Appeal against DISCIPLINARY ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00949

DELIVERED : FRIDAY, 26 OCTOBER 2012

FILE NO. : PSAB 17 OF 2012

Appellant

AND

Director General, Department of Mines and Petroleum

Respondent

Catchwords : Industrial Law (WA) - Appeal against decision of employer to take disciplinary action - Penalty not yet imposed - Jurisdiction of Appeal Board to hear appeal - Meaning of 'decision' in s 80I Industrial Relations Act 1979 - Principles applied - Appeal dismissed.

Legislation : Public Sector Management Act 1994 ss 78(1)(b)(iv), 80A, 82A, 82A(3)(b), 82A(3)(b)(i); Industrial Relations Act 1979 ss 80, s 80I(1)(d).

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Ms K Hagan

Respondent : Mr D Matthews

Solicitors:

Appellant : Civil Service Association of Western Australia

  Incorporated

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

SGS Australia v Taylor (1993) 73 WAIG 1760

Case(s) also cited:

Grantham v The Director-General, Department of Transport (2012) 92 WAIG 691

Reasons for Decision

1          This is the unanimous decision of the Appeal Board.

2          Mr Ihdayhid is a professional engineer who specialises in petroleum safety.  He has been employed by the Department for some 23 years. In March 2012, various allegations of breaches of discipline were made against Mr Ihdayhid under s 80 of the Public Sector Management Act 1994. The allegations concerned the receipt by Mr Ihdayhid of emails from another employee of the Department, said to be a subordinate, attaching various cartoons which the Department considered to be offensive and defamatory to senior officers of the Department. As a consequence of a disciplinary investigation, Mr Ihdayhid was advised by letter of 31 July 2012 from Mr Sellers, the Department’s Director General, that the findings of a breach of discipline had been upheld.  Mr Sellers also informed Mr Ihdayhid in the letter that the Department had “provisionally decided” to take action by the reduction of Mr Ihdayhid’s classification level from specified calling level 5 to specified calling level 4 and for Mr Ihdayhid to take part in counselling.  Mr Sellers invited Mr Ihdayhid’s response to this proposed course. Given that Mr Ihdayhid has been absent on stress leave for some time, he has yet to respond to the Department’s proposed course of action. This period had been extended, ultimately, to 15 October 2012.

3          Mr Ihdayhid commenced this appeal under s 78(1)(b)(iv) of the PSM Act on 21 August 2012, from the “decision”, said to have been taken by the Department on 31 July. The Department has now challenged the competency of the appeal.  It says that no “decision” has yet been taken by the Department, from which an appeal can be brought.  Mr Ihdayhid disputes this.

4          It is trite to observe that a court or tribunal must be satisfied that it has jurisdiction to deal with a dispute before it.  A court or tribunal may raise and deal with this issue of its own motion, even if the issue is not raised by a party.  There cannot be a waiver of jurisdiction and parties cannot by agreement, confer jurisdiction on the Commission where it does not otherwise exist:  SGS Australia v Taylor (1993) 73 WAIG 1760.

5          It is therefore necessary to deal with this issue as a preliminary point.  The parties have filed written submissions on the issue and it is agreed that the Appeal Board determine the matter based upon those written submissions.

Statutory scheme

6          It is convenient to set out at this juncture the relevant statutory provisions.  The Appeal Board’s jurisdiction under the Act is set out in s 80I of the Industrial Relations Act 1979.  Specifically, s 80I(1)(d) is the relevant provision for present purposes and it provides:

80I. Board’s jurisdiction

(1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

…

(d) an appeal by a government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section;

7          The substandard performance and disciplinary matters provisions of the PSM Act are dealt with in Part 5. The relevant provision in this matter is s 78(1)(b)(iv) which is in the following terms:

78. Appeals etc. against some decisions under s. 79, 82A, 82, 87, 88 or 92

(1) Subject to subsection (3) and to section 52, an employee or former employee who —

 …

(b) is aggrieved by —

 …

(iv) a decision to take disciplinary action made in respect of the Government officer under section 82A(3)(b), 88(b) or 92(1),

 may appeal against that decision or finding to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.

…

8         How disciplinary matters are dealt with is set out in s 82A of the PSM Act.  The meaning of “disciplinary action” is provided in s 80A.  The relevant parts of these sections are as follows:

80A. Terms used

In this Division —

disciplinary action, in relation to a breach of discipline by an employee, means any one or more of the following —

(a) a reprimand;

(b) the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made;

(c) transferring the employee to another public sector body with the consent of the employing authority of that public sector body;

(d) if the employee is not a chief executive officer or chief employee, transferring the employee to another office, post or position in the public sector body in which the employee is employed;

(e) reduction in the monetary remuneration of the employee;

(f) reduction in the level of classification of the employee;

(g) dismissal;

…

82A. Disciplinary matters, dealing with

…

(3) Subject to subsection (4) and section 89, after dealing with a matter as a disciplinary matter under this Division —

(a) if the employing authority finds that the employee has committed a section 94 breach of discipline, the employing authority must take disciplinary action by dismissing the employee; and

(b) if the employing authority finds that the employee has committed a breach of discipline that is not a section 94 breach of discipline, the employing authority must decide —

(i) to take disciplinary action, or both disciplinary action and improvement action, with respect to the employee; or

(ii) to take improvement action with respect to the employee; or

(iii) that no further action is to be taken.

…

9         We note also for completeness, that by s 90 of the PSM Act, an obligation is imposed on the relevant employing authority, to notify the employee of the outcome of a disciplinary matter.

Contentions of the parties

10      The Department submitted that for the purposes of s 78(1)(b)(iv), an appellant must be “aggrieved by a decision to take disciplinary action”.  It was contended that the letter from Mr Sellers of 31 July 2012, referring to “proposed” action, does not constitute the taking of disciplinary action for the purposes of ss 78(1)(b)(iv) and 82A(3)(b) of the PSM Act. The Department submitted that Mr Sellers, by his letter, has invited Mr Ihdayhid to comment on his proposed course of action. In light of Mr Ihdayhid’s response, if any, the Department would then make a decision whether to take disciplinary action, consistent with the proposed course, or an alternative course, or not at all.

11      Accordingly, the Department contended that the appeal has been lodged prematurely. There is no decision to take disciplinary action for the purposes of s 78(1)(b)(iv), and therefore the appeal must be dismissed as incompetent.

12      On the other hand, Mr Ihdayhid contended that a decision has been made under s 82A(3)(b)(i) of the PSM Act. In short, Mr Ihdayhid submitted that the “decision” of the Department to take disciplinary action, is to be contrasted with the Act of imposing a disciplinary penalty.  It was submitted that, given the expression of “to take”, as being referable to a future act, it is clear in this case, that Mr Sellers has decided to take disciplinary action, but before doing so, seeks Mr Ihdayhid’s comment, if any, in relation to the penalty which he might impose. Mr Ihdayhid drew attention to the fact that Mr Sellers, in his letter of 31 July 2012, specifically referred to having decided not to adopt the course of dismissal. This, according to Mr Ihdayhid, supported the construction that he placed on the stage which the disciplinary proceedings have reached.

13      Mr Ihdayhid referred to later correspondence from Mr Sellers of 10 October 2012, which indicates that the disciplinary process has “almost reached the end point and in relation to which Mr Ihdayhid has the opportunity to make final comments on penalty. That disciplinary process has been stalled at this stage for over two months.” Whilst the letter post-dates the institution of this appeal, Mr Ihdayhid contended that it is evidence of the Department’s state of mind as expressed in its letter of 31 July.

Consideration

14      For the purposes of both s 80I of the Act and s 78 of the PSM Act, there is no definition of “decision”. Therefore, consistent with established principles of statutory interpretation, the words used are to be given their ordinary and natural meaning, unless their context otherwise requires: See Pearce and Geddes Statutory Interpretation in Australia 4th ed at par 2.10.  There is no suggestion in either s 80I or s 78 respectively, when read in the context of the Act and the PSM Act as a whole, that “decision” should not be given its ordinary meaning. The Shorter Oxford Dictionary defines “decision” to mean relevantly, “1. the action of deciding (a contest, question, etc); settlement, determination; (with a and pl) a conclusion, judgement … 2. the making up of one’s mind; a resolution …”

15      For present purposes, the relevant decision the subject of this appeal is one purportedly made under s 82A(3)(b)(i) “to take disciplinary action”.  This is plain from the notice of appeal. The notice of appeal then goes on to set out in four paragraphs the general grounds relied upon to challenge the Department’s decision. The crux of the issue to be determined is therefore, what is meant by the words “decision to take disciplinary action” in s 78(1)(b)(iv) of the PSM Act.  It is that “decision” which is the decision referred to in s 80I(1)(d) of the Act, dealing with the jurisdiction of the Appeal Board.

16      We have dealt with the ordinary meaning of “decision”.  As a part of answering this question, we also need to consider the meaning of “to take”, in its ordinary and natural sense.  Again, the Shorter Oxford Dictionary defines “take” to relevantly mean “make, do, perform (some action).  1. to perform, make, do (an act, action, movement, etc.) …” From the foregoing, in our view, “a decision to take disciplinary action”, for the combined purposes of s 78(1)(b)(iv) of the PSM Act and s 80I(1)(d) of the Act, is a determination or resolution, finally made, to perform and to put in place, one of the various forms of action set out in s 80A(a) to (g) of the PSM Act.  Therefore, based upon this analysis, can it be said that the Department has, by its letter of 31 July 2012, or any other course prior to 21 August 2012, made such a decision?  In our view, the answer to this question must be “no”.

17      The letter from Mr Sellers, of 31 July, is annexed to the notice of appeal. The letter refers to Mr Sellers’ earlier letter of 2 March 2012, setting out the particulars of the allegations against Mr Ihdayhid.  Mr Sellers refers to the report of an investigator Mr Baskwell, and a copy of Mr Baskwell’s report is enclosed.  Mr Sellers refers to his consideration of the report, and his conclusion that the emails are “objectively inappropriate”. Mr Sellers then finds Mr Ihdayhid to have committed the eight breaches of discipline alleged.  He continues as follows:

In accordance with section 82 (3) (b) of the Act I have provisionally decided to take the following action:

Reduce the level of your classification from specified calling level 5 to specified calling level 4 and to participate in a counselling process.

My reasoning for the provisional decision to demote you is that your lack of action in relation to receiving the emails demonstrates a lack of appreciation of the responsibilities of your current level.  You had a responsibility as both a supervisor and senior officer with extensive managerial experience to ensure that you and those with whom you work comply with their obligations as employees within the public sector and to take action where it appears that there has been a failure to do so.  Your repeated omissions to take action in relation to Mr Fiori sending you the emails have caused me to lose confidence in your ability or willingness to discharge the responsibilities of your current level.

It is also a matter of concern to me that you seem to still lack an appreciation of the inappropriateness of Mr Fiori's emails and your response to their receipt. That you maintain that the emails are harmless and silly innocent humour has led me to give close consideration to terminating your employment with the Department, an option I would have been unlikely to have considered had you admitted fault, or some fault, on your part in relation to taking no action in relation to the emails. In the end, and after long consideration, I have decided, largely because of the length of your service with the Department, to not take this action.

In relation to the requirement to attend a counselling process this is done with the aim of raising your understanding and awareness of appropriate standards of behaviour and communication in the workplace.  The full details of this will be given to you by the General Manager, Human Resources.

I give you the opportunity to respond to the proposed action.  Please provide your response in writing to me within 10 days of the receipt of this letter.

18      In our view, from the letter of 31 July, the Department has clearly provided Mr Ihdayhid with an opportunity to comment on the course proposed by the Department, prior to its confirmation. Regardless of whether Mr Ihdayhid considers it to be so, it may well be the case that Mr Ihdayhid is able to persuade Mr Sellers to adopt one of the other options set out in ss 80A(a) to (g), or 80A(3)(b)(i) or (ii) of the PSM Act. That can only be to the advantage of Mr Ihdayhid.  If not, and the Department confirms its proposed course of action as set out in the letter of 31 July, there is no loss to Mr Ihdayhid.  All of his appeal rights are preserved.  In our view, the fact that the Department has not decided to take the option of dismissal in s 80A(g) of the PSM Act, does not mean, as a corollary, that the Department has decided to take one of the other possible courses of action open to it. In our view, given that the Department has yet to finally decide the outcome to be implemented, on the construction of the statutory provisions we have adopted, it has not yet decided to take disciplinary action, for the purposes of s 82A(3)(b) of the PSM Act.

19      There having been no “decision” yet taken by the Department for the purposes of an appeal under s 78(1)(b)(iv) of the PSM Act and s 80I(1)(d) of the Act, the appeal is incompetent as being premature, and it must be dismissed.