APPEAL AGAINST THE DECISION MADE ON 11 FEBRUARY 2010 RELATING TO TERMINATION OF EMPLOYMENT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Philip Danala

APPELLANT

-v-

The Minister for Health in his incorporated capacity under s7 of the Hospitals and Health Services Act 1972 (WA) as the Hospitals formerly comprised in the Metropolitan Health Services Board (the Metropolitan Health Service)

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

 Acting Senior Commissioner P E Scott - CHAIRMAN

 MR S SEEDS - BOARD MEMBER

 MR G TOWNSING - BOARD MEMBER

HEARD Thursday, 12 August 2010, Wednesday, 6 October 2010

DELIVERED WEDNESDAY 20 october 2010

FILE NO. PSAB 13 OF 2010

CITATION NO. 2010 WAIRC 01036

CatchWords Public Service Appeal Board – Termination of employment – Application for discovery – Application that the appeal be received out of time – Public Sector Standards in Human Resource Management – Termination standard – Public Sector Standards in Recruitment, Selection and Appointment – Serious misconduct – Breach of discipline – Recruitment processes – Discrimination – Industrial Relations Commission Regulations 2005 107(9) – Industrial Relations Act 1979 s 29(1)(b) – Equal Opportunity Act 1984 s 89(1) – Public Sector Management Act 1984 – Public Sector Management (Breaches of Public Sector Standards) Regulations 2005

Result Application for discovery dismissed

Application that the appeal be received out of time dismissed

Representation 

Applicant Mr P Danala on his own behalf

Respondent Mr J Ross and with him Ms S Smith

Reasons for Decision

1                 These are the unanimous reasons for decision of the Public Service Appeal Board (the Board).

Background

2                 Mr Danala appeals against the respondent’s decision to dismiss him for misconduct given on 11 February 2010.  The appeal was lodged on 14 June 2010 and was accompanied by a letter in which the applicant sought leave for his appeal to be received outside of the time specified for the filing of such appeals, being 21 days from the date of the decision appealed against (Industrial Relations Commission Regulations 2005, Reg 107(2)).

3                 The essence of Mr Danala’s application that his appeal be received out of time is that he was not aware of the processes for the lodgment of the application.  In his letter in support of that application, he says that he had a number of things that were necessary for him to do, including applying for a Newstart allowance from Centrelink and making enquiries of unions and others about the appropriate process of appealing against his dismissal.  He applied to the Western Australian Industrial Relations Commission claiming unfair dismissal (U 65 of 2010) which was filed on 23 April 2010.  On 4 June 2010, Commissioner Harrison convened a conference at which time the fact of his being in the wrong jurisdiction was raised and it was suggested to him that he ought to make an application to the Board.  The respondent’s representative escorted him to the Registry where he obtained the appropriate appeal forms.  It was not until a further 10 days later that he lodged an appeal.  Mr Danala does not reply upon any other reason for the delay other than his unfamiliarity with the process.

4                 Mr Danala says that he challenged the respondent’s decision to dismiss him by way of a complaint of a breach of the Termination Standard, part of the Public Sector Standards in Human Resource Management, to the Office of the Public Sector Standards Commissioner.  This claim was lodged on 28 April 2010.  This suggests that there was no challenge to the employer’s decision to dismiss him prior to the filing of the claim under section 29(1)(b) of the Industrial Relations Act 1979 on 23 April 2010.

5                 On 5 July 2010, the respondent filed a Notice of answer and counter-proposal in which he objected to the claim and raised a number of challenges to the Board’s jurisdiction and to the merits of the appeal.  On 12 August 2010, the Board convened a scheduling hearing.  In anticipation of that hearing, the respondent filed a detailed outline of its case and a bundle of documents.  In the hearing of 12 August 2010, it was explained to the applicant that the Board would need to convene a hearing to deal with his application that the appeal be received out of time, and a hearing was set down accordingly for that matter to be heard on 6 October 2010.

6                 However, on 22 September 2010, by email addressed to the Associate, the applicant made an informal application for discovery.  It was decided that given the timing of the matters and the difficulties in convening a hearing between 22 September 2010 and the scheduled hearing, that the application for discovery ought to be heard on 6 October 2010.

7                 Also, given the necessity to consider the relevance of any documents sought in discovery, the applicant was directed to provide the Board and the respondent with a succinct statement of facts on which his appeal relies in accordance with the Industrial Relations Commission Regulations 2005 Reg 107(9).  Such a statement was provided by email dated 1 October 2010.

8                 In directing the parties in preparation for that hearing, it was noted that the respondent had objected to the hearing for discovery being dealt with prior to the determination of the application that the appeal be received out of time.  The respondent also raised a number of other issues.  These were to the effect that discovery ought not be provided as there was no merit in the appeal, as well as there being a number of reasons why discovery ought not be granted in respect of the particular documents sought in the application.  The respondent foreshadowed that he would seek the dismissal of the application for discovery and of the whole of the appeal in its entirety.  Mr Danala was informed that he should be prepared to respond to those issues at the hearing on 6 October 2010.

The Applicant’s Statement of Facts

9                 The applicant set out his statement of the facts upon which his appeal relies in the following terms:

“The applicant appeals against the decision of respondent who brought a breach of misconduct on the applicant because of his lodgement of a breach of public sector standard recruitment, selection and appointment claim documents and subsequent termination of his employment.

The decision to terminate the applicant was unfair and victimization of him was to cover up public officers who actually breached disciplines.  Basically the appellant lodged a breached [sic] of public sector standard claim 64 paged documents, in which the applicant explained about the breached [sic] of public sector standards, racial and religion direct and indirect discriminations and preferences when applying jobs within the same agency to human resources and the executive director Silvano Palladino whom instead of referring the document to an appropriate agency Office of Public Sector Standard [sic] Commission [sic] OPSSC to process, terminated the applicant as the HR and executive director were also involved in the way applicant described in the document.

The decision was unfair on the following grounds that the employer did not follow procedural fairness or natural justice set out in Industrial Relation Act 1979 SECT 801(I)(d) and hence Public Sector Management Act 1994 SECT 86 and Equal Opportunity Act 1984 SECT 37 and 67.

The merit of the applicant will be based on the facts that the respondent did not have jurisdiction to process the applicant’s breach claim documents lodged with them and only OPSSC has the jurisdiction under the PSM Regulation 2005, REG 10.  In addition to that the merit will be supported by the PSM ACT 1994 SECT (8)1 as the respondent also victimized the applicant under the Equal Opportunity Act 1984 SECT 37 and 67.

The grounds for the appeal rely on

• The breaches of Public Sector Standards PSM ACT 1994 SEC 8(1)
• The breaches of Public Sector Management Regulations 2005, Reg 10
• The breaches of Equal Opportunity Act 1984 Sect 37 and 67

The breaches of Public Sector Standards PSM ACT 1994 SECT 8(1)

The applicant was unfairly and oppressively terminated because of what he had written in his 64 paged breach claim documents about the employees of the respondent who breached public sector standards in recruitment, selection and appointment.  Hence it would be appropriate and relevant for granting discovery for the purpose of establishing facts on which the applicant [sic] appeal rely [sic] strongly on.  This would also satisfy the respondent that the applicant was not making delusional allegations about the employees who involved [sic] in recruitment processes.

The breaches of Public Sector Management Regulations 2005, Reg 10

It is also appropriate and relevant for granting discovery as it is necessary to establish facts on main points on which the respondent based and victimized to terminate the applicant was unfair and oppressive.  These main points would be supporting the applicant’s appeal of respondent’s decision to terminate him was oppressive and cover up the employees who were involved in recruitment processes.  This would in turn establish the reasons behind why the respondent’s decision to terminate the applicant was unfair and oppressive.

The breaches of Equal Opportunity Act 1984 Sect 37 and 67

The granting of discovery of [sic] would also support and substantiate strongly about all the claims in the applicant’s breach claim document in which the applicant claimed direct and indirect discriminations.  When the applicant claimed discriminations within the breach of public sector standards of recruitment, selection and appointment about the employees of the respondent, the applicant was terminated unfairly.  The applicant’s appeal also rely [sic] on these incidents of discrimination and the termination of the applicant by charging him with a “serious misconduct” is a malicious attempt to suppress some of the “racist medical scientists” supported by HR and at the same time suppress the fatal flaw and unequal recruitment processes at the employer.  Hence the granting of discovery is relevant and appropriate for the appeal of applicant to the PSAB of WAIRC.”

10              On 5 October 2010, the respondent filed a submission outlining its objections to discovery being granted.  Those objections include that:

1. What is sought is oppressive;

2. Some of it is not within the custody, power or possession of the respondent;

3. The documents are not relevant to the appeal;

4. The documents sought and the assertions attaching to them are outrageous, offensive and scandalous; and

5. Much of the application is a fishing expedition.

11              The respondent also says that the appeal ought not be received at all, that the Board does not have jurisdiction to deal with the appeal, that the appeal is misconceived and without merit.  It seeks that the Board dismiss the appeal in its entirety.

The Issues

12              We note that in respect of a number of issues and in respect of a number of the documents Mr Danala seeks to discover, he makes reference to particular people and makes allegations against them.  We consider that in the circumstances of this case it is not appropriate that those people be identified in these Reasons. On that basis we have referred to those people by sequential letters of the alphabet.

13              On 19 January 2010, Mr Danala made a complaint to the respondent in which he alleged various breaches of the Public Sector Standards in Recruitment, Selection and Appointment, citing what appear to have been allegations of racism, discrimination and similar issues.

14              The respondent wrote to him on 29 January 2010 indicating that allegations of misconduct had been raised against him in that the supporting documents in his Breach of Standard Claim Form “…contained many malicious and derogatory statements against fellow PathWest employees involved in the recruitment interviews …  These attacks on your fellow employees contained grossly obscene and totally unacceptable language and statements” (Ex R1).

15              Meetings were held with Mr Danala in which those allegations of obscene language and malicious and derogatory statements were discussed.  In his defence, Mr Danala had claimed that the obscene language and statements used in the documentation were merely a recitation of the exact words used to him by other employees including A.  The respondent examined the situation including interviewing A.  The officers who undertook that investigation, Mr Kevin McWaters and Mr David Taylor, then agreed that on the balance of probabilities, A did not use the obscene language and statements claimed by Mr Danala to have been made.  The respondent concluded that Mr Danala had misconducted himself and committed a serious breach of discipline.  Further, it was seen that his allegations against A were malicious and a vexatious attempt to discredit her, and were a further breach of discipline on his part.  Accordingly, it was recommended to the Executive Director that Mr Danala’s employment be terminated.  However, prior to the respondent making any decision in relation to his employment, Mr Danala was given an opportunity to respond to the proposed termination and provide any information which he thought might be relevant.

16              As a consequence, Mr Danala provided to the respondent a 63 page document in which he included information about positions for which he had applied unsuccessfully.  He listed those positions and set out complaints about the manner in which his applications for various positions were considered, about the selection processes, about comments made to him in the feedback process and he made allegations of discrimination against various people involved in the selection processes.  He alleged that he was being stereotyped and that assumptions were being made about him on the basis of his ethnicity.  He alleged that people said things to him about his race, gender, religion and the like.

17              On 9 February 2010, the Executive Director wrote to him noting that he had had an opportunity to consider Mr Danala’s response to his letter of 29 January 2010 and that a meeting had been scheduled in which he would advise Mr Danala of his decision.  That meeting was scheduled for 5.00 pm on Thursday 11 February 2010.  Mr Danala was advised who would be in attendance, that he was entitled to bring a support person to the meeting and was encouraged to do so.

18              It appears that at that meeting on 11 February 2010, Mr Danala was provided with a letter from the Executive Director of PathWest Laboratory Medicine which included the following terms:

“Whilst you have provided me with a great deal of material, the majority of that material relates to your unsuccessful job applications over the past 18 months and much of it contains more personal attacks by you against the credibility of virtually everyone who was involved in those recruitment processes.

If you had concerns about any of those processes you should have taken appropriate action at the time as provided for in the Public Sector Standards in Human Resource Management.  I am aware that you have previously been advised that this course of action is available to you.

In your response to my letter of 29 January 2010 you have not provided any additional information that I consider relevant to the fact that you have been found to have committed serious misconduct by using obscene language and statements in your letter received 19 January 2010.”

The letter noted that Mr Danala was found to have committed serious misconduct; that he had previously been warned about making derogatory statements about fellow employees and that such behaviour may result in disciplinary action being taken; and that his employment was to be terminated that day (Ex R4).

19              In the circumstances, the issues involved in this matter are that:

1. The respondent dismissed Mr Danala because he came to the conclusion that Mr Danala had used obscene and unacceptable language and statements, and had made malicious and derogatory statements in his Breach of Standard claim made on 19 January 2010 and further, in his response and discussions which followed, he had made a malicious and vexatious attempt to discredit A and that this was considered a further breach of discipline.

2.         When given an opportunity to respond to the allegations made against him, Mr Danala’s response did not address the issues but reiterated his previous complaints about breaches of Public Sector Standards, the recruitment and selection processes and of discrimination.

The Application for Discovery

20              As noted earlier in these Reasons, on 22 September 2010, Mr Danala wrote to the Associate seeking that the Board consider an application for discovery.  The documents he sought were set out in his letter to the respondent’s representatives in this matter, being:

1. “…the letter sent from PathWest HR (Kevin McWaters and David Taylor) to A for her suspected breach of misconduct meeting that would be held on 28 January 2010.”

21              Given that one of the issues considered by the respondent was whether Mr Danala had used malicious and derogatory statements, grossly obscene and totally unacceptable language and statements in his breach of standard claim form attachments, and in doing so had referred to something he attributed to A, any letter sent to A regarding any suspected breach of discipline or misconduct by her at around that time may be relevant to this matter.  The respondent has not acknowledged such a letter exists.  His comments suggest that there may have been a disciplinary process involving A associated with this matter and given that the respondent says that Mr Taylor and Mr McWaters interviewed A, then it is likely that there was some communication with her regarding that meeting.  In those circumstances, this would be a relevant document for discovery.

2. In the breach of standard complaint, Mr Danala complained that B had given him contradictory information and he has accused B of having early onset Alzheimer/dementia, therefore, he seeks “…the brain scan, blood test, genetic test results of B for Alzimer [sic]/dementia disease and for the year 2009 and 2010”.

22              During the course of the hearing, Mr Danala appeared to concede that any such documents, if they exist, would be third‑party documents, that he is not sure if such documents exist and that they were not necessarily in the control, possession or power of the respondent.  In any event such a request in these circumstances is scandalous and discovery of such documents would be entirely inappropriate and oppressive, even if such test results exist and were within the respondent’s control, possession or power.

3. Mr Danala has said that “another interview panel member (C) was trying to get pregnant again for another set of interviews”.  Mr Danala seeks “(C) pregnancy test results or contraception prescribed by medical doctors”.

23              It is unclear what this refers to or why it is relevant, however, the same comments as those relating to B apply in this case.

4. Employment contracts of Silvano Palladino, who is the Executive Director of PathWest, during his initial employment in the Department of Health and later as Executive Director of PathWest.  Mr Danala says that Mr Palladino was a close friend of many others who breached public sector standards and thus, there was a need for a cover‑up.  He says he seeks these contracts and a list of people Mr Palladino worked with in each department.

24              These documents will not demonstrate whether particular individuals are friends of Mr Palladino, that there has been a breach of public sector standards or a cover-up.  There is no causal connection between the documents sought and the allegations made, rather, this is a fishing expedition.

5. During the interview processes, an interviewer, D, asked Mr Danala whether he was satisfied with the manner in which the interview was conducted.  He sees this as a “trap question, to be used against him.”  He seeks the results of that question “(a)re you satisfied that the way [sic] interview was conducted”, whether any interview guideline documents from the Department of Health encourage interviewers to demand a YES or NO and wants the reason behind that question.

25              Once again, this issue relates to the question of any breach of public sector standards, not to whether the dismissal was unfair.  Such documents would not prove what Mr Danala needs to demonstrate and have only the most indirect relationship to the circumstances of his dismissal.

26              The interview guidelines are also irrelevant as the issue before the Board is not whether the respondent complied with public sector standards in recruitment, but whether it unfairly dismissed him.

6. Mr Danala says that an “interviewer stereotyped (him) as an Indian and asked questions in such a manner as to “discretely [sic] indicate their prejudice against Muslim people based on questions relating to the need for confidentiality around the use of forensic databases”.  He seeks the employment contracts and names of positions of employees who work for the forensic database and identification of their religion and ethnicity.

27              Once again, this is irrelevant to the issue of whether the respondent unfairly dismissed Mr Danala.  Provision of the information will not demonstrate what he seeks to demonstrate.

7. Mr Danala alleged in his breach of standard complaint that A mocked him saying “we enjoy getting f---ed so many times by white dicks but not Indians the night before the interview”.  She is alleged to have said that “he would not understand or be able to fit into their “Australian” cultured team environment which includes dating and sexual relationship between staff in the workplace”.  It is said to be in consequence of this allegation that Mr Danala seeks the marriage certificates and identification of racial ethnicities of the partners of four employees.  He says “(i)f they are not married, I need their partners’ ethnicity identified.  Please do not tell me they are virgins”.

28              These documents are third party documents, they are not within the control, possession or power of the respondent.  They are irrelevant to the matter before the Board and furthermore, the application in this regard is scandalous.

8. The applicant seeks a “recent photograph of (E) with [sic] as he is wearing a nose ring”.  He says that A “said that (E) is a homosexual gay person and that she assumed that I would not be comfortable working with him as she thought I was an Indian Muslim person”.

29              This matter is irrelevant to the issues before the Board.  The discovery of such a document, if it exists and if it were in the possession, power or control of the respondent would prove nothing of those things that Mr Danala alleges.  The fact that a person may or may not wear a nose ring does not demonstrate what someone else may or may not have said about them.  Furthermore, this aspect of the discovery application, like many others, seeks to pursue the previous allegations of breaches of standards and discrimination raised by Mr Danala. 

9. Mr Danala seeks the employment contracts of “that successful applicant”.  In this, we think, he is referring to an applicant F had appointed to a position for which Mr Danala had applied.

30              Once again, this goes to an alleged breach of public sector standards and is not relevant to this issue of his dismissal.

10. Mr Danala alleges that G appointed people to positions without advertising those positions or going through an interview process.  He seeks position advertisements and employment contracts with G’s name on any advertisements from 2007 to 2010 and a list of the staff he is supervising and their positions and employment contracts.

31              Once again, this goes to the issue of the allegations of breach of standards and is irrelevant.  Furthermore, it constitutes a fishing expedition and is oppressive.

11. Mr Danala alleges that H “got her job in HR because she has white skin”.  He wants her employment contract and qualifications.  He understands that she was a secretary in PathWest before she got a job in HR.

32              This too relates to an alleged breach of public sector standards and is irrelevant to this matter.  Furthermore, it is scandalous.

12. Mr Danala says that the Toxicology Department within PathWest Laboratory Medicine does not “ever advertise the positions within the Toxicology Department”, always doing “internal white recruitment programs and young south east Asian females as an equity target group”.  He seeks all employment contracts and job advertisements within the Toxicology Department from 2007 to 2010.

33              This relates to a claim of breach of standard and is not relevant to this matter.

13. Mr Danala seeks the total number of employees at PathWest Laboratory Medicine including the “average/medium type of qualification and also an average salary for each ethnic group” and he has set out an example of the way in which he wants this information set out.

34              We note that Mr Danala does not suggest that there is a document in existence, and like other material sought within his application for discovery, he seems to be confusing the provision of discovery of documents with a request for the creation of documents and the provision of information beyond the existence of documents.  In addition to this not constituting a document which is in existence, it is irrelevant and oppressive to the respondent.

35              In those circumstances, there is only one document which may be relevant to Mr Danala’s claim and to the appeal.  However, the respondent asks the Board to dismiss the application that the appeal be received out of time.

The Appeal that the Appeal Be Received Out of Time

36              The tests for the Board to receive an appeal out of time are set out in the decision of the Industrial Appeal Court in Prem Singh Malik v Paul Albert, Director‑General, Department of Education of Western Australia [2004] WASCA 51 (Malik).  Those tests as set out by Hasluck J include that prima facie, time limits should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend time.  In this case, the only explanation given by Mr Danala for the delay is that he was not familiar with the processes for filing his appeal.  Mr Danala contested the termination of employment by filing a claim of unfair dismissal in the Commission’s general jurisdiction which application was already out of time by 49 days.  Even when he was advised of the correct jurisdiction and was taken to the Commission’s registry to obtain the application form, he did not lodge the appeal for a further 10 days.  In total, the appeal was lodged 101 days out of time, and in the context of a 21 day time limit, this is an inordinate delay, and the explanation for it is unsatisfactory.

37              Another test set out in Malik is whether there is any prejudice to the respondent caused by the delay in the appeal being lodged.  There is no evidence of particular prejudice to the respondent caused by the delay.

38              The next issue set out in Malik is that the merits of the substantive appeal may be taken into account in deciding whether to grant an extension of time.  As noted earlier in these Reasons, the respondent dismissed Mr Danala because of obscene and unacceptable language and statements, and malicious and derogatory statements which he had used in his breach of standard claim made on 19 January 2010.  He was given an opportunity to respond to those complaints prior to any decision about his future being made.  He responded by repeating allegations of breaches of standards, some of those allegations made in the most outrageous, offensive and scandalous terms such as to deprive them of creditability and integrity.  However he did not address whether there was a reasonable explanation for his conduct.  He appears to have attempted to say that his conduct and language were brought about by the circumstances he faced of being the subject of breaches of standards and of discrimination.

39              Mr Danala has subsequently made a complaint to the Equal Opportunity Commission of race, sex and religious conviction discrimination and of victimisation.  By letter dated 5 August 2010, the Commissioner for Equal Opportunity advised the respondent that she has not accepted those parts of the complaint which are out of time, but has also, in accordance with section 89(1) of the Equal Opportunity Act 1984, dismissed Mr Danala’s complaints as lacking in substance (Ex R5).

40              Also, in the letter of 5 August 2010, the Commissioner for Equal Opportunity informed the respondent that she had informed Mr Danala that he may notify her within 21 days after receipt of her letter that he requires her to refer his complaint to the State Administrative Tribunal for inquiry.

41              The indication from Mr Danala is that he has not sought that the Commissioner for Equal Opportunity refer the matter to the State Administrative Tribunal and the period of 21 days provided has now expired.

42              Mr Danala says that some of the obscene language he used in his complaint was simply a recitation of what was said to him by A.  This was investigated by two officers of the respondent, and they concluded that on the balance of probabilities, A did not say those things.  Given Mr Danala’s other comments and allegations, in circumstances where it is one person’s word against another’s, we find that conclusion is not unreasonable.

43              As to the alleged breaches of Public Sector Standards in Recruitment, Selection and Appointment, we note that the role of the Public Sector Standards Commissioner is to deal with such complaints, not the Board.  The Board does not have power to enforce either the Public Sector Management Act 1994 or Public Sector Management (Breaches of Public Sector Standards) Regulations 2005, or the Public Sector Standards.

44              Mr Danala’s complaint is in effect, that the respondent has dismissed him as a means of covering up breaches of public sector standards.  There is nothing to suggest that this has occurred.  On the contrary, what is plain on the face of what has been put to the Board, is that Mr Danala has made a large number of outrageous allegations using obscene and unacceptable language and statements, and he has made malicious and derogatory statements about his work colleagues.  He has been given an opportunity to respond to those allegations and has failed to deny the allegations or in any way explain his conduct.  Rather, his conduct in these proceedings has reinforced the findings of his employer against him.  His application for discovery merely exemplifies the conduct which caused the respondent to dismiss him.

45              Mr Danala’s dismissal was because of the way he conducted himself.  If he had genuine complaints about the way he was treated, he is entitled to make those complaints.  However he must do so in a manner which is reasonable.  His conduct in the way he made his complaints was unreasonable in the extreme.  It was offensive, malicious and scandalous.

46              In this case, at the conclusion of the hearing we had no reservations in concluding that there is no merit in the appeal, and that the grounds of appeal are not sustainable.  We remain of the view that it is not in the public interest that this matter remain on foot or take up any more of the Board’s time.  Although one of the documents sought in the application for discovery may have some relevance to the appeal, in all of the circumstances, we decided to dismiss the application for discovery and dismiss the application that the appeal be received out of time.