issue for his office and Mr Baskwell stated that he was aware that the appellant refused to sign her statement.  Mr Baskwell confirmed that prior to commencing his inquiry he was given a copy of the Burgess Report as well as copies of letters and other relevant documentation.  Mr Baskwell maintained that he made his findings and recommendations based on the evidence he collected and not on any information contained in Mr Burgess’ report.

27       Under cross-examination Mr Baskwell confirmed that he did not sight the original of Ms Stinton’s letter or the letter’s envelope as he understood these items were held by the respondent.  Mr Baskwell confirmed that he did not have any discussions with Ms Gray about the signature on Ms Stinton’s letter and whether or not the signature on the letter was in blue or black pen.  After reviewing the envelope containing Ms Stinton’s letter Mr Baskwell stated that he was now aware that Ms Stinton’s name was not on the back of it, which was contrary to the evidence given to him by Ms Gray and as detailed in his report.  Mr Baskwell agreed that it could be possible that Ms Gray could have found a photocopy of Ms Stinton’s letter in the shredder.

28       Mr Baskwell stated that even though the Burgess Report contained information about issues relevant to the charges against the appellant he stated that the content of this report did not influence his findings.  Mr Baskwell maintained that he wrote his report from scratch and his report was based on the evidence he collected.  Mr Baskwell stated that he reached the conclusion that the appellant shredded the original of Ms Stinton’s letter based on the weight of evidence.

29       Under re-examination Mr Baskwell confirmed that if he was aware that the appellant had committed a previous offence it may have influenced his recommendations to the respondent about penalty.

30       Mr Peter Denton is the Manager of the respondent’s CMU which deals with disciplinary matters which arise across the respondent’s operations.  Mr Denton confirmed that the CMU’s role is to ensure that the requirements of the Public Sector Management Act 1994 (“the PSM Act”) are followed and he confirmed that the unit works within set guidelines (Exhibit R4).  Mr Denton stated that at each stage of the disciplinary process information is given to the Director General for him to decide if a matter should continue.  Mr Denton stated that it was his understanding that under the PSM Act the Director General is obliged to accept the findings made by the Inquirer but not recommendations about further action and he stated that it is not the CMU’s role to test the veracity of the factual information and the evidence obtained by the Investigator and/or Inquirer.

31       Mr Denton stated the CMU was under no obligation to release the reports completed by Investigators and Inquirers to any relevant party however, it is the respondent’s current policy to do so.  Mr Denton understood that a copy of the Inquirer’s report was given to the appellant when the appellant was required to admit or deny the charges against her.  Mr Denton stated that he understood that Mr Baskwell did not have access to information about the appellant’s previous disciplinary matter prior to making his recommendations.

32       Mr Denton confirmed that Exhibit R5 contains correspondence between the appellant and the respondent from 7 April 2003 when the initial letter about the charges against the appellant was sent to the appellant, through to 3 November 2003 when the respondent terminated the appellant.

33       Mr Denton stated that he reviewed the appellant’s personal file and previous investigation file before making a recommendation to the Director General about possible disciplinary action against the appellant.  Mr Denton acknowledged that his recommendation to the Director General formed the basis of the Director General deciding to terminate the appellant (Exhibit R6).  Mr Denton stated that when deciding on a penalty when a breach has been found to have been committed the respondent can take into account previous behaviour and the appellant was advised of this possibility in 2000 (Exhibit A1.8).  Mr Denton confirmed that the email sent by Ms Gray to the CMU dated 20 March 2003 was the complaint that the respondent acted upon against the appellant (Exhibit A5).  Mr Denton understood that the shredded original of Ms Stinton’s letter was provided by Ms Gray for the first time when she was interviewed by Mr Burgess on or about 30 May 2003.

34       Ms Gray has been the Principal at the School for two and a half years.  She has worked with the respondent for 26 years, variously as a classroom teacher, in one of the respondent’s district offices, in the respondent’s central office and as a Deputy Principal and Principal.  Ms Gray maintains that as a result of her wide experience with the respondent she has a good understanding of the role of a school registrar.  Ms Gray stated that there are 26 staff at the School, one Registrar who works four days per week and a School Officer who works one day a week.  Ms Gray stated that the School is a challenging, difficult and a tough environment within which to work.  Ms Gray stated that prior to March 2003 she had a good working relationship with the appellant and she stated that the appellant was competent at her job.  Apart from a discussion with the appellant in term three 2002 about complaints relating to her treatment of three people there were no other major disciplinary issues involving the appellant prior to March 2003.

35       Ms Gray stated that Ms Stinton was an acquaintance through her son’s association with a basketball team.  Ms Gray stated that Ms Stinton approached her about undertaking work experience and informed her on 10 March 2003 that she was available for work experience the following day.  Ms Gray stated that she had previously discussed the idea of having parents undertake work experience at the School with the appellant.  Ms Gray confirmed that she did not discuss Ms Stinton undertaking work experience with the appellant as the appellant was not working on 10 March 2003 however she stated that she left a written note with the School Officer about Ms Stinton attending the School the following day.

36       Ms Gray understood that the appellant was upset when Ms Stinton arrived at the School on 11 March 2003.  Ms Gray gave evidence that during the morning of 11 March 2003 she asked Ms Stinton to file an enrolment card and she conceded that she did not check to ensure that the card’s details had been entered into the School’s computer.  Ms Gray instructed Ms Stinton to undertake this task and other duties as she assumed the appellant would not be providing her with any assistance.  Ms Gray stated that she was aware that there was tension between Ms Stinton and the appellant and that as there was an unpleasant atmosphere in the office she tried to be pleasant to both the appellant and Ms Stinton.  Ms Gray stated that she suggested to Ms Stinton that she leave the School at lunch time.

37       Ms Gray stated that two days after undertaking work experience at the School Ms Stinton telephoned her and told her she was upset about the appellant’s behaviour towards her.  Ms Stinton also felt that the appellant had been rude to her.  Ms Gray gave evidence that she then explained the choices available to Ms Stinton if she wanted to follow up these concerns.  Ms Stinton later contacted Ms Gray to inform her that she had sent her a letter about the appellant.  As the letter had not arrived by the afternoon of Wednesday 19 March 2003, Ms Gray checked the appellant’s desk for the letter but it was not there.  Ms Gray stated that she then found Ms Stinton’s envelope, which was torn in half, in the appellant’s bin.  Ms Gray stated that she had never noticed used envelopes previously torn in this way.  Ms Gray stated that she then checked the shredder’s contents and found the original of Ms Stinton’s letter which was shredded.  Ms Gray stated that she was shocked by this discovery and as she needed advice she rang Mr Bruce Macauley at the respondent’s local District Office who advised her to contact the CMU.  The CMU then asked Ms Gray to send details to the CMU about the matter and to retain Ms Stinton’s letter.  Ms Gray was then advised not to raise the issue with the appellant.

38       Ms Gray conceded that the appellant was entitled to open and read Ms Stinton’s letter and Ms Gray conceded that her desk top was not always tidy.  Ms Gray stated that she had not set up the appellant, nor had she shredded the original of Ms Stinton’s letter and that she did not find a photocopy of Ms Stinton’s letter in the shredder.  Ms Gray described her management style as collaborative whilst acknowledging at times that as Principal she is required to be authoritative when making decisions.  Ms Gray understood that there were some concerns with her management style soon after she commenced at the School and as a result she held a staff meeting to encourage a positive attitude.  Ms Gray also personally spoke to each staff member to address any leadership concerns.

39       Ms Gray stated that most professional development at the School was undertaken at the request of staff.

40       Ms Gray confirmed that she was the subject of a disciplinary process in September 2003 and she understood that this issue had been finalised.

41       Ms Gray stated that all employees attending the School are required to have a police clearance and if someone is coming onto school property and does not possess one they can fill out a confidentiality declaration.  Ms Gray was unaware if a confidentiality declaration was signed by Ms Stinton as this was a role normally fulfilled by the appellant.  Ms Gray understood that Ms Stinton had completed the appropriate documentation to obtain a police clearance.

42       It was Ms Gray’s view that the appellant could not be reinstated to work at the School given the breakdown in her relationship with the appellant.

43       Under cross-examination it was put to Ms Gray that even though she was told not to speak to anyone about the incident involving the appellant she spoke to Ms Julie Johnsen and that this discussion is referred to in Ms Johnsen’s transcript of interview with Mr Burgess (Exhibit R1 page 150).  Ms Gray maintained that Ms Johnsen initiated the conversation about Ms Stinton’s letter.

44       Ms Gray was asked why she looked for the letter from Ms Stinton on 19 March 2003.  Ms Gray stated that she was expecting Ms Stinton’s letter and she became aware that Ms Stinton had sent a letter to the School that day as she had found Ms Stinton’s envelope in the bin.  Contrary to what she had stated to Mr Baskwell Ms Gray conceded that Ms Stinton’s name was not on the envelope containing Ms Stinton’s letter.  Ms Gray stated that as she was aware of Ms Stinton’s address on the envelope she therefore knew Ms Stinton had sent in a letter.  Ms Gray was asked if she was aware that the appellant sorted the mail in order of importance.  Ms Gray stated that she was not aware that this was done, that she had not discussed this issue with the appellant and that she was unaware where the appellant placed items such as pamphlets and leaflets when sorting the mail.  However, after being pressed she conceded that the appellant normally put leaflets at the bottom of the pile of correspondence given to her by the appellant and that the most important items were placed on the top of this pile.

45       Ms Gray was asked what happened when she checked the shredder on 19 March 2003.  Ms Gray stated that when she pulled out paper from the shredder’s bin she was able to identify Ms Stinton’s letter as some of the shredded paper had Ms Stinton’s address on it and parts of the letter were still joined together.  Ms Gray stated that she then located the rest of the letter and put it back together.  Ms Gray stated that she did not find this process difficult and it took her between ten and fifteen minutes.  Ms Gray stated that she rang Mr Macauley before putting all of the letter together.

46       Ms Gray gave evidence at the hearing that she did not ask Ms Stinton to write the letter complaining about the appellant despite stating in her original complaint to the CMU that she had done this.  Ms Gray gave evidence that when she spoke to Ms Stinton about lodging a complaint against the appellant she gave Ms Stinton three options, either lodge a verbal complaint, to do nothing or to put in a written complaint.

47       Ms Gray gave evidence that she left a note for the appellant on the appellant’s desk about Ms Stinton coming for work experience prior to Ms Stinton arriving on 11 March 2003.

48       Under re-examination Ms Gray stated that when she checked her desk for Ms Stinton’s letter on 19 March 2003 she went through her desk thoroughly but could not find Ms Stinton’s letter.

49       Ms Stinton stated that she met Ms Gray through her association with her son’s basketball team.  Ms Stinton stated that she did not mix socially with Ms Gray.  Ms Stinton confirmed that she had no association with the School, apart from knowing Ms Gray.  Ms Stinton is currently employed undertaking casual work with the respondent since May 2003.  Prior to commencing work with the respondent, apart from some casual night fill work, Ms Stinton was of the work force for fourteen years raising a family.  Ms Stinton stated that as she wanted to work in school administration she asked Ms Gray about the possibility of undertaking work experience at the School and as a result Ms Gray arranged for her to do work experience on Tuesday 11 March 2003.  When Ms Stinton arrived at the School she stated that she was not welcomed by the appellant.  Ms Stinton stated that the appellant was rude to her and Ms Stinton formed the impression that the appellant did not want her to be there.  Ms Stinton stated that the appellant only spoke to Ms Stinton twice when she was at the School and that the appellant was also rude to other people in the office that morning.  Ms Stinton stated that she wanted to work the full day at the School but during the morning Ms Gray indicated to her that as there was a lot of information to take in it was best that she only work a half day.  Ms Stinton stated that when Ms Gray told her that she had better go home at lunch time she was relieved to leave the School.  Towards the end of that week Ms Stinton rang Ms Gray and informed her that she would not be returning to the School and she thanked her for the opportunity to undertake work experience.  When Ms Stinton advised Ms Gray that the appellant had been rude and abrupt to her Ms Gray advised Ms Stinton that she could lodge a verbal or written complaint about the appellant.  Ms Stinton stated that as she decided to lodge a written complaint so that something would be done about the appellant’s behaviour she sent a letter to Ms Gray the following Monday, 17 March 2003.

50       Under cross-examination Ms Stinton stated that she complained about the appellant because she believed the appellant’s behaviour was unacceptable.  Ms Stinton conceded that the appellant was not offensive towards her and she was unaware that the appellant had not been at work for the previous two working days.  Ms Stinton stated that she was not aware that the appellant was busy as the appellant did not raise this with her.  Ms Stinton stated that she did not deserve to be treated as a nuisance as she wanted to help the School as well as learn skills.  Ms Stinton could not recall the appellant telling her that she had nothing prepared for her to do and she could not recall contacting Ms Gray to inform her that she had sent her a letter of complaint about the appellant.  Ms Stinton stated that she could not recall if she signed her letter of complaint in blue biro. Ms Stinton confirmed that she did not have a police clearance to work at the School on 11 March 2003.  Ms Stinton stated that Ms Gray gave her a form to apply for one on the day she attended at the School.

51       Mr Burgess conducted the Investigation into the allegations against the appellant.  He is a Human Resources Consultant and has had a lengthy history working in human resource management.  As part of Mr Burgess’ investigations he found that opening mail at the School, including the Principal’s mail, was part of the Registrar’s normal duties.  Mr Burgess was aware that Ms Johnsen knew that the letter the appellant read out aloud on 19 March 2003 was from a person who had undertaken work experience at the School.

52       Under cross-examination Mr Burgess was asked about the basis on which he found the appellant had shredded the letter sent by Ms Stinton to Ms Gray.  Mr Burgess stated that on the facts before him at the time he came to the conclusion that Ms Stinton’s letter had been shredded by the appellant.  Even though he was faced with differing accounts by the appellant and Ms Gray as to what happened he preferred Ms Gray’s version of events as being more plausible and Mr Burgess took into account that the appellant was angry that Ms Stinton had complained about her.

53       Mr Burgess could not recall if he was given a copy of the original complaint lodged by Ms Gray with the respondent’s CMU.  Mr Burgess conceded that he did not ask Ms Gray what time she found the letter in the shredder as he did not see this issue as being significant.  Nor did he inquire of Ms Gray if her desk was tidy on the day of the incident.  However Mr Burgess recalled Ms Gray stating that she checked her desk for the letter on 19 March 2003 and could not find it.  Mr Burgess stated that even though he did not give consideration to a number of scenarios as to why Ms Stinton’s letter could have been shredded he still believed that the appellant shredded the original of Ms Stinton’s letter and that his decision was the correct one.

54       When asked why he decided that it was inappropriate for the appellant to read the letter addressed to Ms Gray aloud to other staff members Mr Burgess stated that he reached this view because Ms Stinton’s letter was addressed to Ms Gray.

55       Under re-examination Mr Burgess stated that he only interviewed a limited number of people as part of his investigation because nobody witnessed the document being shredded.  Mr Burgess stated that his role was to collect facts and present them to the respondent and to make a finding as to whether or not a breach occurred and if so whether it was minor or serious.  Mr Burgess stated that as a result of his investigations he established that the appellant was authorised to open Ms Stinton’s letter and Mr Burgess stated that he did not find that the appellant intercepted the letter as alleged in the first and second allegations as she had the right to open the Principal’s mail.  Mr Burgess stated that he took into account that the envelope containing the letter had been torn in half when making his decision that the appellant had shredded Ms Stinton’s letter.  Mr Burgess confirmed that he did not refer to the appellant committing any specific breaches of the PSM Act or the School Education Act 1999 (“the SE Act”), the Public Sector Code of Ethics or the respondent’s Staff Conduct Policy when finding that the appellant had committed breaches.

Submissions

56      The appellant maintains that her dismissal was unfair and that the respondent terminated her in an oppressive and unreasonable manner.  The appellant argues that there was sufficient evidence before the Board to demonstrate that she did not shred the original of Ms Stinton’s letter on 19 March 2003.

57      In support of her claim that she was unfairly dismissed the appellant argues that she never contested that she opened the letter from Ms Stinton and she maintains that she only read remarks about herself from Ms Stinton’s letter.  The appellant argues that she was consistent in her evidence that she did not shred the original of Ms Stinton’s letter and there is no evidence to directly support the respondent’s finding that the appellant shredded Ms Stinton’s letter.  As the appellant gave consistent evidence that she shredded the photocopy of Ms Stinton’s letter it is plausible to assume that the letter found by Ms Gray in the shredder was a photocopy of the original of Ms Stinton’s letter.  Further, the appellant argues that it is highly unlikely and improbable that she would have shredded Ms Stinton’s letter because she had read the letter aloud to other employees.  Ms Gray did not show anyone the original of Ms Stinton’s shredded letter until she was interviewed by Mr Burgess and Ms Gray’s complaint to the CMU (Exhibit A5) does not refer to the letter being signed with a blue biro or it being an original letter.  The appellant argues that when Ms Gray rang the CMU on 19 March 2003 she had not seen the original of Ms Stinton’s letter and would not have known if it was signed in blue or black biro.  The appellant maintains that after Ms Gray became aware that the shredded letter was a photocopy it would have been humiliating for Ms Gray to withdraw her complaint and claims that Ms Gray continued with her complaint about the appellant even though she was aware that the letter was a photocopy.

58       The appellant argues that the Board should take into account that the respondent found her to be honest and acted in a forthright manner when responding to the complaint against her in January 2000 and that this honesty was reflected in the appellant’s initial response to the allegations against her (see the appellant’s letter dated 28 April 2003 Exhibit R5).

59      The appellant argues that the two allegations against her contradict each other.  On the one hand the appellant is being charged with making the content of Ms Stinton’s letter public and the appellant is then accused of trying to prevent Ms Gray from receiving the letter.

60      The appellant maintains that the respondent’s failure to comply with the statutory scheme relating to disciplinary proceedings under the PSM Act renders the whole process null and void (see Civil Service Association of WA Incorporated v Director General, Department of Consumer and Employment Protection (2002) 82 WAIG 952).  The appellant maintains that the Investigation and the Inquiry were not separate processes which were conducted independently of one another.  Further, as Mr Baskwell admitted he had read the Burgess Report prior to commencing his Inquiry this compromises his report.

61      The appellant maintains that both the Investigation and the Inquiry do not deal adequately with all relevant aspects of the evidence.  Mr Baskwell did not sight the original of the shredded letter and this denotes a less than rigorous approach required to carry out a proper and comprehensive inquiry.  The appellant maintains that Mr Baskwell selectively interpreted the SE Act as the appellant only read out those parts of Ms Stinton’s letter that referred to herself, behaviour which was sanctioned under s242(1)(d) of the SE Act.  When the appellant read parts of Ms Stinton’s letter aloud she did so without any intent to unduly disclose information to the detriment of the respondent and in any event no material detriment to the respondent resulted.  The appellant also argues that Mr Baskwell did not give sufficient weight to the appellant’s evidence and the Burgess Report does not reflect a clear and comprehensive reasoning process to justify the conclusions reached.

62       The appellant argues that the respondent did not give sufficient weight to the fact that neither the Investigator nor the Inquirer recommended that the appellant be dismissed and the appellant was not advised that the previous disciplinary matter she was involved in would be taken into account when deciding on a penalty.  The appellant maintains that when deciding to dismiss her the respondent failed to give proper consideration to the appellant’s substantial, loyal and long term employment history of almost 23 years.

63       The appellant maintains that she was denied natural justice and procedural fairness as she was not provided with full copies of the reports completed by the Investigator and the Inquirer until after her dismissal.

64       The appellant submits that the alteration of the charge by the deletion of the word ‘intercept’ does not contribute to the appellant’s termination being unfair but argues that this accusation may have influenced the view of the appellant’s actions by those investigating the complaints against her.

65       In summary the appellant maintains that she was not given ‘a fair go all round’ and was treated oppressively, unjustly and unfairly.  As the Board has the power to adjust a decision to dismiss an employee following a de novo hearing of the issues in dispute the appellant maintains that the Board should quash the respondent’s decision to dismiss her and that she should be reinstated with no loss of salary, continuity of service or entitlements.

66       The respondent submits that as the appellant was found to have committed serious misconduct in relation to two matters the Board should approach any review of that decision with some caution.

67       Even though the wording of the charge against the appellant was different to the original charge (the word ‘intercepted’ was removed from the charge) when the appellant was advised about the appointment of the Inquirer the respondent submits that this change did not materially alter the substance of the charges against the appellant as the respondent submits that the issue of interception of Ms Stinton’s letter was not central to the complaints.  It was common ground that the appellant opened and read Ms Stinton’s letter aloud and this was the charge brought against the appellant.  The respondent therefore argues that the omission of the word ‘intercepted’ from the charges does not fundamentally flaw the process embarked upon by the respondent.

68       The respondent concedes that the appellant admitted that she read aloud parts of the letter from the outset.  The respondent however disagrees that this was an inconsequential misdemeanour as:

“a. the writer was identified;

b. the appellant was not the addressee;

c. the appellant did not have authority of the addressee to divulge the content of the letter;

d. the appellant did not have the authority of the writer to divulge any of the content;

e. the appellant deliberately sought the attention of others in order to disclose that content;

f. the appellant’s position of Registrar carries with it the responsibility for the receipt and opening of mail;

g. the position therefore carries an onus of trust and integrity when dealing with correspondence that is of a sensitive nature including complaints.”

(Respondent’s Final Submissions 22 October 2004)

69       In relation to the appellant’s actions the respondent relies on s242 of the SE Act which states:

“242. Confidentiality

(1) A person must not disclose or make use of information to which this section applies except –

(a) in the course of duty;

(b) for the purpose of proceedings for an offence against this Act;

(c) under and in accordance with this Act or any other law;

(d) with the authority of the Minister of all persons to whom the information relates; or

(e) in other prescribed circumstances.

Penalty: $5000.

2) This section applies to information contained in any register or document of or in the possession or under the control of -

(a) the Minister;

(b) the chief executive officer or the chief executive officer referred to in section 151, as is relevant to the case;

(c) the department or the department referred to in section 228, as is relevant to the case;

(d) the principal of a government school; or

(e) a panel appointed for the purposes of this Act.”

70      As the letter from Ms Stinton was a document in the possession of or under the control of the respondent, the Chief Executive Officer or the Principal the respondent maintains that the appellant therefore breached s242 of the SE Act.  Additionally s242(1)(d) of the SE Act requires the permission of all parties prior to any information being released and this includes the addressee and the writer.  The respondent submits that the appellant’s actions also breached ss 7, 9 and 80 of the PSM Act as well as breaches of the Public Sector Code of Ethics with respect to justice, respectful persons and responsible care as well as the following principles under the respondent’s Staff Conduct Policy:

“1. We will perform, to the best of our abilities, our roles and responsibilities within the framework of the law, lawful work instructions, the limits of our ability and resources – dot point 1 and 2;

2. We will respect the uniqueness and dignity of individuals and act accordingly in a fair, courteous and sensitive manner – dot points 1 and 2;

3. We will accept the responsibilities arising from the trust placed in us by students, the community and our colleagues – dot point 1;

4. We will perform our duties with integrity, honesty and impartiality – dot point 1 and 3;

5. …Not applicable;

6. We will maintain appropriate confidentiality of personal and official information – dot point 2 and 3.”

(Respondent’s Final Submissions 22 October 2004)

71       Even though Ms Gray conceded that the issue of bringing a work experience person into the School could have been better handled a school’s principal has the right to manage the work place and as Ms Stinton’s letter was withheld from Ms Gray this impacted on her ability to effectively manage the appellant.

72       The respondent maintains that there was sufficient evidence to demonstrate that in all probability the appellant shredded Ms Stinton’s letter.  The respondent maintains that after the appellant received Ms Stinton’s letter she was angry.  Further, it was not until the hearing that she claimed to have placed the original letter on the Principal’s desk amongst the junk mail.  The appellant was less than helpful when interviewed about the allegations against her and she withheld information about who was present when she read aloud parts of Ms Stinton’s letter.  As the letter from Ms Stinton was adverse to the appellant and she was the last person to have handled the letter from Ms Stinton the appellant had motive and opportunity to shred Ms Stinton’s letter.  The respondent therefore submits that it was unlikely and highly improbable that Ms Stinton’s letter was ever given to Ms Gray.  As in all probability the appellant shredded Ms Stinton’s letter this was a wilful act of gross misconduct on the part of the appellant.

73       The respondent maintains that at all stages it complied with the procedures outlined in Part 5 of the PSM Act and that this process was distinguishable from the circumstances outlined in Trudy Ruth Cull v Commissioner State Revenue Department (2002) 82 WAIG 377.  Both the Investigation and the Inquiry were separate and each adopted their own processes.

74      The respondent maintains the appellant was not denied natural justice even though she did not have access to all relevant documentation.  The respondent maintains that the appellant was given a reasonable opportunity to respond to the issues in question prior to any conclusions and decisions being made by the respondent and if there was a fault with the process, it was not fatal to the outcome as the respondent did not withhold anything of substance from the appellant nor was she denied an opportunity to be heard.  The only detail not supplied to the appellant was a statement and references to a witness who was present when parts of Ms Stinton’s letter were read out by the appellant and as this issue was not controversial there was therefore no detriment or prejudice to the appellant.  Further, the allegations and charges against the appellant were detailed with sufficient detail and clarity as required by regulations 16 to 20 of the PSM Act.

75       When both the Inquirer and Investigator assessed whether or not the appellant shredded Ms Stinton’s letter there was sufficient detail and circumstantial evidence to lead a reasonable person to believe that in all of the circumstances it was more probable than not that the appellant shredded the letter.  The respondent maintains that the only matter not put to the appellant was that her past employment history was to be considered by the respondent when deciding on the penalty.  The respondent maintains that as the appellant wilfully misconducted herself in 2000 and was warned at the time that any further disciplinary proceedings would inevitably lead to her termination it was appropriate to terminate the appellant.  Even though there was a three year time lapse between the two events, given the gravity of the appellant’s actions in January 2000 it was not inappropriate for the respondent to take this matter into account.  Furthermore the two incidents indicate a pattern of behaviour of wilfulness on the part of the appellant.

76       In conclusion the respondent maintains that as the appellant’s actions warranted a serious penalty the Board should not intervene in this matter and should not adjust the respondent’s decision.  The respondent provided the appellant with ‘a fair go all round’, it ensured that the investigative processes were procedurally fair, it did not deny the appellant natural justice and the penalty decided on by the respondent in this instance was appropriate to the gravity of the misconduct when taking into account the appellant’s previous behaviour.

Findings and Conclusions

Credibility

77      The Board listened carefully whilst the witnesses gave their evidence.  In our view the appellant gave her evidence confidently and we found her evidence to be plausible and consistent and her evidence was not broken down during extensive cross-examination.  The appellant’s evidence was also corroborated by substantial documentation.  We do not have the same confidence in the evidence given by Ms Gray.  In our view Ms Gray’s evidence as a whole was unconvincing.  For example Ms Gray was clearly uncomfortable and hesitant when she disputed Ms Johnsen’s statement to Mr Burgess that Ms Gray initiated a discussion with Ms Johnsen about Ms Stinton’s letter.  Further, Ms Gray modified her answers to questions when pressed, for example when asked whether the appellant put ‘junk’ mail on her desk.  Parts of Ms Gray’s evidence was inconsistent with evidence she gave to both the Investigator and the Inquirer.  For example, Ms Gray stated at the hearing that she gave Ms Stinton a range of options if she wanted to complain about the appellant which was different to what she stated in the original complaint to CMU and the evidence she gave to Mr Burgess and Mr Baskwell (see transcript page 205, Exhibit A5, Exhibit R1 - Burgess Report, Summary of Evidence of Paula Gray page 3 and Exhibit R1 - Baskwell Report, Statutory Declaration of Paula Gray point 25).  Also, Ms Gray gave evidence at the hearing that when she found the envelope containing Ms Stinton’s letter it only had Ms Stinton’s address on it, however, this was different to the information she gave to Mr Baskwell (see Exhibit R1 - Baskwell Report, Statutory Declaration of Paula Gray point 30).  Given these inconsistencies we therefore doubt the veracity of Ms Gray’s evidence, in contrast to our view about the appellant’s evidence.  In the circumstances we conclude that where there is any inconsistency in the evidence given by the appellant and Ms Gray the appellant’s evidence should be preferred to the evidence given by Ms Gray.  We take no issue with the evidence given by the other witnesses in these proceedings as in our view they gave their evidence honestly and to the best of their recollection.

78       The Board deals with appeals as a hearing de novo and is therefore required to consider all of the circumstances of the issues and finally decide the matter before it (see Civil Service Association of Western Australia Incorporated v Director General, Department of Family and Children’s Services [2002] 83 WAIG 390).  As the Board is required to deal with the fairness and merit of the matter as well as the process, the Board is therefore able to conclude whether or not the appellant acted in the manner found by the respondent, whether that conduct constituted a breach of discipline and if so whether the penalty imposed was appropriate.

79      Paragraphs three and four of this decision set out the relevant agreed facts and chronology of events in relation to this matter.

80      There was no dispute and we find that the appellant was a government officer within the meaning of s80C of the Act and that this issue relates to a dismissal, which constitutes an industrial matter.

81      The respondent decided to terminate the appellant for committing two breaches after taking into account the appellant’s prior employment history with the respondent, in particular her actions at the end of 1999 which resulted in the appellant being disciplined by the respondent.

Did the appellant commit the breaches as claimed by the respondent?

First Breach

82       The first allegation that was put to the appellant in April 2003 was as follows:

“1. On 19 March 2003, you intercepted a letter personally addressed to the Principal of Queens Park Primary School, from a person known as Mrs Stinton, and read parts of the letter out aloud to staff members.  This allegation, if proven, is in breach of section 242(1) of the School Education Act 1999; section 9(b) of the Public Sector Management Act 1994; principles two and three of the Western Australian Public Sector Code of Ethics; and principles one and six of the Department’s Staff Conduct policy.”

(Exhibit R5 letter dated 7 April 2003)

This allegation was altered by the respondent in August 2003 when the respondent changed the word "intercepted" to "opened" prior to referring this alleged breach to the Inquirer for investigation and the breach the appellant was found to have committed following the inquiry was as follows:

“On Wednesday, 19 March 2003, at Queens Park Primary School, you opened a letter personally addressed to Ms Paula Gray, Principal, Queens Park Primary School, from a person known as Mrs Stinton, and read parts of the letter out aloud to staff members.”

(Exhibit R5 letter dated 3 November 2003)

83      Even though the appellant conceded that she read out parts of Ms Stinton’s letter to colleagues on 19 March 2003 it is the Board’s view that the appellant should not be disciplined for her actions in relation to this breach.

84      The Board accepts the appellant’s evidence that she opened the mail as usual on 19 March 2003 and that she was authorised to open mail addressed to Ms Gray which was not marked private and/or confidential.  It is therefore clear that the appellant did not ‘intercept’ Ms Stinton’s letter as initially alleged by the respondent.  We find that after reading Ms Stinton’s letter the appellant was genuinely shocked and upset by the comments made about her by Ms Stinton.  It is the Board’s view that the appellant had good reason to be upset by Ms Stinton’s comments as we find that there were mitigating circumstances surrounding the appellant reading out parts of Ms Stinton’s letter on 19 March 2003.  We accept that on the morning Ms Stinton attended the School for work experience the appellant was annoyed that Ms Gray had unilaterally arranged for Ms Stinton to undertake work experience and that no notice other than a note left for the appellant on the morning of 11 March 2003 was given to the appellant that Ms Stinton would be undertaking work experience that morning.  We accept that the appellant did not have time to train Ms Stinton when she unexpectedly arrived at the School due to the lack of notice from Ms Gray.  The Board also accepts that the appellant had a heavy work load at this time as the appellant had not been at the School the two previous working days and that as a result the appellant did not give Ms Stinton the attention and training that Ms Stinton expected.  We find that in the circumstances the appellant was justified in being annoyed at Ms Stinton’s presence even though the appellant could have been more pleasant towards Ms Stinton.  We find that Ms Gray further exacerbated the difficulties between the appellant and Ms Stinton when she allocated a filing task to Ms Stinton which led to a minor altercation between Ms Stinton and the appellant.  We find that this situation only arose because Ms Gray inappropriately instructed Ms Stinton to file this card prior to the information being entered into the computer.  It is within the context of this background that we find that when the appellant read Ms Stinton’s complaint about her on 19 March 2003 she was genuinely upset and aggrieved at Ms Stinton’s comments about her behaviour such that after opening and reading Ms Stinton’s letter, and on the spur of the moment, she read those parts of the letter referring to her to three colleagues who happened to be in the School’s office at the time.  In reaching the view that the appellant should not be disciplined for reading out part of Ms Stinton’s letter to her colleagues we also take into account that when the appellant read out a part of Ms Stinton’s letter she did not identify Ms Stinton by name, Ms Stinton was not associated with the School and it is clear that the appellant never disputed the respondent’s claim that she read aloud parts of Ms Stinton’s letter to three colleagues in the office on 19 March 2003 after she opened and read the letter even though she disagreed that she had intercepted the letter, a charge which was later dropped by the respondent.  We find that the appellant showed a lack of judgement when she read aloud that part of the letter relating to her to her colleagues, however in all of the circumstances we find that her actions were not serious enough to warrant either investigation or any disciplinary action.  If the appellant’s actions were to warrant any disciplinary action (which we do not concede) it is the Boards’ view that a reprimand at most would have been the appropriate penalty.

Second Breach

85      When taking into account our views on witness credit and after reviewing the evidence in these proceedings we cannot reach the same conclusion reached by both the Investigator and the Inquirer that the appellant shredded the original of Ms Stinton’s letter and that the letter found by Ms Gray in the shredder on 19 March 2003 was the original of Ms Stinton’s letter.

86      The second breach put to the appellant in April 2003 reads as follows:

“2. On 19 March 2003, you intercepted and shredded a letter personally addressed to the Principal of Queens Park Primary School, from a person known as Mrs Stinton. This allegation, if proven, is in breach of section 242(1) of the School Education Act 1999; section 9(b) of the Public Sector Management Act 1994; principles two and three of the Western Australian Public Sector Code of Ethics; and principles one and six of the Department’s Staff Conduct policy.”

(Exhibit R5 letter dated 7 April 2003)

Again, this allegation was altered by the respondent in August 2003 when the respondent substituted the word “intercepted” with “opened” and the breach that the appellant was found to have committed was as follows:

“On Wednesday, 19 March 2003 at Queens Park Primary School, you opened and shredded a letter personally addressed to Ms Paula Gray, Principal, Queens Park Primary School, from a person known as Mrs Stinton.”

(Exhibit R5 letter dated 3 November 2003)

87      On the evidence before the Board and taking into account our views on witness credit we find that after the appellant opened Ms Stinton’s letter on 19 March 2003 and after being shocked and upset by the complaint made by Ms Stinton the appellant photocopied Ms Stinton’s letter with a view to responding to Ms Stinton, but decided against this course of action after discussing her intentions with her partner later that day.  We accept the appellant’s evidence that she then placed Ms Stinton’s letter in the bundle of ‘junk’ mail and then placed this bundle as well as other mail on Ms Gray’s desk.  We find that the appellant then shredded the copy of Ms Stinton’s letter just prior to leaving the School that day as she had decided that she would not respond to Ms Stinton.

88      It appears that Ms Gray was expecting Ms Stinton’s letter to arrive on or about 19 March 2003 and when Ms Gray did not find the letter on her desk that day she checked the appellant’s desk and then the appellant’s rubbish bin where she found the envelope with Ms Stinton’s address on it.  We find that Ms Gray then checked the School’s shredder where she found the shredded photocopy of Ms Stinton’s letter and that it was on the basis of finding this photocopy of Ms Stinton’s letter that Ms Gray made a complaint later that afternoon to the CMU about Ms Stinton’s letter being shredded.  We find that this chain of events is plausible given our acceptance of the appellant’s evidence in preference to that of Ms Gray’s evidence, and on the basis that Ms Gray would have been unaware when she found the letter in the shredder that the original of Ms Stinton’s letter was signed by Ms Stinton using blue ink.  We also find it implausible that the appellant would seek to destroy Ms Stinton’s letter after having read parts of the letter aloud to three colleagues on the morning of 19 March 2003, and after leaving the letter’s envelope in her bin.  It is possible that subsequent to making the complaint to the CMU Ms Gray found the original of Ms Stinton’s letter on her desk as we accept the evidence of both the appellant and Ms Gray that Ms Gray’s desk was not always tidy and that around this period Ms Gray had some time off work which may well have impacted on the amount of correspondence that Ms Gray had on her desk at the time.

89       As we find that Ms Gray found the photocopy of Ms Stinton’s letter in the shredder on 19 March 2003 and that this was the letter which formed the basis of her complaint to the CMU about the appellant we therefore find that the appellant did not commit the second breach as claimed by the respondent.

90      As we have found that the appellant should not have been disciplined for her actions in relation to the first breach and that the appellant did not commit the second breach the appellant’s appeal is therefore upheld.  However, if the Board is wrong in reaching this conclusion (which we do not concede) it is the Board’s view that the Investigation and Inquiry conducted into the two breaches was flawed such that the respondent could not rely on their findings.  The Board is also of the view that the respondent failed to comply with parts of the statutory scheme’s requirements under Part 5, Division 3 of the PSM Act and in doing so denied the appellant procedural fairness and natural justice as provided for under administrative law principles.

91      When dealing with suspected breaches of discipline, such breaches must be the subject of investigative and disciplinary proceedings which follow the statutory path laid down by Part 5, Division 3 of the PSM Act, which includes the mandatory requirements laid down by s86 of the PSM Act for charging an employee with a breach of discipline.

92       The specific sections of the PSM Act relevant for the purposes of these proceedings are ss 80, 81, 83, 85 and 86.  These provisions are set out as follows:

 “80. Breaches of discipline

  An employee who — 

  (a) disobeys or disregards a lawful order;

  (b) contravenes — 

 (i) any provision of this Act applicable to that employee; or

 (ii) any public sector standard or code of ethics;

  (c) commits an act of misconduct; or

  (d) is negligent or careless in the performance of his or her functions,

  commits a breach of discipline.

 81. Procedure when breach of discipline suspected

  (1) An employing authority may, when it suspects that a person has committed a breach of discipline whilst serving as an employee in its public sector body and has given the person such notice in writing of the nature of the suspected breach of discipline as is prescribed, give the person a reasonable opportunity to submit an explanation to the employing authority.

  (2) After having given the respondent the reasonable opportunity referred to in subsection (1), the employing authority may — 

 (a) if it is not the Minister, investigate or direct another person to investigate; or

 (b) if it is the Minister, direct another person to investigate,

   the suspected breach of discipline in accordance with prescribed procedures.

  (3) A person to whom a direction is given under subsection (2) shall comply with that direction.

  (4) A direction shall not be given under subsection (2) to the Commissioner.

83. Powers of employing authority other than Minister after investigation of alleged breach of discipline

  (1) If, following the investigation of an alleged breach of discipline under section 81, an employing authority which is not the Minister finds, whether as a result of its own investigation or that of a person directed under section 81(2)(a), that — 

(a) a minor breach of discipline was committed by the respondent, that employing authority may in accordance with prescribed procedures — 

 (i) reprimand the respondent;

(ii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the last day during which he or she was at work as an employee before the day on which that finding was made; or

(iii) both reprimand, and impose the fine referred to in subparagraph (ii) on, the respondent;

(b) a serious breach of discipline appears to have been committed by the respondent, that employing authority shall cause the respondent to be charged in accordance with prescribed procedures with having committed that alleged breach of discipline; or

(c) no breach of discipline was committed by the respondent, notify the respondent of that finding and that no further action will be taken in the matter.

  (2) For the purposes of this section, a breach of discipline committed as a result of disobedience to, or disregard of, a lawful order referred to in section 94(4) is a serious breach of discipline.

85. Procedure if respondent objects to certain findings or actions

  If a respondent objects by notice in writing addressed to an employing authority — 

(a) to any finding by the employing authority under section 83 or 84 that he or she committed a minor breach of discipline; or

(b) to any action taken by the employing authority in relation to him or her under section 83(1)(a) or 84(2)(b)(i),

   within 7 days after being notified in writing of that finding or action, as the case requires, that finding or action is cancelled by virtue of this section and the respondent may be charged in accordance with the prescribed procedures with having committed the alleged breach of discipline.

86. Procedure when charge of breach of discipline brought

  (1) A charge under section 83(1)(b), 84(2)(b)(ii) or 85 shall — 

(a) be in writing;

(b) contain the prescribed details of the alleged breach of discipline; and

(c) require the respondent to indicate within such period of not less than 7 days as is specified in the charge whether or not he or she admits or denies the charge.

  (2) A respondent charged under section 83(1)(b), 84(2)(b)(ii) or 85 shall admit or deny the charge within the relevant period referred to in subsection (1)(c).

  (3) Subject to section 89, if a respondent admits a charge under subsection (2) and the employing authority finds the charge to be proved, the employing authority — 

(a) shall, if the charge is a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent; or

(b) may — 

 (i) reprimand the respondent;

(ii) transfer the respondent to another public sector body with the consent of the employing authority of that public sector body or, if the respondent is an employee other than a chief executive officer or chief employee, transfer him or her to another office, post or position in the public sector body in which he or she is currently employed;

(iii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the period of 5 days during which he or she was at work as an employee immediately before the day on which the finding of a breach of discipline was made;

(iv) reduce the monetary remuneration of the respondent;

(v) reduce the level of classification of the respondent; or

(vi) dismiss the respondent,

   or, except when the respondent is dismissed under subparagraph (vi), take action under any 2 or more of the subparagraphs of this paragraph.

  (4) If a respondent denies a charge under subsection (2) and the employing authority is not the Minister, the employing authority may — 

(a) hold, or direct a person to hold, a disciplinary inquiry into the charge in accordance with prescribed procedures; or

(b) if it considers that a special disciplinary inquiry should be held into the charge, request the Minister to direct that a special disciplinary inquiry be held into the charge by a person named in that direction.

  (5) A directed person shall, subject to subsections (6) and (7), comply with the relevant direction given under subsection (4)(a).

  (6) If, at any time after the commencement of a disciplinary inquiry held under subsection (4)(a), the employing authority or directed person considers that a special disciplinary inquiry should be held into the charge, the employing authority may request the Minister to direct that — 

(a) a special disciplinary inquiry be held into the charge by a person named in that direction; or

(b) the disciplinary inquiry be converted into a special disciplinary inquiry and that the person holding the disciplinary inquiry hold the resulting special disciplinary inquiry.

  (7) If the Minister complies with a request made under subsection (4)(b) or (6) and makes a direction referred to in — 

(a) subsection (4)(b), the person named in that direction shall comply with that direction;

(b) subsection (6)(a), the person named in that direction shall comply with that direction and the relevant disciplinary inquiry being held under subsection (4)(a) is terminated; or

(c) subsection (6)(b), the disciplinary inquiry concerned is converted into a special disciplinary inquiry and the person holding that disciplinary inquiry shall hold the resulting special disciplinary inquiry.

  (8) If a directed person finds at the conclusion of a disciplinary inquiry that — 

(a) a breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it act in relation to the respondent under subsection (3) as if the respondent had admitted the charge under subsection (2); or

(b) no breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it notify the respondent of that finding and that no further action will be taken in the matter.

  (9) On receiving a finding and recommendation under subsection (8), the employing authority shall — 

(a) accept the finding; and

(b) in the case of a recommendation made under — 

(i) subsection (8)(a) in relation to a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent;

(ii) subsection (8)(a) in relation to a charge other than a charge referred to in subparagraph (i), accept that recommendation and act accordingly in relation to the respondent, or decline to accept that recommendation and take such other action in relation to the respondent as could have been recommended under that subsection; or

(iii) subsection (8)(b), accept that recommendation and act accordingly in relation to the respondent.

  (10) If an employing authority finds at the conclusion of a disciplinary inquiry held by itself that — 

(a) a breach of discipline was committed by the respondent, the employing authority shall act under subsection (3) as if the respondent had admitted the charge under subsection (2); or

(b) no breach of discipline was committed by the respondent, the employing authority shall notify the respondent of that finding and that no further action will be taken in the matter.

  (11) If a respondent denies a charge under subsection (2) and the employing authority is the Minister, the Minister shall direct a person to hold a special disciplinary inquiry into the charge and the person shall comply with that direction.

  (12) A direction shall not be given under this section to the Commissioner.

  (13) In this section — 

“directed person” means person directed under subsection (4)(a) to hold a disciplinary inquiry into the charge concerned;

“disciplinary inquiry” means disciplinary inquiry held or directed to be held under subsection (4)(a).”

93      As the rights, duties and obligations between employers and employees in the public sector are governed by statute, where it is established that mandatory statutory requirements have not been met, steps taken and decisions arrived at may well be held to be ultra vires and invalid (see Re Kenner; Ex-Parte Minister for Education [2003] WASCA 37 at para 24 per Olsson AUJ [Parker and Templeman JJ agreeing] and also Civil Service Association of WA Incorporated v Director General, Department of Consumer and Employment Protection [op cit]).

94      As stated, it is the Board’s view that the conduct of the Investigation and the Inquiry were seriously flawed such that the respondent could not rely on the findings of both the Investigator and the Inquirer.  It is the Board’s view that the Investigator’s report should not have been relied upon by the respondent to form the view that the appellant committed the breaches as initially alleged by the respondent as the Investigator did not reach any conclusions about which sections of the PSM Act, the SE Act, the Public Sector Code of Ethics or the Staff Conduct Policy were breached by the appellant when he found that the appellant had committed two breaches when she read out Ms Stinton’s letter and then shredded it.  It is also the Board’s view that the Inquiry conducted by Mr Baskwell was seriously deficient and his finding in relation to the second breach was not open to him and should not have been relied upon by the respondent as Mr Baskwell did not sight the original of Ms Stinton’s letter which Ms Gray claimed she found in the shredder.  Clearly this letter was fundamental to his inquiry given the appellant’s claim that she had shredded a copy of Ms Stinton’s letter and that this was the letter she believed Ms Gray found in the shredder on 19 March 2003.  As Mr Baskwell did not satisfy himself that the letter found by Ms Gray in the shredder was the original of Ms Stinton’s letter, the Inquiry was therefore fundamentally flawed.

95      We find that when the respondent significantly altered both of the allegations it alleged the appellant had committed after the Investigation was completed and before the Inquiry took place the respondent breached the statutory scheme it was required to follow.  It is the Board’s view the statutory scheme does not allow an employer to initiate an investigation pursuant to s81(2) in relation to a particular allegation and then lay charges pursuant to s83(1)(b) and/or s85 which are materially different to the alleged breach to which the appellant has already responded.  When sections 81, 83, 85 and 86 are read in conjunction with s83(1), the statutory scheme requires that if after an investigation has been completed an employer considers that an employee has committed the alleged breach the employer is required, if the employee objects to the finding, to charge the person with having committed that particular breach of discipline, as the investigation is the basis on which a decision to lay disciplinary charges is based.  Both allegations that were initially put to the appellant on 7 April 2003 refer to the appellant intercepting Ms Stinton’s letter and the appellant responded to both allegations on the basis that the respondent alleged that she had intercepted Ms Stinton’s letter.  However, on 28 August 2003 the appellant was advised that an inquiry would be held pursuant to s86(4) of the PSM Act in relation to the following charges:

“● On Wednesday, 19 March 2003, at Queens Park Primary School, you opened a letter personally addressed to Ms Paula Gray, Principal, Queens Park Primary School, from a person known as Mrs Stinton, and read parts of the letter out aloud to staff members.

● On Wednesday, 19 March 2003 at Queens Park Primary School, you opened and shredded a letter personally addressed to Ms Paula Gray, Principal, Queens Park Primary School from a person known as Mrs Stinton.”

(Exhibit R5)

96      It is the Board’s view that when the respondent changed the word “intercepted” to “opened” in both charges (see letters from the respondent to the appellant dated 7 April 2003 and 28 August 2003 - Exhibit R5) the respondent breached the statutory scheme as the respondent initiated an Inquiry into charges which were materially different to those charges which the Investigator reviewed.  It is the Board’s view that the serious allegation that the appellant ‘intercepted’ school correspondence, which was the initial allegation that the appellant was required to meet, and did so when the two breaches were first put to her, could not be dropped from the allegations after the Investigation was completed and before the Inquiry took place.  In dropping this allegation completely against the appellant prior to initiating the Inquiry into both breaches it is the Board’s view that the charges against the appellant were altered to such an extent that the disciplinary process was compromised.

97      This matter was further confused when the respondent advised the appellant that the Inquirer would investigate whether the appellant had ‘intercepted’ Ms Stinton’s letter in relation to the second breach, prior to requesting the Inquirer to investigate whether the appellant had ‘opened’ Ms Stinton’s (see Exhibit R5 letter dated 8 August 2003).

98      It is also the Board’s view that it was not open to the respondent to maintain that the appellant had intercepted Ms Stinton’s letter after the Investigator made no such finding.  After completing his investigation Mr Burgess made the following findings:

“I find that Mrs. Dallimore did read out parts of a letter that Mrs. Stinton sent to Ms Gray to at least one staff member and in so doing committed a minor breach of discipline.

I find that Mrs. Dallimore did shred a letter from Mrs. Stinton to Ms Gray and in so doing committed a serious breach of discipline.”

(Exhibit R1 page 180)

Clearly the Investigator did not make any finding that the appellant ‘intercepted’ the letter from Ms Stinton yet the respondent continued to maintain that the appellant had ‘intercepted’ Ms Stinton’s letter and continued to advise the appellant that this was the allegation to which she was required to respond, until the breaches were referred to the Inquirer for investigation.

99      The Board concludes that the appellant was denied procedural fairness when the respondent altered the breaches by deleting the word ‘intercepted’ and replacing it with ‘opened’ and did not alter the specific breaches of the PSM Act, the SE Act, the Public Sector Code of Ethics or the Staff Conduct Policy the respondent initially claimed the appellant had committed in relation to both breaches when the respondent wrote to the appellant about both breaches in April 2003.  As a result the appellant was denied the opportunity to respond to the specific breaches the respondent alleged the appellant had committed.  It is the Board’s view that the appellant should have been informed of the changes to the sections of the relevant acts, code and policies she was found to have breached after the breaches were altered by the deletion of the work ‘intercepted’ so that the appellant could respond to the revised allegations against her.  As the appellant was not advised of any changes to the breaches the respondent claimed she had committed during the disciplinary process the appellant was thus denied procedural fairness.

100   During the disciplinary process the respondent charged the appellant with committing a serious breach after the Investigator found that she had committed a minor breach in relation to the first allegation.  When the respondent wrote to the appellant on 8 August 2003 it upgraded the first charge against the appellant from a minor breach to one of a serious breach under s83(1)(b) of the PSM Act and no reason was given to the appellant at the time for the respondent now regarding this alleged breach as a serious breach.  We find that as the respondent incorrectly charged the appellant with committing a serious breach under s83(1)(b) instead of charging the appellant with a breach under s85 the respondent again did not comply with the requirements on it under the statutory scheme.  Further, if the appellant was aware that the first breach against her was to be upgraded to a serious breach it may have influenced her response to this charge.

101   The Board is concerned that the appellant was not provided with full copies of the reports completed by both the Investigator and the Inquirer so that she could properly respond to the basis upon which the respondent arrived at the view that the appellant had committed the breaches as alleged.  In our view this defect constituted a serious denial of procedural fairness towards the appellant.

102   We find that the respondent’s failure to give the appellant the opportunity to be heard on the issue of penalty following its finding that the appellant was guilty of two breaches of discipline constituted a denial of natural justice.  Even though this omission would not necessarily render the whole process invalid, the appellant is entitled to have the opportunity to put submissions to the employer for consideration on this issue, particularly in a case such as this whereby the respondent was considering terminating the appellant.  Furthermore, the appellant was not given the opportunity to respond to the respondent’s decision that her behaviour in 1999 would be taken into account.

103   For the reasons set out above we conclude that the flaws in the disciplinary process, including the respondent’s failure to adhere to the statutory requirements in Part 5 of the PSM Act and the omissions of both the Investigator and the Inquirer, were not merely technical and minor but were so significant as to bring into question the whole process and the conclusions relied on by the respondent to terminate the appellant such that the respondent’s decision to terminate the appellant should be rendered void.

104    As we have found that the appellant did not commit the second breach and there were mitigating circumstances in relation to the appellant’s behaviour in relation to the first breach such that the appellant should not have been disciplined in  relation to this breach, (even when taking into account that the appellant was subject to serious disciplinary proceedings in early 2000) it is the Board’s view that the appellant’s appeal ought to be upheld, and the findings of the disciplinary process be quashed, as should the penalty.

105    The appellant is seeking reinstatement to her former position with no loss of salary and entitlements or continuity of service.  The parties are directed to confer and advise the Board within seven days of the date of this decision as to an appropriate order to give effect to these reasons for decision.