APPEAL AGAINST DISCIPLINARY ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 01093

DELIVERED : TUESday, 11 december 2012

FILE NO. : PSAB 5 OF 2012

Appellant

AND

Director General - Department of Transport

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

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Ms K Hagan and with her Mr M Shipman (not of counsel)

Respondent : Mr D Anderson and with him Ms R Hartley

Solicitors:

Appellant : Civil Service Association of Western Australia Inc

Respondent : State Solicitors’ Office

Case(s) referred to in reasons:

Khalil Ihdayhid v Director General, Department of Mines and Petroleum (2012 WAIRC 00949)

Case(s) also cited:

Reasons for Decision

1          This is the unanimous decision of the Appeal Board.

2          Mr Smith is a motor driver licence assessor employed by the Department of Transport at its Welshpool Driver and Vehicle Services Centre.  Mr Smith has been an employee of the Department since June 2008.  The events giving rise to these proceedings took place in the period August to September 2011 at the Welshpool premises. It was contended by the Department that Mr Smith, in concert with others, engaged in a series of acts of misconduct in the form of inappropriate remarks to a co-employee, Mr Vaisi.  These inappropriate remarks were alleged to have had racial and sexual overtones.  Mr Vaisi complained.  An investigation took place under the terms of the Public Sector Management Act 1994 and the complaints were established. The Department, by letter of 23 February 2012, proposed to impose a penalty of a formal reprimand and a fine equal to three days’ remuneration, in accordance with s 82A(3)(b)(i) of the PSM Act.  An opportunity was given to Mr Smith to make a submission on that proposed course of action but this appeal was instituted prior to any action being taken.

3          A number of issues are raised by Mr Smith for consideration by the Appeal Board.  They are:

(a)           That the Department’s decision to commence disciplinary proceedings was unlawful because the Department did not follow its own policies and procedures and that Mr Smith’s conduct could not reasonably be regarded as racial or sexual harassment for the purposes of the equal opportunity legislation in this State;

(b)          That, for a variety of reasons, the investigation conducted on behalf of the Department was flawed and procedurally unfair; and

(c)           In any event, the penalty imposed by the Department was disproportionate to the conduct found to have been engaged in by Mr Smith.

4          Since the hearing of this appeal, the Appeal Board in Khalil Ihdayhid v Director General, Department of Mines and Petroleum (2012 WAIRC 00949), in a decision dated 26 October 2012, determined  that a “provisional decision” to take disciplinary action, subject to the receipt of further submissions from the affected employee, was not a “decision to take disciplinary action” for the purposes of s 78(1)(b)(iv) of the PSM Act and s 80I(1)(d) of the Industrial Relations Act 1979.  In that matter, the employer had, after the conclusion of an investigation finding misconduct allegations to have been established, advised the employee that it was proposing to take certain disciplinary action and provided a time limit within which the employee could respond on that proposed course.  The appeal was instituted before that response was received from the employee.  The employer challenged the competency of the appeal, on the ground that it was prematurely filed, as the employer had yet to make an appealable decision.

5          In upholding the employer's challenge, the Appeal Board said at pars 18 – 19 as follows:

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.

6          No issue was raised by counsel for the Department as to the competency of this appeal.  The issue has only come to the attention of the Appeal Board since the decision in Ihdayhid was handed down.  On a review of the notice of appeal and the annexures attached to it, annexure E is a letter from Mr Waldock, the Department’s Director General, of 23 February 2012. This letter refers to the previous correspondence regarding the findings of a breach of discipline by Mr Smith.  The letter goes on to say:

In accordance with Commissioner's Instruction Discipline - General section 1.7 and section 82A(3)(b)(i) of the Public Sector Management Act 1994 (the Act) I have determined that the proposed action I intend to take is to formally reprimand you and to impose a fine equal to three days' remuneration.

Improvement action will also be taken, as per section 3 of the Act.  The improvement action will be in the form of training in the prevention of bullying, harassment and discrimination in the workplace.

Prior to imposing the above action against you, I am providing you with an opportunity to make a written representation to me on the proposed course of action.  If you wish to do this, I require your advice by Friday, 16 March 2012.  In the event that no submission is received by this date, I will take the action described above and notify you accordingly.

(My emphasis)

7          It was common ground in the proceedings that after Mr Smith received the letter of 23 February 2012 but before the due date for his response, that being 16 March 2012, the present appeal was commenced on 7 March 2012.  The notice of appeal refers to Mr Smith as having “instituted an appeal against the decision of the respondent to take disciplinary action on adverse findings made by an external investigator that the Appellant had committed a preach of discipline – the decision was pursuant to s.82A(3)(b) Public Sector Management Act 1994, and was given on or about the 23rd day of February 2012”.  It was also common ground that as at the institution of the appeal, the Department had not taken the proposed course as outlined in its letter of 23 February 2012.

8          Accordingly, this matter having come to the attention of the Appeal Board, and it being trite to observe that a court or tribunal must be satisfied that it has jurisdiction and power to determine the proceedings before it, it is necessary to determine this issue.  To assist in that process, the parties were invited to make submissions on the effect of the decision in Ihdayhid.  They have done so.  In summary, the submissions are as follows.

9          The appellant contended that the present appeal is distinguishable from that before the Appeal Board in Ihdayhid.  The appellant submitted that in this matter, there had been a final determination by the Department as evidenced by penalties imposed on Mr Merrigan, in similar circumstances to the appellant, dealt with in the evidence before the Appeal Board.

10       Furthermore, the appellant submitted that unlike in Ihdayhid, the appellant in this appeal also contends that he was denied natural justice and that the Department failed to comply with its own policies and procedures, and therefore acted ultra vires in disciplining the appellant.  In this regard, the appellant referred to s 78(5) of the PSM Act.  On the basis of these submissions, the appellant maintained that the appeal is competent and the Appeal Board has jurisdiction to determine it.

11       For the Department, it was submitted that the Decision of the Appeal Board in Ihdayhid was on all fours with the present matter and this appeal should also be dismissed for want of jurisdiction.  It was contended that in the Department’s response filed on 4 May 2012, at par 21, reference is made to the letter from the Department to the appellant dated 23 February 2012. In that letter, the Department referred to the proposed action that it intended to take against the appellant, but before imposing such action, provided the appellant with an opportunity to make a written submission on the proposed course. The Department noted that prior to making such a submission, the appellant commenced the appeal on 9 March 2012.  Further, the Department submitted that it has not made a final decision as to the appropriate disciplinary action to be implemented, which has not been imposed.

12       Having regard to the terms of s 78(1)(b)(iv) of the PSM Act, the Department submitted that no decision to take disciplinary action under s 82A(3)(b) of the PSM Act had been made by 7 March 2012, on the commencement of the appeal.

13       On that basis, the Department submitted that there is no jurisdictional foundation for the appeal and accordingly, it has no prospects of success and should be dismissed.

Consideration

14       Regrettably in our view, given the late stage of these proceedings, the conclusion which must be reached in relation to the competency of this appeal is the same conclusion that was reached by the Appeal Board in Ihdayhid.  It is clear from the letter of the Department of 23 February 2012, that Mr Waldock, after considering further submissions made on behalf of Mr Smith, was informing Mr Smith of the proposed action that he intended to take, by way of the imposition of a formal reprimand and a fine.  It is also clear from Mr Waldock’s letter that he was acting in accordance with the Public Sector Commissioner’s Instruction Discipline – General par 1.7.  Pars 1.7 and 1.8 of the Instruction provide as follows:

1.7 If the employing authority finds that a breach of discipline did occur, the employing authority is to notify the employee in writing of that finding within 14 days and of any proposed action that may be taken.  The employee is to be given a reasonable opportunity to respond to the notification of proposed action and that response is to be genuinely considered by the employing authority.

1.8. Upon the taking of any action resulting from a finding that a breach of discipline occurred, the employee is to be notified in writing as soon as is practicable, but in any event within 14 days.

(My emphasis)

15       It is reasonably clear that par 1.7 of the Instruction imposes an obligation on an employer, when a finding of a breach of discipline has been made, to notify the affected employee of any proposed action that may be taken. The employee is then given an opportunity to respond and the employer is required to genuinely consider that response. The next step, as is made clear by par 1.8, is that the employer, having taken into account and genuinely considered any such response from the affected employee, is to take any relevant action and then, upon the taking of any action, the employee is to be notified.  It is clear from the Statement of Intent of the Instruction, that the Instruction contains the minimum procedural requirements that public sector employers are required to follow, in dealing with suspected breaches of discipline or disciplinary matters, and the taking of disciplinary action, under the PSM Act.

16       From his letter of 23 February 2012, it is clear that Mr Waldock was acting in accordance with par 1.7 of the Instruction, in notifying Mr Smith of the Department’s proposed course of action.  When read as a whole, and particularly with the terms of pars 1.7 and 1.8 of the Instruction, the Department had not, for the purposes of s 78(1)(b)(iv) of the PSM Act and s 80I(1)(d) of the Act, made a “decision to take disciplinary action” as at 23 February 2012. The Department was required to “genuinely consider” any response from Mr Smith.  If such a response had been forthcoming, this may have entailed a different outcome to that provisionally indicated in the Department’s letter.  There can be no final and conclusive determination until that consideration has taken place.  Accordingly, the filing of the notice of appeal on 7 March 2012, before that decision was taken, was premature and the appeal must be held to be jurisdictionally incompetent.

17       It is a matter of considerable regret that this issue has arisen at such a late state in the proceedings, indeed after the hearing has concluded and before the Appeal Board has delivered its decision.  However, given that a court or tribunal cannot proceed to determine a matter in the absence of jurisdiction, and the absence of jurisdiction cannot be waived by the parties by consent, the Appeal Board has no option but to hold that the appeal as instituted is beyond the Appeal Board’s jurisdiction. If a fresh appeal is commenced, it would seem to be open for the parties to agree to adopt their submissions, the transcript and documentary evidence in these appeal proceedings, as supplemented by any further material, in any fresh appeal. However, that is a matter that we leave to the parties to consider.

18       Accordingly, what the decisions in Ihdayhid and in this appeal clearly illustrate is that particularly when regard is had to the Instruction, employing authorities in the public sector are required to seek the views of an affected employee before the taking of any final decision in relation to disciplinary action.  It is only once that final decision is made, as to the taking of specified action, that an appeal from that decision is competent.

19       Accordingly, for the foregoing reasons, the appeal is dismissed.