2008 WAIRC 00297
APPEAL AGAINST THE DECISION MADE ON 29 JANUARY 2008 RELATING TO SUSPENSION OF APPELLANT WITHOUT PAY

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MR GREGORY ROBERT IRELAND
APPELLANT
-V-
THE DIRECTOR-GENERAL, DEPARTMENT OF HEALTH
RESPONDENT
CORAM PUBLIC SERVICE APPEAL BOARD
SENIOR COMMISSIONER J H SMITH - CHAIRMAN
MR G RICHARDS - BOARD MEMBER
MR J FRAME - BOARD MEMBER
HEARD TUESDAY, 15 APRIL 2008
DELIVERED FRIDAY, 9 MAY 2008
FILE NO. PSAB 4 OF 2008
CITATION NO. 2008 WAIRC 00297

CatchWords Industrial Law - Public Service Appeal Board - Appeal against decision of respondent to suspend the appellant without pay - decision adjusted by setting the decision aside - respondent took into account irrelevant considerations - respondent prejudged outcome of disciplinary proceedings - Industrial Relations Act 1979 (WA) s 80I; Public Sector Management Act 1994 (WA) s 8(1)(c), s 80, s 81, s 82, s 83, s 84, s 85 and s 86; Criminal Code (WA) s 223, s 245 and s 246; Industrial Relations Commission Regulations 2005 (WA) reg 107(9); Public Sector Management (General) Regulations 1994 (WA) reg 16 and reg 20.
Result Appeal upheld.

Representation
APPELLANT MR S FARRELL AND MR B CUSACK, AS AGENTS

RESPONDENT MS T COLE, OF COUNSEL


Reasons for Decision

1 These are the unanimous reasons for decision of the Public Service Appeal Board ("the Board").
Background
2 On 31 January 2008, Gregory Robert Ireland ("the appellant") filed a notice of appeal to the Board against a decision by the Director-General, Department of Health ("the respondent") made on 29 January 2008 to suspend the appellant without pay pursuant to s 82(1) of the Public Sector Management Act 1994 ("PSM Act").
3 The appellant was suspended without pay when he was served with a notice that he was to be investigated for a breach of discipline arising out of a fight with another employee at a staff Christmas party in December 2007.
4 Until late in March 2008 the Commission was unable to constitute a Public Service Appeal Board in respect of this matter as the Department of Health and The Civil Service Association of Western Australia Incorporated were unable to nominate members to the Board. Once a Board was convened a scheduling conference was held by the Board on 31 March 2008. At that conference the appeal was set down for hearing on 15 April 2008.
5 Pursuant to reg 107(9) of the Industrial Relations Commission Regulations 2005 prior to the hearing the appellant's representative filed a statement of facts which states as follows:
a. The Appellant, Mr Gregory Robert Ireland, is employed as a Level 7 Finance and Contracts Manager by the Respondent.
b. The Appellant has been employed by the Respondent for twenty eight years and has an unblemished record.
c. On 14th December 2007, the Respondent's Social Club held a Christmas Party at the offices of the Respondent.
d. At this party, after having been continually harassed by another member of staff, Mr Brocklehurst, throughout the party, this harassment ended with the Appellant being assaulted by being spat upon by Mr Brocklehurst.
e. The Appellant then punched Mr Brocklehurst and ended up in a scuffle with him.
f. On 20th December 2007, the Respondent wrote to the Appellant advising him that he was suspected to have committed a breach of discipline under section 80 of the Public Sector Management Act 1994.
g. The Appellant responded to this letter on 7th January 2008.
h. Attached to the Appellant's letter of the 7th January 2008 was a letter from Mr Rob Willday, A/Director of the Aged Care Policy Directorate, in which Mr Willday offers to accommodate the Appellant in his area and provide him support and supervision whilst the disciplinary process is on foot.
i. The Respondent wrote again to the Appellant on 11th January 2008 advising him that an investigation had been initiated and that it was also proposing to suspend the Appellant without pay. The Appellant was provided with an opportunity to make a submission regarding the proposed action.
j. On 23rd January 2008 the Appellant made a submission to the Respondent objecting to the proposed course of action.
k. Attached to this submission were letters of support from senior employees of the Respondent.
l. On 29th January 2008 the Respondent advised the Appellant that he had decided to suspend him without pay.
m. On 31st January 2008, the Appellant wrote to the Respondent, pursuant to s 82(3) of the Public Sector Management Act 1994 applying to have his pay reinstated. The Applicant also lodged appeal PSAB 4 of 2008 on this day.
n. On 22nd February 2008, the Respondent wrote to the Appellant declining his application to have his pay reinstated.
o. The actions of the Appellant in punching Mr Brocklehurst and subsequently grappling with him were provoked by the distasteful assault by Mr Brocklehurst upon the Appellant.
p. The criminal investigation into the incident concluded that there had been no unlawful assault because of the extreme provocation upon the Appellant.
6 The appellant in the notice of appeal states the respondent's decision to suspend him without pay is harsh and unreasonable.
7 The appellant seeks that the Board use its powers under s 80I(d) of the Industrial Relations Act 1979 ("IR Act") to adjust the respondent's decision to suspend him without pay. The appellant also requests that the Board orders the respondent to reinstate all benefits due to him as if the decision had not been made effective from the date of the decision to suspend without pay.
8 The respondent in the notice of answer and counter-proposal states that given the seriousness of the allegation made against the appellant, the respondent's decision is in no way harsh, oppressive or unfair and is compliant with the provisions of s 82(1) of the PSM Act.
Documentary evidence of the decision to suspend
9 On 20 December 2007, the appellant was notified by Dr Neale Fong, the Director-General of Health, by letter that he may have committed an act which may constitute a breach of discipline under s 80 of the PSM Act. In the letter Dr Fong stated that the appellant's alleged attack on Mr Tom Brocklehurst may constitute a breach of discipline by failing to comply with s 9 of the PSM Act which provides general principles of official conduct. The letter also stated that the appellant's alleged behaviour may also contravene the WA Public Sector Code of Ethics and the WA Health Code of Conduct.
10 The appellant provided a response to the notice of the suspected breach of discipline on 7 January 2008. In the response the appellant said that he struck Mr Brocklehurst once or twice about the head after he was provoked by Mr Brocklehurst following a verbal altercation when Mr Brocklehurst "hawked up" and spat directly into his face from point blank range. Attached to the appellant's response was a letter to the Respondent from Mr Robert Willday, the Acting Director of the Aged Care Policy Directorate, in which Mr Willday stated that although he did not attend the function he was able to speak favourably on behalf of the appellant and that he was able to provide the appellant with accommodation, supervision and support in the Aged Care Policy Directorate to assist the appellant's early return to work.
11 On 11 January 2008, the respondent informed the appellant in a letter that an investigation was being instituted pursuant to s 81(2) of the PSM Act to conduct an investigation into a suspected breach of discipline. In the letter the appellant was advised that the respondent proposed to suspend him (the appellant) without pay. Dr Robyn Lawrence, who was at that time the Acting Director-General of Health, stated the action to suspend was contemplated "… due to the serious nature of the allegation against you and in the operational interests of the Department of Health of WA."
12 In a response dated 23 January 2008, the appellant informed the respondent that he was married and had two sons aged six and eight, that he was the sole income earner in his family and the implications and effect on them would be severe should the Department proceed with its proposed action. He reiterated that he had a long and unblemished history of employment with the Department, that he was the victim of an unprovoked assault and that his response was instinctive. He pointed out that he understood the investigation may take a long time even though the facts are of quite short compass and the matter is not complex. He also pointed to the fact that he had received significant support from senior staff of the Department, in particular Mr Willday who would be happy to accommodate him within his directorate and provide supervision and support whilst the investigation was underway. The appellant attached to his response a letter from Gail Milner, the Acting Operations Director of Health Policy and Clinical Reform. Ms Milner in her letter also supported Mr Willday's proposal to allow him (the appellant) to return to work. Ms Milner not only provided a character reference for the appellant, but also stated that the appellant's attributes were crucial to the success of the efforts required to return the Home and Community Care program to an acceptable level of compliance with the Australian Government Standards, and that the appellant's continued absence would have an effect on the program and the Department's reporting and acquittal obligations with the Australian Government. Also attached to the appellant's response were letters of support going to his character from Paula Gevers, the Acting Manager of Community Services of the Aged Care Policy Directorate and Janice Fletcher, Senior Policy Officer/Silver Chain Contract Manager in the Aged Care Policy Directorate. A letter was also attached from a member of the Social Club. None of the letters of support obtained by the appellant dealt with the circumstances of the incident that occurred at the party.
13 In a letter dated 29 January 2008 to the appellant, Dr Peter Flett, who was then the Acting Director General of Health, informed the appellant that he had considered 'the written response dated 23 January 2008 and all of the circumstances surrounding the alleged suspected breach of discipline and concluded that there was no alternative other than to suspend him (the appellant) without pay from expiration of his long service leave entitlements on and from 29 January 2008. In the letter Dr Flett, stated: "The decision to suspend you without pay is not to punish you. The allegation against you is sufficiently serious to warrant that you not be allowed to return to the workplace until resolution of the allegation against you."
14 The appellant requested the respondent to reconsider its decision. In a letter to Dr Flett dated 31 January 2008 he stated: "The suspected breach of discipline occurred as a result of a unique set of events and circumstances during the course of the evening. These included multiple, deliberate insults, aggressive invasion of my personal space and, after all previous goads had failed to illicit a response, deliberate spitting to my face. I reacted instinctively to that final provocation. There is no possibility that these circumstances and events will be duplicated. I would also like to take this opportunity to express again my deep remorse for my actions. They were completely out-of-character and at odds with who I am." He then put the option that if he was not able to work in Mr Willday's area during the investigation he could work from home as he communicates exclusively via email because of his hearing loss, so his physical location is irrelevant in terms of his ability to do his job. In this letter the appellant stated that to disallow these requests would raise a real risk that he and his family would be left destitute if the suspension was allowed to stand.
15 Dr Flett rejected the appellant's request to reconsider the decision in a letter to the appellant dated 22 February 2008. In the letter Dr Flett stated:
"Whilst I acknowledge that my decision to suspend you without pay may have a financial impact upon you, there are a number of considerations that are relevant to my decision to suspend you without pay including:
i. the serious nature of the allegation against you,
ii. your seniority (Level 7 Public Service Officer),
iii. the prima facie evidence against you,
iv. your admissions that you did strike Mr Brocklehurst, and
v. the potential outcome of the disciplinary process initiated against you."
Evidence given by the witnesses at the hearing
16 The parties tendered witness statements setting out the evidence in chief of each of the witnesses for the appellant and the respondent. The appellant gave evidence on his own behalf. First Class Constable John Bowyer and Mr Scott Roderick Mathews also gave evidence on behalf of the appellant. Witness statements of Ms Gail Milner and Mr Robert Michael Willday were tendered into evidence on behalf of the appellant's case without those witnesses giving oral evidence, as the respondent did not require those witnesses to be produced for cross-examination. Mr Marshall Kingsley Warner gave evidence on behalf of the respondent.
17 The appellant testified that he is employed as a Level 7 Manager of Finance and Contracts, in the Statewide Contracting Directorate of the Department of Health. He has been employed by the Department for 28 years. The appellant suffers from a hearing disability.
18 The appellant had been Mr Brocklehurst's supervisor from May 2006 until July 2007. During that time Mr Brocklehurst's work performance came into question and in July 2007 the Director transferred Mr Brocklehurst to another position within the Directorate. On 14 December 2007, the appellant attended a Department of Health staff Christmas party at 189 Royal Street, East Perth. During the course of the Christmas party a number of non-verbal exchanges took place across the canteen involving Mr Brocklehurst and the appellant. The appellant says it is his opinion that Mr Brocklehurst was affected by alcohol at the party and was trying to antagonise him.
19 The appellant says that during the evening of the Christmas party he consumed 5 or 6 cans of beer, some mid-strength, a large meal and drank some water over a period of 4 to 5 hours. At approximately 9:30 pm Mr Brocklehurst approached him when he was standing with Mr Scott Mathews. Mr Mathews is the appellant's supervisor. The appellant ascertained through Mr Brocklehurst's body language and facial expressions that Mr Brocklehurst was saying something uncomplimentary. The appellant responded by saying something like "fuck you, fuck off". When he read Mr Brocklehurst's lips he could see that Mr Brocklehurst was also swearing at him. The appellant says that Mr Brocklehurst then suddenly and without warning "hawked up" and spat a large quantity of mucus directly into his face. The mucus struck him on his cheek. The appellant says he immediately became furious and instinctively reacted to the provocation. The appellant lost control of himself and punched Mr Brocklehurst with his right hand to his head. His fist connected above Mr Brocklehurst's eye. The appellant admits he may have swung more punches at Mr Brocklehurst but as far as he was aware he did not land another blow. They then grappled on a nearby table for a few seconds until separated by a colleague. The appellant says that during the struggle his shirt sleeve was torn, he received finger-sized bruises to both of his forearms where Mr Brocklehurst had been gripping his arms and his cochlear implant was dislodged from his ear.
20 When cross-examined about the incident, the appellant said that he hit Mr Brocklehurst hard enough for Mr Brocklehurst to stumble, but he maintained that his fists did not connect with Mr Brocklehurst after the first blow because they were wrestling on the table.
21 On 17 December 2007, the appellant reported the incident to his Director and shortly after was instructed to leave the Royal Street building in East Perth until further advised. The appellant was then directed to take accrued annual leave and not to visit the Royal Street offices of the Department of Health.
22 The appellant was interviewed by the police after Mr Brocklehurst laid a complaint against him. At the conclusion of their investigation, the police declined to lay charges against the appellant.
23 The appellant is married with two children. His sons are aged six and eight. He is the sole breadwinner for his family. His wife does not undertake paid work and cares for their children full-time. Prior to the suspension, his fortnightly income was $3,378 gross. The only income he has received since he was suspended is a family allowance payment of $175 per fortnight. Since 29 January 2008 he and his wife have been living off their savings which are now exhausted and family members are now providing financial support. The appellant says the suspension has affected his entire family. It has caused stress between he and his wife. His relationship with their children is also being affected. He says his parents and parents-in-law are upset by his suspension and it has caused tremendous difficulties for everyone. The appellant also says his medical practitioner has advised him that his blood pressure has increased and his diabetes has been negatively affected. However, the appellant did not provide any medial evidence in support of this contention.
24 The appellant says alternatives are open to the respondent to suspension. Mr Willday on 4 January 2008 wrote a letter offering to accommodate him (the appellant) in his work area of the Aged Care Policy Directorate. In addition Ms Milner, Mr Willday's immediate superior, has indicated to the respondent that she agrees and supports Mr Willday's offer. The appellant says he is also willing to work from home if that will assist with his return to work and Mr Willday also supports this option.
25 The appellant says he is not a risk to anyone at the Department of Health. He has a previously unblemished work history and the incident stemmed from an act of provocation. He says he is prepared to commit to making no contact with Mr Brocklehurst, will not interfere with the ongoing disciplinary process and will continue to co-operate with the disciplinary process. The appellant says he does not have or has ever had any criminal convictions, nor does he have a history of violent behaviour. In addition he has never, prior to this matter, been subject to any employer-initiated disciplinary proceedings for breach of discipline or misconduct, or subject to any performance management in 28 years of loyal service.
26 Scott Roderick Mathews is a Level 8 Manager, Contract Governance. He is the immediate superior of the appellant. Mr Mathews gave evidence that he has known the appellant for eight years and has been his supervisor for that period of time. He says that the appellant is very honest, diligent and has a good sense of humour. He also says that the appellant requires little supervision, is very approachable, friendly, considers his colleagues and provides clear directions of the tasks he requires them to complete. In addition, Mr Mathews says that the appellant is popular and well regarded by his work colleagues, who respect his intelligence and experience not only within their team but throughout the Department.
27 In relation to the Christmas party incident, Mr Mathews says that he was standing talking to the appellant and another colleague, Mr John Morrissey, when he saw Mr Brocklehurst enter the party, get himself a drink, look in the direction where he was standing with the appellant and say out loud in a derogative tone to Mr Morrissey, "Why are you drinking with those guys?" Later in the evening, Mr Brocklehurst approached the appellant and began to argue. He saw Mr Brocklehurst step towards the appellant, expel phlegm from his throat, spit it directly in the appellant's face and then turn to walk away. Mr Mathews says that for a few seconds the appellant stood still. He then saw the appellant follow Mr Brocklehurst's turn and struck Mr Brocklehurst with his right hand on the side of Mr Brocklehurst's head. He then saw Mr Brocklehurst go into a defensive position by putting his hands up above his head to protect his head and face as the appellant threw a couple of additional punches which he (Mr Mathews) thought did not make contact with Mr Brocklehurst. The appellant and Mr Brocklehurst were then separated.
28 When cross-examined Mr Mathews said he saw Mr Brocklehurst's injuries after the event and concluded Mr Brocklehurst may have injured himself during the incident as Mr Brocklehurst had a cut above the right eye and cuts below his eyes which Mr Mathews thought could have been caused by a glass in Mr Brocklehurst's hand when the altercation occurred.
29 In relation to the offer of an alternative placement, Mr Mathews testified that one of the appellant's duties is to financially manage the funding for the Home and Community Care program and the role that the appellant performs is critical to the success of that program. Mr Mathews says that since the appellant was sent home from work on Monday, 17 December 2007, his experience and skills have been sorely missed. He also said that he was aware of the offer made by Mr Willday to have the appellant work in his area and supervise him but his preferred option would be to have the appellant return to his (Mr Mathews') area. However, he supports the offer as an alternative as it will enhance the viability of the Home and Community Care program. Mr Mathews also said that he did not believe that the appellant was a risk or a threat to the health and safety of employees at the Department of Health.
30 First Class Constable John Bowyer testified that on 15 January 2008 he received a complaint and was assigned to conduct an investigation. The complaint was that the appellant had wounded the complainant (Mr Brocklehurst). The complaint was made by the complainant. Constable Bowyer conducted a thorough investigation and made a report. The investigation by Constable Bowyer involved the interviewing of 13 witnesses. Attached to his witness statement is a copy of his report. In his report he concluded that it was not in the public interest to prosecute the appellant for assault. In reaching this conclusion he had regard to whether there would be a reasonable prospect of conviction. In part he declined to proceed because the complainant provided three versions of events. He reported the complainant's accounts differed significantly in regard to details and key issues in relation to provocation and witness reliability. He also stated in his report that the witness statements obtained from other witnesses indicated that Mr Brocklehurst appeared to be impaired by alcohol as the evening progressed. Constable Bowyer also stated in his report that no witnesses concurred with the complainant's (Mr Brocklehurst's) version that he was attacked in an unprovoked manner. In addition he noted that four accounts stated the complainant spat in a deliberate manner at the appellant and that these accounts disagreed strongly with the complainant's version of events.
31 When cross-examined Constable Bowyer agreed it would be difficult to make out a prima facie case against the appellant because the complainant was an unreliable witness. However, in his view the defence of provocation meant that it was unlikely the prosecution would be successful, so he determined that it was not in the public interest to proceed as the prosecution would not be able to prove beyond reasonable doubt that the complainant was attacked. When re-examined Constable Bowyer agreed that the appellant was extremely provoked by the complainant.
32 Robert Michael Willday is employed as the Level 9 Acting Director of the Aged Care Policy Directorate. One of his duties is to act as the Western Australian Home and Community Care official and he has overall responsibility for the Home and Community Care program in Western Australia. Mr Willday has known the appellant for 20 years and during this time has worked closely with him. In his witness statement he described the appellant's character as being approachable, happy, very diligent, helpful, pleasant and likeable with a good sense of humour and very popular within the whole team. He also says that the appellant's hearing disability does not affect his participation in the team.
33 In relation to the appellant's work duties he said that whilst the appellant's current position is not located in his directorate the appellant works extremely closely with his (Mr Willday's) staff who rely on the appellant to fulfil their own duties. Mr Willday says that the appellant manages the Home and Community Care program budget of $166 million exceptionally well and that it is essential that the appellant be returned to work as his experience and skills are required, especially in the current environment of accountability to the Federal Government. Mr Willday acknowledges that no one is ever irreplaceable, but the absence of the appellant puts significant pressure on his (Mr Willday's) area.
34 Mr Willday was not present at the Christmas party at which the incident occurred. After Mr Willday became aware of the incident and the fact that the appellant had been removed from the workplace, on his own initiative he telephoned the appellant and offered to write a letter to the Department providing a character reference and offering to accommodate and supervise the appellant whilst the disciplinary process proceeded. Prior to making this offer Mr Willday sought the advice and support of his immediate superior, Ms Gail Milner, who gave her support unconditionally. Mr Willday says that the appellant working in his area would suit two purposes. Firstly, it would enhance the Home and Community Care program's integrity and, secondly, the appellant would be away from the floor where he works while the disciplinary process continues. Mr Willday also says that whilst it would be his preference for the appellant to work in his area, it would still be possible for the appellant to fulfil his duties from home.
35 Gail Milner is employed as a Class 3 Director of Operations, Health Policy and Clinical Reform. She is the immediate superior of Mr Willday. Ms Milner has known the appellant for nine years and has worked closely with him for seven years. She also speaks very highly of the appellant's work and diligence. After the incident the offer from Mr Willday was made with her support. She says to return the appellant to work and to shift the appellant's work area would suit two purposes. It would maintain the program's integrity and also remove the appellant from his normal work area whilst the disciplinary process was on foot.
36 Marshall Kingsley Warner is the Director of WA Health Industrial Relations Service which provides industrial relations advice and assistance to all Western Australian Government Health Services. Mr Warner was responsible for the conduct of the investigation into the incident on 14 December 2007 at the Department's social club Christmas party. Mr Warner has also been responsible for briefing the Director Generals of the Department of Health about any decisions which need to be made by the Department in relation to the investigation. In relation to this matter it was Mr Warner who made the recommendation to the Director General that Mr Ireland and Mr Brocklehurst be suspended without pay.
37 Mr Warner, in his witness statement recites what was reported to him about what occurred at the Christmas party. He was informed from the preliminary investigation reports and those involved in that process that over the course of the evening (although Mr Brocklehurst denies any action on his part), some negative interaction may have occurred between Mr Ireland and Mr Brocklehurst. Later on in the same evening, Mr Ireland mouthed rude comments to Mr Brocklehurst from a distance and then approached him face to face and continued on with comments. In response, Mr Brocklehurst spat at Mr Ireland and a significant amount of mucus landed on Mr Ireland's face. This act of spitting provoked Mr Ireland to punch Mr Brocklehurst in the face. Mr Brocklehurst started moving away from Mr Ireland but Mr Ireland followed him and a scuffle ensued in which Mr Ireland delivered at least one or two more punches to Mr Brocklehurst's face. Mr Brocklehurst did not retaliate with any punches.
38 When cross-examined about his knowledge of the matters revealed in the preliminary investigation, Mr Warner said that although he accepted that Mr Ireland's and Mr Brocklehurst's versions of events are disputed, the facts set out in his witness statement were the matters that were taken into account when making a decision to recommend to the Director General that the appellant be suspended.
39 Attached to Mr Warner's statement are colour photocopies of two photographs of Mr Brocklehurst's injuries. Mr Warner says he was informed that these photographs were taken immediately after the incident and that Mr Brocklehurst was conveyed to Royal Perth Hospital where he received sutures to the injuries to his face in the hospital's emergency department.
40 Mr Warner testified that prior to suspending the appellant without pay he received a submission from the appellant that due consideration be given to:
(a) his actions at the Christmas party being in self-defence as a result of an unprovoked assault on the part of Mr Brocklehurst;
(b) his 28 years' continuous employment with the public service being free of any disciplinary issues;
(c) the financial trauma of being suspended without pay; and
(d) the offer made by Mr Rob Willday to accommodate the appellant in another area of the Department whilst the investigation was taking place.
41 Mr Warner says these factors were taken seriously and he provided a briefing to the Acting Director General on the considerations he (Mr Warner) believed relevant to the decision.
42 When asked in cross-examination what factors were taken into account in making the decision to suspend the appellant without pay, Mr Warner says the factors they took into account were:
(a) the serious nature of the allegation against him;
(b) his seniority (level 7, public service officer);
(c) the prima facie evidence against him;
(d) his admission that he did strike Mr Brocklehurst; and
(e) the potential outcome of the disciplinary process initiated against him.
43 Mr Warner was cross-examined about Clause 3.2 of the Disciplinary Procedures Guide which was published by the Department of Premier and Cabinet in November 2007. The Disciplinary Procedures Guide under the heading "3.2 Suspension of employees" states as follows:
"3.2 Suspension of employees
At any point after the investigation has been initiated, section 82 of the Act allows the employing authority to suspend the respondent without pay. Suspension must be without pay as suspension implies that conditions of the contract of employment have been set-aside for a certain period of time.
Suspension should not be used as a tool by management to make an example of the respondent. This amounts to pre-judging the matter and is not in line with the principles of natural justice, as outlined in subsection 2.6.
Suspension in disciplinary matters should not be automatically applied, rather, it must be viewed as a risk management strategy. When determining if it is appropriate for a respondent to be suspended, the employing authority may wish to consider if not suspending the employee risks:
· compromising the reputation of the organisation with the public;
· the emotional or physical well being of any employee or client;
· the effective operation of any agency policies or programs; or
· prejudicing the disciplinary investigation or inquiry i.e. if there is a risk the Respondent could tamper with records required in the investigation.
Even if the agency has answered yes to these questions, suspension is not the only option; it may be deemed more appropriate to move the employee to another work location for the period of the disciplinary process.
When can the respondent be suspended?
Section 82 of the Act directs that a respondent can be suspended by the employing authority once an investigation has been initiated under section 81(2) of the Act. Should the employing authority choose not to suspend the respondent at this point, it may do so at a later stage of the process, for example if and when a charge is laid under section 86 of the Act.
If the respondent is suspended without pay for 14 days or more, Administrative Instruction 610 directs that entitlements such as salary increments, sick leave, long service leave and annual leave are affected. This Administrative Instruction is available at: http://www.dpc.wa.gov.au/psmd/pubs/legis/admin/ai610.html.
Reinstating pay
Section 82(3) of the Act allows for the reinstatement of the suspended respondent's pay at the discretion of the employing authority. This may be done following a representation by the respondent, or on the employing authority's own initiative. Issues to be taken into account of when considering such a request may include whether it is likely that the investigation and/or the subsequent processes may be lengthy or delayed, or if the respondent has submitted that they are suffering financial duress.
If, at the conclusion of the process, the employee is found not to have committed a breach of discipline, section 82(2) of the Act requires the employing authority to restore the respondent's pay for the period that it was terminated. Any other benefits lost as a result of the suspension, such as accrual of leave credits, should also be reinstated."
44 Mr Warner was asked in cross-examination whether he regarded the suspension of the Appellant without pay as a risk management strategy. In response, Mr Warner was unable to exactly recall his thought process and said that that was not something that had immediately sprung to his mind and he could not now recall whether he thought suspension was a risk management strategy. He did, however, say that he had "cast his eye over" the guidelines before making a recommendation to the Acting Director General and he had regard to the fact that there would be a negative financial impact on the appellant to suspend him without pay. When asked whether the potential outcome of the disciplinary process worked against the appellant in making the decision to suspend him without pay, Mr Warner said that "… given that a response to any disciplinary matter is proportionate to the offence if you like, it would certainly be the case in my experience that unless there was extraordinary mitigating circumstances an incident involving fighting in the workplace almost certainly would result in a decision to recommend termination of employment." Mr Warner testified that he took into account the likely outcome of the disciplinary action in making the recommendation to the Acting Director General to suspend the appellant. Mr Warner then went on to say that it was not in dispute that a physical altercation occurred and the only matters in dispute were who provoked the dispute and whether one punch or many punches were thrown by the appellant. When asked whether all assaults in the workplace should be a reason for suspension without pay whilst disciplinary procedures take place, Mr Warner said that assault in this case of this order would result typically in a decision to suspend. He said that whilst certain facts are disputed it is not disputed that there was a vigorous altercation and, in his opinion, that sort of behaviour cannot be tolerated in any Health Department workplace.
45 When re-examined Mr Warner testified that every case of this order of magnitude would result in suspension and termination.
46 When questioned about the matters discussed with the Director General when the decision was made to suspend the Appellant, Mr Warner said it was a consideration that if both Mr Brocklehurst and the Appellant were left in the workplace there was a risk there could be another altercation. Consequentially, the decision was made to suspend both of them without pay.
Submissions
47 The respondent's counsel submitted on behalf of the respondent that it is accepted that there is no absolute rule that fighting in the workplace inevitably results in dismissal (West Australian Branch, Australasian Meat Industry Employees' Union, Industrial Union of Workers, Perth v Geraldton Meat Exports Pty Ltd (2001) 81 WAIG 2523).
48 The respondent's counsel also informed the Board that it is also not disputed by the respondent that the appellant was provoked by the actions of Mr Brocklehurst who taunted or jeered the appellant earlier on in the evening and then provoked the assault by spitting in the appellant's face. The respondent says the issue is whether the response to that provocation by the appellant was excessive. The respondent says that the appellant's response was not proportionate to the provocation, it was excessive and inappropriate.
49 In relation to the matters to be considered as to whether a public service officer should be suspended without pay the respondent says that Clause 3.2 of the Disciplinary Procedures Guide issued by the Department of Premier and Cabinet simply sets out matters that an employer may wish to consider. The respondent says that Mr Warner did in fact have regard to each of the factors set out in that paragraph but the respondent's position is that the relevant considerations in respect of this matter are outlined by the Public Service Appeal Board in Victor Walker v Director General, Department of Justice (2003) 83 WAIG 1879 at [6] where the Board stated that it was referred to the Public Service Commission Discipline Manual, in which it is stated at 8.11.3 as follows:
"An employee may be suspended if —
i the offence is considered to be of such a serious nature that dismissal is a possible outcome; and /or
ii his/her continued presence in the work area is inappropriate due to —
a. the effective operation of the public sector body;
b. the interests of the public;
c. the interests of the employee; or
d. the interests of his or her fellow employees."
50 The respondent says that the evidence given by Mr Warner establishes that all the mitigating factors put forward by the appellant were considered by the respondent and rejected. After consulting with Mr Warner all matters were considered by the Acting Director General and a decision made that the serious nature of the allegations against the appellant outweighed any other considerations.
51 Mr Cusack on behalf of the appellant made a submission that the Public Service Commission Disciplinary Manual policy referred to in Walker is no longer relevant and was superseded by the Disciplinary Procedures Guide issued by the Department of Premier and Cabinet. It is contended on the behalf of the appellant that Clause 3.2 of that policy makes it clear that suspension is not to be for the purposes of penalising the employee, or to make an example of them and that Clause 3.2 Suspension of employees should be considered to be a "risk management strategy". It is also pointed out that the authorities in relation to fighting in the workplace make it clear that not all employees who engage in a fight are guilty of serious misconduct (Yew v ACI Glass Packaging Pty Limited (1996) 71 IR 201 at 205 per Wilcox CJ and Moore J in AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385).
52 Mr Cusack also referred to ss 223, 245 and 246 of the Criminal Code (WA). Section 223 states:
"An assault is unlawful and constitutes an offence unless it is authorised or excused by law."
Sections 245 and 246 deal with the defence of provocation. It is clear from these provisions that if a person is provoked in the circumstances prescribed by those sections that an assault is not an unlawful act.
53 In relation to the reasons given for the suspension, it is admitted on behalf of the appellant that it is clear the respondent suspended him because of the seriousness of the allegation. In giving consideration to the serious nature of the allegations, his seniority and the prima facie evidence against him, the admissions he made and the potential outcome of the disciplinary process, the respondent has given consideration to the wrong factors. The appellant says that the respondent ought to have given consideration to the factors listed in Clause 3.2 of the Disciplinary Procedures Guide. The appellant says that whilst the allegation of assault is serious the respondent did not take into account the fact that it may well not have been an unlawful assault. The appellant also says his relative seniority should carry little weight compared with more important factors. The appellant says that the respondent failed to give consideration to all the prima facie evidence, in particular the respondent has not given any weight to the legal defence of provocation. The appellant says he has made admissions about the facts but not that he has committed any unlawful act or an inappropriate act in the circumstances.
54 It is said on behalf of the appellant that the respondent in having regard to the potential outcome of the disciplinary process means that the respondent has prejudiced the likely outcome not the potential outcome of the disciplinary process and that this is inappropriate, prejudicial and contrary to the statement in Clause 3.2 of the Disciplinary Procedures Guide which state: "suspensions should not be used as a tool by management to make an example of the"… employee.
55 The appellant says that if weight was given to the criteria set out in the Disciplinary Procedures Guide then the respondent should have had regard to the following factors:
(a) Is there a risk of compromising the reputation of the respondent with the public?
The appellant says the general public is unaware of this matter and the interest of the public is in a just and fair disciplinary process rather than sending a family to the poor house.
(b) Is there a risk to the emotional and physical well-being of any employee or client?
The appellant says the decision to suspend has clearly affected his emotional and physical being and that of his wife and his children and there is no risk to the well-being of Mr Brocklehurst or any other employee or client of the respondent.
(c) Is there a risk to the effective operation of any agency policies or programs?
The appellant says the evidence of Mr Willday and Ms Milner is that the suspension will affect agency programs.
(d) Is there a risk of prejudicing the disciplinary investigation inquiry?
The appellant says he has been prejudiced by the decision and there is no prejudice to the respondent if he is not suspended.
56 In summary, the appellant says if all of these factors are considered then the appellant ought not to be suspended. It is also pointed out that there are alternatives to suspension. The appellant seeks the following orders from the Board:
(a) the decision of the respondent to suspend the appellant be adjusted by setting the decision aside;
(b) that all benefits due to the appellant be reinstated effective from the date of the original suspension: and
(c) any other orders the Board considers necessary.
Legal Principles
57 An administrative decision maker is bound to take into account relevant considerations. However, a failure to take into account a relevant consideration is only fatal to a decision if a decision maker takes into account a matter that he or she is bound to take into account (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J). Conversely the taking into account of an irrelevant consideration can also lead to error. In Peko Mason J said at pages 39-40:
"(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd ((1979) 144 CLR 45 at 49-50), adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury ((1937) 56 CLR 746 at 757-758), and Water Conservation and Irrigation Commission (NSW) v Browning ((1947) 74 CLR 492 at 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act."
58 In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ stated:
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J)."
59 The PSM Act is an Act of Parliament which comprehensively provides for the administration and management of the public sector and the public service. Among other matters the PSM Act deals with and regulates the selection, appointment, standards of conduct and termination of employment of employees. Part 5 of the PSM Act deals with substandard performance and disciplinary matters of public service officers.
60 Sections 80, 81, 82, 83, 85 and 86 of the PSM Act provide:
"80. Breaches of discipline
An employee who — 
(a) disobeys or disregards a lawful order;
(b) contravenes — 
(i) any provision of this Act applicable to that employee; or
(ii) any public sector standard or code of ethics;
(c) commits an act of misconduct;
(d) is negligent or careless in the performance of his or her functions; or
(e) commits an act of victimisation within the meaning of section 15 of the Public Interest Disclosure Act 2003,
commits a breach of discipline.
81. Procedure when breach of discipline suspected
(1) An employing authority may, when it suspects that a person has committed a breach of discipline whilst serving as an employee in its public sector body and has given the person such notice in writing of the nature of the suspected breach of discipline as is prescribed, give the person a reasonable opportunity to submit an explanation to the employing authority.
(2) After having given the respondent the reasonable opportunity referred to in subsection (1), the employing authority may — 
(a) if it is not the Minister, investigate or direct another person to investigate; or
(b) if it is the Minister, direct another person to investigate,
the suspected breach of discipline in accordance with prescribed procedures.
(3) A person to whom a direction is given under subsection (2) shall comply with that direction.
(4) A direction shall not be given under subsection (2) to the Commissioner.
82. Suspension without pay
(1) If an investigation is initiated under section 81, the employing authority may at any time before proceedings against the respondent are terminated within the meaning of subsection (2) suspend the respondent, if still its employee, without pay.
(2) When proceedings against a respondent for a suspected breach of discipline are terminated by — 
(a) the taking of action under section 83 or 84 that is not cancelled under section 85, or the taking of action under section 86(3), 88(1) or 89; or
(b) a finding that no breach of discipline was committed by the respondent,
the employing authority shall terminate any suspension of the respondent without pay under subsection (1) and, if no breach of discipline has been found to have been committed by the respondent, restore to the respondent the pay of which the respondent has been deprived during the period of that suspension.
(3) An employing authority may, in relation to an employee who has been suspended without pay under subsection (1), on its own initiative or on the application of that employee restore pay to that employee for such period as the employing authority thinks fit.
83. Powers of employing authority other than Minister after investigation of alleged breach of discipline
(1) If, following the investigation of an alleged breach of discipline under section 81, an employing authority which is not the Minister finds, whether as a result of its own investigation or that of a person directed under section 81(2)(a), that — 
(a) a minor breach of discipline was committed by the respondent, that employing authority may in accordance with prescribed procedures — 
(i) reprimand the respondent;
(ii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the last day during which he or she was at work as an employee before the day on which that finding was made; or
(iii) both reprimand, and impose the fine referred to in subparagraph (ii) on, the respondent;
(b) a serious breach of discipline appears to have been committed by the respondent, that employing authority shall cause the respondent to be charged in accordance with prescribed procedures with having committed that alleged breach of discipline; or
(c) no breach of discipline was committed by the respondent, notify the respondent of that finding and that no further action will be taken in the matter.
(2) For the purposes of this section, a breach of discipline committed as a result of disobedience to, or disregard of, a lawful order referred to in section 94(4) is a serious breach of discipline.
…
85. Procedure if respondent objects to certain findings or actions
If a respondent objects by notice in writing addressed to an employing authority — 
(a) to any finding by the employing authority under section 83 or 84 that he or she committed a minor breach of discipline; or
(b) to any action taken by the employing authority in relation to him or her under section 83(1)(a) or 84(2)(b)(i),
within 7 days after being notified in writing of that finding or action, as the case requires, that finding or action is cancelled by virtue of this section and the respondent may be charged in accordance with the prescribed procedures with having committed the alleged breach of discipline.
86. Procedure when charge of breach of discipline brought
(1) A charge under section 83(1)(b), 84(2)(b)(ii) or 85 shall — 
(a) be in writing;
(b) contain the prescribed details of the alleged breach of discipline; and
(c) require the respondent to indicate within such period of not less than 7 days as is specified in the charge whether or not he or she admits or denies the charge.
(2) A respondent charged under section 83(1)(b), 84(2)(b)(ii) or 85 shall admit or deny the charge within the relevant period referred to in subsection (1)(c).
(3) Subject to section 89, if a respondent admits a charge under subsection (2) and the employing authority finds the charge to be proved, the employing authority — 
(a) shall, if the charge is a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent; or
(b) may — 
(i) reprimand the respondent;
(ii) transfer the respondent to another public sector body with the consent of the employing authority of that public sector body or, if the respondent is an employee other than a chief executive officer or chief employee, transfer him or her to another office, post or position in the public sector body in which he or she is currently employed;
(iii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the period of 5 days during which he or she was at work as an employee immediately before the day on which the finding of a breach of discipline was made;
(iv) reduce the monetary remuneration of the respondent;
(v) reduce the level of classification of the respondent; or
(vi) dismiss the respondent,
or, except when the respondent is dismissed under subparagraph (vi), take action under any 2 or more of the subparagraphs of this paragraph.
(4) If a respondent denies a charge under subsection (2) and the employing authority is not the Minister, the employing authority may — 
(a) hold, or direct a person to hold, a disciplinary inquiry into the charge in accordance with prescribed procedures; or
(b) if it considers that a special disciplinary inquiry should be held into the charge, request the Minister to direct that a special disciplinary inquiry be held into the charge by a person named in that direction.
(5) A directed person shall, subject to subsections (6) and (7), comply with the relevant direction given under subsection (4)(a).
(6) If, at any time after the commencement of a disciplinary inquiry held under subsection (4)(a), the employing authority or directed person considers that a special disciplinary inquiry should be held into the charge, the employing authority may request the Minister to direct that — 
(a) a special disciplinary inquiry be held into the charge by a person named in that direction; or
(b) the disciplinary inquiry be converted into a special disciplinary inquiry and that the person holding the disciplinary inquiry hold the resulting special disciplinary inquiry.
(7) If the Minister complies with a request made under subsection (4)(b) or (6) and makes a direction referred to in — 
(a) subsection (4)(b), the person named in that direction shall comply with that direction;
(b) subsection (6)(a), the person named in that direction shall comply with that direction and the relevant disciplinary inquiry being held under subsection (4)(a) is terminated; or
(c) subsection (6)(b), the disciplinary inquiry concerned is converted into a special disciplinary inquiry and the person holding that disciplinary inquiry shall hold the resulting special disciplinary inquiry.
(8) If a directed person finds at the conclusion of a disciplinary inquiry that — 
(a) a breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it act in relation to the respondent under subsection (3) as if the respondent had admitted the charge under subsection (2); or
(b) no breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it notify the respondent of that finding and that no further action will be taken in the matter.
(9) On receiving a finding and recommendation under subsection (8), the employing authority shall — 
(a) accept the finding; and
(b) in the case of a recommendation made under — 
(i) subsection (8)(a) in relation to a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent;
(ii) subsection (8)(a) in relation to a charge other than a charge referred to in subparagraph (i), accept that recommendation and act accordingly in relation to the respondent, or decline to accept that recommendation and take such other action in relation to the respondent as could have been recommended under that subsection; or
(iii) subsection (8)(b), accept that recommendation and act accordingly in relation to the respondent.
(10) If an employing authority finds at the conclusion of a disciplinary inquiry held by itself that — 
(a) a breach of discipline was committed by the respondent, the employing authority shall act under subsection (3) as if the respondent had admitted the charge under subsection (2); or
(b) no breach of discipline was committed by the respondent, the employing authority shall notify the respondent of that finding and that no further action will be taken in the matter.
(11) If a respondent denies a charge under subsection (2) and the employing authority is the Minister, the Minister shall direct a person to hold a special disciplinary inquiry into the charge and the person shall comply with that direction.
(12) A direction shall not be given under this section to the Commissioner.
(13) In this section — 
"directed person" means person directed under subsection (4)(a) to hold a disciplinary inquiry into the charge concerned;
"disciplinary inquiry" means disciplinary inquiry held or directed to be held under subsection (4)(a)."
61 Section 82 is contained in Part 5 of the PSM Act. Part 5 deals with inquiries, penalties and disciplinary action that can be taken by employing authorities against public service officers and other officers and employees defined in s 76(1) of the PSM Act. Section 82 is part of Division 3 which deals with breaches of discipline. Sections 80, 81, 83 and 86 determine the process of investigation of breaches of discipline under s 80 of the PSM Act. Section 81 provides for an employee suspected of a breach of discipline to be given a reasonable opportunity to submit an explanation to the employing authority prior to a decision being made whether to initiate an investigation into the suspected breach of discipline. After the employee is afforded a reasonable explanation and an investigation is initiated, the employing authority may suspend the employee without pay. Sections 81, 82, 83, 84 and 85 make it clear a decision to suspend without pay is to be made independently from any findings or decisions made following an investigation into a suspected breach of discipline.
62 Pursuant to s 81(2) an investigation into a suspected breach of discipline is to be carried out in accordance with prescribed procedures. Regulation 16 of the Public Sector Management (General) Regulations 1994 prescribes the procedures as:
"For the purposes of section 81(2) of the Act, the prescribed procedures in accordance with which a suspected breach of discipline is to be investigated are that the respondent is notified in writing — 
(a) that an investigation of the suspected breach of discipline is being initiated and of the purpose of that investigation;
(b) that the investigation referred to in paragraph (a) will lead to a finding being made in respect of, and may lead to action being taken against, the respondent under Division 3 of Part 5 of the Act and of the range of possible findings and possible action;
(c) of the steps which may be taken in the conduct of that investigation prior to the making of a finding, and the taking of any action, against the respondent;
(d) of any interviews or meetings which the respondent is required to attend; and
(e) of his or her right to have present during any interviews or meetings attended by the respondent a representative capable of providing advice to the respondent."
63 These procedures make it plain that the employee suspected of a breach of discipline is to be afforded procedural fairness. A fundamental tenet of the rules of procedural fairness that a decision-maker is not to prejudge whether a person has committed a breach of discipline.
64 Section 82(1) and (2) contemplates that a decision to suspend without pay is to be made when an investigation into a suspected breach of discipline is initiated and prior to the conclusion of the investigation. Section 82(2) makes it clear that suspension without pay is to be terminated by the employing authority if a finding is made that:
(a) a minor breach of discipline is committed;
(b) a serious breach of discipline has been committed and the employee is charged with a serious breach of discipline and the charge is admitted by the employee under s 86(3); or
(c) no breach of discipline was committed.
65 In this matter a finding was made by the inquirer into the suspected breach of discipline that a serious breach of discipline appears to have been committed. Pursuant to s 86(4) the respondent is required to institute a disciplinary inquiry into the charge in accordance with prescribed procedures. The procedures prescribed for the purposes of s 86(4) are the same as the procedures required for s 82(1) (see reg 20 of the Public Sector Management (General) Regulations). Prior to the completion of the second inquiry the employer must also not prejudge whether the appellant has committed a breach of discipline.
Conclusion
66 Mr Warner is the officer who is responsible for making the recommendation to the Acting Director-General whether the appellant should have been suspended. The Acting Director-General acted on and did not depart from Mr Warner's recommendation. In taking into account the serious nature of the allegations and assessing the strength of the prima facie evidence against the appellant, the Acting Director-General took into account matters that were irrelevant and infringed the rules of procedural fairness.
67 Taking into account matters which have the effect of prejudging the outcome of a disciplinary hearing are irrelevant to a decision to suspend without pay as any decision made under s 82(1) must preserve the integrity of the investigation under s 81(2) and any investigation that is to follow under s 86(4). Matters which result in the determination of the weight and strength of the case against the appellant should not be considered when making a decision to suspend. An employer should not make any judgment of an employee's conduct until the investigation into a suspected breach of discipline is complete and at that time if an employer does not conclude that a minor breach of discipline has occurred, the employer is only empowered under s 83(1)(b) to make a judgment that a serious breach of discipline appears to have been committed. Even when making that decision an employer is not empowered to prejudge the issue whether a serious breach of discipline has actually occurred as that is a matter to be determined in the investigation under s 86(4).
68 In taking into account these matters in making a decision under s 82(1) the respondent has breached the rules of procedural fairness by prejudging the outcome of the disciplinary action against the appellant. The effect of Mr Warner's evidence is that the respondent concluded prior to the investigation report into the suspected breach of discipline that:
(a) the appellant has committed a serious breach of discipline; and
(b) there is a high probability that the appellant will be dismissed at the conclusion of the disciplinary inquiry under s 86(4).
69 In any event Mr Warner's opinion is not correct. At law not every incident of fighting in the workplace results in termination of employment. Whether a fight should result in the dismissal of an employee who participates in the fight depends very much on the extenuating circumstances. The circumstances include the circumstances in which the fight occurred, the length of service of the employee, their work record, whether he or she was in a supervisory position and whether he or she was provoked or acted in self defence (AWU-FIME Union per Moore J at 393). As Wilcox CJ in Yew pointed out, Moore J "recognised it is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and therefore, there is a valid reason for that employee's dismissal". In Geraldton Meat Exports, Sharkey P at [77] observed that each matter involving fighting must be determined on its own merits and that one cannot, in advance, predict all of the relevant circumstances. At [78] His Honour then said:
"Finding on the job, depending on the circumstances, may be sufficient misconduct of itself for the Commission to say that the dismissal was not unfair, and the commission may also find it unnecessary even to apportion blame. The Commission will, however, move to protect an employee who is essentially passive, or put upon and/or required to defend him/herself, or provoked to lose his/her self control in circumstances where it could be said that a reasonable person would do so. However, retaliation out of proportion to the provocation will not generally be of assistance to an employee. The sheer triviality of an incident may also be relevant. On the contrary, a serious misconduct, whether provoked or not, particularly where both parties are at fault, will often be sufficient to constitute a fair dismissal."
70 In this matter until the investigation commences under s 86(4) and that inquiry is concluded no finding can be made that the appellant has or has not committed an act of serious misconduct and if the latter, what is the appropriate penalty. In any event the person appointed to conduct the inquiry is the only person who is empowered to make a finding that the appellant committed a breach of discipline (see s 86(8)).
71 In relation to the matters the respondent should have taken into account, I agree with the submissions made on behalf of the appellant that the criteria in the Public Service Commission Discipline Manual referred to in Walker should not be applied, as that manual has been superseded by the Disciplinary Procedures Guide.
72 Although Mr Warner testified that he read Clause 3.2 of the Disciplinary Procedures Guide it is apparent from the reasons given to the appellant by the respondent when he was suspended without pay and the evidence given in these proceedings that little, if any, regard was had to Clause 3.2 of the Disciplinary Procedures Guide when the decision was made to suspend the appellant. The only consideration given to viewing suspension without pay as a risk management strategy was to suspend both the appellant and Mr Brocklehurst. However, the respondent gave no weight to the proposal put forth by Mr Willday, which could have removed the risk of contact between the two officers. In addition, other factors such as the effective operation of any agency policies or programs do not appear to have been considered. Also the respondent has not said that there would be any prejudice to the investigation if the appellant is not suspended.
73 The next question that follows is whether the respondent erred in failing to have regard to, or sufficient regard to, the matters set out in Clause 3.2 of the Disciplinary Procedures Guide. Employment policies which provide guidance on the exercise of a discretion are desirable to ensure employees are treated equally and consistently. This requirement is reflected in s 8(1)(c) of the PSM Act. Section 8(1)(c) provides:
"(1) The principles of human resource management that are to be observed in and in relation to the Public Sector are that — 
…
(c) employees are to be treated fairly and consistently and are not to be subjected to arbitrary or capricious administrative acts"
74 However, pre-determined rules or policies must not be so inflexible that a decision-maker does not consider any exemption from the policy. In Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Ipp J at 533 observed:
"The mere fact that the Tribunal applied a particular policy in exercising its discretion does not necessarily mean that the discretion thereby miscarried. The relevant principles are set out by the Court of Appeal of New South Wales (Kirby P, Priestley and Clarke JJA) in Rendell v Release on Licence Board [1987] 10 NSWLR 499 at 503-504:
'"A body upon whom Parliament has conferred a discretion must exercise that discretion in accordance with the legislation. The decision maker must not, for the purpose of the exercise of discretion, take into account extraneous or irrelevant considerations. Nor must the discretion be exercised by reference to general and inflexible rules which pay no regard to the particular circumstances of the case. This is so whether such rules are laid down by the decision maker or an external body. It is of course often useful and sometimes necessary for administrators to adopt guidelines. These may provide guidance to officers in the scattered agencies of the administration. They may ensure that decisions are made in an even-handed and consistent way. But such guidelines must be compatible with the legislation conferring the discretion. They must not purport to usurp the discretion or substitute administrative convenience for the individualised decision if that is what the legislation has provided for, … Most especially, the administrator must not permit the decisions of third persons or their actions and attitudes, to control the way in which such discretion is exercised.'"
75 In this matter the respondent did not substantially apply the provisions of the Disciplinary Procedures Guide. It is clear that Clause 3.2 of the Disciplinary Procedures Guide is compatible with the provisions of the PSM Act. In not applying this policy it is strongly arguable that the respondent erred. However, it is not necessary to conclusively determine this issue. By taking into account irrelevant considerations in making the decision to suspend the appellant without pay and by breaching the rules of procedural fairness by prejudicing the outcome of the disciplinary process, we are of the opinion that on those grounds alone, the respondent's decision to suspend the appellant without pay should not stand and should be adjusted.
76 For these reasons the appeal should be allowed and the following orders made:
(a) The decision of the respondent made on 29 January 2008 to suspend the appellant without pay be adjusted by setting the decision aside;
(b) The pay the appellant has been deprived of during the suspension be restored; and
(c) All benefits due to the appellant be reinstated with effect from the date of the suspension.