APPEAL AGAINST DISCIPLINARY PROCESS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00700

DELIVERED : THURSday, 26 July 2012

FILE NO. : PSAB 8 OF 2012

Appellant

AND

The Director-General, Department of Racing, Gaming & Liquor

Respondent

CatchWords : Application to summarily dismiss appeal in relation to an interpretation of s 80 of the Public Sector Management Act 1994 (WA) - whether breaches of discipline occurred outside of the workplace - whether Public Service Appeal Board should intervene in investigation - relevant principles considered - appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 27, s 27(1)(a), s 27(1)(a)(i), s 27(1)(a)(ii), s 27(1)(a)(iii), s 27(1)(a)(iv), s 80I(1)(a), s 80L(1), Part III

Public Sector Management Act 1994 (WA) Part 5, s 80

Result : Appeal dismissed

Representation:

Appellant : Mr S J Farrell, as agent

Respondent : Mr D J Matthews (of counsel)

Solicitors:

Respondent : State Solicitor's Office

Case(s) referred to in reasons:

Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845

McManus v Scott-Charlton (1996) 70 FCR 16

The Civil Service Association of Western Australia Incorporated v Director-General, Department for Child Protection [2010] WAIRC 00206; (2010) 90 WAIG 214

United Voice WA v Minister for Health (Fiona Stanley Hospital [No 2]) [2012] WAIRC 319; (2012) 92 WAIG 585

Reasons for Decision

The Substantive Appeal – Background

1          This is an interlocutory application brought by the respondent to strike out an appeal brought by the appellant under s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (the Act). 

2          The parties' submissions in respect of the respondent's application to strike out the appeal were made in writing.  The respondent filed his submissions on 22 June 2012 and the appellant filed his submissions in response on 2 July 2012.

3          In the substantive appeal, the appellant appeals against a decision of the respondent to institute disciplinary proceedings against him under s 80I(1)(a) of the Act.  The substantive appeal is in relation to an interpretation of s 80 of the Public Sector Management Act 1994 (WA) (the PSM Act) concerning the conditions of his service as a public service officer.  In particular, the appellant seeks to put an argument that the respondent has no capacity to institute disciplinary proceedings against him under s 80 of the PSM Act, as the conduct which is alleged to constitute breaches of discipline (if it did occur), occurred outside of the workplace and has no relevant connection with the workplace.

4          The letter to the appellant from the respondent's representative which sets out the alleged suspected breaches of discipline is dated 28 March 2012 and states as follows:

It has come to my attention that you may have behaved in a manner that is inconsistent with the Department's Code of Conduct and in so doing committed breaches of discipline under section 80 of the Public Sector Management Act 1994 (the Act).

These matters have been raised with me and should they be substantiated, they would fall below the standard of conduct I expect of employees of the Department.  I intend to provide you with every opportunity to put your side of the story to me and will carefully consider this along with all relevant facts and details.  The following outlines the matters that have been raised with me:

It has been alleged that:

1. On or around 19 January 2012, you touched [Ms P], an employee of the Department, on the buttocks and commented that her body was "nice and firm to touch".  This was considered to be unwelcome, unsolicited and inappropriate and therefore potentially an act of misconduct.

2. On or around 21 January 2012, you emailed photograph of your genitals to [Ms P].  This was considered to be unwelcome, unsolicited and inappropriate and therefore potentially an act of misconduct.

3. On 21 January 2012 by way of instant messaging, you described the size of your genitals to [Ms P].  This was considered to be unwelcome, unsolicited and inappropriate and therefore potentially an act of misconduct.

4. On or around 23 January 2012 via Skype, you exposed your genitals to [Ms P].  This was considered to be unwelcome, unsolicited and inappropriate and therefore potentially an act of misconduct.

5. On 25 January 2012 by way of instant messaging, you offered to perform sexual acts, including oral sex and digital penetration, on [Ms P] under the desk while she worked.  This was considered to be unwelcome, unsolicited and inappropriate and therefore potentially an act of misconduct.

6. On 27 January 2012 by way of instant messaging, you offered to perform sexual acts, including oral sex and digital penetration, on [Ms P] in a storage room at the Department of Racing, Gaming and Liquor.  This was considered to be unwelcome, unsolicited and inappropriate and therefore potentially an act of misconduct.

7. On 27 January 2012 by way of instant messaging, you requested that [Ms P] not wear underwear to work.  This was considered to be unwelcome, unsolicited and inappropriate and therefore potentially an act of misconduct.

8. On 29 January 2012 by way of instant messaging you requested that [Ms P] meet with you in the Hearing Room at the Department of Racing, Gaming and Liquor for sexual contact.  This was considered to be unwelcome, unsolicited and inappropriate and therefore potentially an act of misconduct.

In accordance with the provisions of the Act and the Commissioner's Instruction Discipline – General (the CI), I am providing you the opportunity to respond to these allegations.  In the interests of procedural fairness I intend to have this matter adequately investigated and will take into account any response you provide to me.  Should you be required to attend any meetings or interviews in relation to this matter you may request the presence of a support person or representative.

Should the allegations be substantiated, action available to me under the provisions of the Act and the CI range from counselling to dismissal.  Should any action be necessary, I will provide you the opportunity to make a presentation to me in relation to that proposed action.

I understand that receiving this notification and the investigative process may be somewhat distressing.  I remind you that the Department has support available through our EAP providers.  Should you wish to avail yourself to this support please contact PPC on 1300 361 008.

(attachment A)

5          The remedy sought by the appellant in the substantive appeal is for the Public Service Appeal Board to adjust the respondent's decision to instigate the disciplinary process by withdrawing the letter dated 28 March 2012 and ceasing the investigation.

Respondent Submissions – Application to strike out appeal

6          The respondent points out the appellant seeks to prevent the respondent from completing the disciplinary proceedings under the PSM Act and says the appeal should be summarily dismissed as each of the allegations allege conduct by one employee towards another employee that was 'unwelcome, unsolicited and inappropriate', and such conduct is clearly a matter which an employer is entitled to investigate under the PSM Act.

7          The respondent argues that if on its face, an allegation may relate to an actual breach of discipline, disciplinary proceedings under the PSM Act should be allowed to run their course and the Commission should not hold any sort of hearing into the matter until those proceedings have been completed.

8          The respondent says it is well settled that the Commission should only intervene to prevent an employing authority from completing disciplinary proceeding under the PSM Act if those proceedings are baseless.  If an employing authority suspects there may have been actionable breach of discipline, and there are reasonable grounds for that suspicion, the employer ought to be allowed to carry out its statutory duty to conduct an investigation to see if there was in truth an actionable breach of discipline:  Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845 [20].

9          The respondent also says that:

(a) Even if the conduct took place outside of the workplace and outside of work hours, neither of those factors will necessarily determine the question of whether misconduct has occurred.  The presence of these factors is not determinative of anything and is something that needs to be examined as part of an investigation under the PSM Act.  There are many examples of conduct occurring outside the workplace and outside of working hours that have a connection to employment that are sufficiently relevant so as to amount to misconduct within an employment relationship:  McManus v Scott-Charlton (1996) 70 FCR 16.

(b) Even if the conduct in question was not unwelcome and unsolicited, (which is not the case on the face of the allegations) this would not necessarily be determinative.  Conduct may be sufficiently inappropriate to result in disciplinary action in all of the circumstances, even if engaged in mutually or reciprocally, and by consent.  Again these are matters that need to be examined as part of an investigation.

10       For these reasons, the respondent says the Public Service Appeal Board should allow the disciplinary proceedings to run their course and not interfere at this stage by the holding of a hearing and the appeal should be dismissed.

Appellant Submissions

11       The appellant says that if the alleged conduct did occur, it occurred outside of the workplace and has no relevant connection with the workplace, as off-duty misconduct which is so unrelated to public sector employment has to be incapable of amounting to a breach of discipline:  Civil Service Association of Western Australia Inc v Director General of Department for Community Development [33] (Anderson J).

12       The appellant then goes on to say in his written submissions, that in any event, the decision in Civil Service Association of Western Australia Inc v Director General of Department for Community Development is not relevant to this appeal as that matter can be distinguished from the matters raised in this appeal.  In Civil Service Association of Western Australia Inc v Director General of Department for Community Development the jurisdiction considered was the exclusive jurisdiction of the Public Service Arbitrator under s 80E(1) of the Act to enquire into and deal with any industrial matter relating to a government officer.  This appeal is against the respondent's interpretation of s 80 of the PSM Act and is not an application to the Public Service Arbitrator to enquire into and deal with any industrial matter relating to a government officer.  In particular, this appeal is relation an interpretation of s 80 of the PSM Act which concerns the appellant's conditions of service.  The term 'conditions of service' in s 80I(1)(a) of the Act is to be read broadly and is a term wide enough to encompass all statutory and contractual terms of appointment including the provisions of Part 5 of the PSM Act:  The Civil Service Association of Western Australia Incorporated v Director-General, Department for Child Protection [2010] WAIRC 00206; (2010) 90 WAIG 214.

13       For these reasons the appellant says that the respondent's application to summarily dismiss the appeal, should be dismissed.

Conclusion

14       The respondent in his submissions referred to recent observations made by me about the test to be applied when summarily dismissing a matter.  My observations were made in United Voice WA v Minister for Health (Fiona Stanley Hospital [No 2]) [2012] WAIRC 319; (2012) 92 WAIG 585 in which I said [65]:

Exceptional caution is required by courts and tribunals when exercising the power to summarily dismiss.  A claim should not be dismissed other than when it is clear there is no real question of fact or law to be tried:  General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87.  President Steytler in Talbot & Oliver (a firm) v Witcombe [2006] WASCA 87 summarised the applicable principles as follows:

[21] … An action should only be dismissed as frivolous or vexatious if it cannot possibly succeed.  Moreover, in deciding whether an action could possibly succeed, a court of first instance should be astute not to risk stifling the development of law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373.

[22] Similar principles apply in the case of an application to strike out a statement of claim as not disclosing a reasonable cause of action: Kimberley Downs Pty Ltd v State of Western Australia unreported; SCt of WA; Library No 6414; 25 August 1986 at 6–7.  In Dalgety Australia Ltd v Rubin unreported; FCt SCt of WA; Library No 5485; 24 August 1984, it was held that it is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out.  It has also been held in this jurisdiction that, in a case in which an application for summary judgment is combined with an application to the Court's inherent jurisdiction and with an application under O 20 r 19(1)(a) to strike out a pleading upon the basis that it discloses no reasonable cause of action, the Court is not confined by the manner in which the plaintiff has formulated his or her case on the pleadings and may consider not only the undisputed facts but also facts which are in dispute:  Bride v Peat Marwick Mitchell [1989] WAR 383 at 394; and see, generally, Seaman Civil Procedure Western Australia (Vol 1) at [16.0.1] and [20.19.6].

15       In Fiona Stanley Hospital [No 2] the Full Bench dismissed an appeal against a decision of an industrial magistrate dismissing claims alleging breaches of an industrial agreement.  Whilst it is well established that exceptional caution is required to be exercised by all courts and tribunals when considering whether to summarily dismiss a claim, the Public Service Appeal Board has a broader power to dismiss a matter than an industrial magistrate and is not confined to circumstances where it is clear there is no real question of act or law to be tried.  Pursuant to s 80L(1) of the Act, the Public Service Appeal Board is empowered under s 27(1)(a) of the Act to:

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part thereof is trivial;

(ii) that further proceedings are not necessary or desirable in the public interest;

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

16       The power of the Public Service Appeal Board to dismiss an appeal is subject to the precondition in the opening words of s 27(1)(a) of '[e]xcept as otherwise provided in this Act'.  When regard is had to the powers and functions conferred on a Public Service Appeal Board under the Act, it is clear that there is no other provision in the Act that otherwise prescribes an exception to the field covered by s 27(1)(a)(i), s 27(1)(a)(ii) or s 27(1)(a)(iv) of the Act.  However, it could be said that s 27(1)(a)(iii) is rendered inoperative by s 80I(1)(a) in that an appeal can only be instituted by a public service officer, so that the issue whether an appellant has a sufficient interest in a matter cannot arise in an appeal to the Public Service Appeal Board.  However, this provision is not material to the issues raised in this appeal.

17       Section 27 of the Act has no application to the jurisdiction of an industrial magistrate.  The jurisdiction of industrial magistrates courts is set out in Part III of the Act.  In the exercise of its 'general jurisdiction' which includes the jurisdiction to hear and determine a claim for a breach of an industrial agreement, the powers, practice and procedure to be observed by the industrial magistrates court are those provided for by the Magistrates Court (Civil Proceedings) Act 2004.  Consequently the power of an industrial magistrate to summarily dismiss a claim is restricted to the principles discussed in Fiona Stanley Hospital [No 2] in [14] of these reasons.

18       When considering whether the Public Service Appeal Board should exercise its discretion to dismiss the appeal in this matter regard should first be had to the nature of the 'decision' that is sought to be interpreted.  In this matter, the subject matter of this appeal does not concern a final determination of a breach of discipline made by an employing authority.  All that has occurred is the institution of an investigation to determine whether the appellant has committed breaches of discipline.  This is a first step in a sequence of steps that may culminate in a decision that is determinative of the appellant's interests and results in adverse consequences to the appellant.

19       I do not agree with the submission made on behalf of the appellant that the observations made by Anderson J in Civil Service Association of Western Australia Inc v Director General of Department for Community Development at [19] and [20] can be distinguished.  One of the central issues raised in that appeal was whether it was appropriate for a constituent body of the Commission, in that case the Public Service Arbitrator, to intervene in an investigation by an employer into breaches of discipline where the issue in dispute was whether the conduct in question occurred in the workplace or in the course of an employee discharging authorised duties.  This issue is squarely raised in this appeal.  Justice Anderson with whom Parker and Hasluck JJ agreed, analysed the proper approach to be taken by the Commission where it is argued that conduct cannot amount to misconduct as it was a private matter as follows [19] – [20]:

19. In examining this contention, the Arbitrator might have been expected to confine herself to those facts which were alleged by Ms S in support of her complaint.  The Arbitrator might have been expected to simply ask herself the question whether if all of the factual material put forward by Ms S in support of her complaint was true, did that factual material disclose grounds on which the Director could suspect that Mr H had committed a breach of discipline whilst serving as an employee.  I think that would have been the proper and better approach.  Instead the Arbitrator heard evidence from Mr H, and only from him.  Mr H was allowed to give evidence to the Arbitrator to the effect that his 'official duties' ceased when he left the training venue to return to his motel.  He was allowed to give his version of the circumstances under which he, Ms S and the other members of the group came to be socialising.  He gave his version of his behaviour and of the behaviour of Ms S and as to how events unfolded during the course of the evening and early morning; and he was allowed to give evidence contradicting the account given by Ms S of the sexual assault upon her.

20. I do not consider that this was appropriate.  If an employing authority suspects that there may have been an actionable breach of discipline, and there are reasonable grounds for that suspicion, the authority ought to be allowed to carry out its statutory duty to conduct an investigation to see whether there was in truth an actionable breach of discipline.  Prima facie it would not seem to be a proper exercise of jurisdiction by the Public Service Arbitrator to stop the employing authority from doing so on the basis of the Public Service Arbitrator's own investigation of the facts.  No doubt it is perfectly proper for the Public Service Arbitrator to stop baseless disciplinary proceedings.  However, I think the judgment as to whether the proceedings are or are not baseless should be made by reference only to the matters alleged in the complaint.

20       It is plain from these findings that when such an issue is raised before a Public Service Arbitrator or the Public Service Appeal Board they should not intervene to stop an investigation where on the face of the allegations there are reasonable grounds to suspect a breach of discipline may have occurred.

21       It is apparent from the submissions made by the parties that some of the fundamental issues for determination in any investigation of the suspected breaches of discipline are:

(a) whether any of the alleged incidents occurred;

(b) if proven, the surrounding circumstances, including any circumstances of mitigation, such as whether in each case the conduct was mutual and/or consensual;

(c) if proven, whether any of the alleged incidents had any connection to the workplace and, if so, the circumstances of the connection and the extent of the connection, if any.

22      In this matter the issues that need to be investigated cannot be determined by the Public Service Appeal Board in an appeal under s 80I(1)(a) of the Act on the face of the documents that have been filed on behalf of the appellant.  These are all matters that require a proper investigation.  Whether the circumstances of an alleged breach of discipline have a sufficient connection to the duties and functions of a public service officer is a question of fact to be determined through an investigation.  Whether a sufficient connection between the alleged conduct, if made out, can be found, is not a matter that can be determined in a vacuum and without an assessment of the matters set out in [21](a), (b) and (c) of these reasons.  Prima facie, taken at the highest and on their face, the allegations do not appear to be baseless and allegations 5, 6, 7 and 8 could be said to raise a connection with the workplace or the course of duties to be discharged at the workplace, as there is an invitation to engage in conduct of a sexual nature at the workplace.

23       For these reasons I am of the opinion that the Public Service Appeal Board should exercise its discretion pursuant to s 27(1(a)(iv) of the Act and make an order to dismiss the appeal.

MS S SAXENA

24       I have read a draft form of the reasons for decision of the Acting President.  I agree with those reasons and have nothing to add.

MR D SOLOSY

25       I have read a draft of the reasons for decision of the Acting President.  I agree with those reasons and the order to issue, and have nothing to add.