WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES WILLIAM AMOUROUS

APPELLANT

-v-

Commissioner for Corrections, Department of Corrective Services

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

 Commissioner S J Kenner - CHAIRMAN

 MR B HEWSON - BOARD MEMBER

 MS M BASTIAN - BOARD MEMBER

HEARD Tuesday, 3 April 2007, Thursday, 4 April 2007, Wednesday, 5 April 2007, Friday, 20 April 2007

DELIVERED TUESDAY, 26 june 2007

FILE NO. PSAB 9 OF 2006

CITATION NO. 2007 WAIRC 00548

CatchWords Industrial Law – Termination of employment - Appeal against decision of respondent to terminate appellant's employment - Whether the appellant was harshly, oppressively or unfairly summarily dismissed - Principles applied - Appeal Board satisfied serious breach occurred warranting termination of employment for gross misconduct - Appeal dismissed - Industrial Relations Act 1979 (WA) s 23A, s 29(1)(b)(i), s 80I, Young Offenders Regulations 1995 Division 3, Part 8, Reg 53(2), Reg 54(a)(b)(c)(d)(e), Young Offenders Act 1994 s 11(1a)(a), s 11(1b) Young Offenders Amendment Act 2004 s 6(3), s 11, s 11(1a)(1), Schedule 1, clause 2(1), Public Sector Management Act 1994.

Result Appeal dismissed

Representation 

Appellant Ms K Warlock and Mr W Claydon

Respondent Mr M Taylor

Reasons for Decision

The Appeal

1. This is an appeal pursuant to s 80I of the Industrial Relations Act 1979 (“the Act”) by which the appellant alleges he was harshly, oppressively or unfairly summarily dismissed by the respondent on or about 13 November 2006.

2. Schedule A to the notice of appeal sets out the essential allegations of fact and grounds relied upon by the appellant in the following terms:

 “Allegations of Fact

 1. I have (sic) employed by the respondent or its predecessors for 25 years as a juvenile detention officer or a group worker and paid a salary in terms of the Institution Officers Allowances and Conditions Award 1977.

 2. I am a government officer and I was dismissed summarily pursuant to clause 8(1)(b) of the award by letter dated 13 November 2006.

 3. The respondent accepted unsubstantiated allegations from female detainees that I had harassed them sexually whilst I was on duty at Banksia Detention Centre.

 4. I maintained that I was the subject of a set up arranged by my accusers, that the accusations were false and dishonest, and that I have witnesses who could substantiate the fabrications of my accusers.

 5. In March 2005 I was advised of allegations of sexual harassment and was transferred to Casuarina Prison where I remained until I was dismissed in November 2006.

 6. The respondent’s investigation dragged on throughout 2005 and 2006, and became the subject of applications by the Civil Service Association to the Public Service Arbitrator; namely PSAC 43 of 2005 and PSAC 21 of 2006.

 7. On or about 9 November 2006 the Public Service Arbitrator dismissed PSAC 21 of 2006, which opened the way for the respondent to finalise its investigation and make a decision on my future, notwithstanding “the lengthy process and the flaws in the process.”

 8. The agreed facts and relevant findings on the process of investigation are set out in CSA v Commissioner, Department of Corrective Services by the Public Service Arbitrator:  PSACR 21 of 2006, 2006 WAIRC 05727.

 9. On or about 14 November 2006 the CSA wrote to the respondent seeking my retention in employment at Casuarina Prison.

 Grounds

 10. The termination was harsh, oppressive and unfair.

 Relief Sought

 11. I seek reinstatement or re-employment into the same or similar position without loss of service entitlements and the payment of salary from the date of dismissal until my reinstatement or re-employment.

 12. That the Public Service Appeal Board otherwise adjusts my circumstances and the position of the respondent.”

Background

3. The circumstances giving rise to this appeal have some history.  As noted in the appellant’s Schedule A attached to the notice of appeal, set out above, the circumstances of the investigation into the appellant’s alleged conduct has been the subject of proceedings before a Public Service Arbitrator (“the Arbitrator”) on two occasions, the most recent of which being application PSACR 21 of 2006.  In this matter the Civil Service Association (“CSA”) on behalf of the appellant, sought the cessation of the disciplinary procedure then being implemented by the respondent concerning the misconduct allegations made against the appellant.  The Arbitrator heard and determined this issue and published reasons for decision on 9 November 2006: Civil Service Association of Western Australia (Incorporated) v Commissioner, Department of Corrective Services (2006) 86 WAIG 3192.  In that matter, the applicant contended on behalf of the appellant in this appeal, that the investigation process undertaken by the respondent was so flawed that it should be terminated by order of the Arbitrator.  The application was unsuccessful and it was dismissed.  Helpfully, the parties to those proceedings prepared an agreed statement of facts for the purposes of those proceedings, which are also agreed for the purposes of this appeal.  Whilst somewhat lengthy, the agreed facts set out the substantial background to the matter and are reproduced as follows:

 “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 IIU 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.”

4. For the purposes of this appeal, in addition to seeking to incorporate the agreed facts from the above proceedings before the Arbitrator, the appellant and the respondent in this appeal further agreed the following matters:

 “1. Dismissal letter served on the Appellant was dated Monday 13 November 2006:  see Attachment “A”.

 2. Dismissal letter was served on the Appellant on Wednesday 15 November 2006 at his home, his pay ceased on 16 November 2006 in line with the pay cycle.

 3. Prior to that date [15 November 2006] there was a discussion between the CSA and the respondent as to how the termination would be progressed in regard to the location to which Mr Amourous would attend to receive the advice.

 4. Dismissal was a summary termination.  There was no notice. 

 5. The CSA sent a letter to the respondent dated 14 November 2006 seeking Mr Amourous’ continued employment until the matter was determined by the PSAB:  see attachment “B”.

 6. The respondent did not write a response to the CSA’s letter.  There was a conversation between Messrs Taylor and Cusack at approximately 1600 hours on 14 November 2006 about managing the termination.

 7. There was an investigation into complaints of the alleged sexual harassment of juvenile detainees at Banksia Hill Detention Centre against the Appellant.  The complaints came from the detainees.

 8. Mr Amourous was employed at Casuarina Prison during the course of the investigation and was not in contact with juvenile detainees.  He remained at Casuarina Prison until he was dismissed on 15 November 2006.

 9. The details of these complaints were set out in a letter to the appellant dated 28 August 2006, which indicated an intention to dismiss for misconduct if a satisfactory explanation was not received by 4 September 2006:  see attachment “C”.

 10. The respondent accepts the agreed statement of facts numbered 1 to 48 inclusive, as set out in paragraph 5 of the decision of Commissioner Scott in CSA v Commissioner, Department of Corrective Services (2006) WAIRC 05727:  see attachment “D”.

 11. Allisa Wallace was interviewed by Ms Bodycoat at Eastern Goldfields Remand Prison on 12 May 2006.

 12. On 12 June 2006 Ms Bodycoat interviewed Ms Shufflebotham.

 13. On 13 June 2006 Ms Bodycoat interviewed George Edwards, a former superintendent at Banksia Hill who could not recall Allisa Wallace raising issues of sexual harassment.

 14. Ms Bodycoat interviewed David Dawson on 28 July 2006.

 15. Ms Bodycoat interviewed Natasha Faliti and Mary Moran on 2 August 2006.

 16. On 25 August 2006 Ms Bodycoat interviewed Ms Shufflebotham.”

5. We find accordingly.

Approach to Appeal

6. These proceedings are an appeal pursuant to s 80I of the Act and are not proceedings seeking an order under s 23A in relation to a claim of harsh, oppressive and unfair dismissal referred to the Commission under s 29(1)(b)(i) of the Act.

7. In Thavarasan v The Water Corporation (2005) 86 WAIG 1434 the Appeal Board considered the issue of the nature of an appeal under s 80I of the Act and at 1436 observed as follows:

  “18  On behalf of the respondent Mr Rooke, in his written submissions, said that the relevant test to apply is the same as that applicable to an unfair dismissal claim before the Commission pursuant to s 29(1)(b)(i) Act and he referred to Miles v Federated Miscellaneous Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1995) 65 WAIG 385 in that regard. The respondent also referred to the authorities in relation to acts of misconduct and the evidentiary onus being satisfied if the employer conducted a proper investigation and had an honest belief, based upon reasonable grounds, that the misconduct occurred: Bi-Lo Pty Ltd v Hooper (1992) 52 IR 224; Shire of Esperance v Mouritz; Patrick Joseph Whelan v City of Joondalup (2004) 84 WAIG 2975.

  19 On the other hand, the appellant submitted that the nature of an appeal pursuant to s 80I(1) of the Act is different in nature to a claim of unfair dismissal made pursuant to s 29(1)(b)(i) and the powers available on an appeal of this kind, are also different to those available to the Commission in an unfair dismissal claim. Mr Stubbs referred to a decision of the Appeal Board in Raxworthy v Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266 to the effect that an Appeal Board is able to substitute its view for that of the employer and consider on the evidence, whether the conduct complained of actually occurred, so as to ground the employer's decision to dismiss the employee.

  20  In our view, with due respect, we consider the approach in Raxworthy to be the correct approach in relation to an appeal to the Appeal Board. That is, as distinct from an unfair dismissal claim before the Commission, the nature of an appeal to the Appeal Board is an appeal, in the nature of a hearing de novo, based upon the evidence before it. The Appeal Board has far greater scope to substitute its view for that of the employer, in light of the evidence adduced in the proceedings.  What this means in the context of the present case, concerning allegations of misconduct, is that the misconduct allegations must be established as a matter of fact, as the basis for the employer's decision to dismiss. It is not sufficient in our view, for the Appeal Board to only be satisfied that the employer had an honest and genuine belief, based upon reasonable grounds that the misconduct occurred. More than a sense of unease by the employer is required. Whilst this does not alter the overall onus on an appellant to persuade the Appeal Board that it should interfere with and “adjust” the employer's decision in a particular case, there must be sufficient evidence before the Appeal Board to establish the misconduct complained of.

  21  We also observe that by s 80L of the Act, s 26(1) as it applies to the exercise of jurisdiction by the Commission, also applies to the exercise of jurisdiction by the Appeal Board. Whilst s 26(1)(b) provides that the Commission shall not be bound by the rules of evidence, it has never been the case that the relevant principles of the rules of evidence are to be completely disregarded and the Commission proceed to deal with a matter in the absence of any cogent evidence. There is a difference between applying the rules of evidence, generally, to ensure parties receive a fair hearing, and being bound by the strictures of such rules. This is particularly so in arbitration proceedings, for example where the Commission is dealing with a claim for the making of a new award or a variation to an award, where the Commission may be informed in a variety of ways, not strictly in accordance with the rules of evidence. This enables the Commission to deal with matters flexibly, whilst at the same time not abrogating from the basic principle that parties are entitled to be heard fully and to be afforded natural justice. However, in cases in which misconduct is alleged, the requirement for cogent evidence is heightened: Baron v George Western Foods Ltd (1984) 64 WAIG 590 per Fielding C at 590.”

8. We adopt and apply the approach determined in Thavarasan for the purposes of this appeal.

Investigation Procedure

9. A preliminary issue arising on the appeal is conveniently dealt with at this point.  That issue goes to the procedure adopted by the respondent in relation to investigating the various allegations against the appellant.  The appellant submitted that the Young Offenders Regulations 1995 (“the Regulations”) made under the Young Offenders Act 1994 (“the YO Act”), which prescribe a disciplinary procedure for juvenile custodial or group workers, required the respondent to comply with the requirements in particular, of Part 8 – Responsibilities and Discipline of Employees, of the Regulations.  These disciplinary provisions apply to a group worker appointed under s 11(1a)(a) of the YO Act.  By Division 3 of Part 8 of the Regulations, there is prescribed a detailed procedure for the laying and hearing of charges against group workers, concerning breaches of discipline. 

10. The respondent submitted that the Regulations concerning employee discipline had no application in the present circumstances.  It was said that the misconduct alleged to have been committed by the appellant, pre-dated the coming into effect of the Regulations on 1 July 2005.  It was therefore submitted that applying the presumption against retrospectivity, the procedure set out in Division 3 of Part 8 of the Regulations had no application to the appellant’s circumstances.  The respondent, in not following such a procedure, has not acted unlawfully. 

11. By s 11(1a)(a) of the YO Act, the Chief Executive Officer of the Department concerned in the administration of the YO Act, may appoint persons as custodial officers for primarily non-administrative functions, whom are described as “group workers”.  It was common ground that the appellant was employed as a group worker and his employment was subject to the Institutional Officers Allowance and Conditions Award 1977, No. 3 of 1977 (“the Award”).  The YO Act came into effect in March 1995.  The YO Act was amended by the Young Offenders Amendment Act 2004 which introduced, amongst other things, the amended s 11 prescribing the appointment of group workers under s 11(1a).  These amendments came into effect on 1 January 2005. 

12. It was common ground that the appellant has been employed as a Juvenile Custodial Officer (“JCO”) and group worker for about 25 years and was therefore employed in such a capacity at the time of the amendments to the YO Act referred to above.  Thus, the appellant was not “appointed” to the position of group worker on and after the commencement of the amendments.  However, s 6(3) of the Young Offenders Amendment Act 2004 contains Schedule 1 – Transitional which by clause 2(1) provides that:

 “A person who was paid by the Department as a custodial officer with primarily non-administrative functions (“group worker”) immediately before commencement is, on commencement, to be taken to be appointed by the Chief Executive Officer under section 11(1a)(a) of the principal Act (as amended by this Act), on the same terms and conditions, including as to remuneration, as those which applied to the person immediately before commencement.”

13. Therefore, for the purposes of the YO Act, the appellant is taken to have been appointed to the position of a group worker pursuant to s 11(1a)(1).  By s 11(1b) of the YO Act, a group worker appointed under s 11(1a)(a), or deemed to be as in the case of the appellant, may, by par (b) be “subject to such disciplinary procedures as are set out in the Regulations.”  Therefore, prima facie at least, group workers occupying positions such as the appellant, are subject to the relevant disciplinary provisions set out in the Regulations, referred to above.

14. As we have already noted, Division 3 – Employee Discipline deals with the commission by group workers of various breaches of discipline.  By reg 54, a group worker who engages in conduct or acts provided for in that provision, “commits a breach of discipline”.  The “breach” referred to is, in our opinion, the act or conduct particularised in regs 54(a) to (e), which incidentally, may also, depending upon the circumstances, be characterised as a “serious breach of discipline”, as prescribed by reg 53(2) of the Regulations.  The Regulations set out a detailed procedure for the laying of a charge of a breach of discipline; the hearing of that charge; findings made by an inquirer into that charge; the imposition of penalties; and any review of such a finding by the Chief Executive Officer of the Department.

15. As noted above, the Regulations came into effect on 1 July 2005.  To the extent that the Regulations deal with employee discipline they are taken to modify but not derogate from common law principles as to natural justice in public sector employment:  Potter v Minaham (1908) 7 CLR 277; Bropho v State of Western Australia (1990) 93 ALR 207.

16. It is a rebuttable presumption of statutory interpretation, that legislation (including regulations and other forms of delegated legislation) is not intended to operate retrospectively:  Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267.  (see generally Pearce and Geddes Statutory Interpretation in Australia Ch 10).  The presumption is more strictly applied in the case of penal statutes:  R v Miah [1974] 1 WLR 683 per Lord Reid at 694.  However, the presumption against retrospectivity does not apply in cases where the legislation under consideration is dealing with matters of procedure only:  Maxwell.

17. In this case the conduct complained of by the appellant is alleged to have occurred on various dates between November 1998 and January 2005.  That is, the alleged “breaches” of discipline, alternatively “serious misconduct” and the acts or omissions constituting them, all occurred prior to the coming into effect of the disciplinary provisions contained in the Regulations.  It is that conduct that would constitute the material breach.  Thus to apply the Regulations to this conduct, would offend against the presumption.  Applying the principle of retrospectivity, for the disciplinary provisions of the Regulations to have had application to the alleged conduct of the appellant, would require them to be characterised as merely procedural and not substantive.

18. Are the Regulations procedural?  In our opinion the Regulations are not merely procedural.  It is clear from their terms that the disciplinary provisions of the Regulations impose obligations on employees and alter substantive rights by for example, empowering the respondent to impose various penalties on employees who have been found to have committed acts which constitute a breach of discipline or serious misconduct under the Regulations.  These penalties, notably, include those not provided by the common law such as fines and suspension without pay.  Furthermore in our opinion, given the nature of the penalty regime, it can reasonably be said that the disciplinary provisions of the Regulations are at least quasi penal in nature and therefore the presumption against retrospectivity should be more strictly applied in this case.   This does not mean, of course, that the respondent was free to deal with the appellant in an unfair manner.   The principles of natural justice applied to the conduct of inquiries of the kind undertaken into the allegations against the appellant.

19. We therefore conclude that the provisions of Division 3 of Part 8 of the Regulations, dealing with employee discipline, had no application to the circumstances of the appellant at the material times, for the purposes of this appeal.

The Allegations

20. Given the extent of common ground between the parties as set out in the various statements of agreed facts, it is convenient to proceed to the specific allegations of misconduct against the appellant arising on the evidence.

Shufflebotham Complaints

21. Ms Holly Shufflebotham was a detainee at the Banksia Hill Juvenille Detention Centre (“Banksia Hill”) between 12 October 2004 and 7 April 2005. Ms Shufflebotham during her period of detention spent some time in the Harding Unit at Banksia Hill, which is the unit for those detainees “regressed” for various kinds of misbehaviour. 

22. Ms Shufflebotham testified that she knew the appellant as one of the group workers responsible for detainees at Banksia Hill.  In her evidence, Ms Shufflebotham said that on a number of occasions, the appellant acted inappropriately towards her.  Initially, Ms Shufflebotham testified that on occasions when she was first regressed in the Harding Unit, she was upset and unable to sleep and the appellant would bring her cups of Milo and try to comfort her.  Ms Shufflebotham said that this initially took the form of a hug when she was crying and she assumed that this was not untoward, as any group worker may act in this way when a detainee was upset.  Whilst Ms Shufflebotham was unable to recollect the relevant dates of these events, when records were put to her in cross-examination of shift patterns for the appellant, she accepted that in the period December 2004 to February 2005, Ms Shufflebotham was in the Harding Unit from 12 December 2004 to 7 January 2005.  During this time, the appellant was on night shift on two occasions on 6 and 7 January 2005.  Ms Shufflebotham testified however, that this period was not her only period of regression in the Harding Unit, and there were at least three different periods where she spent time at that location and that there was more than one incident with the appellant.

23. The first incident Ms Shufflebotham referred to was an occasion when the appellant entered Ms Shufflebotham’s cell after lock down to bring her a cup of Milo.  It was common ground on the evidence that in accordance with operational procedure, nightshift lock down occurred at 20:00 hours and there is a set procedure for a nightshift unlock after this time.  In short, the officer is required to obtain the permission of the Shift Manager, two staff must be present for a nightshift cell unlock, and the Shift Manager is required to complete a detailed report including the name of the detainee, the unit wing and cell number, the reason for the unlock and the time of the unlock and cell lock up.  The only exception to this is where a life threatening situation arises, and an officer may need to enter a cell alone to administer first aid. 

24. On this particular occasion, Ms Shufflebotham testified that the appellant entered Ms Shufflebotham’s cell after lock down and brought her a cup of Milo. The appellant then later returned to her cell in the early hours of the morning.  It was at this point that Ms Shufflebotham said the appellant hugged and attempted to kiss her on the mouth.  She testified that as this was in the middle of the night, the fact that the appellant entered her cell at this time made her feel extremely uncomfortable. It was put to Ms Shufflebotham in cross-examination that the other group worker present in that area on the night in question, Mr McDonnell in his transcript of interview during the investigation, said he only observed the appellant enter Ms Shufflebotham’s cell to give her a cup of Milo and observed nothing untoward.  Mr McDonnell did not file a witness statement and nor was he called to testify as to these matters when the evidence on behalf of the appellant was led as a part of its case.  There was an attempt by the appellant to introduce evidence from Mr McDonnell in rebuttal after its case had closed, however the Appeal Board refused this application. In any event, Ms Shufflebotham testified that whilst Mr McDonnell was on shift on these occasions, at the time of the incidents, he was not at the unit.  She was emphatic that Mr McDonnell was not present at the time the appellant re-entered her cell.  The day after this first incident, Ms Shufflebotham testified that she spoke to Mr McDonnell and asked him not to leave her alone again with the appellant. 

25. Ms Shufflebotham referred to another incident involving the appellant.  She said that the appellant entered her cell on nightshift after lock down again whilst she was in the Harding Unit.  Ms Shufflebotham said that the appellant on this occasion started “talking dirty” to her asking questions such as “who she slept with, how I like it, that sort of thing you know” (63T).  She also testified that on this occasion, the appellant began rubbing her back and commented that “you’re not wearing a bra”.  Ms Shufflebotham testified that she told him to leave and swore at him and said f… off. 

26. Ms Shufflebotham testified that she did not see the appellant for a while after this incident.  However, she recounted a further matter where she was near the Murchison A Unit and the appellant was in a motorised buggy with another officer.  She testified that after they had stopped the appellant was talking to either another unit officer or one of the detainees when he saw her, called her over to him gave her a hug and kissed her by putting his tongue on her cheek.  Ms Shufflebotham was not sure whether the other officer in the buggy saw this at the time or whether there were any other witnesses.  After this occurred, Ms Shufflebotham said she ran into the unit and washed her face.  She said that she felt scared after these various incidents.  She said she was praying that the appellant was not going to come back into her cell as she said the detainees were suppose to feel safe in particular after lock down at night.  Ms Shufflebotham further testified that on the same night as the appellant entered her cell and asked her about whether she was wearing a bra, he also talked “dirty” to her and asked her about matters such as whether she got “horny” when using ecstasy and asked her whether she masturbated and if so how often she did it.

27. After these incidents, Ms Shufflebotham said she spoke with her Unit Manager, who as it transpired was Ms Todd, and told her that she did not want to be escorted back to the main detention area by the appellant as she did not feel safe with him.  Ms Ann Todd another Juvenile Custodial Officer at Banksia Hill, gave evidence about this incident and said that she was at the Murchison Unit in March 2005 as the Unit Manager.  Ms Shufflebotham was in the Harding Unit and Ms Todd was preparing to escort her to the education area.  Ms Todd saw the appellant and asked him whether he could take Ms Shufflebotham instead.  Ms Todd’s evidence was that Ms Shufflebotham “just freaked out” (137T) and asked her not to send her back “with that officer”.  Ms Todd said that Ms Shufflebotham did not tell her at that time why she did not want to be with the appellant.  It was only subsequently that Ms Todd became aware of the allegations made against the appellant.

28. It would seem on the same day that Ms Shufflebotham had a disagreement with the appellant in relation to her entering a classroom for education lessons.  Whilst it was put to Ms Shufflebotham in cross-examination that this disagreement was the reason that she had fabricated allegations against the appellant to get back at him, Ms Shufflebotham strenuously denied this.  She was emphatic that the incidents she recounted had occurred and that she was giving evidence to stop it happening again to other detainees.  The allegations made by Ms Shufflebotham against the appellant were the subject of a written complaint made by her dated 9 March 2005 which was tendered as exhibit R8.  Whilst there was some variance, there was general consistency between the written complaint and Ms Shufflebotham’s oral testimony.

Wallace Complaints

29. Ms Alissa Wallace was a detainee at Banksia Hill between November 1998 and May 2000.  Ms Wallace gave evidence about what she described as inappropriate conduct by the appellant towards her whilst a detainee.  She testified that from time to time the appellant would make sexually explicit remarks to her and would say things such as “sexy” and “sexy arse”.  Ms Wallace also said that the appellant would pinch her on her buttocks when he made these kinds of remarks.  Ms Wallace testified that when he engaged in this sort of conduct she would pull away from him and the appellant would laugh.  Ms Wallace testified that this most often occurred in the kitchen area of her unit when few people were around.  She said that the appellant also would come up behind her and massage her shoulders and rub himself up against her from behind.  Ms Wallace testified that she felt very uncomfortable by this behaviour and she would tell the appellant to go away.  Ms Wallace was unable in her evidence to indicate approximately when these events occurred, given it was now long ago.  She testified that the appellant also made similar comments to another former detainee Ms Orr, and would also come up behind her in the same way.

30. According to Ms Wallace, after this conduct commenced, the appellant started bringing her cigarettes at Banksia Hill.  She testified that the appellant would put cigarettes under her pillow in her cell and would say words to the effect during the day “smokes under the pillow”.  Ms Wallace testified that the appellant provided her with full packets of cigarettes on at least three occasions she could recall.  It was put in cross-examination to Ms Wallace that the allegation of the appellant supplying cigarettes to detainees was the subject of an investigation in 2000 by the respondent and the appellant was exonerated.  Ms Wallace confirmed that she spoke to the then Superintendent about this issue.  It appears that the outcome of the investigation was inconclusive. 

31. Ms Wallace also gave evidence about other incidents involving the appellant.  She said that on one occasion the appellant entered her cell alone at night and attempted to kiss her.  She testified that the appellant also asked for sexual favours of her in return for cigarettes.  She testified that on this occasion, which was also at night, the appellant entered her cell after lock down whilst she was laying down watching television.  According to Ms Wallace the appellant during this visit, attempted to kiss her and said to her words to the effect “come on we’ll just have a quickie, no-one will know”.  Ms Wallace testified that the appellant attempted to force her back down onto the cell bed and he attempted to put his tongue in her mouth, but she had her mouth closed.  She testified that at this point she shouted loudly at the appellant to get out of her cell so loudly so that other detainees may hear it.  According to Ms Wallace, she spoke to the Superintendent about the appellant giving her cigarettes and the inappropriate touching.  However when a copy of a file note from the investigator who spoke with the then Superintendent was put to Ms Wallace, she accepted that she may not have referred to the inappropriate sexual conduct at that time.  Ms Wallace also referred to a conversation she had with the appellant when he said that he could not keep on swapping shifts to come into her unit because other officers were becoming suspicious.  Ms Wallace did not tell any other detainee about getting cigarettes from the appellant, because she wanted them to keep coming.  She also testified that she did not report this conduct to the Superintendent because she was scared to do so. 

32. In the evidence of both Ms Wallace and Ms Shufflebotham, it was confirmed that neither had known each other whilst they were detainees at Banksia Hill. Ms Wallace had only met Ms Shufflebotham for the first time on the day that they attended the proceedings before the Appeal Board.  Ms Wallace also said that she had never had any disagreements with the appellant whilst she was at Banksia Hill and that his entry into her cell after lock down at night frightened her.

Binkali Complaints

33. Ms Anne Binkali was a juvenile detainee at Banksia Hill between September 2004 and March 2005 and also it would seem, over periods subsequent to that.  Ms Binkali testified that on an occasion the timing of which she could identify, she was in the Murchison Unit when the appellant came over to her and called out “Annie babe” and hugged and kissed her near her lip.  She said this was a regular occurrence.  Ms Binkali testified also that from time to time the appellant would touch her around her waist area which she said “did not feel right” and made her feel uncomfortable.  On a further occasion, Ms Binkali said that the appellant entered her cell after lock down at night and sat on the end of her bed staring at her.  Ms Binkali testified that on the night in question, there were no other officers present as she could see clearly into the area outside of her cell, which comprised glass walls.  When the officer shift records were put to her in cross-examination, it was confirmed that Ms Binkali was on regression in the Harding B Unit between 10 December and 30 December 2004 and the appellant was working on nightshift on 23 December 2004.  That is, the appellant was present on nightshift during the period of her regression in Harding B.

34. A few nights later, at a location she could not be specific about, Ms Binkali testified that the appellant again entered her cell at night after lock up and gave her a cup of Milo.  While sitting and talking to her he gave her a hug and kissed her on the cheek.  This and the previous incident were the two specific occasions referred to in Ms Binkali’s evidence where the appellant entered her cell at night and engaged in this conduct.  Additionally however, Ms Binkali testified that the appellant would make what she described as “dirty comments” whilst talking to the female detainees.  On one occasion, she said he referred to a male and female group worker having sexual intercourse in the Harding Unit.

35. Whilst Ms Binkali said she was aware there may have been some conflict between Ms Shufflebotham and the appellant, she denied any suggestion put to her in cross-examination that Ms Shufflebotham was encouraging her to make false complaints about the appellant.  Ms Binkali did say that Ms Shufflebotham had asked her to speak to the Superintendent about the appellant’s behaviour but she did not want to get involved as she was close to being released from Banksia Hill.

Appellant’s Response

36. In his initial evidence, the appellant flatly denied all of the allegations against him.  He gave evidence as to the background to the allegations and the lengthy investigation process leading to his dismissal, which is set out above in the various statements of agreed facts.  At all times, the appellant maintained that the allegations against him had been fabricated and that in particular, Ms Shufflebotham had orchestrated a campaign against him.  Much of the evidence of the appellant as to the background to the allegations and the process engaged in by the respondent to investigate them is set out in the decision of the Arbitrator which we have referred to above.

37. In addition to denying the allegations of the complainants, the appellant also alleged that the respondent had formed preconceived views during the course of the investigation process, and had effectively, pre-judged his “guilt” prior to giving him an opportunity to respond to the allegations.  In particular, the appellant testified that the respondent failed to properly investigate his allegations that Ms Shufflebotham had fabricated her complaints against him and had enlisted the assistance of others in this cause.  The appellant also gave evidence about the effect of the protracted investigation process has had on him and that since his dismissal in November 2006 he has been suffering a depressive order and has been under the care of a medical practitioner.

38. Much of the appellant’s evidence in his second witness statement, particularly in response to the complainant’s evidence, sought to highlight inconsistencies in their written testimony in these proceedings, and prior statements made in the investigation process leading up to his dismissal.  The appellant reiterated his blanket denials of any inappropriate conduct towards Ms Shufflebotham, Ms Wallace or Ms Binkali.  The appellant also suggested in his testimony that another group worker, Ms Todd who gave evidence in these proceedings, was involved in the fabrication of allegations by Ms Wallace against him, as Ms Todd is Ms Wallace’s aunt and he said she did not like him.

Appellant’s Supporting Evidence

39. As to the appellant’s allegation that Ms Shufflebotham conspired with others to bring the misconduct allegations against him, called in support of the appellant were fellow JCO’s Ms Moran, Mr Dawson and Ms Faliti.  Ms Moran testified that she was interviewed by the respondent’s investigator, Ms Bodycoat, in August 2006.  At that time Ms Moran was at Banksia Hill.  When asked questions about alleged fabrication of allegations, Ms Moran said that both Ms Binkali and another detainee Ms Hart, had told her not to worry about Ms Shufflebotham’s allegations as “it is all lies…”

40. In cross-examination Ms Moran testified that she did not specifically discuss with either Ms Binkali or Ms Hart the fact that sexual misconduct allegations had been made against the appellant.  Her evidence was that when she spoke to both of them she asked where Ms Shufflebotham was and “they said she was in Harding because she had made up a story and, when I asked what story, they told me, “Don’t worry about it, its all lies.” (16T).  Her evidence was there was no discussion about sexual harassment or any such claims and she had no knowledge as to what they were referring to when they said “its all lies”.  There was no suggestion in Ms Moran’s evidence that either Ms Binkali or Ms Hart had suggested that they had been requested by Ms Shufflebotham or anyone else to participate in fabrications against the appellant.

41. Mr Dawson was interviewed by Ms Bodycoat in July 2006.  He testified that in a conversation with Ms Binkali in March 2005 some mention was made of Ms Shufflebotham and Ms Binkali said words to the effect “oh she’s a dog.”  When Mr Dawson inquired as to what she meant Mr Dawson testified that Ms Binkali said words to the effect “oh that Billy business…oh she’s involved us in setting Billy up.”  Mr Dawson also referred to a comment by Ms Binkali that the appellant and Ms Shufflebotham had an argument about Ms Shufflebotham attending an education class and that Ms Shufflebotham had been made a fool of.  There was a suggestion by Ms Binkali that Ms Shufflebotham was going to “get him” for that.

42. Ms Faliti was interviewed by Ms Bodycoat in August 2006.  She was also asked as to whether she was aware of any suggestion Ms Shufflebotham had fabricated allegations against the appellant.  Ms Faliti testified that in early March 2005 when she was working on an evening shift she was approached by Ms Binkali.  Ms Binkali spoke to her about the situation with the appellant and told her words to the effect that "Holly was crapping on, and Holly had to set him up.  She was pissed off with some group workers, and she though (sic) that Holly wanted to bring several down.”  Ms Faliti further testified that Ms Binkali informed her that Ms Shufflebotham had requested both Ms Binkali and Ms Hart to be part of a scheme to “set up” the appellant.  When cross-examined on this evidence, Ms Faliti testified that in relation to Ms Shufflebotham’s alleged request for Ms Binkali to speak to the Superintendent, reference was made by Ms Binkali to the appellant having “done stuff and everything, but she didn’t say exactly what it was.  Well, I didn’t have any specifics, no.” (11T).

Respondent’s Supporting Evidence

43. Ms Leach has been employed as a JCO at Banksia Hill since 1996.  She initially commenced at the Longmore Detention Centre and in approximately 1997 transferred to Banksia Hill.

44. Ms Leach knows the appellant and has worked with him previously on shift at Banksia Hill on many occasions.  Ms Leach gave evidence about her duties at Banksia Hill and that she would often work in the canteen and laundry facilities.  Whilst not able to be specific in relation to dates, Ms Leach testified that in about 1998 or 1999, she recalled working in the canteen with a detainee, Ms Wallace.  She testified that detainees were assigned to her in the canteen area to work behind the counter and to generally assist.  On this occasion Ms Leach said that Ms Wallace was helping her clean up the canteen area after the canteen had closed.  The appellant came into the canteen and asked her if he could speak with Ms Wallace.  Both the appellant and Ms Wallace then went to a corner of the canteen and the appellant spoke with her.  When they came back Ms Leach sent Ms Wallace on her way. 

45. According to Ms Leach, later that same day, the appellant returned and spoke to her.  He informed her that he had been instructed by the Superintendent not to have any contact with female detainees and asked Ms Leach not to mention to anyone that he had been speaking with Ms Wallace in the canteen.  In her testimony, Ms Leach described the conversation in words to the effect as follows “Look Inga, I’ve been told – I’ve been banned from seeing the girls, so don’t tell the Superintendent or anyone that I’ve been here talking to them…” (191T).  When it was put to Ms Leach in cross-examination why she did not report this to the Superintendent, Ms Leach said that she was new on the job and did not wish to “dob in” a workmate.  She was aware however, from the context of the conversation, that the matter may have been serious. Ms Leach also testified that she knew the appellant’s wife who then worked at a supermarket in a local shopping centre.  She said that as a casual acquaintance she would speak with her whenever they met.  In particular, she recalls the appellant either on the same day or shortly after the canteen incident, speaking with her and requesting Ms Leach to not tell the appellant’s wife that he had been banned from having any contact with female detainees. 

46. On a later occasion, Ms Leach testified that she was passing through the “sally port” next to the gatehouse at Banksia Hill when she saw the appellant.  Ms Leach recollects that the appellant asked her whether she was going to be working with the girls on that day.  Whilst Ms Leach, given the lapse of time, could not remember the exact words used in the conversation, her evidence was that she had the distinct impression that the appellant was very interested in knowing whether Ms Leach was going to be working with the girls on that day and where they would be.  In cross-examination, it was subsequently revealed that whilst the appellant did not specifically refer to any female detainees by name, Ms Leach was supervising Ms Wallace at the time and also another detainee, a Ms Minchin. 

47. It was Ms Leach’s evidence that these events caused her considerable stress.  She testified that after this conversation at the gatehouse she telephoned the appellant and told him that she did not want to get involved in what may have been going on and requested that he leave both her and the female detainees alone.

48. Another JCO at Banksia Hill, Ms Hale was also called by the respondent to give evidence.  She has been engaged as a JCO since 1998 and knows the appellant and worked with him.  Ms Hale gave evidence that on a number of occasions she observed the appellant acting inappropriately with Ms Wallace.  It was Ms Hale’s evidence that reasonably early on in her employment, she thought in early 1999 or thereabouts, she was working in the Murchison Unit over the course of three consecutive night shifts.  She testified that on the first nightshift, she was in the office area entering records following cell checks she had undertaken.  She said that this was approximately 8.15pm in the evening but in any event, was certainly after the lock down for the night.  Ms Hale said that on this occasion, she saw someone walk past the office window, following she opened the office door to check who it was.  She said she then walked down to the cells and noticed one cell door was open and saw that it was Ms Wallace’s cell.  When she looked inside the cell she said she saw both the appellant and Ms Wallace sitting on the bed in the cell facing each other and they were talking.  She also noticed that the appellant was not in his uniform but was wearing a pair of white shorts, as she recollected it. 

49. Ms Hale testified that the appellant had opened the cell himself and that this was contrary to the lock down procedure which requires at least two JCO’s to be present at a cell unlock, unless an emergency situation arises.  Ms Hale said she stayed at the cell door because JCO’s as she understood it, were not allowed in cells by themselves after lock down.  On leaving the cell, Ms Hale said the appellant told her that he was giving Ms Wallace something; a book, magazine or a photo album but she could not be sure, given the passage of time, what it was. 

50. The next nightshift, Ms Hale testified that she was again on her own in the office.  She said that she saw the appellant walk past the window to the office and as he did so, he had a bag of lollies in his hand which he waved at her and said he was going to give them to Ms Wallace.  Ms Hale then followed the appellant to Ms Wallace’s cell and saw that he had unlocked the cell door and was giving her the lollies.  Again this occurred after the lock down for the night.  Ms Hale recollected that she had a conversation with the appellant but could not be specific as to what was discussed.  She did recall however that the appellant told her the reason he entered Ms Wallace’s cell was to give her the bag of lollies.

51. Ms Hale was quite extensively cross-examined in relation to her testimony.  She said that she did not report these incidents to the Superintendent at the time, because she was a very new officer and the prevailing culture amongst officers, in particular male officers, led her not to report these matters.  Ms Hale was taken in some detail, to various roster records from the respondent, which suggested that the period in early 1999 when she thought these incidents occurred, was a period over which the appellant and herself were not working together on nightshift in the Murchison Unit, at least during the periods of detention for Ms Wallace.  Whilst during her cross-examination Ms Hale conceded that these records may be correct, she was emphatic in her evidence that the written records of the respondent, do not always accurately reflect the location of an officer on any given shift.  This was because, as Ms Hale explained it, there are numerous times when officers either at or after commencing duty on a particular shift, are transferred to another area of the detention centre, for a variety of reasons, including to assist in particular situations with detainees, or to cover for late absentees. 

52. Despite the extensive cross-examination of Ms Hale on these issues, she remained adamant in her evidence that she did work three consecutive nightshifts and the appellant was present on at least the two occasions about which she had given evidence.  Ms Hale also testified that it was also possible that the appellant may have completed his shift, but still had access to the Murchison Unit area.  Ms Hale said that she had not come forward in relation to these matters until she was recently approached.  However, she testified they had been a major burden upon her for all of these years.

53. Mr Povey was the final JCO called by the respondent to give evidence.  Mr Povey has been at Banksia Hill since December 1998.  Mr Povey gave evidence that he had twice reported the appellant for what he described at least initially, as inappropriate behaviour.  The first occasion occurred, Mr Povey thought, in about early 1999, shortly after commencing employment as an officer.  Mr Povey said that at the time he was located in the Murchison Unit and the appellant was the Acting Unit Manager.  The particular incident occurred on an afternoon, when the detainees had been locked down in order for officers to take a break.  He testified that he saw the appellant walk into the wing and told him he was going to unlock Ms Wallace’s cell.  Given Mr Povey’s then understanding that it was standard procedure that there always are at least two officers present, he went down to Ms Wallace’s cell at the time.  He said that he saw the appellant and Ms Wallace sitting on the cell bed talking.  Mr Povey remained at the cell door observing.  He said the appellant then told him he could leave the area and go on his break.  Mr Povey testified that he was concerned about this action because as far as he was aware, no officer should be inside a detainee’s cell alone as it leaves them open to being compromised.

54. A second incident about which Mr Povey gave evidence occurred approximately three years ago.  Mr Povey testified that he was requested to speak to a detainee about a particular issue.  That detainee said that another detainee, a Mr Keen, should be spoken to.  Mr Povey then proceeded to Mr Keen’s cell door and noticed that the privacy curtain in the door had been drawn and that the grill at the bottom of the door had been covered up with cardboard.  Mr Povey testified that he knocked on Mr Keen’s cell door and Mr Keen told him to wait.  After waiting for a short period of time Mr Povey said he unlocked the cell door and noticed at the time, that the main lock was unlocked, but the inside lock, controlled by the detainee, was in the locked position.  Mr Povey said he then went into the cell and saw that the appellant was in the cell sitting on the bed with Mr Keen.  Whilst Mr Povey testified that he did not notice anything untoward occurring in the cell, he thought it was unusual that when he knocked on the door that the appellant had not responded or indicated in any way, that he was inside the cell.

55. As with Ms Hale, Mr Povey was taken at some length in cross-examination to the various roster and sign on records in relation to the matters raised in Mr Povey’s testimony.  Whilst some of the roster records were inconsistent with aspects of Mr Povey’s evidence, and he conceded that his estimate of the timing of these incidents may not have been entirely accurate, he was none the less adamant that the two incidents to which he had made reference in his evidence did occur.  Significantly, as with Ms Hale in her evidence, Mr Povey said that the roster and sign on records do not necessarily reflect the actual location of an officer, due to staff movements that may occur during the course of a shift, which may not be necessarily recorded by the responsible Shift Manager.  He said this was a common occurrence.

56. In summary, Mr Povey’s evidence was to the effect that he did not observe any inappropriate conduct engaged in by the appellant, apart from being in a detainee’s cell by himself, which he thought was contrary to established procedure.

57. There was also some evidence adduced from by Ms Tang, the Deputy Commissioner for Offender Management and Professional Development and Mr Lee, an Executive Manager.  Given the conclusions we have reached below, and the various statements of agreed facts, we need not refer to their testimony any further.

58. Ms Bodycoat, the principal investigating officer gave evidence as to the inquiries she conducted into the allegations against the appellant.  Much of this is dealt with in the statements of agreed facts referred to above.  In short however, the appellant was critical of Ms Bodycoat’s investigation, and suggested in cross-examination that her inquiries had, as a predetermined objective, establishing the “guilt” of the appellant.

Evidence in Reply

59. In connection with Mr Povey’s testimony, the appellant called Mr Corunna, a Unit Manager employed at Banksia Hill.  Mr Corunna has approximately 14 years experience as a JCO.  Mr Corunna said that in relation to the complaint made by Mr Povey, concerning the appellant being in Mr Keen’s cell, he spoke to the appellant about this matter.  The appellant explained to him that initially the cell door was open however it had closed itself behind him, once he had entered the cell.  The purpose for being in the cell with Mr Keen was so that Mr Keen could show him a letter and photos from a relative.

60. In relation to the testimony of Ms Hale, Mr Povey and Ms Leach, the appellant filed a further witness statement in reply contesting their evidence.  He either denied the incidents outright or that they had occurred in the circumstances as outlined in their testimony.  As to Ms Hale’s evidence, the appellant denied that he had engaged in the incidents alleged by her in relation to Ms Wallace.  In relation to Ms Leach’s evidence, the appellant could not recollect the incident in the canteen with Ms Wallace but said he may have spoken to her about legitimate matters.  He denied ever telling Ms Leach that he had been banned from contact with female detainees or that he had asked her not to inform his wife of that fact.  As to the incident described by Mr Povey concerning the appellant’s entry into Mr Keen’s cell, the appellant testified in reply that he was in Mr Keen’s cell at his invitation to view a letter and photos from his brother and the door had closed after him, because it was defective.

61. The final witness called on behalf of the appellant was Mr Hampson.  Mr Hampson has been a Unit Manager and Shift Manager at Banksia Hill for the last three years.  He has been a JCO since 1998.  Mr Hampson outlined in his testimony the responsibilities of a Shift Manager.  In particular, in this position he is to be informed if any detainee’s cell is unlocked during a lock down.  If an unlock occurs, at least two JCOs must be present and the Shift Manager is to be informed by radio, which all JCOs carry on shift.  The requirement for two JCOs to be present is for the purposes of safety in the event a detainee becomes violent.  In the case of an unlock during a lock down period, both JCOs are required to sign an unlock form, which is then countersigned by the Shift Manager.  Prior to March 2005, Mr Hampson testified that these requirements did not apply between the hours of 8.00am and 8.00pm in the evening, but did so between 8.00pm and 8.00am the following day.

62. There were some changes at Banksia Hill in relation to lock down procedures.  Mr Hampson testified that until about 18 months ago there was an “open door policy” between the hours of 8.00am and 8.00pm, whereby detainees of the same sex could enter each others cells during those hours as could JCOs.  There was no official unlock or lock down system in the afternoon.  From mid 2005, a new system was implemented such that detainees cannot now enter other cells during the hours of 8.00am to 8.00pm.  JCOs however, can still enter detainee cells on their own during these hours.  Additionally, there is now an official lock down each afternoon between 3.15pm and 3.45pm, whereby detainees are locked in their cells in order that JCOs can take a break.  Mr Hampson also testified that it is a common practice for detainees to be given rewards by JCOs where they have taken part in sport or where they have been assisting JCOs.  He also testified that it was not unusual for JCOs to sit on a detainee’s cell bed, as there are no chairs in cells.  Mr Hampson said from his experience having known the appellant, he always found him to be attentive to detainees needs and as far as he observed, detainees were treated appropriately.

63. In relation to the night time lock down, Mr Hampson affirmed that no officer should be in a detainee’s cell after lock down in the evening unless there is an emergency or medications need arising.  Mr Hampson also in cross-examination confirmed that once an officer had finished a shift but had not actually left the detention centre, they would still have their keys on them until such time as they depart through the gatehouse.

Contentions of the Parties

64. The appellant’s primary submission was that the allegations against the appellant brought by the respondent leading to his dismissal, resulted in effect, from a conspiracy between former detainee Ms Shufflebotham and other former detainees, including a JCO Ms Todd.  The appellant’s central contention was that Ms Shufflebotham orchestrated the initial allegations against the appellant, and then sought the assistance of Ms Binkali to prosecute their intended purpose to damage the appellant.  It seems that the motive for such an attack on the appellant, was alleged to be the classroom incident which occurred whilst Ms Shufflebotham was in detention, whereby it was alleged that the appellant “told off” Ms Shufflebotham in front of other detainees.  Furthermore, the appellant attacked the credibility of witnesses called by the respondent.  It was suggested that Ms Binkali’s evidence was fabricated as a consequence of the testimony of Ms Faliti, Ms Moran and Mr Dawson, that Ms Binkali had suggested that Ms Shufflebotham was attempting to “set up” the appellant.  Furthermore, it was suggested that Ms Wallace’s complaints were most likely to be a fabrication as a consequence of some inconsistencies between the documentary evidence concerning the periods of her incarceration and the shift patterns worked by the appellant.  Likewise, the appellant also submitted that the evidence of Ms Hale, Ms Leach and Mr Povey must be seen in the same light.  As to the assessment by the Appeal Board of the evidence, it was submitted by the appellant that the higher standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336 should be applied.

65. There were also submissions made by the appellant similar to those made to the Arbitrator in the earlier proceedings that the investigation process was flawed and in particular, submissions were critical of Ms Bodycoat, the respondent’s investigator who conducted the inquiries arising from the former detainees’ allegations.  It was put in submissions that Ms Bodycoat’s inquiry was prejudiced in favour of a positive outcome establishing the allegations against the appellant and that she had inadequately explored the prospect of a fabrication by Ms Shufflebotham.  It was also submitted that the evidence of Messrs Corunna and Hampson was supportive of the appellant’s contentions, in particular the documentary evidence regarding access to Banksia Hill after lock down at 20.00 hours and the procedure for obtaining and returning keys to the Gatehouse Manager.

66. The primary submission of the respondent, in summary, was that the complaints from Ms Shufflebotham and Ms Wallace, which were relating to periods some six years apart, were of such similarity that they established a pattern of conduct engaged in by the appellant.  It was also emphasised by the respondent that Ms Shufflebotham and Ms Wallace did not know each other prior to the commencement of these proceedings.  When taken in its totality, including the evidence of Ms Leach, Ms Hale and Mr Povey, which all supported the pattern of conduct of the appellant fraternising with female detainees and entering their cells after lock down, the complainants’ allegations were strong.  It was submitted that the complete denials of any inappropriate conduct by the appellant were not credible in the light of this evidence.  It was also submitted by the respondent that the evidence adduced through the former detainees, that the appellant was supplying cigarettes to in particular Ms Wallace, was consistent with the appellant’s alleged pattern of conduct in seeking to obtain favours of a sexual nature from female detainees.  Whilst a report into the provision of cigarettes to detainees by the appellant in May 2000 was inclusive, it was submitted that the testimony in these proceedings was supportive of the central allegation.

67. As to the attacks by the appellant on the evidence of in particular Ms Hale, the respondent submitted that her evidence clearly established that the work rosters are to be considered as a guide only given that officers are regularly moved from one location to another at the commencement of or during a shift, which would explain in large part, Ms Hale’s evidence as to witnessing the appellant entering Ms Wallace’s cell on at least two occasions.  In short, the respondent submitted that despite the various attacks on the credibility of the respondent’s witnesses, the core of their complaints, accepting some lapses in memory given the events occurred some years ago, are consistent on the evidence.

68. In relation to the criticisms of the respondent’s investigation into the appellant’s conduct, the respondent submitted that it accepted that in the earlier proceedings before the Arbitrator, that the initial investigation had been lengthy.  The respondent was obliged however, given the seriousness of the allegations, to pursue the matters.  It was submitted that it was not until April 2006, when the investigation was initially halted, that Ms Wallace was located and the investigation was recommenced.  The respondent submitted that it would have been negligent had it not done so.  It was submitted that the information obtained from Ms Wallace, who was independent to Ms Shufflebotham, was significant and that it warranted the conclusions the respondent reached, in its decision to terminate the appellant’s employment. 

69. Additionally, it was said that despite the submissions of the appellant to the contrary, there has only been one investigation of the appellant’s conduct from the outset.  The cessation of it in April 2006 and its recommencement shortly there after, was a part of a single process of inquiry.  It was further submitted that this inquiry process was not affected by the administrative arrangements whereby the administrative agency being the Department of Justice, transferred its functions to the Department of Corrective Services.  It was submitted that a change in a department is an administrative device by government and this had no impact on the employing authority for the purposes of the Public Sector Management Act 1994, as at all material times, the JCOs remained employees of the Crown in the right of the State of Western Australia.

Consideration

70. Whilst there has been a significant body of evidence adduced by the parties to these proceedings, at its core, the matter is to be resolved in terms of the stark conflict in the evidence between the appellant and the principal complainants Ms Shufflebotham and Ms Wallace, and other witnesses called by the respondent.  The appellant has at various points in his testimony and written replies during the investigatory process conducted by the respondent, simply denied all allegations against him and contended that they were fabricated.  As to the specific allegations advanced by Ms Shufflebotham and Ms Wallace, concerning inappropriate sexual oriented remarks, physical touching and requests for sexual favours, in the absence of any witnesses to these particular events, the resolution of these matters falls to be determined solely on the credibility of the appellant and the complainants. 

71. We have carefully considered all of the oral and documentary evidence adduced in this matter.  We have also carefully observed the witnesses in giving their testimony and considered carefully, in the case of the respondent, all of the evidence including those witnesses who testified as to various patterns of behaviour alleged to have been engaged in by the appellant.  We have also had regard in particular, to the fact that the principal complainants, Ms Shufflebotham and Ms Wallace, were not known to each other and yet gave evidence in relation to a pattern of conduct engaged in by the appellant, which was very similar, and some years apart.  In this respect, the respondent relied upon a judgment of the Court of Appeal of New South Wales in Zaidi v Health Care Complaints Commission and Another (1998) 44 NSWLR 82.  In Zaidi at issue was the nature of an inquiry conducted by the Medical Tribunal in New South Wales, and in particular, the extent to which criminal law principles concerning the admission of similar fact evidence, were applicable in disciplinary proceedings before that tribunal.  In holding that they were not applicable, the Court of Appeal, in applying a decision of the Queensland Court of Appeal in Purnell v Medical Board of Queensland (Court of Appeal, Queensland, 15 August 1997, unreported) concluded that in the case at hand where three women made similar complaints as to sexual misconduct by a medical practitioner, the Medical Tribunal was entitled to have regard to the evidence of each complainant when considering the evidence of the others, in terms of its overall weight.

72. Whilst the rules of evidence do not strictly apply in proceedings before the Appeal Board, in our opinion, this principle can be soundly adopted for present purposes.  Therefore, we consider it appropriate to have regard to the evidence of each complainant individually, in assessing the evidence of the other. 

73. In terms of the direct conflict between the evidence of the appellant and of the respondent’s witnesses, having considered these matters carefully, we prefer the evidence of the respondent’s witnesses to that of the appellant.  We did not find the appellant’s bare denials of all allegations against him convincing.  In particular, despite the appellant’s endeavour to discredit the evidence of Ms Wallace, her allegations of inappropriate conduct by the appellant, completely independent of the allegations of Ms Shufflebotham, were in our opinion, compelling.  The incidents about which Ms Wallace complained were some years apart from the allegations raised by Ms Shufflebotham and were consistent with the broad thrust of the allegations against the appellant.  Namely, entering female detainee’s cells in particular at night after lock down; making inappropriate remarks; touching detainees in ways that made them feel uncomfortable, and attempts to obtain sexual favours.  There was no suggestion put to Ms Wallace in her testimony, that she had in any way conspired with Ms Shufflebotham and indeed, that could not be the case, on the evidence.  Her testimony, when taken in isolation, is supportive of the central allegations made by Ms Shufflebotham both in her original written complaint in March 2005 and in her subsequent interviews with the respondent’s investigator, and in her testimony in these proceedings. 

74. Additionally, is the important evidence of Ms Hale and Ms Leach, the latter of whom we found to be a particularly impressive witness.  We unreservedly accept Ms Leach’s evidence that the appellant did seek to engage Ms Wallace at times when he was prohibited from having contact with female detainees.  We also accept in particular, her evidence that the appellant sought information from Ms Leach as to when and where she may be working with female detainees, in particular Ms Wallace.  Clearly, Ms Leach had nothing to gain from giving evidence in these proceedings.  Likewise, we accept the evidence of Ms Hale, another JCO who came forward after some years of harbouring concerns about the appellant’s conduct.  We find no reason not to accept her testimony, despite the extensive attempts by the appellant in cross-examination, to undermine the primary thrust of her evidence, that she witnessed the appellant at least on two occasions, approach Ms Wallace and enter her cell after lock down whilst Ms Wallace was a detainee at Banksia Hill. 

75. Despite the criticisms by the appellant of the respondent’s witnesses, that some could not recollect dates it would be surprising, given such a lengthy lapse of time, if recollections as to the timing of various events were precise.  Ms Hale in particular, was not shaken on the central aspect of her evidence that she witnessed the appellant engage in the behaviours she referred to.  It is also significant to note that it was also confirmed by Mr Hampson in his testimony that despite the written records of the respondent indicating an officer may be in a particular location on a rostered shift officers can and are moved around from one location to another.  This was also the evidence of Mr Povey.

76. In relation to Ms Wallace in particular, we are also satisfied on the evidence and we find, that it was more likely than not, that the appellant was providing Ms Wallace with cigarettes and a lighter as she said in her testimony.  The appellant was not “exonerated” in May 2000, when the provision of contraband in the form of cigarettes to detainees, was investigated.  An examination of this report reveals that there was insufficient corroborating evidence to establish the veracity of the complaint.

77. Additionally, and importantly, there was no suggestion on the evidence, that Ms Wallace had any ulterior motive in coming forward and making the allegations that she has against the appellant, and giving evidence in these proceedings.  In short, Ms Wallace had nothing to gain and arguably something to lose, in making such allegations as a former detainee, against a JCO.  Furthermore, in relation to Ms Wallace’s allegations, and her testimony generally, we do not, to any extent, accept the suggestion by the appellant that Ms Todd was, in some way, orchestrating Ms Wallace’s complaints.  Such an allegation is simply not established on the evidence.  To the contrary, the evidence was and we find, that Ms Wallace had little contact with her direct family and Ms Todd confirmed in her testimony, that she only saw Ms Wallace sporadically over a period of some years.  There were also significant difficulties experienced by Ms Bodycoat, on the evidence, in making contact with Ms Wallace, to pursue her allegations further.

78. Taken in its totality, in our view, Ms Wallace’s evidence is critically important in assessing the weight of the evidence overall.  It corroborates the allegations made by Ms Shufflebotham, as to the propensity of the appellant to be over familiar with female detainees and more seriously, in making inappropriate suggestions and requests of a sexual nature.  To a large extent also, whilst her credit was attacked by the appellant, Ms Binkali, although there were some difficulties in her testimony, gave evidence broadly supportive of the pattern of conduct engaged in by the appellant.  This included, and we find, entering her cell late at night after lock down, and making inappropriate comments of a sexual nature around her and touching Ms Binkali inappropriately, which made her feel uncomfortable. Whilst the evidence of Ms Binkali did not suggest explicit requests for sexual favours, nonetheless, the evidence itself, taken in its totality, is generally corroborative of the pattern of conduct established on the evidence of Ms Wallace, and Ms Shufflebotham, and other witnesses called by the respondent. 

79. Whilst the appellant through Ms Faliti, Ms Moran and Mr Dawson, sought to convey doubt as to Ms Binkali’s evidence and confirmation that Ms Shufflebotham had requested Ms Binkali to “set up” the appellant, in cross-examination, Ms Binkali denied that she told any of these three officers that there was such a “set up”.  Whilst she may have described Ms Shufflebotham as “a dog” in at least one conversation, it was not in the context of suggesting she was deliberately making false allegations against the appellant.

80. As we have noted above, whilst to some extent Ms Binkali’s evidence was vague and ambiguous, and some concern could be raised as to its overall veracity, when taken with the totality of the evidence, in particular that of Ms Wallace who had no association with either Ms Shufflebotham or Ms Binkali, any such reservations are considerably out weighed by the bulk of the evidence supportive of the central allegations against the appellant.

81. Given this assessment of the testimony, and even applying the higher civil standard of proof in Briginshaw, we are satisfied and we find that the appellant did engage in inappropriate conduct towards former female detainees at Banksia Hill.  This conduct included inappropriate remarks of a sexual nature; inappropriate touching of detainees and at least in one case, that of Ms Wallace, requests for sexual favours.  Given our conclusions on the evidence that it was more likely than not that the appellant was providing cigarettes to at least Ms Wallace, it is open to infer, and we do infer, from that testimony, that such contraband was provided by the appellant for the purpose of ingratiating himself to Ms Wallace, in order that she would be more inclined to tolerate and be receptive to his approaches.  Furthermore, we are satisfied and we find in relation to the appellant’s conduct, that it constituted a serious breach of trust placed in a JCO, being responsible for the detention and care of juvenile detainees. 

82. It may be said that to an extent, the role of a JCO may be somewhat different to that of a prison officer in an adult prison environment.  Given that detainees in a juvenile detention centre are children, it can be accepted that there may be a degree of pastoral care required to be exercised by JCOs, as a part of their responsibilities towards detainees.  However, this case has illustrated that there is a clear “line in the sand” between appropriate contact and clearly inappropriate conduct towards detainees.  In this case, we are satisfied on the evidence that the appellant committed serious breaches of operational procedures and rules of the respondent, governing the conduct of JCOs in detention centres and established procedures concerning the custody of juvenile detainees in this State.  In any event, and irrespective of a breach of such procedures, the conduct of the appellant, in any working environment, but particularly in a custodial environment, responsible for juveniles, constituted at common law, a fundamental breach of the appellant’s contract of employment with the respondent, warranting termination of employment for gross misconduct: Laws v London Chronicle (Indicator Newspapers) Ltd (1959) 1 WLR 698; Orr v University of Tasmania (1956) Tas SR 155.

83. Finally, while we agree with some of the criticisms of the investigation process as outlined in the decision of the Arbitrator referred to above, in terms of delay, those criticisms do not out way the gravity of the conduct engaged in by the appellant.  We do not accept that Ms Bodycoat set out to establish the “guilt” of the appellant.  The complaints made by the former detainees were serious matters that required a thorough investigation. On occasions, the investigation process was hampered by the inability of the investigators to make contact with relevant persons. The respondent was, given the care of juveniles in the custody of the State was in issue, duty bound to continue with its investigation, once Ms Wallace had been located and had given the respondent the information she did.  Whilst there may have been some confusion in Ms Bodycoat’s evidence as to the status of the investigation at various points of time, given other decision makers of the respondent in a different branch were also involved, overall the process was in our view, conducted with integrity.

84. Regardless as to whether it could be said that there was only one or two investigations, given our conclusions above that the Regulations had no application in this case, the appellant was not denied a fair opportunity to respond to the allegations, before the respondent made its decision to terminate his employment.  We are not persuaded that the change in departments in 2006 had any impact on the course of the investigation.  In any event, given these proceedings are in the nature of a hearing de novo, the parties have had a full opportunity to put their cases in relation to all aspects of the appellant’s claim, including the procedure leading to the appellant’s dismissal: Gudgeon v Black (1994) 14 WAR 158.

Conclusion

85. For all of the foregoing reasons, the appeal is dismissed.