APPEAL AGAINST DISMISSAL

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00032

DELIVERED : MONday, 21 January 2013

FILE NO. : PSAB 15 OF 2012

Appellant

AND

Commissioner Ian Johnson

Department of Corrective Services

Respondent

Catchwords : Industrial law - Termination of employment - Appeal against deicsion of repondent to terminate appellant's employment - Appeal filed outside of 21 day time limit - application for extension of time to institute proceedings - Principles applied - Appeal dismissed.

Legislation : Public Sector Management Act 1994, ss 92 and 80A; Sentencing Act 1995, s 77(6)

Result : Appeal dismissed

Representation:

Appellant : Mr K Trainer as agent

Respondent : Ms K Jack and with her Mr D Hughes

Case(s) referred to in reasons:

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

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

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

Jackamara v Krakour (1998) 195 CLR 516;

Rose v Telstra Corporation Limited (1998) Print Q9292;

Farquharson v Qantas Airways Limited (2006) Print 971685

Case(s) also cited:

Reasons for Decision

1          The appellant Mr Gaudet was employed as a level 7 Team Leader by the Department of Corrective Services.  His employment was terminated on 14 June 2012 following his conviction in the Perth Magistrate’s Court on 151 counts of criminal damage under s 444 of the Criminal Code.  Mr Gaudet was dismissed by the Department under s 92 of the Public Sector Management Act 1994 which enables an employer to take disciplinary action against an employee convicted of a serious offence.

2          Mr Gaudet now appeals against the decision of the Department to dismiss him.  The appeal was filed on 27 July 2012, and is some 22 days outside of the 21 day time limit for instituting appeals under reg 107(1) of the Industrial Relations Commission Regulations 2005.  Accordingly, Mr Gaudet is required to persuade the Appeal Board that the time for filing the appeal should be extended.

Relevant principles

3          The relevant principles applicable to an extension of time within which to bring an appeal before the Appeal Board are not in issue.  Both parties referred to the decision of the Appeal Board in Nicholas v Department of Education and Training (2008) 89 WAIG 817. In Nicholas, the Appeal Board applied principles applicable to extensions of time for the institution of appeals against primary decisions in the Supreme Court of Western Australia, for example, as 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.  The relevant factors to be taken into account include:

(a)         The length of delay;

(b)        Reasons for the delay;

(c)         Whether the appellant has an arguable case; and

(d)        Any prejudice to the other party.

4         As it is only if an appellant has an arguable case that the other factors will be necessary to consider, we will deal with this factor first.

Arguable case

5         As was held in Jackamara v Krakour (1998) 195 CLR 516, an assessment of the merits of a case in considering an extension of time to appeal, is necessarily done in a “rough and ready way”. That requires a broad brush assessment by the appeal court of the merits of the appeal.

6         Mr Gaudet’s testimony in these proceedings did not go to the merits, as his being charged, convicted and sentenced on 12 March 2012 for the criminal offences concerned is a matter of historical fact. However, the circumstances of the offending and the sentence imposed by the Perth Magistrate’s Court, in the context of Mr Gaudet’s employment, are relevant to the merits of his appeal.

7         The circumstances of Mr Gaudet’s offending are not in issue and in summary are as follows. In the period December 2010 to October 2011, Mr Gaudet wilfully damaged some 151 cars, many of them luxury vehicles, by applying paint stripper to the paintwork. Some of the damaged vehicles were located in the Westralia Square commercial building car park in the Perth CBD, which was Mr Gaudet’s workplace.  In the Department’s letter of dismissal of 14 June 2012 (exhibit A1), Mr Gaudet was advised it had been determined that not only were a number of the offences committed in Mr Gaudet’s workplace car park, some were committed during Mr Gaudet’s working hours. 

8         At time of Mr Gaudet being charged by police for the offences, the matter attracted widespread media attention. This included reference to Mr Gaudet holding a senior position at the Department. In some media reports, copies of which were tendered in evidence, the Department was approached for comment.

9         On 12 March 2012 Mr Gaudet pleaded guilty to 151 counts of criminal damage under s 444 of the Criminal Code. A copy of the transcript of the proceedings was tendered in evidence as exhibit A6. In it, the presiding Magistrate observed that the maximum penalty in relation to each charge was ten years imprisonment on indictment and three years if dealt with summarily. The presiding Magistrate observed that the total damage caused to the vehicles by Mr Gaudet’s conduct was some $402,000. His Honour noted the aggravating factors in relation to the offending as the extended period of time during which the offences were committed; the total of the damage caused to the vehicles; and the degree of premeditation required to commit the relevant offences, in that Mr Gaudet armed himself with a syringe, purchased paint stripper and then went out to find a suitable target vehicle.  The presiding Magistrate noted that many of the vehicles targeted were in a very good condition and were well maintained.

10      It was also submitted on Mr Gaudet’s behalf in the sentencing proceedings that at the material time, Mr Gaudet was suffering from a generalised anxiety disorder and a major depressive disorder arising from a particular obsessive compulsive behavioural disorder. A letter from Dr Watts, a clinical and forensic psychologist, dated 22 August 2012, tendered as exhibit A5, supported this being the condition of Mr Gaudet at the material time.  The presiding Magistrate noted a number of personal references tendered to the court in support of Mr Gaudet.  It was also noted that since being arrested, Mr Gaudet had voluntarily undergone psychological treatment.

11      Furthermore, in mitigation, the presiding Magistrate observed that to his credit, Mr Gaudet had made an apology to his victims and had made significant restitution in the sum of approximately $90,000 by the time of sentencing.  The presiding Magistrate said that had Mr Gaudet not cooperated with police and made restitution to his victims, then he would have sentenced Mr Gaudet to an immediate term of imprisonment.

12      In the event, however, the presiding Magistrate sentenced Mr Gaudet separately in respect of a number of the offences.  In respect of two charges Mr Gaudet was sentenced to a cumulative term of imprisonment of two years suspended for two years.  In relation to a number of the other charges, Mr Gaudet was sentenced to 12 months imprisonment suspended for two years. In relation to the first 10 charges against him, Mr Gaudet was placed on an intensive supervision order for 24 months, accompanied by supervision and programme requirements. These required him to report within 72 hours of the sentence to community based corrections and to submit to any programme that they determined he would need to undertake. Mr Gaudet is required to make contact with them when they require it and he is not able to leave the State without permission. The presiding Magistrate made it clear to Mr Gaudet that any reoffending in the suspended sentence period would lead to Mr Gaudet’s incarceration for the term of the sentence.

13      By letter of 19 March 2012 (exhibit R1), the Department informed Mr Gaudet that given his conviction on 12 March 2012, the Department was, under s 92 of the PSM Act, which empowers an employer to take disciplinary action against an employee found guilty of a serious offence, considering dismissing him. Prior to the imposition of any penalty, Mr Gaudet was given an opportunity of making a submission to the Department about the proposed penalty. Having considered Mr Gaudet’s submissions of 12 April and 8 June 2012, the Department determined that it would take disciplinary action as a consequence of his convictions. 

14      The Department noted in its letter of 14 June 2012, the seriousness of the convictions against Mr Gaudet. The Department also observed that a number of the offences occurred in the car park at Mr Gaudet’s workplace and also that his conduct was not restricted to periods outside of working hours. The letter went on to inform Mr Gaudet that despite his exemplary period of service with the Department, the nature of the convictions, the circumstances under which they occurred, and the Department’s assessment of significant reputational damage to it, the relationship of trust and confidence between Mr Gaudet and the Department had been fractured and the appropriate penalty in the circumstances was dismissal.

15      A number of submissions were made by the parties in relation to this aspect of the case. The Department submitted that before dismissing Mr Gaudet, it gave serious consideration to all of the issues raised by him in his submissions. This included the fact that at the time Mr Gaudet was suffering a psychological disorder. Additionally, character references submitted by Mr Gaudet were also carefully considered. However, there were a number of significant aspects of Mr Gaudet’s conduct which supported the decision to dismiss, including the significant period over which the offending occurred. Furthermore, emphasis was placed on the fact that some of the offending occurred at Mr Gaudet’s workplace, including during Mr Gaudet’s working hours.

16      Additionally, and importantly from the Department’s perspective, was the submission that it clearly had suffered reputational damage as a consequence of Mr Gaudet’s conduct, given the widespread media attention which the case attracted, and the necessity for the Department to make comment in the media.  Reference was made to decisions such as Rose v Telstra Corporation Limited (1998) (Print Q9292) and Farquharson v Qantas Airways Limited (2006) (Print 971685) dealing with dismissals for out of hours conduct.

17      The Department contended that in this case, not only was there a clear connection between Mr Gaudet’s offending and his employment, but even if characterised as completely out of hours conduct, it was of such a serious nature, given Mr Gaudet’s position, and the close connection of it with the activities of the Department, that there was a clear case of a breach of trust and confidence. With the Department being responsible for the public prison system and community corrections throughout the State, Mr Gaudet’s sentencing made his position plainly untenable.

18      Mr Gaudet, on the other hand, highlighted the advice of Dr Watts that given that Mr Gaudet was, at the material times, suffering from a psychological disorder, there was a significant mitigating circumstance. In the absence of such a circumstance, however, Mr Gaudet conceded, in our view correctly, that given the seriousness of the offending, and all of the associated features of it, the appeal would have little or no prospect of success. Mr Gaudet, in referring to the sentencing remarks of the presiding Magistrate, referred to the personal references provided to the court regarding his honesty and being a hardworking and conscientious employee. 

19      Additionally, Mr Gaudet referred to the observations of the presiding Magistrate that in the circumstances, he was most unlikely to reoffend.  Mr Gaudet was also critical of the Department’s case in that they had not led any direct evidence of what they regarded as reputational damage to it as a consequence of Mr Gaudet’s offending.

20      We have carefully considered all of the evidence and the submissions. For the following reasons, in our view, Mr Gaudet does not have an arguable case and the appeal has little or no prospect of success. It is therefore unnecessary to consider the other factors in determining whether the time for filing the appeal should be extended. 

21      Of most significance in this case, are the circumstances of the offending, which are clearly set out in the sentencing remarks of the presiding Magistrate. The sheer number of the offences, the time period over which the offending took place and the consequential financial loss to the victims was described by the presiding Magistrate as “staggering”.  It is very clear from a fulsome reading of the sentencing remarks of the presiding Magistrate, that whilst recognising at the time Mr Gaudet was suffering from a psychological disorder that was not sufficient to preclude the imposition of a substantial term of imprisonment for the offences.

22      It is also clear that if it were not for Mr Gaudet’s cooperation with police and his actions in restitution, he would have not received a suspended sentence. Of note in this respect, is the fact that a sentence of suspended imprisonment is taken to be a sentence of imprisonment, under s 77(6) of the Sentencing Act 1995. A suspended sentence does not lessen the gravity of the penalty imposed. The sentences imposed by the presiding Magistrate clearly reflect the seriousness of Mr Gaudet’s offending, having regard to all of the circumstances.

23      Given that the Department is responsible for corrective services throughout the State, and given Mr Gaudet’s position as a senior officer of the Department, in our view, the Department was correct in its submission that it was, in the circumstances, untenable for Mr Gaudet to remain employed. The reality is Mr Gaudet’s offending, no doubt at least in part because of the nature and extent of it, received widespread public attention.  This is not a case where an officer of the Department had engaged in a one off or isolated incident which led to a conviction.  All of the circumstances of the case need to be considered.

24      Moreover, it should also be observed that the combined effect of ss 80A and 92 of the PSM Act are such that there is no presumption that dismissal will be the only outcome of an employee being convicted of a serious offence. Section 92 contemplates that the employing authority may take disciplinary action or improvement action or both, as a consequence of an employee being convicted of a serious offence.  Plainly, in our view, all of the circumstances of the offending and of the employment need to be weighed in the balance in the employer’s ultimate decision as to what action to take.

Conclusion

25      Whilst clearly Mr Gaudet’s conduct and his subsequent conviction for the serious offences with which he was charged, no doubt have had a significant impact upon him, including the loss of his employment, we are not persuaded that having regard to all of the circumstances of the case, that the time for the lodgement of the appeal should be extended. The appeal is therefore dismissed.