2008 WAIRC 00215

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2008 WAIRC 00215

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER S WOOD

HEARD
:
MONDAY, 11 FEBRUARY 2008

DELIVERED : THURSDAY, 10 APRIL 2008

FILE NO. : FBA 21 OF 2007

BETWEEN
:
HEALTH SERVICES UNION OF WESTERN AUSTRALIA (UNION OF WORKERS)
Appellant

AND

DIRECTOR GENERAL OF HEALTH IN RIGHT OF THE MINISTER FOR HEALTH AS THE METROPOLITAN HEALTH SERVICE, THE SOUTH WEST HEALTH BOARD AND THE WA COUNTRY HEALTH SERVICE
Respondent

ON APPEAL FROM:

JURISDICTION : PUBLIC SERVICE ARBITRATOR
CORAM : COMMISSIONER P E SCOTT
CITATION : (2007) 87 WAIG 3120
FILE NO : PSACR 28 OF 2006

Catchwords:
Industrial Law (WA) – appeal against decision of the Public Service Arbitrator – procedural fairness – employee suspended on full pay for alleged misconduct then later suspended without pay when criminal charges to be laid – employer failed to afford opportunity to be heard

Meaning of s26(1)(a) that Arbitrator exercise jurisdiction “according to equity, good conscience and the substantial merits of the case” – relevance of legal principles of procedural fairness to Arbitrator’s jurisdiction.

‘Futility’ – test to be applied - whether affording an opportunity to be heard futile – ‘hardship’ - employee deferred making submissions to avoid jeopardising pending criminal charges – public interest - whether procedural unfairness ‘cured’ by arbitration.

Meaning of “void” in context of decisions upon employment status made pursuant to a statutory power – whether decision to suspend without pay void - nature of suspension of public sector employees.

Breach of procedural fairness and damages - appellant sought payment of past and future remuneration - Arbitrator not in a position to make orders for non-receipt of past remuneration – ‘no service no pay’ principle - basis for payment of past remuneration not made out – decision to suspend without pay nullified.

Legislation:
Hospitals and Health Services Act 1927 (WA) – s7

Industrial Relations Act 1979 (WA) – ss6, 7, 22A, 26(1)(a), 26(1)(c), 36, 46, 44(7), 44(9), 48(11), 49, 50A, 62(2), 62(3), 66, 73, 80C, 80D, 80E, 80G(1), 84.

Industrial Relations Commission Regulations 2005 – r31

Interpretation Act 1984 (WA) – s52(1)(a)

Minimum Conditions of Employment Act 1993 (WA)

Public Sector Management Act 1994 (WA) – ss9, 34, 76(1), 82

Result:
Appeal allowed

REPRESENTATION:
Counsel:
APPELLANT : MR T. BORGEEST, BY LEAVE
RESPONDENT : MR R. ANDRETICH, BY LEAVE

Solicitors:

Appellant : Slater & Gordon, Lawyers
Respondent : State Solicitor for Western Australia


Case(s) referred to in reasons:

Administration of the Territory Papua New Guinea v Daera Guba (1973) 130 CLR 353
Amalgamated Metal Workers and Shipwrights Union of Western Australia and Another v State Energy Commission of Western Australia (1979) 59 WAIG 494
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Balenzuela v De Gail (1959) 101 CLR 226
Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239
Bannister v Director General, Department of Corrective Services [2005] 1 Qd R 117
Birss v Secretary for Justice [1984] 1 NZLR 513
Browne v Commissioner of Railways (1935) 36 SR (NSW) 21
Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410
Calvin v Carr (1979) 1 NSWLR 1; [1980] AC 574
Chate v Commissioner of Police (1997) 76 IR 70
Chief Constable of North Wales Police v Evans (1982) 3 All ER 141
Chief Executive Officer, Department of Agriculture and Food v Wall & Ward (2008) 88 WAIG 156
Commissioner for Railways (NSW) v Cavanaugh (1935) 53 CLR 220
Concut Pty Ltd v Worrell (2000) 176 ALR 693
Coulton v Holcombe (1986) 162 CLR 1
Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587
Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 149 IR 160
Director-General, Department of Justice v Civil Service Association of Western Australia Inc (2003) 83 WAIG 908
The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) (2004) 85 WAIG 629
Dixon v Commonwealth of Australia (1981) 61 ALR 173
Dunlop v Woolahra Municipal Council [1982] AC 158
Eaton v Overland (2001) 67 ALD 671
Everingham v Director General of Education (1993) 31 ALD 741; (Unreported, FCSASC, 17 September 1993)
Featherston v Tully (2002) 83 SASR 302
Foong v Norfolk Island Hospital Enterprise (2002) 170 FLR 354
Gapes v Commercial Bank of Australia Ltd (1980) 37 ALR 20; 41 FLR 21
Garbett v Midland Brick [2003] WASCA 36
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Grady v Commissioner for Railways (NSW) (1935) 53 CLR 229
Griggs v Norris Group of Companies (2006) 94 SASR 126
Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 73 WAIG 220
Grundman v Repatriation Commission [2001] FCA 892; (2001) 66 ALD 125
Herron v McGregor (1986) 6 NSWLR 246 at 266
Hill v Green (1999) 48 NSWLR 161
House v King (1936) 55 CLR 499
Hunkin v Siebert (1934) 51 CLR 538
Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44
John v Rees [1970] Ch 345
Jones v National Coal Board [1957] 2 QB 55
Kioa v West (1985) 159 CLR 550
Lee v Naismith [1990] VR 235
Macksville and District Court Hospital v Mayze (1987) 10 NSWLR 708
Malloch v Aberdeen Corporation [1971] 1 WLR 1578
Matkevich v NSW Technical and Further Education Commissioner [No. 3] (Unreported, NSWCA, 2 February 1996, BC 9600084)
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; 223 ALR 171
Nicholson v Heaven and Earth Gallery (1994) 1 IRCR 199
Northern Territory v Mengel (1996) 185 CLR 307
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Queensland Police Credit Union Ltd v Criminal Justice Commission [2000] 1 Qd R 626
Re Ciffolilli; Ex parte Rogers [1999] WASCA 205
Re Kenner; ex parte Minister For Education [2003] WASCA 37
Re Martin; ex parte Dipane (2005) 30 WAR 164
Re Minister for Immigration and Multicultural Affairs ex parte Miah (2001) 206 CLR 57
Re Piper; Ex parte Meloney (1996) 63 IR 473
Re Refugee Tribunal; Ex parte AALA (2000) 204 CLR 82
Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 1199
Reid v Australian Institute of Marine and Power Engineers and Others (1990) 96 ALR 174
Ridge v Baldwin (1963) 2 All ER 63
SGIC v Johnson (1997) 77 WAIG 2169
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Santos Ltd v Saunders (1988) 49 SASR 556
Schmohl v Commonwealth of Australia (1983) 49 ACTR 24
Shire of Esperance v Peter Maxwell Mouritz (1991) 71 WAIG 891
Stead v State Government Insurance Commission (1986) 161 CLR 141
Sue v Hill and Another (1999) 199 CLR 462
Townsville City Council v Chief Executive, Department of Main Roads [2006] Qd R 77
Ucar v Nylex Products Pty Ltd [2007] VSCA 181
Wall v Windridge (1999) 1 Qd R 329
Wallwork v Fielding [1922] 2 KB 66
Welbourn v Australian Postal Commission [1984] VR 257




Reasons for Decision

RITTER AP:

Summary of Outcome
1 The paragraphs under this heading are published with the agreement of Beech CC and Wood C.
2 This appeal was against the dismissal, after a hearing, of the appellant’s application to the Public Service Arbitrator (the Arbitrator). The hearing was about the respondent’s decision to suspend without pay the respondent’s employee and the appellant’s member, Mr Michael Moodie.
3 Before the Arbitrator the appellant argued the respondent denied Mr Moodie procedural fairness in making the decision without giving him the opportunity to be heard. It was contended therefore that the decision was “void”, with the consequence that the respondent should be ordered to remunerate Mr Moodie for the period since the decision was made and until the making of any lawful decision to suspend without pay.
4 The Arbitrator decided it would have been “futile” to have provided Mr Moodie with an opportunity to be heard; and in any event the “merits” favoured suspension without pay.
5 Although each member of the Full Bench has written and will publish their own reasons, there is agreement that, with respect, the Arbitrator erred on the “futility issue” and was not then in a position to decide that the “merits” favoured the suspension of Mr Moodie without pay.
6 In our opinion the decision of the respondent ought to have been nullified by the Arbitrator with a direction that if the respondent again wished to decide whether to suspend Mr Moodie without pay, a reasonable opportunity should be given to him to be heard. Accordingly the appeal should be upheld and the decision of the Arbitrator varied so that these orders are now made.
7 We are not persuaded however, in part because of the way which the appellant conducted the hearing before the Arbitrator, that the Arbitrator would have been justified in making an order to redress the non receipt of past remuneration.
8 As we are of the opinion that the decision of the respondent to suspend Mr Moodie without pay should be nullified, a consequence is that the respondent and Mr Moodie will again be in the position which they were prior to the making of the impugned decision. This is that the respondent has made a decision to direct Mr Moodie to remain away from the workplace on “full pay” until otherwise determined by the respondent
9 A minute of proposed order has been published reflecting these joint opinions. The parties will then have the entitlement to “speak to” the minute. In our preliminary opinion this could be done by the parties providing any submissions they wish to make in writing within 14 days. If either party considers that some other procedure should be adopted, they can advise the Full Bench in writing of their position which the Full Bench will then consider.
10 The following represent my reasons for reaching these conclusions.


The Appeal
11 This is an appeal to the Full Bench pursuant to s49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision of the Arbitrator to dismiss the appellant’s application.

Leave to Appeal
12 The Notice of Appeal asserted leave to appeal is required under s49(2a) of the Act. In my opinion it is not. Section 49(2a) applies to an appeal against a “finding”. That word is defined in s7 of the Act to mean “a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate”. As the decision of the Arbitrator was to dismiss the application it did finally dispose of the proceedings and therefore leave is not required. The respondent did not contend otherwise.

The Statutory Setting
13 Before discussing the procedural background and facts, I will set out and briefly comment upon the jurisdiction of the Arbitrator. I will later analyse it in more detail.
14 The Arbitrator’s jurisdiction is established by ss80C-80L of the Act, within Division 2 of Part IIA. The Arbitrator is defined in s80C(1) to mean “the Commission constituted by a public service arbitrator appointed under this Division”. Section 80D is about the appointment of a member or members of the Commission as Arbitrators. Section 80E sets out the jurisdiction of the Arbitrator. The general jurisdiction of the Arbitrator is contained in s80E(1) which is as follows:
“(1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally.”

15 Section 80E(2) describes jurisdiction which is included within the general description in s80E(1), but it is not necessary to discuss it in this appeal. There are three qualifications to the general jurisdiction of the Arbitrator which are specified in s80E(1) of the Act. The first is what is contained in Division 3 of Part II. This is about general orders by the Commission. Secondly s80E(6) is about the referral by the Arbitrator of an industrial matter to the Commission in Court Session or a question of law to the Full Bench. Thirdly s80E(7) provides the Arbitrator does not have jurisdiction to enquire into, deal with or refer “any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act”. None of these three qualifications are relevant to the appeal.
16 Section 80E(5) of the Act is also a qualification to the jurisdiction of the Arbitrator, but it is relevant to the appeal. It provides:
“(5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.”

17 Section 80E(5) distinguishes between the “exercise” by an employer of a “power in relation to any matter” and an “act, matter or thing done by an employer in relation” to the “matter”. It is only in the latter circumstances that the Arbitrator has powers to review, modify, nullify or vary. Section 80E does not however set out the criteria or basis upon which the Arbitrator is to decide whether to take one of these four actions.
18 Section 80F is about by whom matters may be referred to the Arbitrator. That is not an issue in this appeal.
19 Section 80G(1) of the Act is relevant to the appeal and provides:
“80G. Provisions of Part II Division 2 to apply
(1) Subject to this Division, the provisions of Part II Divisions 2 to 2G that apply to or in relation to the exercise of the jurisdiction of the Commission constituted by a commissioner shall apply with such modifications as are prescribed and such other modifications as may be necessary or appropriate, to the exercise by an Arbitrator of his jurisdiction under this Act.”

20 Part II of the Act is about the Commission. Divisions 2-2G are comprised by ss22A-49O of the Act. The general jurisdiction and powers of the Commission comprises ss22A-36 of the Act. In its recent decision in Chief Executive Officer, Department of Agriculture and Food v Wall & Ward (2008) 88 WAIG 156 the Full Bench discussed the interaction between the jurisdiction of the Arbitrator and the general jurisdiction of the Commission. For present purposes it is sufficient to note that s80G(1) has the effect that generally, in the interaction, the contents of Division 2 of Part IIA have primacy. This arises from the use of the expression “[s]ubject to this Division” in s80G(1). Within that limitation the provisions of Part II, Divisions 2-2G that apply to or in relation to the exercise of the general jurisdiction of the Commission apply to the exercise of the Arbitrator’s jurisdiction. There are no prescribed modifications as contemplated by s80G(1).
21 Section 26(1) of the Act is relevant to the present appeal. This is a section which applies, in the words of s80G(1), “in relation to the exercise of the jurisdiction of the Commission”. It therefore applies to the Arbitrator’s jurisdiction. Section 26(1) provides:
“(1) In the exercise of its jurisdiction under this Act the Commission — 
(a) shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms;
(b) shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just;
(c) shall have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and
(d) shall take into consideration to the extent that it is relevant — 
(i) the state of the national economy;
(ii) the state of the economy of Western Australia;
(iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment;
(iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;
(v) any changes in productivity that have occurred or are likely to occur;
(vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;
(vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.”

22 Division 2C of Part II of the Act is about the “Holding of compulsory conferences”. In the present case, the appellant, as an organisation registered under the Act, exercised its entitlement under s44(7) to apply to the Commission for a compulsory conciliation conference. A conference was held but it did not resolve the whole of the dispute. Section 44(9) provides, in such circumstances:
“(9) Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.”

23 The way in which this jurisdiction proceeds is set out in regulation 31 of the Industrial Relations Commission Regulations 2005 (the Regulations). This provides:
“31. Memorandum following compulsory conference
Where at the conclusion of a conference under section 44 of the Act a matter is to be heard and determined by the Commission, the Commission is to draw up or cause to be drawn up and sign, a memorandum of the matter requiring hearing and determination and for that purpose may direct parties to file statements of claim, answers, counter-proposals and replies in such manner and within such time as the Commission sees fit.”


Facts and Proceedings
24 It is necessary in my opinion to discuss the facts and proceedings in some detail. This is because the appeal, to a significant degree, turns upon on the facts and the basis upon which the proceedings at first instance were conducted. To set the scene however I will first provide a factual overview.

Factual Overview
25 As I have said, the appellant is a registered organisation under the Act. Mr Michael Moodie is a member of the appellant. From 28 November 2005 he has been the Executive Director, Technology, of the South West Area Health Service. The respondent is the employing authority with responsibility for Mr Moodie. As I will set out in more detail later, from 7 July 2006 the respondent suspended Mr Moodie from duty with pay, because of serious allegations which were to be investigated. A Mr Hodkinson was engaged by the respondent to inquire into and prepare a report about the allegations. A copy of his report, dated 29 September 2006, was provided to Mr Moodie’s solicitors with an accompanying letter on 6 October 2006. The letter said Mr Moodie had an opportunity to respond to the report. On 19 October 2006 Mr Moodie’s solicitors wrote to the respondent to request that he not be required to respond to the report within the requested time. This was because Mr Moodie was to be charged with parallel criminal offences by the Corruption and Crime Commission of Western Australia (the CCC). On 20 October 2006 the respondent said in writing that given Mr Moodie was to be charged, he was now suspended from duty without pay.

The Application
26 After this letter was received, but on the same date, the appellant filed an application to the Arbitrator for a conciliation conference pursuant to s44 of the Act. Schedule A to the application set out the grounds and reasons for the application. Relevantly the application said:
(a) The appellant was in dispute with the respondent about allegations made against Mr Moodie.
(b) There was concern about a lack of procedural fairness, the manner and nature of the investigation into allegations, the failure of the respondent to provide adequate time to respond, the failure of the respondent to provide adequate access to records and other materials necessary to be able to adequately respond to the allegations within the time permitted, the “request for Mr Moodie to be on paid leave for an extensive period”, the failure of the respondent to make contact with Mr Moodie and the failure of the respondent to use the usual or normal administrative policies in an attempt to resolve the issues in question.
(c) The activities of a “third party” were complicating the endeavours of the appellant and Mr Moodie to resolve the dispute and made it inappropriate for the respondent to continue its present course of action requiring Mr Moodie to respond to allegations.
(d) Any determination arising from the respondent’s course of action would generate publicity and make it difficult for the respondent to make a proper determination and if the determination were adverse to Mr Moodie it would “inevitably prejudice our member’s ability to be dealt with fairly in other jurisdictions”.
(e) The approach taken by the respondent was detrimental to Mr Moodie and should not become a precedent.
(f) Other issues might arise in the course of the conference.

27 At the end of Schedule A the relief sought was set out. In summary this was:
(a) An order that the respondent cease taking the current course of action.
(b) An extension of time from 24 October 2004 [sic – 2006] to respond to the allegations.
(c) The opportunity for the appellant and Mr Moodie to have direct dialogue with a senior representative of the respondent.
(d) Copies of relevant documents and materials.

The Conciliation Conference
28 The s44 conference did not entirely resolve the dispute, although on 23 October 2006 the respondent did undertake that it would not continue with the disciplinary action against Mr Moodie pending the determination of the criminal charges. The decision to suspend without pay remained. It is that decision which then became the focus of proceedings.

The Memorandum of Matters
29 A Memorandum of the Matters requiring hearing and determination was drawn up pursuant to regulation 31 of the Regulations (the Memorandum).
30 The Memorandum was as follows:
“1. The Applicant says that:
(a) The Applicant is an organisation registered under the provisions of the Industrial Relations Act 1979 (WA).
(b) Mr Moodie is a member of the Applicant and an employee of the Respondent.
(c) Mr Moodie is the subject of an internal disciplinary investigation. He was stood down from his duties, on full pay, with effect on or about 7 July 2006.
(d) In late October 2006, the respondent was informed that the Corruption and Crime Commission (“CCC”) had expressed its intention to charge Mr Moodie with a criminal offence/s in connection with matters under the internal disciplinary investigation.
(e) On or about 20 October 2006, the respondent suspended Mr Moodie’s salary. He has received no salary since this time.
(f) On or about 15 January 2007, the respondent wrote to Mr Moodie’s solicitors notifying that the employer required the packaged motor vehicle be returned to the employer within 30 days. Mr Moodie returned the motor vehicle in accordance with the employer’s demand.
2. The Applicant seeks orders and declaration as follows:
(a) A declaration that the 20 October 2006 decision by the respondent to suspend payment of Mr Moodie’s remuneration is void and of no effect.
(b) Orders that the Respondent:
(i) resume Mr Moodie’s salary with immediate effect;
(ii) reimburse Mr Moodie the amount that he would have received had his salary not been suspended, within 10 working days;
(iii) return the packaged motor vehicle to Mr Moodie;
(iv) reimburse Mr Moodie the cash value of the private use of the packaged motor vehicle for the period over which the vehicle was required to be returned; and
(v) restore and pay any other elements of Mr Moodie’s remuneration which was “suspended” in accordance with the contract of employment.
(c) A direction that the parties confer as to the calculation of reimbursements provided for under the abovementioned orders, with liberty to apply if agreement cannot be reached.
3. The Respondent rejects the Applicant’s claims and says that:
(a) On 19 October 2006, Mr Moodie’s solicitors advised that the CCC had charged Mr Moodie in connection with the internal disciplinary investigation and requested that the disciplinary matter be deferred pending the outcome of the criminal proceedings.
(b) The respondent agreed to defer the investigation on 23 October 2006, despite it being complete but for Mr Moodie’s response.
(c) It was reasonable for the respondent to suspend Mr Moodie, pursuant to s 52(1)(a) of the Interpretation Act 1984 (WA), without pay.
(d) Mr Moodie’s remuneration included a motor vehicle to which he was not entitled during the abovementioned period of suspension.
4. The Respondent denies that the Applicant is entitled to the relief sought or any relief at all and opposes the orders sought as:
(a) there was a clear statutory basis upon which the respondent acted;
(b) it would be unreasonable and not in the public interest for Mr Moodie’s suspension to be set aside; and
(c) there is no right of remuneration where services have not been rendered and the circumstances are not such that this principle should not be observed.”

The Hearing - Sources of Factual Information
31 The hearing of the matters requiring determination took place on 28 June 2007. A Statement of Agreed Facts and Documents (the Statement) was filed on 26 June 2007. The Statement said it was “not intended to limit either party’s entitlement to lead further evidence”. The Statement was received as exhibit 1 at the hearing. This was the only evidence adduced by the appellant.
32 The respondent called Mr Shane Wilson to give evidence. Mr Wilson was the Director of Corporate Governance at the Department of Health (the Department). It is not necessary to consider his evidence at any length. Mr Wilson’s evidence in chief was not lengthy and he was not extensively cross-examined. Some documents were tendered through Mr Wilson. After Mr Wilson’s evidence the respondent also tendered some other documents which were received as exhibits.
33 The sources of the factual information before the Arbitrator were therefore:
(a) The facts contained in the numbered paragraphs of the Statement.
(b) The documents included in the Statement.
(c) The evidence given by Mr Wilson.
(d) Additional documents referred to by Mr Wilson and received as exhibits.
(e) Additional documents referred to by the respondent’s counsel and received as exhibits.

34 I will try to summarize the facts before the Arbitrator from the combination of these 5 sources. In what follows below, I have quoted in full the numbered paragraphs of the Statement, except for the reference to certain documents being attached to it. I have added, in chronological sequence, a summary of the documents included or referred to in the Statement or otherwise received as exhibits, as well as relevant evidence from Mr Wilson.

The Facts
35 The first four paragraphs of the Statement were:
“1. The Applicant is an organisation registered under the provisions of the Industrial Relations Act 1979.
2. The Minister for Health is incorporated as the board of all the Hospitals comprised in South West Health Board under s 7 of the Hospitals and Health Services Act 1927 (WA) and has delegated all his powers and duties as such to the Director General of Health.
3. On 11 December 2003 Michael Moodie executed a Contract of employment with the then Director General of the Department of Health. The contract was executed on behalf of Director General by his delegate.
4. On 28 November 2005 Moodie and the Director General executed a document which varied the terms of the 11 December 2003 Contract. The variation effectively transferred Moodie from the position of CEO SWAHS to a position entitled Executive Director, Technology.”

36 The Statement included copies of the covering letter, contract and contract variation referred to in paragraphs 3 and 4 respectively.
37 Mr Wilson said his responsibility was to advise the respondent about audit risk management, accountability and discipline. He had been the overseer of the disciplinary process against Mr Moodie commencing in May 2006 (T3, 5). On 26 May 2006 there was a request to review Mr Moodie’s conduct. This lead to a letter being sent from the respondent to Mr Moodie dated 7 July 2006. Mr Wilson said the CCC were also advised of these matters of “necessity” (T5).
38 The schedules to the contract of employment between the Minister for Health and Mr Moodie and the job description for the Chief Executive, South West Health (Mr Moodie’s previous position) were identified by Mr Wilson and received as exhibits.
39 In cross-examination Mr Wilson said the Department of Health was required by a notice from the CCC to provide a range of documents relating to the expenditures claimed by Mr Moodie. Mr Wilson supervised this process. Mr Wilson said the CCC later referred matters back to the Department for further investigation.
40 Paragraph 5 of the Statement was:
“5. By letter to Mr Moodie dated 7 July 2006, the Director General raised allegations of matters that, he said, “could, if proven, constitute serious breaches of discipline and gross misconduct by you”. Five issues were identified. Mr Moodie was directed to remain away from the workplace, to return certain Department property, and to not communicate with employees of the Department or of any Health Service. The Director General stated that “you will remain on full pay during this absence until otherwise determined by me.”

41 A copy of the letter dated 7 July 2006 was included in the Statement. The first of the 5 allegations set out in the letter was the only one which later retained relevance. This was an allegation that:
“between January 2005 and July 2005, you submitted to South West Area Health Service (SWAHS) documentation that you knew to be false in relation to claims for reimbursement for accommodation at the ‘Maylands Bed and Breakfast’, when such a business does not exist and the address provided for on the falsified document is that of a private resident that you are leasing. This documentation resulted in the payment of monies to you which you were not entitled.”

42 The letter said Mr Moodie was to “leave the workplace immediately. You are to remain away from the workplace until I direct you to return. You will remain on full pay during this absence until otherwise determined”. A response to the allegations was requested within 5 working days.
43 Paragraph 6 of the Statement was:
“6. Moodie’s solicitors (Tottle Partners) responded to the allegations by letter on 11 July 2006. Among other things, particulars of the allegations were requested.”

44 A copy of the letter dated 11 July 2006 was included in the Statement. The letter complained about the way in which Mr Moodie had been treated at the time he was suspended. The letter asserted the respondent deliberately created “the impression of guilt”. The letter implied the respondent had been unfair in not earlier advising Mr Moodie that allegations 1 and 2 had been referred to the CCC. As mentioned in the Statement the letter also sought particularisation of the allegations and “discovery” of four categories of documents.
45 Tottle Partners also sent letters to the respondent dated 25 and 27 July 2006. Copies of these letters were neither included in the Statement nor received as exhibits at the hearing. Part of their contents is quoted in the report of Mr Hodkinson, from which the following is taken (report pages 27-29). The letter from Tottle Partners dated 25 July 2006 said:
“It remains impossible for our client to make any constructive observation on the suspicions referred to in paragraph 2 of your letter of 7 July 2006. It would appear to us, however, that those suspicions proceed on the false premise that our client submitted claims personally and with knowledge that they exceeded his entitlements. This was not the case. Our client’s practice was to provide Mr. Peter Duncan, a senior finance officer within SWAHS with his receipts and associated documentation and Mr. Duncan made claims on his behalf. Our client’s recollection is that he did not sign any formal claim form in respect of these expenses.”

46 The letter then referred to “the suspicions referred to in paragraph 1 of your letter of 7 July 2006”. The letter said the “gravamen of these suspicions” was that Mr Moodie “set out between January and July 2005 to defraud the Department”. The letter said this was “manifestly untenable because, apart from other reasons, on 24 February 2005 our client send (sic) an email in the following terms to Mr. Duncan of SWAHS …”. The terms of the email were then set out. The letter referred to a series of communications between Mr Moodie and Mr Duncan which were asserted to have “clearly disclosed on more that (sic) one occasion that the invoices that accompanied his travel claims were in respect of his leased accommodation”. The letter said Mr Moodie accepted some of his actions were “ill advised” but there was “no question of dishonesty”. The letter also said the arrangements outlined in the email to Mr Duncan saved “the Department money when compared to the most costly alternative of staying in hotel accommodation”.
47 The letter from Tottle Partners to the respondent dated 27 July 2006 referred to Operations Circular No OP/1597/02 (the Circular). The letter said the Circular was headed “Travel Expenses – Claimable rates and guidelines” and set out entitlements to travel and accommodation expenses for Department of Health employees. The letter referred to the entitlements which it was asserted Mr Moodie had in accordance with the Circular. The letter set out calculations based upon what Mr Moodie had been entitled to claim. It asserted that what had been claimed by Mr Moodie was less than this. It was then submitted “in our respectful view” that there was “no question of our client having acting dishonestly but no question of our client having been paid monies to which he was not entitled” [sic].
48 Paragraph 7 of the Statement was:
“7. The Director General responded to the letter of 11 July 2006 and other associated correspondence by letter on 31 July 2006. That letter reiterated that Mr Moodie was directed to “remain at home during this formal investigation during which Mr Moodie would continue to be paid”. The Director General notified Tottle Partners that an independent investigation would be undertaken. Attached to the letter were certain particulars of the allegations, in response to requests made by Tottle Partners.”

49 A copy of the letter dated 31 July 2006 was included in the Statement. The letter clarified that the formal investigation was only into allegations 1, 2 and 3. (As it turned out 4 allegations were investigated). Attached to the letter were more detailed particulars. The letter also advised Mr Hodkinson had been appointed to carry out the investigation. The respondent directed that Mr Moodie “remain at home during this formal investigation during which [he] will continue to be paid”. Within the particulars, there were 44 paragraphs of factual assertions in support of allegation 1. At the end of these paragraphs the document said it was “alleged that Michael Harris Moodie in his capacity as the Chief Executive Officer for the South West Area Health Service (SWAHS) on twenty-two occasions as listed above committed offences against section 85 of the Criminal Code (Falsification of records by Public Officer)”.
50 As mentioned earlier, Mr Hodkinson’s report was dated 29 September 2006. It comprised 32 pages, absent the attachments (which Mr Wilson said filled 3 lever arch files). The report was included in the Statement but not the attachments.
51 The report said the investigator had invited Mr Moodie through his solicitors to take part in an interview about the allegations. The report said the offer was declined by letter from Tottle Partners dated 17 August 2006. The letter was received as exhibit 4 at the hearing. In the words of the report in this letter Tottle Partners “did state that Moodie, through them, would be pleased to provide … a written submission dealing with particular allegations”. The report then said this “is a process that can take place following the submission of this report” (page 5). The report did not say why Mr Hodkinson did not take up the offer of the submission.
52 The report set out what Mr Hodkinson had done to “inquire” into the allegations. This included a review of information, an examination of records and discussions and interviews with a number of named people. The interviews, if recorded, were attached to the report. There was also a “witness statement”.
53 The report set out the investigation and findings made about the now 4 allegations. As mentioned only allegation 1 remains relevant. On this issue the report referred to Mr Moodie’s employment status and position, and set out clauses of his contract about work related expenses and the termination of his employment (pages 11/12). The report referred to s9 of the Public Sector Management Act 1994 (WA) (the PSMA) which is about general principles of official conduct. The report set out a summary of what was described as “principles of conduct that are to be observed by all public sector bodies and employees” (pages 12/13). The report described two documents which were the “Western Australian Public Sector Code of Ethics” and the “South West Health Code of Conduct”. Both were attached to the report. The report said both codes applied during the relevant period. A passage of the Code of Ethics was set out which specifically referred to Chief Executive Officers. The report said the South West Health Code of Conduct came into effect in March 2003 and applied to all staff employed by SWAHS, regardless of employment terms and conditions. The report said that part 6 of the document was about ethical behaviour and included as a dot point that there was to be no falsification of “records or documents, or to make unwarranted claims for allowances, overtime etc” (page 13).
54 Allegation 1 was reproduced and there was then a discussion of “physical evidence”, interviews with 5 departmental employees and the witness statement. The report referred to the letters from Tottle Partners to the respondent dated 25 and 27 July 2006 and set out aspects of interviews.
55 The report then discussed the Circular and what it said about “accommodation” (pages 29/30). The report said the Circular required the supply of a “tax invoice” except where the expense was under $55.00, for which an original receipt was acceptable. The Circular referred to the employee being reimbursed for the actual cost of the accommodation including GST up to a Scheduled Rate. The Circular said that any decision to “reimburse” claims over and above that rate was at “the Manager’s discretion, if the expense is deemed to be necessary and unavoidable”. The Circular was said to also require “Claim Forms”. The relevant passage of the Circular was then quoted. It said the employee should complete the “two page Travel Expense Claim for Actual Expenses Arrangement form”. The Circular said: “All relevant information must be included on this form, which must have the relevant certifications, and all receipts and/or tax invoices attached as well as to the original of the Travel Approval Form”. The report asserted Mr Moodie was aware of the existence of the form.
56 The next part of the report was “Recommendations As to Breaches of Discipline” (page 30). This contained a summary of the facts upon which the report relied and said that “50 false invoices were presented” through Mr Duncan by Mr Moodie for reimbursement of travel and accommodation expenses. The report said that “whether he was entitled to none, part or the whole amount of each of the 50 invoices is not important in this matter”. The report said it was the author’s view that Mr Moodie “having regard to section 9 of the Public Sector Management Act, 1994, in breaching both the Code of Conduct and the Code of Ethics, committed a serious breach of discipline”. It was submitted this could provide “Due Cause” for the relevant employing authority to terminate Mr Moodie’s employment without notice in accordance with clause 9.1 of his contract of employment (pages 31/32).
57 Paragraph 8 of the Statement was:
“8. On 6 October 2006 the Director General wrote to Mr Moodie informing him of the outcome of the formal investigation, and his conclusions or determinations in relation to the investigation’s “findings”. In relation to three of the four allegations, the Director General advised that no further action would be taken. In relation to the first allegation, the Director General agreed with the investigator that a serious breach of discipline had been committed. The Director General advised that he was now turning to consider what action should be taken in that regard, and invited Mr Moodie to provide further information, within 5 working days, if he wished to. The letter included a copy of the investigation report, and stated that the report had been included so as to assist Mr Moodie in his consideration of the that matter.”

58 A copy of the letter was included in the Statement. The letter said Mr Hodkinson’s inquiry was into 4 listed allegations. The letter said that in “his report Mr Hodkinson makes the following findings …”. The letter said about allegation 1 that “a serious breach of discipline has been committed”. The letter said the respondent had “considered the evidence” before him and agreed with Mr Hodkinson’s findings. The letter said the respondent was “now considering what further action should be taken regarding Allegation 1”. The letter said that having “regard to the allegation is there any further information that you wish to place before me before I decide on what further action will be taken”. The letter enclosed a copy of Mr Hodkinson’s report to “assist your considerations”. The letter said that “should you have further information for my consideration that it be forwarded to me within 5 working days of your receipt of this letter”.
59 Paragraph 9 of the Statement was:
“9. On 19 October 2006 Tottle Partners informed the Director General that they had received advice from officers of the Corruption & Crime Commission that the CCC intended to charge Moodie in connection with the matters which were the subject matter of the first allegation. Among other things, the letter expressed the view that it would be clearly inappropriate for the Department to make any determination as to whether Moodie’s conduct, being the same conduct that is the subject of the criminal charges, amounted to ‘a serious breach of discipline’. Against that background, Tottle Partners suggested that further consideration of whether Moodie’s conduct amounts to ‘a serious breach of discipline’ be deferred until the outcome of the criminal charges is known.”

60 A copy of the letter from Tottle Partners dated 19 October 2006 was included in the Statement. The letter submitted it was “clear beyond per adventure” that Mr Moodie had no dishonest intent, had acted transparently and did not receive funds to which he was not entitled. The letter also said it was highly probable that Mr Moodie was in fact paid less than the amount to which he may have been entitled. The respondent was advised that Mr Moodie “will be defending the charges to be bought [sic] by the CCC with all of the resources at his disposal”. The letter submitted it was inappropriate for the department to make a determination as to whether Mr Moodie’s conduct, which was the same conduct as that the subject of the criminal charges, amounted to a “serious breach of discipline”. The letter then said “[a]ny such determination and the publicity that it would generate, (this case has already attracted significant media interest), would inevitably prejudice our client’s ability to have a fair trial, leading to one side questions of contempt of court”. The letter expressed the hope that there could be an agreement reached “in relation to the manner in which our client’s employment should now be dealt with”. The letter also said Mr Moodie’s rights were reserved. The letter requested an urgent response given the requirement of the respondent for a response to Mr Hodkinson’s report by 24 October 2006. (It is unclear why this was now the relevant date when according to the letter dated 6 October 2006 any reply was required within 5 working days).
61 Paragraph 10 of the Statement was:
“10. By letter to Mr Moodie’s solicitors on 20 October 2006, the Director General acknowledged receipt of the 19 October 2006 letter. The Director General stated that, in light of the advice concerning the CCC’s intentions, Moodie was to be ‘suspended from duty from the Department of Health’, and that the suspension is to be ‘without pay’. This was to take effect from close of business that day, 20 October 2006. The letter also foreshadowed a further response to the 19 October 1etter, after legal advice was obtained, in connection with other matters there raised.”

62 A copy of the letter dated 20 October 2006 was included in the Statement. In addition to informing Mr Moodie’s solicitors about his suspension without pay the letter said: “You also raised a number of other matters in your letter dated 19 October. We are currently seeking legal advice and once received, a response will be forwarded”.
63 Mr Wilson, without objection, gave evidence about the contents of the letter dated 20 October 2006 (T7). Mr Wilson was asked in examination in chief about the reasoning behind the decision to suspend without pay. He answered:
“There were a range of considerations. There had certainly been the completion of a formal inquiry in which there had been a finding of a breach of serious discipline involving acts of dishonesty. Mr Moodie was one of the most senior executives in health. The consideration was that central to his employment was the issue of trust and honesty. The charges and there were 50 criminal charges of forgery and uttering … were significant. The decision to delay the final determination of the disciplinary matter which was all but complete would have caused … there was going to be obviously considerably [sic] delay. That matter is still awaiting a final hearing date in the Magistrates Court as far as I’m aware. Mr Moodie was to be required to stay at home until the matter was final [sic] determined. There was going to be no requirement on Mr Moodie to provide any services in line with his contract and there were a range of additional issues that had arisen …” (T8). (The dots and spaces are as appear in the transcript).

64 Mr Wilson said it was not tenable for Mr Moodie to remain in the workplace whilst “these things are hanging over him … absolutely not” (T8).
65 As I said earlier the application was filed after receipt of the letter on 20 October 2006. Paragraphs 11-13 of the Statement were:
“11. As foreshadowed in the 20 October 2006 letter, Moodie’s remuneration payments ceased with effect from 20 October 2006.
12. On 23 October 2006, at conciliation proceedings in the WAIRC, the representative of the Director General informed the representative of the HSU that the disciplinary proceedings would be suspended until the criminal charges were determined.
13. Moodie has been charged with certain criminal offences as foreshadowed in the letter referred to above and dated 19 October 2006. Moodie has entered a plea of ‘not guilty’ to those charges, and the matter has not yet been determined by the court exercising criminal jurisdiction.”

66 During Mr Wilson’s evidence reference was made to other suspected breaches of discipline. There was then an exchange between counsel and the Arbitrator about the relevance of that evidence. During this, the appellant’s counsel made a submission which I will refer to later. So as to put it into context I will refer to the submission as being made at “point 1 in the hearing”. A letter from the Department to Mr Moodie dated 26 June 2007 was then received as an exhibit. Mr Wilson confirmed there were other issues then under investigation (T10).
67 Paragraphs 14-17 of the Statement were:
“14. On or about 11 January 2007 the applicant wrote to the respondent concerning the investigation and concerning the respondent’s decision to stand Moodie down from duty without pay.
15. On or about 15 January 2007, the Director General wrote to Moodie’s solicitors notifying Moodie that the employer required that the packaged motor vehicle be returned to the employer within 30 days.
16. Moodie returned the motor vehicle in accordance with the employer’s demand, within the period required.
17. On or about 21 January 2007 the respondent wrote to the applicant in response to some of the matters raised in the applicant’s letter of 11 January 2007.”

68 These were the last 3 paragraphs of the Statement. A copy of each of the 3 letters mentioned were included in the Statement.
69 Following Mr Wilson’s evidence and after some discussion, a letter from Commissioner of the CCC to the State Solicitor dated 27 June 2007 was received as an exhibit. The letter enclosed a statement of material facts in support of 50 forging and uttering charges against Mr Moodie. At this time the respondent’s counsel made a submission which I will refer to later as being made at “point 2 in the hearing”.

The Submissions at First Instance
70 Both parties filed written submissions prior to the hearing and made closing oral submissions. Counsel also made relevant submissions at points 1 and 2 in the hearing. I will first refer to the appellant’s written submissions, followed by the submissions made at point 1 in the hearing and then the closing oral submissions. I will then similarly summarise the respondent’s submissions.

(a) The Appellant’s Written Submissions
71 The appellant’s written submissions first dealt with jurisdiction. They relied upon the jurisdiction of the Arbitrator to “enquire into and deal with any industrial matter relating to a government officer”, under s80E(1) of the Act. It was submitted Mr Moodie was a “Government officer”, within the definitions in ss7 and 80C(1) of the Act, as he was a person employed on the salaried staff of a public authority. It was also submitted Mr Moodie was not a “public service officer” within the meaning of s76(1) of the PSMA. This was because he was not employed in the “public service” as defined in s34 of the PSMA. Accordingly, Part 5 of the PSMA which includes a scheme or code for the conduct of investigations and enquiries into allegations of breach of discipline, did not apply to Mr Moodie.
72 The submissions summarised the factual background and then traversed the power to suspend remuneration. Section 52(1)(a) of the Interpretation Act 1984 (WA) was quoted. This provides:
“(1) Where a written law confers a power or imposes a duty upon a person to make an appointment to an office or position, including an acting appointment, the person having such power or duty shall also have the power — 
(a) to remove or suspend a person so appointed to an office or position, and to reappoint or reinstate, any person appointed in exercise of such power or duty;”

73 It was submitted the exercise of any statutory power to suspend remuneration attracted the common law duty of fairness, and that this included giving Mr Moodie an opportunity to make submissions before any decision was taken to suspend his pay. The appellant relied upon observations by the Full Federal Court in Dixon v Commonwealth of Australia (1981) 61 ALR 173 at 178-9.
74 The submissions then referred to the apprehended “defence” of the respondent. This was said to be a reliance upon Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial”. It was submitted this observation was of no assistance to the respondent because the High Court was referring to extreme or exceptional cases in which it would be plainly “futile” to provide a remedy. The observations by the Court in Stead at 145 were quoted in support of this submission. The appellant also cited and quoted from Dixon on the futility issue.
75 The next submission was that a failure to provide procedural fairness meant the decision was “void and the lost remuneration is payable”. The appellant again relied on Dixon at 179 and also 182 where the decision to suspend was described as “void” and “invalid and ineffectual”. The appellant also cited Everingham v Director General of Education (1993) 31 ALD 741; (Unreported, SASCFC, 17 September 1993). It was then submitted that to declare the decision void was to nullify the decision retrospectively.
76 It was next submitted the “no work no pay” principle had no application. On this issue the appellant referred to Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587. The appellant also referred to the citation with approval in Csomore of the reasons of Deane J in Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 21 at 33; 37 ALR 20 at 25. It was submitted the reasons of Rogers J in Csomore made it clear that the obligation to pay wages is only conditioned by a requirement that service continue in circumstances where the employer had not waived the usual requirement that an employee perform the full range of duties. It was submitted the respondent had waived this requirement.
77 It was next submitted that in exercising its jurisdiction the Arbitrator was required to have regard to the contents of s26 of the Act. It was submitted s26 authorised the Arbitrator to have regard to the “industrial merits”. It was submitted however that the applicable legal principle was that a decision to suspend remuneration without affording a right to be heard was void and ineffective and this complied with s26 favoured the grant of the relief sought.
78 The submissions concluded with the form of orders sought. Included was a declaration that the respondent’s decision to suspend Mr Moodie’s remuneration with effect from 20 October 2006 was void and of no effect, that the respondent immediately resume the provision of remuneration and that the respondent “back pay” his salary and give Mr Moodie the cash equivalent of the withheld non-financial elements of his remuneration package.

(b) The Appellant’s Submission at Point 1 in the Hearing
79 At point 1 in the hearing the respondent’s counsel referred to the appellant seeking an order for ongoing payment to Mr Moodie. The appellant’s counsel then said:
“[I]t would be helpful if I explained how narrow our application is. On the … on the basis of the authority of the High Court [sic] in Dixon which is not contradicted by the Department as I understand there’s a duty of fairness which is attracted by the decision to suspend without pay. There was no attempt to discharge that obligation on the part of the Department and we say the authority … if you follow the authorities then it means that the decision is void and should be set aside and should be effectively undone. And, if that particular decision is undone we get back to the situation you were prior to the 20th of October, namely where Mr Moodie has been relieved of his obligation to perform duty and the disciplinary process is incomplete. This is just because there has been failure to give an opportunity to be heard.” (T9)

80 The appellant’s counsel said there was nothing in the application which sought an order that the remuneration “remain in place” until the disciplinary process was finalised.

(c) The Appellant’s Closing Oral Submissions
81 The appellant’s counsel said this “is an application which seeks to vindicate the right of this government officer to be dealt with fairly in this particular decision, the decision to suspend remuneration” (T16). Counsel then referred to the facts and correspondence. Counsel then cited a number of authorities including Dixon, Stead, Everingham, Csomore, Gapes, Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 and Director-General, Department of Justice v Civil Service Association of Western Australia Inc (2003) 83 WAIG 908 (Bowles). Counsel also made the following material submissions:
(i) Where there was a denial of procedural fairness the question was whether the provision of a right to a hearing would be futile. It was submitted that something “quite exceptional, quite extraordinary” was required before a reasonable conclusion could be reached that the right to be heard was meaningless (T21).
(ii) Mr Moodie had not been made aware of the considerations taken into account by the respondent in deciding to suspend his salary without pay.
(iii) Counsel referred to “some merits questions”. Reference was made to s26 of the Act which counsel submitted provided the Commission with a broad function. It was submitted this encompassed more than the vindication of such things as an employee’s common law right to procedural fairness but that the right should loom large (T24).
(iv) The “applicable legal principle we have taken you to is that the decision in the absence of any attempt to provide procedural fairness is void and ineffective and that carries with it the obligation to replace the income that was lost” (T25).
(v) The Commission could infer from the evidence that Mr Moodie has a family and that the suspension of his remuneration had caused considerable hardship (T25).

(d) The Respondent’s Written Submissions
82 The respondent’s written submissions commenced with a summary of the facts. They then addressed the legal basis for the suspension. Section 52(1)(a) of the Interpretation Act was relied upon. It was submitted that where there is a statutory power to suspend, it is without pay unless expressed to be otherwise. In support of this proposition the respondent relied upon Wallwork v Fielding [1922] 2 KB 66 at 72, 74 and 75.
83 The submissions then addressed the merits of the decision to suspend. The following contentions were made:
(i) An employer and employee have a fiduciary relationship (citing Concut Pty Ltd v Worrell (2000) 176 ALR 693 per Kirby J at 698).
(ii) Acts of dishonesty or similar conduct are so destructive of the mutual trust necessary for the employment relationship that once discovered the conduct authorised summary dismissal. (Citing Concut per Kirby J at 707).
(iii) Having formed the suspicion that Mr Moodie had acted dishonestly, the respondent arranged for the allegations to be investigated and was prepared as a matter of fairness to allow Mr Moodie to remain at home on pay.
(iv) The respondent had completed all of its investigations except for Mr Moodie’s response to the investigator’s report.
(v) Mr Moodie’s solicitors requested the final determination of allegation 1 to be deferred because Mr Moodie was to be charged with concurrent criminal proceedings.
(vi) It was unreasonable to submit the respondent should not finalise the disciplinary proceeding which could justify dismissal, but continue to pay Mr Moodie.
(vii) This was in part because the respondent has no control over when the criminal charges would be heard and could not reasonably be expected to utilise the services of Mr Moodie given “the evidence that he appears to have engaged in dishonest conduct which is incompatible with his high status as an officer of the respondent”.
(viii) It would be against the public interest for an order to be made that Mr Moodie be paid during the periods in which he had rendered no service.

84 The submissions next addressed the position if there was no power to suspend. The respondent relied upon Bowles in support of the proposition that an ultra vires suspension did not “found” a claim for wages. The President’s reasons at [47] were cited. It also was submitted this contention was supported by Csomore.
85 The submissions also referred to the reliance by the President in Bowles on the reasons of Dixon J at 465 and 466 of Automatic Fire Sprinklers. It was submitted there was no entitlement to wages where no service had been rendered, even if an employee is by an unlawful act prevented from rendering that service. The reasons of the President and Scott C in Bowles at [28]-[36] and [70] respectively were cited.
86 It was submitted it was untenable and not in the public interest for there to be a departure from Automatic Fire Sprinklers. It was also submitted that if Mr Moodie had been given a hearing before the suspension of pay it would have made no difference to the outcome. Stead was cited.

(e) The Respondent’s Submission at Point 2 in the Hearing
87 At point 2 in the hearing the respondent’s counsel referred to the consequence of an absence of procedural fairness as being that the “decision is void”. Counsel also submitted that no “monetary award is made, no decision is made in place of the decision maker. The decision maker is told to go back and do it again” (T14).

(f) The Respondent’s Counsel’s Closing Oral Submissions
88 As I have mentioned the respondent’s counsel during his closing submissions tendered documents which were received as exhibits. Counsel then made the following submissions in addition to what was in the written outline:
(i) Equity and fairness and the public interest were critical elements in the Arbitrator’s decision (T27).
(ii) The public interest was that of a public authority being required to pay a senior employee which it cannot trust until proceedings are resolved against him over which it has no control (T27).
(iii) When Mr Hodkinson’s report was provided to Mr Moodie he was being given the opportunity to be heard about the allegations (T28).
(iv) If the Arbitrator was satisfied there was a lack of procedural fairness then “the decision was unlawful”. It was submitted the only thing that could have been said on Mr Moodie’s behalf about whether to suspend his pay was economic hardship (T31).
(v) Reference was made to Bowles and Automatic Fire Sprinklers and the necessity for service before an employee was entitled to recover wages (T32).
(vi) Suspension without pay, even if unlawful, did not entitle a person to be paid (T33).
(vii) The Arbitrator was required to make a merits-based decision and there was no power to make an award of money, based on Bowles (T33).
(viii) Hardship “could not override the public interest of not having a person of Mr Moodie’s seniority for a protracted period of time being paid to stay at home. The employer was prepared to do that when it had some control over … how long that would be, it has no control over that [now]” (T33).
(ix) If the Arbitrator was “minded to make any order based upon the denial of procedural fairness then it should simply be that the decision to suspend without pay was void. Without any accompanying order the effect of that could be worked out in another application and another forum”. Counsel submitted that: “If you are minded to make an order it should be limited to that. We say as a matter of discretion and on the basis of the Bowles’ case you shouldn’t.” (T34).

89 At the end of the hearing the Arbitrator reserved her decision.

The Arbitrator’s Reasons For Decision
90 The reasons for decision of the Arbitrator were published on 13 November 2007. The reasons commenced by quoting the Memorandum and the Statement. The reasons then described in detail the appellant’s and the respondent’s arguments. The submissions of the parties and the authorities they relied on were summarised. Neither party contended there was any error in this section of the reasons.
91 The next section of the reasons was headed “Issues and Conclusions”. At [18] the Arbitrator listed the issues she said were “associated with the resolution of these matters”. They were:
“(1) Is there a power to suspend?
(2) Is the suspension without pay?
(3) Is the suspension void due to a failure to provide an opportunity to be heard?”

92 The Arbitrator first considered whether there was a power to suspend. The Arbitrator explained that neither of the parties had relied upon s82 of the PSMA about “suspension without pay”. (At the hearing of the appeal the parties agreed that s82 of the PSMA did not apply to Mr Moodie’s employment). The Arbitrator quoted s52(1)(a) of the Interpretation Act and said the “respondent’s power to appoint Mr Moodie brought with it the statutory power to suspend him”.
93 The Arbitrator then discussed whether the power to suspend was “a power to suspend without pay” ([24]). The Arbitrator quoted from McCarry LJ, Aspects of Public Sector Employment Law, Law Book Company, 1988 in which the effect of suspension upon the right to wages was discussed. It was there said the effect of suspension would depend upon the terms of the statute under which it occurred. Prima facie however it would involve loss of wages. McCarry cited Wallwork v Fielding [1922] 2 KB 66 per Lord Sterndale MR at 72 and Warrington LJ at 74-75. Warrington LJ said the effect was to excuse the employed person from performing his part of the contract and at the same time relieve the employer from performing his. McCarry said that this was not to say, subject to statute, that “salary would not later be payable if the officer was found innocent or if he appeals successfully against a dismissal or conviction”. Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 and Grady v Commissioner for Railways (NSW) (1935) 53 CLR 229 were cited in support of this point.
94 The Arbitrator then cited and distinguished both Csomore and Gapes on the basis that there the employees refused to perform their full range of duties and were therefore directed to refrain from performing them all ([25]).
95 The Arbitrator decided that suspension is of the “contractual rights and obligations, including the right to payment”. If however, criminal charges and/or allegations of a breach of discipline were subsequently not sustained, then “subject to the statute, the employee would be entitled to be reimbursed contractual benefits lost on account of the suspension” ([26]). The Arbitrator said when “the respondent wrote to Mr Moodie on the 20 October 2006, informing him of the decision to suspend him without pay, the rights and obligations under the contract were placed in abeyance ([26]). Therefore the respondent was under no obligation to pay salary to Mr Moodie from 20 October 2006. The obligation was suspended” ([27]).
96 The Arbitrator then said the “question then arises, was the respondent in breach of the requirement to afford Mr Moodie natural justice or standards of fairness in the manner in which it reached its decision to suspend him without pay?” ([28]). The Arbitrator said the principles of natural justice applied, citing Dixon; although in what appears to be a slip, the reasons refer to Dixon as a decision of the High Court and not the Full Federal Court.
97 The Arbitrator then referred to Stead in the following way:
“30 In Stead v SGIO (op cit), the High Court (sic) referred to the general principles applicable and expressed by the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67 that:
“[t]here is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”
31 Also in Stead v SGIO (op cit) their Honours asked that:
“Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge in the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at the trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law would clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of the party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness would be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.”

98 At [32] the Arbitrator asserted that Stead stood for the proposition that “where it would be futile to do so, in that it would not alter the decision, there was no such requirement”, to “provide procedural fairness to an employee prior to making any decision which will have an adverse effect upon the employee” ([32]).
99 Paragraphs [33] and [34] are important in the reasoning of the Arbitrator. These were:
“33 There is no dispute about the facts surrounding the suspension. The respondent undertook an investigation into allegations of breaches of discipline by Mr Moodie. The investigation was completed. The respondent provided Mr Moodie with an opportunity to respond to the investigator’s report. Until this time, Mr Moodie had been relieved of the obligation to perform work but his salary was maintained. Prior to Mr Moodie responding to the investigator’s report, Mr Moodie was charged with criminal offences. He sought not to respond until such time as the criminal charges were resolved. As is usual in such cases where the employee may jeopardise his or her position before a criminal trial by making any statements to the employer the respondent agreed to the disciplinary process being held in abeyance pending the outcome of the criminal proceedings. In this case, that meant that the employer, at Mr Moodie’s request, did not require him to respond to the investigation report at that time and it therefore could not conclude the disciplinary process. Therefore, there is little by way of the facts which Mr Moodie could have put to the respondent. Accordingly, it would have made no difference to the respondent in its decision to suspend without pay for Mr Moodie to have been given an opportunity to be heard it would have been futile.
34 As to the merits of the suspension without pay, it should be noted that the role of the Public Service Arbitrator as the constituent authority of the Commission, according to s 6 of [the Act] and s 26(1)(a) and (c) in particular, is the resolution of disputes according to equity, good conscience and the substantial merits of the case. It is not an administrative tribunal whose role is to examine the application of proper process and declare void those decisions which fall short of the appropriate standard. It is to provide practical and equitable resolutions. In this case, that requires consideration of whether the respondent’s decision to suspend without pay was fair and equitable even if a proper process was not applied.”

100 The Arbitrator then referred to submissions of the respondent about the criminal charges. The Arbitrator said that if the respondent intended to suggest there was a high probability of Mr Moodie having committed the alleged breaches of discipline or being guilty of the charges, and this constituted a good reason for not providing him with the opportunity to be heard prior to the decision being made, it was not a relevant consideration. The Arbitrator said the “issue of suspension without pay does not relate to Mr Moodie’s guilt or innocence. However, if the submission was that the nature and seriousness of the allegations is a consideration, then this is so. This factor goes to the appropriateness of continuing to have Mr Moodie undertaking work for the respondent during the time following his being charged with criminal offences, prior to the resolution” ([35]). The Arbitrator then said in the circumstances, it was inappropriate for the respondent to provide Mr Moodie with work ([36]).
101 The Arbitrator’s reasons concluded:
“37 Also, given the lengthy period which was likely to pass before the criminal charges could be resolved, it would be unreasonable and contrary to the public interest for the respondent to be required to continue to pay Mr Moodie while he was providing no work. This period of delay was beyond the control of the respondent and the respondent was unable to conclude its investigation through no fault of its own. This is as a consequence of agreeing to Mr Moodie’s request. It is of no benefit to the respondent to have such a delay, although it is to Mr Moodie’s benefit.
38 Therefore in the circumstances of:
(a) the nature and seriousness of the charges;
(b) the seniority and nature of the position held by Mr Moodie;
(c) the inappropriateness of the respondent providing him with work;
(d) the lengthy delay before a trial; and
(e) placing the disciplinary proceedings in abeyance at Mr Moodie’s request,
the merits of the situation favour the suspension without pay.
39 Taking account of the all the circumstances, I conclude that:
(a) the respondent had a statutory power to suspend Mr Moodie in his employment;
(b) the suspension in those circumstances is without pay;
(c) it would have been futile to have provided Mr Moodie with an opportunity to be heard in respect of the suspension prior to the decision having been made; and
(d) alternatively, in the circumstances, there was no unfairness in the suspension without pay.
40 Accordingly the matter will be dismissed.”

The Notice of Appeal
102 The notice of appeal filed on 19 December 2007 contained 4 “grounds” as follows:
“1. The Commissioner erred in that she had insufficient regard to the principle that the resolution of disputes according to equity, good conscience and the substantial merits of the case must ordinarily require that appropriate remedies be granted in response to violations of the rules of procedural fairness.

2. The Commissioner erred in finding that it would have made no difference to the respondent in its decision to suspend Mr Moodie's salary for Mr Moodie to have been given an opportunity to be heard.

3. The Commissioner erred in assuming that the only matters about which Mr Moodie might have made submissions upon, were he afforded an opportunity to be heard, were those matters specified in paragraph [33] of the reasons.

4. The Commissioner erred in having regard to the reasonableness or otherwise of any requirement that the respondent provide work to Mr Moodie, as the respondent's prior decision to relieve Mr Moodie from the obligation to perform duties was not put in issue.”

103 The notice of appeal also contained the following:
“Remedy
6. The appellant seeks orders that the decision and orders of the Commission below be set aside, orders that the respondent's decision to suspend Mr Moodie's remuneration be declared void, and orders that the respondent (a) pay to Mr Moodie the remuneration he would have received, but for the void decision, between the date of that decision and the date of the Full Bench's order, and (b) resume payments of Mr Moodie's remuneration, subject to any subsequent lawful cessation of that remuneration.”

The Submissions on Appeal
104 Both parties filed a written outline of submissions, in accordance with the applicable practice direction. These submissions were adopted and supplemented at the hearing. As highlighted in the reasons of Wood C the grounds of appeal were not clearly drafted. Perhaps because of this neither party addressed the grounds of appeal sequentially. What follows is a summary of the written and oral submissions of each party on the issues which they addressed. The resolution of the appeal will depend upon an analysis of these issues.

(a) What the Arbitrator Had to Decide
105 The parties did not agree on the issue which was before the Arbitrator to decide. The appellant asserted the issue was a narrow one; whether the decision to suspend without pay was void because of a denial of procedural fairness. The respondent submitted that what was before the Arbitrator was the merit of the decision to suspend without pay; and that this was not just tested by considering whether the decision had been made in accordance with the rules of procedural fairness. It was the justifiability and not simply the legality of the decision which was being reviewed.

(b) The Content and Exercise of the Jurisdiction of the Arbitrator
106 The appellant submitted s80E(5) relevantly “works” so that the Arbitrator could not intervene whilst a statutory body/employer was utilising a power. But once it had been exercised and an “act”, “done” the Arbitrator could “step in” and review, nullify modify or vary it (T10). The appellant submitted the decision to suspend remuneration was therefore an “act” liable to be “reviewed, nullified, modified or varied by the Arbitrator” under s80E(5) of the Act.
107 In its written submissions the appellant said the question in the appeal was:
“An employee of a public authority was denied procedural fairness in the exercise of a statutory power, the exercise of which directly and severely affected his rights and interests. The purposed [sic – purported] exercise of power would be liable to be set aside by a Court exercising its judicial review jurisdiction. Why should any other result follow when the Public Sector Arbitrator's dispute resolution jurisdiction is engaged?”

108 The appellant submitted the Arbitrator’s jurisdiction was required to be exercised in accordance with s26(1) of the Act. Section 26(1)(a) and (c) were relied upon. It was submitted Mr Moodie had the “substantial interest” of his common law right to be heard. The appellant’s written submissions said that:
“The statutory injunction to give effect to 'equity, good conscience and the substantial merits of the case' is no licence to disregard a common law principle of procedural fairness. Quite the reverse. The substantial merits of the case require attention to the fact that a substantial common law right was infringed, and that the employer need not have incurred any very significant cost or delay in affording that right. Nothing about affording the right would have prevented the employer from ultimately having regard to, or giving effect to, such considerations as it considered relevant and determinative.” [31].

109 The appellant submitted the Arbitrator had erred in acting on the basis that s26(1)(a) gave her “greater liberty” than a court (T11).
110 The respondent strongly submitted the effect of s26(1)(a) of the Act meant the Arbitrator had to review the merits of the decision. The Arbitrator was required to decide whether the decision to suspend pay was “fair” (T32). It was also submitted the application required the Arbitrator to consider “the interests of the community as a whole” under s26(1)(c) of the Act. This was because what was at issue was the possible use of public funds in remunerating Mr Moodie whilst suspended. The Arbitrator should have had regard to the fairness and appropriateness of the decision to suspend without pay.
111 The respondent distinguished the “merits based review” of the Arbitrator’s jurisdiction from a court exercising powers of judicial review on administrative law principles. Reliance was placed upon the decision of the Industrial Appeal Court in Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 149 IR 160 (Jones).
112 The respondent read [28] of the reasons of Wheeler and Le Miere JJ in Jones:
“28 Turning, then, to the question of the proper construction of s 80E(5), read with s 80E(1), in our view the controversy which has arisen relates to a false issue. As we have noted, there is no power conferred by the Act upon the Arbitrator to engage in anything in the nature of "judicial review", or to make a bare declaration. That is jurisdiction of a kind quite different from the merits-based inquiry contemplated by s 80E. To the extent that the reasons of the Full Bench might be read as suggesting that there is such power, they are in error. “

113 The respondent also relied upon [167] of the reasons of Hasluck J in Jones:
“167 As to these grounds of appeal, I share the view expressed in the joint judgment that there is no power conferred by the Industrial Relations Act upon an arbitrator to engage in anything in the nature of judicial review, or to make a bare declaration. That is jurisdiction of a kind quite different from the meritbased inquiry contemplated by s 80E of the Act. However, the powers of the Arbitrator are very wide. There may be occasions when it is necessary in order to deal appropriately with an industrial matter, to nullify, modify or vary an action or decision of an employer in the manner allowed for by s 80E(5) of the Act.”

(c) Procedural Fairness Principles
114 The appellant relied on the “principles” of the “modern law of procedural fairness”. The appellant cited Kioa v West (1985) 159 CLR 550 at 584 per Mason J as containing a “broad statement of principle”. It was submitted the principle applied in circumstances where an employer exercising statutory powers suspends the remuneration of a public sector employee. The appellant then relied upon Dixon. This was a decision about the exercise of the power of suspension under the Public Service Act 1922 (Cth) by the Chief Officer of the Commonwealth Government Printing Office. The applicable common law duty of fairness was discussed by the Full Federal Court at 178-179. This was said to be in terms consistent with the subsequent statements of principle by the High Court in Kioa. The appellant also cited Everingham at 744-745 which applied Dixon and decided a school teacher was entitled to be heard prior to her suspension from duty without salary under the Education Act 1972 (SA). The appellant relied upon the discussion and application of these principles by Rowland J in Re Piper; Ex parte Meloney (1996) 63 IR 473. This decision was about a public sector employee suspended without pay under s82(1) of the PSMA.
115 The appellant submitted there were two bases upon which the Arbitrator had dismissed the application. The primary basis was that it would have been futile for Mr Moodie to be given the opportunity to be heard. The alternative reason was that an examination of the merits of suspension without pay led to the conclusion that it would be unreasonable and contrary to public interest for the respondent to be required to pay Mr Moodie.
116 On the futility issue, the appellant cited and made submissions about Stead. It was contended the Arbitrator misapplied Stead “by unjustifiably expanding the principles it stands for”. This was because the circumstances on 20 October 2006 were not such as to make it an inevitability that the respondent would have made the same decision if it had afforded Mr Moodie an opportunity to be heard. It was submitted that Dixon and Everingham were of greater assistance than Stead on this issue. Particular reliance was placed upon this passage of Dixon at 182:
“The appellant was entitled to be heard on the question whether he should be suspended without salary during that interim period. It may well be that there is little that the appellant could have said or done that was likely to influence the decision on that question. It may well be that the decision would have been the same if he had been given the opportunity of being heard. The fact remains, however, that he was given no opportunity whatsoever of being heard on the question whether he should be suspended without salary. The decision ... to suspend the appellant was invalid and ineffectual.”

117 The appellant also relied upon the reasons of Megarry J in John v Rees [1970] Ch 345 at 405 where his Honour said:
“The path of the law is strewn with examples of open and shut cases which, somehow, were not; of answerable charges which, in the event, were completely answered: of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

118 The appellant noted this passage was adopted by Heydon J in Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at 95. The appellant also relied upon the similar observations of Deane J in Kioa at 633.
119 The appellant also claimed support from two authorities which I drew to the parties’ attention before the hearing. The first was Queensland Police Credit Union Ltd v Criminal Justice Commission [2000] 1 Qd R 626. That was an appeal against a declaration that there had been a failure to observe the requirements of procedural fairness prior to the Criminal Justice Commission carrying out a statutory function in writing a report. McPherson JA (with whom Pincus JA and Derrington J agreed) considered an argument that the plaintiff had not shown what would have been done if there was a right to be heard. The appellant relied upon what McPherson JA at 631/2:
“With great respect, it seems to me that accepting this submission would reduce to vanishing point the need for tribunals to observe the rules of procedural fairness when acting in the exercise of statutory powers to investigate and report in a way that affects, or has a real potential to affect, the reputation or rights of persons. The question is not whether, by reporting to courts of law after the power has been exercised, a person so affected may be able to secure a belated measure of the justice or fairness to which he, she, or it was originally entitled, but whether such an opportunity was afforded, as it ought to have been, by the tribunal itself in the course of the proceedings before it. The opportunity of which the aggrieved party complains it was deprived is not that of being heard by a court (which has not been denied), but of being heard by the appointed tribunal before it exercises the statutory power vested exclusively in it to produce the result complained of. Judicial insistence that the rule be observed is prophylactic in character, for which the power of the courts to right a wrong after it has been done is not an adequate substitute. In practice, it would mean that procedural justice would be assured only to those who could afford to litigate the matter in a court.”

120 The appellant also noted the passage of the reasons of Megarry J in John v Rees, quoted earlier, was cited with approval by McPherson JA at 632.
121 The second authority was Ucar v Nylex Products Pty Ltd [2007] VSCA 181. That appeal involved issues of procedural fairness arising out of a trial at which damages for personal injuries were assessed. The trial judge, in making a credibility finding, relied in part upon observations he made about a witness in court, without previously saying he was going to do so. The Court of Appeal allowed the appeal. Warren CJ and Chernov JA generally agreed with the reasons of Redlich JA, although each also wrote separate reasons. The appellant relied on [33] in the reasons of Chernov JA. In that paragraph his Honour quoted Stead and also said:
“Since mere breach of natural justice does not necessarily invalidate the decision, [Stead page 145] the answer to this question depends on whether it can be said that the breach had no bearing on the decision, [Re Refugee Tribunal; Ex parte AALA (2000) 204 CLR 82, 122 (McHugh), 130-131 (Kirby J)] or that an order for a retrial would be futile in that, upon a retrial, the same order will inevitably result. [Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ), Re Refugee Tribunal; Ex parte AALA at 154 (Callinan J)].” (For ease of reference and clarity the footnotes have been inserted into the paragraph and modified slightly).

122 The appellant also relied on the reasons of Redlich JA at [65]:
“In Gerlach v Clifton Bricks Pty Ltd [[2002] HCA 22] Kirby J and Callinan J explained the principle in these terms:
But in Stead this Court showed itself resistant (as it had earlier been in Balenzuela v De Gail (1959) 101 CLR 226) to the notion that because such an error might have been immaterial to the actual result, the outcome of the trial was unaffected and therefore that a new trial would be a futility. The Court in Stead concluded that for a party to secure an order for a new trial, that party, otherwise entitled by an error of law (natural justice), need only show the possibility of a different outcome.” (The footnote reference is included in the paragraph and the emphasis was in the original).

123 The respondent submitted that where there had been a denial of procedural fairness by the failure to accord a hearing, to obtain relief the complainant must show that he or she could have submitted something of substance. The respondent relied upon the observations of Lord Wilberforce in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1579 as follows:
“The Appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an initial administrative fault cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”

124 The respondent submitted the appellant, at first instance, did not put forward any case of substance that Mr Moodie might have made if he had been given a hearing. The respondent also relied upon Stead at 147 to support an argument that a decision maker was entitled to waive a hearing if a different outcome could not have occurred.

(d) Errors by the Arbitrator on Procedural Fairness Issue
125 The appellant and respondent agreed that procedural fairness was owed to Mr Moodie in deciding whether he should be suspended without pay and that no opportunity to be heard had been given to him.
126 The appellant asserted the Arbitrator erred at [33] of her reasons. This was because the only issue the Arbitrator said she took into account in assessing futility was “the facts” which Mr Moodie could have put to the respondent. That is, it was submitted the Arbitrator acted on the basis that the only matter which could have been the subject of any submissions by Mr Moodie were issues of fact which had been investigated and reported upon. The appellant submitted there were other topics Mr Moodie could have made submissions about. Additionally the Arbitrator decided in effect that because Mr Moodie had wanted the disciplinary proceedings to be deferred until after the criminal proceedings, he would not comment upon the facts in Mr Hodkinson’s report.
127 During the hearing there was discussion with the appellant’s counsel about what topics he asserted Mr Moodie could have made submissions about if he had been given the opportunity to be heard. In response, counsel did not accept there was much of a requirement to provide details given the authorities he relied on. At one point it was asserted that the onus to prove “futility” was on the respondent and this meant there was little the appellant had to do. Counsel also pointed out he was not Mr Moodie’s counsel and had not taken instructions from him. When the issue was further discussed however, counsel provided these topics:
(i) Hardship (as per King CJ in Everingham) (T15).
(ii) The maintenance of the integrity of the disciplinary process as lack of pay lead to greater pressure upon Mr Moodie to resign (T15).
(iii) The challenges to the fairness of the process to date as included for example in the earlier letters from Tottle Partners (T15).
(iv) Whether it was fair to suspend without pay, if the appropriate and fair thing to do was simply to defer the disciplinary proceedings until the criminal charges had been dealt with (T16).

128 In contrast the respondent strongly submitted the Arbitrator had not erred. Again emphasis was placed upon the hearing being merits-based and not judicial review. The respondent therefore submitted the Arbitrator’s focus on the merits was appropriate.
129 Additionally, it was submitted that even if the Arbitrator had erred on the “futility” point, the appeal could not succeed unless the Arbitrator had also erred on the merits. The respondent submitted the decision of the Arbitrator was discretionary and therefore the appellant was required to show there had been a miscarriage in its exercise. The well known authorities of House v King (1936) 55 CLR 499 and Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 73 WAIG 220 were cited.
130 The respondent also submitted:
(i) There was little the appellant could have said if given the opportunity; and
(ii) If the appellant wanted to make a case for the suspension not being without pay, the opportunity to do so was before the Arbitrator.

131 As to (i), in [14] of the written submissions the respondent said:
“The Commissioner correctly concluded that insofar as the disciplinary matters were concerned the Appellant could say nothing of substance because Mr Moodie had requested consideration of these be deferred so as to not prejudice the hearing of the concurrent criminal charges (para 33 Reasons for Decision). Accordingly any submission could only be limited to the personal circumstances of Mr Moodie and how the decision would be productive of personal hardship for him. These would not have produced a different outcome.”

132 At the hearing of the appeal the respondent’s counsel said the only issue he thought could be raised was “hardship”, but that was “always an issue” and “would not have made any difference to the outcome” given the weighty issues in support of suspending without pay (T37). These were the seriousness of the allegation, the stage the inquiry had reached, Mr Moodie’s desire to defer the disciplinary process with the effect that he was not going to comment on the facts of the allegation, the respondent’s lack of control over how long the criminal proceedings would take to complete and the public interest in money not being paid to Mr Moodie in this combination of circumstances.
133 When asked whether hardship could ever lead to a decision to suspend with pay the respondent’s counsel said: “I wouldn’t have thought so in this case … The employer had already done that, had already taken cognisance of Mr Moodie’s position in suspending him with pay” (T37). It was argued that it was not in the public interest to make an order that he be paid during periods when he will not render service, no matter what his personal circumstances.
134 The respondent endorsed the Arbitrator’s observations about her role at [34] of the reasons. The respondent also reiterated the submissions made at first instance in reliance upon Concut. The respondent argued it was unreasonable for the appellant to submit the respondent should not finalise the disciplinary proceedings but continue to pay Mr Moodie. Also, the services of Mr Moodie could not be engaged given the evidence that he had engaged in dishonest conduct.
135 As to (ii), the respondent submitted nothing was put before the Arbitrator to indicate anything of substance would have been submitted to the respondent if an opportunity to be heard had been provided. It was submitted there “was an opportunity to provide evidence, it was merits review” (T40).

(e) Remuneration During Suspension
136 The respondent’s counsel was asked if he contended that it would have been illegal for the respondent to pay Mr Moodie whilst he was suspended. Counsel said no, conceding that government officers are sometimes paid whilst suspended, as Mr Moodie had been to 20 October 2006 (T34).
137 As discussed in more detail below, the respondent did submit that Mr Moodie had no entitlement to be paid whilst suspended. The appellant appeared not to accept this. This seems however to be an alternative position. The appellant’s counsel insisted throughout the hearing of the appeal that although the denial of procedural fairness meant the decision to suspend without pay was void, the respondent could at any time revisit the decision and validly decide to suspend without pay.
138 Submissions were also made on the consequence of a finding that the decision was void for an absence of procedural fairness. I will later set out the submissions on this issue.

(f) The Merits of the Decision
139 As to the merits, the appellant said that the Arbitrator had framed the question in the wrong way in [34] of her reasons. The Arbitrator was not to decide the merits of “the suspension without pay”. It was submitted the only relevant “merits” to consider were those about the decision to refuse to afford Mr Moodie an opportunity to be heard. It was submitted that although the factors which the Arbitrator thought supported the suspension of pay were relevant, none of them excused or authorised the denial of the right to be heard.
140 I have already referred to the respondent’s position on the merits. It was submitted the issue the Arbitrator had to determine was whether the decision to suspend without pay was justifiable and fair. It was submitted the Arbitrator did not err in the exercise of her discretion and made a reasonable decision.

(g) Payment During Suspension – Legal Principles
141 The respondent repeated the reliance it placed at first instance upon Bowles, Csomore and Automatic Fire Sprinklers. There was particular reliance upon Bowles and the reasons of the President at [29]-[36] and [47]-[53]. The President there endorsed the approach of Dixon J in Automatic Fire Sprinklers. At [36] the President said: “I wish therefore to make it clear that it is service, not readiness and willingness which entitles a person to recover wages” Paragraph [53] was also quoted to the Full Bench, where his Honour said that “whether the suspension was unlawful or not, however, on the authority of Csomore and Another v Public Service Board of NSW (op cit) and Law of Employment, 5th edition, (op cit), Ms Bowles was not entitled to be paid a salary, since she has not rendered any service for the relevant periods”. (The reference to “Law of Employment” is to Macken, O’Grady, Sappideen and Warburton, Law of Employment (5th Edition, 2002), Thompson).
142 The respondent noted the Arbitrator appeared to accept this in [26] of her reasons; where she said that, “when the respondent wrote to Mr Moodie on 20 October 2006, informing him of the decision to suspend him without pay, the rights and obligations under the contract were held in abeyance”. The respondent submitted it would be untenable and not in the public interest for there to be a departure from Automatic Fire Sprinklers which would require Mr Moodie to be paid for those periods of time when he had been excluded from the workplace without pay.
143 The appellant filed written submissions in reply to the respondent’s “no service no pay” argument. It was submitted the critical difference between the parties was the respondent assumed Mr Moodie was not providing service in the sense discussed by Dixon J in Automatic Fire Sprinklers, whereas the appellant argued that to the contrary Mr Moodie was providing a kind of service within the contemplation of Dixon J. Reference was made to his Honour’s reasons at 466 that did not embrace any artificially narrow concept of service. The appellant cited a passage of the reasons where Dixon J said that a master who sends his servant upon a holiday upon full pay can be sued for wages. His Honour said: “They also serve who stand and wait”. It was submitted that although Mr Moodie had not been physically performing duties he had been effectively told to “stand and wait”, when he was directed to remain at home pending the determination of the disciplinary investigation.
144 The respondent also referred to [60](h) of the reasons of the President in Bowles. The respondent said his Honour “questioned whether the Arbitrator could make an order for past unpaid salary and so does the respondent”. As to this the appellant submitted that no firm view was there expressed. It was also pointed out that the authority cited by the President, SGIC v Johnson (1997) 77 WAIG 2169, was a case involving the different jurisdiction of the Public Service Appeal Board.

(h) Remedies
145 At the hearing of the appeal there was discussion about the orders the Full Bench should make if the appeal succeeded. The appellant pressed for the orders set out in its written outline of submissions at [33] that:
(1) The appeal be upheld and the decision of the Arbitrator be set aside.
(2) In place of the order of the Arbitrator it be declared that the decision to suspend Mr Moodie’s remuneration is a nullity and it be ordered that:
(a) The respondent pay Mr Moodie such remuneration as he would have received from 20 October 2006 as if the respondent had not suspended payment of remuneration.
(b) The respondent continue payment of Mr Moodie’s remuneration from the date of an order being made subject to any subsequent lawful cessation of remuneration.
(c) There be liberty to apply “in connection with any disagreement as to the application of the proceeding orders.”

146 The appellant did not want the Full Bench to simply make an order that the decision of the respondent “be declared void”, with the consequences of such an order being left to be determined either as a matter of course or in some later proceedings. The appellant submitted the decision of the respondent should be declared void and Mr Moodie be placed in the position he would have been had the decision not been made.
147 The appellant’s position was that if the decision to suspend without remuneration was declared void, it would have been void from the beginning, that is from 20 October 2006. If therefore that decision was “nullified” it would leave in place the previous decision of the respondent to suspend with pay. Accordingly, back pay should be ordered. Alternatively, it was submitted there was an ongoing entitlement under the contract of employment and the common law for Mr Moodie to be paid his remuneration (see T14, and 24-25).
148 The respondent submitted that if the Full Bench’s determination was that the decision to suspend without pay was void, a claim for being paid in the past “would be left for another application and perhaps another jurisdiction” (T35). Counsel also said however that the respondent should know its “liability” if the decision was void (T36).
149 In reply the appellant’s counsel reiterated that the orders sought were those in the written outline, quoted earlier. The appellant’s counsel said the making of an order of invalidity and also the consequential orders sought were within the object of the Act specified in s6(c) (T47).

Analysis of Issues
(a) The Statutory Process and the Arbitrator’s Jurisdiction
150 Pursuant to s80E(1) of the Act the Arbitrator had jurisdiction to “enquire into and deal with” the industrial matter constituted by the dispute between the appellant and the respondent. The Arbitrator’s jurisdiction was first invoked by an application for a compulsory conference pursuant to s44 of the Act. At the conclusion of the conciliation conference the parties had not settled all issues in relation to the industrial matter. Accordingly pursuant to s44(9) of the Act the parties desired the Arbitrator to “hear and determine that question, dispute or disagreement”. Under regulation 31 of the Regulations a memorandum of the “matter” “requiring hearing and determination” was to be drawn up and signed. By this stage it was the Memorandum which should have detailed the “industrial matter” which the Arbitrator was then required to “deal with”.
151 In my opinion despite the terms of a Memorandum and subject to the requirements of procedural fairness, the way in which an arbitration is conducted may have an impact on the decision which the Arbitrator may reasonably make. This is such a case.

(b) The Memorandum and the Conduct of the Hearing
152 In my respectful opinion however, the Memorandum did not set out as clearly as it might have the “question, dispute or disagreement” which the parties wanted the Arbitrator to “hear and determine”. The Memorandum contained the assertions of both parties about the facts, law and remedies but did not clearly delineate what “question, dispute or disagreement” the Arbitrator was to resolve. This had to be gleaned or inferred from what was in the Memorandum. In my opinion the lack of clarity in the Memorandum was a source of the differing submissions of the parties about what the Arbitrator had to decide.
153 As I construe the Memorandum the following were before the Arbitrator for determination:
(i) Whether or not the decision by the respondent to suspend payment of Mr Moodie’s remuneration was void because of a denial of a right to be heard.
(ii) Whether an order should be made that the respondent resume Mr Moodie’s remuneration with immediate effect.
(iii) Whether an order should be made for reimbursement to Mr Moodie of the remuneration he would have received if his salary had not been suspended.
(iv) Whether it was unreasonable and not in the public interest for Mr Moodie’s suspension to be set aside.
(v) Whether Mr Moodie had a right to remuneration when he had not rendered services during the period of suspension without pay.
(vi) If the answer to (v) was no, whether there was any reason why that principle should not be observed.

154 Regrettably the appellant and the respondent at first instance seem to some extent to have advanced cases which addressed different issues. This was compounded by a lack of clarification of the position during the hearing. The narrowness of the issue, as described by the appellant’s counsel at point 1 in the hearing (and repeated during his oral closing submissions) was not expressly contradicted by the respondent and the Arbitrator did not say, during the hearing, whether she accepted what the appellant said about this. In addition by framing its case in the narrow way in which it did, the appellant did not seek to persuade the Arbitrator that the merits favoured not suspending without pay. That is they did not put before the Arbitrator evidence and/or submissions about the decision which ought to have been made.
155 In contrast to the appellant, the respondent’s case clearly focussed upon the merits of the decision to suspend and Mr Moodie’s asserted lack of entitlement to any remuneration whilst his services were suspended. In his oral closing submissions counsel emphasised the public interest in not paying Mr Moodie whilst the criminal proceedings were pending. As a result, the respondent submitted that to have provided Mr Moodie with a right to be heard would have been futile (T33 and see also the respondent’s written submissions at first instance at [23]).
156 As set out above in my opinion, from the Memorandum, both the issues of whether the decision to suspend Mr Moodie’s pay was “void” and the reasonableness of the decision to suspend without pay were strictly before the Arbitrator for decision. However as mentioned already and discussed in more detail later, the way the parties conducted the hearing had an impact on the decision the Arbitrator could reasonably make.
157 I have earlier set out what the Arbitrator listed in her reasons as the issues which were “associated with the resolution of these matters”. These did not specifically include whether there was an entitlement to payment during suspension or whether the “merits” favoured suspension without pay, but the Arbitrator decided these issues in any event.

(c) The Content and Exercise of the Jurisdiction of the Arbitrator
158 As set out earlier s80E(1) of the Act gave the Arbitrator the jurisdiction to enquire into and deal with the “industrial matter”. Section 80E(5) gave the Arbitrator the power to “deal with” the industrial matter by reviewing, nullifying, modifying or varying an “act, matter or thing” done by the respondent employer. As to this jurisdiction, the joint reasons of Wheeler and Le Miere JJ in Jones make the following points:
(i) The Arbitrator has no jurisdiction to make “bare declarations of illegality” ([19] and see also [28]).
(ii) The powers of the Arbitrator are nevertheless very wide ([29]).
(iii) In determining how to deal with an industrial matter an Arbitrator may make a finding of unlawful or improper conduct as a step in determining how the industrial matter is to be dealt with ([30]).
(iv) It can be necessary for the Arbitrator to decide how relevant statutes apply to the facts as a “step in the process of ascertaining what is required” to deal with the industrial matter ([32]).
(v) Section 80E(5) of the Act “does not confer any independent jurisdiction to quash … decisions, but only to do so to the extent necessary to ensure that the industrial matter is dealt with” in accordance with s80E(1) ([33]).
(vi) Section 80E(5) confers a power to review and if necessary differ from a decision made “where it is necessary to do so as part of the process of dealing with an industrial matter” ([33]).
(vii) Questions which would be determined by a court undertaking judicial review of the actions of government officers may be questions necessary for an Arbitrator to decide in order to deal with an industrial matter relating to those government officers. The questions are dealt with as “steps in the process of determining how the industrial matter is to be dealt with” ([34]).

159 The analysis by their Honours in Jones confirms that the powers contained in s80E(5) of the Act are tools for possible use in dealing with an industrial matter and not a source of added jurisdiction. The Industrial Appeal Court in Jones was not required to analyse the basis upon which an Arbitrator should decide whether to exercise one of the powers contained in s80E(5) of the Act, other than to emphasise, as stated by Hasluck J the “merit-based” inquiry which is contemplated ([165]). Also in Jones the Industrial Appeal Court did not discuss the interaction between ss80E and 44(9) of the Act, regulation 31 and the extent to which the parties conduct of a hearing may impact upon how the Arbitrator may deal with an industrial matter. Again it was unnecessary to do so.

(d) The Equity and Substantial Merits Direction
160 As set out earlier, s26(1)(a) of the Act applies to the jurisdiction of the Arbitrator. This brings into question what is meant by the requirement that the Arbitrator exercise jurisdiction “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. (For shorthand purposes I will refer to this as “the equity and substantial merits direction”). The issue was considered, albeit not in the context of the Arbitrator’s jurisdiction, in Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 1199 (LHMU). There my reasons for decision were agreed with by Scott C and accordingly constitute the binding opinion of the Full Bench. The submissions on this appeal, make it necessary in my opinion to elaborate upon the issue in greater depth. I do not however think anything that is written below is in conflict with the reasons of the majority of the Full Bench in LHMU.
161 In [40] of LHMU, I emphasised that despite s26(1)(a) of the Act, the Commission is not, to put it colloquially, authorised to act in the way in which it thinks best on the basis of some sort of “pub rules”. In [42]-[48] I explained what I meant:
“42 … The subsection does not provide license for a Commissioner or the Full Bench to ignore limits upon the exercise of the powers or jurisdiction of the Commission; or to avoid or mould legal principles to a conclusion thought desirable about the Commission’s jurisdiction.
43 In the article, Procedure and evidence in ‘court substitute’ tribunals, Professor Neil Rees, Australian Bar Review, Volume 28, No. 1, page 41, there is a traced history of sections like s26(1)(a) and the present understanding of their meaning by Australian courts. At page 83, Professor Rees concludes:-
“In earlier times ‘equity and good conscience’ clauses were intended and interpreted to mean that the recipient of the power had some latitude to depart from the rules of substantive law which would have governed proceedings in the courts. They seem to permit ‘a sort of rough and ready local justice to litigants in small cases’. That view of these powers is no longer sustainable.”
44 Earlier at page 63, Professor Rees referred to Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 and the joint judgment of Gleeson CJ and Handley JA. Professor Rees cited the observation by their Honours at page 29 that “[t]he words “equity, good conscience and the substantial merits of the case” are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found”. However, Professor Rees also referred to the conclusion by their Honours that such a clause did not give the New South Wales Equal Opportunity Tribunal license to depart from “the obligation to apply rules of law in arriving at its decisions”. (Page 29). Professor Rees also referred to the rationale for this conclusion by their Honours which was that if it permitted the Tribunal to do anything other than apply the general law “there would have been no point in conferring a right of appeal to the Supreme Court on a question of law”. (29). Professor Rees said that this rationale was compelling.
45 On this issue it is noted that under s90(1) of the Act, an appeal lies to the Industrial Appeal Court from any decision of the President, the Full Bench or the Commission in Court Session, on, amongst other things, the ground that the decision was erroneous in law in that there had been an error in the construction or interpretation of any act, regulation, award, industrial agreement or order in the course of making the decision appealed against.
46 At pages 64/65 Professor Rees referred to the reasons for decision of the High Court in Sue v Hill and Another (1999) 199 CLR 462 where in a joint judgment, Gleeson CJ, Gummow and Hayne JJ at paragraph [42] said that provisions of this type “do not exonerate the court from the application of substantive rules of law …”. Professor Rees also referred to the similar observations by Gaudron J at paragraph [149].
47 Other decisions referred to by Professor Rees were Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171. In the latter, Gummow J at [34] referred to s420 of the Migration Act which is in not dissimilar terms to s26(1)(a) of the Act. By reference to the reasons of the court in Eshetu, his Honour at [35] said that the section “does not delimit boundaries of jurisdiction”.
48 In summary, s26(1)(a) does not give license to either a Commissioner or the Full Bench to do other than act according to law and construe the limits of the jurisdiction or the powers of the Commission other than on the basis of legal principle.”

162 The authorities, including those cited and quoted above, establish the following general propositions which are applicable in my opinion to the equity and substantial merits direction.
163 Firstly, s26(1)(a) is not a source of jurisdiction, but applies only to the exercise of jurisdiction otherwise granted by legislation. Griggs v Norris Group of Companies (2006) 94 SASR 126 is apposite on this point. There, the Full Court of the Supreme Court of South Australia considered s154 of the then Industrial and Employee Relations Act (SA) 1994. Section 154(1) provided that in exercising its jurisdiction the South Australian Industrial Relations Court and the South Australian Industrial Relations Commission were “governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts”. White J, with whom Perry J agreed (Layton J dissenting) said at [36] that s154(1) was not itself a source of additional jurisdiction but a statutory direction as to the manner in which the jurisdiction elsewhere vested was to be exercised. (See also [41]).
164 Secondly, the Commission and the Arbitrator as a constituent authority of the Commission cannot ignore the substantive law, whether statutory or common law, in the exercise of its jurisdiction. This point was referred to by White J in Griggs at [44] by quoting from Featherston v Tully (2002) 83 SASR 302 at [156]-[158]. Featherston was about the Court of Disputed Returns, which by s103(1) of the Electoral Act 1985 (SA) “was to be guided by good conscience and the substantial merits of each case without regard to legal forms or technicalities”. In Featherston it was said that the Court was obliged to act judicially, to apply the requirements of the Electoral Act and the common law and to afford natural justice to all parties and interveners. Within these bounds the Court was permitted to resort to a commonsense judgment but could not be “merely arbitrary”. Relevant common law principles still applied.
165 Similarly in Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239, Basten JA with whom Beazley JA agreed at [89], cited the joint reasons in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 (Gubbins) with approval and reiterated that although the relevant body was required to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, it is clear that it must exercise its powers according to law: were it otherwise, the conferral of a right of appeal to this Court ‘in point of law’ … would be significantly diminished, if not rendered otiose”. The same point was made in my reasons quoted above in LHMU. It was also succinctly made in Townsville City Council v Chief Executive, Department of Main Roads [2006] Qd R 77 at [43] where Keane JA with whom McMurdo P and White J agreed said:
“The authorities suggest that a statutory obligation to have regard to the "substantial merits of the case” means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion.”

166 To like effect are the observations by Gray J in Grundman v Repatriation Commission [2001] FCA 892; (2001) 66 ALD 125. Pursuant to s119(1) of the Veterans’ Entitlement Act 1986 (Cth) the Repatriation Commission was required to act “according to the substantial justice and the merits of the case without regard to legal form and technicalities”. Gray J considered an argument that this allowed the Administrative Appeals Tribunal, standing in the shoes of the Repatriation Commission, to take a more benevolent view of an applicant’s case than it would otherwise have done. His Honour said that this “argument has been put many times. It has been rejected just as many times” ([39]).
167 The Full Court of the Supreme Court of Western Australia in Re Ciffolilli; Ex parte Rogers [1999] WASCA 205 also endorsed what was said in Gubbins. Parker J, with whom Pidgeon and Anderson JJ agreed, at [53] said:
“This section follows a rather familiar pattern by providing that the Tribunal is to act according to equity and good conscience and the substantial merits of the case without regard to technicalities and legal forms and is not bound by the rules of evidence, but is bound by the regulations in matters of procedure. S155 goes onto provide that a question of law which arises in proceedings for the Tribunal may be referred by way of case stated for the opinion of the Supreme Court which has jurisdiction to consider and determine that question of law. The effect of provisions such as s154, especially where there is a provision for the Supreme Court to review questions of law arising in the proceedings, was considered by Gleeson CJ and Handley JA in their decision in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29-31. I would respectfully adopt the reasoning of their Honours and apply to this present case the conclusion expressed by their Honours at 31 where they said: "In our view the duty to act according to equity and good conscience, in the context of this Act, did not free the Tribunal from its duty to apply the general law in deciding the issues raised ....”

168 The point is neatly illustrated in The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) (2004) 85 WAIG 629. In that case, a Mr Dinnie had been overpaid 22.1 days of sick leave more than his entitlement. His employer required him to reimburse the amount of the overpayment. Mr Dinnie objected to doing so. An application was made to the Arbitrator to deal with this industrial dispute. The Arbitrator made an order that Mr Dinnie be “deemed to have been on paid sick leave for the 22.1 days prior to his return to work”. The Full Bench allowed an appeal against the Arbitrator’s decision. Relevantly and with respect succinctly put by Kenner C at [68]:
“The fact of the matter was in this case, that it was not in dispute that Mr Dinnie had been paid funds out of consolidated revenue to which he had no entitlement. That being the case, irrespective of the quantum of the sum of monies involved, the State has a right, and arguably a duty, to seek to recover those monies overpaid …In my opinion, to the extent that the learned Arbitrator did not apply this general principle and sought to apply s 26 of the Act, having regard to the circumstances of Mr Dinnie, then this was in error. Whilst s 26(1)(a) of the Act requires an Arbitrator and the Commission to deal with a matter in accordance with equity, good conscience and the substantial merits of the case, this does not permit an Arbitrator or the Commission to depart from the duty to apply the general law …”.

169 Kenner C then cited a number of authorities including Gubbins. (See also the reasons of Sharkey P in Dinnie, agreed with by Gregor C, at [39]).
170 Thirdly, as referred to in LHMU by reference to Gubbins, the impact of the equity and substantial merits direction varies in accordance with the particular function, jurisdiction or power being exercised by the Commission. White J in Griggs at [32] said the meaning of the expression was dependent upon the context in which it was used, having regard to the nature of the decision-maker and the decision to be made. His Honour supported this observation by reference to Santos Ltd v Saunders (1988) 49 SASR 556 at 564. White J then said that the content and application of the relevant section was “more limited in those cases in which the IR Court is, for example, exercising the jurisdiction to hear and determine a question of law referred to it by the Commission … than it will be in those cases in which the Commission is exercising its jurisdiction to make awards regulating remuneration and other industrial matters …”. With necessary modification, these observations are in my respectful opinion apposite to the Commission.
171 The Commission, including the President, Full Bench and constituent authorities have a variety of functions, jurisdiction and powers under the Act. The extent to which the requirements of s26(1)(a) can have a substantive impact upon the way the Commission exercises its jurisdiction will vary according to the particular function, jurisdiction and/or power the Commission is exercising or contemplating exercising.
172 The functions of the Commission were summarised in Amalgamated Metal Workers and Shipwrights Union of Western Australia and Another v State Energy Commission of Western Australia (1979) 59 WAIG 494 at 496 as being, in some respects, each of those of an administrative body, a court of record and a legislative body. This is possibly too simple today. The Commission, without attempting to be exhaustive:
(i) Conciliates industrial disputes of various types (ss32 and 44). These include negotiations for agreements about the terms and conditions of employment, industrial awards, unfair dismissals and denial of contractual benefits claims. The making of awards is probably the quasi-legislative function the Industrial Appeal Court had in mind. (It may be that this is now not correct description given the High Court decision of Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410).
(ii) Under s44 of the Act, has a power to make orders at or in relation to a conciliation conference.
(iii) Possesses an arbitral and/or judicial power to determine the type of disputes referred to in (i) above, mostly after a conciliation conference has not resolved the proceedings.
(iv) Declares the true interpretation of awards and industrial instruments (s46).
(v) Constituted as the Commission in Court Session (CCS), has the power to make general orders as described in s50A of the Act. (The Commission is there exercising original jurisdiction, but the CCS also has an appellate jurisdiction, under for example s48(11) of the Act).
(vi) Constituted as the Full Bench, decides appeals against decisions of the Commission, including the Arbitrator, the Occupational Safety and Health Tribunal and the Industrial Magistrate’s Court (ss49 and 84).
(vii) Constituted as the Full Bench, decides some types of rule alteration applications, applications for enforcement of the orders of the Commission and deregistration proceedings (ss62(2), 84A and 73).
(viii) Constituted by the President, confers with the Registrar about some rules alteration applications (s62(3)), hears applications to stay orders pending appeals (s49(12)) and determines complaints by members or the Registrar about an organisation’s non-observance of its rules (s66).
(ix) As an administrative body, administers and maintains a record of the applications made to the Commission, awards and orders made by the Commission, the registration of industrial agents and organisations, including the maintenance of an up to date set of the rules of an organisation, and determination of some alteration rules applications.

173 To illustrate the point I have explained above, when the Commission is conducting conciliation conferences, the presiding Commissioner would be expected to use his/her experience, understanding of the law and industrial fairness and conciliation and mediation skills to try and assist the parties to reach an agreed resolution of the dispute. On the contrary if the Commission is arbitrating a claim referred by an employee under s29(1)(b)(ii) of the Act which asserts they have not been given a contractual entitlement, the Commission must decide what the terms of the contract were and whether or not they have been complied with by the employer. The Commission does not have licence to add to or subtract from the terms of the contract or the facts and order, for example, that a benefit be given to an employee because they think it would be equitable or fair. The terms of the contract cannot be disregarded as “technicalities or legal forms” or for any other reason supposedly supported by s26(1)(a) of the Act.
174 In LHMU I referred to and quoted from Professor Rees’ article. Professor Rees concluded of the equity and substantial merits direction:
“They are now procedural powers only. While provisions of this nature appear to give Tribunals some latitude to depart from the manner in which proceedings are conducted in the courts, there may be no modern need for these powers because legislatures and courts have transformed the way in which court based litigation is conducted in most Australian jurisdictions.”

175 This applies in my opinion to at least some of the functions, jurisdiction and powers of the Commission. The same point was made in Administration of the Territory Papua New Guinea v Daera Guba (1973) 130 CLR 353 about a land board set up under s9 of the Land Ordinance of 1911 to decide disputes about the ownership of land. Section 9 provided that such a board “in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure”. Gibbs J at 455 said that the “words in the form of those quoted from s.9 must be regarded as dealing only with procedure, and not as excluding the application of rules of substantive law”. (See also Barwick CJ at 402).

(e) The Memorandum, Jones and The Equity and Substantial Merits Direction
176 The Memorandum said the appellant sought a declaration that the decision of the respondent to suspend Mr Moodie without pay was void. In my opinion however this was not a “bare declaration” of illegality based on notions of judicial review as discussed in the joint reasons in Jones. The appellant did not just seek a declaration that the decision was “void” but in effect wanted the Arbitrator to “nullify” the decision and make consequential orders about the past and future remuneration of Mr Moodie. This was the way in which the appellant contended the Arbitrator should “deal with” the industrial matter.
177 In deciding whether or not to make these orders, the Arbitrator could not, according to the above authorities, ignore the substantive common law about whether the decision of the Arbitrator was or was not void because of a lack of procedural fairness. A decision as to whether or not the decision was void did not necessarily of itself however resolve the application in the favour of the appellant and require the Arbitrator to make the consequential orders sought. This was because in my opinion and consistent with Jones, the Arbitrator had to consider how to “deal with” the industrial matter. How she could do so however was limited by the constraints of the law, the Memorandum and how the hearing was conducted by the parties.
178 I have earlier quoted [34] of the Arbitrator’s reasons. There the Arbitrator’s jurisdiction was contrasted to that of an “administrative tribunal” and was described as providing “practical and equitable resolutions”. The Arbitrator said that in the case before her therefore the issue was “whether the respondent’s decision to suspend without pay was fair and equitable even if a proper process was not applied”. Read literally, this could mean that the issue of whether the decision was “fair and equitable” was divorced from or separate to the issue of whether a proper process was applied and if not the legal consequence(s) of this. If this is what the Arbitrator meant, it was in my opinion wrong. This is because the issue of whether a “proper” or procedurally fair process had occurred fed into whether the decision was “fair and equitable”, and indeed may have been decisive of that issue. Also if it meant that the Arbitrator could ignore the law then with respect this was also wrong.
179 Paragraphs [38] and [39] seem to clarify that the Arbitrator thought the “merits” of the situation favoured suspension, without pay, even if there was no futility in Mr Moodie being heard. I will later comment on the soundness of this reasoning.

(f) Procedural Fairness Principles
180 The appellant and the respondent agreed that the decision to suspend Mr Moodie without pay attracted the procedural fairness “hearing rule”. That is he ought to have been given an opportunity to be heard prior to the decision being made. It is also agreed that no such opportunity was provided.
181 The parties differed upon whether the Arbitrator properly applied the principles. As I have said the Arbitrator decided that not providing an opportunity to be heard would not have made any difference to the decision ([32] and [33]).
182 On this issue, the parties and the Arbitrator took Stead as the leading decision. Stead was however a different case from the present.
183 It is important to acknowledge this, as the requirements of natural justice and the consequences of any breach depend upon the particular statutory power being exercised and the individual facts and circumstances. As stated by Brennan J in Kioa at 612:
“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.”

184 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 the High Court in joint reasons said at [26]:
“It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.”

(g) The Law on Futility
185 In Stead, the context was a decision by a judge after trial in a personal injuries case. The judge, after informing counsel during his closing submissions that a doctor’s evidence on causation would not be accepted, did just that in his reasons for decision. This was clearly a breach of the requirements of procedural fairness or natural justice. The question was whether this departure entitled the aggrieved party to a new trial. The context of that decision is different from the present in two important ways. Firstly the nature of a judicial decision after trial is different from the exercise of a statutory power to suspend employment. Secondly the context of a decision by a court as to whether to order a new trial is different from the jurisdiction being exercised by the Arbitrator. This was whether the “industrial matter” should be dealt with in part by ordering the decision to suspend without pay was a nullity. There are however some points of general principle which can be taken from Stead and when appropriate applied in different contexts. Indeed the High Court has done this. In doing so however it is important to look with some precision at what the Court in Stead said about futility.
186 Firstly at 145 the Court said a new trial would not be ordered if it would inevitably result in the making of the same order as at the first trial. Their Honours said that an order for a new trial in such a case would be a futility. Secondly on the same page the court gave the example of a party being denied an opportunity of making submissions on a question of law which would have been clearly answered unfavourably to that party. Again, the court said it would be futile to order a new trial. These are narrow exceptions.
187 The broader principle which may be extracted from Stead is encapsulated by their Honour’s question “would further information possibly have made any difference?” (145) and that all “the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome” (147).
188 Gleeson CJ in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [10] said: “In a case of failure to give a hearing when a hearing is required, the person complaining of denial procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness”. Similarly, Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [86] referred to the High Court in Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 as affirming the “strong principle earlier stated in Stead”. This principle was a “could not possibly have produced a different result” test.
189 In Aala each of the members of the High Court acted in accordance with the Stead principle in the context of a denial of natural justice in a hearing by the Refugee Review Tribunal. (See for example Gleeson CJ at [4], Gaudron and Gummow JJ at [59], and [80]-[81], McHugh J at [104] and [110] and Kirby J at [131]). At [81] Gaudron and Gummow JJ quoted the passage from the reasons of Megarry J in John v Rees quoted above.

(h) Procedural Fairness and Statutory Decisions Affecting Employment
190 As submitted by the appellant, the courts have applied the principles about having a right to be heard in the context of statutory decisions to suspend or dismiss public sector employees. Earlier I set out the appellant’s submissions on this point, in reliance upon Dixon, Everingham and Re Piper.
191 In Re Piper, Rowland J at 477 emphasised the importance of a decision of suspending an employee without pay. His Honour said:
“An employee in that situation can suffer severe hardship. He may have no other source of money on which to live and at the same time, as he is still employed, he is usually unable to seek or obtain other employment.”

192 Similarly, in Schmohl v Commonwealth of Australia (1983) 49 ACTR 24, Gallop J in the Supreme Court of the Australian Capital Territory followed Dixon and said the decision to suspend without giving an opportunity to be heard was likely to have had “profound emotional, social and financial” impacts upon the plaintiff (31).
193 Dixon was also applied by the New Zealand Court of Appeal in Birss v Secretary for Justice [1984] 1 NZLR 513, in the context of a suspension without pay of a probationary officer in the Department of Justice. Richardson J at 4 referred to the characteristics of suspension and said that an officer was then deprived of an entitlement to perform their duties in the public service and where the suspension was without salary the officer was deprived of his entitlement to salary until the charges against him were determined. Richardson J said that “he is living on his savings and his wife’s part-time employment earnings. Had the Secretary for Justice stayed his hand the appellant would have had the opportunity to argue that in his particular social and financial circumstances suspension without pay was so harsh and punitive in its consequences that other alternatives such as transfer to other duties and suspension with pay should be explored further”.
194 These cases serve to emphasise the importance of having a right to be heard in a situation where what is being affected is a person’s employment and remuneration. The point was in my respectful opinion powerfully stated by Wilcox CJ, in the context of the then s170DC of the Industrial Relations Act 1988 (Cth), in Nicholson v Heaven and Earth Gallery (1994) 1 IRCR 199 at 209/210. His Honour said:
“Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as “natural justice” or, more recently, “procedural fairness”. The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well-established in public administrative law. It was accepted into international labour law when Art 7 was inserted in the Termination of Employment Convention. Section 170DC is directed modelled on Art 7. The principle is, I believe, well understood in the community. It represents part of what Australians call “a fair go”. In the context of s 170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself “against the allegations made”; that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk.”

195 In the context of a statutory decision, Kirby J in Applicant NAFF at [69] said that:
“The failure to observe proper procedures itself amounts to a legal defect in the performance of the task conferred by law as the law requires. In this sense, the invalidating element is … the anterior failure to conform to the law. That failure is, in a sense, a legal wrong against the whole community. The duty to accord procedural fairness is part of the public law. It is upheld to ensure that the element of governance contemplated by law will (absent lawful exceptions) be discharged fairly.”

196 A similar point was made by McPherson JA in Queensland Police Credit Union. His Honour at 633 quoted with approval from the reasons of Pincus JA in Wall v Windridge (1999) 1 Qd R 329 at 336/337. Pincus JA there said it was not “essential for parties complaining of not having been given a fair opportunity to contest an issue to go into detail as to what questions they might have asked, or evidence they might have adduced, if not so treated.” (Kioa was cited). At 634 and 635 in Queensland Police Credit Union McPherson JA concluded:
“Once it is shown that there is a right to procedural fairness in the form of an opportunity of being heard in a proceeding, a person aggrieved is ordinarily entitled to relief against adverse consequences of being denied that right without having to establish in detail how the opportunity would have been made use of. The position may, in some instances, be different where it is shown that the opportunity, even if granted, would in fact or law have been of no avail. In practice, however, cases of that kind are, for the reasons referred so by Megarry J. in John Rees [1970] Ch. 345, 402, necessarily rare.”

197 The potential consequences for the person liable to be affected by a statutory decision can affect both the scope of procedural fairness and the consequences of a breach. As said by Gleeson CJ in NAIS, the loss of the opportunity can make the unfairness. In Dixon at 182 the same point is made, in different but no less applicable circumstances and language. Allsop J in Eaton v Overland (2001) 67 ALD 671 at 716 said, about the not unrelated issue of fitness for a particular type of employment: “Mr Eaton was entitled to a commensurate degree of fairness in the process of dealing with such a serious matter”. Finally, Kirby P in dissent but not on this point in Matkevich v NSW Technical and Further Education Commissioner [No. 3] (Unreported, NSWCA, 2 February 1996, BC 9600084) said at 22 that a delegated statutory power which concerned discipline and the risk of dismissal of a longstanding employee had “very considerable significance … which made it specially important that the decision should be reached fairly, and manifestly so”.

(i) Errors by the Arbitrator on Procedural Fairness
198 In my opinion and with respect, the Arbitrator erred in her understanding and application of these principles.

(i) Importance of the Right to be Heard
199 The following factors made it important that Mr Moodie be given a right to be heard:
(aa) Through his solicitors, he had denied the relevant allegation and offered to make a submission to Mr Hodkinson, which had not been taken up.
(bb) Up until 20 October 2006, Mr Moodie had been suspended on full pay. The prospect of him being suspended without pay was not contemplated by the letter from the respondent dated 6 October 2006 nor that from his solicitors dated 19 October 2006.
(cc) The only change on 19 and 20 October 2006 was the information that Mr Moodie was to be charged with offences and his seeking of the deferral of the disciplinary process.
(dd) Mr Moodie’s solicitors said the charges would be defended. Mr Moodie was also entitled to the presumption of innocence.
(ee) The decision of suspension without pay had serious ramifications for Mr Moodie.

(ii) Would there have been Futility in Giving Mr Moodie a Hearing?
200 In my opinion, firstly, the Arbitrator erred at [32] when it was said that Stead stands for the proposition that there is no requirement to provide procedural fairness to an employee where “it would be futile to do so”. This is incorrect. The obligation to provide procedural fairness does not depend on lack of futility. Such a principle would be self defeating. It would require a decision maker, in the absence of hearing the affected party, to decide whether or not giving that party an opportunity to be heard would be futile. This misses the John v Rees point. Futility can step in at the point of deciding whether a remedy will be granted for a breach of procedural fairness. For example the High Court in Stead mentioned futility in the context of deciding whether to order a new trial.
201 Secondly and more significantly, as submitted by the appellant the Arbitrator’s reasons in [33] indicate the only issue which was taken into account in judging futility was the lack of facts which Mr Moodie would have put to the respondent, given his solicitors had said he did not want to comment on the investigator’s report while the criminal charges were pending. As set out earlier there were other topics which the appellant submitted could have been addressed by Mr Moodie. Most significantly perhaps the Arbitrator ignored the potential topics of hardship and whether it was fair in any event to suspend without pay.
202 In my opinion and based upon the authorities referred to earlier, it was not fatal to the appellant’s procedural fairness point that before the Arbitrator there was no evidence or detailed submissions on the use which Mr Moodie might have made of the opportunity to be heard. I note however that the appellant’s counsel submitted to the Arbitrator that hardship could have been raised by Mr Moodie (T25).
203 In the circumstances, in my opinion this was sufficient to establish that the process of decision making of the respondent was unfair. It could not be said that giving a right to be heard would have inevitably have produced the same result. Mr Wilson’s evidence showed that hardship was not taken into account.
204 As set out earlier, the respondent argued on appeal, in reliance upon Malloch, that the appellant had to show that a case of “substance” would have been mounted if an opportunity to be heard had been given. It was also submitted that the hearing before the Arbitrator was the opportunity to provide the submissions Mr Moodie had been denied from making. As to the first of these points, it is unclear to me whether Lord Wilberforce in Malloch was suggesting a different test to that established by the High Court in Stead and applied in the other authorities I have referred to. If so, then the Australian authorities ought be followed. If not, then as I have said the application of the test as explained in the Australian authorities leads to the conclusion that the decision making was demonstrated to have been unfair at the hearing before the Arbitrator.

(iii) The Arbitration Curing the Procedural Unfairness
205 As to the second point, having carefully considered the written submissions and the transcript of the oral submissions at first instance, it was not then asserted by the respondent that this was the appellant’s chance to provide evidence and make submissions on behalf of Mr Moodie about what could have been said to the respondent if an opportunity to be heard was provided. No “Calvin v Carr” ((1979) 1 NSWLR 1; [1980] AC 574) type point was taken, that the proceedings before the Arbitrator “cured” any procedural fairness deficiency, as all of what Mr Moodie wanted to place before the respondent could now be put before the Arbitrator. If such a point was taken at first instance the appellant would have had the opportunity to try to counter this by submissions and/or evidence. Accordingly in my opinion it is not now a point upon which the respondent can rely (Coulton v Holcombe (1986) 162 CLR 1 at 7, 8).
206 As discussed by McHugh J in Re Minister for Immigration and Multicultural Affairs ex parte Miah (2001) 206 CLR 57 at [145]-[148], whether a later hearing “cures” a procedural defect in an earlier decision making process depends upon the circumstances. His Honour cited with approval the reasons of Fitzgerald JA in Hill v Green (1999) 48 NSWLR 161 at 195 and 197 (and see also Spigelman CJ in Hill at 172). Fitzgerald JA said that such “curing” was usually only applicable where the decisions were steps in a single decision making process ([150]). This did not apply where Mr Hill, a teacher, made an application under the Industrial Relations Act 1996 (NSW) for reinstatement, after a decision had been made to dismiss him under the Teaching Services Act 1980 (NSW). He also had a right of appeal under the Government and Related Employees Appeal Tribunal Act 1980 (NSW) to that Tribunal (GREAT). In Hill there was discussion about Matkevich where a majority (Powell and Cole JJA; Kirby P dissenting) held the GREAT had not been in error in deciding that a breach of procedural fairness could be cured by it hearing an appeal on the merits.
207 It was not necessary for the court in Hill to decide the correctness of Matkevich but interestingly Fitzgerald JA at [165] indicated an appeal to GREAT could be on the merits or that “a person charged with a disciplinary offence who is denied procedural fairness in respect of the initial determination could appeal to GREAT on that sole ground and obtain an order setting aside the initial determination and remitting that matter for redetermination”. This echoes how the appellant approached the hearing at first instance.
208 In the present case I am not satisfied that the application to the Arbitrator did or could “cure” the defect in procedural fairness as submitted by the respondent. This is because:
(aa) The application was not part of a single decision making process. A separate procedure was invoked, that of the Arbitrator dealing with this as an “industrial matter”.
(bb) The hearing was not conducted on the basis of a full review of the merits, even though it might have been.
(cc) Additionally, neither the respondent nor the Arbitrator conducted the hearing on the basis that the denial of procedural fairness could be cured by the appellant, on Mr Moodie’s behalf, making submissions and adducing evidence on the merits.
(dd) The Arbitrator’s reasons also did not proceed on this basis.

(iv) Hardship
209 I have earlier set out the respondent’s counsel’s submissions on appeal about the question of hardship. With respect, they do not persuade me that giving Mr Moodie an opportunity to be heard on this topic was futile. To reach this conclusion in my opinion involves an unacceptable degree of speculation. It would ignore the point made by the Full Federal Court in Dixon at 182, quoted earlier.

(v) The Fairness of Suspension Without Pay and the Public Interest
210 The respondent submitted it was not in the public interest for Mr Moodie to be paid whilst suspended, whatever his personal circumstances. I do not accept this to be necessarily so.
211 In my opinion in considering this issue it needs to be borne in mind the reasons why it was appropriate for the disciplinary process against Mr Moodie not to continue pending the hearing and determination of the criminal charges. As stated in the letter from Tottle Partners dated 19 October 2006 to continue with the disciplinary process could cause unfairness to Mr Moodie in the criminal proceedings. His response to the report might have involved the surrender of his right to silence, a fundamental right of an accused in the criminal process. On the other hand to not comment on the report could lead to Mr Moodie’s dismissal. Also if the disciplinary proceedings were decided against him then this could prejudice his trial. It is these difficulties which made a decision to defer the disciplinary process fair and appropriate.
212 That this was a proper way to proceed has been acknowledged by courts which have recognised that an injunction might be granted to restrain disciplinary processes pending the finalisation of parallel criminal proceedings. (See for example Bannister v Director General, Department of Corrective Services [2005] 1 Qd R 117 and Lee v Naismith [1990] VR 235).
213 In Re Martin; ex parte Dipane (2005) 30WAR 164, Roberts-Smith JA, with whom Steytler P and Miller AJA agreed, said at [41] that interference with “an accused’s right to silence … is a relevant (and may be a decisive) factor in determining that disciplinary or other administrative proceedings ought not be concluded pending the outcome of relevant criminal proceedings”.
214 The issue was also considered by the Full Court of the Supreme Court of Western Australia in De Castro Martins and Others v Racing Penalties Appeal Tribunal of Western Australia and Another (Unreported, Library No 970519C, 10 October 1997). Steytler J, with whom Kennedy J agreed, at page 10 quoted with approval the reasons of Hope JA in Edelstein v Richmond (1987) 11 NSWLR 51 at 59. Hope JA said that views, “have been expressed and implemented that so long as related criminal proceedings may be instituted or are pending, it is generally undesirable that disciplinary proceedings should be dealt with … A possibly stronger view was expressed by McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 266 that, while criminal proceedings are pending, it was only proper that disciplinary proceedings should not be brought on for hearing.” In Martins an application to the Racing Penalties Tribunal against a greyhound trainer alleged a breach of a racing rule. The actions involved in this alleged breach could also be the subject of criminal charges. The trainer requested the Tribunal to adjourn the hearing of the disciplinary charge pending a decision being made about whether criminal charges would also be laid. The adjournment was not granted. Steytler J decided the adjournment ought to have been granted in part because of the trainer’s “right to silence”.
215 In Bannister, corrective service officers were committed for trial for an alleged assault. They sought an order that the respondent be restrained from proceeding with disciplinary action about the same incident under the Public Service Act 1996 (Qld) until the criminal proceedings had been concluded. The application was refused because the applicants had already surrendered their right to silence to the extent of providing responses to the disciplinary charges. However Holmes J endorsed what Hope JA said in Edelstein. His Honour said the possibility of the use, against the applicants in their criminal trial, of evidence derived from statements made in the disciplinary proceedings was a proper consideration in the exercise of the discretion to grant an injunction ([17]).
216 A similar issue was considered by Southwell J in Lee v Naismith. There was an inquiry by the Pharmacy Board against a pharmacist who asserted criminal proceedings might also be brought against him for the same incident. It was held in the circumstances that there was no more than a fanciful possibility of this and therefore an injunction would not be granted. His Honour referred with approval however to the reasons of McHugh JA in Herron v McGregor at 66 and quoted above, in the reasons of Hope JA in Edelstein.
217 As I have said, on the basis of these authorities and the fundamental principles of the rights to silence and a fair trial, the decision by the respondent not to proceed with the disciplinary proceedings against Mr Moodie was a fair and appropriate one. It was a decision taken by a public officer and it was in the public interest, as well as that of Mr Moodie, to try and ensure there was a fair trial. In these circumstances reliance upon the “public interest” argument of the respondent, accepted by the Arbitrator at [37] of her reasons, about “expenditure of public funds” can be over-emphasised.
218 In my opinion it was not inevitable that the respondent would have rejected a submission that, given the deferral of the disciplinary process was the fair thing to do, it was not inappropriate for the respondent to continue to pay the salary of Mr Moodie.

(vi) Conclusion on Futility
219 For these reasons the appellant has established the Arbitrator erred in her conclusion on “futility”. The Arbitrator also erred in concluding in [39][d] that there was “no unfairness in the suspension without pay”. The denial of an opportunity to heard was unfair. In my opinion grounds of appeal (2) and (3) have been established.
220 I need to consider however whether the effect of this is that the appeal should be allowed, and if so what orders the Full Bench should make. To do so involves analysis of other issues as follows.

(j) The Consequence of the Procedural Fairness Error
(i) The Issues
221 The appellant submitted that if the Arbitrator erred in her reasoning and conclusion on the procedural fairness issue, it followed that the decision to suspend without pay was “void”. This was said to have the consequence that Mr Moodie was entitled to the benefit of orders requiring the payment of remuneration. This was both for past non receipt of remuneration and remuneration in the future until such time, if any, as the respondent validly made a decision to suspend without pay.
222 In my opinion however the appellant’s submission conflates a number of issues; or put slightly differently attempts, too simplistically, to collapse a number of issues into one. The issues may be summarised as:
(aa) What was the consequence of the denial of procedural fairness at common law.
(bb) If this was that the decision was “void”, what does this mean, in the present context.
(cc) In particular, does it mean there is an entitlement to past and future remuneration. If so what is the basis of such an entitlement as a matter of law.
(dd) If the answer to the first sentence in (cc) is yes, does the Arbitrator’s jurisdiction extend to making orders of this type.
(ee) If the answer to (dd) is yes, should the Arbitrator have made such orders in dealing with the industrial matter.

(ii) Decision to Suspend Without Pay Void
223 The appellant’s submission that the Arbitrator ought to have found the decision to suspend without pay was “void”, is unobjectionable as far as it goes. The submission is supported by decisions of the High Court. For example, in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said that an administrative decision infected with, amongst other things, a denial of procedural fairness was “regarded, in law, as no decision at all”. In making this comment, their Honours cited the joint reasons of Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614, 615 (McHugh J agreeing at 618).
224 In Bhardwaj, the High Court upheld the validity of the actions of the Refugee Review Tribunal in making a second decision upon an application, when the first was flawed by a denial of procedural fairness. The High Court held that as no decision had in effect been made, the Tribunal had not yet completed the exercise of its jurisdiction and could validly make the second decision.

(iii) What Does Void Mean
225 In the present case however what does the decision being “void” mean? What consequence does it have? Is it axiomatic, as the appellant would have it, that there should have been an order that the respondent pay to Mr Moodie the remuneration he has not been paid? And if so why? For example was the consequence of the decision being void that there was no effective suspension without pay, so that the respondent not continuing to pay Mr Moodie was in breach of contract?
226 As discussed in Judicial Review of Administrative Action, Aaronson and Others, 3rd ed, Law Book Company, 2002 at 620 the reasons for decision in Bhardwaj “explicitly acknowledge the limited utility of such concepts as nullity, or voidance from the beginning, or distinctions between “void” and “voidable”. Gaudron and Gummow JJ even forswore the utility of “invalidity” and “vitiated”. Of the remaining three judges, Gleeson CJ studiously avoided all of those terms except “invalid” and, even there, his Honour was careful to explain the concept purely in terms of its legal consequences, emphasising that these might vary between context. Callinan J avoided all of the terms without exception. Kirby J used them all, but went to considerable length to show his discomfort with them.” (The footnotes are omitted but referred to Bhardwaj at 612/613 per Gaudron and Gummow JJ, 618 per McHugh J, 643/647 per Hayne J, and 604/605 per Gleeson CJ.)

(iv) Void Decisions in the Employment Law Context
227 As submitted by the appellant the authorities have held that if decisions under statute about dismissal or suspension from employment are made in breach of the requirements of procedural fairness, the decision is “void”. In Dixon the Full Federal Court said this and concluded the decision of the Public Service Board to dismiss Mr Dixon was “invalid and ineffectual”. In Everingham the teacher was, pursuant to a statute, suspended with a direction by the Minister that she was not entitled to salary for the period of suspension. King CJ with whom Mohr and Bollen JJ agreed said at 746:
“The valid exercise of the power to suspend is conditioned upon compliance with appropriate standards of procedural fairness. The denial of natural justice involved in non-compliance with those standards renders the decision and the consequential direction as to salary, void and of no effect.”

228 In Re Piper, Rowland J made absolute an order nisi that the suspension of the applicant without pay be quashed. Gallop J in Schmohl made a declaration that the decision to suspend the plaintiff from duty was void and of no effect. (See also Malloch at 1584; Ridge v Baldwin (1963) 2 All ER 63 at 81, 106, 116 and 119).
229 In Foong v Norfolk Island Hospital Enterprise (2002) 170 FLR 354 the plaintiff sought a declaratory order that a resolution of the board of management of the respondent which suspended his employment was “void and of no effect”. The plaintiff also sought reinstatement and damages. It was held the board did not have any power to suspend (366) and the purported suspension was “null and void” (367). An order for reinstatement was said to be “not necessary in the case of the Crown, once the Court declares that the purported suspension had no effect”. As to the “monetary claims” it was said to be “not feasible to deal with this aspect at this stage”. Unfortunately there is no later report of that aspect of the case.
230 A case where “back pay” did occur when a void decision to dismiss had occurred was Grady, which was cited by the Arbitrator. There an officer employed by the Commissioner for Railways of New South Wales was dismissed for misconduct under s82 of the Government Railways Act 1912 (NSW) (the GRA). The GRA also gave a right of appeal to a board. Mr Grady was dismissed under s82 but an appeal was allowed by the board. In joint reasons Rich, Dixon, Evatt and McTiernan JJ at 232 said the power to dismiss was not absolute, but subject to review. Their Honours said that if the board found no misconduct had occurred “the power of the officer to dismiss never arose”. Their Honours said at 233:
“But when the Board allows the appeal simpliciter, it completely reverses the dismissal. The provisional character of the dismissal is evident, and it is as if it had never taken place. Performance of the officer's duties is excused, not because he has been temporarily out of the service, but because under the conditions of his service he has been dispensed from carrying his duties out. If it turns out that he ought not to be dismissed and his provisional dismissal is set aside, it does not seem unreasonable that he should receive the salary attached to the office accruing in the mean time, and that he should do so simply because his dismissal is vacated or quashed.”

231 Their Honours supported their decision by reference to another decision handed down on the same day, Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220. In that case an officer was convicted of a “felony”. After that he was not paid salary as he was “deemed to have vacated his office” under s80 of the GRA. He successfully appealed against his conviction and then sued the Commissioner for unpaid salary. He succeeded in the High Court on the basis that as the conviction was quashed “ab initio” therefore “in contemplation of law, [he] was never out of office, he is entitled to the salary attached to it. There is no allegation that, under the terms of his employment, an actual performance of duty is a condition precedent to his right to salary” (225/6).
232 Both Grady and Cavanough are distinguishable however from the present case. They turned on the positions occupied by the officers and the contents of the GRA.
233 None of the cases cited above have discussed the effect of a “void” suspension without pay, on the basis of a denial of natural justice, on the non payment of past salary. This has legal and practical difficulties. (See generally the article by Professor Campbell, Liability to Compensate for Denial of a Right to a Fair Hearing, Monash University Law Review, 1989, Vol 15, Nos 3 and 4, 383).
234 Some of these were discussed in Chief Constable of North Wales Police v Evans (1982) 3 All ER 141. There a constructive dismissal of a police constable, by his resignation, was found to be in breach of natural justice. The House of Lords had difficulty however in deciding on an appropriate remedy. Mr Evans was a probationary constable when he resigned. By the time of the proceedings almost four years had elapsed. The Court of Appeal simply made an order that the relevant decisions of the Chief Constable were “void” without spelling out the consequences of such an order. Lord Hailsham at 145 discussed what the consequences might be. For example, as a result of the decision being void, had Mr Evans been a constable in the police force for the intervening four years? Also “since the only decision removing him from office was the decision now impugned has he now become an established constable? Has he acquired pension rights? Is he entitled to backpay?” (145). Lord Brightman at 155 said that he thought the order made by the Court of Appeal was unsatisfactory and (with the agreement of the other members of the House of Lords) decided there should be a declaration affirming that, by reason of such unlawfully induced resignation, Mr Evans thereby became entitled to the same rights and remedies, not including reinstatement, as he would have had if the appellant had lawfully dispensed with his services. His Lordship said this declaration would clarify the status of the respondent with respect to the North Wales Police and leave him free to pursue other remedies such as damages. Order 53 r7 of the Rules of the Supreme Court (NSW) was cited in support of this conclusion and it specifically said that an applicant for judicial review may claim damages. On that point therefore the authority is not apposite.
235 Macksville and District Court Hospital v Mayze (1987) 10 NSWLR 708 was an appeal about a hospital board’s purported termination of appointment of a visiting medical practitioner to a public hospital in breach of the rules of natural justice. At first instance the judge declared the resolution of the Board to be null and void and said the plaintiff was entitled to damages for wrongful revocation of his appointment, with the assessment of damages to be referred to the master. Of present relevance Mahoney JA, with whom Priestly JA agreed (Kirby P dissenting) said at 730 that accordingly the medical practitioner “remained in the office of visiting medial officer until the expiration of the period of his appointment”. Although his Honour discussed the basis upon which damages could be obtained and assessed, it was decided that whether “a basis for damages can be established in fact or in law is a matter to be determined during the enquiry to be held by the Master”. Significantly his Honour did not suggest that the order that the decision was void would necessarily lead to an award of the amount which the medical practitioner would have been paid if he had not been unlawfully terminated.

(v) Breach of Procedural Fairness and Damages
236 The issue of whether damages can generally be awarded for a breach of procedural fairness was authoritatively stated in Jarratt where McHugh, Gummow and Hayne JJ at [59] said that “where there has been a denial of procedural fairness in the exercise of statutory or prerogative powers, the law does not recognise a cause of action for damages and confines the complaint to public law remedies”. Their Honours cited the reasons of Deane J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 45.
237 The reasons of Deane J were also cited in the same context in the earlier authority of State of New South Wales v Paige (2002) 60 NSWLR 371 at [159]. (Other authorities there cited were Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 645, Macksville and Dunlop v Woolahra Municipal Council [1982] AC 158 where the Privy Council agreed with the decision of the New South Supreme Court that a failure by a public authority to give a person an adequate hearing before deciding to exercise a statutory power did not of itself amount to a breach of a duty of care “sounding in damages” (239)) At [171] and [172] in Paige, Spigelman CJ said the expansion of administrative law had “not led to a significant role for monetary compensation …Compensatory damages for administrative error are available only in very limited circumstances”. At [175] his Honour said that “the purpose of judicial review of administrative decisions is not compensatory. Its purpose includes such objectives as upholding the rule of law and ensuring effective decision making processes”.
238 The High Court in Northern Territory v Mengel (1996) 185 CLR 307 decided there that a government officer who acted without legal authority was not liable in tort outside the established categories of negligence, misfeasance in public office and breach of statutory duty.
239 This review of relevant authorities establishes that the assumption or submission by the appellant, that an order requiring payment to redress the past loss of remuneration followed axiomatically from the breach of procedural fairness, cannot be accepted. This point was made by the respondent’s counsel at point 2 in the hearing and again at the hearing of appeal.

(vi) The Arbitrator’s Jurisdiction to Make an Order Redressing Past Non Payment of Remuneration
240 The issue is further complicated as the Act does not expressly provide the Arbitrator with powers which include the making of orders for loss of past remuneration. This issue was not, because it was unnecessary to do so, explored in Jones. Nor has it been the subject, so far as I am aware, of any detailed discussion by the Full Bench. There were also no detailed submissions on the issue at first instance or on appeal. A relevant question is if as a matter of law a court would not have the power to award damages in the present circumstances, could the Arbitrator make orders of the type sought? As I have said earlier, in the exercise of the Arbitrator’s jurisdiction and despite the equity and substantial merits direction, the law could not be ignored. The lack of any entitlement at law for payment for the period after the suspension without pay was at least a relevant consideration for the Arbitrator in deciding what orders to make.

(vii) Conclusion on Possible Order for Past Non Remuneration
241 Although the Arbitrator has been shown to have erred in not finding the decision to suspend without pay breached the requirements of procedural unfairness, I am not satisfied that the appellant has succeeded in establishing any basis upon which an order requiring payment for past non remuneration could or should have been made. I say this as it has not been established that there was any legal entitlement to the order being made, or that the Arbitrator had the power to make such an order, or if the Arbitrator did have such a power, why it should be exercised in favour of Mr Moodie. As to the latter point, this might have been different if the appellant had tried to persuade the Arbitrator that the respondent ought to have made a decision to continue the suspension with pay; but the appellant did not approach the hearing in this way.

(viii) Future Remuneration
242 The payment of future remuneration is less complicated, as if the suspension without pay decision is nullified then it does to my mind follow that the respondent’s previous decision to suspend Mr Moodie on “full pay” continues unless and until a contrary lawful decision is made.

(k) The Merits of Suspension Without Remuneration
243 In [26] and [27], the Arbitrator seems to have reasoned that:
(i) A suspension is of all rights and obligations under the contract including the right to payment.
(ii) From 7 July 2006 the obligation to perform work was suspended but all other rights and obligations continued.
(iii) When the respondent informed Mr Moodie of the decision to suspend without pay, the rights and obligations under the contract were placed in abeyance.
(iv) The obligation to pay Mr Moodie was therefore suspended.

244 This reasoning does not make clear what the position was if the decision to suspend without pay was “void” for procedural unfairness. Given however the context and text of [29], quoted earlier, I think the Arbitrator’s process of reasoning was that if there was procedural unfairness this would have affected the validity of the decision to suspend without pay. That is the validity of the suspension of all rights and obligations including remuneration was dependent on the procedural fairness issue. However the Arbitrator’s reasons are consistent with thinking that even if this was so it did not mean the merits favoured declaring the decision a nullity and making the consequential orders sought.
245 I have earlier set out and commented in part on [34] of the Arbitrator’s reasons about the “merits”. In my respectful opinion, the reasoning in [34], [36] and [37] was not sound.
246 Firstly, the lack of a “proper process” was by the failure to give Mr Moodie a right to be heard. In my opinion this failure was interwoven with the merits issue. The merits of whether it was appropriate to suspend Mr Moodie without pay could not fairly and properly be assessed without giving him an opportunity to be heard. Given that the Arbitrator did not know what Mr Moodie might have said if he had been given the opportunity to be heard, her assessment of the “merits” repeated the error of approach of the respondent. The reasons in favour of suspension without pay were looked at, but not any points which Mr Moodie may have wanted to put forward.
247 As mentioned the problem was possibly curable if the hearing was conducted upon the basis that it was the chance for Mr Moodie to make submissions on the merits. Neither party however conducted the hearing on that basis and the Arbitrator did not approach the hearing or her decision in this way. The Arbitrator’s reasons make that clear.
248 Secondly, I have previously referred to the “public interest” issue in Mr Moodie being paid when he was not working, pending the criminal charges.
249 Thirdly, and related to the second point, the Arbitrator said the delay in the respondent being able to complete the “investigation” was through “no fault of its own”, “as a consequence of agreeing to Mr Moodie’s request” and of “no benefit to the respondent to have a delay”. This ignores the point made earlier that the deferral of the “investigation” was a fair and proper thing to do, not just a benevolent action by the respondent in reply to Mr Moodie’s request. It was to facilitate Mr Moodie’s right to a fair trial. In my opinion there was a public benefit in this.
250 Accordingly as I have said earlier the conclusion in [39](d) was in error, as was the conclusion that the “merits” favoured suspension without pay. Like the respondent, the Arbitrator was not in a position to properly decide the “merits”.
251 The appropriate course was for the Arbitrator to nullify the decision and direct the respondent that before it made any decision upon whether to suspend without pay, Mr Moodie should be given an opportunity to be heard on the issue. Making these orders would have been consistent with the way in which the equity and substantial merits direction is properly construed as set out above. The actions of the respondent were not lawful, and the Arbitrator was not in a position to properly “deal with” the question of suspension without pay, on the merits.

(l) No Service No Pay for Government Employees
252 The Arbitrator found there was a suspension of all rights and obligations including the right to remuneration. As I set out earlier the appellant at times appeared to cavil with this notion, but at others asserted the respondent could have made a lawful decision to suspend without pay.
253 There are some complexities in this issue generally for government employees and in Mr Moodie’s case in particular. For example was the Arbitrator correct in saying all “rights and obligations under the contract” were “placed in abeyance”? ([26]). Did this include for example Mr Moodie’s obligation to “comply with public sector standards and codes of ethics and observe the principles of official conduct in section 9” of the PSMA? (Contract clause 2(c)). Could Mr Moodie whilst suspended, contrary to the contract, engage in “paid employment outside” his duties? (Clause 10(b)). Was the restriction on disclosure of information “[d]uring the employment” applicable? (Clause 10(b)). Additionally if being bound by any of these obligations constituted at least partial “service” did the Automatic Fire Sprinklers doctrine apply?
254 It emerges from the passages of McCarry cited by the Arbitrator that whether suspension of a government employee is necessarily without pay depends upon the terms of the applicable statute and contract. The authorities which support this contention include Grady and Cavanough, discussed earlier, Hunkin v Siebert (1934) 51 CLR 538 at 541/2; Chate v Commissioner of Police (1997) 76 IR 70 at 77/8; Browne v Commissioner of Railways (1935) 36 SR (NSW) 21 at 24; and Welbourn v Australian Postal Commission [1984] VR 257 at 267 (cf Reid v Australian Institute of Marine and Power Engineers and Others (1990) 96 ALR 174 about the suspension of a union branch secretary). It may be therefore that insufficient attention was directed to this issue at first instance. In the circumstances however that does not need to be further considered.
255 The respondent argued that because Mr Moodie was not entitled to be paid this was a factor which was relevant to whether he should be paid while suspended. Assuming the premise on which the submission was based is correct, I agree. This submission acknowledged however, as discussed with counsel, that the decision as to whether to suspend with or without pay was discretionary. In the present case the problem was that the discretionary decision was beset with unacceptable unfairness; and for the reasons set out earlier this unfairness could not be “cured” by the hearing before the Arbitrator. Therefore this argument could not properly lead to the dismissal of the application before the Arbitrator.

(m) The Bowles Decision
256 It is necessary to say something more about Bowles. I do not accept the respondent’s submission that Bowles decided both that the no work no pay principle applied to an invalid suspension and that it dictated Mr Moodie had no entitlement to remuneration. This is because the decision was specific to the facts and circumstances of Ms Bowles’ employment. Ms Bowles was engaged pursuant to s64 of the PSMA as a prison support officer. The Director General as the Chief Executive Officer of the Ministry of Justice, without authority, purported to transfer Ms Bowles from Broome Regional Prison to Hakea Prison. After this occurred Ms Bowles did not do any work. Although for a time she was remunerated this then ceased. The Arbitrator made an order that the Director General should not have ceased paying Ms Bowles her salary, should reinstate her salary and pay the balance of the salary due from the date it ceased. This was appealed against.
257 The three members of the Full Bench each wrote separate reasons allowing the appeal. I have already referred to the reasons of Sharkey P. His Honour decided the “suspension” was without legal authority but following Automatic Fire Sprinklers, as no service had been performed, this could not “found a claim for wages” ([47]).
258 Scott C specifically said that as there was no suspension in accordance with s82 of the PSMA it was “unnecessary to come to any conclusion as to the impact of a suspension on any entitlement or otherwise to payment” ([68]).
259 Scott C said in [69]:
“The Commission may, during the course of dealing with matters on the basis of equity, good conscience and the substantial merits be required to have consideration to issues of breaches of contract and of law but the ultimate test relates to resolutions according to fairness. This was confirmed by their Honours E M Heenan J. and Hasluck J. in Garbett v Midland Brick [2003 [sic] WASCA 36 at paras 84-86 and 66 respectively]. Although that matter deals with a claim of harsh, oppressive or unfair dismissal made by an employee pursuant to s.29, the principle also applies to other matters before the Commission because of the requirements of s.26.”

260 Scott C then said that whether Ms Bowles ought to be paid when she was not performing her duties depended on a conclusion of “law and fairness” ([70]). On the law, Automatic Fire Sprinklers applied. Scott C then considered the “equitable resolution of the matter”. She said Ms Bowles’ exclusion from prison was due to her “conduct and attitude” ([70]). Therefore, taking into account the interests of employer and employee, it was “unfair to require the employer to pay” after exclusion from the workplace ([70]).
261 Wood C at [82] said there was nothing in the contract preventing the employer from paying Ms Bowles whilst she did not work but the “wisdom” of doing so could be questioned. He then considered the issue of whether there was an entitlement to be paid. Wood C said that Ms Bowles had not been suspended under s82 of the PSMA but in any event she was not entitled to be paid. He did so after considering the PSMA and the Public Service Award 1992 ([84]). Section 64 of the PSMA permitted appointment as a public service officer for an indefinite period as a permanent officer. Wood C said this did not entitle an officer to not attend work and still be paid ([88]). Ms Bowles was not entitled to be paid, but whether she should have been as a matter of discretion was “another issue” ([90]). Wood C said following Automatic Fire Sprinklers to its logical conclusion could “lead to some unintended and wrong consequences, at least in matters involving public servants” ([90]). After discussing some relevant examples, Wood C said Automatic Fire Sprinklers needed to be “treated with some caution in this case”. Wood C then considered the equity and substantial merits direction and “the interests of the community as a whole” under s26(1)(c). Wood C said it was not in the interests of the community for Ms Bowles to benefit by being paid for 2 years, when she had not worked and the origin of the problem was her own actions. This was despite the inadequate processes of the appellant ([93]).
262 Accordingly:
(i) A majority in Bowles (Scott and Wood CC) did not decide it as a case of suspension or unlawful suspension.
(ii) The way in which at least Scott C took into account the equitable and substantial merits direction was, with respect, in error. This is discussed below.
(iii) The facts were distinguishable from the present because Ms Bowles was appointed under the PSMA and it was found to be her conduct which led to her exclusion from work.
(iv) Wood C questioned the applicability of Automatic Fire Sprinklers, in all situations, to the employment of public sector employees.
(v) No member of the Full Bench answered the question of whether the Arbitrator had jurisdiction to make the orders for payments to Ms Bowles.

263 As to (ii) I do not with respect agree with the broad proposition of Scott C at [69]. In my opinion Hasluck and EM Heenan JJ in Garbett were discussing the difference between an unlawful termination of employment and a harsh, oppressive or unfair dismissal. The point made was that the former may not necessarily constitute the latter. This is different from an assertion that in all matters “the ultimate test …relates to fairness”. Fairness was emphasized in Garbett because an “unfair” dismissal was the gateway to orders being made in favour of the former employee. Fairness may not be the sole or even a relevant consideration in the determination of other matters in the exercise of the Commission’s jurisdiction, as set out earlier.

(n) Appellant’s Submissions on No Work No Pay
264 Although strictly unnecessary to do so, it is appropriate I think to make brief observations on some of the appellant’s submissions.
265 The appellant argued that Dixon J in Automatic Fire Sprinklers did not have a narrow concept of “service” so, for example an employer who sent an employee on a holiday on full pay could be sued for “wages”. This example is not now apposite as paid leave is now at least a minimum condition of employment under the Minimum Conditions of Employment Act 1993 (WA). Also if it was agreed that the employee take a holiday upon “full pay” if payment of “wages” was not then forthcoming, the employer’s liability is pretty obvious. The consequence, for remuneration, of an employee being directed to “stand and wait” depends on the specific law, facts and circumstances which apply to that employment relationship. I do accept however that as stated by Wood C in Bowles, following Automatic Fire Sprinklers to its logical conclusion may not be correct in all situations involving public sector employees.
266 At first instance the appellant also relied on Csomore in support of the proposition that an employer could waive the requirement for service in exchange for the right to be paid. Whilst this may be so, it does not assist in this case, where the respondent decided there was to be suspension from duty and no pay.

(o) Entitlement to Pay and Merits - Conclusion
267 As mentioned earlier, even if the respondent’s submission that there was no entitlement to pay is accepted, this does not change my opinion that the Arbitrator could not adequately assess the merits of the respondent’s decision to suspend without pay, in the absence of Mr Moodie having been given an opportunity to be heard by the respondent. If as a matter of law Mr Moodie could not in the absence of service enforce the payment of remuneration, this was a relevant factor but not necessarily decisive of the discretionary decision to be made by the respondent. The respondent’s submissions do not therefore provide an alternative basis for the dismissal of the appeal.

Disposition of the Appeal
268 As I have set out earlier I would uphold grounds [2] – [3] of the appeal. I do not think ground [1] has been established, mainly because it asserts a broad proposition which to the extent that is relevant to the present appeal is subsumed in grounds [2] – [3]. I share at least some of the difficulties expressed by Wood C about understanding ground 4. The topics I think it covers however are adequately addressed elsewhere in my reasons. Accordingly I am prepared to simply say that it is not upheld as an independent ground.
269 I have also earlier set out my views on the orders the Arbitrator ought to have made at first instance. They were that decision of the respondent on 20 October 2006 to suspend Mr Moodie from his position, without remuneration, be nullified; and the respondent, before making any decision to suspend Mr Moodie from his position without remuneration, allow a reasonable opportunity to him to be heard.
270 As I have also said I am unpersuaded that the Arbitrator ought to have ordered the respondent to provide remuneration from 20 October 2006. In my opinion, as the decision of the respondent to suspend Mr Moodie without pay should be nullified, a consequence is that the respondent and Mr Moodie will again be in the position which they were prior to the impugned decision; that Mr Moodie is suspended on “full pay”. I consider it appropriate, for completeness and to certainty, to make an order reflecting this.
271 A minute of proposed order should be published reflecting the reasons of the Full Bench, with the parties having their statutory entitlement to “speak to” it. In my preliminary opinion this could be done by the parties providing any submissions they wish to make, in writing within 14 days. If either party considers that some other procedure ought be adopted, they can advise the Full Bench in writing of their position, which the Full Bench will then consider.

BEECH CC:
272 The essential facts are relatively straightforward. On 7 July 2006 Mr Moodie, a member of the appellant union, was notified by the Director General of a number of allegations which could constitute serious breaches of discipline and gross misconduct (document 13, AB). The Director General noted that as the allegations are of a serious nature, he directed Mr Moodie to leave the workplace immediately, and to remain away from it until he is directed to return. Mr Moodie would remain on full pay during the absence until otherwise determined by the Director General.
273 An investigator was appointed and on 6 October 2006 Mr Moodie was informed of the outcome of the inquiry and given a copy of the investigator’s report. Mr Moodie was asked whether there was any further information he wished to place before the Director General (document 27).
274 On 19 October 2006 Mr Moodie’s solicitors wrote to the Director General informing him that Mr Moodie had been informed that the Corruption and Crime Commission intended to charge him with various criminal offences in connection with the first of the allegations and requested that any further consideration of the conduct of Mr Moodie by the Director General be deferred until the outcome of the criminal charges is known. The next day, 20 October 2006 the Director General wrote to Mr Moodie’s solicitors stating that in light of the information of the intention to charge Mr Moodie with various criminal offences, Mr Moodie was to be suspended from duty without pay.
275 On that day also the appellant union referred a dispute to the Public Service Arbitrator (which became PSAC 28 of 2006). The schedule attached to the application, particularly paragraph 1, stated that the appellant union is in dispute with the Director General in regard to:
· allegations made against Mr Moodie,
· the lack of procedural fairness,
· the manner and nature of the investigation of the allegations,
· the failure of the employer to provide adequate time to respond to the allegations,
· the failure of the employer to provide adequate access to records, resources, equipment and personnel necessary for the union to be able to adequately respond to those allegations within the time permitted,
· the request for Mr Moodie to be on paid leave for an extensive period,
· the failure of the employer to maintain contact with Mr Moodie during this time, and
· the failure of the employer to utilise the usual or normal administrative policies, practices and procedures in an attempt to clarify and/or resolve the issues in question.

276 The union sought an order that the employer immediately cease taking its current course of action, an extension of time to respond, an opportunity for direct dialogue with a senior representative of the Director General to give him an opportunity to discuss and explain matters and a copy of all documents, files, materials, etc. necessary to enable him to properly and fully answer the allegations against him.
277 Subsequently, and after conciliation, a matter was referred for hearing and determination, that matter being set out at the commencement of the Arbitrator’s decision (2007 WAIRC 01271; (2007) 87 WAIG 3120). The appellant union sought orders and a declaration that the decision of the Director General to suspend payment of Mr Moodie’s remuneration be void and of no effect and that the Director General resume payment of his salary and reimburse him the amount he would have received had his salary not been suspended. Other orders were also sought regarding the return to Mr Moodie of his motor vehicle and associated entitlements however these do not appear to have been pursued and no further consideration needs to be given to them. It is against the dismissal of this matter that this appeal is brought.
278 The essence of the appellant union’s position is that Mr Moodie was denied procedural fairness when the Director General decided to suspend him without pay. It asserts that a purported exercise of power against a person whilst denying that person procedural fairness would be liable to be set aside by a court exercising its judicial review jurisdiction and asks: why should any other result follow when the Public Service Arbitrator’s dispute resolution jurisdiction is engaged?
279 I approach the appeal as follows. The Public Service Arbitrator first posed the question “Is there a power to suspend?” In these appeal proceedings, both the appellant union and the Respondent proceeded on the basis that the Director General had the power to suspend Mr Moodie without pay and I consider that they were correct to do so. Mr Moodie is not a “public service officer” within the meaning of s76(1) of the Public Sector Management Act, 1994 because he is not employed within the “Public Service” as that term is defined in s34; therefore s82 of the Public Sector Management Act, 1994 which provides a power to suspend a Government officer without pay, does not apply to him. However, as the Arbitrator concluded, correctly in my view with respect, the Respondent’s power to appoint Mr Moodie brought with it the statutory power to suspend him: see s52 of the Interpretation Act, 1984.
280 The Arbitrator’s further conclusion that the power to suspend Mr Moodie carries with it the removal of any obligation on the Director General to continue to pay Mr Moodie during the period of suspension was not challenged on appeal and is also correct in my view.
281 The Arbitrator then considered whether Mr Moodie should have been given an opportunity to be heard on the Director General’s intention to suspend him without pay before the Director General in fact suspended him without pay. The Arbitrator concluded at [32] that:
“ [u]nder normal circumstances, an employer is obliged to provide procedural fairness to an employee prior to making any decision which will have an adverse effect upon the employee.”

282 If the Arbitrator is saying that the Director General was obliged to give Mr Moodie an opportunity to be heard prior to suspending him without pay, then the Arbitrator was, in my view, entirely correct. However, by qualifying her conclusion with the words “under normal circumstances” it is not clear whether the Arbitrator found that Mr Moodie had indeed been denied procedural fairness.
283 Mr Moodie was denied procedural fairness and the Arbitrator should have so found. Before deciding to suspend Mr Moodie without pay, the Director General should have given Mr Moodie an opportunity to comment upon his intention to do so. It is unarguable that suspending Mr Moodie without pay would have an immediate and severe effect upon him financially. The decided authorities show that there is a common law duty to act fairly, in the sense of according procedural fairness in the making of an administrative decision which affects the rights, interests and legitimate expectations of a person, subject only to the clear manifestation of a contrary statutory intention (Kioa and Others v West and Another (1985) 159 CLR 550 per Mason J at 584; Dixon v Commonwealth of Australia (1981) 61 ALR 173; Everingham v Director General of Education (1993) 31 ALD 741).
284 As Olsson AUJ said in Re Kenner; ex parte Minister For Education [2003] WASCA 37 at [56], “Kioa stands as authority for the basic proposition that, when a decision is to be made which will deprive a person of some right or interest, that person is entitled to know the case sought to be made against them and to be given an opportunity of replying to it. This carries with it a concomitant duty to adopt fair procedures which are appropriate, in conformity with relevant statutory requirements, and adapted to the circumstances of the case.”
285 This is so in the public sector in this State whether or not the administrative decision is made according to the common law or by statute. Thus, where an employer acting pursuant to s82 of the Public Sector Management Act, 1994 intends to suspend a Government officer without pay, the employer has a duty to give the employee an opportunity to be heard on that intention: Re Piper; Ex Parte Meloney (1996) 63 IR 473.
286 Mr Moodie was not given an opportunity to be heard. Therefore the decision of the Director General to suspend Mr Moodie without pay would be quashed if it was brought before an administrative tribunal or a court exercising a judicial review jurisdiction. It is at this point that the appellant union complains that if that is the case, why should any other result follow before the Public Service Arbitrator?
287 The answer lies in the jurisdiction of the Arbitrator in s80E of the Industrial Relations Act, 1979. The Arbitrator had before her an industrial matter relating to a government officer (Mr Moodie being a government officer for the purpose of the jurisdiction of the Arbitrator, even if he is not a “public service officer” within the meaning of s76(1) of the Public Sector Management Act, 1994). The jurisdiction of the Arbitrator is to enquire into and deal with the industrial matter.
288 In doing so, the Arbitrator is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms: see s26(1)(a) of the Industrial Relations Act, 1979 as applied by s80G(1) of that Act. I consider that Mr Andretich is quite correct in his submission that the discretion vested in the Arbitrator, and for that matter in the Commission generally when acting under s26(1)(a) of the Act, goes further than merely quashing or declaring void the decision of the Director General. Section 80E(5) of the Act states:
“Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.”

289 Therefore, the Arbitrator is specifically empowered to review, nullify, modify or vary the decision of the Director General, “in the course of” the exercise by her of her jurisdiction to enquire into and deal with the matter. The reviewing, nullifying, modifying or varying a decision of the Director General may not of itself necessarily deal with the matter which is before the Arbitrator. In order to deal with the matter, a further step may be necessary.
290 As Wheeler J and Le Miere J observed in Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005 WASCA 244]; (2005) 149 IR 160 at 169, there is no power conferred by the Industrial Relations Act, 1979 upon the Public Service Arbitrator to engage in anything in the nature of “judicial review”, or to make a bare declaration. That is jurisdiction of a kind quite different from the merits-based enquiry contemplated by s80E.
291 Therefore, a finding that Mr Moodie has been denied procedural fairness is not an end in itself; it is one step in determining how the industrial matter is to be dealt with. A breach of the rules of procedural fairness is but one relevant circumstance in the Arbitrator “dealing with” the industrial matter and in some cases it can be a most important circumstance (cf. Shire of Esperance v Peter Maxwell Mouritz (1991) 71 WAIG 891 per Kennedy J at 893). For that reason, Ground 1 is not made out.
292 After concluding at [32] that under normal circumstances an employer is obliged to provide procedural fairness to an employee prior to making any decision which will have an adverse effect upon the employee, the Arbitrator said:
“However, where it would be futile to do so, in that it would not alter the decision, then there is no such requirement.”

293 In doing so, the Arbitrator relied upon the decision of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141. However, I consider the Arbitrator went too far in concluding that Stead is authority for a proposition that the common law duty to act fairly, in the sense of according procedural fairness in the making of an administrative decision which affects the rights, interests and legitimate expectations of a person, subject only to the clear manifestation of a contrary statutory intention, is removed by any notion of “futility”. The common law duty, in this case the right of Mr Moodie to be heard, remains. Even if it could be validly said in the context of this case that the evidence showed that the denial of natural justice did not deprive Mr Moodie of the possibility of a successful outcome, and I do not think it can be validly said, he was still denied natural justice. The Arbitrator erred in not so finding.
294 My conclusion that it could not be validly said in the context of this case that the evidence showed that the denial of natural justice did not deprive Mr Moodie of the possibility of a successful outcome is the substance of ground 2 of the appeal. In ground 2, the appellant union is critical of the conclusion of the Arbitrator at [33] that it would have made no difference to the Director General in his decision to suspend Mr Moodie without pay for Mr Moodie to have been given an opportunity to be heard. Ground 3 of the appeal alleges that the Arbitrator erred in assuming that the only matters about which Mr Moodie might have made submissions were those matters specified at [33] of the Arbitrator’s reasons.
295 The Arbitrator’s conclusion that there was “little by way of the facts” which he could have put to the Director General follows her observation that “[t]here is no dispute about the facts surrounding the suspension” and the Director General did not require him to respond to the investigation report at that time. That conclusion carries the assumption that if Mr Moodie had been given an opportunity to be heard about the Director General’s intention to suspend him without pay, his submissions would be about matters of a factual nature in relation to the criminal charges and hence there was little which could be said by way of facts.
296 There is no warrant for such an assumption. There was no evidence before the Arbitrator about what Mr Moodie may have put to the Director General had he been given an opportunity to be heard. There may well have been, as the appellant union suggested, broader or at least different issues upon which Mr Moodie may have advanced submissions. As Rowland J observed in Re Piper (op. cit. at 477) “[a]n employee in that situation can suffer severe hardship. He may have no other source of money on which to live and at the same time, as he is still employed he is usually unable to seek or obtain other employment.”
297 In this appeal, it was submitted on behalf of the Director General that any submission could only be limited to Mr Moodie’s personal circumstances and “these would not have produced a different outcome”. If accepted, this submission suggests, with respect, that there is no point in giving an employee an opportunity to be heard regarding the intention of the employer to suspend without pay if all the employee will raise is his/her personal circumstances or the personal hardship which will be caused because that will not affect the employer’s intentions.
298 That cannot be the case. First, those are the very issues identified by Rowland J as being the rationale behind the duty to afford procedural fairness. It will be about those very issues that the opportunity to be heard is to be given.
299 Secondly, having regard for the common law duty to act fairly, in the sense of according procedural fairness in the making of an administrative decision which affects the rights, interests and legitimate expectations of a person, the employer’s mind cannot be closed to whatever the employee might say. The position cannot be pre-judged by the Director General. The Director General must have an open mind and judge each case according to its circumstances.
300 That being the case, even in the language of Stead, it was not possible to say that if Mr Moodie had been given an opportunity to be heard prior to the Director General suspending him without pay, it could not possibly have produced a different result. I consider with respect that Mr Borgeest, who appeared for the appellant union, is quite correct when he submitted that too ready an acceptance of a conclusion that to have afforded procedural fairness could have made no difference to the outcome would go a long way to reducing to nothingness a substantial common law obligation constraining the exercise of public power. I consider grounds 2 and 3 are made out.
301 The duty on the Arbitrator to decide the matter according to equity, good conscience and the substantial merits of the case entitled her to consider all of the circumstances before her. The Arbitrator did go on to consider that the nature and seriousness of the charges to be laid against Mr Moodie, the seniority and nature of the position held by him, the appropriateness of the Director General providing him with work, the lengthy delay before a trial, and that the deferral of the disciplinary proceedings was at Mr Moodie’s request, all merited suspension without pay. This lead the Arbitrator to dismiss the matter.
302 However, whilst the Arbitrator followed a correct process, the failure of the Arbitrator to correctly hold that Mr Moodie had been denied procedural fairness together with the misapplication of the test in Stead must lead to the conclusion that the decision of the Arbitrator to dismiss the matter was contrary to the equity, good conscience and the substantial merits of the case. The conclusion reached took no account of the fact that the employer should have given Mr Moodie an opportunity to be heard. In the circumstances of this case I regard that fact as a most important circumstance; it was at the heart of the matter before the Arbitrator.
303 The appellant union seeks orders that the Director General’s decision to suspend Mr Moodie with pay is a nullity and that he now be paid between the date of the suspension and the date of any order to issue from this appeal, and that the payment continue subject to any lawful cessation of payment. In my view the appropriate orders to made by the Full Bench in accordance with ss49(5) and (6) of the Act are to uphold the appeal and vary the decision of the Arbitrator so as to nullify the decision of the Director General and oblige the Director General to give Mr Moodie an opportunity to be heard in relation to the intention of the Director General to suspend him without pay.
304 If it was possible to make an order in these proceedings, as the appellant union seeks, requiring payment to Mr Moodie of the salary has had withheld from him to date, it could only be considered appropriate in accordance with ss49(5) and (6) if the evidence was clear that had Mr Moodie been given the opportunity to be heard his salary would not have been suspended. That is far from the case here.
305 The most that can be said on these facts is that if on 20 October 2006 (the date the Director General suspended Mr Moodie’s salary) the Director General instead had given Mr Moodie an opportunity to be heard, his salary would not have been suspended on that day. He would merely have continued to be stood down from duties on full pay, as he had been since on about 7 July 2006. Whether, and from what date, the Director General would have then suspended Mr Moodie’s salary is not known.
306 Equally, the most that can be said is that the effect of the Full Bench in these proceedings nullifying the decision of the Director General to suspend Mr Moodie’s salary is to return Mr Moodie from the date of the Full Bench’s order to the position he was in immediately prior to his suspension without pay, a position which will remain until at least any further decision of the Director General.

WOOD C:
Background
307 The brief history of this matter is that on 7 July 2006, Mr Moodie, Executive Director, Technology, Department of Health was directed to remain away from his workplace. An investigation was instituted into “allegations of serious disciplinary issues” following which the then Director-General of Health (“the Director-General”) wrote to Mr Moodie on 6 October 2006 advising that he was “considering what further action will be taken” in respect of one of the allegations. That allegation being that Mr Moodie had submitted false documentation which resulted in him being paid monies to which he was not entitled. Mr Moodie was asked whether he wished to provide “any further information” before a decision was taken. He was requested to provide this information within five working days from receipt of the letter of 6 October 2006. That deadline, it would seem, was later extended to 24 October 2006.
308 On 19 October 2006, solicitors for Mr Moodie wrote to the Director-General advising that officers of the Corruption and Crime Commission (“the CCC”) had informed them that the CCC intended to charge Mr Moodie with various criminal offences connected to the allegations he faced. They advised that Mr Moodie would be defending these charges and they requested that consideration of the alleged breach of discipline be deferred until the outcome of the criminal charges. Mr Moodie’s solicitors went on to say that, “Whilst we would hope that we can reach agreement in relation to the manner in which our client’s employment should now be dealt with, for the sake of good order, we must record that all of our client’s rights are reserved”.
309 Mr Moodie’s solicitors received a letter from the Director-General the next day who advised that in light of the CCC’s intention to charge Mr Moodie, he would be suspended without pay from close of business that day. On the face of it, the advice that the CCC intended to lay criminal charges led to a change of mind by the Director-General about the appropriateness of continuing to pay Mr Moodie his salary and benefits. There is no contest, on appeal, about the capacity of the Director-General to suspend without pay or that the decision was detrimental to Mr Moodie, or that no opportunity was provided to Mr Moodie to make submission as to why suspension without pay should not occur. The Director-General agreed to defer the disciplinary process on 23 October 2006, pending the outcome of the criminal charges.
310 The matter came to the Public Service Arbitrator shortly thereafter by way of an application pursuant to s44 of the Act. The dispute was not resolved and was arbitrated at hearing on 28 June 2007. The respondent maintained that they were able legally to suspend without pay, that it would be unreasonable and not in the public interest to set aside the suspension and that there was no right on the part of Mr Moodie to gain remuneration for services he had not rendered. The appellant maintained that the lack of procedural fairness meant the decision of the Director-General should be rendered void. The appellant claimed Mr Moodie should receive all remuneration as from 20 October 2006 until such time as the opportunity to respond had been given and the matter finalised. This summarises adequately the Memorandum of Matters referred for Hearing and Determination.

Grounds of Appeal
311 I have had difficulty in concluding my views on this appeal and, on reflection, this arises largely from a combination of the expression of the grounds of appeal, the manner in which the appellant has approached their case (both on appeal and at first instance) and the declaration and relief sought by the appellant.
312 The grounds of appeal and remedy sought are as follows:
“1. The Commissioner erred in that she had insufficient regard to the principle that the resolution of disputes according to equity, good conscience and the substantial merits of the case must ordinarily require that appropriate remedies be granted in response to violations of the rules of procedural fairness.
2. The Commissioner erred in finding that it would have made no difference to the respondent in its decision to suspend Mr Moodie's salary for Mr Moodie to have been given an opportunity to be heard.
3. The Commissioner erred in assuming that the only matters about which Mr Moodie might have made submissions upon, were he afforded an opportunity to be heard, were those matters specified in paragraph [33] of the reasons.
4. The Commissioner erred in having regard to the reasonableness or otherwise of any requirement that the respondent provide work to Mr Moodie, as the respondent’s prior decision to relieve Mr Moodie from the obligation to perform duties was not put in issue.”

Remedy:
“The appellant seeks orders that the decision and orders of the Commission below be set aside, orders that the respondent’s decision to suspend Mr Moodie’s remuneration be declared void, and orders that the respondent (a) pay to Mr Moodie the remuneration he would have received, but for the void decision, between the date of that decision and the date of the Full Bench’s order, and (b) resume payments of Mr Moodie’s remuneration, subject to any subsequent lawful cessation of that remuneration.”

313 Having reviewed all submissions and material of the appellant, it would seem that grounds 1, 2 and 3 are directed toward the singular purpose of persuading the Full Bench that because there was a denial of procedural fairness to Mr Moodie in the decision to suspend him without pay, then the only remedy is to declare that decision void and pay him full remuneration from 20 October 2006 as if no decision had ever been made. This payment to continue until that matter, whether to suspend without pay or not, is resolved properly. The approach adopted by the appellant is automatic; the remedy must follow once a finding of denial of procedural fairness is made.
314 Ground 1 might appear to be a ground which argues that the Arbitrator erred by giving insufficient weight to a relevant factor (namely lack of procedural fairness) in discharging the obligation under s26 of the Act. Grounds 2 and 3 appear to be directed to the question of “futility” as discussed in Stead v State Government Insurance Commission (1986) 161 CLR 141 (Stead). I am not clear what Ground 4 means. The ground seems to suggest that the Arbitrator erred in having regard to an irrelevant factor, namely the reasonableness of having to provide work to Mr Moodie, and contends this was not a matter which formed part of the hearing at first instance. There was no direct submission on this ground by the appellant. Consequently, I regard ground 4 as having not been made out. I will concentrate on grounds 1, 2 and 3 which appear directed to the same purpose; the pivotal importance, in the view of the appellant, of the denial of procedural fairness.
315 Indeed the appellant in their outline of submissions identified the question to be addressed on appeal as follows:
“An employee of a public authority was denied procedural fairness in the exercise of a statutory power, the exercise of which directly and severely affected his rights and interests. The purposed exercise of power would be liable to be set aside by a Court exercising its judicial review jurisdiction. Why should any other result follow when the Public Sector Arbitrator’s dispute resolution jurisdiction is engaged?”

316 Later in covering the reasons by the Arbitrator of the “merits” of the application the appellant at paragraph [28] said:
“By focussing upon the “merits” of “the suspension without pay”, the Arbitrator addressed herself to the wrong question. The only relevant “merits” were those of the decision to refuse to afford the employee an opportunity to be heard.”

317 And later at paragraph [31]:
“The substantial interest of the appellant’s member, Mr Moodie, is the interest in enjoying his common law right to be heard, on a matter of vital importance to him. The statutory injunction to give effect to ‘equity, good conscience and the substantial merits of the case’ is no licence to disregard a common law principle of procedural fairness. Quite the reverse. The substantial merits of the case require attention to the fact that a substantial common law right was infringed, and that the employer need not have incurred any very significant cost or delay in affording that right. Nothing about affording the right would have prevented the employer from ultimately having regard to, or giving effect to, such considerations as it considered relevant and determinative.”

Futility
318 The issue of “futility” as enunciated in Stead was canvassed in detail by both parties at first instance and on appeal.
319 The Arbitrator in her reasons discussed Stead and identified the legal principle as:
“Under normal circumstances, an employer is obliged to provide procedural fairness to an employee prior to making any decision which will have an adverse effect upon the employee. However, where it would be futile to do so, in that it would not alter the decision, then there is no such requirement (Stead v SGIO (op cit)).”

320 With respect I consider the Arbitrator misconstrued the principle in Stead. The question of futility as enunciated by the Arbitrator is self-defeating, namely the decision-maker decides that to grant procedural fairness would not alter their decision. It may arise in very limited circumstances where say an affected person has absconded and hence cannot be given an opportunity to be heard. However, Stead concerned the review of a decision by a Court as to whether a new trial should be ordered due to a lack of procedural fairness at first instance. The question of futility related to whether a new trial would be futile, as any new information (law or fact) could be said to be irrelevant. The hurdle applied to deciding “futility” was low. It is not that the new information has to be relevant, or that one has to prove it would lead to a different result. It is that the information is not irrelevant. There is a possibility, however small, that the decision maker at first instance could have come to a different result if procedural fairness had been afforded. Stead cautioned also that the review body should be more hesitant in matters of fact as opposed to matters of law; it being easier to determine, on review, the irrelevance of a matter of law. The original decision maker is in a better position to judge the importance of a factual matter. In any event, the point being that it is not for the original decision maker to judge the “futility” question. Such a proposition might lead to the ready denial of procedural fairness.
321 The Arbitrator then went on to conclude at paragraph [33]:
“As is usual in such cases where the employee may jeopardise his or her position before a criminal trial by making any statements to the employer the respondent agreed to the disciplinary process being held in abeyance pending the outcome of the criminal proceedings. In this case, that meant that the employer, at Mr Moodie’s request, did not require him to respond to the investigation report at that time and it therefore could not conclude the disciplinary process. Therefore, there is little by way of the facts which Mr Moodie could have put to the respondent. Accordingly, it would have made no difference to the respondent in its decision to suspend without pay for Mr Moodie to have been given an opportunity to be heard it would have been futile.”

322 With respect, I consider the Arbitrator erred also in her assessment of the futility or otherwise of providing Mr Moodie with an opportunity to be heard as to whether he should be suspended without pay. The Arbitrator decided effectively that because, for valid reasons relating to pending criminal charges, Mr Moodie did not wish to respond to the investigation report at that time, then it would have been futile to allow him an opportunity to address whether he should now be suspended without pay. However, the issues of the outcome of the disciplinary process and the suspension without pay are discrete. The Arbitrator says that because Mr Moodie had asked to have the disciplinary process deferred then he could say little “by way of facts” about the suspension without pay.
323 The decision to be taken in concluding the disciplinary process is not the same as the decision as to whether his pay should have been suspended or not. Many of the same factors might be considered in coming to a decision of these two issues, but they are not the same issue, and different factors may also be relevant in coming to any conclusions. Presumably the respondent had initially to decide, prior to the commencement of the disciplinary investigation, whether to suspend Mr Moodie without pay. The information reasonably available to the respondent at that earlier stage about any disciplinary breach was of course more limited.
324 With respect, as I consider the Arbitrator misconstrued the question of futility in the two ways I have just described, I consider that grounds 1, 2 and 3 of the appeal have been made out. Put differently, the issue of the lack of procedural fairness was a factor, and a significant factor, to be considered by the Arbitrator. As this issue was misconstrued it could not have then been weighed properly into the judgement which the Arbitrator was required to undertake. I need to qualify my comment in relation to grounds 1 and 3 and how they are expressed.
325 At face value ground 3 would appear to be made out for the reasons expressed above. Namely, the Arbitrator did conclude wrongly that the only matters upon which Mr Moodie might comment were those relating to the criminal charges as identified in paragraph [33] of the decision. However, the appellant uses the words “assuming” in relation to the Arbitrator, and “might have made submission” in relation to Mr Moodie. I have considerable difficulty with this ground given the manner in which the appellant presented their case before the Arbitrator. As stated the appellant adopted an automatic approach. They presented the view that they simply had to identify that the procedural unfairness had occurred and that would inevitably lead to a decision to void the suspension without pay and to payment of ongoing remuneration and damages. In my mind this misconceives the jurisdiction of the Arbitrator and the principle in Stead.
326 In Stead @ p.147 the High Court identified the principle as, “All the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome”. This suggests that the appellant had to “show” something other than simply the existence of the denial of procedural fairness. As I have stated, the hurdle to overcome is low. It is also dependent on the circumstances of the case. However, it is not, in my view, for the respondent to prove futility, as counsel for the appellant at times would seem to suggest. It is for the appellant who seeks the review to submit why overturning the decision (awarding a new trial) is not futile. This could be achieved by identifying the matters, not in any detail, which could have been put, had Mr Moodie had the opportunity to do so. The task is not to prove whether these matters would, or would not have, produced a different result. However, it is not for the review body to guess or “assume” that something “might” have been put if the opportunity was afforded. Put this way the exercise of the review body in deciding futility lacks the quality of decision-making; it becomes supposition.
327 Counsel for the appellant before the Arbitrator stated:
“it would be helpful if I explained how narrow our application is. On the…on the basis of the authority of the High Court in Dixon which is not contradicted by the Department as I understand there’s a duty of fairness which is attracted by the decision to suspend without pay. There was no attempt to discharge that obligation on the part of the Department and we say the authority…if you follow the authorities then it means that the decision is void and should be set aside and should be effectively undone. And, if that particular decision is undone we get back to the situation you were prior to the 20th of October, namely where Mr Moodie has been relived of his obligation to perform duty and the disciplinary process is incomplete. This is just because there has been failure to give an opportunity to be heard.” (T9)

328 Later counsel for the appellant dealt with Stead and had the following exchange with the Arbitrator:
“Now it goes on to make it plain the it really has to the most exceptional circumstances…the most unusual and exceptional circumstances for a departure from the rules of natural justice could be forgiven. So to illustrate the point that they are making, the very narrow point, they say by way of illustration if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when the appellant court thinks that the question of law must clearly be answered against the aggrieved party then that’s no basis to order a new trial.
So, on its own terms Stead’s case is dealing with exceptions that at the absolute margin. Now it’s not clear - - -
SCOTT C: Was it exceptions that won’t in effect make any difference?
MR BORGEEST: Well the word that the court used is if its futile. Now, I will have to wait and see how Mr Andretich advances the idea that anything Mr Moodie could have said would have made no difference. That would be a heroic submission I would say.” (T20)

329 At the point where the Arbitrator was reviewing the decision of the employer and seeking to understand whether an “exception” might apply, counsel for the appellant submitted effectively that it was for the respondent to identify such an exception. Counsel for the appellant goes on to state:
“Mr Moodie wasn’t there and there’s all sorts of considerations that the employer might have had on its mind. Mr Moodie was never told about them. It might have been, for all Mr Moodie knew, it might have been that the employer was under some mistaken view that it had a legal obligation that it had no legal choice, that it had no discretion available to it. That is must suspend salary and there was nothing that it could do otherwise.
Now, it’s…for consideration like that had been advanced then Mr Moodie could have gone to his solicitors and they could look at the question and might have just been able to disabuse the employer of a mistaken view. We just don’t know because none of these considerations were laid open before Mr Moodie.” (T21)

330 This seems to suggest an entitlement to remain on pay unless the respondent could show good reason why Mr Moodie should not be paid; as opposed to the respondent giving Mr Moodie an opportunity to submit why he should not be suspended without pay. This approach makes more of the notion of procedural fairness than can be warranted in these circumstances. I am mindful of the words of Brennan J in Kioa v West (1985) 159 CLR 550 at 612:
“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.”

331 The closest the appellant came before the Arbitrator to presenting some information which may be relevant in a Stead sense was when Mr Borgeest submitted:
“It shouldn’t need to be said but having heard what’s fallen from Mr Andretich already it needs to be said that Mr Moodie’s entitled to be treated as innocent until proven guilty. It can easily be inferred further that the withdrawal of remuneration wrongly, the wrongful withdrawal of his remuneration since October has caused Mr Moodie and his family considerable hardship. Now there’s no evidence to that. I am simply suggested what might be inferred from the fact that he is a employee and you told that he has a family.
He is the person most directly affected and it is those interests which the commission is directed to take into account, not to the exclusion of other interests but directed to take into account under section 26.” (T25)

332 The respondent then dealt with the issue of hardship. Mr Andretich said:
“We are now into almost the end of June 2007 and I only hear indirectly the submission that would be made on his behalf is economic hardship. That was all that was put forward and it would be, in my humble submission, the only one that he could put forward.” (T31)

And further:
“Impliedly the submission that would be made and I would submit could only be sensibly made is a matter of hardship by which in the circumstance could not override the public interest of not having a person of his seniority for a protracted period of time being paid to stay at home. The employer was prepared to do that when it had some control over as to how long that would be, it has no control over that. You did hear from Mr Wilson that a hearing date has not been set. I don’t think we know where those proceedings are or when they’re likely to be finalised.” (T33)

333 None of this was addressed by counsel for the appellant in reply.
334 Before the Full Bench, counsel for the appellant maintained, in written submission, a similar approach of non-disclosure. He submitted that:
“There may well have been broader issues, or at least different issues, upon which Moodie may have advanced submissions, analogous to the range of issues suggested by Deane J in the extract quoted above.” (paragraph [25])

335 The respondent’s alternate view was expressed in their outline of submissions as follows:
“11. The decision appealed against is a discretionary one in respect of which the Appellant has the burden of showing that there has been a miscarriage: House v. The King (1936) 55 CLR 499, Gromark Packaging v. FMWU (1992) 73 WAIG 220.
12. Where there has been a denial of procedural fairness in the failure to accord a hearing the complainant must show that he or she could have submitted something of substance. Lord Willberforce neatly stated the position in Malloch v. Aberdeen Corporation [1971] 1 WLR 1578 at 1579 as follows:
“The Appellant has first to show that his position was such that he had in principle, a right to make representations before a decision was taken. But to show this is not necessarily enough, unless he can also show that if admitted to State his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an initial administrative fault cannot give him a remedy in that courts unless behind it is something of substance which has been lost by the failure. The Court does not act in vain …………”
The Appellant did not at first instance put forward any case, whether of substance or otherwise, that Mr  Moodie might have put if he had been given a hearing.
13. The Respondent is entitled to waive a hearing where it could not have produced a different outcome: SGIO v. Stead (1986) 161 CLR 141 at 145.
14. The Commissioner correctly concluded that insofar as the disciplinary matters were concerned the Appellant could say nothing of substance because Mr Moodie had requested consideration of these be deferred so as to not prejudice the hearing of the concurrent criminal charges (para 33 Reasons for Decision). Accordingly any submission could only be limited to the personal circumstances of Mr Moodie and how the decision would be productive of personal hardship for him. These would not have produced a different outcome.”

336 I have made plain the difficulties I have with the approach as reflected in paragraph 13 and 14 of the respondent’s submissions. It is also the case that the Arbitrator did not consider any question of hardship.
337 I later pressed Mr Borgeest on this matter. We had the following exchange:
“WOOD C: And what was the applicant going to do at that stage?
MR BORGEEST: Ah, well that would be a matter for him. Ah, he would have…he would have…
WOOD C: But having read these papers I am not clear what the applicant was going to do at that stage. I can tell you now that’s important to me.
MR BORGEEST: I can tell you the kind of submissions that may have been made. But I am saying that without instructions. I would be saying that - - -
WOOD C: I don’t need full colour submission, I simply want to know…you alluded it earlier in the submission that there were matters that could have been submitted, I don’t need detail. I just need to know what sort of grounds are to be covered. I assume you are telling me the applicant wanted the opportunity and he was going to take advantage of that opportunity.
MR BORGEEST: Yes and on the…based on all the cases that flow from Stead and the cases to which the Acting President refers last week and I’ll come to those, there’s not much more that needs to be shown by an applicant in these circumstances. The allegation that it’s futile is built upon as assumption that you need to investigate precisely this question Commissioner, the question of well tell me how the opportunity would have been ah, used. Well the cases tell us firstly and I am not avoiding the question and I will answer the question, what the cases tell us is the really the obligation is on the person asserting the futility to demonstrate that it was impossible that anything that could have been said could have made difference, that’s really our answer to the point in Stead.
But to answer your question about what could have been raised, the topics plainly could have included the question of hardship and that’s a question contemplated by Chief Justice King in Everingham. Also the important question of maintaining the integrity of the disciplinary process itself. The disciplinary process that had been established by the Director General required ah, that things move in a deliberate way, that he have consideration of properly investigated facts and that the…that the employee have proper opportunities to be heard. Now, it could well have been submitted on the basis of what is before the Full Bench that a decision to remove the salary would have placed a particular pressure on the employee to… a pressure which tended to make more likely that he would simply resign to get out of the circumstance and seek new income elsewhere rather then to stay in the process and advance what could be said within it. That’s…and lastly…lastly an area would have been a…a set of challenges to the fairness of the process that had been undertaken thus far. And, that’s…it’s in relation to that point that I directed the Bench’s attention earlier to the kinds of things that have been put in issue by Tottle Partners in the earlier correspondence about the timing, the bone fides of the Director General and so on.” (T15)

338 It is not for the Arbitrator to “assume” what “might” have been put. Having expressed this difficulty with the conduct of the case, it is true that the issue of hardship was raised at first instance (T25), and a suggestion (I can put it no higher) that it was possible that Mr Moodie could have redressed some legal issue put forward by the respondent (T21). The latter point has no relevance, given all that has transpired. Mr Moodie has not had the opportunity to be heard on the question of hardship as it relates to suspension without pay.
339 I turn then to my reservations as to ground 1. This ground seems to suggest that the Arbitrator was required to weigh factors and gave insufficient weight to the lack of procedural fairness. Albeit, as covered already, the appellant maintained that only a lack of procedural fairness was relevant on review.
340 During the course of the hearing the Arbitrator described her task in brief as, “Well, this matter appears to me to come down to an argument about issues both of law and fairness and whether the aspect of the failure to afford an opportunity to be heard on a particular point voids the decision or whether there are further considerations”. Counsel for the respondent agreed with this summation. Counsel for the appellant did not demur.
341 From paragraph [34] the Arbitrator considered the merits of the suspension without pay and said:
“it should be noted that the role of the Public Service Arbitrator as the constituent authority of the Commission, according to s 6 of the IR Act and s 26(1)(a) and (c) in particular, is the resolution of disputes according to equity, good conscience and the substantial merits of the case. It is not an administrative tribunal whose role is to examine the application of proper process and declare void those decisions which fall short of the appropriate standard. It is to provide practical and equitable resolutions. In this case, that requires consideration of whether the respondent’s decision to suspend without pay was fair and equitable even if a proper process was not applied.”

342 I am not clear whether in saying, “even if a proper process was not applied”, the Arbitrator considered that the lack of procedural fairness was unfair. There is no explicit finding to this effect. However, with the exception of this last phrase the Arbitrator, in my respectful view, described properly her task. The Arbitrator undertook rightly a broader task than the automatic task submitted by the appellant.
343 The Arbitrator under s80E(5) had the power to “review, nullify, modify or vary” the decision of the Director-General to suspend Mr Moodie without pay. The nature of the Arbitrator’s powers was expressed clearly by Wheeler J and Le Miere J in Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005 WASCA 244] (2005 149 IR 160 at 169 as follows:
“28. Turning, then, to the question of the proper construction of s 80E(5), read with s 80E(1), in our view the controversy which has arisen relates to a false issue. As we have noted, there is no power conferred by the Act upon the Arbitrator to engage in anything in the nature of “judicial review”, or to make a bare declaration. That is jurisdiction of a kind quite different from the merits-based inquiry contemplated by s 80E. To the extent that the reasons of the Full Bench might be read as suggesting that there is such power, they are in error.
29. However, the powers of the Arbitrator are very wide. They are to inquire into and deal with any industrial matter. To the extent necessary, the exercise by an employer in relation to a government officer of a power relating to that industrial matter may be reviewed, nullified, modified, or varied by the Arbitrator.
30. An inquiry into an industrial matter will, where that industrial matter is affected by other legislation, or where the actions of persons involved in the industrial matter are, in some respect, governed by other legislation, involve an inquiry into what was done, in that legislative context. In order to determine how to “deal with” an industrial matter, the Arbitrator must find relevant facts. If it is the case that a relevant factual finding suggests that a person has been guilty of unlawful or improper conduct, that is a finding which it is open to the Arbitrator to make, not as an end in itself, but as a step in determining how the industrial matter is to be dealt with.
31. Where, as is presently the case, the way in which officers in the public service deal with each other is the subject of principles and requirements contained in legislation such as the PSM Act, it will often be desirable for the Arbitrator to consider whether the behaviour of individuals involved in the industrial matter has been in conformity with those principles and requirements. Again, findings of that kind would not be made as an end in themselves, but would be made in order to determine how, in the broad statutory context, it would be appropriate to deal with the industrial matter.
32. It will on occasion, as part of that process, be necessary for the Arbitrator to undertake a consideration of the relevant statutes, so as to ascertain how they apply to the facts as found. That exercise is undertaken, not in order authoritatively to declare the meaning of the statutory provision, but again as a step in the process of ascertaining what is required, in the statutory context, to deal with the industrial matter.
33. Those conclusions may on occasion lead to the view that it is necessary in order to deal appropriately with the industrial matter, to nullify, modify, or vary an action or decision of an employer, pursuant to s 80E(5). That subsection does not confer any independent jurisdiction to quash those decisions, but only to do so to the extent necessary to ensure that the industrial matter is dealt with as contemplated by s 80E(1). Similarly, the word “reviewed” in s 80E(5) is plainly not intended to confer some independent power to review any decision of an employer, but only a power to review (and, if necessary, to differ from) the decision where it is necessary to do so as part of the process of dealing with an industrial matter.”

344 These reasons might also lead to some doubt as to whether the bold remedy sought by the appellant, namely to “declare void” the decision of the employer, is capable of being awarded. This is not a matter canvassed at first hearing or on appeal. Clearly the Arbitrator had the power to nullify the employer’s decision and I consider the power to direct the parties as to the appropriate course in the dispute.
345 The Arbitrator’s assessment of the relevant factors as to merit were expressed at paragraphs [35] - [38] as follows:
“35. The respondent made submissions as to the criminal charges. If those submissions were intended, in some way, to suggest that the probability of Mr Moodie having committed the alleged breaches of discipline or being guilty of the charges is high, and that this constitutes good reason for not providing him with an opportunity to be heard prior to the decision to suspend being made, then this is not a relevant consideration. The issue of the suspension without pay does not relate to Mr Moodie’s guilt or innocence. However, if the submission was that the nature and seriousness of the allegations is a consideration, then this is so. This factor goes to the appropriateness of continuing to have Mr Moodie undertaking work for the respondent during the time following his being charged with criminal offences, prior to their resolution.
36. In the circumstances of the nature and seriousness of the allegations, and the seniority of the position held by Mr Moodie and the nature of that position it was indeed inappropriate for the respondent to provide him with work.
37. Also, given the lengthy period which was likely to pass before the criminal charges could be resolved, it would be unreasonable and contrary to the public interest for the respondent to be required to continue to pay Mr Moodie while he was providing no work. This period of delay was beyond the control of the respondent and the respondent was unable to conclude its investigation through no fault of its own. This is as a consequence of agreeing to Mr Moodie’s request. It is of no benefit to the respondent to have such a delay, although it is to Mr Moodie’s benefit.
38. Therefore in the circumstances of:
(a) the nature and seriousness of the charges;
(b) the seniority and nature of the position held by Mr Moodie;
(c) the inappropriateness of the respondent providing him with work;
(d) the lengthy delay before a trial; and
(e) placing the disciplinary proceedings in abeyance at Mr Moodie’s request,
the merits of the situation favour the suspension without pay.”

346 The Arbitrator’s assessments of those issues are expressed in brief terms. However, I have no doubt that each of those issues, with the exception of 38(e), were relevant considerations for the Director-General, and given all the circumstances weighed against Mr Moodie. This comment does not relate in any way to the innocence or otherwise of Mr Moodie. It is simply an assessment of the information on hand at that time which had relevance to the question of suspension without pay. Mr Moodie was entitled to request that the disciplinary process be put into abeyance, and this request was granted rightly. This matter (i.e. [38(e)]) should then not be held against him in considering suspension without pay.
347 The Arbitrator concluded at paragraph [39] that:
“(c) it would have been futile to have provided Mr Moodie with an opportunity to be heard in respect of the suspension prior to the decision having been made; and
(d) alternatively, in the circumstances, there was no unfairness in the suspension without pay.”

348 I have dealt with the error concerning the Arbitrator’s conclusion expressed at sub-paragraph [39(c)] of the decision. That sub-paragraph, as expressed, suggests that the application is disposed of for that reason of “futility”. The error as to “futility” however, infects the judgement made at paragraph 39(d) in that it is not an alternative. It is a factor, and an important factor, to be weighed into the judgement of merit. Sub-paragraph [39(d)] commences “alternatively”, which suggests that the application is dismissed for other reasons, namely “in the circumstances, there was no unfairness in the suspension without pay”. This marries with paragraph [34] of the reasons where the Arbitrator says, “In this case, that requires consideration of whether the respondent’s decision to suspend without pay was fair and equitable even if a proper process was not applied.” One could read the Arbitrator’s reasons as suggesting that the “proper process” was of no importance in that judgement. I consider it would be incorrect to do so, however, it remains that the conclusion in [39(d)] could not be made without first construing properly the issue of futility.
349 Given the manner in which the appellant approached their case there is little in the grounds of appeal which go to challenge directly the balancing judgement the Arbitrator had to make about the merits of the application. As stated, the appellant at paragraph [28] of their outline of submission stated, “The only relevant “merits” were those of the decision to refuse to afford the employee an opportunity to be heard.” Nevertheless, with the caution I have expressed, I consider grounds 1, 2 and 3 have been made out.
350 The powers of the Full Bench on appeal are stipulated in ss49(5), (6) and (6a) as follows:
“49. (5) In the exercise of its jurisdiction under this section the Full Bench may, by order —
(a) dismiss the appeal;
(b) uphold the appeal and quash the decision or, subject to subsection (6), vary it in such manner as the Full Bench considers appropriate; or
(c) suspend the operation of the decision and remit the case to the Commission for further hearing and determination.
(6) Where the Full Bench varies a decision under subsection (5)(b) the decision as so varied shall be in terms which could have been awarded by the Commission that gave the decision.
(6a) The Full Bench is not to remit a case to the Commission under subsection (5)(c) unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.”

351 In my view, the Arbitrator should have nullified the decision of the Director-General to suspend Mr Moodie without pay and directed the Director-General to afford Mr Moodie a reasonable opportunity to submit why he should not be suspended without pay. The Full Bench has the power to now make the appropriate order. I consider that the appeal should be upheld on grounds 1, 2 and 3 and the Arbitrator’s decision should be varied by requiring the Director-General to now afford Mr Moodie an opportunity to be heard as to whether he should be suspended on pay.
352 I would make one final comment. Given my reasons, it is not necessary to deal in any detail with the submissions made by counsel for the respondent about the application of Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 and the Full Bench decision in Director-General, Department of Justice v Civil Service Association of Western Australia Inc (2003) 83 WAIG 908 (Bowles). I was a member of that Full Bench and my judgement is there to be read. However, I do not consider that the conclusions which the respondent seeks to draw from the Full Bench’s decision are valid.
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