APPEAL AGAINST THE DECISION TO TERMINATE THE EMPLOYMENT OF UNION MEMBER ON 10 DECEMBER 2010

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2011 WAIRC 00876

DELIVERED : FRIDAY, 9 SEPTEMBER 2011

FILE NO. : PSAB 3 OF 2011

Appellant

AND

Public Transport Authority of Western Australia

Respondent

Catchwords : Industrial Law (WA) - Appeal against decision to terminate employment - Notice of appeal filed outside of 21 day time limit - Principles applied - Appeal Board satisfied appeal should be accepted out of time - Appeal in nature of heairng de novo - Appeal Board to be persuaded on balance misconduct occurred - Defects in procedure can be cured as part of conduct of appeal - Appeal dismissed.

Legislation : Industrial Relations Act 1979 (WA) s 28(1)(n), s 80I. 

Result : Appeal dismissed

Representation:

Appellant : Ms D Butler

Respondent : Mr D Matthews instructed by the State Solicitor’s Office

Case(s) referred to in reasons:

Chan v The Nurses Board of Western Australia [2007] WASCCA 123;

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196;

Jackamarra v Krakouer (1998) 195 CLR 516;

Kirk and Anor v Industrial Relations Commission of New South Wales and Anor (2010) 239 CLR 531

Michael Christian Nicholas v Department of Education and Training (2008) 89 WAIG 817;

Thavarasan v The Water Corporation (2005) 86 WAIG 1434.

Case(s) also cited:

Fels v Department of Agriculture and Food (2010) 90 WAIG 1485;

Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683;

Milentis v Minister for Education (1987) 67 WAIG 1124;

Raxworthy v Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266;

Ross v Peter Conran, Director General, Department of Premier and Cabinet (2011) 91 WAIG 411;

Simonsen v Legge [2010] WASCA 238.

Reasons for Decision

Appeal

1          This is the unanimous decision of the Appeal Board.

2          Mr Pantovic was a Transit Supervisor employed by the Public Transport Authority.  The Authority dismissed Mr Pantovic on 10 December 2010 for a breach of its policies and Code of Conduct, following an incident with a fellow transit officer on 4 July 2010. The incident involved Mr Pantovic spraying the other employee, Senior Transit Officer Mitchell, in the face with inert spray from a training OC canister. Mr Pantovic says the spraying was accidental.  Mr Mitchell says it was deliberate.

3          In this appeal Mr Pantovic seeks reinstatement without loss. The appeal is opposed by the Authority.  It says Mr Pantovic’s dismissal was, in view of the circumstances, justified.

Extension of time

4          Under Reg 107 of the Industrial Relations Commission Regulations 2005 an appeal of the present kind is required to be brought within 21 days of the decision from which the appeal is made.  In this case, that was by 31 December 2010.  The appeal was not filed until 2 March 2011.  Accordingly, Mr Pantovic also made application to extend the time within which to bring the appeal.

5          The Appeal Board sat to hear Mr Pantovic’s application for an extension of time.  After hearing Mr Pantovic, and taking into consideration the Authority not opposing the application, the Appeal Board accepted the appeal out of time, with reasons to be published in due course. We also made directions for the future conduct of the appeal.  These are our reasons for so deciding.

6          The grounds for the extension of time record that on 20 December 2010 Mr Pantovic commenced proceedings in the general jurisdiction of the Commission challenging his dismissal by the Authority.  The Australian Services Union was acting on Mr Pantovic’s behalf in those proceedings as it is in this appeal.

7          A hearing was held before a Commissioner on 18 February 2011 at which the Authority asserted that the Commission had no jurisdiction to hear the matter in its general jurisdiction under the Act.  Subsequently, the union, on behalf of Mr Pantovic, discontinued the unfair dismissal claim and the present appeal was commenced.

8          Relevant principles in relation to the exercise of discretion to extend time within which to appeal under s 80I of the Act were considered by the Appeal Board in Michael Christian Nicholas v Department of Education and Training (2008) 89 WAIG 817 .  In that case the Appeal Board applied the principles applied by the Full Court of the Supreme Court of Western Australia and the Court of Appeal respectively in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and Chan v The Nurses Board of Western Australia [2007] WASCCA 123.  These principles have been recently restated by the Court of Appeal in Simonsen v Legge [2010] WASCA 238.

9          These authorities apply four factors in considering whether an appeal should be accepted out of time.  They are the length of the delay; the reasons for the delay; whether Mr Pantovic has an arguable case; and any prejudice to the Authority.   

10       Some reference was made to Nicholas by an Appeal Board in Ross v Peter Conran, Director General, Department of the Premier and Cabinet (2011) 91 WAIG 411.  The Appeal Board in Ross at par 28 referred in part to Nicholas.  It was said in Ross at par 29, that the Appeal Board in that matter did not agree with the Appeal Board in Nicholas that Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683 “may be of assistance” in dealing with extensions of time.

11       However, a fulsome reading of the reasons of the Appeal Board in Nicholas makes it plain that the approach of the Industrial Appeal Court in Malik to extensions of time in unfair dismissal cases was distinguished from extensions of time in appeals under s 80I of the Act.  This was dealt with at par 11 as follows:

“Whilst the representatives of Mr Nicholas and the respondent made some reference to relevant principles for extensions of time in unfair dismissal proceedings before the Commission pursuant to s 29(3) of the Act, as considered in Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683, it is important to observe that that case turned substantially upon the particular statutory framework prescribed under s 29 of the Act and in particular s 29(3), which provides that “The Commission may except a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so”.”

12       We adopt and apply for present purposes, the decision in Nicholas.  This applies the approach to extensions of time adopted by the Court of Appeal and the Full Court of the Supreme Court of Western Australia, as the superior courts of record in this State, and which exercise general supervisory jurisdiction over the Commission: Kirk and Anor v Industrial Relations Commission of New South Wales and Anor (2010) 239 CLR 531.

13       In applying these principles, in this appeal the notice of appeal was lodged 30 days out of time.  Whilst it is a considerable lapse of time, it is not inordinate.

14       As to the reasons for the delay, as stated above, Mr Pantovic initially commenced proceedings in the general jurisdiction of the Commission.  He did so within the time limit for such applications, some 10 days after his dismissal. In that application Mr Pantovic plainly sought to challenge the Authority’s decision to dismiss him. The mistaken commencement of proceedings in the incorrect jurisdiction is an adequate reason for the delay.

15       As to the merits of the appeal, this can only be assessed in a rough and ready way at such an early stage: Jackamarra v Krakouer (1998) 195 CLR 516.  We were of the view that the appeal was not completely without merit.

16       Finally, in relation to prejudice to the Authority, as the extension of time was not opposed, none was apparent.

17       Accordingly, the appeal was accepted out of time.

Contentions of the Parties

18       Mr Pantovic contends that prior to the incident, he was an exemplary employee.  According to Mr Pantovic, he was the subject of a malicious complaint by STO Mitchell arising from the spraying incident and was the subject of a campaign by the union representing transit officers.  Furthermore, Ms Butler contended that Mr Pantovic was given poor advice by his relevant manager during the process of the Authority’s investigation and ultimately, the penalty of dismissal in the present case, was too harsh.

19       Counsel for the Authority Mr Matthews submitted that Mr Pantovic deliberately discharged his training spray at STO Mitchell on the day in question.  Mr Matthews contended that as a Transit Supervisor, Mr Pantovic had a heightened responsibility to maintain high standards of integrity and trust and Mr Pantovic acted contrary to that obligation. 

20       Furthermore, Mr Matthews submitted that not only were Mr Pantovic’s actions an act of misconduct, his subsequent lack of candour in the investigation process, and his failure to take responsibility for his actions, destroyed the necessary relation of trust and confidence between the Authority and Mr Pantovic, as a supervisor law enforcement officer.

Factual Background

21       Mr Pantovic contends in his statement of facts that he was involved in an incident in the early hours of 4 July 2010 at the Midland Railway Station.  Whilst in the transit office in the company of two other officers, Senior Transit Officer Mitchell and Transit Officer Standish, he accidentally deployed a canister of saline solution/training spray, which he was carrying on his accoutrement belt.  The stream from the spray struck STO Mitchell in the face.

22       On 5 July 2010, STO Mitchell made a formal complaint to the Authority and also a complaint of assault to the Police.  The allegation of criminal assault was not proceeded with.

23       STO Mitchell sought medical attention on 9 July 2010 and obtained a medical certificate from his doctor to the effect that STO Mitchell suffered pain to his left eye at the time of the incident, and it continued to feel bruised. The doctor concluded that “on examination he has normal visula [sic] acuity but some mild pitting of the conjunctival surface which should settle over the next few days”.

24       On 21 July 2010 Mr Pantovic was notified by the Authority that he was the subject of a formal investigation by the Authority’s investigation section. The allegations against Mr Pantovic were that:

(a)  On 4 July 2010 he used force when none was needed at the Midland Railway Station, contrary to s 7 par 12(c) of the Transit Officers Operations Manual ;

(b) On 4 July 2010 he acted in a manner contrary to s 6 par 15(a) of the Manual; and

(c)  On 4 July 2010 he acted in a manner contrary to the Authority’s Code of Conduct .

25      Mr Pantovic provided a written report to the Manager of Investigations, Mr Trivanovic, on 24 July 2010. In his written report of the incident, after referring to events leading up to the incident, Mr Pantovic said: “At this moment I was adjusting the can in my pouch as it wasn’t sitting right and as I pushed down the canister I accidentally pushed the button rather than the flap”. Mr Pantovic did not access the CCTV footage of the relevant work area prior to submitting his report of the incident.

26      Mr Pantovic was interviewed by the investigators on 24 August 2010. The interview was recorded and transcribed. 

27      The results of the investigation were incorporated into an Investigation Report of 8 November 2010. A copy of the Investigation Report was provided to Mr Pantovic by the Authority’s Managing Director Mr Burgess under cover of a letter dated 26 November 2010.  In the letter the Authority advised Mr Pantovic that:

“The investigation found sufficient evidence to support findings that you:

• acted in a manner contrary to section 7 Of the Transit Officer Operations Manual and Section 5 of the PTA's Code of Conduct by using excessive force when none was needed and knowingly wrongful use of force;

• breached the PTA's Code of Conduct by assaulting a fellow officer;

• acted in a manner contrary to the PTA's Code of Conduct and Transit Officer Operations Manual by breaching the required standard of integrity both during the course of the incident and in providing your evidence during the investigation.”

28      The letter from Mr Burgess went on to state:

“Viewed as a whole, your conduct during the incident and in the subsequent investigation process raise serious concerns in my mind regarding your integrity, judgement and professionalism.  Based on the investigation it appears clear to me that the incident was not an accidental discharge of your inert spray.  It was a practical joke involving deliberate choice yourself to use the spray.  References to several people that it was a joke in my view support this.  Secondly your defence is that it was an accidental discharge, yet such circumstances could not be replicated by you when asked to demonstrate by the investigators nor has it ever actually occurred within the Public Transport Authority.

I consider that your actions during the incident are almost secondary to your conduct in denying any failure in your actions.  Your conduct could be construed to have been intended to pervert the course of the investigation and have placed in serious jeopardy the relationship of trust between the PTA and yourself.  Such conduct renders it inappropriate that you remain in any law enforcement position, let alone one of a Supervisory nature with leadership and accountability responsibilities.”

29      The letter concluded that Mr Pantovic had falsified an excuse of accidental discharge of the canister and had continued to maintain that position, which constitutes “a serious breach of trust and honesty expected of a Transit Supervisor”.

30      Mr Pantovic was informed that it had been recommended that he be dismissed.  Prior to considering the matter further, Mr Pantovic was invited to respond in writing by 3 December 2010, which he did in a letter emailed to Mr Burgess on 2 December 2010.

31      In a response of 10 December 2010 Mr Burgess concluded that Mr Pantovic had breached the trust of the Authority and observed:

“You have apologised for your conduct in this incident, outlined your pride in your Transit Officer career and referred to your financial and family issues for me to consider in support of a decision against termination.  Whilst sympathetic to these points, I do not believe that your response indicates that you have taken responsibility for your conscious actions.  In your response you still talk of the matter as an "incident when I accidently deployed a training spray", "that you were not aiming at him" and "to be honest I did not think there was enough liquid in the can to squirt the way it did".

In my letter of 26 November, I made it clear that it was your actions post the incident which has led me to question your accountability and integrity, two key factors for an officer and supervisor in an enforcement role.  The credibility of an officer is critical in order for the PTA to be able to successfully undertake the enforcement and prosecution work to ensure the safety and security of our customers.

It is clear that some planning choice was involved with you returning your OC spray and obtaining a training spray, in this case one which was full, when all other canisters for other officers are empty.  Your response is not a statement of full acceptance of intent rather a mixture of still implying some accidental aspect.  Further your acknowledgement of some involvement only comes at the end of a [sic] investigation which clearly indicates that it was not an accident.

For all the reasons outlined in my letter of 26th November and the evidence available to me, I consider that I now have no option other than to terminate your employment with the PTA due to the breach of trust that now exists between the Public Transport Authority and yourself and the loss of confidence that we now have in you.

Your employment will be terminated effective from today with four weeks pay in lieu of notice.  Please return your uniforms and Smartrider ticket to The Transit office so that arrangements can be made to finalise pay.”

32      Mr Pantovic was paid four weeks pay in lieu of notice with all accrued entitlements.

The Incident

33      Mr Pantovic testified that on 3 July 2010 there had been a request for officers to remain at work to prepare a report of a violent arrest from the previous day.  Two junior officers were attending to this task.  Mr Pantovic noticed a Senior Transit Officer Lawson preparing to leave work and raised with him providing assistance to the junior officers.  He declined.

34      Mr Pantovic said he was not satisfied with the effort of STO Lawson and intended to speak with him about the matter.  In contrast, on the following day, 3 July 2010, Mr Pantovic observed STO Mitchell providing assistance to the officers and Mr Pantovic commended him for his efforts and made a note on STO Mitchell’s running sheet to this effect.

35      Later on the same day at approximately 9.45pm, Mr Pantovic said he attended the Bayswater Railway Station.  He saw STO Lawson.  Mr Pantovic indicated to STO Lawson that he wished to speak with him alone about the events of the previous day. When Mr Pantovic did so, according to Mr Pantovic STO Lawson became aggressive.  When Mr Pantovic told STO Lawson he would be recording his comments on STO Lawson’s running sheet STO Lawson became angrier and swore at him.

36      The attitude of STO Lawson surprised Mr Pantovic.  He thought STO Lawson had been “tipped off” that Mr Pantovic was going to the Bayswater Station to speak with him.  Accordingly, Mr Pantovic telephoned STO Mitchell and another supervisor Mr Crane, and queried whether either of them had spoken to STO Lawson to warn him of Mr Pantovic’s visit.  Both STO Mitchell and Mr Crane told Mr Pantovic they had not spoken to STO Lawson. 

37      In cross-examination Mr Pantovic said he was surprised by STO Lawson’s reaction to his visit but denied that he was annoyed when he spoke to STO Mitchell later in the evening.  He testified he was satisfied STO Mitchell had not forewarned STO Lawson.

38      When he spoke to Mr Crane, Mr Pantovic said he could not recall whether he told him, in response to Mr Crane’s denial of contact with STO Lawson, words to the effect “don’t worry it must have been Muffy”. “Muffy” is a nickname for STO Mitchell.

39      In further cross-examination Mr Pantovic said that at approximately 1.50am on 4 July 2010 he went to the Transit Supervisor’s Office and swapped his OC spray canister for an inert / training spray canister.  He said he did this because it was approaching the end of the shift, he would be busy with paperwork and booking in other officers’ OC spray to be put in the safe, and he did not want to risk taking a canister of OC spray home with him by mistake.  Mr Pantovic also testified that it had been recommended in training that officers take home used training sprays to practice their “draw” and to keep the shape of the canister pouch when not on duty.

40      Mr Pantovic said he then went to the Transit Officer’s Office.  On entering the office, he testified that he saw both TO Standish and STO Mitchell. It appeared that TO Standish was preparing a brief and STO Mitchell was helping him.  Mr Pantovic said he walked over to the right hand side of the office close to where STO Mitchell was and spoke to him about him applying for supervisor positions.  According to Mr Pantovic, STO Mitchell replied that he had not done so as he had received some negative comments from some supervisors.

41      At the time Mr Pantovic said he was wearing a long jacket and on pulling back the jacket, he realised that his OC spray canister was not sitting correctly in its pouch in his accoutrement belt. Mr Pantovic said he went to reposition the canister and as he did so, he deployed the spray by pressing the trigger.

42      At the same time as he did this, Mr Pantovic testified that STO Mitchell leaned forward to pick up some paper and the stream of water from the canister struck him in the face.  At this point STO Mitchell responded with profanity as to what Mr Pantovic had done and why he had done it.  STO Mitchell was upset.

43      Mr Pantovic said he immediately apologised to STO Mitchell and repeatedly apologised after the incident. He thought STO Mitchell had accepted his apology. Mr Pantovic said in cross-examination that the discharge was accidental and he had not intended to hit Mitchell.  He denied he said to STO Mitchell words to the effect that “it was a joke”: T93.  Mr Pantovic also said he told STO Mitchell that he had sprayed him by accident and he thought the way STO Mitchell was “carrying on” was a joke.  Mr Pantovic in his testimony denied that he had told STO Mitchell that the spraying itself was intended as a joke.

44      In the course of the evidence both Mr Pantovic and the Authority played a recording of the CCTV footage of the office and foyer areas of the station during the shift in question.  The footage did not capture the incident that occurred in the office and little of what actually occurred in the office can be seen.  On viewing the footage of both himself and STO Mitchell leaving the office, which plainly shows STO Mitchell wiping the left hand side of his face, Mr Pantovic testified that this was inconsistent with what he thought had occurred, that being that STO Mitchell had been struck on the right hand side of his face.  Mr Pantovic did however accept in re-examination, that there may have been some overspray to the left hand side of STO Mitchell’s face.

45      Mr Pantovic said STO Mitchell’s complaints as to his left eye, including the report from STO Mitchell’s doctor, were all done to make him look bad.

46      After Mr Pantovic and STO Mitchell had left the office and had gone to the crib room for coffee, they both returned to the office.  A short time later, Mr Pantovic said he asked STO Mitchell to go outside with him for a discussion.  Mr Pantovic said he told STO Mitchell it was not about the spraying incident.  In the station foyer, Mr Pantovic spoke to STO Mitchell about his earlier encounter with STO Lawson. This was the reason that Mr Pantovic had contacted STO Mitchell earlier in the shift to ask him whether he had forewarned STO Lawson of Mr Pantovic’s visit to the Bayswater Station. Mr Pantovic could not say, when questioned in cross-examination as to why, on the CCTV footage, he is seen pointing towards the left hand side of STO Mitchell’s mid section just before they both left the foyer.

47      STO Mitchell’s version of the events in the transit office on the night in question was in stark contrast to that of Mr Pantovic.

48      According to STO Mitchell, at about 9.50pm on 3 July 2010 he received a telephone call while on shift from Mr Pantovic.  Mr Pantovic asked him if he had “tipped off” STO Lawson that Mr Pantovic was to visit STO Lawson at the Bayswater Station earlier that evening.  STO Mitchell testified that he told Mr Pantovic he had not done so and did not know Mr Pantovic was going to the Bayswater Station.  STO Mitchell said that Mr Pantovic asked him “if he was lying” to which STO Mitchell replied he was not.  STO Mitchell said that Mr Pantovic seemed upset because his tone of voice was “aggressive and angry”: T124.

49      Later in the shift, at about 1.50 am on 4 July, STO Mitchell said he was in the transit office with TO Standish and they were compiling a brief.  He leaned over towards the printer and felt a sharp pain in his left eye and heard Mr Pantovic laughing in the background.  He said he had not heard Mr Pantovic come into the office.  STO Mitchell put his hand up to his left eye.  Mr Pantovic said to him words to the effect “it’s only inert”: T124.

50      STO Mitchell testified he told Mr Pantovic the spray had hit him in the eye following which, Mr Pantovic came close up to him and said “it was only a joke”: T124.  STO Mitchell said he had to push Mr Pantovic back a couple of times as Mr Pantovic was very close to him.  He then left the office to go to the staff toilets to wash his face.  Mr Pantovic followed STO Mitchell for some way to the staff lunch room and then left him after that.  STO Mitchell testified that his eye was red and sore and he was very upset by the incident.  He did not know why Mr Pantovic would do what he did.

51      STO Mitchell returned to the office to help TO Standish complete the work they had been doing immediately prior to the incident.  At that point Mr Pantovic came back into the office, apologised for his earlier actions and tried to shake STO Mitchell’s hand, which STO Mitchell refused.

52      According to STO Mitchell, Mr Pantovic requested that he leave the office for a private conversation.  STO Mitchell said he had no desire to speak with Mr Pantovic but Mr Pantovic assured him that it was not about the spraying incident. Not wishing to be accused of insubordination, STO Mitchell accompanied Mr Pantovic to the foyer area of the station, although he felt uncomfortable in doing so.

53      STO Mitchell testified that once in the foyer Mr Pantovic told him about the incident with STO Lawson earlier in the shift and that STO Lawson knew Mr Pantovic was going to see him. Toward the end of the conversation, STO Mitchell said that Mr Pantovic told him “he was aiming for my chest, which he then changed he was aiming for my left side.  He touched my left side as he said that …”: T125.

54      After the shift had ended STO Mitchell said although his left eye was still sore, he did not go to see his doctor as he had been exposed to training spray in the course of training and he thought the soreness would eventually go away.  It did not however do so and some four days later, STO Mitchell went to his doctor and was given a medical certificate referring to the eye injury.

55      Later on 5 July STO Mitchell told his supervisor Mr Crane about the incident and also completed an occupational safety and health form.  He made a note of the spraying incident and the earlier telephone conversation with Mr Pantovic about the visit to STO Lawson in his notebook.  These notes were made on the date of the incidents. 

56      In his cross-examination, STO Mitchell was emphatic that he had to push Mr Pantovic aside at least on two occasions to get past him to reach the door of the office.

57      The only witness to the incident in the office on the morning in question was Mr Standish.  Mr Standish did not have a good recollection of the incident.  He said that the best and most accurate description of what he saw at the time was contained in his statement to the investigators provided on 16 August 2010.

58      Mr Standish’s evidence was that at the time in question both he and STO Mitchell were preparing a brief that was to go to court.  As far as he could recall, Mr Standish was sitting to the right hand side of the office near the computer and facing towards the platforms. He noticed that somebody was coming towards the office door and whilst remaining in his chair which was on rollers, rolled towards the door to open it and acknowledged Mr Pantovic who came into the office.  Mr Standish said he then rolled back to where he was working.  Shortly after he saw a reaction from STO Mitchell who was to his left and in front of him.  STO Mitchell raised his hand up to his face over his eyes.

59      In his testimony, Mr Standish could not recollect much detail as to any conversation between Mr Pantovic and STO Mitchell other than STO Mitchell being very upset.  He also testified that he recalled Mr Pantovic as being very apologetic and concerned and there was “obviously a little bit of heat between the two of them as a consequence of the incident”: T117.  After the incident, outside of the office, Mr Standish said that he recalled a brief conversation between himself and Mr Pantovic.  Mr Pantovic said to him words to the effect that he did not intend to cause STO Mitchell any harm.

60      In his written statement provided to the investigators, the following is said by Mr Standish:

“Supervisor Pantovic entered the Midland Station front office.  I was going through my hearing brief with STO Mitchell.

Supervisor Pantovic closed the station door, (I heard not saw as I was looking at my brief).

A few seconds (maybe 10 or so) past[sic] I then heard STO Mitchell swear and I looked at him (he was standing forward of me and to the left and I saw STO Mitchell place his hand over his eye.

Supervisor Pantovic then has stepped forward toward STO Mitchell.  STO Mitchell has asked (words to the effect) Supervisor Pantovic why the f**k did you do that, f**k off leave me alone to which Supervisor Pantovic replied (words to the effect) mate I was only joking/kidding around.”

61      According to Mr Standish’s statement he said that Mr Pantovic’s intention at the time did not seem to be malicious.  In the course of his interview with the investigators, Mr Standish accepted, based on the CCTV footage, that he must have rolled over to the door and let Mr Pantovic into the office, although he could not recall doing so when he made his initial statement.

62      Mr Standish in his report to the investigators also referred to his brief conversation with Mr Pantovic after the incident and said as follows:

“I was briefly approached by Supervisor Pantovic regarding the incident within fifteen minutes of its occurance.[sic]

Supervisor Pantovic mentioned he wasn’t trying to hurt STO Mitchell, and it was a joke that went wrong, and that he was aiming for STO Mitchell’s chest.”

63      Also relevant to the incident was the evidence of Mr Crane and Mr Svirac.

64      Mr Crane, as noted, is a transit line supervisor employed by the Authority.  On the night in question Mr Crane was working in Fremantle on an overtime shift.  Mr Crane testified that he received a telephone call from Mr Pantovic at some point during the shift and he could not remember when.  Mr Pantovic asked him if he had tipped off STO Lawson to which Mr Crane replied that he had not and nor did he know what the matter was about.  Mr Crane said that Mr Pantovic then said to him words to the effect “don’t worry about it.  Must have been “Muffy”, being Adrian Mitchell.”: T153.

65      Later, just before the end of his shift at about 2.30 am on Sunday morning, Mr Crane received a telephone call from STO Mitchell. Mr Crane said that STO Mitchell was distressed and referred to Mr Pantovic having sprayed him with inert OC spray which struck him in the face and the eye.  STO Mitchell asked Mr Crane what he should do about it.  Mr Crane told him that it depended how serious the matter was but if there was an injury, he would need to fill in an “OSH1 report”: T154.

66      The next time Mr Crane had any involvement in the matter was about two weeks later. He was at the Authority’s Perth office and overheard a conversation between Mr Pantovic and STO Mitchell.  According to Mr Crane, Mr Pantovic went up to STO Mitchell and said words to the effect that “I didn’t mean to spray you.  You – you bent into it.  You bent down and it hit you in the face”:  T155.

67      In cross-examination, Mr Crane said that after overhearing this conversation, he also had a brief conversation with Mr Pantovic where Mr Pantovic said to him words to the effect that “the OC was in the – in the canister, and he just went to spray it to hit the – the printer - … and Adrian has moved in … ducked down and put his head into the stream”: T155.

68      Mr Svirac is the Authority’s Transit Manager of Security, which position he has held for about seven years.  Mr Svirac said that he first became aware of the incident between Mr Pantovic and STO Mitchell on 6 July 2010.  Mr Svirac spoke to Mr Pantovic outside his office.  He was aware that an occupational health and safety issue had been raised concerning some inert spray having been deployed into STO Mitchell’s eye.  Mr Svirac said he asked Mr Pantovic what happened.

69      According to Mr Svirac, Mr Pantovic informed him that yes he had sprayed STO Mitchell in the eye and said it was a bad joke that had gone wrong.  Mr Pantovic told Mr Svirac that he was stupid in doing this and had apologised to STO Mitchell on many occasions.  Mr Svirac testified that he told Mr Pantovic that it was a stupid thing to do particularly in the position of a supervisor and given that there was an occupational health and safety investigation underway the issue could go further.  According to Mr Svirac Mr Pantovic reiterated that the incident was a joke that had gone wrong.

70      Mr Collopy is an investigator with the Corporate Investigations Section of the Authority and presently is the Acting Manager Professional Standards in the Security Services Branch of Train Operations.  He testified that on about 12 July 2010 in the early afternoon he was with Mr Svirac in Mr Svirac’s office.  He was discussing with Mr Svirac some unrelated matters. 

71      At this point, Mr Collopy said that Mr Pantovic came into Mr Svirac’s office and there was some general discussion as to how he was coping with the relevant events.  Without prompting, Mr Collopy said that Mr Pantovic started talking about the incident with STO Mitchell, and he and Mr Svirac suggested that that may not be appropriate in view of a pending investigation.  Despite this, Mr Pantovic outlined the events leading up to the discharge of the training spray and said that STO Mitchell leaned forward and as the canister discharged the spray struck him in the face.  Mr Pantovic told Mr Collopy and Mr Svirac that he “reacted by leaning forward and saying “Adrian, are you OK?  It was just jokes.  Just jokes,” or words to that effect”: T183.  Shortly after this Mr Collopy left Mr Svirac’s office.

72      Additionally, Mr Furmedge, the Authority’s Manager of Security Services, testified that later on 5 October 2010, Mr Pantovic came to see him in his office.  Mr Pantovic told Mr Furmedge that he appreciated the support that he had shown Mr Pantovic in the incident thus far.  According to Mr Furmedge, Mr Pantovic told him that his actions were a stupid prank and it was a practical joke.

The Complaint

73      STO Mitchell lodged a formal complaint against Mr Pantovic on 5 July 2010.  It alleged “Assault and Bullying Behaviour” and it was addressed to Mr Svirac.  The complaint referred to Mr Pantovic’s aggressive conduct towards STO Mitchell in his telephone call inquiring about tipping off STO Lawson earlier in the shift and referred to the spraying incident.  The final paragraph of the complaint read:

“I believe TS Pantovic’s behaviour was unacceptable as he assaulted me by spraying me without warning or provocation, then laughed at my discomfort, made comments indicating he wanted me to believe I had been exposed to operational strength OC, then stood over me and would not comply with my requests to leave me alone to do my job when he was not speaking to me regarding any work matter or disciplinary matter and then repeated this action while blocking my only exit from the office.  I wish this matter to be taken further.”

The Investigation

74      Mr Svirac notified Mr Pantovic on 12 July 2010 that STO Mitchell’s complaint had been referred to the Authority’s investigation section for formal investigation. In an email of 21 July 2010, Mr Trivanovic, the Authority’s Manager Investigations, formally notified Mr Pantovic of the commencement of an investigation regarding allegations of breaches of discipline.

75      The email from Mr Trivanovic to Mr Pantovic indicated that the investigation was anticipated to be completed within three months, however, if that time frame was to be extended, Mr Pantovic would be notified.  Mr Pantovic was advised of the confidential nature of the investigation and was requested to provide a written report in response which Mr Pantovic did.

76      As Mr Pantovic’s response to the allegations is important, and sets the scene for the ensuing investigation, whilst it is quite lengthy, I set out most of it as follows:

“Later on that night a made a telephone call to STO Mitchell, and asked him if he had said anything to STO Lawson in regards to a conversation that I was going to have with STO Lawson due to the fact that STO Lawson had become aggressive and argumentative as soon as I asked to speak with him.  This was something that I found surprising given I had yet to mention anything about the incident thus suggesting he was expecting the conversation.

I spoke with STO Mitchell in my normal manner due the fact that it was irrelevant as to whether STO Lawson knew about the matter or not as the outcome would be the same.

I do appreciate that on occasion a person may misinterpret my intention during a conversation, particularly if they do not note my visual expression or body language, which is due to my vocal tone and strong accent.

Sometime later I returned to Midland station, whereby I replaced my canister of O.C with a green training canister.  This is normal practice for both myself and many other Officers, due to advice from “Cert” Training Providers that it will assist in maintaining the shape of the pouch.  This canister is issued to staff by “Cert”.  When working at Midland station I always perform this function at about the same time as I secure the line vehicle as it saves me from having to open the safe on more than one occasion.

Sometime after this I entered the Midland Station front office whereby I observed TO Standish to be completing a hearing brief while STO Mitchell was sat next to him.

I sat down on the desk and we had a discussion in regards to the Acting Supervisor opportunities for STO Mitchell.  During this conversation STO Mitchell pointed out the fact that none of his efforts get recognised by other Supervisors and that he is glad that someone finally did.

I advised him that he would be recognised allot[sic] more from now on as I would frequently be performing relief duties at Midland over the coming months.  I said that I was fair and every time he deserves to be commended he would be and that it will increase his opportunity for future promotion as a Supervisor.  I also said that STO Lawson should “take a leaf” out of his book and be a better Senior Officer.

Sometime after this I stood up and was leaning against the office wall whilst TO Standish was leaning down and doing something to the office heater.  He was situated between STO Mitchell and I.

At this moment I was adjusting the can in my pouch as it wasn’t sitting right and as I pushed down the canister I accidentally pushed the button rather than the flap.

STO Mitchell was standing near the office desk at the time, which is approximately two metres away from where I was.  As I have pressed the button, a stream of water came out of the canister.  At this exact time STO Mitchell moved to the right from where he was standing and leaned down to take a piece of paper off the desk.

As a result of the accidental discharge and STO Mitchell moving from one position to another the stream made contact with STO Mitchell’s face.  At this time I jovially said “Fuck, sorry man – I didn’t mean to hit you in the face” or something similar.  I also put my hand on his arm to comfort him and assure him of my intentions.  I also asked him if he was “ok” and apologised to him at this time.  I further told him that it was a training spray and not O.C (I have never used the word “inert” as this is not a word that I ever use).

I continuously kept saying that I was sorry and that it was an accident.  I was really worried about STO Mitchell as he said that it hit him directly in the eye and he called me a “cunt”.  He asked me to step away from him which I did, I also said to him not to call me a “cunt” and that I have always had a respect for him and never called him names.  At this time I was leaning on the desk near the door.

I apologised to him several more times and said that if I could take it back I would, that I didn’t mean to hurt him and that it was an accident.

STO Mitchell was still visibly upset even though he said to me that it was ok, to stop apologising to him and to drop the subject.

I said that I was going back to make a coffee for myself and asked if anyone else wanted one.  At this stage STO Mitchell walked out of the office towards the Crib room, I also walked behind him.

I observed him then wash his face over the sink as I was standing back waiting for him to finish.  During this time I continued saying I was sorry and asked him if he wanted a coffee as well.  He said he needed to finish off the paperwork and to stop apologising and drop the subject.

I then made a coffee for myself and STO Mitchell and walked back to the station office just with my coffee as I did not know if STO Mitchell was in the bathroom or back in the office.  When I returned to the office STO Mitchell was there and I told him that I had made him a coffee and that it was in the Crib room.

He said he would get it a bit later which he later did.

When returned to the office I asked him to have a private conversation with me.

Initially he refused as he was under impression that I wanted to talk about the spraying incident, once I assured him that it was not in regards to that he stepped out and had a conversation with me.

I had explained to him what had happened earlier with STO Lawson and described his reaction and that’s the reason I called him to ask him if he had spoken to STO Lawson prior to my arrival to Bayswater Station.

I have then returned to the Transit Supervisor office where I have completed my shift.

This incident had nothing to do with the above mentioned conversation relating to STO Lawson, and it was not an act of retaliation or punishment of any kind, it was an accident. I am sorry about it and have apologised to STO Mitchell numerous times for it.

I did not have any intention of deploying the training canister, nor of scaring/harming him in any kind of way as I had always got along with STO Mitchell both professionally and socially.  We used to go for motorbike rides together and we never had a problem since we met each other.

I appreciate that this unfortunate event has upset STO Mitchell, but it was an accident.  There was neither intention nor malice and I refute any and all suggestion that I intentionally assaulted him.

I have never been spoken to nor disciplined during my career as a Transit Officer, and to my knowledge I do not have a running sheet.”

77      The investigation of the Authority into the complaint of STO Mitchell was conducted in accordance with the Authority’s disciplinary policy for salaried officers.  The process was comprehensive involving consideration of the relevant documents, including Mr Pantovic’s written response to the complaint, written reports of other staff involved in one way or another, and the interviewing of all relevant persons, including the complainant STO Mitchell and Mr Pantovic.  All interviews were recorded and a written record of the interviews produced.  The investigation also involved a site inspection at the Midland Station and the taking of photos.

78      In accordance with the investigation process, under the disciplinary policy, Mr Pantovic was provided with a copy of the records of interview and all other relevant material, including a copy of the Investigation Report.

79      The process of the investigation was dealt with in the testimony of Mr Foster, an investigator with the Authority for about three years.  Prior to his current position, Mr Foster was a police officer in Great Britain for some 22 years.  Mr Foster was assisting Mr Trivanovic in the investigation.

80      For the purposes of these proceedings, Mr Foster attended the Midland Station and took a series of photos of the transit office and prepared a diagram, drawn to scale, of the inside of the office.  This evidence has been of assistance in putting in context, the other evidence led in the appeal.

81      While Mr Foster was cross-examined on various parts of the disciplinary policy, in particular the obligation to disclose to Mr Pantovic a preliminary investigation into the complaint by STO Mitchell under cl 5.4.2 of the policy, I am not persuaded this is of great moment. It may be the case, on the evidence of Mr Svirac and Mr Foster, that Mr Pantovic was not informed of the outcome of the preliminary assessment of the complaint prior to the formal investigation.  However, on 12 July Mr Svirac did inform Mr Pantovic the matter was being formally dealt with by the Authority’s corporate investigations unit.

82      The Investigation Report was concluded on 8 November 2010 and in accordance with the disciplinary policy, was passed on to the Authority’s senior management for consideration.  The Investigation Report concluded that based on a review of the evidence, on balance, Mr Pantovic had intentionally sprayed STO Mitchell with training spray on 4 July 2010; that in attempting to portray the incident as an accident to the investigators Mr Pantovic had mislead them in the investigation process; and that Mr Pantovic had not displayed the level of integrity and honesty required of an officer of the Authority.

The Decision

83      Relevant parts of the letter from the Authority’s Managing Director to Mr Pantovic conveying the outcome of the investigation and the Authority’s decision to dismiss Mr Pantovic are set out above.

84      In composing his letter of response to the Managing Director of the Authority as to why he should not be dismissed, Mr Pantovic testified he spoke with Mr Svirac and sought his assistance in preparing the letter.  Mr Svirac testified Mr Pantovic came to his home and gave him a draft letter he had prepared.  Mr Svirac said he told Mr Pantovic it was important to tell the truth and to “cough up” and to show some remorse.  According to Mr Svirac, he advised Mr Pantovic to remove reference to the spraying being an accident and to include reference to not aiming at STO Mitchell.

85      Mr Svirac produced a letter with his suggested changes. He gave this to Mr Pantovic.  However, Mr Pantovic’s letter to Mr Burgess did not incorporate Mr Svirac’s suggestions in these two respects.  It still maintained the spraying was accidental, despite the conclusions in the Investigation Report.  The letter also claimed that Mr Pantovic reported the incident “straightaway” to his Manager, which Mr Pantovic admitted in cross-examination, was false.

86      Additionally, Mr Pantovic conceded, after some cross-examination on the content of his letter to Mr Burgess, that it was not an entirely honest account of the incident.

87      Evidence was given by Mr Svirac, and also by Mr Furmedge, that given the misleading conduct engaged in by Mr Pantovic, they could no longer maintain the necessary trust and confidence in Mr Pantovic as a law enforcement officer.

Consideration

88      An appeal to the Appeal Board in a matter such as this is in the nature of a hearing de novo: Fels v Department of Agriculture and Food (2010) 90 WAIG 1485; Thavarasan v The Water Corporation (2005) 86 WAIG 1434; Raxworthy v Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266.  That is, the Appeal Board has greater scope to substitute its view on the merits of the case, based on the evidence led in the proceedings.  This is not to say however, as Mr Matthews correctly observed, that the decision of the Authority is to be ignored: Milentis v Minister for Education (1987) 67 WAIG 1124.

89      This means in cases of allegations of misconduct, there is a requirement on the party asserting it as a basis for dismissal, to persuade the Appeal Board that on balance, the misconduct occurred. As was said by the Appeal Board in Thavarasan at par 20:

“In our view, with due respect, we consider the approach in Raxworthy to be the correct approach in relation to an appeal to the Appeal Board.  That is, as distinct from an unfair dismissal claim before the Commission, the nature of an appeal to the Appeal Board is an appeal, in the nature of a hearing de novo, based upon the evidence before it.  The Appeal Board has far greater scope to substitute its view for that of the employer, in light of the evidence adduced in the proceedings. What this means in the context of the present case, concerning allegations of misconduct, is that the misconduct allegations must be established as a matter of fact, as the basis for the employer's decision to dismiss.  It is not sufficient in our view, for the Appeal Board to only be satisfied that the employer had an honest and genuine belief, based upon reasonable grounds that the misconduct occurred.  More than a sense of unease by the employer is required.  Whilst this does not alter the overall onus on an appellant to persuade the Appeal Board that it should interfere with and “adjust” the employer's decision in a particular case, there must be sufficient evidence before the Appeal Board to establish the misconduct complained of.”

90      For the following reasons, we are persuaded on balance that Mr Pantovic did commit acts of misconduct which justified the Authority’s loss of confidence in his standards of behaviour, honesty and integrity. Mr Pantovic has not established on balance, that the Appeal Board should, on this occasion, interfere with the Authority’s decision to terminate his employment.

91      Whilst Ms Butler for Mr Pantovic attempted in submissions to portray the incident involving Mr Pantovic and STO Mitchell as primarily an occupational safety and health issue, we are not persuaded that this was so.  As Mr Matthews for the Authority put it in his submissions, even if the Appeal Board were to accept the version of events of the incident as outlined by Mr Pantovic in his testimony, Mr Pantovic’s conduct in the investigation process, in attempting to mislead and obfuscate, was of itself, sufficient to have warranted the Authority losing confidence in the integrity of Mr Pantovic as a law enforcement officer.

92      In such a position, Mr Pantovic was obliged to demonstrate the highest standards of conduct.  He was charged with and given authority that could be exercised over members of the community as the travelling public.  Given that Mr Pantovic admitted in his evidence that in terms of his response to Mr Burgess, he was “willing to put anything” to save his job: T81, and that his account of the events to Mr Burgess in his letter of response was not entirely honest, the Authority could no longer have confidence in Mr Pantovic’s integrity to discharge his important responsibilities.

93      There was considerable conflict on the evidence between that adduced by Mr Pantovic and the Authority. Having considered the oral and documentary evidence carefully, where Mr Pantovic’s testimony conflicted with that of the Authority’s witnesses, we prefer that of the Authority. we have come to this conclusion for a number of reasons.

94      At the outset, Mr Pantovic’s admission in evidence that he was prepared to say or do anything to save his job, causes me to approach Mr Pantovic’s testimony generally, with considerable caution.  Furthermore, Mr Pantovic was, at various times in the course of his evidence, most reluctant to make any admissions, even on matters relatively innocuous.  For example, Mr Pantovic took some time in cross-examination, and ultimately only after some intervention from the Appeal Board, to concede the likelihood that the last train to Midland in the early hours of a Sunday morning, was more than likely to have on board young passengers returning from a night out in the city and who may be affected by alcohol or other substances, with the heightened possibility of anti-social behaviour.

95      This evidence was given in the context of Mr Pantovic’s stated practice of returning his OC spray to the storage safe, well prior to the end of his shift.  This is so despite the possible need for it if an incident arose.   Also, on the evidence of Mr Furmedge, this appeared to be contrary to directives from the Authority issued from time to time that transit officers remain “kitted up” until the conclusion of their shift.

96      Additionally, Mr Pantovic’s attempt to portray his actions in finding out who “tipped off” STO Lawson of his visit to the Bayswater Station, as not of great moment, was inconsistent with his actions on the night in question.  In his cross-examination, Mr Pantovic said he took an hour to one and a half hours to call STO Mitchell, who denied that he had even spoken to STO Lawson that evening.  Mr Pantovic then said he forgot about the matter and did not speak to Mr Crane about it until some time later: T67-68.  STO Mitchell having denied speaking to STO Lawson and Mr Pantovic saying he believed him, Mr Pantovic then spoke to Mr Crane.

97      When speaking to Mr Crane, who also denied forewarning STO Lawson, Mr Pantovic could not recollect whether he had told Mr Crane “it must have been Muffy”: T71. This is despite Mr Crane’s unequivocal statement to the investigators that Mr Pantovic did say this, as confirmed in Mr Crane’s testimony: T153.  Mr Crane was not to any extent involved in the incident between Mr Pantovic and STO Mitchell, apart from STO Mitchell ringing him after his shift on 4 July to tell Mr Crane of the spraying incident.

98      Additionally, Mr Pantovic, after the spraying incident, took STO Mitchell outside to discuss the incident with STO Lawson that occurred earlier in the shift.

99      All of these actions are inconsistent with the implicit position of Mr Pantovic that finding out who may have spoken to STO Lawson on the night in question was a matter of minor significance, and one that Mr Pantovic would just “forget about”.

100   In relation to this incident, it was also apparent, although Mr Pantovic took some time to retract the point in his testimony, that he was upset and annoyed by someone “tipping off” STO Lawson.  Whilst initially agreeing he was annoyed at this, Mr Pantovic shifted his position in cross-examination to one of being “surprised”:T59. This is in contrast to the testimony from STO Mitchell that when Mr Pantovic telephoned him earlier in the shift on 3 July to ask about contact with STO Lawson, Mr Pantovic was “aggressive and angry” and accused STO Mitchell of lying: T124. 

101   This evidence is also to be evaluated in light of other evidence of Mr Pantovic, where he was most reluctant to concede in cross-examination, but ultimately did, that STO Mitchell was his “main suspect” in the “tipping off” of STO Lawson: T65-66.

102   On balance, having regard to all of this testimony, it is open to infer, and we do infer, that Mr Pantovic was upset and annoyed that STO Lawson was forewarned of Mr Pantovic’s visit to the Bayswater Station; that he wanted to find out who forewarned him; and STO Mitchell was the person most likely to have told STO Lawson about it.

103   Also, given the testimony of STO Mitchell as to the conversation with Mr Pantovic in the foyer of the Midland Station after the spraying incident, when viewed in light of the CCTV footage, it was plain in our view, that STO Mitchell was not at all comfortable whilst Mr Pantovic was speaking to him. The demeanour of STO Mitchell from the CCTV footage made this quite apparent.  The gesture by Mr Pantovic in pointing his right hand towards STO Mitchell’s left midriff region was entirely consistent with STO Mitchell’s testimony on this issue, that Mr Pantovic touched him in this area, to demonstrate where he was aiming the training spray: T125.  Mr Pantovic said he could not recall this part of the conversation: T104.

104   As to whether Mr Pantovic did say to other officers of the Authority shortly after the spraying incident, that it was “just a joke gone wrong”, we have no hesitation in accepting the Authority’s witness accounts of this. The first reference to this appears in STO Mitchell’s notebook.  This note was made very shortly after the incident.  It says “Pantovic would not leave me alone despite repeated requests from me and kept saying it was a joke”.  This reference also appears in the formal complaint made by STO Mitchell.  The same is reflected in STO Mitchell’s record of interview.

105   The evidence of STO Mitchell on this issue was consistent and was corroborated by other witnesses. Mr Standish referred to it in his statement given to the investigators. This was also referred to in Mr Standish’s record of interview where he also recounted not just what Mr Pantovic said to him in this regard, but also his impression of the incident as the only other person present at the time.

106   As already noted, Mr Svirac spoke to Mr Pantovic on 6 and 12 July. Both conversations are recorded in Mr Svirac’s report to the investigators.  In them, Mr Svirac refers to Mr Pantovic mentioning to him the spraying of STO Mitchell as a “joke and a prank that had gone wrong.”  In none of these exchanges, very close in time to the incident itself, is there any reference by Mr Pantovic to the accidental discharge of his training spray.

107   This issue was also touched on in Mr Collopy’s testimony when recording Mr Pantovic’s comments in Mr Svirac’s office on about 12 July. Mr Collopy reported that Mr Pantovic said words to the effect “just jokes” to STO Mitchell immediately after the spraying.  This was mentioned in Mr Collopy’s report to the investigators.

108   Accordingly, the weight of the evidence on this issue is against Mr Pantovic’s denials that he made such comments to these officers of the Authority.  Moreover, to accept Mr Pantovic’s version of events on this issue rather than the Authority’s generally consistent evidence, would be to infer some sort of conspiratorial conduct on the part of all of the Authority’s witnesses. This includes Mr Pantovic’s manager who attempted, genuinely, to assist him.  Such a proposition simply lacks credibility.

109   It was a central theme of Mr Pantovic’s case that the notion of the spraying incident being portrayed as a joke, only came about on the suggestion of Mr Pantovic’s manager Mr Svirac.  It was Mr Pantovic’s testimony that shortly after the incident, in a conversation with Mr Svirac on about 6 July, Mr Svirac suggested to Mr Pantovic that the reference to the spraying as a joke be introduced.  Mr Pantovic was insistent in cross-examination that it was Mr Svirac and not himself who mentioned the notion of a joke.  Mr Pantovic testified, when asked in cross-examination why Mr Svirac may have suggested this that “I can only assume, because that’s the complaint that he got in the first place”: T90.  This is a clear reference to the complaint by STO Mitchell.  Mr Pantovic was aware at this time that no formal investigation had been commenced.

110   However, as pointed out by Mr Matthews in his submissions, at the time of this conversation on 6 July, Mr Svirac was not aware of STO Mitchell’s formal complaint.  This did not come to Mr Svirac’s attention until about 9 July: T171.  At the time of this conversation with Mr Pantovic on 6 July, Mr Svirac was only aware that STO Mitchell had lodged an occupational safety and health form concerning the incident. The fact of Mr Svirac not knowing of the formal complaint until later was confirmed in STO Mitchell’s testimony that Mr Svirac telephoned him on 9 or 10 July and chastised him for not submitting a formal complaint earlier: T144.  This was in fact mistaken, as STO Mitchell had lodged the complaint with another supervisor, who had not passed it on to Mr Svirac straight away.

111   Therefore in our view, given that at the time of his conversation with Mr Pantovic on 6 July, Mr Svirac had no idea that any reference to the incident being a joke had even been raised, it is far more likely on the totality of the evidence, consistent with the evidence of other witnesses, that it was Mr Pantovic himself who referred to this when speaking with Mr Svirac.

112   It was thus in our view, disingenuous for Mr Pantovic to attempt to shift some of the blame onto his manager Mr Svirac in this way.  Mr Pantovic did this in an attempt to explain some of the content of his letter in response to Mr Burgess, following assistance from Mr Svirac in preparing the draft. Mr Svirac was genuinely endeavouring to assist Mr Pantovic by urging him to confess the truth, because Mr Pantovic had told Mr Svirac, and by this time others also, that the whole incident was a joke. To seek to implicate Mr Svirac in this way, was duplicitous, and reflects poorly on Mr Pantovic.  It only reaffirms in our opinion, the correctness of the assessment by the Authority of Mr Pantovic’s integrity and character and his suitability to hold a law enforcement role at the Authority.

113   Having regard to all of the oral and documentary evidence, the conclusion is open, and we conclude, that the deployment of the training spray was not accidental as portrayed by Mr Pantovic.  This is all the more so when one has regard to Mr Pantovic’s unsatisfactory attempts to assert the incident was accidental, despite the numerous references to it being otherwise.  It borders on inconceivable that Mr Pantovic would move from what would ordinarily be regarded as a very sound explanation, and one constituting a good defence, that being an accident, to an intentional act, albeit as a joke or prank.  As counsel for the Authority aptly put it to Mr Pantovic, it seemed on Mr Pantovic’s version of the events, if accepted, that Mr Pantovic had “told lies to get himself into trouble.”  This is particularly so in light of evidence before the Appeal Board of some accidental deployment of OC spray by other officers referred to in the testimony of STO Ford.

114   There were submissions made by Ms Butler that the failure by Mr Sviric to notify Mr Pantovic of the outcome of the preliminary investigation was detrimental to Mr Pantovic.  On any view of the evidence, there was nothing to indicate that such non-compliance had any material effect on Mr Pantovic.  Even if we were to accept that there was a breach of the policy in this respect, from a consideration of the policy as a whole, it could only be regarded as a technical breach as the step of informing a person of the outcome of a preliminary investigation would seem to be a formality, and merely a step on the way to the formal investigation process commencing. 

115   There was certainly nothing put by Mr Pantovic to the effect that the result of the investigation could have been materially different if this preliminary step had been complied with.  An assessment of whether a person has been denied natural justice is a practical question in light of all of the circumstances of the case, and a minor failure would not necessarily mean a person would be entitled to a remedy: Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346.

116   Taking into account the lengthy process that followed the notification to Mr Pantovic that an investigation was being commenced, it could not be reasonably concluded in our view, that Mr Pantovic was not afforded natural justice in this case.  In any event, given that an appeal to the Appeal Board is by way of a de novo hearing, then any defect in procedure by the Authority can be cured as a part of the conduct of the appeal: See generally Aronson, Dyer and Groves Judicial Review of Administrative Action Fourth Ed 2009 at pars 7.290-7.305.

117   Submissions were also made by Ms Butler that the breaches of the Manual relating to excessive use of force by Mr Pantovic did not apply to him as he was not covered by the Railway Employees Enterprise Agreement, expressly referred to in the Manual.  Even if this is correct, the general provisions of the Code of Conduct, in particular those relating to misconduct, apply to all staff of the Authority.  The Code expressly prohibits misconduct.  The conduct engaged in by Mr Pantovic was, in our view, misconduct, both as defined in the Code of Conduct and at common law.

118   As to the question of motive, it is not necessary, given our conclusions on the evidence as to the incident itself and Mr Pantovic’s conduct during the investigation and in his responses to Mr Burgess, to consider this issue further, despite the submissions of Mr Matthews on the point.

Conclusion

119   For all of the foregoing reasons the appeal is dismissed.