DISPUTE RE TERMINATION OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00706

DELIVERED : FRIDAY, 9 AUGUST 2013

FILE NO. : CR 68 OF 2012

Applicant

AND

The Minister for Corrective Services

Respondent

Catchwords : Industrial law (WA) – Termination of employment of a Union member – Harsh, oppressive and unfair dismissal – Whether Commission has jurisdiction – Dismissal of a probationary prison officer – Conflict between s 23(3)(d) of the Industrial Relations Act 1979 (WA) and reg 5(4) of the Prisons Regulations 1982 (WA) – Effect of Part X of the Prisons Act 1981 (WA) and unfair dismissal – Statutory interpretation – Conflict between the Act and Regulations – Claim within Commission’s jurisdiction – Misconduct ­­– Not denied natural justice – Dismissal was not harsh, oppressive or unfair – Application dismissed

Legislation : Industrial and Employee Relations Act 1994 (SA); Industrial Relations Act 1979 (WA) ss 23A, 23A(1), 23A(2), 23(3)(d), 29, 29(1)(a), 44, 44(9); Industrial Relations Act 1996 (NSW) ss 84, 88; Interpretation Act 1984 (WA) s 43(1), s 46(1); Misuse of Drugs Act 1981 (WA); Police Act 1990 (NSW) ss 80, 80(3), 181D; Police Act 1998 (SA); Police Regulation Act 1958 (Vic) Pt V; Public Interest Disclosure Act 2003 (WA); Public Sector Management Act 1994 (WA) Pt 3; Prisons Act 1981 (WA) ss 6, 7, 12, 13, 13(2), 14, 96, 97, 98(1), 99, 100, 102, 103, 106, 107, 108, Pt II, Pt III, Pt V, Pt X; Police Regulations 1979 (Vic); Prisons Regulations 1982 (WA) regs 3, 3(4), 4, 5, 5(4), 5(5), 6, 30

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr J Walker

Respondent : Mr D Anderson of counsel and with him Mr D Akerman

Case(s) referred to in reasons:

Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268

Chief Constable of the North of Wales Police v Evans [1982] 1 WLR 1155

Commissioner of Police v Eaton (2013) 87 ALJR 267

Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130

Hall v Manahan [1919] St R Qd 217

McGrath v Commissioner of Police (2005) 85 WAIG 2006

O’Rourke v Miller (1985) 156 CLR 342

Ridge v Baldwin [1964] AC 40

The Construction, Forestry, Mining and Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787

The Minister for Health v Drake-Brockman (2012) 92 WAIG 203

The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia (1985) 65 WAIG 385

TN v Walford (1998) 126 NTR 8

Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00067

Case(s) also cited:

Chawdhury v Rottnest Island Authority [2004] WAIRC 12169

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

East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth (2000) 80 WAIG 3155

East v Picton Press Pty Ltd (2001) 81 WAIG 1367

Hutchinson v Cable Sands (WA) Pty Ltd (1999) 79 WAIG 2635

McGrath v Commissioner of Police (2005) 85 WAIG 2004

Westheafer v Marriage Guidance Council of WA (1985) 65 WAIG 2311

Reasons for Decision

1          In a decision delivered on 6 February 2013 the Commission considered an application for an interim order for the reinstatement of a member of the Union, Mr Sell.  That application was dismissed.  Mr Sell was employed by the Minister as a probationary prison officer at Hakea Prison. The background to the circumstances of Mr Sell’s dismissal is set out in my earlier reasons for decision and I need not repeat it: Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00067.

2          The matter was referred for hearing and determination under s 44(9) of the Act.  The parties led a considerable body of evidence and made oral and written submissions in support of their various contentions. Additionally, the Commission raised with the parties, as a preliminary issue, the jurisdiction of the Commission to entertain a claim of unfair dismissal by a probationary prison officer. This issue was raised in light of a decision of the High Court in Commissioner of Police v Eaton (2013) 87 ALJR 267. In Eaton, the Court concluded that provisions in relation to the dismissal of probationary police officers under s 80(3) of the Police Act 1990 (NSW) were inconsistent with the unfair dismissal regime under s 84 of the Industrial Relations Act 1996 (NSW).  This matter was raised with the parties, as Mr Sell’s employment as a probationary prison officer was terminated by the Commissioner of Corrective Services, under reg 5(4) of the Prisons Regulations 1982 (WA).  The issue arising is whether the terms of reg 5(4), confer an unfettered right of discharge of a probationary prison officer, as is the case in relation to probationary police officers under s 80(3) of the Police Act (NSW).

3          A further issue arises as to the effect of Part X of the Prisons Act 1981 (WA), which provides a comprehensive regime for the disciplining of prison officers.  The relationship between Part X of the Prisons Act, reg 5(4) of the Regulations and the unfair dismissal jurisdiction of this Commission, also needs consideration.

4          Given that these matters go to the jurisdiction and power of the Commission to deal with the claim brought on behalf of Mr Sell, it is appropriate to turn to them first.

Prisons Act 1981 and Prisons Regulations 1982

5          The terms of the Prisons Act and the Prisons Regulations set out a detailed scheme for the appointment, duties, discipline and discharge of prison officers.  Part II of the Prisons Act deals with the establishment of prisons.  Under Part III, powers in relation to officers are set out. By s 6, officers, other than prison officers, may be appointed as employees under Part 3 of the Public Sector Management Act 1994 (WA). By s 7, the chief executive officer of the Department as the Commissioner for Corrective Services, is responsible for the management, control, and security of all prisons and the welfare and safe custody of all prisoners. The chief executive officer has overall responsibility to the Minister, for the proper operation of every prison throughout the State.  By s 12, the duties of officers are set out.  Every officer is required to comply with the Prisons Act and Regulations, all rules, standing orders, other laws relevant to the functions of a prison officer and orders and directions of the chief executive officer.  Officers also have responsibilities to maintain the security of the prison where they work and make appropriate reports and maintain records in relation to relevant matters.

6          The engagement of prison officers is set out in s 13.  The Minister may engage prison officers as employees, subject to any relevant award or industrial agreement of this Commission, and subject to other terms and conditions as determined by the Minister.  A prison officer, on engagement, is required to swear an oath of engagement under s 13(2).  The chief executive officer has the power to dismiss a prison officer, with the consent of the Minister, if he or she is convicted of an offence that relates to the performance of their duties or fitness to hold office.  By s 14, the powers and duties of prison officers are set out.  These include the obligation to maintain the security of the prison where the officer serves, and obligations to obey all lawful orders given to him or her by superior officers, including the chief executive officer.

7          By Part V of the Prisons Act, the chief executive officer is empowered to make rules for the management, control and security of prisons. These include the management of prison officers and other officers of the Minister.  Additionally, provision is made for the designation of senior officers as superintendents, who have the charge and superintendence of a prison and management and control of officers and prisoners as necessary, for the good government, good order and security of the prison of which he is superintendent.  This includes the issuing of standing orders binding on officers and prisoners.

8          Part X deals with the discipline of prison officers.  For the purposes of Part X a “prison officer” is defined in s 96 as follows:

96. Term used: prison officer

  For the purposes of this Part — 

prison officer means — 

 (a) a person engaged to be a prison officer under section 13; and

 (b) a person engaged as a prison officer prior to the coming into operation of section 13 and deemed to be a prison officer for the purposes of this Act by Schedule 2.

9         As mentioned by s 13, read with reg 3 of the Regulations, persons may be appointed by the Minister as a prison officer.  Upon engagement, by reg 3(4), a prison officer is to serve a period of probation of nine months.  It thus appears that a probationary prison officer is a person engaged as a “prison officer” for the purposes of ss 13 and 96.  Accordingly, in my view, the terms of Part X of the Prisons Act, in relation to the discipline of prison officers, applies equally to probationary prison officers.

10      The terms of Part X provide a comprehensive regime for the regulation of disciplinary matters for prison officers.  By s 97, all prison officers are to observe the Prisons Act and Regulations, prison rules and standing orders.  Section 98(1) (a) to (e) set out a range of disciplinary offences to which Part X applies, including a breach of duty imposed by the Act, Regulations, rules or standing orders; disobeying or disregarding a lawful order; negligence or carelessness in the performance of duties; misconduct in relation to the performance of duties or fitness to hold office; and the commission of an act of victimisation under the Public Interest Disclosure Act 2003 (WA).

11      By s 99, a charge of a disciplinary offence is to be laid in writing by an authorised officer and validated by a superintendent.  The charged officer is required to admit or deny the charge.  If the charge is denied, a superintendent is required to hold an inquiry under s 100 in accordance with the procedure in reg 30 of the Regulations.  This provides for the making of submissions and the calling of evidence in the usual way.  A charged officer may be represented by the Union or another person, but not a legal practitioner. Where a charge is proved or the prison officer admits the charge, a range of penalties may be imposed under s 102, from a caution to a fine.

12      If a prison officer, or the person laying the charge, is aggrieved by a finding or penalty, he may appeal to the chief executive officer under s 103.  The chief executive officer may confirm, dismiss or vary the charge or penalty as the case may be.  In the case of more serious charges, a superintendent may refer the matter directly to the chief executive officer who, under s 106, is empowered to hear the charge.  If the charge is upheld, a range of penalties may be imposed, from a caution through to dismissal.

13      A prison officer, who is aggrieved by a decision of the chief executive officer under s 106, may lodge an appeal under s 108, to the Prison Officers Appeal Tribunal, constituted under s 107.  On such an appeal, the Tribunal may confirm, modify, or reverse any suspension, finding or penalty appealed against.  The Tribunal may also make such other orders as it thinks fit.

14      The terms of the Regulations also make provision for a rank structure for prison officers in reg 4. The discharge of prison officers, and the notice prior to termination of service of prison officers, is set out in regs 5 and 6.  Relevantly, for present purposes, in relation to Mr Sell, who was a probationary prison officer, reg 5(4) provides as follows:

 (4) Where the chief executive officer is of the opinion during or at the end of the period of probation of a prison officer that the prison officer is unsatisfactory in the performance of his duties or unsuitable to be a prison officer, the chief executive officer may discharge that prison officer.

15      By reg 5(5), the chief executive officer may extend the period of probation of a prison officer beyond that of the initial mandatory nine months prescribed by reg 3(4).

16      In dealing with this preliminary issue, it is necessary to refer to s 23(3)(d) of the Act which is in the following terms:

23. Jurisdiction of Commission

…

  (3)  The Commission in the exercise of the jurisdiction conferred on it by this Part shall not —

…

  (d) regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;

17      Section 23(3)(d) is a clear statement of legislative intention that the Commission shall not exercise its powers in relation to the specified subject matter, if there is “provision, however expressed”, for that same subject matter, including a right of appeal, prescribed by other legislation. This provision is clearly intended to prevent matters within the prescribed subject matter, from being dealt with in more than one jurisdiction.

18      Given the terms of Part X of the Prisons Act, when read with the relevant Regulations, the argument is compelling that such provisions satisfy the terms of s 23(3)(d) of the Act. That is, Part X regulates the suspension, discipline, dismissal, termination and reinstatement in employment of a prison officer.  There is provision in Part X for appeals in such matters.  In my view therefore, the Commission’s unfair dismissal jurisdiction in ss 23A and 29 of the Act, is ousted in relation to the dismissal and claim for reinstatement of a prison officer.  This equally applies to an application under s 44 of the Act by a Union on behalf of a prison officer. Such an application seeks the exercise of powers by the Commission, to regulate the matters the subject of the prohibition on the exercise of the Commission’s jurisdiction, in s 23(3)(d) of the Act. The terms of s 23(3)(d) do not discriminate in relation to how a matter is referred to the Commission.  It is the powers of the Commission to regulate these matters that are excluded in such cases.

19      Given that the terms of Part X of the Prisons Act apply equally to all prison officers (including those on probation under reg 3(4)), the issue then becomes the effect of reg 5(4).  Specifically, in the context of the statutory regime as a whole, the intention to be imputed to the legislature as to whether a decision of the chief executive officer, to discharge a probationary prison officer, is open to review in the Commission’s unfair dismissal jurisdiction.  Put another way, from the plain terms of reg 5(4), in the context of the statutory scheme for the engagement, suspension, discipline and discharge of prison officers, and given the nature of probationary employment generally, is there any direct collision between the terms of reg 5(4) and the unfair dismissal jurisdiction of the Commission?  Can it be said that, independent of s 23(3)(d) of the Act, the Prisons Act and Regulations scheme in relation to the engagement, suspension, discipline and removal of prison officers, has effected an implied repeal of the Commission’s unfair dismissal jurisdiction in relation to prison officers in this State?

20      I turn now to consider these issues.

21      Mr Sell was dismissed as a probationary prison officer, under reg 5(4), set out above.  As noted at the outset of these reasons, a not dissimilar issue in relation to the dismissal of probationary police officers in New South Wales was the subject of consideration by the High Court in Eaton.  In Eaton, it was held that s 80(3) of the Police Act (NSW), empowering the Commissioner of Police to dismiss a probationary police officer “at any time and without giving any reason” ousted the jurisdiction of the Industrial Relations Commission of New South Wales under s 84(1) of the Industrial Relations Act 1996 (NSW) to deal with an unfair dismissal claim by a probationary police officer.  The Court held that the terms of s 80(3) of the Police Act conferred an unfettered power to dismiss a probationary police officer. The application of the Industrial Commission’s unfair dismissal jurisdiction would be directly inconsistent with that unfettered power.  The Court placed substantial weight on the nature of probationary employment, as a part of its consideration of the statutory provisions. Notably, and of significance for present purposes, under the NSW industrial legislation, there is no equivalent of s 23(3)(d) of the Act.

22      Relevantly, s 80 of the Police Act (NSW) provides as follows:

80 Appointment and promotion of constables

(1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable.

(2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations.

(3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.

(4) The promotion of police officers within the rank of constable is subject to the regulations.

23      In relation to the decision in Eaton, the Minister submitted that whilst the language of s 80(3) of the NSW legislation is not identical to that in reg 5(4) of the Regulations, the effect is the same.  The Minister submitted that the terms of reg 5(4) and s 29(1)(b) of the Act are irreconcilable.  The Minister contended that it is clear that reg 5(4) enables the chief executive officer to dismiss a probationary prison officer “at any time” during the probationary period, if the chief executive officer is of the opinion that the probationary prison officer is unsuitable to be a prison officer.  The Minister maintained that it is inconceivable that the Parliament would give the chief executive officer such a broad power, and yet render it subject to merits review before the Commission under the Act.  The contention was that to afford a dismissed probationary prison officer the remedies of reinstatement, re-employment and/or compensation under s 23A of the Act, is completely irreconcilable with the broad power to discharge a probationary prison officer.

24      Furthermore, it was submitted by the Minister that the terms of Part X of the Prisons Act is similar to the terms of s 181D of the Police Act (NSW), which sets out the detailed procedure for the removal of non-probationary police officers.  It was submitted that the terms of Part X contain detailed provisions in relation to the power of removal of a prison officer, as has been set out above.  Under Part X, the Minister submitted that the chief executive officer is under a duty to take into consideration submissions made by the prison officer concerned and there are specific rights of appeal.  From this, the Minister contended that it is quite evident that there is a contrast between the terms of Part X of the Prisons Act and reg 5(4) of the Regulations, which strongly points to there being no intended merits review of the chief executive officer’s opinion that a probationary prison officer is not suitable and should be discharged.

25      Whilst the Minister accepted that the conflict in the language used in reg 5(4) of the Regulations and the relevant provisions of the Act in relation to unfair dismissal is not as acute as in the legislation under consideration in Eaton, the effect is largely the same.  It was contended that an opinion formed by the chief executive officer under reg 5(4) that a probationary prison officer is “unsuitable”, does not constitute or require the giving of reasons for that opinion.  All that is necessary is that the chief executive officer forms the relevant opinion.  Accordingly, it was submitted that the terms of reg 5(4) and s 80(3) of the Police Act (NSW) are analogous in effect.  If no reasons had been given for Mr Sell’s dismissal, and if the chief executive officer is under no obligation to provide such reasons, a determination could not therefore be made about whether Mr Sell’s dismissal is harsh, oppressive or unfair. The fact that reasons were actually provided in Mr Sell’s case, does not of itself alter the fundamental jurisdictional issue.

26      The Minister submitted that even if it could be contended that the chief executive officer’s opinion in relation to Mr Sell was of itself, a reason for his discharge, then the Commission should pay high regard to that opinion.  The Commission should not interfere with a decision of the chief executive officer who has reached the requisite opinion that a probationary prison officer is “unsuitable”.  The submission was, essentially, that this “opinion” is properly the province of the chief executive officer, as a part of the discharge of his responsibilities.  The contention was that this proposition is supported by the ousting of the Commission’s jurisdiction in relation to matters under Part X of the Prisons Act.  The incorporation by Parliament, of detailed provisions regarding the rights of review of disciplinary decisions in relation to prison officers generally, is strongly suggestive of the proposition that the chief executive officer’s opinion as to the suitability of a probationary prison officer, under reg 5(4), is not intended to be the subject of further review.

27      Two further matters were raised by the Minister.  The first was that the range of remedies open to the Commission on a finding of an unfair dismissal under s 23A of the Act is inconsistent with the broad and unfettered powers of the chief executive officer under reg 5(4).  Secondly, the terms of reg 5(4) is a specific provision applying only to probationary prison officers.  In contrast, the unfair dismissal jurisdiction of the Commission under the Act is broad in scope and applies to all relevant employees within the Commission’s jurisdiction throughout the State.  Accordingly, the Minister submitted that this is a case where the general provisions in the Act should give way to the specific provisions for probationary prison officers.

28      On the other hand, the Union contended that the Commission’s unfair dismissal jurisdiction was not affected by reg 5(4) of the Regulations. The Union submitted that as in Eaton, the issue is one of statutory interpretation. The submission of the Union was there are three bases upon which the circumstances in Eaton are distinguishable and they are:

(a)          There is no inconsistency because the jurisdiction of the Commission invoked in this matter is the settlement of an industrial dispute under ss 29(1)(a) and 44 of the Act;

(b)         There is no inconsistency having regard to the terms of the regulations in question; and

(c)          If any such inconsistency exists, the terms of the regulations must give way to the relevant provisions of the Act.

29       For the reasons given at par 18 above, I am not persuaded by par (a) of the Union’s submissions.  As with the operation and effect of s 23(3)(d) of the Act, it is not how a matter comes before the Commission, but rather, the exercise of the relevant powers that is in issue.

30       The Union referred to the principle of statutory interpretation that as the Parliament will generally not wish to contradict itself all attempts should be made to reconcile competing statutory provisions.  In particular, the Union referred to s 23(3)(d) of the Act and submitted that the Commission’s jurisdiction is only overridden or precluded in circumstances where there is provision for an appeal concerning a decision to dismiss or discipline an employee.  The existence of s 23(3)(d) of the Act, according to the Union’s submission, shows a clear Parliamentary intention that the Commission’s jurisdiction can be invoked in all other cases.  Notably, whilst Part X makes provision for appeals in disciplinary matters, as this case concerns the exercise of the power to discharge under reg 5(4), no such right of appeal exists.  Accordingly, the Union contended that s 23(3)(d) of the Act does not operate and does not preclude the Commission from dealing with the matter.

31       Further submissions were made by the Union concerning the conclusions of the Court in Eaton.  In particular, it was emphasised that the particular language in s 80(3) of the Police Act (NSW) was fundamental, in terms of the finding of inconsistency.  The language used being “at any time and without giving any reason” was submitted to be at odds with the language of the relevant provisions of the Industrial Relations Act (NSW) in particular, s 88 of that legislation, where the Industrial Relations Commission of NSW may take into account where appropriate, whether a reason for dismissal was given, and whether there had been a warning for unsatisfactory performance prior to the dismissal.  It was emphasised that no similar provision exists in the Act in this jurisdiction, as to what matters the Commission may take into account when determining whether a dismissal is harsh, oppressive or unfair.

32       Accordingly, it was submitted by the Union that there was no inconsistency between the language used in reg 5(4) and the terms of the Act.  As there is no irreconcilable conflict, then the Union further submitted that there was no room for the rule of statutory interpretation, that the general should give way to the specific, in this particular case.

33       Finally, the Union submitted that whilst in Eaton, the Court was considering a conflict between two statutes in this case, there is a conflict between the Act and the Regulations. Accordingly, it was submitted that under s 43(1) of the Interpretation Act 1984 (WA), where there is any inconsistency between subsidiary legislation and the Act, the former is void to the extent of any such inconsistency.

34       The issue to be determined in relation to the effect of reg 5(4) of the Regulations involves issues of statutory interpretation.  Also relevant are the terms of Part X of the Prisons Act, set out above, dealing with discipline of prison officers.  Both the Prisons Act and the relevant provisions of the Regulations must be seen as part of an overall regulatory scheme for the appointment, duties, suspension, discipline and discharge of prison officers.  This is so because unlike in the case of Eaton, the terms of Part X of the Prisons Act apply equally to probationary prison officers.

35       The starting point is the terms of reg 5(4) set out above.  The trigger for the discharge of a probationary prison officer by the chief executive officer is the formation of the requisite “opinion”.  The opinion to be formed by the chief executive officer is that a probationary prison officer is either, or both, “unsatisfactory in the performance of his duties” or “unsuitable” to be a prison officer.  The first relates to the work performance of a probationary prison officer.  The second basis for an opinion by the chief executive officer is not defined by any criteria.  No obligation is placed on the chief executive officer under reg 5(4), to state the basis for the formation of the required opinion.  There is also no obligation on the chief executive officer to provide reasons to a probationary prison officer for the formation of the opinion as to why the probationary prison officer is “unsatisfactory” or is “unsuitable”.

36       The first contention of the Union was that as reg 5(4) provides for no avenue of appeal, then by s 23(3)(d) of the Act, the Commission’s jurisdiction is not excluded.  It was submitted therefore, that the Parliament has expressed the only circumstances where the Commission’s jurisdiction is ousted.

37       As to the language of reg 5(4), the Union contended that the reference in s 80(3) of the Police Act (NSW) considered in Eaton, was important.  So much can be accepted.  In s 80(3) of the Police Act (NSW), the Commissioner of Police can dismiss a probationary police officer “at any time” and “without giving any reason”.  In Eaton, it was held that this conflicted with the terms of s 88 of the Industrial Relations Act (NSW) in that legislation, for example, the Industrial Commission may take into account whether a reason for dismissal was given and whether a warning was given for unsatisfactory performance, prior to dismissal.  It is also to be accepted that in this jurisdiction, under s 23A of the Act, no such matters are expressly provided to be taken into account by the Commission, in an unfair dismissal claim.  However, it is well settled in the jurisprudence of the Commission, that these are matters to be considered when the Commission is determining, in the exercise of its broad discretion, whether a dismissal is “harsh, oppressive or unfair” under s 23A(1) of the Act.

38       It also is to be noted, that under s 23A(2) of the Act, the only express consideration for the Commission to consider, is whether an employee was on probation for a period of three months or less.  However, this consideration only applies to a case of an employee who otherwise falls within the Commission’s jurisdiction, and is not in any sense determinative in the present case.

39       As to the contention that the use of the words “at any time”, are not present in reg 5(4), and this is significant, I am not persuaded to this view.  It is the case that reg 5(4) does not use the same language as s 80(3) of the Police Act (NSW).  However, as submitted by the Minister, its effect is the same.  The chief executive officer of the Department may form the required opinion “during or at the end of the period of probation” of a probationary prison officer.  There is no other time that such a view may be formed in the case of a prison officer whilst he or she is still on probation.  In my view, this similarly means at “any time” in the course of or at the end of the period of probation.  Nothing material turns on the difference in language between these provisions, having regard to their clear meaning and effect.  Having regard to the terms of reg 5(4), in my view, as in Eaton, in this case, it is clear that a probationary prison officer may be discharged by the chief executive officer “at any time”.

40       The inclusion of the word “probation” in reg 5(4) of the Regulations is plainly for the same purposes as in s 80(3) of the Police Act (NSW).  In Eaton, the Court considered this to be of significance.  As mentioned, by reg 3(4), a prison officer is to be appointed for a mandatory period of probation for nine months, which may be extended by the chief executive officer.  As opposed to the case of probationary police officers in NSW, there are no express criteria for the chief executive officer to consider whether a probationary prison officer is to be confirmed. However, it is implicit in reg 5(4), that the chief executive officer must form the opinion that a probationary prison officer has been satisfactory in the performance of his or her duties and is otherwise “suitable” to be a prison officer.

41       The notion of a probationary appointment was seen as important by Heydon J in Eaton, where his Honour observed at par 16 as follows:

16. There are many occupations which attract the interest of young people but for which some young people turn out to be unsuitable because of some factor not readily identifiable in advance.  One of those occupations is the occupation of police officer.  Police officers have heavy responsibilities.  They sometimes work under grave pressures.  How satisfactorily particular individuals bear those responsibilities and stand up to those pressures can only be learned by experience.  Hence most New South Wales police officers commence their careers by being probationary constables.  Probation involves a process of putting to proof.  It is a process of investigation and examination.  A probationary period is a "period of testing or trial for the purpose of ascertaining whether [a person] has the necessary qualifications for a permanent appointment, and the word 'probation' itself involves the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed." [footnote 4 omitted]  A probationary constable is one whose qualifications for non-probationary status are put to proof, investigated, examined, tested or tried.  Those qualifications include aptitude, competence, integrity, performance and conduct.  The probationary status of probationary constables is another factor pointing to the conclusion that s 84(1) of the IR Act does not extend to conferring on probationary constables a right to claim that a dismissal is harsh, unreasonable or unjust.

42       In my view, similar conclusions may be reached in relation to the position of a prison officer.  Given the probationary nature of the appointment of a prison officer, and the broad powers of the chief executive officer to discharge a probationary officer on forming the required opinion, there are respectable  arguments that it would be inconsistent with that broad power to discharge a probationary prison officer, for that “opinion” to be the subject to review by the Commission and the grant of the remedies of reinstatement, re-employment loss of remuneration and compensation orders in an appropriate case.

43       The obvious question to ask is, if the chief executive officer’s opinion as to whether a probationary prison officer is “suitable” is determinative of the power to discharge such an officer, by what criteria is the Commission to assess whether the chief executive officer’s opinion as to “suitability” is sound or not?  In my view, given the nature of the prison service, which operates under a paramilitary regime within the ranks of prison officers, and the statutory scheme which I have set out in detail above, and the obligations on and broad powers of the Commissioner for Corrective Services as the chief executive officer, to ensure the good order and security of prisons and the officers within them, it is problematic that the Commission would be required to effectively “second guess” the opinion formed by the chief executive officer.  The chief executive officer is plainly the person best placed to make an assessment about a probationary prison officer’s suitability for confirmation of appointment.

44       There are also strong grounds to argue that the opinion, based upon the chief executive’s qualifications, experience and responsibilities under the Prisons Act and Regulations, would not be the subject of review, unless it was expressly stated to be so in the legislation.  The fact that it is not in the specific powers in relation to probationary prison officers, but there is an elaborate scheme to review for prison officers generally in Part X of the Prisons Act, is in my opinion, suggestive that no such review for probationary prison officers was intended.

45       Also, as in Eaton, the power of the chief executive officer to discharge a probationary prison officer is a specific and narrow power.  This is contrasted with the general powers of the Commission to provide a remedy to a broad class of persons throughout the State, in relation to allegations of unfair dismissal.  Similarly, in this case, the general powers of the Commission under the Act, should generally give way to the specific powers of the chief executive officer, certainly under Part X of the Prisons Act.

46       There is a further matter in this case, not arising in Eaton, to which I briefly averted earlier in these reasons.  Both the Prisons Act and the Regulations were enacted after the enactment of the Act in 1979. The principle of statutory interpretation is that there is a presumption that statutory provisions will not contradict one another.  As was said by Crennan, Kiefel and Bell JJ in Eaton at par 48, in referring to Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, “the question is not whether one law prevails, but whether the presumption is displaced”.

47       In Ferdinands, the issue determined on appeal by the High Court, was whether there was an inconsistency between the provisions of the Police Act 1998 (SA) and the Industrial and Employee Relations Act 1994 (SA), in relation to the dismissal of a member of the South Australian Police.  The officer concerned was convicted of assault, and the Commissioner of Police terminated his employment.  The Full Court of the Industrial Relations Court of South Australia held that the Industrial Relations Commission had no jurisdiction to hear the matter.  An appeal to the Full Court of the Supreme Court of South Australia upheld that decision.  The High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ; Kirby J dissenting) affirmed that decision.  In particular, in coming to the view that the police legislation ousted the industrial legislation in South Australia, Gummow and Hayne JJ said at pars 47-51 as follows:

47. No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions.  If, upon their true construction, there is an "[e]xplicit or implicit contradiction"[footnote 41 omitted] between the two, the later Act impliedly repeals the earlier.  One example that may be given of an explicit contradiction is provided by the legislation considered in Michell v Brown [footnote 42 omitted] where the later Act gave the same definition of an offence as had been stated in the earlier Act, but specified a different punishment, and varied the procedure to be followed for its prosecution.  It was not possible to comply with both Acts simultaneously.
48. In Rose v Hvric [footnote 43 omitted] , a distinction was drawn between explicit or implicit contradiction on the one hand and "merely 'inferential contradiction', as Lord Hatherley called it in Attorney-General v Great Eastern Railway Co [footnote 44 omitted] " on the other.  Thus, it was said [footnote 45 omitted] that to show that provisions of the later Act would ground a conclusion that the train of thought of those who drafted that later Act, if logically pursued, would have led the drafters to enact an exception to the operation of the former Act, would not suffice to demonstrate implicit contradiction.  It would show only an inferential contradiction.  It would not show implicit contradiction because, as Gaudron J said in Saraswati [footnote 46 omitted] , the general presumption is that there is no contradiction between two Acts of the one legislature.
49. Reference to "implicit contradiction" may suggest that it is both permissible and useful to resort to "covering the field" tests developed in the application of s 109 of the Constitution  [footnote 47 omitted] in deciding whether a later Act impliedly repeals an earlier.  It is, however, necessary to recognise that s 109 concerns the paramountcy of a law of the Commonwealth over a law of a State.  The question in the present case is not whether one law enacted by one legislature prevails over a law enacted by another legislature; it is whether the presumption that two laws made by the one legislature are intended to work together is displaced.  It is unnecessary to decide in this case whether, or how much, guidance is provided in cases of allegedly implied repeal by the law that has developed in the application of s 109 [footnote 48 omitted] .
50. In the present case there would be difficulties in accommodating provisions of the Police Act with the application of the wrongful dismissal provisions of the Industrial Act.  What would happen if the Industrial Commission were empowered to order re-employment of a member of SA  Police whose appointment had been terminated? Would that person have to make a fresh oath or affirmation under s 25 of the Police Act? Upon re-employment of a member of SA  Police by order of the Industrial Commission, could the Police Commissioner take some other less severe action against that member on account of the conviction that led the Police Commissioner to terminate his or her appointment? Or would the Police Commissioner's powers under s 40(1) be spent upon the Police Commissioner's deciding that the appointment should be terminated? In deciding whether a termination of appointment of a member of the police force was harsh, unjust or unreasonable, would the Industrial Commission be bound to take account of, and be limited to considering, matters the Police Commissioner was bound to consider when exercising the power given by s 40(1) of the Police Act? Or would the Industrial Commission be guided by those considerations that are usually grouped together under the description the "industrial justice" of the matter [footnote 49 omitted] ?
51. These difficulties in reconciling the two Acts stem from two features of the legislation which, although it is convenient to deal with them separately, are linked one to the other.  First, different considerations inform the exercise of power under the Police Act from those that inform the exercise of power under the wrongful dismissal provisions of the Industrial Act. Secondly, the Police Act appears intended to deal comprehensively with questions of termination of appointment of a member of SA  Police.

48       In my view, given the comprehensive scheme for the appointment, duties and responsibilities, suspension, discipline and discharge of prison officers under the Prisons Act and Regulations, the same conclusions reached in Ferdinands are open to be reached in this matter, at least in relation to Part X.  This is despite the existence of s 23(3)(d) of the Act.  It is inconceivable that the Parliament would have intended, on the making of this statutory scheme that prison officers could fall within the Commission’s unfair dismissal jurisdiction, as contained in the Act, in existence at the time of the enactment of that scheme.  As in Ferdinands, what would be the situation if a prison officer was successful in obtaining an order of re-employment?  For example, there is no provision in the Prisons Act for the taking of another oath of office.  Except in the case of probationary prison officers, the means by which prison officers are to be dealt with for performance and conduct issues, which may lead to termination of employment, is set out in Part X of the Prisons Act.

49       However, despite the above, and the potential for conflict, the position in relation to reg 5(4) is problematic.  As a matter of general principle, delegated legislation, such as the Regulations, cannot impliedly repeal an earlier Act, unless there is an express provision empowering it: Hall v Manahan [1919] St R Qd 217; TN v Walford (1998) 126 NTR 8.  There is nothing in the Prisons Act to this effect.  Furthermore, is the submission of the Union in relation to s 43 of the Interpretation Act 1984, to the effect that where there is a conflict between an Act and the terms of delegated legislation the delegated legislation is deemed to be void to the extent of the inconsistency.

50       In this case, given the terms of s 23(3)(d) of the Act, which by s 46(1) of the Interpretation Act 1984, includes Reg 5(4), in the absence of any provision for an appeal from a decision of the chief executive officer, and despite my reservations expressed above, it would seem that the present legislative scheme in the Regulations is distinguishable from that considered in Eaton, on this basis.  Despite the nature of probationary appointments of prison officers, and the broad powers of the chief executive officer, and not without some oscillation, I consider that Mr Sell’s claim is not ousted on jurisdictional grounds by reason of reg 5(4).

Natural justice

51       I now consider a further argument put by the Union.

52       The Union argued that Mr Sell was denied natural justice by the Minister because he was not afforded the process set out in Part X of the Prisons Act.  The Union’s submission was that the Minister made up its mind to dismiss Mr Sell under reg 5(4) and therefore deprived him of the opportunity to exercise his rights under Part X.  As outlined above, this involves the laying of a formal disciplinary charge, the opportunity to cross-examine witnesses, and places an onus on the Minister to establish the charges on the balance of probabilities.

53       Because the Minister used the power of the chief executive officer to discharge Mr Sell as a probationary prison officer under reg 5(4), it was contended by the Union that Mr Sell was not afforded the same level of procedural fairness.  This, according to the Union’s submission, made the dismissal unfair.  For the following reasons, I am not persuaded to this view.  Mr Sell’s dismissal was not unfair because the Minister sought to use reg 5(4) to discharge him as a probationary prison officer.

54       The terms of Part X of the Prisons Act, and the relevant regulations, provide a comprehensive code in relation to the employment, discipline and dismissal of prison officers.  Whilst the terms of Part X of the Prisons Act and relevant regulations are comprehensive and provide for a detailed procedure by which disciplinary offences committed by prison officers are dealt with, the fact remains that Mr Sell was not charged with or found guilty of a disciplinary offence.  In my view, as I tentatively expressed in the interim order reasons for decision [2013] WAIRC 00067, nothing in Part X requires a probationary prison officer to be charged with a breach of discipline.  The power resides with the chief executive officer at all times, prior to and at the end of a period of probation, to form the opinion, that a probationary prison officer is unsatisfactory or unsuitable and to discharge the officer.

55       A strikingly similar situation arose in O’Rourke v Miller (1984-1985) 156 CLR 342.  In this case, a probationary police constable was discharged for misconduct, as a result of disorderly and drunken behaviour after a celebration, following the sitting of the probationary police officer’s final examinations, at the end of his probation.  Detailed provisions existed in the then Part V of the Police Regulation Act 1958 (Vic) and the Police Regulations 1979 (Vic) for the appointment, discipline and removal of police officers.  It was held by Gibbs CJ, Mason, Wilson and Dawson JJ, that the separate regulations for the discharge of probationary police constables could be invoked by the Chief Commissioner, if he formed the view, at the conclusion of the probationary period, that a probationary police constable was not “suitable” to be confirmed as a member of the police force.  It was held that there was no right for such a probationary police constable to be dealt with under Part V of the Police Regulation Act.  As a probationary constable, the only “right” possessed by him, was for the Chief Commissioner to form a bona fide view as to the probationary police constable’s suitability for confirmation of appointment, at the conclusion of the probationary period. It was also held that any material to be considered in making that decision, adverse to the constable, should be put to him for a response.

56       There is no question however, that the invoking of the regulations for the discharge of a probationary police constable in O’Rourke, and in the case of probationary prison officers in this case under reg 5(4) of the Regulations, that the principles of natural justice apply.  The officer is entitled to be first told of allegations against him and be given an opportunity to explain: Ridge v Baldwin [1964] AC 40. This also applies to a probationary police constable: Chief Constable of the North of Wales Police v Evans [1982] 1 WLR 1155.

57       On the evidence in this matter, Mr Sell had the relevant allegations of misconduct put to him and he was afforded an opportunity to respond.  There is no basis to conclude that he was denied natural justice.

The Lawson incident

58       Mr Sell and Mr Bull were part of the probationary prison officer class 167.  As a part of the training, officers were required to attend on-site training at the Prison Officer Academy located at Hakea Prison.  Most, if not all probationary prison officers, are accommodated on the premises whilst undergoing training.  Another trainee on the course in class 167 was probationary prison officer Mr Lawson.  On 5 July 2012 Mr Lawson, along with others including Mr Bull, attended a social function at the Corrective Services Social Club.  The Club is located at the Hakea Prison complex.  After the function, and whilst sitting in Mr Lawson’s vehicle in the car park of the Club, Mr Lawson offered Mr Bull a quantity of dexamphetamine tablets.  These are a prohibited drug under the Misuse of Drugs Act 1981 (WA).  Mr Bull declined the offer, left Mr Lawson’s vehicle and reported the matter to the Department’s Professional Standards Division the next day.  As a result, Mr Lawson was charged by the police with offences under the Misuse of Drugs Act.  His probationary appointment was terminated by the chief executive officer under reg 5(4) of the Regulations.

59       The issue with Mr Lawson appears to have created some division amongst the trainees.  Some supported Mr Bull’s conduct in reporting the matter and some did not.  The evidence in this case would tend to suggest that Mr Sell was in the latter camp.  The significance of this incident relates to the issue of motive, if any, for what occurred at the Club on the night of 31 August 2012 between Mr Sell and Mr Bull.  It was contended by the Minister that Mr Sell was in the group that did not support Mr Bull reporting Mr Lawson’s conduct.  It was submitted that this residual resentment was a factor in Mr Sell’s conduct in assaulting Mr Bull on 31 August.  This was denied by the Union.

60       I turn now to consider the Club incident leading to the dismissal of Mr Sell.

The Club incident

61       As to the evidence in relation to the Club incident on 31 August 2012, as with many cases of this kind, there was a conflict on the evidence.  Both Mr Sell and Mr Bull gave contradictory accounts of the events as they occurred on the evening in question. It is common ground however, that to celebrate the conclusion of class 167 the trainees requested, and were granted permission, to hold a gathering at the Club.  The Club, as mentioned, is located on the Hakea Prison property, but it is outside of the gazetted boundary of the prison.  The Club is an incorporated body. The Club membership is open to employees of the Department of Corrective Services.

62       Ms Bell, another probationary prison officer at the time, testified that she spoke to representatives of the Club, who agreed that the trainees could use the premises on the night of 31 August.  It was not an exclusive arrangement, as other members were also present at the Club.  There was no fee involved, with the trainees each contributing to the cost of food.

63       Initially, all seemed to proceed well enough from when the event began at approximately 8pm.  It was common ground, that in the course of the evening, Mr Sell consumed a considerable amount of alcohol and described himself as intoxicated, when questioned by the Commission.  Mr Bull also testified that he had consumed alcohol, but not seemingly, to the extent of Mr Sell.  One witness to the incident, Mr Eva, also consumed a considerable amount of alcohol.  The other witness, Ms Bell, had only consumed two to three drinks over the evening.  She had agreed to drive herself and others elsewhere, after the Club event had finished.

64       At approximately 10pm, according to Ms Bell’s evidence, she was starting to clean up the area where the officers had been celebrating.  She was approached by Mr Sell and others, to take them into Northbridge.  Ms Bell testified that as she was getting ready to leave, after having packed up, she heard some raised voices.  She had not seen what had initially occurred, but turned around and saw Mr Sell and Mr Bull being pulled apart by some others.  She said that Mr Bull was asked by the barman, Mr Thew, another probationary prison officer, to leave the club.  He did so, saying words to the effect “come on, we’ll take this outside …”:32T.

65       According to Mr Sell, he was waiting for Ms Bell to clear up at the end of the night.  He testified that Mr Bull approached him inside the Club and said he was coming to Northbridge too.  Mr Sell said he responded to the effect “that the car was full because we’re picking up Carl Lawson on the way”:21T.  This was untrue.  When questioned as to why he said this to Mr Bull, Mr Sell testified that it was a bad joke due to intoxication.  He did not give any thought as to whether it may have been upsetting to Mr Bull, given a previous incident with Mr Lawson.  Mr Sell said that Mr Bull then became aggressive.  Mr Bull called Mr Lawson a “f… dog”.  Mr Sell and Mr Bull started to argue.  Mr Thew came over to them and moved Mr Bull outside. In response to Mr Bull’s comment to “take it outside”, Mr Sell accepted that he may have said in response, words to the effect, “if he wants to have a go, I’ll give him a go”:26T.

66       Mr Bull’s evidence as to the events inside the Club was quite different. He testified that at approximately 9:30pm, he went over to speak to Mr Sell.  According to Mr Bull, Mr Sell was standing close to two others, Mr Eva and Mr Thew, and he was not by himself as Mr Sell maintained. According to Mr Bull, without him saying anything, Mr Sell said to him “here’s the piece of shit”:78T.  When Mr Bull questioned why this was so, Mr Sell is said to have told him “because he ‘dobbed in Carl (Lawson)’”: 78T.  Mr Bull testified that he asked Mr Sell what he would have done.  Mr Bull testified that Mr Sell became quite irate.  Mr Bull denied that Mr Sell made any reference to picking up Carl Lawson on the way to Northbridge.  At this point, Mr Bull said he suggested to Mr Sell they should go outside, which they did.  Mr Bull also accepted that he was asked to leave the Club.

67       Again, what was said to have occurred outside the Club was controversial.  Mr Sell testified that Mr Bull was standing on the grassed area.  He walked over to where Mr Bull was standing.  They then both argued.  According to Mr Sell, Mr Bull was goading him to fight.  He put his face close to Mr Sell’s, and said words to the effect “have a go …”.  He also called Mr Sell a “copper piece of shit”: 22T.  Mr Sell did not dispute to having called Mr Bull “a dog and a piece of shit”: 26T.  Mr Sell testified that he then pushed Mr Bull away from him, but Mr Bull then “rushed” back at him.  Mr Sell said he thought Mr Bull was going to assault him.  They both grappled.  Mr Sell then punched Mr Bull in the face.  When questioned as to the punches, Mr Sell said he may have hit Mr Bull twice.  They both fell to the ground.  Mr Sell denied punching Mr Bull when they were on the ground.

68       Mr Sell said Mr Bull was lying on the ground and not showing any further signs of aggression.  He testified that he got up and walked towards the wall of the Club.  The next thing Mr Sell recalled was lying on the brick paving in a pool of his own blood.  According to Mr Sell, Ms Bell had come over to him and told him Mr Bull had pushed him over.  An ambulance was called.  Mr Bull was treated but Mr Sell refused treatment.

69       Mr Bull agreed that when outside Mr Sell came up to him.  According to Mr Bull, Mr Sell was quite aggressive.  Mr Bull said that Mr Sell continued to call him a “piece of shit and a dog”:79T.  Mr Bull testified that he asked Mr Sell what he would have done if Mr Lawson had offered him the dexamphetamine.  According to Mr Bull’s evidence, Mr Sell’s response was to the effect “he would have taken them”: 79T.  In response, Mr Bull said he told Mr Sell “its pieces of shit like you that give prison officers and police officers a bad name”:80T.  At this point, Mr Sell pushed Mr Bull in the chest.  As he was starting to fall backwards, Mr Bull said that he took hold of one of Mr Sell’s arms.  Having done so, Mr Bull testified that at that point Mr Sell “socked me in the face”:80T.  They both then fell to the ground.  According to Mr Bull, Mr Sell kept punching him.  He said he was struck by Mr Sell three times.

70       Whilst on the ground, Mr Bull testified that both he and Mr Sell continued to grapple with each other and rolled over close to the Club wall.  According to Mr Bull, he tried to keep Mr Sell close to him, to stop being hit again.  Mr Bull testified that he and Mr Sell were up against or close to the wall.  Then he pushed Mr Sell away from him, and Mr Bull stepped to the right.  Mr Bull said that he just wanted Mr Sell to stop hitting him.  He did not throw any punches at Mr Sell.

71       Eye witness accounts of the outside altercation were given by both Ms Bell and Mr Eva. Ms Bell testified that both she and Mr Eva followed Mr Sell and Mr Bull outside, after the initial incident inside the Club.  Once outside, Ms Bell said that both Mr Sell and Mr Bull were in “each other’s faces”.  She thought they were both egging each other on.  She said Mr Bull said to Mr Sell “Come on, give us a punch”:32T.  Mr Lawson’s name came up again.  Ms Bell testified that she heard Mr Bull call Mr Sell “a corrupt cop”.  She said Mr Sell then hit Mr Bull.  Mr Bull said that Mr Sell “hits like a girl”:32T.  Mr Bull admitted that he said this.  According to Ms Bell, there was no physical contact between them until Mr Sell punched Mr Bull.  At the time this occurred, Ms Bell said that Mr Sell had his back to her.  She also said Mr Sell threw some more punches, but could not see if any made contact with Mr Bull.

72       Ms Bell testified that she did not see Mr Bull throw any punches at Mr Sell.  The next thing Ms Bell saw was Mr Bull holding Mr Sell up against the wall of the Club. While she could not see how Mr Bull was holding Mr Sell, she heard choking sounds as if Mr Sell was having problems breathing: 33T.  She then said Mr Bull pushed Mr Sell away with both hands and Mr Sell fell “literally straight back.  He did not put hands out or anything”:38T.  According to Ms Bell, Mr Bull did not push Mr Sell with any aggression.

73       Mr Eva also gave his version of the events on the night in question. As mentioned earlier in these reasons, Mr Eva conceded that he had consumed a considerable amount of alcohol.  I infer it to be likely that Mr Eva was under the influence.  Mr Eva did not observe the events inside the Club, other than to testify that he heard heated words between Mr Sell and Mr Bull.  He followed them both outside.  Once there, Mr Eva testified that he saw Mr Bull “in Mr Sell’s face”:  40T.  According to Mr Eva, Mr Bull was yelling and screaming at Mr Sell and that Mr Sell was largely passive.  Mr Eva characterised Mr Bull as the aggressor.  Whilst in his testimony Mr Eva said he could not now recall who threw punches, he confirmed that he told investigators shortly after the incident, that he saw Mr Sell throw the punches.  Mr Eva said he then saw Mr Sell get up and walk towards the Club.  At the same time, Mr Bull was yelling and screaming.  Mr Bull grabbed Mr Sell by the throat.  He then pushed him and Mr Sell fell over and hit his head on the ground.

74       It seemed common ground that after Mr Sell regained consciousness, he was heard to shout out words to the effect “dexies, I take a thousand dexies”.

75       As mentioned earlier, there is a conflict on the evidence between Mr Sell and Mr Bull.  In relation to the incident inside the Club, neither Mr Eva nor Ms Bell witnessed the confrontation.  Both only heard raised voices and Ms Bell saw Mr Bull and Mr Sell being pulled apart.  I accept on the evidence that the Lawson incident caused some division in the class at the time it occurred.  There were two camps, those in support and those in opposition to the conduct of Mr Bull in reporting Mr Lawson.  I do not accept all waters were calm between Mr Bull and Mr Sell over this matter. To so conclude would be quite at odds with the references to the Lawson incident in the verbal altercations between Mr Sell and Mr Bull. It was a source of tension between them. No doubt this simmering tension was fuelled by alcohol on the night of 31 August.

76       The contention however, that when Mr Bull approached Mr Sell inside the Club, he was met with an unprovoked tirade of abuse from Mr Sell is implausible.  There is no other independent evidence as to this.  On the other hand, Mr Sell’s testimony, that he raised going to Northbridge, is consistent with that of Ms Bell.  She said that Mr Sell and some others were going to go in her car after the Club event finished.  Mr Sell making a snide remark as to Mr Lawson and Mr Bull not being able to go in the same vehicle as the others is more consistent with the factual narrative to that point.  It also is consistent with the underlying tension in relation to the Lawson matter.  It was, for this reason, plainly provocative for Mr Sell to have made such a comment to Mr Bull.  In my view, on balance, I accept that Mr Bull took umbrage to such a comment, which led to the verbal altercation between both men.

77       The overall tenor of the evidence supports that Mr Bull was upset by Mr Sell’s comment and both became quite heated.  Ms Bell’s testimony was she heard raised voices and both Mr Sell and Mr Bull were pulled apart. The fact that Mr Bull was asked to leave the Club is consistent with this also.  Additionally, although I do not place much weight on it as he was not called to testify, is the statement of Mr Thew at p 83 of the Investigation Report, that he observed Mr Bull in an aggressive stance.  I also accept Ms Bell’s testimony to the effect that it was Mr Bull who said words to the effect to “take the matter outside”, to which Mr Sell responded, in the terms as noted above.

78       Accordingly, I consider both Mr Sell and Mr Bull were responsible for the conduct inside the Club.  There was a degree of provocation by both of them, one to the other.  They were both abusive of each other.  Once outside the Club, the evidence that Mr Sell was simply passive, as stated by Mr Eva, is not to be accepted.  Both Mr Bull and Mr Sell were in an emotionally charged state and were both fuelled by alcohol.  Ms Bell’s testimony was that Mr Bull and Mr Sell were “in each other’s faces”.  This was also stated by Mr Eva in his evidence, which is somewhat contradictory to his assertion that Mr Sell was merely passive.  According to Ms Bell, both were goading each other.  I accept that Mr Bull did goad Mr Sell to “have a go”.

79       Given that she was the only person involved not greatly affected by alcohol I accept Ms Bell’s testimony as the most reliable independent observer of the events.  The incident outside was not one sided.  Both Mr Sell and Mr Bull were abusing each other.  I accept that Mr Sell pushed Mr Bull away and then punched Mr Bull in the face.  He threw at least two and possibly more punches.  I accept that before doing this, Mr Bull did move towards him.  This was the evidence of both Ms Bell and Mr Eva.  Mr Bull being punched in the face is consistent with the photographic evidence at pp 64-67 of exhibit A1. The photographs of Mr Bull’s face show substantial bruising to his left eye.

80       I accept also on the evidence that Mr Bull did not punch Mr Sell but he was trying to subdue him.  What happened after Mr Sell punched Mr Bull is less clear on the evidence. Ms Bell testified that she saw both Mr Bull and Mr Sell wrestling on the ground.  She did not see what occurred next, until they were both at the Club wall.  Mr Eva said both got up and Mr Sell walked towards the wall.  This was also the evidence of Mr Sell.  Mr Eva said that Mr Bull then went to Mr Sell and grabbed him and pushed him into the wall. Mr Sell had no recollection beyond getting up off the ground and walking to the wall of the Club.  Mr Bull said they both rolled towards the wall and Mr Bull took hold of Mr Sell and held him against the wall.

81       How both Mr Sell and Mr Bull got to the wall is not a matter of great consequence.  I accept that Mr Bull must have applied some pressure to Mr Sell’s throat when he held Mr Sell at the wall in view of the testimony of Ms Bell that Mr Sell’s breathing appeared to be laboured. I accept that Mr Bull did not aggressively push Mr Sell away from him.  On the evidence, he did so with both hands and with little force.  However, Mr Sell fell in such a way that he sustained a substantial wound to the back of his head, as the photos of Mr Sell in exhibit A1 reveal. It cannot be discounted on the evidence that the manner of Mr Sell’s fall was as a result of, or substantially affected by, his level of intoxication.

82       I also accept on the evidence that Mr Sell appeared to be unconscious for a short period of time and when he recovered, he referred to “dexies” as noted in the evidence.

83       On all of the evidence this was not a case of a totally unprovoked assault of Mr Bull by Mr Sell.  Both of them were fuelled by alcohol and Mr Bull was provocative and abusive in his behaviour, as was Mr Sell.  In many respects, they both gave as good as each received.  I do not accept however, that Mr Sell’s conduct in punching Mr Bull could reasonably be described as self-defence.  There was no evidence that Mr Bull did, or was showing a clear intention, to strike Mr Sell. This was not the evidence of Ms Bell. The fact remains that Mr Sell did punch Mr Bull repeatedly, causing him some facial injury.

84       Whilst the circumstances of Mr Sell’s injury are of considerable concern, there was no evidence before the Commission that this was caused by any aggressive conduct of Mr Bull.

Proportionality – the Cashman incident

85       The Union contended that the dismissal of Mr Sell was a disproportionate response. In particular, the Union referred to a prior incident that occurred in August 2010 at the Club.  On this occasion, a prison officer, Mr Cashman, was off duty and was participating in a darts competition against a team from the general public. At the conclusion of the evening, an altercation took place between Mr Cashman and a player from the other team.  According to the report of the incident, and the supporting documents contained at pp 125-177 of exhibit A1, disciplinary action against Mr Cashman was discontinued and he was subject to improvement action.  A number of reasons for this were cited at the time, including a lapse of some eight months from the initial incident; that the officer was off duty and not in uniform; that he was not intoxicated; that he had been employed since 1999 with no prior disciplinary issues, and that he reported the incident the next day.

86       Based on these circumstances of the Cashman incident, the Union submitted that the Minister has applied double standards.  It was contended that this is a relevant consideration for the purposes of assessing whether the dismissal of Mr Sell was unfair.

87       I accept that on its face, the response of the Minister to the Cashman incident seemed very lenient. It is surprising that Mr Cashman was not the subject of disciplinary action. However, caution must be taken when comparing one circumstance with another. The fact that Mr Cashman was a relatively long serving officer, as opposed to Mr Sell being on probation, is very material.  There are other distinguishing features also. In particular, the altercation between Mr Sell and Mr Bull, took place in two phases, both inside and outside of the Club, over a period of time.  Additionally, Mr Sell struck Mr Bull repeatedly.  This is not a case where an employee has broken rules in circumstances not generally distinguishable from other cases: The Construction, Forestry, Mining and Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787. Also, the fact of an earlier, more lenient, penalty may not of itself, mean that a later disciplinary incident leading to a different penalty is necessarily unfair: McGrath v Commissioner of Police (2005) 85 WAIG 2006.  I am not persuaded Mr Sell’s dismissal was unfair for this reason, in all the circumstances of the case.

Connection with employment

88       For the reasons that I gave in the interim decision, at par 18, which I adopt for present purposes, I consider there was a sufficient connection between the event held at the Club and Mr Sell’s employment as a probationary prison officer.

Conclusions

89       The law in relation to these matters is well settled.  An employer has the legal right to terminate the employment of an employee, the question for the Commission however is whether that right has been exercised so harshly or oppressively such as to amount to an abuse of that right:  The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia (1985) 65 WAIG 385 at 388.

90       Having regard to all of the circumstances of this case, and the findings that the Commission has made, I am not persuaded that the discharge of Mr Sell as a probationary prison officer has been shown to be harsh, oppressive or unfair.  In all of the circumstances of the incident on 31 August, it was open in my view, for the chief executive officer to form the view the Mr Sell was not suitable to be a prison officer.  It may also be open to conclude that Mr Bull was treated leniently by the Minister in all of the circumstances, given no disciplinary action was taken against him.  However, the Commission, in these proceedings, is only dealing with the circumstances of the discharge of Mr Sell.

91       For the foregoing reasons, the application is dismissed.