DISPUTE REGARDING ALLEGATIONS MADE AGAINST UNION MEMBER.

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Civil Service Association of Western Australia (Incorporated)

APPLICANT

-v-

Commissioner, Department of Corrective Services

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Commissioner P E Scott

HEARD Monday, 4 September 2006, Tuesday, 3 October 2006, Monday, 16 October 2006

DELIVERED thursday, 9 November 2006

FILE NO. PSACR 21 OF 2006

CITATION NO. 2006 WAIRC 05727

CatchWords Public Service Arbitrator – Application to cease respondent's disciplinary process regarding allegations against Applicant's member due to delays and flaws in process – Nature of allegations serious – Process found to be lengthy and flawed – Whether respondent should be allowed to finalise process – Circumstances considered – Applicant's member not without right to appeal – Matter dismissed – Industrial Relations Act 1979 (WA) s.44

Result Matter dismissed

Representation 

Applicant Ms J van den Herik and with her Mr S Farrell

Respondent Mr M Taylor

Reasons for Decision

Background and Evidence

1         This is a matter referred for hearing and determination pursuant to s.44 of the Industrial Relations Act 1979 (“the Act”), as conciliation did not resolve the matter. 

2         The applicant seeks an order that the respondent refrain from finalising its disciplinary process involving the applicant’s member, William Amourous, and not undertake any further investigation into allegations against Mr Amourous.  The applicant does so on the basis that it alleges that the processes of investigation adopted by the respondent was flawed; denied Mr Amourous natural justice; and that the respondent had previously finalised the investigation and decided not to proceed with it. 

3         The respondent says the allegations against Mr Amourous relate to sexual misconduct and are extremely serious.  Mr Amourous’s position as a Juvenile Custodial Officer placed him in a position of power and authority over juvenile detainees who have raised the allegations of sexual misconduct.  The investigation is now concluded.  Mr Amourous may challenge any decision of the respondent arising from the investigation by applying to the Western Australian Industrial Relations Commission.  The public interest will not be served by the granting of the orders sought. 

4         The parties agreed that the matter for determination related to the process and procedures used by the respondent in its investigation, not to the truth of allegations made against Mr Amourous, although it is agreed between the parties that the allegations are of a serious nature. 

5         For the purposes of the hearing, the parties submitted a Statement of Agreed Facts (Exhibit 1), with relevant documents attached.  The agreed facts are:

“1. Mr Bill Amourous, the applicant’s member, has been employed by the respondent, the Department of Corrective Services and its predecessors, for 25 years.

2. Mr Amourous (sic) employment conditions are regulated by the Institution Officers Allowances and Conditions Award 1977 and the Department of Justice Groupworkers General Agreement 2004.

3. Mr Amourous has performed the role of Group Worker and Juvenile Custodial Officer at Banksia Hill Detention Centre, since the Detention Centre opened eight years ago.  (At the direction of the respondent Mr Amourous currently works in an administrative role at Casuarina Prison)

4. On 9 March 2005 the respondent verbally advised Mr Amourous that they (sic) had received an allegation that involved him. The respondent then verbally directed him to not report for duties at Banksia Hill Detention Centre, and has since this time been undertaking duties at Casuarina Prison.

5. On 15 March 2005 Mr Amourous received written advice from the respondent’s Internal Investigations Unit (“IIU”) that an allegation, involving Mr Amourous, had been received.

6. The allegations against Mr Amourous were of a serious nature.

7. In a letter dated 23 March 2005, received by Mr Amourous on 30 March 2005, Ms Nicole Bodycoat, Internal Investigator advised Mr Amourous she was conducting the Department’s investigation.  She sought confirmation from Mr Amourous within seven days of receipt of the letter that he was prepared to be interviewed.

8. On 31 March 2005 the Applicant’s representative Ms Louise Jacobson spoke to Senior Internal Investigator Ms Deborah Dickenson in an attempt to contact Ms Bodycoat to set up an interview.  Contact (sic) made on 6 April 2006 to set up interview for 10.00am 19 April 2005.

9. On 19 April 2005, Mr Amourous was interviewed by the IIU.  He was not given written particulars of the allegations against him or the names of the detainees he was alleged to have offended.  Mr Amourous was advised at the conclusion of the interview that the IIU will present its report and recommendations to the department’s Investigation Review Committee (“IRC”), who will determine if any further action will be taken.  Mr Amourous denied all allegations.

10. 16 May 2005 Ms Jacobson spoke with Ms Bodycoat who advised her Mr Amourous’ case was to be presented for review at the IRC meeting of 6 May 2006.  This did not occur as the investigation had not been completed.  The IRC meets on the first Friday of every month.  Mr Amourous’ case was to be reviewed at the next meeting 3 June 2005.

11. On 6 June 2005 Ms Jacobson again contacted the IIU and spoke with Ms Bodycoat.  She was advised the investigation was not complete as the Department was looking for a particular witness.

12. On 24 June 2005 Ms Jacobson contacted the IIU and spoke with Ms Bodycoat.  Ms Jacobson was advised the investigation was ongoing and was being held up by inability to locate a witness.  Ms Jacobson queried with Ms Bodycoat at what point is it determined by the IIU that a witness is unable to be located.

13. On 10 August 2005 Ms Jacobson contacted IlU and spoke with Ms Bodycoat.  Ms Jacobson was advised Ms Boadycoat (sic) was meeting with her Manager Tony Langmair to discuss finalising the investigation.

14. On 18 August 2005 Ms Jacobson wrote to the Director Human Resources Department of Justice seeking the conclusion of the investigation and claiming the process had been carried out in an unfair and unreasonable manner.

15. In a letter dated 14 September 2005 the Acting Director Human Resources stated the IIU was unable to provide a completion date for the investigation but would endeavour to complete their (sic) enquiries as soon as possible.

16. On 6 October 2005 PSAC 43 of 2005 was lodged by the applicant seeking an order that the respondent finalise their (sic) investigation of the allegation involving Mr Amourous, and either advise Mr Amourous, within ten working days, of the outcome of the investigation and any decisions made, or advise that the matter is dropped.

17. A conciliation conference before Scott C was held on 13 October 2005.  The respondent advised that the IIU would hold an out of session meeting on 17 October 2005 to make a decision on investigation (sic) regarding allegations against Mr Amourous.  With the assistance of the Commission the respondent committed to provide Mr Amourous with a written response with a written response (sic) by close of business 21 October 2005.  The respondent did not meet that commitment.  A report back conference was set for 27 October 2006.

18. Although on 26 October 2005 Mr Amourous received advice from the Investigations Review Committee was (sic) satisfied the allegation was substantiated, a consideration of the investigation process by the Department’s Labour Relations (Discipline) section found some anomalies.  The respondent’s representative, Mr Greg Lee Coordinator Discipline advised the applicant’s representative Ms Jacobson of its concerns about the investigation on 26 October 2005 stating the allegations were not substantiated.

19. On 3 November 2006 (sic) Ms Jacobson spoke with Mr Lee.  It was his recommendation to the Director General that Mr Amourous be given a chance to respond to all allegations.

20. On 16 November 2005 Ms Jacobson advised the Public service (sic) Arbitrator’s Associate that Mr Lee’s report and recommendations would be sent to the Director General by 17 November 2005 morning at the latest.

21. On 14 December 2005 Ms Jacobson sent an email to the Public Service Arbitrator’s Associate advising her that Mr Greg Lee, Coordinator Discipline had informed her that the Director Genera (sic) had referred the matter back to IIU for further investigation.  Neither Mr Amourous nor the applicant had been advised of the Director General’s decision prior to Ms Jacobson’s enquiry on that day.

22. On 19 January 2006 Ms Jacobson again contacted Mr Lee.  He advised he was awaiting an update that day from Mr Tony Langmair, Manager IIU.

23. On 24 January 2006 (sic) emailed the Public Service Arbitrator’s Associate advising that Mr Lee had advised her IIU would be sending Mr Amourous a letter regarding a further interview for the allegations they were investigating.

24. Over three months after this advice on 7 February 2006 Mr Amourous received a letter detailing 14 further allegations against him relating to unspecified dated (sic) in the years between 1998 and 2000.  These dates had not been put to him in the investigation interview conducted on 19 April 2005.

25. On 13 February 2006 Ms Jacobson wrote to Ms Bodycoat of IIU expressing serious concerns about the way in which the Department of Corrective Services had handled their (sic) investigation process into allegations against Mr Amourous.

26. In a letter dated 14 February 2006 Mr Langmair enquired whether Mr Amourous would take part in an interview.

27. In a letter dated 23 February 2006 Ms Jacobson sought a response to the issues on (sic) process raised in her letter dated 13 February 2006.  She advised a written response to Mr Langmair’s letter would be provided by 2 March 2006.

28. On 2 March 2006 Ms Jacobson wrote to Ms Bodycoat that Mr Amourous needed the opportunity to view his personal file before responding to the allegations.

29. Mr Amourous denied the additional allegations in statement (sic) dated 17 March 2006.

30. Mr Langmair On (sic) 6 April 2006 Mr Amourous was advised that the further investigation had been completed and referred to the Department’s Labour Relations (Discipline) section.  Mr Amourous was directed to report to Superintendent John Sawle for a return to Banksia Hill.

31. On 19 April 2006 a report back conference was convened by the Public Service Arbitrator.  A recommendation that “the respondent shall formally advise Mr Amourous in writing, no later than 5.00pm on Wednesday the 26th day of April 2006, of any findings and proposed course of action relating to allegations made against him.”

32. On 19 April 2006 (sic) received written advice from A/Deputy Commissioner Community and Juvenile Justice that “I have now received the investigation report and have determined that based on the information provided the Department will not be taking any further action”.

33. On 23 June 2006 Mr Amourous received written advice from the Commissioner of Corrective Services entitled allegations of misconduct. (Attachment P)  The applicant asserts these allegations are merely a rehash of those already put to Mr Amourous in general terms on 19 April 2005 and in specific terms on 7 February 2006.  The respondent disputes this.  Mr Amourous was also directed to take annual leave.  This direction is a further matter of dispute between the parties.

34. On 5 July 2006 Mr Amourous was directed to remain at Casuarina Prison.

35. On 7 July 2006, the applicant filed PSAC 21 of 2006 with the registry of the Commission.  A conciliation Conference was convened on 20 July 2006.  On the same day a Recommendation was issued by the Public Service Arbitrator, in summary, required (sic) Mr Amourous to

a. Respond in writing to the allegations within 7 days of the conference

b. Required the respondent to complete its investigation and advise Mr Amourous of the outcome within 14 days of receiving Mr Amourous’ response

c. Stating the allegations which had been put to Mr Amourous were not substantiated the respondent will reinstate a period of leave which was taken by Mr Amourous.

36. The applicant assisted Mr Amourous to submit his response to the Commissioners letter the same day as the conference 20 July 2006.

(sic)  Commissioner Johnson’s office on 20 July 2006.  Mr Amourous has a receipt to that effect.

38. The Applicant’s representative Ms van den Herik rang Mr Mark Taylor the respondent’s representative at 3.30pm on 25 July 2006 to enquire as to the progress of the investigation.  Mr Taylor said he had not seen the letter.  She advised him of the facts and faxed him a copy of the letter at 3.55pm on 25 July 2006.

39. On 27 July 2006 Mr Taylor spoke with Ms van den Herik seeking additional information about Mr Amourous’ witnesses.  This was given.

40. On 3 August 2006 the applicant advised the Associate to the Public Service Arbitrator that recommendation agreed to by the respondent had not been adhered to and seeking a report back conference.

41. In an email to the Associate, dated 7 August 2006 Mr Taylor advised a further 10 working days were required to complete the investigation process.  He advised this would allow the IIU time to speak with two of the five individuals (three staff two detainees/ex-detainees) identified by Mr Amourous and to make their recommendations to Commissioner Johnson.

42. A conciliation conference was convened on 8 August 2006.

43. Arising from the conference a further recommendation was issued that the respondent complete its investigation into allegations against Mr Amourous and advise Mr Amourous of the outcome by no later than 5.00pm on Tuesday 22 August 2006.

44. On 21 August 2006 Ms van den Herik rang Mr Taylor to enquire as to whether the respondent would meet the terms of the recommendation.  Mr Taylor advised it would not.  He made no comment as to when the terms of the recommendation might be met.

45. Ms van den Herik sought a further conference.  A conciliation conference was convened on 23 August 2006 where the applicant sought the matter be referred for hearing.

46. The matter of PSAC 22 0f (sic) 2006 is (sic) set for hearing and determination on 16 October 2006.

47. On 28 August 2006 a Memorandum of Matters referred for hearing and determination under Section 44 was issued.

48. Also on 28 August 2006 Mr Amourous received a letter from Commissioner Ian Johnson repeating the allegations of Ms Wallace made in the letter dated 23 June 2006.  It also contained an allegation from Ms Shufflebotham consistent with the allegation put to Mr Amourous at the IIU interview of 19 April 2005 but with the name withheld. The letter read; “Based on the information available to me I am satisfied that you behaved in the manner alleged...However, prior to making a final decision regarding the appropriate penalty for your misconduct, I will allow you the opportunity to provide me reasons as to why I should impose some penalty other than the termination of your employment.””

6         The Arbitrator heard evidence from Mr Amourous; Nicole Bodycoat, Assistant Senior Internal Investigator with the Internal Investigations Unit (“IIU”); and Gregory Ian Lee, the Co-ordinator (Discipline) with the Attorney General’s Department, which provides certain services to the respondent, in this case, relating to disciplinary matters.

7         Mr Amourous’s evidence confirmed a number of the agreed facts but also dealt with the effect upon him of the process of the investigation and the time it had taken.  Ms Bodycoat gave evidence in particular of the process of the investigation and the numerous efforts, over a lengthy period of time, to contact witnesses including those who had made allegations against Mr Amourous.

8         Ms Bodycoat also gave evidence that the length of the time an investigation takes in a particular case depends on the seriousness of the allegations and that it is inappropriate to put time constraints on investigations of serious matters.  This particular investigation involved allegations relating to “quite vulnerable children” (transcript page 29).  In this case, the allegations were raised by young women who had been in the care of the respondent, and who when in the community, were particularly difficult to contact.

Conclusions

9         The parties have agreed that the only basis upon which this matter ought be resolved is whether the process of the investigation ought be stopped on the basis of the flaws in that process. 

10      The Statement of Agreed Facts clearly demonstrates that the process undertaken by the respondent in investigating and concluding this matter has been flawed in a number of ways.  The following are excerpts from the process but they are indicative of what has occurred.  They include that the process has taken from 9 March 2005, when allegations were made by two detainees at Banksia Hill Detention Centre, until 28 August 2006, when Mr Amourous was finally told that the respondent had concluded its investigations, found that his behaviour constituted a serious breach of discipline and advised him of the intended penalty, providing him with an opportunity to respond.  The process has taken nearly 18 months. 

11      The allegations put to Mr Amourous in writing on 15 March 2005 were broad and vague, i.e. that he “may have sexually harassed female detainees at Banksia Hill Detention Centre” (Attachment A). 

12      It was not until 26 October 2005, more than 6 months later, that the investigation was said to have been completed and then referred to the Labour Relations (Discipline) section of the Department of Justice for consideration.  However, by mid November 2005, the investigation had been referred back to the IIU because of concerns that not all allegations had been put to Mr Amourous and that he might have been denied natural justice.  By 14 December 2005, a month later, the allegations still had not been fully put to Mr Amourous.  In fact, it was not until 7 February 2006, some three months after the investigation had been referred back to the IIU, that full and further allegations were put to Mr Amourous, nearly one year after the initial allegations were made.  He was then invited to respond within 7 days. 

13      Further, it is noted that the investigation of the additional allegations appears to have been well underway before Mr Amourous was notified of these allegations. 

14      On 6 April 2006, Mr Amourous was advised that the investigation was complete and the matter was once again referred to the Labour Relations (Discipline) section however, two weeks later he had not been informed of the respondent’s decision in respect of the matter.  Due to the delays in progress, at the request of the applicant, the Arbitrator issued a Recommendation that the respondent formally advise Mr Amourous of its findings and proposed course of action by Wednesday, 26 April 2006.  However, as it happened, on the day of the conference, being 19 April 2006, the Commissioner of Corrective Services decided to take no further action in respect of the allegations.  It appears that this decision was made because the respondent could not locate one of the young women who had made allegations, Ms Alissa Wallace. 

15      The evidence of Ms Bodycoat is of numerous attempts being made to contact the young women involved including Ms Wallace, Ms Holly Shufflebotham and Ms Natasha Orr.  I accept that young people in the circumstances of these young women may be difficult to locate, and that every reasonable effort ought to be made to find them.  It was not until 20 April 2006, the day after Mr Amourous had been informed that the respondent would not be taking the matter further, that Ms Wallace was located – she was on remand in one of the respondent’s own facilities.  However, she was not interviewed until some 3 weeks later, on 12 May 2006.  Her interview then lead to Ms Shufflebotham and Ms Ann Binkali being interviewed.  Ms Binkali was not interviewed until 12 June 2006 and it appears that this was at least partly due to difficulties in locating her. 

16      It was then a further 11 days before Mr Amourous was advised of Ms Wallace’s allegations and that they had caused the respondent to reconsider Ms Shufflebotham’s allegations which had not previously been pursued by the respondent.  Mr Amourous was then directed on annual leave and subsequently to return to work at Casuarina Prison. 

17      Once again, progress was slow.  A further conference was convened at the request of the applicant on 20 July 2006, a further month after Ms Shufflebotham had been interviewed.  At this conference Mr Amourous was encouraged to respond in writing to the allegations made to him.  He provided that response directly to the office of the Commissioner of Corrective Services that day, 20 July 2006.  However, his response was not conveyed to those dealing with the matter until the applicant contacted Mr Taylor, for the respondent, in the middle of the next week seeking advice regarding progress.  Mr Taylor had not seen Mr Amourous’s response.  On 7 August 2006, Mr Taylor advised that the investigation would take a further 10 days to be completed but undertook to advise Mr Amourous no later than 22 August 2006.  This was not done.  Mr Amourous was not advised until 28 August 2006 of the outcome of the investigation and the respondent’s intentions.

18      It is quite clear that this matter has been poorly handled.  There have been many occasions of unreasonable delay, the respondent has not met its own timeframes, it has not applied natural justice to Mr Amourous at various points during the process and one can clearly see that Mr Amourous has not been treated fairly in this process.  He has had to wait and wait.  He has been under a cloud for over 18 months.  The effect upon him has been significant. 

19      The question arises as to what ought to occur.  Should the unfairness of this process mean that the serious allegations against Mr Amourous (which the respondent has at this point found to be substantiated and the respondent proposes to dismiss Mr Amourous on account of them) be put aside?

20      Mr Amourous’s position as a Group Worker and Juvenile Custodial Officer in a detention centre brings with it very important responsibilities, on behalf of society, in the custody and care of vulnerable young people.  Both parties accept that the allegations against him are serious.  They are allegations that he has used his position to seek sexual contact with, and sexual favours from, young women who were juveniles in his care.  If the application were granted due to the failings in this process, the respondent would be required to not finalise the process, not discipline him, not deal further with these allegations and Mr Amourous would continue to work with juveniles in the care and custody of the state as if the allegations had not been raised.  On the other hand, if the respondent were permitted to conclude its process, and that conclusion resulted in Mr Amourous being dismissed, as the letter of 28 August 2006 proposes, Mr Amourous would have the opportunity to challenge the dismissal by referring it to the Commission.  At that point the full merits and the veracity of the allegations against him could be aired and considered. 

21      I have some sympathy for Mr Amourous in the delays which he has been faced with, and the lengthy process and the flaws in the process which he has been subjected to.  However, this is not simply a situation where an employer should be denied the opportunity to finalise an investigation and possibly discipline an employee over trivial matters because it has mishandled an investigation.  In all of the circumstances, including the seriousness of the allegations, I could not, in all conscience, deny the respondent the opportunity to finalise this process and thereby bring an end to its investigations and resolve the matter.  Mr Amourous would not be denied an opportunity to challenge the allegations against him. 

22      The decision of the Industrial Appeal Court in Civil Service Association and Department for Community Development (IAC) (82 WAIG 2845), says that the Public Service Arbitrator should only consider whether or not there are grounds for disciplinary proceedings, (paragraphs 18-21) but the question of whether the Arbitrator could or should stop a process on the basis of substantial flaws in that process which might affect the outcome was not dealt with by the Industrial Appeal Court.  However, in these circumstances, notwithstanding the flaws in the process, I am of the view that due to the serious nature the allegations against Mr Amourous and as they strike at the heart of his responsibility to those juveniles in his care, and in the care of his employer, that the respondent ought be able to finalise its process.  If Mr Amourous then wishes to challenge the outcome of the process, including the merits or substance of the allegations, then an avenue exists for that to occur.  He is not without a right of appeal.

23      Accordingly, the matter will be dismissed.