DISPUTE RE ALLEGED UNFAIR DISMISSAL OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00754

DELIVERED : WEDNESday, 21 August 2013

FILE NO. : CR 2 OF 2013

Applicant

AND

Public Transport Authority of Western Australia

Respondent

Catchwords : Industrial law (WA) – Termination of employment of a Union member – Spent conviction order made by the Supreme Court of Western Australia – Application under s 27(1)(a) of the Industrial Relations Act 1979 (WA) that the Commission should dismiss or refrain from hearing the matter – Case advanced on the basis that employment was lost and would not be recovered – Further proceedings are not necessary or desirable in the public interest – Application dismissed

Legislation : Industrial Relations Act 1979 (WA) ss 26(1), 27(1)(a), 27(1)(a)(ii), 36A(1), 44(9); Spent Convictions Act 1988 (WA) s 16

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr T Kucera

Respondent : Mr D Matthews

Solicitors:

Applicant : W.G. McNally Jones Staff Lawyers

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Brewer v Bayens (2002) 26 WAR 510

Canale v Bayens [2001] WASCA 383

Koenig v Ryan [2001] WASCA 339

Neale v Sloan (1997) 27 MVR 246

The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 21 IR 151

M v O'Neill [2013] WASC 187

R v Tognini (2000) 22 WAR 291

Riley v Gill (Unreported; WASCA, Library No 970731, 8 December 1997)

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4

Riggall v Western Australia (2008) 37 WAR 211

Scanlon v Bove [2008] WASC 213

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch v Adecco, Access Personnel, Alpha Personnel and Others (2003) 83 WAIG 3335

Case(s) cited by the parties:

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

O'Sullivan v Farrer (1989) 168 CLR 210

Reasons for Decision

1          The substantive application in this matter is one by the Union on behalf of its member, Mr M, that he has been unfairly dismissed and that he be reinstated to his former position as a Transit Officer by the Authority.  Mr M was dismissed by the Authority in December 2012, following an incident which occurred in March 2010.  The incident involved Mr M, in the course of his duties, assaulting a patron of the Authority at the Subiaco Train Station.  Mr M was subsequently charged with and convicted of assault in May 2012.  Mr M was sentenced to a fine of $5,000.  The learned Magistrate found that Mr M acted beyond the scope of his lawful authority without justification.  Mr M appealed against his conviction.  However, when his appeal to the Supreme Court came on for hearing Mr M’s appeal against his conviction had been abandoned and he only pursued an appeal against sentence, on the basis that he should have been granted a spent conviction order under the Spent Convictions Act 1988 (WA).  On 17 May 2013, the Supreme Court upheld Mr M’s appeal and granted him a spent conviction order.

2          The substantive unfair dismissal claim brought by the Union was adjourned, pending the outcome of Mr M’s appeal to the Supreme Court.  On the publication of the Court’s reasons, the Union sought the relisting of the application.  It was listed for mention and in the course of those proceedings, the Authority foreshadowed an application under s 27(1)(a) of the Act, that the Commission should dismiss or refrain from hearing the matter.  Subsequently, following directions being made by the Commission, the Authority’s application was formulated in the following terms:

Application CR2 of 2013, which seeks the reinstatement of Mr M (my substitution) to his employment as a Transit Officer with the Public Transport Authority, should not proceed further in the public interest in the circumstance where Mr M not having that employment and Mr M not returning to that employment were determinative, or at the least very significant, factors in the decision of the Supreme Court of Western Australia to grant Mr M a spent conviction order on 17 May 2013

3          In support of their contentions in relation to the s 27(1)(a) application, the parties filed and served written submissions and the matter was listed for oral submissions.

Supreme Court Appeal

4          As noted above, the decision of the Supreme Court was handed down on 17 May 2013:  M v O’Neill [2013] WASC 187.  In the judgement, McKechnie J concluded that there had been a miscarriage of justice at first instance in that a spent conviction order should have been made in favour of Mr M.  In his reasons for judgement, McKechnie J set out the brief factual background to Mr M’s altercation with patrons at the Subiaco Train Station.  His Honour referred to the findings of the learned Magistrate at first instance, in relation to the three counts of assault, which in essence, arose from one course of conduct involving Mr M’s altercation with the patron.

5          During the course of the appeal, Mr M relied upon further evidence which he adduced relevant to the issue of sentencing.  Mr M in his evidence, referred to the fact that he was stood down by the Authority from operational duties in October 2010, and that his employment was terminated on 28 December 2012.  Mr M referred to the fact that he was at the time of the appeal proceedings, employed as a storeman.  Mr M also gave evidence as to the investigation undertaken by the Authority which resulted in him being demoted for three months, leading to a loss of wages of some $1,200.

6          In relation to his future employment, Mr M gave evidence before the Court that he had received training in security and transit law whilst employed by the Authority.  He also referred to the possibility of using that background and said that experience could be used to obtain “future employment in the security industry” and he also said that “in January 2013 I decided to apply to join the armed forces.  I already have achieved a TEE and the army has a program to attend the Australian Defence Force Academy in the ACT and obtain a degree whilst working in the military”:  judgement at par 19.

7          McKechnie J then set out the three questions to be asked as to whether a spent conviction order should be made, they being is the offender unlikely to commit such an offence again?; is the offence trivial or is the offender of previous good character?; and should the offender be relieved immediately of the adverse effect that the conviction might have on the offender?: Neale v Sloan (1997) 27 MVR 246; Riley v Gill (Unreported; WASCA, Library No 970731, 8 December 1997); R v Tognini (2000) 22 WAR 291; Brewer v Bayens (2002) 26 WAR 510; Canale v Bayens [2001] WASCA 383; Riggall v The State of Western Australia (2008) 37 WAR 211; Scanlon v Bove [2008] WASC 213; Koenig v Ryan [2001] WASCA 339.

8          In addressing the three questions, based upon the submissions and evidence before the Court, McKechnie J concluded that Mr M was unlikely to commit such an offence again, was of good character, as was conceded by the Authority, and that Mr M ought be immediately relieved of the adverse effects of the conviction.  His Honour was satisfied that there would be a miscarriage of justice if a spent conviction order was not made.  Accordingly the appeal was allowed and the sentence at first instance was varied by the making of a spent conviction order in favour of Mr M.

Contentions of the parties

9          Without hopefully doing any injustice to the careful and helpful submissions of counsel, the following is a summary of the submissions made by the parties.  For the Authority, it was contended that at the time that he brought his appeal before the Supreme Court, Mr M had abandoned the challenge to his conviction, and only sought a spent conviction order.  At the time of his appeal, his employment had been terminated, and that he would not be returning to his former employment as a Transit Officer.  Accordingly, the Authority submitted that the issue for the Commission to determine, was whether Mr M’s application in this jurisdiction should be heard and determined, in circumstances where:

(a)       Mr M pursued his appeal before the Supreme Court on the footing that he had lost employment and would not be seeking a return to it;

(b)      That Mr M argued before the Court that these were relevant considerations in the grant of a spent conviction order; and

(c)       Importantly, these were matters relied upon as relevant by the Court and were either determinative, or highly significant, in McKechnie J’s judgement in granting Mr M a spent conviction order.

10       The Authority referred quite extensively to the submissions and evidence before the Supreme Court in support of its submissions.  The broad thrust of the evidence referred to, was to the effect that Mr M had access to the use of force option by reason of his position as a Transit Officer; Mr M’s future employment in other roles would be prejudiced by his conviction; Mr M was no longer in a position of authority as a Transit Officer and no longer has the powers of that position; that the Authority itself had apparently taken steps to protect the community from Mr M (through his dismissal); and that the Court should be influenced in its consideration of the appeal, by the fact that Mr M would not in the future, be in a position to exercise lawful authority over others, as he was when he committed the offences.

11       Reference was made to the overall thrust of the submission of Mr M during the appeal, that the Authority had terminated his employment and he would not be returning to his position as a Transit Officer.  The Authority also pointed to the submissions of counsel for the Western Australian Police Service before McKechnie J, in summarising Mr M’s submissions on his appeal, to the effect that “here we are now told that the appellant is no longer seeking to retain, or, as it were, get back his employment with the Public Transport Authority …”:19T  The Authority submitted that nothing was put on behalf of Mr M in submissions in reply in the appeal, taking issue with that broad summary and indeed, Mr M’s counsel generally continued that same theme.

12       In referring to McKechnie J’s judgement, the Authority laid emphasis on his Honour’s conclusion that Mr M had lost his employment as a Transit Officer and would not be returning to it.  The Authority also pointed to other parts of McKechnie J’s judgement, supporting the proposition that his Honour placed significant weight on the submissions and evidence, to that effect, and that Mr M, no longer being in a position of authority, would be unlikely to be able to exercise lawful force over others “for some time, if ever”:  judgement at par 33.  The Authority also placed some weight on conclusions of McKechnie J, in terms of personal deterrence; Mr M had paid a heavy price for his offending, through his loss of employment; and the fact that there are consequences for those who misuse authority by the deployment of force arising from their employment.

13       Having regard to these findings, the Authority submitted that this was a case where the Commission was being put in an impossible position of being asked to undermine the outcome of the proceedings before the Supreme Court.  It was submitted that the Commission, in continuing with these proceedings, would be removing a “fundamental plank in the reasoning of his Honour that led to the grant of a spent conviction order”.  That is, by Mr M proceeding with his application for reinstatement, and the possibility of it being granted, would be totally at odds with the case advanced by Mr M on his appeal before the Supreme Court.  Mr M’s case was characterised as his employment had been lost, it would not be recovered, he had paid a significant price for his offending, and there would be no further deterrent effect of a continuation of the effects of the conviction on Mr M.

14       The Union contended that a continuation of these proceedings, will not necessarily conflict with the decision of the Supreme Court and the Commission should not exercise its broad discretion under s 27(1)(a) of the Act, to dismiss or refrain from further hearing the substantive application.

15       The Union referred to the notion of the “public interest” and that a necessary starting point is the prima facie right of a party who has invoked the jurisdiction of the Commission to insist upon its exercise: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 21 IR 151.  Also, in reliance on QEC, that where the public interest lies in any particular case, will depend on a balancing of competing public interests and is a matter of fact and degree:  per Mason CJ, Wilson and Dawson JJ at 154.

16       The Union made the general submission, that if the Commission grants the Authority’s application to dismiss these proceedings Mr M will be left with no other avenue, either State or Commonwealth, to pursue a remedy for his alleged unfair dismissal.  I accept that this is the case.  Accordingly, the Union submitted that the Authority has a heavy onus to discharge to persuade the Commission in the present circumstances, to refrain from exercising its jurisdiction on public interest grounds: The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch v Adecco, Access Personnel, Alpha Personnel and Others (2003) 83 WAIG 3335.  In particular, the Union emphasised that where the public interest lies must be considered in light of the objects and purposes of the Act and having regard in particular, to the obligation on the Commission to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms (emphasis added).  In this regard, the Union contended that the Authority’s application under s 27(1)(a) is not an industrial matter but rather, is a technical legal objection, relying as it does, on the potential for a decision of the Commission to conflict with a decision of the Supreme Court.

17       A number of other submissions were made by the Union. Firstly, it was contended that as recognised by McKechnie J, it is in the public interest that Mr M be rehabilitated.  Accordingly, depriving him of his ability to pursue his unfair dismissal claim will be contrary to that goal.  Secondly, there is in any event, no conflict in the decision of McKechnie J, and any potential decision of this Commission in relation to Mr M’s reinstatement claim.  It was emphasised that the issue before the Supreme Court did not relate to whether Mr M was fairly dismissed and should be reinstated, but rather whether he should be granted a spent conviction order.

18       As a part of this submission, the Union contended that properly read, McKechnie J’s judgement, in addressing the three questions to be answered as to whether Mr M should have the benefit of a spent conviction order, was not determinative, or even significant in his Honour’s consideration that Mr M was either not employed by or may not be allowed to return to the Authority as a Transit Officer.  A number of other factors were also relevant, including Mr M’s age; the stressful circumstances of the incident; Mr M’s relative immaturity and lack of experience at the time of the incident; the need for general deterrence and the rehabilitation of Mr M in the community generally.  In particular, the Union submitted that McKechnie J “did not close the door to Mr M returning to work as a Transit Officer. It left open the possibility … circumstances permitting”:  par 40 submissions.

19       The Union also contended that by reason of s 16 of the Spent Convictions Act, the Authority is an exempt employer and may therefore have regard to Mr M’s conviction in relation to his future employment.  The submission therefore was that Mr M is in no different position now, than he was before his appeal to the Supreme Court.  Further that the determination by the Commission in the present proceedings, will be whether Mr M was given a “fair go all round” in the industrial sense, which consideration was not relevant to nor formed any part of McKechnie J’s determination in the grant of a spent conviction order to Mr M.

20       Having regard to all the circumstances of the case, extinguishing Mr M’s rights at this stage of the proceedings, absent any clear jurisdictional issue, would not be appropriate in the public interest.  Additionally, given the terms of the referral under s 44(9) of the Act, there are a number of issues raised in these proceedings which relate to the employment of Transit Officers more generally, and not just the circumstances of the dismissal of Mr M.

Principles to apply

21       Section 27(1)(a) of the Act provides as follows:

27. Powers of Commission

 (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

  (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

  (i) that the matter or part thereof is trivial; or

  (ii) that further proceedings are not necessary or desirable in the public interest; or

  (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

  (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

22       In another context, in The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268, I considered the meaning of the “public interest” for the purposes of s 36A(1) of the Act.  In referring to s 27(1)(a)(ii) of the Act, empowering the Commission to dismiss or refrain from further hearing a matter, I referred to QEC and at par 35 I observed as follows:

35 Given the construction I have placed on s 36A(1) of the Act, it is for the respondent to demonstrate that it would not be in the public interest for the Proposed Award to the made.  The notion of the “public interest” is somewhat amorphous.  Consideration of this issue is similar to the terms of s 27(1)(a)(ii) of the Act empowering the Commission to dismiss or refrain from further hearing a matter on the basis that further proceedings are not necessary or desirable in the public interest.  Similar provisions exist in other industrial jurisdictions.  In Re Queensland Electricity Commission and Ors; Ex-parte Electrical Trade's Union of Australia (1987) 21 IR 151 the High Court in proceedings for prerogative writs against a Full Bench of the then Australian Conciliation and Arbitration Commission, held that for the purposes of the then s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) that “Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree” (per Mason CJ and Wilson and Dawson JJ).  In the same case, Deane J in dealing with the refrain from hearing power in the public interest observed at 162:

“The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked.  That prima facie right to insist upon the exercise or jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is “amenable to the jurisdiction” of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193).  In the rare instances where a particular court of tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf per Higgins J, Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association [No 1] (1920) 28 CLR 278 at 281).  That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute.  Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary consideration of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, “Access to Justice:  Social and Historical Context:  in Cappelletti and Weisner (eds) Access to Justice, vol II, book 1 (1978) pp 5ff; Raz, The Authority of Law, (1979), at p 217).”

23       I adopt what I said in Skilled Rail Services for present purposes.  The discretion open to the Commission to be exercised under s 27(1)(a) is a broad one.  A gloss should not be put on the words of the section to import any particular level of satisfaction to be achieved by the Commission for the exercise of the power.  However, given that a party is entitled to invoke the Commission’s jurisdiction, and prima facie expect it to be exercised there is an onus on the Authority in this case, to persuade the Commission, that in the circumstances, that prima facie right should be overridden:  QEC per Deane J at 163.  Further, in the exercise of the discretion, the Commission is required, as in all matters before it, to have regard to its statutory obligations under s 26(1) of the Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4.

Industrial matter

24       As to the submission by the Union that this application under s 27(1)(a) of the Act is not an industrial matter, I am not persuaded to that view.  The definition of “industrial matter” under the Act is very broad. This matter can be properly characterised as “affecting or relating or pertaining to” the dismissal of Mr M.

A balancing of competing interests

25       The present case involves a balancing of competing interests.  It is generally in the public interest that industrial disputes and industrial matters be resolved by the Commission, where a party invokes the jurisdiction.  This is not a case where, on its face, the Union’s claim is so manifestly hopeless that it obviously has no prospect of success or that there is a clear issue of a lack of jurisdiction or for example, the case is affected by manifest delay.  The issues arising in this matter are far more nuanced than that.  The Commission must also have regard for the fact that it is part of the hierarchy of courts of the State, and it should not act in such a way which may undermine the due administration of justice in the State.

Loss of employment in grant of spent conviction

26       In this case, it is necessary as a first step, to reach some view as to the degree to which McKechnie J relied upon Mr M’s loss of employment and it not being restored, in the grant of a spent conviction.  As well as the reasons for judgement, to which I have already referred above, the Commission also has before it, the transcript of the proceedings before McKechnie J on Mr M’s appeal.

27       As noted, Mr M sought to argue before the Supreme Court, that there had been a miscarriage of justice because a spent conviction order should have been made at first instance. Mr M put on affidavit evidence in support of his appeal. This evidence included reference to Mr M having had his employment as a Transit Officer terminated by the Authority. Mr M made reference to his training in security by the Authority and its use in obtaining future employment in the security industry: par 19 judgement.

28       No reference was made by Mr M in his affidavit to his application for reinstatement before this Commission, nor was the issue raised before McKechnie J in the oral submissions of the parties.  I make no criticism of counsel in this regard.  All that can be said therefore, is that his Honour was not aware of these proceedings, and that Mr M was seeking the restoration of his employment, in circumstances where he maintained on his appeal, that his loss of employment, and the unlikelihood of it being restored, was a significant factor in terms of the “price” paid by him for his offending, and the impact of that loss in terms of both personal and general deterrence.

29       From the transcript of the proceedings before the Court, Mr M’s counsel made submissions to the effect that Mr M had lost his job as a Transit Officer, therefore his capacity to use force lawfully on members of the public had gone and he only “got that access to [the] use of force option only by virtue of his position”: 9T.  Reference was also made by counsel for Mr M that he had “learned an extremely valuable lesson” as a consequence of what happened to him: 10T.  Counsel for Mr M also made submissions that any prospect of Mr M obtaining his employment back would involve a “rethink on the part of the Public Transit Authority” and that the Authority had “taken steps to protect the community itself from the appellant should they consider it needed protection from him”: 18T.  This latter submission was obviously referring to Mr M’s dismissal.  There was also reference by counsel for Mr M on the appeal, to him pursuing a possible career in the military and that Mr M not being in a position of authority over others again: 24T.

30       I have already referred above, to the submissions of counsel for the Western Australian Police on the appeal, to the effect that Mr M was seemingly no longer seeking to retain or to restore his employment, but was looking at other positions in the security industry and also the military: 19-20T.  As the Authority correctly observed in its submissions in this matter, there was no issue taken with this submission by Mr M in his reply on the appeal.

31       In his judgement, McKechnie J referred to the three questions to be asked in relation to whether a spent conviction order should be made: par 26.  In answering question one his Honour noted the submissions of Mr M as to the “serious consequences” of Mr M’s offending: par 32.  Reference is also made by McKechnie J to Mr M having “paid dearly for his offending [and] [t]he consequences have been brought home to him”: par 39.  His Honour also comments that “Despite his desires, it is unlikely that he will obtain employment where he is in a position to exercise lawful force over others for some time, if ever”: par 33.

32       In addressing question three, McKechnie J noted the submissions of Mr M and said “The appellant argues there is no public interest in maintaining the conviction.  He is no longer a person in authority.  The community is not better protected by knowing the conviction. The community is better served by rehabilitation compared with adverse consequences”: par 36.  Having considered the issues to be determined in relation to question three, McKechnie J comes to the general conclusion at par 43 as follows:

There is an obvious need for general deterrence.  Peace officers of all types are given lawful authority to deploy force.  It is important they should know there are consequences to the misuse of that authority.  The appellant has paid a heavy penalty and lost his job.  There is little extra general deterrence by the public continuation of the conviction.

33       From a fair reading overall of the transcript of proceedings and the judgement of McKechnie J, there is no doubt, that the case for Mr M for a spent conviction order, was advanced on the basis that he had lost his employment as a result of his conviction for assault and he was not going to get his job back.  Mr M was considering other options, such as employment in the security industry or a career in the military.  The Court clearly took into account, as a factor of significance that Mr M had lost his job and he had therefore “paid dearly” for his conduct.  The conclusion that Mr M would be unlikely, if ever, to be in a position to exercise lawful force over another person was specifically identified and relied upon by McKechnie J in answering the first question, as to the likelihood of Mr M committing such an offence again in the future.

34       In relation to the third question, and the issue of general deterrence, his Honour placed considerable weight, as is evidenced from the above quote at par 43 of the judgement, on Mr M’s loss of his job, as largely satisfying this element, and there being little extra general deterrence to be achieved by the continuation of the conviction.

35       I therefore conclude that Mr M’s loss of employment, and the fact that it would not be recovered, was central to Mr M’s appeal and the seeking of a spent conviction order.  I also conclude that this was a significant factor relied upon by McKechnie J in the upholding of Mr M’s appeal, and the making of a spent conviction order, as is evident by a fulsome reading of his Honour’s judgement, parts of which have been referred to above, and the transcript.

How should the discretion be exercised?

36       Having reached those views on the basis of the submissions and evidence, I now consider how the discretion under s 27(1)(a) of the Act should be exercised in this case.

37       It is clear from Mr M’s abandonment of his appeal against conviction and his pursuit only of a spent conviction order, that Mr M did make an election as to the course he was going to pursue.  The conclusion is inescapable from the case put by Mr M to the Supreme Court that he relied heavily in both his additional evidence, and his submissions to McKechnie J, on the loss of his employment and the prospect of him not working as a Transit Officer again.  This issue was repeatedly raised and relied upon by Mr M in the context of the issues to be decided by the Supreme Court.

38       Whilst it is quite correct to say, as did the Union in these proceedings, that the question of whether Mr M should be granted a spent conviction order and whether he was unfairly dismissed are quite distinct enquiries, that is really beside the point. The key point is the reliance by Mr M on this state of affairs that is his dismissal and him not being restored to his employment, as a ground to obtain a spent conviction order.

39       In my view, Mr M has made his election in the Supreme Court appeal to pursue a spent conviction order so he can obtain other employment in the future, without generally having to disclose his conviction for assault.  As the Authority put it in its submissions, by seeking now to continue with these proceedings in relation to a claim for reinstatement, Mr M is attempting to both approbate and reprobate.  He is content to take the benefit of the Supreme Court appeal on the one hand, by the receipt of a spent conviction order, largely based on his loss of employment, but on the other, pursue these proceedings in an attempt to recover what he said to the Supreme Court he had lost and the “price he paid” for his offending.

40       This matter has involved some difficult issues to reconcile.  The Commission will not terminate a proceeding at this stage, unless there is very good reason to do so. However, after carefully considering the interests of the parties, I have come to the conclusion that for Mr M to be able to proceed with the present claim would be contrary to equity and good conscience.  It has the clear potential to undermine the decision of the Supreme Court granting Mr M a spent conviction.  That is a course that should not be permitted.  It would not, in the present case, weighing up the competing interests of the parties, be in the public interest for the application to be heard by the Commission. Accordingly, the application is dismissed.