2013 WAIRC 00067
DISPUTE RE TERMINATION OF UNION MEMBER
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00067

CORAM
: COMMISSIONER S J KENNER

HEARD
:
FRIDAY, 14 DECEMBER 2012

DELIVERED : WEDNESDAY, 6 FEBRUARY 2013

FILE NO. : C 68 OF 2012

BETWEEN
:
WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS
Applicant

AND

THE MINISTER FOR CORRECTIVE SERVICES
Respondent

Catchwords : Industrial law (WA) - Termination of employment of Union member - Application for interim ordere for reinstatement pending hearing and determination - Principles applied - Application dismissed.
Legislation : Industrial Relations Act 1979 s 44(6)(bb)(ii)
Result : Application dismissed
REPRESENTATION:

APPLICANT : MR J WALKER
RESPONDENT : MR D HUGHES

Case(s) referred to in reasons:

Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v Department of Health (2010) 91 WAIG 360
Brown v President, State School Teachers Union of WA (1989) 69 WAIG 1390)
The Director General Department of Education and Training v The State School Teachers Union of WA (Incorporated) (2009) 89 WAIG 622
The Director General, Department of Education v The State School Teachers Union of WA (Inc) (2011) 91 WAIG 166
Westheafer v Marriage Guidance Council of WA (1985) 65 WAIG 2311
Hutchinson v Cable Sands (WA) Pty Ltd (1999) 79 WAIG 951
CSA v Director-General Department of Community Development (2002) 82 WAIG 2845


Case(s) also cited:
Western Australian Prison Officers’ Union of Workers v The Minister of Corrective Services (2009) 90 WAIG 64
Chawdhury v Rottnest Island Authority [2004] WAIRC 12169
Laurent v Commissioner of Police [2009] WAIRC 00515
Civil Service Association of Western Australia Inc v Director General, Department for Community Development [2002] WACA 241.
McGrath v Commissioner of Police 92005- 85 WAIG 2006
Reasons for Decision

1 Mr Sell was employed by the Minister as a probationary prison officer at Hakea Prison. Mr Sell was employed in accordance with the terms of the Prison Officers’ Award and the Department of Corrective Services Prison Officers’ Enterprise Bargaining Agreement 2010. Additionally, Mr Sell’s employment was subject to the terms of the Prisons Act 1981 and the Prisons Regulations 1982.
2 On 23 November 2012 Mr Sell’s probationary employment was terminated by the Minister. This arose from an incident which occurred between Mr Sell and another probationary prison officer, Mr Bull, at the Hakea Social Club on 31 August 2012. Mr Sell’s engagement was terminated under reg 5(4) of the Regulations on the ground that he was unsuitable to be a prison officer.
3 An application has been brought by the Union under s 44 of the Industrial Relations Act 1979, challenging the Minister’s dismissal of Mr Sell. Conciliation did not resolve the dispute between the parties and the matter is to be referred for arbitration under s 44(9) of the Act. In the meantime, the Union has sought an interim order under s 44(6)(bb)(ii) of the Act, for the reinstatement of Mr Sell pending the hearing and determination of his substantive claim.
4 Both parties filed written submissions, with supporting documents. This was on the basis that the Commission deal with the interim order application “on the papers”, unless the Commission was of the view that it was necessary for the parties to be further heard. That has not been necessary.
The incident
5 On the night of 31 August 2012, a social function was being held at the Hakea Prison Social Club in connection with the impending graduation of the probationary prison officer group of which Messrs Sell and Bull were members. The Social Club is on the Prison grounds. During the course of the evening it appears that Mr Sell and Mr Bull had an exchange of words and became agitated with one another. It seems at Mr Bull’s initiative both then went outside onto the lawn area at the front of the Social Club. On the basis of the witness accounts from the Minister’s investigation, it seems that an altercation then took place between Mr Sell and Mr Bull. This involved Mr Sell throwing several punches at Mr Bull, some of which caused Mr Bull some injury. Additionally, Mr Bull at some point after this pushed Mr Sell, who then fell over backwards striking his head which caused him an injury. Comments were also made by Mr Sell in relation to drug taking.

The Investigation
6 An investigation was conducted by the Department’s Internal Investigations Unit. The conclusion of the investigation, and of Mr Johnson, the Commissioner of Corrective Services, was that Mr Sell’s conduct was contrary to the Department’s values and Code of Conduct and Mr Sell was considered unsuitable to be a prison officer. He was discharged in accordance with reg 5(4) of the Regulations. The Investigation Report concluded that Mr Sell was physically violent towards Mr Bull and demonstrated attitudes towards reporting misconduct which were inappropriate.
Consideration
7 The Union has sought an interim reinstatement order under s 44(6)(bb)(ii) of the Act. This enables the Commission, in the case of claim of harsh, oppressive or unfair dismissal under s 44 of the Act, to “make any interim order the Commission thinks appropriate in the circumstances pending the resolution of the claim”. Whether such an order should be made is a discretionary decision to be made by a Commissioner. The Minister referred to a decision of my own in Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v Department of Health (2010) 91 WAIG 360. In that matter, in relation to an application for an interim reinstatement order under s 44(6)(bb)(ii), I said at pars 12-17:
12 Section 44(6)(bb)(ii) of the Act provides as follows:
“(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may —
…. 
(bb) with respect to industrial matters —
(i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and
(ii) without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;”

13 There is no question that the matter before the Commission is an industrial matter. The claim by the applicant is to the effect that its member Mr Harrison was harshly, oppressively and unfairly dismissed on or about 5 May 2010. It seeks his reinstatement without loss.
14 The Commission is empowered by s 44(b)(bb)(ii) to ‘make any interim order the Commission thinks appropriate’. This confers a broad discretion on the Commission in such cases which discretion is to be exercised consistent with s 26(1)(a) of the Act.
15 In ALHMWU v National Foods Pty Ltd (2004) 84 WAIG 3395 I considered the relevant principles to be applied in proceedings such as these. In doing so I considered the approach of Sharkey P in an application under s 66 of the Act in Brown v The President of the State School Teachers Union of WA (1985) 69 WAIG 1390 and I said at [16]:
“In support of an interim order, the applicant submitted that consideration as to whether an interim reinstatement order be made under s 44(6)(bb)(ii) of the Act, involves the exercise by the Commission of a discretion, in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Clearly, reference to s 26(1)(a) of the Act is relevant, because s 26(1)(a) applies to the exercise of the Commission’s jurisdiction and powers in respect of all matters before it, including that presently under consideration. Furthermore, reference was made by the applicant to observations of Sharkey P in Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, WA Branch (2003) WAIRC 09964 when considering the powers in s 44(6)(ba)(i) of the Act. It was there held that those powers were broad and the applicant submitted that the same approach be applied to the interpretation of s 44(6)(bb)(ii) of the Act. Some reference was also made by the applicant to the decision of Sharkey P in Brown v The President of the State School Teachers Union WA (1989) 69 WAIG 1390 in which the President considered the making of an interim order pursuant to s 66 of the Act, regarding the observance of the rules of the respondent in that case. In Brown, Sharkey P, having concluded that interim orders were open to be made under s 66 of the Act, considered that the principles which apply to the granting of an interim injunction in civil proceedings were the most applicable to consideration of the granting of interim relief under s 66 of the Act. In that matter, Sharkey P at 1393 said:

It seems to me that the principles which apply to the granting of interim injunction proceedings are most applicable here, with such modifications as this jurisdiction requires.

The applicant must therefore establish:-
(a) That as a matter of discretion, it is just and correct for me to make the order in all the circumstances.
(b) That, in fact, there is a substantial matter to be tried.
(c) That the plaintiff has a prima facie case for relief if the evidence on which the order is made is accepted at trial.

In addition, the Commission must consider:-
(a) The damage which may be done to the respondent by granting the order as against the damage to the applicant if it is not granted.
(b) Any irreversible consequences of the granting of the order.
(c) The promptness or otherwise of the application.
(d) Any other relevant consideration.”

16 Further at pars [22] - [26] I said as follows:
“Significantly, Parliament has not, by enacting s 44(6)(bb)(ii) of the Act, sought to prescribe in what circumstances the Commission ought to make an interim order. The statutory provision enables the Commission to make any interim order, in the case of a claim of harsh, oppressive or unfair dismissal of an employee, ‘that the Commission thinks appropriate in the circumstances’, pending the resolution of the claim. This in my opinion confers on the Commission a broad discretion as to whether an interim order ought to be made. Further, the language used in s 44(6)(bb)(ii) of the Act, empowering the Commission to make any interim order that it ‘thinks appropriate’ is similar language to that used in s 66(2), empowering the President, on an application made pursuant to s 66 of the Act, to make any such order or give such direction ‘as he considers to be appropriate’. I note also, that this is the type language used, for example, in s 23 of the Federal Court of Australia Act 1976 (Cth), empowering the Federal Court to grant interlocutory relief.

To my mind, having regard to the nature of interim relief generally, not just in this jurisdiction but elsewhere, principles applicable to the making of interim or interlocutory injunctions are of assistance and I therefore respectfully adopt the observations of Sharkey P in Brown in this regard. To those observations I would add the following. The principles applicable to the grant of an interlocutory injunction are now relatively well settled in Australia: Australian Course Grains Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Tablelands Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (No 2) (1984) 54 ALR 730; American Cyanamid Co v Ethicon Ltd [1975] AC 396; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 154.

It is also the case that the two elements in considering the grant of interlocutory injunctions, they being a serious issue to be tried and the balance of convenience, are not to be considered in isolation: Bullock v The Federated Furnishing Trades Society of Australasia (1989) 5 FCR 464. What appears to be a strong claim on the merits may persuade a court to grant an injunction where the balance of convenience is reasonably even. However, a less strong case on the merits, may still lead to an interlocutory order being made, if there is a strong balance of convenience in favour of the grant of an order. Furthermore, there is authority for the proposition that a court may be more reluctant to grant a mandatory interlocutory injunction than a prohibitory injunction. Thus in Shepherd Homes Ltd v Sandham [1971] 1 Ch 340 it was said by Megarry J at 351 that there needs to be:

... A high degree of assurance that at trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.

However, the decision whether to grant an interlocutory mandatory order, despite this ‘high degree of assurance’, will often turn on whether the withholding of such an order, would lead to a greater risk of injustice than the grant of an interim order: Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499.

In the present circumstances, the interim order sought is in the nature of a mandatory injunction, seeking to compel the respondent employer to restore the former relationship of employer and employee that it had with Mr Gaunt, prior to his dismissal for cause, pending the hearing and determination of the substantive claim. In that sense, it is distinguishable from an interim order of a prohibitory nature, preventing a party from taking a step or doing something in the course for example, of an industrial dispute before the Commission. In my opinion therefore, the ‘high degree of assurance’ test, is more applicable as a guide in present circumstances, than where an order to restrain conduct is sought. This is all the more so, when as in the present circumstance, an employer has exercised its lawful right under the contract of employment and relevant award to terminate the employment of an employee, in circumstances where the employee has a statutory right of action to challenge that decision in this Commission. This includes the ability to obtain relief by way of various orders, including reinstatement, re-employment, and compensatory orders for income lost in the event of the former, and as an alternative, orders for compensation for loss and/or injury. In other words, there is a right of action available, for a dismissed employee to obtain a remedy to return him or her to their pre-dismissal circumstance, without loss. This will always however, be subject to the consideration of the possibility of an overall injustice arising, consistent with equity and good conscience, if the interim relief is not granted.”

17 I adopt and apply this approach for the purposes of the present matter.
8 In The Director General Department of Education and Training v The State School Teachers Union of WA (Incorporated) (2009) 89 WAIG 622 the Full Bench (Ritter AP, Smith SC, Mayman C) considered an appeal from a Commissioner who made an interim reinstatement order under s 44(6)(bb)(ii) of the Act. In dismissing the appeal Ritter AP (Smith SC and Mayman C agreeing) noted at par 33, that the Commissioner at first instance applied the approach in Brown and that neither party contended that that approach was incorrect. Therefore, the Full Bench did not consider the matter further on the appeal. Furthermore, at par 40 of the reasons of the decision of the Full Bench, Ritter AP noted factors which he considered to be “weighty” in his own consideration of the matter at first instance. This included whether the Union had established a prima facie case for relief at first instance, amongst other matters.
9 By way of contrast, in The Director General, Department of Education v The State School Teachers Union of WA (Inc) (2011) 91 WAIG 166, whilst the applicability of Brown was not argued at first instance, the Full Bench, (Smith AP, Beech CC and Scott A/SC) held that for the purposes of an interim order under s 44(6)(ba) of the Act, the approach in Brown should not be applied in applications for interim orders under that subsection of the Act.
10 In my view, the latter decision of the Full Bench is limited to the circumstances of s 44(6)(ba) of the Act. Paragraphs (i) to (iii) of s 44)(6)(ba) set out the conditions under which such an order may be made. This is distinguishable from the circumstances of a claim for an interim order under s 44(6)(bb)(ii), dealing with a claim of unfair dismissal, in which no such conditions appear. Given the broad discretion conferred on the Commission by s 44(6)(bb)(ii) of the Act, the approach in Brown remains, in my view, a useful guide in the exercise of the Commission’s discretion. This approach should not, however, limit which matters the Commission may wish to take into account, depending upon the circumstances of the particular case.
11 I intend to adopt that approach in considering this matter.
12 As to whether there is a substantial issue which arises on the Union’s claim, it is not without some oscillation that I have concluded that substantial issues do arise. On the outline of the facts before the Commission, there will no doubt be a contest as to who was the instigator of the altercation between Mr Sell and Mr Bull. There is some evidence to suggest that Mr Bull was provocative inside the Social Club on the evening in question. It appears that Mr Bull may also have instigated both he and Mr Sell moving outside to the front lawn area of the Social Club. It can reasonably be anticipated from the assertions made by the Union in its submissions, that a defence of provocation would more than likely be put by Mr Sell, at any hearing of the substantial issues in dispute.
13 An important question is the probationary employment of Mr Sell. That is a major factor. The law is settled that probationary employment is a far less secure mode of employment than permanent employment. A probationary employee can be dismissed “more easily”. However, probationary employment is not a licence to dismiss unfairly: Westheafer v Marriage Guidance Council of WA (1985) 65 WAIG 2311; Hutchinson v Cable Sands (WA) Pty Ltd (1999) 79 WAIG 951. The nature of prison officer probationary employment is expressly recognised by regs 3(4), 5(4) and 5(5) of the Regulations.
14 As to whether the Union has established a prima facie case that Mr Sell was unfairly dismissed, at this stage of the matter, the Commission can only form a very preliminary view on the factual issues arising. From the excerpts of the Investigation Report and statements attached to the Minister’s submissions, it is apparent that there is a considerable conflict on the version of events between Mr Sell and Mr Bull. Additionally, the accounts by both independent witnesses, Ms Bell and Mr Eva, also conflict somewhat. Ms Bell, notably, asserts that she was not in any way affected by alcohol on the evening concerned and plainly saw Mr Sell throw punches at Mr Bull. Mr Eva, on the other hand, conceded he was affected by alcohol on the night. There is, however, a suggestion in his statement that there was some degree of provocation of Mr Sell by Mr Bull, once both of them moved to the outside area of the Social Club.
15 Importantly, Mr Eva notes that he also saw Mr Sell throw punches at Mr Bull. Furthermore, both Ms Bell and Mr Eva said they heard Mr Sell shout at Mr Bull words or words to the effect as to “getting some dexies”, being a reference to illicit use of dexamphetamine drugs.
16 If the Commission were to accept the evidence as outlined in the relevant extracts of the Investigation Report and the witness statements before me, it may be open to conclude that there may have been some degree of provocation by Mr Bull both inside and outside of the Social Club, on the night in question. It is, however, also reasonably clear from the independent witness accounts, that Mr Sell was seen to throw punches at Mr Bull. Both of them also wrestled on the ground at some point. Mr Bull also manhandled Mr Sell and pushed him, causing Mr Sell to fall to the ground and injure his head. Mr Bull contended he did so in an attempt to restrain Mr Sell and to then push him away.
17 Whilst the witness accounts make reference to Mr Sell calling out about “dexies”, I am not able to come to any conclusions at this preliminary stage, as to the context in which such comments were made. It also seems common ground that both Mr Sell and Mr Bull were significantly affected by alcohol on the night in question.
18 As to the Union’s contention that there was no link between the incident at the Social Club and Mr Sell’s employment, I am not persuaded that this is so. The Social Club is located on the Hakea Prison grounds and Mr Sell and Mr Bull were attending a staff function in connection with the impending graduation of that particular group of probationary prison officers from their training. I am satisfied for present purposes, that the incident had a relevant connection with Mr Sell’s employment as a probationary prison officer: CSA v Director-General Department of Community Development (2002) 82 WAIG 2845 per Anderson J at par 34.
19 There was a further submission by the Union that Mr Sell was denied natural justice by the Minister, because the disciplinary provisions of Part X of the Prisons Act were not applied to him. Whilst this matter was not specifically referred to in the s 44 application made by the Union, I am not persuaded at this point, that the Minister was obliged to follow Part X. I see no reason in principle why the Minister could not rely on reg 5(4) of the Prison Regulations, as it is specific to the ongoing employment of a probationary prison officer.

Conclusion
20 For the foregoing reasons, I am not persuaded that it has been established at this point, that Mr Sell has a prima facie case that his dismissal was harsh, oppressive or unfair. In view of that conclusion, it is not strictly necessary for me to deal with the other matters raised by the Union, although I propose to comment on one of them. I accept that as in all cases of this kind, an employee who is not reinstated on an interim basis will suffer some financial disadvantage until such time as their substantive claim can be heard and determined by the Commission. However, it is important to note that there is no presumption created by s 44(6)(bb)(ii) of the Act, that an interim order will be made by the Commission. All of Mr Sell’s rights are reserved. If he is successful on the ultimate hearing and determination of his unfair dismissal claim, he can be fully compensated for his loss by an order of the Commission.
21 In all of the circumstances the application for an interim order will be dismissed.