DISPUTE RE ALLEGED BREACH OF DISCIPLINE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 01048

DELIVERED : WEDNESDAY, 4 DECEMBER 2013

FILE NO. : PSAC 41 OF 2013

Applicant

AND

Director General, Department of Housing

Respondent

Catchwords : Industrial law (WA) – Alleged misconduct of a Union member – Application for an interim order that the investigation process cease – Application for conference pursuant to s 44 of the Industrial Relations Act 1979 (WA) – Interim order would not satisfy the requirements of s 44(6)(ba) of the Act – Application for an interim order dismissed

Legislation : Industrial Relations Act 1979 (WA) ss 44, 44(6)(ba), 80E; Public Sector Management Act 1994 (WA) ss 80, 80(c), 80A, 82A(3); Residential Tenancies Act 1987 (WA) s 12

Result : Application for interim order dismissed

Representation:

Applicant : Mr K Rukunga and with him Mr M Shipman

Respondent : Mr S Thackrah

Reasons for Decision

1         The Association and the Department of Housing are in dispute in relation to an allegation of misconduct which has been made against a member of the Association, Ms Hazelton.  The dispute relates to an allegation that Ms Hazelton sublet her Government Regional Officers’ Housing residence in Karratha to another person between August 2012 and April 2013. It is alleged that such conduct involved a breach of a tenancy agreement between Ms Hazelton and the Department; resulted in Ms Hazelton profiting from her tenancy; and additionally, involved Ms Hazelton concealing the arrangement from the Department.

2         As a result of these allegations, the Department has notified Ms Hazelton that she may have committed a breach of discipline under s 80 of the Public Sector Management Act 1994.  The Association has made an application under s 80E of the Industrial Relations Act 1979 for a conference under s 44 of the Act, to deal with the dispute. The Association contended that not only are the allegations baseless, but additionally, because Ms Hazelton is a tenant under a tenancy agreement with the Department, the matter is one properly within the exclusive jurisdiction of the Magistrates Court under s 12 of the Residential Tenancies Act 1987. Accordingly, the Association seeks an interim order that the present investigation process cease.  Alternatively, the Association seeks a final order on the grounds that the allegations are baseless.

3         These reasons for decision address the issue of an interim order sought under s 44(6)(ba) of the Act.

4         At the compulsory conference, the Association asserted that the allegations made by the Department against Ms Hazelton were baseless. It was contended that Ms Hazelton permitted a close friend of long standing, to reside with her between December 2012 and April 2013, to assist her friend at a time of difficulty. The Association contended that Ms Hazelton’s friend was never a tenant and there was no subletting of her property.  Whilst it was acknowledged that Ms Hazelton received some monies from her friend, Ms Hazelton denied it was in the nature of rent, rather reflected some money for household expenses and some other monies in respect of a private loan.  Moreover, the Association contended that the fact that Ms Hazelton had her friend staying with her over the relevant period was well known at the Departmental office in Karratha.

5         In particular, the Association contended that as Ms Hazelton was a tenant of the Department under a written tenancy agreement, then any allegation as to subletting of the premises was a matter properly dealt with under the residential tenancies legislation. It was acknowledged that by cl 17 of the tenancy agreement, Ms Hazelton is not permitted to sublet the premises or assign her interests under the agreement. In short, the Association contended that the allegation of Ms Hazelton subletting her premises, had nothing to do with the employment relationship and is exclusively a residential tenancies matter.  Accordingly, the Association contended that the Department had no capacity to undertake an investigation or proceed with a disciplinary matter against Ms Hazelton on the facts.

6         The Department contended that the allegations against Ms Hazelton can properly form the basis of misconduct allegations under s 80(c) of the PSM Act.  It was submitted by the Department that there is no prohibition on it proceeding to deal with the matter as it could pursue the matter as either a residential tenancy issue or an employment issue. It has elected to proceed under the PSM Act. The present stage of the matter involves an investigation to determine the facts.  The Department contended it is only once the investigation process has been completed, that there can be some further consideration by the Department as to the factual basis for the allegations. Until that time, the Department submitted that it would be inappropriate to take any steps to cease the disciplinary process.

7         The Arbitrator has wide powers under s 44(6)(ba) of the Act to make such orders as will, in the opinion of the Arbitrator, satisfy the requirements of sub pars (i) to (iii) as the case may be.  Such orders are interim in nature and contemplate that there may be further conciliation or arbitration, or other steps taken to assist in the resolution of the matter in question.

8         In this case, the Association effectively seeks the cessation of the disciplinary action on the footing that the matter involves the exclusive jurisdiction of the Magistrates Court in relation to a dispute solely dependent on a landlord and tenant relationship. There can be no doubt that in this case Ms Hazelton has entered into a tenancy agreement with the Department, a copy of which was annexed to the notice of application.  There is also no doubt, that Ms Hazelton is an employee of the Department. Whether or not the relationships of employer and employee on the one hand, and landlord and tenant on the other, are exclusive and independent, as contended by the Association, may well be a matter which requires to be determined.  On the other hand, the allegations themselves, without reaching any concluded view on the issue, may well be said to be capable of supporting allegations of misconduct under s 80 of the PSM Act.

9         However, it is not necessary for me to yet reach a concluded view on any of these issues. At this stage of the proceedings, interim relief is sought by the Association, to effectively terminate the disciplinary process.  The difficulty with the orders sought by the Association at this stage of the proceedings is that if such an order is made, it will not be, in effect, an interim order as contended by the Association. It will in effect, be a final order, terminating the disciplinary process in its entirety. Such an order would not be made pending further conciliation or arbitration between the parties.  Nor could such an order enable conciliation or arbitration to resolve the matter in question, or lead to an encouragement of the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter in question.

10      In that sense, in the context of the present matter, an interim order as sought would not, and indeed could not, satisfy the requirements of s 44(6)(ba) of the Act.

11      Notwithstanding this however, Ms Hazelton and the Association, may, of course, agitate the issues raised in the application for interim relief, at the conclusion of the disciplinary process, and subject to its outcome, having regard to ss 80A and 82A(3) of the PSM Act.  In that sense, all of Ms Hazelton’s and the Association’s rights are preserved, if the outcome of the disciplinary process is ultimately challenged.  All of the arguments maintained by the Association at this stage can be put at a later stage of the proceedings.

12      For these relatively brief reasons, I am not persuaded that the interim relief sought by the Association should be granted. Therefore, the application for interim orders is dismissed.