DISPUTE RE PROVISION OF INVESTIGATION REPORT RELATING TO UNION MEMBERS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES The Civil Service Association of Western Australia Incorporated

APPLICANT

-v-

Director General, Department of Education and Training

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Senior Commissioner J H Smith

HEARD BY WRITTEN SUBMISSIONS

DELIVERED Friday, 12 December 2008

FILE NO. PSACR 28 OF 2008

CITATION NO. 2008 WAIRC 01722

CatchWords Disciplinary action – finding made of minor breach of discipline – order sought for discovery of investigator's reports – rules of procedural fairness – statutory scheme – Public Sector Management Act 1984 (WA) s 81, s 83(1), s 85, s 86; Public Sector Management (General) Regulations 1994 (WA) reg 16, reg 17; Industrial Relations Act 1979 (WA) s 44.

Result Order issued

Representation 

Applicant Ms C Reid

Respondent Mr R Andretich (of Counsel)

Reasons for Decision

1          On 7 November 2008, pursuant to s 44 of the Industrial Relations Act 1979 (IR Act) the Commission as Public Service Arbitrator referred the following matter for hearing and determination:

1. The Civil Service Association of Western Australia Incorporated (the applicant) on behalf of two of its members, Ms Teresa Morony and Ms Gaye Jones, seeks orders requiring representatives of the Director General of the Department of Education and Training (the respondent) to provide copies of investigation reports to their members.

2. The respondent issued both Ms Morony and Ms Jones with a suspected breach of discipline letter dated 8 January 2008 which was handed to Ms Morony and Ms Jones on 31 January 2008.  Both Ms Jones and Ms Morony were directed to respond to eight allegations.

3. The members later received letters from the respondent dated 5 March 2008 advising them that consideration had been given to their written responses but a formal investigation was going to be initiated.

4. On 30 May 2008, the investigation interviews took place at the Civil Service Association of WA office.  The investigators were Mr Michael Evans and Mr Geoff Davis.

5. Ms Morony and Ms Jones received findings in letters dated 15 and 16 September 2008.  Ms Morony was found to have committed three minor breaches of discipline and Ms Jones was found to have committed four minor breaches of discipline.  Ms Morony and Ms Jones were required to advise the Department whether they accept or reject the findings and comment on the proposed reprimand.

6. The applicant wrote to the respondent dated 23 September 2008 requesting that the investigators' report be made available to Ms Morony and Ms Jones so that they could respond to the findings with the required information and evidence.

7. A number of the allegations span from 2005-2007.  The applicant says they are unclear in detail as to when and what was said to have occurred.

8. The applicant says the respondent advised the applicant, on 25 September 2008, that the requested reports would not be released to the members as the reports are never released.

9. The applicant advised its members not to respond to the reprimand letter until the investigators' report is received.

10. The applicant seeks orders compelling the respondent to:

(a) Provide Ms Morony and Ms Jones with a copy of the investigation report in relation to allegations made against them.

(b) Allow Ms Morony and Ms Jones two (2) weeks upon receiving the investigation report to respond.

11. The respondent says that the disciplinary procedure in Part 5 of the Public Sector Management Act 1994, in particular s 80, s 81, s 83, s 85 and s 86, (the Disciplinary Procedure) does not provide for the members, at this stage of the process, to have the opportunity to further state their case with respect to the ongoing allegations against them.  At this stage of the process, the question is whether or not the members accept or reject the findings and the proposed reprimand.

(a) Section 83(1)(a) and reg 17 of the Public Sector Management (General) Regulations 1994 (the Regulations) allow a finding of a minor breach to be made and the notification and response for such a finding.

(b) Section 85 provides that the members may object to the finding, whereby the finding is cancelled, and then pursuant to s 86, a charge can be made against them.  The members then have the opportunity to deny the charge and have the matter progress to a discipline inquiry, in accordance with s 86(4).

(c) The members had a fair opportunity to respond to all the allegations during the investigation stage of the Disciplinary Procedure.  The members were interviewed at the conclusion of the investigation and relevant matters obtained during the investigation were put to them.

(d) As a result of the investigation, no further action is being taken with respect to a number of allegations.  The members had the opportunity to respond to the discontinued and remaining allegations.

(e) The members can object to the finding for those remaining allegations, and will be afforded the opportunity, during the inquiry stage to further respond to the allegations and matters considered to be relevant to those allegations.

12. Consistent with s 83, the investigation report provides the respondent with a basis for determining whether or not a minor breach of discipline was committed.  The respondent argues that where a decision maker acts on the basis of a report, in the context of the Discipline Process, natural justice does not require that an affected person be given a copy of the report or have the opportunity to comment on it:  Local Government Board v Arlidge [1915] AC 120; Firlayis v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 725 (17 July 2003) at [25].

13. The respondent also contends that the Disciplinary Procedure has deliberative stages and provides for minor breaches to be dealt with more expeditiously than serious breaches of discipline.  The provisions of the investigation reports could also, in certain circumstances, become a basis for tension between work colleagues.  Further, the investigation report contains information related to the discontinued allegation as well as the remaining allegations.  The respondent's position is that it is inappropriate for information collected about discontinued allegations to be released.

14. The respondent concedes that the only written information the members have been provided with during the investigation process is set out in letters to the members from the A/Director General dated 8 January 2008, the Director Standards and Integrity dated 5 March 2008 and the Director General dated 15 and 16 September 2008.  However, the respondent says that the members were interviewed at the end of the investigative process and the substance of matters relied on for the finding was put to the members orally during their interview.

15. The respondent's position is that:

(a) In relation to the orders being sought by the applicant, the members do not need a copy of the investigation report in order to advise the Department whether they accept or reject the findings.

(b) In the context of and in accordance with the Discipline Process, the members are not prejudiced by not being provided with the investigation report.

2          Both parties filed written submissions in support of the orders sought by the applicant.  It was agreed that to determine this matter the Commission could inspect and review a copy of the investigation reports and the transcripts of interview of Ms Jones and Ms Morony.

Respondent's Submissions

3          In written submissions filed on behalf of the respondent on 18 November 2008, counsel for the respondent sets out the statutory scheme of disciplinary proceedings in respect of employees employed under the School Education Act 1999 as follows:

Ms Jones and Ms Maroni (sic) have been the subject of disciplinary processes conducted under Part 5 of the Public Sector Management Act.  The School Education Act has adopted this Part of the Public Sector Management Act in relation to disciplinary matters concerning members of the teaching staff employed under the School Education Act.  (Section 239).

Division 3 of Part 5 contains a statutory scheme which must be complied with by employing authorities when conducting disciplinary proceedings against their employees.  A disciplinary procedure is commenced under section 81(1) by the employing authority giving an employee notice of the breach of discipline which he or she is suspected of having committed and providing the employee with a reasonable opportunity to submit an explanation.

After the having complied with subsection (1), section 81(2) permits an employing authority to investigate the suspected breach of discipline.

Following an investigation the employing authority may under section: 

(a) 83(1)(a), find a minor breach of discipline was committed and impose one or more of the penalties prescribed; or

(b) 83(1)(b), find "a serious breach of discipline appears to have been committed".  If so the employing authority, should it wish to proceed further, is required to charge the employee with having committed that alleged breach of discipline; or

(c) 83(1)(c), that no breach of discipline was committed in which case the matter can be taken no further.

Where a charge of breach of discipline is brought the employee is required to indicate, under section 86(1)(c), whether he or she admits or denies the charge.  If the charge is admitted the employing authority may impose the penalties provided in subsection (3)(b).  However, where the charge is denied the employing authority, if it wishes to proceed, must hold a "disciplinary inquiry" into the charge in accordance with prescribed procedures.

A person directed to hold a disciplinary inquiry is required to make and submit findings to the employing authority under subsection 86(8).  Subsection 86(9) requires the employing authority to accept the finding as to whether a breach of discipline was or was not committed but provides a discretion in relation to acceptance of the recommendation as to penalty.

Central to the procedure required to be followed by an employing authority and the issue of procedural fairness, after an investigation, is section 85 which provides:

"If a Respondent objects by notice in writing addressed to an employing authority –

(a) any finding made 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."

That is, the employing authority can only finally determine whether a breach of discipline has been committed following an inquiry conducted under section 86(4).

4          Counsel then makes an argument that when regard is had to the nature of an initial inquiry conducted under s 81(2) of the Public Sector Management Act 1984 (PSMA) it must be concluded that no final determination arises from that inquiry so that the rules of procedural fairness are not attracted.  In support of this submission the respondent relies upon the following authorities:

It is useful to quote SA De Smith in his Judicial Review of Administrative Action (Fourth Edition) at page 9 where it is said:

"Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person's interests, the courts will generally decline to accede to that person's submission that he is entitled to be heard in opposition to this final act, particularly if he is entitled to be heard at a later stage …"

In Brettingham-Moore v. Municipality of St Leonards (1969) 121 CLR 509 the High Court held as no action could be taken by the Governor on the recommendation of a Commission until the views of any aggrieved person had been considered, there was no requirement of the Commission to accord an aggrieved person a hearing.

In Edelsten v. SCT 96 ALR 673 the Full Court of the Federal Court at 681, 683 – 684 held that an administrative process that may lead to an ultimate or operative determination affecting the interests of a person does not require natural justice to be accorded to an affected person.  Decisions which lack the quality of finality are not substantive determinations which require natural justice to be accorded to an affected person.  (See also Cornel v. A. B (A Solicitor) [1995] VR 372).

5          The respondent points out that because a finding made following an inquiry under s 81(2) that an employee has committed a minor breach of discipline is provisional and can be set aside by the employee in question, the inquiry is not determinative of the employee's interests.  In particular the respondent says:

The outcome of the investigative process conducted under the Public Sector Management Act is simply a step in a process which may lead to a substantive determination having adverse consequences for an employee.  An investigation can only have immediate adverse consequences for an employee where a finding that a minor breach of discipline was committed is made and the employee permits it to have those consequences by choosing not to object under section 85.

6          The respondent also says that the legislative scheme makes it clear that a report containing findings in a s 81(2) investigation is not subject to the rules of procedural fairness.  This argument is put as follows:

The Public Sector Management Act does not describe what difference there is between what is required to be undertaken during an investigation performed pursuant to section 81(2) and an inquiry undertaken as a result of an employee objecting pursuant to section 85 to a finding he or she committed a minor breach of discipline or being charged following an investigation with having committed a serious breach of discipline.  However, they are separate and independent processes and only at the end of the inquiry can it be said there has been a final determination.  An inquiry is not in the nature of an appeal or review of the findings made during the investigation giving rise to the charge the subject of the inquiry.

There must be a difference between the processes contemplated by Parliament as it would be meaningless to provide for the same process to be undertaken on two separate occasions.

The only reasonable conclusion to be drawn is that an inquiry dealing with a charge, which follows an investigation, is a more formal and comprehensive process than the investigation and the intended process out of which a final determination is made.  In effect the investigation is intended to find whether there is sufficient evidence to establish a case to answer by the employee.  Only a finding that a minor breach of discipline was committed can be made on the strength of an investigation, and that is provisional as it can be set aside if the employee objects under section 85.  In that case the procedure required to be followed is the same as that in relation to a serious breach of discipline, namely an inquiry must be instituted if the employing authority wishes to prosecute the breach of discipline.

It is well established in this jurisdiction that disciplinary proceedings conducted under the Public Sector Management Act attract a duty to accord employees procedural fairness.  Relevantly, here it is duty to advise employees of the case that they must meet and provide them with an opportunity to present it.  The issue raised has not been considered and requires consideration of the provisions of Division 3 of Part 5.  The investigation and inquiry processes cannot be viewed in isolation.

Ms Jones and Ms Maroni (sic) were interviewed by the investigator and there is no complaint about the hearing which was given to them by the investigator, rather the complaint is a finding having been made, they are now entitled to the report containing that finding.  Even if natural justice is required to be accorded during the investigation process, it has never been held that for this to be satisfied the report of the investigator in which the findings are made must be provided.  This would mean the draft report of proposed findings would need to be provided for response by the employee then a final determination made.  That is not the law. 

Nor is it a requirement of section 85 which simply requires notification in writing being given to the employee of the finding and proposed action following an investigation.  All that is being asked of Ms Jones and Ms Moroni (sic) is whether they wish to exercise their right to object under section 85.  Section 85 does not require any justification for that course should they choose to object nor any assessment on the part of the employing authority that requires a case to be put by them.  Provision of the report can serve no purpose. 

It is relevant that the inquiry undertaken as a result of an objection is a process independent of the investigation.

The majority of the High Court in Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 at 578 said:

"It is not in doubt that, where a decision making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if the decision making process, viewed in its entirety, entails procedural fairness".

Here overall the process is fair.  The end point of the process is the outcome from an inquiry, subject to the employee choosing not to object under section 85.  It is during this final phase of the disciplinary process that procedural fairness must be accorded.

If procedural fairness is required to be accorded during the investigation provision of the report containing the findings is not the content of that procedural fairness for reasons previously stated.  Nor does section 85 or the legislative scheme contemplate the report containing the findings will be provided.

7          In conclusion the respondent submits:

(a) The investigation is a preliminary process which is only capable of having adverse consequences if the employee chooses to permit it to.

(b) Procedural fairness is not then required to be accorded during this preliminary process but must be during the inquiry phase of the disciplinary process.

(c) The investigation and inquiry are separate processes with the investigation process intended to establish whether an employee should be charged.

(d) Section 85 does not require the provision of the investigation report for an employee to determine whether he or she should exercise the right to object it provides.

 (e) Even if procedural fairness is required to be accorded during the investigation stage it was met, the content of that procedural fairness is not the provision of the investigator's report for the employee's comment.  The law has never stated that this is the content of procedural fairness for disciplinary proceedings of this nature.

Applicant's Submissions

8          The applicant points to the fact that the allegations against Ms Jones and Ms Morony span back to 2005.  Ms Jones and Ms Morony assert the allegations are unclear in detail as to when and what was said to have occurred.  They seek to review the investigation reports so that they can respond to the findings and the evidence considered in the reports.

9          The applicant seeks orders that the respondent provide Ms Jones and Ms Morony with copies of the investigation reports and to have two weeks to respond to the findings.  In the alternative the applicant seeks interim orders that a version of the reports be provided that deletes names of individuals involved if confidentiality is an issue for the respondent.

10       The applicant says that the report on which adverse findings have been made may contain evidence that Ms Jones and Ms Morony have not had an opportunity to respond to.

11       In support of the application the applicant says the following principles of law apply:

A definition of the term "procedural fairness" is defined in the Butterworths Concise Australian Legal Dictionary, (Third Edition, General Editor: Peter Butt, 2004) as:

Common law principles implied in relation to statutory and prerogative powers to ensure the probity of the decision-making procedure of courts and administrators. The term is used interchangeably with 'natural justice'.  Natural justice is defined as: The right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker, and the right to have that decision based on logically probative evidence … At common law, denial of natural justice allows review in circumstances where the administrative decision might affect a person's rights, interests or legitimate expectations.

The applicant relies on Kioa v West [1985] HCA 159 CLR 550 to identify when natural justice should be afforded.  In that decision, His Honour, Justice Mason held at paragraph 28:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

The applicant submits that the fundamental rule to which His Honour, Justice Mason referred has not been applied to Ms Jones and Ms Morony as they are currently being denied an interest in being afforded the opportunity to respond to all evidence presented and considered by a decision maker.

The applicant also submits that the notice Ms Jones and Ms Morony received in their finding letters dated 15 and 16 September 2008 has not provided sufficient information to Ms Jones and Ms Morony and therefore Ms Jones and Ms Morony can not present any arguments in response to this letter at all.  In support of this submission the applicant refers the Commission to best practice guidelines set out in "Administrative Review Council, Decision Making: Natural Justice, Best-practice guide 2, August 2007":

The notice should provide sufficient information to allow the person to make effective use of the right to respond and present arguments.

The applicant submits that Ms Jones and Ms Morony have been denied natural justice whilst being the subject to a disciplinary process.  Natural justice should be applied during the entirety of a disciplinary process. The Act does not exclude the application of natural justice.  If it was the intent of Parliament, when enacting the Act, then express words would have been included that delay an employing authority from providing all evidence to affected employees.  They say this position was supported in Kioa v West where His Honour, Justice Mason stated at paragraph 31:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

The applicant asserts that there exists no statutory intention to delay the application of natural justice to after an inquiry or even to exclude it during earlier stages of the disciplinary process.

Further, the applicant says the decision of Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 held that the common law principles of procedural fairness must prevail unless there are express words in statute that set another process.  His Honour Justice Deane in the above case stated at paragraph 16:

It has long been recognized that the requirements of procedural fairness will depend upon the circumstances of the case, including the nature of the inquiry, the interest at stake and the rules under which the person making the decision is required to operate.

The applicant submits that Ms Jones and Ms Morony have not been in a reasonable position to either admit or deny the findings.  If they did, that might mean they have been prejudiced because they have not been provided all relevant evidence.

In Geoffrey Johnston v Mr Ron Mance, Acting Director General Department of Education (2003) WAIRC 08318 at paragraph 43, Commissioner SJ Kenner stated:

There is nothing express or implied, contained within the Division 3, to suggest that the requirement is to afford natural justice is in some way excluded.

The applicant contends that the common law obligation to afford natural justice at all stages of the disciplinary process should prevail. The Act does not prohibit the exclusion for natural justice to be adhered to when carrying out a disciplinary process.

The applicant submits that Geoffrey Johnston v Mr Ron Mance, Acting Director General Department of Education is relevant and can be applied to the current circumstances. The applicant submits that denying Ms Jones and Ms Morony the report is potentially asking them to admit or deny the findings based on evidence that has not been addressed with Ms Jones and Ms Morony. The respondent failing to provide the report could result in a similar outcome of the above case whereby the penalty issued by the Department was withdrawn.

In Kay Dallimore v Director General, Department of Education and Training (2005) WAIRC 00409 at paragraph 101, the Board raised concern "that the appellant in this case was not provided with full copies of the reports completed by both the investigator and the inquirer so that she could properly respond to the basis upon which the respondent arrived at the view that the appellant had committed the breaches as alleged. In our view this defect constituted a serious denial of procedural fairness towards the appellant". The applicant contends that this decision can also be applied to the current circumstances and should the Commission find Ms Jones and Ms Morony were denied natural justice, an argument might evolve that the investigation process was also flawed and the Director General can not then rely on the report.

In conclusion the applicant submits:

(a) The denial of natural justice has occurred to both Ms Jones and Ms Morony. They have an interest in knowing all evidence against them.  Any admissions to findings made now could have a detrimental effect to Ms Jones and Ms Morony.

(b) Natural Justice need not only be applied at the end of a disciplinary process according to Division 3, Part 5 of the Act. Natural justice should be applied during the whole disciplinary process.

(c) The decision of the respondent to deny Ms Jones and Ms Morony the report equates to an order that then deprives Ms Jones and Ms Morony of an opportunity to respond.

Principles

12       In Kioa v West (1985) 159 CLR 550 Mason J stated at 584:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

13       Brennan J in Kioa at 609-611 put forward a view that has a similar result to the approach of Mason J.  He said that statutory powers must be construed in the light of common law notions of justice and fairness but he also said that where a statutory power is qualified by a requirement to observe procedural fairness this is due to implied legislative intent.

14       It is not contended by the respondent that procedural fairness is excluded by statutory intent to the entire disciplinary process but that the inquiry under s 81(2) is a preliminary enquiry which is the first stage, leading to intermediate decisions prior to a final decision.  Essentially the argument is that an investigator's report made under s 81(2) cannot in this matter affect the rights of an employee unless the employee chooses to accept the findings of a minor breach of discipline.

15       In Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 at [146] McHugh J observed that the rules of natural justice may be excluded by statutory implication where the nature of the decision is preliminary or final.  In particular His Honour said:

Natural justice requirements are less likely to attach to decisions that are preliminary in nature.  Examples are decisions to lay charges or commence disciplinary proceedings.  The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Murray v Legal Services Commissioner (1999) 46 NSWLR 224; Rees v Crane [1994] 2 AC 173.  See Cornall v AB [1995] 1 VR 372 where (at 395) the Appeal Division of the Victorian Supreme Court distinguished cases like Ainsworth and Rees v Crane as "special cases where the outcome of the investigation and the recommendations made or opinions formed by the investigators were either final in the process thereby undertaken or led to immediate consequences of such importance to the individual investigated that the investigating body was obliged to afford procedural fairness".  See also Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 158-162;  Parker v Anti-Corruption Commission (unreported; Full Court of the Supreme Court of WA; 31 March 1999)).

16       In Cornall v AB (A Solicitor) [1995] 1 VR 372 the Full Court of the Supreme Court of Victoria explained why those entrusted with investigative duties might not ordinarily be subject to the obligation to afford procedural fairness.  At 396 Ormiston, Coldrey and O'Bryan JJ observed that there is no principle that:

… every investigator or investigative body must afford a person under investigation an opportunity to be heard in the sense understood in the law before they recommend a further step of a kind which will result in a judicial or quasi-judicial determination of the correctness or otherwise of the allegation made by the investigator.  To do so would be to stifle the necessary functions performed by the police and the other many and varied authorities who for the protection of the public have to investigate alleged breaches of the law.  That is not to imply that police and investigative bodies ought not to act fairly, nor, where appropriate, to seek answers (to the extent permitted by law) from those who are under investigation, but ordinarily the investigative process cannot be hedged around with requirements to seek further explanations at each stage of an inquiry.  In this kind of investigation it is not the investigator's function to reach conclusions as to guilt or innocence but to determine whether there is an arguable case of sufficient strength to sustain a conviction or which would justify the imposition of monetary penalties or other sanctions by a disciplinary or other judicial or quasi-judicial tribunal.  Regrettably the reputation of those charged with offences or brought before disciplinary or other tribunals will suffer to an extent in the eyes of those who fail to appreciate the different functions of investigator and decision-maker, whether judicial or quasi-judicial.  Where the function of going forward with the prosecution or charge does not involve more than satisfaction as to facts sufficient to form a prima facie case, there is little practical merit in providing to a person so charged a further opportunity to make submissions or adduce facts to an investigator who is not essentially the fact-finding tribunal.

17       Part of the reasoning in these authorities is that the investigation process will if the investigation is pursued ultimately lead to a formal process where the person in question will be afforded procedural fairness.  Consequently a decision to charge a person with a breach of discipline is one step to such a formal process.  Nothing turns on the decision to charge as no facts are found and no ultimate decision is made whether the breach has been proven, it is simply a step in a process capable of altering rights.

18       In this matter investigators have submitted their investigation reports following an investigation under s 81(2)(a) of the PSMA.  Section 81(1) and (2) provide:

(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.

19       Regulation 16 of the Public Sector Management (General) Regulations 1994 (PSMR) prescribes the procedure to be followed by a person conducting an investigation under s 81(2).  Regulation 16 provides:

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.

20       At the conclusion of an investigation under s 81(2) pursuant to s 83(1) an investigator is authorised to make a finding:

(a) that a minor breach of discipline has been committed;

(b) a serious breach of discipline appears to have been committed; or

(c) no breach of discipline has been committed. 

21       Section 83(1) provides:

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.

22       Where the inquirer makes a finding that a minor breach of discipline has been committed the employing authority is required to follow the procedure set out in reg 17 of the PSMR.  Regulation 17 provides:

For the purposes of section 83(1)(a)(i), (ii) or (iii) of the Act, the prescribed procedures in accordance with which the action referred to in that section is to be taken against the respondent are that the respondent — 

(a) is to be notified in writing of the finding that a minor breach of discipline has been committed by the respondent;

(b) is to be notified in writing of the action proposed to be taken under that section against the respondent;

(c) is to be given a reasonable opportunity to make written or oral representations to the relevant employing authority concerning that action; and

(d) is to be notified in writing of — 

(i) the action taken under that section against the respondent; and

(ii) the right of objection under section 85 available to the respondent in respect of that finding or action.

23       It is clear from reg 17 that where a finding is made that an employee has committed a minor breach of discipline that the employee in question is to be afforded procedural fairness in relation to the penalty to be imposed.  This entitlement is express.  Regulations 16 and 17 are silent in relation to whether an employee is entitled to procedural fairness during the investigation and prior to the completion of a report by the investigator.  Whether such an entitlement arises prior to an investigator finalising his or her report where an investigator is of the opinion that the breach investigated could constitute a minor breach of discipline is not an issue that requires consideration in this matter as it is not a matter raised by the applicant.  What is sought in this matter is that Ms Jones and Ms Morony each be provided with a copy of the investigation report that relates to them and be given time to consider the contents of the report before informing the respondent whether they accept or reject the findings in the report and comment on the proposed reprimand.

24       The issue to be determined is whether in light of the finding Ms Jones and Ms Morony have each committed minor breaches of discipline whether each has a right to view the contents of the investigation report that applies to them prior to making a decision, whether they each accept or object to the finding that they have committed a breach of discipline.  If either employee objects then s 85 applies to that person.  Section 85 provides:

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.

25       If no objection is made by an employee then the finding that the employee has committed a minor breach of discipline pursuant to s 83(1)(a) stands and that decision is not capable of review by the employing authority or by way of appeal (see s 78 PSMA).

26       It is my view that when Ms Jones and Ms Morony were each called upon to consider whether they wished to exercise their right to object to the finding that they committed a minor breach of discipline, procedural fairness demands that they either  each be provided with a copy of the parts of their investigation inquirer's report which sets out the factual basis of the findings and the reason or reasons for making findings or they be provided with a document which extracts that evidence and findings chapter and verse.  The reason why I have reached this view is set out below.

27       To apply the test enunciated by Mason J in Kioa there is no manifestation in Part 5 of the PSMA and the PSMR that evinces a statutory intention that where a finding of a minor breach of discipline is made, the duty to accord procedural fairness at that stage of the process is excluded.  The duty prima facie arises as Brennan J explained in Annetts v McCann (1990) 170 CLR 596 at 604 because "the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power".

28       As Kirby J in Miah explained at [191]:

… once it is accepted that an interest may be seriously affected by the exercise of a statutory power, an opportunity ought ordinarily to be given to the person concerned to respond to adverse information that is credible, relevant and significant to the decision to be made (Kioa (1985) 159 CLR 550 at 629).

29       If it is accepted that the rules of procedural fairness apply to submissions about penalty when a finding is made that a minor breach of discipline is found to be proven, do the rules of procedural fairness require that the investigation reports be provided to Ms Jones and Ms Morony.  In The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 936 Kenny J at [44] said in relation to a visa holder that he or she:

… will not have a fair opportunity to present information and argument against the cancellation of his or her visa if he or she does not know the critical issues on which the decision is likely to depend or the nature of any significant adverse information touching those issues.

In that matter the document sought to be discovered was in the form of a Minute and contained a summary of circumstances the department officers considered relevant to the issues on which the decision was likely to turn.  The Minute also contained some evaluation of circumstances.  Kenny J found that procedural fairness did not require the department to supply a copy of the Minute to the applicant as department officers had adopted a process that ensured the applicant was informed of the issues upon which the Minister's decision would be likely to turn.  Further Kenny J relevantly observed at 46:

Although there was an obligation to inform him of the issues that it discussed and of any significant adverse material that was otherwise unknown to him, this did not require provision of the document itself.  Procedural fairness is concerned with practical fairness:  compare Lam, at 511 per Gleeson CJ.

30       Although the respondent when making the decision not to release the reports to Ms Jones and Ms Morony relied upon in Firlayis v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 725, the reasoning of Hely J in that matter does not assist the respondent as the facts are distinguishable.  It is clear from the reasons that the applicant in that matter was notified of all matters the Minister would take into account on making a decision.  In addition, there is nothing in the judgment that indicates whether the department issues paper sought to be discovered was a report that contained findings on which the Minister was bound to act.  In this matter it is clear from s 83(1) that an employing authority is bound by a finding by an investigator that a minor breach of discipline has been committed.  There is no discretion once a finding of that kind is made by a person directed to carry out an inquiry under s 81(2)(a).  The consequences of a penalty follow unless the employee in question objects to the finding under s 85 of the PSMA.

31       If no objection is made following a finding of a minor breach of discipline the finding stands as an operative determination of rights and cannot be characterised as a decision lacking in the quality of finality.  Such a finding affects the rights and interests in a direct way of an employee.  As illustrated by the recent Victorian Supreme Courts decisions in Byrne v Marles [2008] VSCA 78 and Foster v The Secretary to the Department of Education and Early Childhood Development for Victoria [2008] VSC 504, whether natural justice is required to be afforded in a first step of a scheme of a disciplinary process depends on the statutory scheme and whether any later hearing will "cure" any unfairness.  In this matter not only is an employee subject to a penalty imposed under s 83(1)(a), the finding forms part of the employee's record of service.  If an employee does choose to object they will be charged with a breach of discipline and potentially if the charge is proven they are exposed by statute to a greater range of penalties under s 86(3) of the Act.  Not only would there be a finding of a breach of discipline on the employee's record as opposed to a minor breach of discipline, the penalty could extend beyond a fine or reprimand to dismissal, transfer, a fine of one day's pay, permanent reduction in pay or reduction in classification.  Given the content of the allegations, however, it is doubtful in these matters that dismissal could be contemplated.  Unless an employee is made aware of all relevant adverse findings of fact when a finding is made that they have committed a minor breach of discipline they cannot properly form an opinion whether to object.  This is not something that can be cured by a later hearing. 

32       Can it be said that the applicants in this matter have been made aware of significant adverse material on which the findings are made.  The answer to that question is no.  No real information has been provided to Ms Jones or Ms Morony about the factual findings of any of the minor breaches of discipline.  Prior to making a decision whether to object, Ms Jones and Ms Morony should be entitled to consider the adverse material which was considered by each inquirer.  Whilst each inquirer is not required to expose his mental processes or provisional views, Ms Jones and Ms Morony should also each be entitled to consider all issues the inquirer considered were critical in making each decision that a minor breach of discipline had been proven.

33       The respondent has provided to the Commission a copy of transcripts of interviews by Michael Evans and Geoff Davis with Ms Jones and Ms Morony.  Copies of these transcripts have also been provided to the applicant.  The respondent has also provided to the Commission copies of the investigation reports prepared by the principal investigator, Geoff Davis.  These are the investigation reports the applicant seeks to have discovered to Ms Jones and Ms Morony.

34       I have read the transcripts of the interviews and the reports.  It is clear to me having read those reports, the transcript and the correspondence attached to the application that if Ms Jones and Ms Morony do not have access to the findings of fact and reasons for making the findings of a minor breach of discipline in each case Ms Jones and Ms Morony may not properly be in a position:

(a) to consider whether they should object to the findings of minor breaches of discipline; and

(b) to put forward matters relevant to the proposed penalties.

Ms Jones

35       In a letter to Ms Jones from the Acting Director General dated 8 January 2008, eight suspected allegations were particularised.  In a letter to Ms Jones from the Director General dated 16 September 2008, Ms Jones was advised findings had been made.  Except in relation to allegation 1, the same allegations were repeated without explanation or without stating any findings of fact.  In relation to the finding that Ms Jones had committed a minor breach of discipline the Director General stated:

… pursuant to section 83(1)(a) of the Public Sector Management Act 1994 (WA) ("Act"), I have found that you have committed a minor breach of discipline in respect of the following conduct:

1. Specifically, it is alleged that between Wednesday, 31 January 2007 and Friday, 23 February 2007, at Mukinbudin District High School, you were involved in inappropriate access of the computer network contrary to the Department's Telecommunication Use Policy.

By way of further clarification, it is claimed that you (Ms Jones) logged into the Department's computer network using identification details not registered to you.

2. Specifically, it is alleged that between Wednesday, 31 January 2007 and Friday, 20 April 2007, at Mukinbudin District High School, you were in possession of computer identification access details contrary to the Department's Telecommunication Use Policy.

By way of further clarification, it is claimed that you were in possession of computer identification access details belonging to Ms Teresa Morony, which you had recorded on a Word document, stored in a document folder on your computer.

3. Specifically, it is alleged that between January 2006 and January 2007, whilst employed at Mukinbudin District High School, you failed to submit a secondary employment application in accordance with the Public Sector Management Act 1994.

By way of further clarification, it is claimed that you undertook secondary employment by way of operating a business, driving students to and from Mukinbudin District High School in the school bus, without appropriate approval under Section 102 of the Public Sector Management Act 1994.

4. Specifically, it is alleged that during Term 1, 2 and 4, 2007 whilst employed at Mukinbudin District High School, you undertook secondary employment duties, contrary to the Public Sector Management Act 1994.

By way of further clarification, it is claimed that you undertook secondary employment whilst on official sick leave from the Department, whereby you drove the school bus.

Please note that the further clarification concerning allegation one has been reduced and amended to better reflect the alleged action.  This is not a new allegation.

36       Allegation 3 was allegation 4 in the letter from the Acting Director General and allegation 4 was allegation 6.  In relation to allegation 1 the Acting Director General in the letter notifying the particulars of the allegations had stated in addition to the matters set out in paragraph 35:

At no time during this time period did you log into the computer network using your current "E" number and password.  You sent a number of emails signed off with your name, which you sent using ex-staff member "E" numbers and passwords.  You resorted to this action as you believed such computer access could not be traced back to you.

No explanation was given by the Director General for the change to the particulars of allegation 1.  In addition the finding is general and gives no indication as to whether this action is said to have occurred on more than one occasion.  Ms Jones was interviewed about the use of more than one password.  When the investigation report is read it can be seen that it was a finding of the investigator that Ms Jones accessed the computer system on one occasion using the login details of Ms Morony with Ms Morony's consent, in order to forward to Ms Morony's home address, emails that had been sent to Ms Morony's work email address.  The basis of this finding was this fact was admitted by Ms Jones in her written response.  Without this information Ms Jones would be left in doubt whether it is alleged this action occurred on more than one occasion or related to more than one password and may be unable to properly consider whether to object to the finding that she had committed a minor breach of discipline.  Further, when regard is had to these facts it is clear that the allegations of this breach could be construed as less serious as perhaps the general statement of the finding in the Director General's letter.  This issue would be relevant to any submission in respect of penalty.

37       In relation to allegation 2, it is only when the investigator's report is read that it clear that the finding that this particular was proven was based on admissions made by Ms Jones.  Without regard to the investigator's report Ms Jones may not know this was the case.

38       In relation to allegation 4, the reason why the particular was found to be proven is that although Ms Jones may have had her general practitioner give her permission to undertake "other work", it is not within his power to authorise Ms Jones to take on secondary employment.  In addition, in the investigator's report it is recorded that Mr Coffman had asked the Injury Management Office if it was okay for her to drive the bus and they told him it was, that her GP had said it was okay.  These are not matters that were put to Ms Jones when she was interviewed nor were they disclosed to her in the Director General's letter to her when she was notified the finding had been made of a minor breach of discipline.  These are factual findings clearly relevant to the decision whether to object and/or to any submission about an appropriate penalty.

Ms Morony

39       On 8 January 2008, the Acting Director General wrote to Ms Morony notifying her of eight allegations relevant to a suspected breach of discipline.  The letter contained allegation of eight matters.  In a letter dated 15 September 2008 to Ms Morony, the Director General informed Ms Morony of a finding that a minor breach of discipline had been committed.  The particulars of the allegations found to be proven were as follows:

• Specifically, it is alleged that between Monday, 1 January 2007 and Monday, 31 December 2007, whilst employed at Mukinbudin District High School, you made derogatory comments about Mr Gary Robins and Mr Charles Coffman in a public forum, contrary to the Department's Code of Conduct.

By way of further clarification, it is claimed that you refer to Mr Gary Robins and Mr Charles Coffman as "Dumb and Dumber".

• Specifically, it is alleged that between Wednesday, 31 January 2007 and Sunday, 22 April 2007, at Mukinbudin District High School, you provided your computer identification access details to another employee, contrary to the Department's Telecommunication Use Policy.

By way of further clarification, it is claimed that you provided Ms Gaye Jones with your computer identification user number and HRMIS access number for use on the Department's computer network.

• Specifically, it is alleged that between Tuesday, 2 May 2006 and Monday, 24 July 2006, whilst employed at Mukinbudin District High School, you breached conditions of your employment, contrary to the Department's Code of Conduct.

By way of further clarification, it is claimed that you worked from home on two separate days during school business hours without management approval.

40       These allegations were allegations 3, 4 and 7 in the letter of the Acting Director General.  In each letter the particulars of the allegations are the same and no explanation or facts were provided to Ms Morony by the Director General to explain the findings that the allegations had been found proven.

41       In respect of allegation 3, during the interview it was not put to Ms Morony to whom it was alleged that this comment was made or that there were no corroborative witnesses.  In the investigator's report a finding is made that the comment was made or likely to have been made by Ms Morony because:

(a) the person who reported the comment presents as a very credible witness;

(b) during the interview Ms Morony displayed a level of contempt and disrespect for both Mr Coffman and Mr Robins; and

(c) Ms Morony in her written response denied making any such comment in a public forum.

42       Although in the matters referred for hearing the respondent alleges that the provisions of the investigation reports could, in certain circumstances, become a basis of tension between work colleagues, no submission has been made about this contention.  In light of the fact that the proof of this allegation relies solely upon credibility this information should be disclosed.  The aforementioned findings of fact have not been disclosed to Ms Morony.  They are plainly relevant to making a decision whether to object to the finding of a minor breach of discipline and any submission about penalty.

43       In relation to allegation 4, the investigator, in making findings about this allegation relates what was said by Ms Morony during the interview; in particular she denied giving Ms Jones her personal passwords.  The investigator then says that after a break in the interview for a lengthy toilet break, Ms Morony returned and stated that she may have given Ms Jones access to her personal passwords.  Whilst nothing may ultimately turn upon the statement that there was a lengthy toilet break, such a statement is not supported by the transcript of interview.  The transcript records that the interview was suspended at 12.15 pm and resumed at 12.20 pm.  In the absence of the investigator's report the investigator's finding would be unknown to Ms Morony.

44       I do, however, agree that the information in the investigation reports about the allegations which were found not to be proven should not be released to Ms Jones and Ms Morony as this information does not affect their rights.  The investigation reports are capable of being edited as information and findings of fact are set out separately in relation to each allegation.

45       For the reasons set out above I will made an order that:

(a) Ms Jones be provided with an edited copy of the investigation report into the matters alleged against her which sets out all matters relevant to allegations 1, 2, 4 and 6;

(b) Ms Morony be provided with an edited copy of the investigation report into the matters alleged against her which sets out all matters relevant to allegations 3, 4 and 7;

(c) Ms Jones and Ms Morony be given 14 days from receipt of the reports to respond to the letters from the respondent dated 16 and 15 September 2008 respectively.