APPEAL AGAINST THE DECISION TO NOT WITHDRAW A CHARGE AND TO CONTINUE WITH A DISCIPLINARY INQUIRY

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Stephen Mann

APPELLANT

-v-

Employing Authority, Government Employees Superannuation Board

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

 Commissioner P E ScotT - ChaIRman

 MR D VOLARIC - BOARD MEMBER

 MR K TRENT - BOARD MEMBER   

HEARD Monday, 17 September 2007, Wednesday, 26 September 2007, MONDAY, 8 OCTOBER 2007, MONDAY, 15 OCTOBER 2007

DELIVERED THURSDAY, 24 January 2008

FILE NO. PSAB 5 OF 2007

CITATION NO. 2008 WAIRC 00044

CatchWords Public Service Appeal Board - Industrial Law (WA) – appeal against employing authority’s decision to proceed with disciplinary process – whether persons directed to conduct an investigation or inquiry into suspected breach of discipline required to be “employee”– lawful authority - interpretation - Public Sector Management Act 1994 s 3, s 11, Part 5 – Substantial Performance and Disciplinary Matters – Interpretation Act 1984 – Security and Related Activities (Control) Act 1996 s 27, s 28 – Security and Related Activities (Control) Regulations 1997 reg 28

Result Appeal dismissed

Representation 

Applicant Mr G McCorry (as agent)

Respondent Mr R Andretich (of counsel)

Reasons for Decision

COMMISSONER P E SCOTT:

Background and Facts

1              This is an appeal against the Respondent’s decision to continue a disciplinary process in relation to the Appellant when the Appellant says that the Respondent’s interpretation of the Public Sector Management Act 1994 (“the PSM Act”) is in error.  The appeal is against the Respondent’s decisions:

1)                 to not withdraw the charge made on or about the 3 April 2007 that the Appellant committed a breach of discipline; and

2)                 to continue with the disciplinary inquiry pursuant to s 86 of the PSM Act.

The grounds are that: “the Employing Authority erred in its interpretation of the Public Sector Management Act 1994 concerning a condition of service of the Appellant and in accordance with the erroneous interpretation made a decision to act in excess of its lawful authority.”

2              The parties agreed that the matter ought to be dealt with on the papers and the Appellant filed a submission on the 8 October 2007 and the Respondent replied on the 15 October 2007.

3              The agreed facts in this matter are as follows:

“1. The Appellant is a public service officer.

2. As a public service officer, the appellant is subject to the disciplinary provisions of Part 5 of the Public Sector Management Act 1994 (the PSMA).
3. On 8 February 2007 the Employing Authority commenced a disciplinary process against the Appellant under Part 5 of the PSMA.
4. The Employing Authority instructed a Mr Alan Ledger to conduct an investigation under Part 5 of the Public Sector Management Act into an alleged breach of discipline by the Appellant.
5. Mr Alan Ledger is not an “employee” within the meaning of that term in the PSMA.
6. On or about 3 April 2007 in reliance upon the report of Mr Ledger into the alleged breach of discipline, the Employing Authority charged the Appellant with a serious breach of discipline, under Part 5 of the Public Sector Management Act.
7. On or about 1 June 2007 the Employing Authority appointed a Mr Keith Dodd to conduct a disciplinary inquiry under part 5 of the Public Sector Management Act into the alleged breach of discipline by the appellant.
8. Mr Keith Dodd is not an “employee” within the meaning of that term in the PSMA.”

 (Agreed Facts, 24 September 2007)

The Appellant’s Submissions

4              The Appellant submits that as Mr Ledger and Mr Dodd are not employees within the meaning of that term in the PSM Act then the respondent could not rely upon their respective investigation or inquiry for the purposes of the disciplinary processes pursuant to the PSM Act and accordingly, says the Respondent’s interpretation of the PSM Act in appointing them to undertake their inquiry or investigation is erroneous in law.  The erroneous interpretation led to the respondent acting in excess of its lawful authority and contrary to the PSM Act.  The Appellant seeks that the Public Service Appeal Board (“the PSAB”) adjust the respondent’s decision.

5              The Appellant refers to the definitions contained within s 3 of the PSM Act of “agency”, “employee”, “ministerial office”, “public sector”, “public service”, and “public service officer”. He says that Part 5 of the PSM Act does not apply to persons who are not public service officers, ministerial officers or employees or members of a class of employee that is, or are, prescribed within the PSM Act.  As neither Mr Dodd nor Mr Ledger are public service officers, ministerial officers, or employees or members of a class of employee, they are not subject to the disciplinary procedures of Part 5.  The Appellant says that following the prescribed procedures set out in the PSM Act is mandatory.

6              The Appellant says that reference to a “person” in s 81(1) ought to be interpreted as being reference to an “employee” as defined in the PSM Act “since it makes reference to the person whilst serving as an employee”.  The Appellant says:

“The employing authority’s powers in respect of directing a person to conduct an investigation are clearly limited to giving directions to persons to whom Part 5 of the PSM Act applies – ie persons employed in the public sector, who are employees as defined. Mr Ledger and Mr Dodd are not such persons.”               (Appellant’s submission para 24)

7              The Appellant refers to s 81(3) which requires a directed person to comply with the direction given under subs (2) and that subs (3) can only have force in respect of persons to whom Part 5 of the PSM Act applies, ie persons employed in the public sector, who are employees as defined.  The Appellant says that s 81(2) does not authorize the employing authority to enter into a contract with a person or entity for the carrying out of the investigation.  In appointing Mr Ledger to carry out the investigation the Respondent acted in excess of the employing authority’s power.

8              The Appellant says that the Respondent has not complied with the requirements of the PSM Act because it has failed to comply with a condition precedent.  Therefore the Respondent’s charging of the Appellant is not in accordance with s 9 and s 83 of the PSM Act and is thus in excess of its lawful powers.

9              The Appellant also says that the Respondent’s appointment of Mr Dodd was beyond power because it was conditional upon a proper charge being laid against the Appellant.  As the condition precedent of laying the charge was not complied with, the charge is not properly laid.

10            The Appellant also says that s 86(4) of the PSM Act requires the employing authority to hold or to direct a person to hold a disciplinary inquiry.  Mr Dodd is not a person who can be directed as only a public sector employee can be so directed according to Part 5 of the PSM Act.

11            The Appellant also refers to s 81(2) of the PSM Act empowering the employing authority to investigate or to direct a person to investigate, and says that a person carrying out an investigation is subject to the Security and Related Activities (Control) Act 1996, (“the SRA(C) Act”) which establishes a registration and conduct regime for investigators.  The Appellant discusses the issue of persons who are “directed” to conduct investigations under the PSM Act and those who are engaged or employed to “assist” such a directed person. The Appellant says:

“The legislation clearly contemplates that only “directed” public sector employees and persons engaged to “assist” such directed employees will carry out investigations under the PSM Act”.

 (Appellant’s submission para 28)

12            According to the Appellant, Mr Ledger and Mr Dodd are not engaged to assist a directed person and are not directed persons themselves.

13            Accordingly the Appellant says that the mandatory provisions of Part 5 of the PSM Act have not been complied with and the Respondent has acted unlawfully.

The Respondent’s Submissions

14            The Respondent says that the Appellant’s interpretation of the s 81(2) of the PSM Act is in error and that reference to “an employee” is reference to the person who is alleged to have committed a breach of discipline, that:

“The use of person and employee in section 81(1) is deliberate and intended to permit an employing authority to institute disciplinary proceedings against a person who no longer serves as one of its employees but did, under Part 5, when he or she is suspected to have committed the breach of discipline”. 

 (Respondent’s submission para 5)

15            The Respondent says that if the intention was that only persons employed under Part 5 of the PSM Act were intended to be the subject of a direction to investigate, it would have been a simple matter for the PSM Act to have so provided.  It also says that “If only persons employed under Part 5 could be directed to undertake a disciplinary investigation, subsection (4) would have been unnecessary” (Respondent’s submission para 6).  Accordingly the Respondent says that “the scope of persons capable of being directed under Part 5 is wider than persons employed under Part 5” (Respondent’s submission para 6).

16            The Respondent also says that the rules of statutory construction mean that the word “person” has no particular meaning for the purposes of the PSM Act “either as a matter of context or otherwise” and that it would have been simple for Parliament to provide the limitation that the Appellant submits is implied in s 81(2) had that been its intention.

17            As to the issue of the SRC(C) Act, the Respondent notes that there is no evidence as to whether either of the directed persons holds a licence under that Act or is employed by persons who do so.  In any event, the Respondent says that reg 13A of the Security and Related Activities (Control) Regulations 1997 “comprehensively exclude persons undertaking investigative work or inquiry work under the Public Sector Management Act” (Respondent’s submission para 9).  The Respondent says that “both Mr Ledger and Mr Dodd are persons who have been directed to undertake work within the exemptions contained in Regulation 13A and there is nothing within the Security and Related Activities (Control) Act 1996, Regulations or the Public Sector Management Act to limit the word “person” by the super added qualification that they must be “public sector employees”, before they can undertake an investigation or inquiry under the Public Sector Management Act 1994”. (Respondent’s submission para 10).

The Scheme of the Legislation

18            In determining the meaning to be attributed to the legislation, it is appropriate to look at the PSM Act as a whole, and its parts, in context.  The long title of the PSM Act  is “Public Sector Management Act 1994, An Act to provide for the administration of the Public Sector of Western Australia and the management of the Public Service and other public sector employment; to repeal the Public Service Act 1978; and to provide for related matters.”

19            Section 3 – Interpretation of the PSM Act, under subsection (1), provides the meanings of various terms.  The term “employee” means “person employed in the Public Sector by or under an employing authority”.

“respondent” means person –

 (a) suspected within the meaning of  section 81(1) of having committed; or

 (b) found to have committed,

  a breach of discipline.

“special disciplinary inquiry” means special disciplinary inquiry directed to be held under section 86.

“special inquirer” means person or persons directed under section 11 to hold a special inquiry;

“special inquiry” means special inquiry directed to be held under section 11.”

20            Section 11 – Minister may direct holding of special inquiry provides that the Minister may direct a suitably qualified person/s to hold a special inquiry.

21            Part 5 - Substandard Performance and Disciplinary Matters sets out the terms, conditions and processes to apply in respect of employees whose performance may be substandard or who may have breached discipline.  It is appropriate to set out all of the provisions of Part 5, which commences with Division 1 – General, Section 76 as follows;

“76. Application and effect of Part 5

(1) Subject to subsection (3), this Part applies to and in relation to — 

  (a) all public service officers and ministerial officers; and

(b) such other employees, or members of such other class of employees, as are or is prescribed for the purposes of this section.

(2) To the extent that this Part is inconsistent with any enactment which applies to — 

(a) an employee; or

(b) a member of a class of employees,

  prescribed under subsection (1)(b), this Part prevails.

(3) If the employing authority of an employee who is not a public service officer suspects that that employee has disobeyed or disregarded a direction which is by virtue of section 94(4) a lawful order for the purposes of section 80(a), that employee shall be taken for the purposes of this Part to be a public service officer, and proceedings may be taken accordingly under this Part against that employee for the suspected breach of discipline arising out of that disobedience or disregard.

77. Exercise of certain powers when employee is appointed by Governor

In the case of an employee in a department or organisation who is appointed by the Governor — 

(a) the powers conferred on an employing authority by this Part (other than the power to terminate the employment in the Public Sector of the employee) may be exercised for and on behalf of the Governor —

 (i) in the case of an employee who is a chief executive officer, by the Minister; or

(ii) in the case of an employee who is not a chief executive officer, by the employing authority of the department or organisation;

and

(b) the power to terminate the employment in the Public Sector of that employee (not being a chief executive officer) may be exercised by the Governor on the recommendation of the Minister of the Crown responsible for the department or organisation.

78. Rights of appeal and reference

(1) Subject to subsection (3) and to section 52, an employee who —

(a) is a Government officer within the meaning of section 80C of the Industrial Relations Act 1979; and

(b) is aggrieved by a decision made in the exercise of a power under section 79(3)(b) or (c) or (4), 82, 86(3)(b), (8)(a), (9)(b)(ii) or (10)(a), 87(3)(a), 88(1)(b)(ii) or 92(1),

may appeal against that decision to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.

(2) Despite section 29 of the Industrial Relations Act 1979, but subject to subsection (3), an employee who — 

(a) is not a Government officer within the meaning of section 80C of that Act; and

   (b) is aggrieved by a decision referred to in subsection (1)(b),

may refer the decision mentioned in paragraph (b) to the Industrial Commission as if that decision were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.

(3) Despite section 29 of the Industrial Relations Act 1979, but subject to section 52, an employee — 

(a) against whom proceedings have been taken under this Part for a suspected breach of discipline arising out of alleged disobedience to, or disregard of, a direction which is by virtue of section 94(4) a lawful order for the purposes of section 80(a); and

(b) who is aggrieved by a decision made in the exercise of a power under section 82, 86(3)(a), (8)(a), (9)(b)(i) or (10)(a), 87(3)(a) or 88(1)(b)(i),

may refer the decision referred to in paragraph (b) to the Industrial Commission as if that decision were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.

(4) In exercising its jurisdiction under subsection (3) in relation to a decision consisting of a lawful order referred to in section 94(4), the Industrial Commission shall confine itself to determining whether or not that decision has been, or is capable of having been, complied with.

Division 2 – Substandard performance

79. Employees whose performance is substandard

(1) For the purposes of this section, the performance of an employee is substandard if and only if the employee does not, in the performance of the functions that he or she is required to perform, attain or sustain a standard that a person may reasonably be expected to attain or sustain in the performance of those functions.

(2) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether or not the performance of an employee is substandard, regard —

   (a) shall be had —

(i) to any written selection criteria or job specifications applicable to;

 (ii) to any duty statement describing; and

(iii) to any written work standards or instructions relating to the manner of performance of,

the functions the employee is required to perform; and

 (b) may be had —

 (i) to any written selection criteria or job specifications applicable to;

 (ii) to any duty statement describing; and

  (iii) to any written work standards or instructions relating to the manner of performance of,

functions similar to those functions.

(3) Subject to subsections (4), (5) and (6), an employing authority may, in respect of one of its employees whose performance is in the opinion of the employing authority substandard for the purposes of this section —

(a) withhold for such period as the employing authority thinks fit an increment of remuneration otherwise payable to that employee;

(b) reduce the level of classification of that employee; or

(c) terminate the employment in the Public Sector of that employee.

(4) The Governor may, on the recommendation of the Minister of the Crown responsible for the relevant public sector body, terminate the employment in the Public Sector of an employee —

    (a) who was appointed to his or her employment by the Governor; and

(b) whose performance is in the opinion of his or her employing authority substandard for the purposes of this section.

 (5) If an employee does not admit to his or her employing authority that his or her performance is substandard for the purposes of this section, that employing authority shall, before forming the opinion that the performance of the employee is substandard for those purposes, cause an investigation to be held into whether or not the performance of the employee is substandard.

 (6) If an employee to whose performance this section is applied is a chief executive officer —

(a) the reference in subsection (4) to the Minister of the Crown responsible for the relevant public sector body shall be taken to be a reference to the Minister; and

(b) an investigation held under subsection (5) into whether or not the performance of the chief executive officer is substandard shall take the form of an assessment referred to in section 48(1)(d), and for that purpose section 48(1)(d) and (2) applies to and in relation to the chief executive officer as if references to non-recommendation of reappointment or to removal from office were references to termination of the employment in the Public Sector of the chief executive officer under subsection (4).

 Division 3 – Disciplinary matters

80.  Breaches of discipline

  An employee who —

(a)               disobeys or disregards a lawful order;

(b)               contravenes-

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

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

(c)               commits an act of misconduct;

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

(e)               commits an act of victimisation within the meaning of section 15 of the Public Interest Disclosure Act 2003,

commits a breach of discipline.

81. Procedure when breach of discipline suspected

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

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

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

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

the suspected breach of discipline in accordance with prescribed procedures.

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

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

82. Suspension without pay

(1) If an investigation is initiated under section 81, the employing authority may at any time before proceedings against the respondent are terminated within the meaning of subsection (2) suspend the respondent, if still its employee, without pay.

(2) When proceedings against a respondent for a suspected breach of discipline are terminated by 

(a) the taking of action under section 83 or 84 that is not cancelled under section 85, or the taking of action under section 86(3), 88(1) or 89; or

(b) a finding that no breach of discipline was committed by the respondent,

the employing authority shall terminate any suspension of the respondent without pay under subsection (1) and, if no breach of discipline has been found to have been committed by the respondent, restore to the respondent the pay of which the respondent has been deprived during the period of that suspension.

(3) An employing authority may, in relation to an employee who has been suspended without pay under subsection (1), on its own initiative or on the application of that employee restore pay to that employee for such period as the employing authority thinks fit.

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

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

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

(i) reprimand the respondent;

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

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

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

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

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

84. Powers of Minister as employing authority after investigation of alleged breach of discipline

(1) If, following the investigation of an alleged breach of discipline under section 81, a person directed under section 81(2)(b) to investigate that breach of discipline finds that 

(a) a minor breach of discipline was committed by the respondent, that person shall submit that finding to the Minister and recommend to the Minister that the Minister act in relation to the respondent in the manner referred to in section 83(1)(a)(i), (ii) or (iii);

(b) a serious breach of discipline appears to have been committed by the respondent, that person shall submit that finding to the Minister and recommend to the Minister that the Minister act in relation to the respondent in the manner referred to in section 83(1)(b) as if the Minister were the relevant employing authority referred to in that section; or

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

(2) On receiving a finding and recommendation made under subsection (1), the Minister shall

(a) accept that finding; and

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

(i) subsection (1)(a), may accept that recommendation and act accordingly in relation to the respondent, or decline to accept that recommendation and take such other action in relation to the respondent as could have been recommended under that subsection; or

(ii) subsection (1)(b) or (c), shall accept that recommendation and act accordingly in relation to the respondent.

(3) For the purposes of subsection (1), a breach of discipline committed as a result of disobedience to, or disregard of, a lawful order referred to in section 94(4) is a serious breach of discipline.

85. Procedure if respondent objects to certain findings or actions

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

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

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

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

86. Procedure when charge of breach of discipline brought

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

(a) be in writing;

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

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

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

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

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

(b) may 

(i) reprimand the respondent;

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

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

(iv) reduce the monetary remuneration of the respondent;

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

(vi) dismiss the respondent,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) accept the finding; and

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

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

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

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

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

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

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

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

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

(13) In this section 

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

disciplinary inquiry means disciplinary inquiry held or directed to be held under subsection (4)(a).

87. Special disciplinary inquiries

(1) The provisions of sections 12 and 13 apply to and in relation to a person holding a special disciplinary inquiry as if references in those sections and Schedule 3 to a special inquirer and to a special inquiry were references to that person and to the special disciplinary inquiry, respectively.

(2) Without limiting the generality of subsection (1), a person holding a special disciplinary inquiry may have regard to any information elicited, or findings made, in another special disciplinary inquiry, in a special inquiry or in an investigation held under section 24.

(3) If a person holding a special disciplinary inquiry finds at the conclusion of the special disciplinary inquiry that 

(a) a breach of discipline was committed by the respondent, that person shall submit that finding to the employing authority and recommend to the employing authority that it act in relation to the respondent under section 86(3) as if the respondent had admitted the charge under section 86(2); or

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

88. Procedure on receipt of finding and recommendation from special disciplinary inquiry

(1) On receiving a finding and recommendation made under section 87(3), the employing authority shall, subject to section 89 

(a) accept that finding; and

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

(i) section 87(3)(a) in relation to a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent;

(ii) section 87(3)(a) in relation to a charge other than a charge referred to in subparagraph (i), accept that recommendation and act accordingly in relation to the respondent, or decline to accept that recommendation and take such other action in relation to the respondent as could have been recommended under that section; or

(iii) section 87(3)(b), accept that recommendation and act accordingly in relation to the respondent.

(2) The Minister shall, if he or she, whilst acting in his or her capacity as an employing authority, declines under subsection (1)(b)(ii) to accept a recommendation and takes other action in relation to the respondent, cause notice of that fact and of the taking of that other action to be published in the Gazette as soon as practicable.

89. Dismissal of chief executive officer on disciplinary grounds

(1) If 

(a) a respondent who is a chief executive officer 

(i) admits a charge under section 86(2); or

(ii) is the subject of a recommendation made under section 87(3)(a);

and

(b) the relevant charge is a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4),

the Minister shall, in his or her capacity as the employing authority of the respondent, recommend to the Governor that the respondent be dismissed and the Governor shall dismiss the respondent.

(2) If 

(a) a respondent who is a chief executive officer 

(i) admits a charge under section 86(2); or

(ii) is the subject of a recommendation made under section 87(3)(a);

and

(b) the relevant charge is a charge other than a charge referred to in subsection (1)(b); and

(c) the Minister, in his or her capacity as the employing authority of the respondent, considers that the respondent ought to be dismissed,

the Minister shall recommend to the Governor that the respondent be dismissed and the Governor may dismiss the respondent.

90. Employing authority to notify respondents of outcomes of disciplinary proceedings against them

The employing authority of a respondent shall notify the respondent 

(a) whether or not the respondent has been found under this Division to have committed any breach of discipline alleged against him or her; and

(b) if such a finding has been made against the respondent, what action has been taken under this Division in relation to the respondent,

within the prescribed period after the making of that finding or the taking of that action, as the case requires.

91. Payment of fines

When a fine is imposed on a respondent under this Division, the respondent shall forthwith pay the amount of the fine to the Treasurer of the State and, if the respondent does not do so, that amount may be recovered in a court of competent jurisdiction at the suit of the Treasurer of the State as a civil debt owing to the Crown.

92. Powers of employing authorities in respect of certain offences committed by employees

(1) Notwithstanding the provisions of The Criminal Code, if an employee during his or her period of service is convicted 

(a) on indictment or otherwise, of an indictable offence; or

(b) of such other offence as is prescribed or of an offence of such class of offence as is prescribed,

the employing authority of the employee may, in addition to any action or penalty ordered by a court in respect of that offence, take action in relation to the employee under either or both of subparagraphs (i) and (ii), or under subparagraph (vi), of section 86(3)(b) as if the employee had been a respondent and had admitted a charge under section 86(2).

(2) An employing authority 

(a) which takes action in relation to an employee under subsection (1) shall make a record, and notify the employee, of that action and of its reasons for having taken that action; or

(b) which, although empowered by subsection (1) to take action in relation to an employee, decides not to take any such action, shall make a record, and notify the employee, of that decision and of its reasons for having made that decision,

within the prescribed period after the taking of that action or the making of that decision, as the case requires.”

22            The terminology used to identify those persons or parties involved in substandard performance and disciplinary processes within Part 5 of the PSM Act is significant. Part 5 - Substandard performance and disciplinary matters, Division 1 - General, sets out those processes.  It is helpful in examining the terminology in relation to those persons or parties referred to to set out how the parties are identified, and their roles according to the legislation.

23            Section 76 - Application and effect of Part 5 sets out that:

1. Part 5 applies to all public service officers, ministerial officers and other employees or members of certain other classes of employees as prescribed.  For convenience, I will refer to this group of officers and employees as employees.

2. An employee of an employing authority who is not a public service officer, but who is suspected of disobeying or disregarding a lawful order is to be taken to be a public service officer for the purposes of the disciplinary process.  The disciplinary process is then set out in Part 5 of the Act.

24            Section 77 - Exercise of certain powers when employee is appointed by Governor, prescribes who may exercise particular powers in respect of employees appointed by the Governor.

25            Section 78 - Rights of appeal and reference prescribes rights of appeal for an employee according to whether the employee is a Government officer or not.  It makes no reference to a person.  The right of appeal is to the Industrial Commission constituted by the Public Service Appeal Board (s 78(1)) and the Industrial Commission (s 78(2), (3) and (4)).

26            Division 2 - Substandard Performance comprises Section 79 - Employees whose performance is substandard.  This section is quite different in its approach compared with that taken later in respect of breaches of discipline in that while it sets out the matters to be considered in respect of substandard performance, it does not prescribe a process for the appointment or direction of a person to investigate, appraise or make recommendations to the employing authority.  However the terminology used to describe the person whose performance may be substandard is not entirely consistent with that used later in respect of the disciplinary process. Subsection (1) refers to “the performance of an employee” and “if the employee”, and refers to the standard of performance “that a person may reasonably be expected to attain…” rather than that which “an employee may reasonably be expected to attain (emphasis added)”.

27            Subsection (2) refers to the “performance of an employee”, and “the functions the employee is required to perform”.

28            Subsection (3) sets out the penalties “an employing authority may (impose), in respect of one of its employees” whose performance is substandard and refers to that employee.

29            Subsections (4), (5) and (6) deal with the process of recommendation of the Minister and what the Governor may do in response to that recommendation in respect of an employee and the employee.

30            Subsection (5) says that if the employee does not admit the substandard performance the employing authority shall “cause an investigation to be held” but does not say by whom.  Section 79 also deals with what the Governor on the recommendation of the Minister may do in respect of certain types of employees (s 79(4)), and how an employee who is an executive officer may be subject to a substandard performance process (s 79(6)).

31            Division 3 – Disciplinary matters includes ss 80-92. Section 80 – Breaches of Discipline says that an employee who does certain things “commits a breach of discipline.”

32            Section 81 – Procedure when breach of discipline is suspected, subs (1) refers to a person being suspected of a breach of discipline “whilst serving as an employee”. The person is to be given notice in writing of the nature of the breach, and the person is to be given a reasonable opportunity to respond.

33            Subsection (2) introduces two new aspects.  The first is that the employee referred in ss 76 - 80, and a person/the person referred to in s 81(1) is now referred to as the respondent.  From this section on until s 92, the employee continues to be the respondent, although it is noted that:

a) in s 82(1) there is also reference to the respondent “if still its employee”; and

b) in s 82(3) and 86(3), the respondent is referred to as an employee.

c) in Section 92 – Powers of employing authorities in respect of certain offences committed by employees there is reference to “an employee, during his of her period of service”, the employee and an employee.

34            The second aspect of s 81(2) is the introduction of a person who is directed to investigate. For the purposes of this matter this is a significant issue.

35            Subsection (2) provides for the employing authority, if not the Minister, to investigate or “direct another person” to investigate (s 81(2)(a)); or if the Minister, to “direct another person to investigate” (s 81(2)(b)).

36            Subsection (3) provides that “a person to whom a direction is given under subs (2) shall comply with that direction.”

37            In Section 83 – Powers of employing authority other than Minister after investigation of alleged breach of discipline, subs (1), refers to the “investigation … of a person directed under s 81(2)(a)”.

38            Section 84 – Powers of Minister as employing authority after investigation of alleged breach of discipline deals with the findings and recommendations of “a person directed under s 81(2)(b) to investigate”, and to “that person”, and what the employing authority, being the Minister, may do in respect of those findings and recommendations.

39            This examination of the terminology used clearly shows that particularly in respect of the substandard performance and breach of discipline processes, the PSM Act uses the terms “person”, “employee”, and “respondent” when referring to the person who is the subject of either of those processes.  It uses the term “person” when referring to someone who is directed to undertake an investigation, inquiry or special inquiry.

Does the PSM Act Specify who may conduct any investigation or inquiry?

40            Sections 81 and 86 of the PSM Act simply say that the employing authority may investigate or direct another person to investigate, or hold or direct a person to hold a disciplinary inquiry, and that the person to whom such a direction to investigate is given shall comply with that direction.  It also says that such a direction shall not be given to the Commissioner.  The Commissioner means the Commissioner for Public Sector Standards (s 3(1)).  Therefore the only person who is specifically excluded from receiving the direction to investigate is the Commissioner for Public Sector Standards.

41            Is there a requirement that the person is to be an employee?

42            “Person” is not defined in the PSM Act.  The Interpretation Act 1984 defines “person” as “any word or expression descriptive of a person includes a public body, company, or association or body of persons, corporate or unincorporate”.

43            An examination of the provisions of the PSM Act indicates that the reference to an employee contained within Part 5 – Substandard Employment and Disciplinary Matters is reference to the person who is the subject of a substandard performance or disciplinary process as an employee and later is referred to as the respondent (s 81(2)), that is, the employee who is alleged to have a substandard performance or to have breached discipline.  All other references to person relate to the person to whom the direction is given to investigate or inquire or to the standard of performance which a person might reasonably be expected to attain.  It is quite clear from the use of the terms employee and person that they are not synonymous for the purposes of the processes under Part 5 of the PSM Act.

44            It is useful also to note that Section 11 – Minister may direct holding of special inquiry, as with ss 81(2)(a), 83(1) and 86(4)(a), refer to a person, in this case being a “suitably qualified person”, being directed to hold a special inquiry.

45            Taken in context, the reference within s 76 to Part 5 applying to and in relation to public service officers and other employees ought to be seen as applying to those employees in regard to the alleged substandard performance or alleged breach of discipline by those employees (underlining added).  This is consistent with the context and the purpose of the PSM Act, and in particular Part 5.  Part 5 imposes particular responsibilities and processes on the employing authority, the Minister and other “persons”, however its purpose is to deal with the alleged substandard performance and those breaches of discipline by those employees as part of the “management of Public Service and other public sector employment” (long title of the PSM Act).  This is confirmed by Part 5 containing reference to, and powers and responsibilities being imposed upon, bodies and persons who are not employees.  For example, certain powers are to be exercised by or on behalf of the Governor and by the Minister (ss 77, 79 and others).  While the Governor and the Minister may be employing authorities to certain classes of employees, they are not themselves employees.

46            Part 5 also has application to the jurisdiction of the “Industrial Commission constituted by the Public Service Appeal Board” and “the Industrial Commission” (s 78).  Likewise these bodies are not employees.

47            Therefore, whilst s 76 says that it applies to employees, for the purposes of s 76, the application of Part 5 to those employees is for the purpose of those employees being the subject of substandard performance or breach of discipline allegations.  Reference to other persons who are not such employees is for that purpose.  It is in that context that Part 5 applies to those named types of employees and does not mean that any other person or body referred to within that Part is or must be an employee.

48            Accordingly, the Appellant’s submission that Part 5 ought to be read as requiring the investigator or enquirer to be an employee is not sustained by the scheme of legislation. As the Respondent said, had the intention of the legislation been that only a public service officer, ministerial officer, or employee or member of a class of employee can be subject to such a direction to investigate or enquire then it would have been quite simple to have specified this condition.  This is particularly so given the exclusion which has been specified of the Commissioner for Public Sector Standards.

49            Further, given the definition of person in accordance with the Interpretation Act 1984, one can see why the term person has been used to describe someone directed by the employing authority to undertake the investigation or the inquiry.  That definition enables the employing authority to direct all manner of individuals or organisations for the purpose of having the investigation or inquiry undertaken.  The same term person is used in s 11 by which the Minister may direct a “suitably qualified person” to hold a special inquiry, yet that section is not limited in its application to employees as is Part 5.

50            The only question which might arise in that regard is the use of the terms “direct” and “direction” in ss 81(2), (3) and (4) and those terms as they are used further throughout the process.  The Macquarie Dictionary, third edition defines “direct” as:

“1.  to guide with advice; regulate the course of; conduct; manage; control. 2.  to give authoritative instructions to; command; order or ordain (something): I directed him to do it, or that he do it … 5.  to point or aim towards a place or an object; cause to move, act, or work towards a certain object or end … 9.  to give commands or orders ..."

and “direction” as:

“1.  the act of directing, pointing, aiming, etc … 5.  guidance; instruction. 6.  order; command. 7.  management; control …”

51            Some aspects of those definitions would require that the “person” be able to be subject to an authoritative order or command of the employing authority.  This would appear to be inconsistent with engaging someone other than an employee to undertake work however this matter was not argued before me and I draw no conclusions as to it.

The Security and Related Activities (Control) Act 1996

52            One other issue which was raised by the Appellant was the application of the SRA(C) Act.  The Appellant says that the person carrying out the investigation is subject to that Act which establishes a registration and conduct regime for investigators.

53            Section 27 of the SRA(C) Act defines an “inquiry agent” as being “a person who supplies the services of investigators”.

54            Section 28 - Definition of “investigator” provides:

“(1) An investigator is a person who for remuneration conducts –

(a) investigations into the conduct of individuals or bodies corporate or the character of individuals;

(b) surveillance work in relation to the matters referred to in paragraph (a); or

(c) investigations concerning missing persons.

(2) Investigations carried out by the following persons are not within paragraph (a) of the definition in subsection (1) —

…

(e) any other prescribed person, or person belonging to a prescribed class of persons, while acting in any prescribed circumstances.”

55            Regulation 13A - Definition of “Investigator” (section 28) of the Security and Related Activities (Control) Regulations 1997 specifies “persons and circumstances (which) are prescribed under section 28(2)(e)” as including:

              “(c) a person directed under section 81 of the Public Sector Management Act 1994 to conduct an investigation, while acting in the ordinary course of that investigation;

(d) a person directed under section 86 of the Public Sector Management Act 1994 to hold a disciplinary inquiry, or a special disciplinary inquiry, while acting in the ordinary course of that inquiry;”

56            Therefore, while Mr Ledger and Mr Dodd were conducting an investigation or inquiry as directed under s 81 and s 86 respectively of the PSM Act they were not investigators for the purposes of the SRA(C) Act as they are excluded from the definition of investigator under that Act.

Conclusions

57            The PSM Act prescribes a disciplinary process which enables the employing authority to direct a person to undertake an investigation, and subsequently, a person to undertake an inquiry.  The meaning to be applied to the term “person” in that context is not limited by the legislation to be a public service officer, ministerial officer, employee or member of a prescribed class of employees.  The scheme of the PSM Act in respect of Part 5 does not therefore require the employing authority to direct only an employee to undertake the investigation or disciplinary inquiry.  The reference in s 76(1) to Part 5 applying to employees is to be read as meaning that the substandard and disciplinary processes set out in Part 5 apply to employees whose performance may be substandard or who may have breached discipline.  That neither Mr Ledger nor Mr Dodd are employees within the meaning of that term in the PSM Act does not invalidate the directions given to them by the employing authority pursuant to the PSM Act.  Accordingly the Respondent’s decision to not withdraw the charge made against the Appellant and to continue with the disciplinary process pursuant to Part 5 of the PSM Act is not in error.  There is no basis for concluding that there was an erroneous interpretation of the PSM Act involved in the appointment of Mr Ledger or Mr Dodd such as to mean that their appointments were beyond power.  Therefore the appeal ought to be dismissed.

MR D VOLARIC

58            I have read the reasons for decision of the Chairman.  I agree with those reasons and have nothing to add.

MR K TRENT

59            I have read the reasons for decision of the Chairman.  I agree with those reasons and have nothing to add.