DISPUTE RE TRANSFER OF OFFICER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00313

DELIVERED : THURSDAY, 17 April 2014

FILE NO. : CR 207 OF 2013

Applicant

AND

The Minister for Corrective Services

Respondent

Catchwords : Industrial Law (WA) – Decision of the respondent to forcibly transfer a prison officer – Harsh, oppressive and unfair – Bullying allegations – Jurisdiction – Whether the existence of a public sector standard ousted the Commission’s jurisdiction by reason of s 23(2)(a) of the Industrial Relations Act 1979 (WA) – Employment standard concerns “filling a vacancy” – Disciplinary and misconduct matters – Proposed transfer for the good governance, good order and security of the prison – Proposed transfer is not a matter in relation to filling a vacancy – Commission has jurisdiction – Investigation – Respondent acted contrary to and failed to comply with its own policies and procedures – Allegations not put to the officer – Failure to provide an opportunity for an informed response – Allegations were of doubtful merit – Principles applied – Failure to comply with principles of natural justice and procedural fairness – Conduct not ultra vires – Legitimate expectation – Order that the proposed forced transfer of the officer not proceed

Legislation : Industrial Relations Act 1979 (WA) ss 23, 23(2a), 44(9), 80E(7), Prisons Act 1981 (WA) ss 6(3), 8(1), 12(b), 36(3), Public Sector Management Act 1994 (WA) ss 8, 8(1)(c), 21, 21(1), 21(1)(a), 21(1)(a)(i), 97(1)(a), Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA)

Result : Application upheld

Representation:

Applicant : Mr J Walker

Respondent : Ms T Borwick and with her Ms N Sagar

Case(s) referred to in reasons:

Director General Department of Justice v Civil Service Association of Western Australia Incorporated (2006) 86 WAIG 231

Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648

Managing Director of the South Metropolitan College of TAFE v The Civil Service Association of Western Australia Incorporated (1999) 80 WAIG 7

McDade v State Rail Authority (1985) 10 IR 225

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40

Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149

Stead v State Government Insurance Commission (1986) 161 CLR 141

The Attorney General v Ng Yuen Shiu also known as Ng Kam Shing [1983] 2 AC 629

Reasons for Decision

1          Officer Billings has been a prison officer for some 34 years.  She is now a Prison Officer First Class.  Officer Billings commenced at the Bandyup Women’s Prison where she worked for some 26 years.  She then moved to her present location at the Wooroloo Prison Farm. In about September 2012, Officer Billings became aware that she and another officer had allegedly engaged in bullying behaviour against a colleague, Officer Noakes. There was an investigation by an external investigator and as a result, Officer Billings was informed that she was to be transferred to Hakea Prison, a maximum security prison in the State.

2          The proposed transfer is strongly opposed by Officer Billings.  The Union, on her behalf, has commenced these proceedings, to challenge the employer’s decision.  It regards the forced transfer of Officer Billings as harsh, oppressive and unfair.

3          The Union contended that the decision to forcibly transfer Officer Billings arises out of an investigation and disciplinary process which was fundamentally flawed.  First, the Union said that the Department did not follow its own Workplace Grievance Management Policy, and denied Officer Billings procedural fairness.  Second, it was contended that Officer Billings was never made aware of the specific allegations against her, until the time she attended an interview with the investigator. Third, the Union submitted that Officer Billings was also denied access to the outcomes of the Investigation Report, prior to being informed of her transfer.

4          As to the consequences of the Department’s decision, the Union submitted that given Officer Billings’ age, personal circumstances and her residential location, her forced transfer to Hakea Prison will lead to her resignation from the prison service in this State.

5          In determining this issue, the Commission will consider:

(a) compliance by the Department with its Policy and Procedures in relation to the management of grievances in the workplace;

(b) the allegations against Officer Billings; and

(c) the investigation and its outcome.

6          Additionally, in subsequent proceedings before the Commission in application CR 173 of 2013, also dealing with a disputed transfer of a prison officer, an issue of jurisdiction has been raised.  The issue of jurisdiction was not raised in this case. The point of jurisdiction is whether the existence of a public sector standard dealing with employment matters, including transfer, precludes the Commission from dealing with both this application and application CR 173 of 2013, by reason of s 23(2a) of the Act.  The parties have agreed that this jurisdictional issue is also relevant to this application. Accordingly, the parties’ written submissions, prepared by Mr Andretich of counsel for the Minister and Mr Walker for the Union, in application CR 173 of 2013, have been adopted in this matter.  As it is a threshold issue, I will deal with it first.

Public sector standard and jurisdiction

7          As noted above, this issue arose in the context of another matter before the Commission in application CR 173 of 2013, regarding the proposed transfer of a prison officer from Casuarina Prison to Hakea Prison.  In that matter, counsel for the Minister raised as a preliminary issue of jurisdiction, whether the existence of a public sector standard called the “The Employment Standard”, made on 21 February 2011, meant, by the operation of s 23(2a) of the Act, that the Commission had no jurisdiction to deal with the industrial matter.

8          By s 23(2a) of the Act, it is provided:

(2a) Notwithstanding subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.

9          Under s 97(1)(a) of the Public Sector Management Act 1994, the Public Sector Commissioner made the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005, to deal with breaches of public sector standards.

10       The effect of the Minister’s submission is that the issue which is the subject of the s 44(9) referral in this case is whether the proposed transfer of Officer Billings is harsh, oppressive or unfair.  It was submitted that the making of the Employment Standard, under s 21(1)(a)(i) of the PSM Act, was a standard made for the purposes of ensuring minimum standards of merit, equity and probity when an employment decision to which the Employment Standard applies, is made. The Employment Standard repealed and replaced a number of previous standards including the previous standard applying to transfers. It was submitted by the Minister that the intent of the Employment Standard is clear in that it applies to the movement of public sector employees by way of transfer.

11       In referring to the terms of the Employment Standard, the Minister contended that whilst reference to “filling a vacancy” is apparent, it was submitted that the decision or exercise of a power by an employing body consistent with the Employment Standard, does not need to be for the purpose of filling a vacancy.  In this respect, it was submitted that neither secondments nor acting appointments involve the filling of a vacancy.  In particular, when referring to that part of the standard dealing with the “Interest Principle” the relevant guidelines to the standard make it plain that where a proposed transfer is to take place, the affected employee should be given an opportunity to comment on the proposed transfer.  It was therefore submitted that such a step would not be necessary if the transfer had been for the purposes of a process to fill a vacancy.

12       Reference was made to various dictionary definitions of “equity” and “probity” and the contention was made by the Minister that the substantial issue referred for determination by the Commission, related to the equity and probity of the Minister’s decision to transfer Officer Billings.  Accordingly, the matter referred falls squarely within the scope of the Employment Standard.

13       In relation to the application of s 23(2a) of the Act and s 97(1)(a) of the PSM Act, the Minister made reference to the decision of the Full Bench of the Commission in Managing Director of the South Metropolitan College of TAFE v The Civil Service Association of Western Australia Incorporated (1999) 80 WAIG 7 (Ishmael’s case) and the decision of the Industrial Appeal Court in Director General Department of Justice v Civil Service Association of Western Australia Incorporated (2006) 86 WAIG 231.

14       In Ishmael’s case, the Full Bench held that s 80E(7) of the Act, applying to the Arbitrator, which is in the same terms as s 23(2a) of the Act applying to the Commission, ousted the jurisdiction of the Arbitrator in relation to transfers, in the face of an existing transfer standard established under s 21(1) of the PSM Act. The standard then under consideration, set out the minimum standards of merit equity and probity to be complied with in the public sector in relation to the transfer of employees.  The then Transfer Standard was not confined in any way and on its face, appeared to apply to any circumstance in which an employer was proposing to transfer an employee in the public sector.  Given that the allegation at first instance in that matter before the Arbitrator was that the proposed transfer of the employees in question was harsh and oppressive, the Full Bench held that this was a matter relating to whether the minimum standards of merit, equity and probity had been met in relation to Ms Ishmael’s transfer.  Accordingly, s 80E(7) excluded the jurisdiction of the Arbitrator from dealing with the industrial matter.

15       In a later decision, in Director General Department of Justice, the Industrial Appeal Court considered the scope of s 80E(7) and held that the effect of s 80E(7) is broad and that the jurisdiction of the Arbitrator is not ousted only where there is a particular breach of a public standard alleged.  Rather, the Court held that jurisdiction is excluded, where there is a matter in respect of which a relevant public sector standard has been prescribed, and s 97(1)(a) procedures have been made.  In that case, as the Minister submitted, as a standard had been made in relation to selection and appointment of employees, which was the subject matter of the industrial matter before the Arbitrator, the jurisdiction of the Arbitrator was excluded, irrespective of the particular allegations made.  Accordingly, it was the Minister’s submission that given this broad approach to s 80E(7) adopted by the Court, it is sufficient if a public sector standard has been made in relation to a relevant “human resource decision” under the PSM Act, for ss 23(2a), 80E(7) of the Act, and s 97(1)(a) of the PSM Act, to operate.

16       Furthermore, on the authority of Director General Department of Justice the Minister contended that whether the proposed transfer of Officer Billings is compliant with the relevant provisions of cl 140.1 of the Department of Corrective Services Prison Officers’ Enterprise Agreement 2013 is not decisive.  It was submitted that regardless of the “lawfulness” of the proposed decision, it was held in Director General Department of Justice, that s 80E(7) of the Act, precludes the exercise of jurisdiction into whether a proposed action by an employer concerns a matter covered by a standard. The jurisdiction of the Commission in this matter is therefore ousted.

17       On the other hand, the Union contended that the Commission’s jurisdiction to enquire into and deal with the present industrial matter is not ousted by s 23(2a) of the Act.  The Union submitted that the 1996 public sector standard in relation to transfers considered by the Full Bench in Ishmael’s case was in quite different terms to the Employment Standard in operation now.  The Union argued that the terms of the Employment Standard are clear in that it only has application to a circumstance where a public sector body is seeking to fill a vacant position.  This was not the case in the 1996 standard on transfer.  In this case, the issue of the proposed harsh, oppressive and unfair transfer of Officer Billings is not about the filling of a vacancy.

18       Additionally, the Union referred to cl 140 of the Agreement in relation to proposed transfers of prison officers from one prison to another.  The relevant provisions of the Agreement in this respect refer to “a need to adjust staffing levels”, which is a circumstance the Union submitted quite unrelated to the requirement to fill a vacancy.  Furthermore, given that cl 140 of the Agreement is not a procedure to select a prison officer for a vacant position, then there can be no “notifiable or reviewable decision” for the purposes of the Regulations.  Furthermore, the Union submitted that there is nothing in the decision of the Court in Director General Department of Justice which would alter the conclusion that the terms of s 23(2a) of the Act do not operate in this case.

19       In passing, I would observe that the scope for the Department to transfer an Officer under cl 140.1 of the Agreement is broad. The notion of “operational need” would seem to encompass any requirement or purpose that may be lawfully imposed by the Department, in managing prisons throughout the State. 

20       It was accepted by the Union that if the Employment Standard now made, had application in the matter before the Court, the jurisdiction of the Arbitrator would still be excluded. That was because the case before the Arbitrator concerned recruitment, selection and appointment to fill a vacancy.  This is a subject matter expressly covered by the Employment Standard. Conversely, the Union submitted that if the terms of the Employment Standard had been applied to the circumstances of Ishmael’s case, then no exclusion to jurisdiction would have occurred.  This was because the facts of the case in Ishmael were not concerned with the filling of a vacancy.  Rather, the case involved a proposal to rotate certain classes of employees between TAFE campuses, by way of transfer.

21       In summary, the Union contended that the Employment Standard does not apply because the present industrial matter, does not concern itself with the filling of a vacancy by way of recruitment, selection, appointment, secondment, transfer or temporary deployment.  This dispute relates to an industrial matter concerning the harsh, oppressive and unfair proposed transfer of Officer Billings from Wooroloo Prison Farm to Hakea Prison, for purposes unrelated to those covered by the Employment Standard.  Therefore, s 23(2a) of the Act has no application in this matter.

22       The effect of the counterpart of s 23(2a) of the Act, that being s 80E(7) of the Act, applicable to the exercise of jurisdiction by the Arbitrator, was considered in Director General Department of Justice.  In that case, before the Arbitrator at first instance, was a claim by the Civil Service Association on behalf of a member Mr Jones, that he had been improperly denied an appointment to a level 7 position in the Department of Justice.  The Arbitrator considered she had jurisdiction to deal with the matter and found in favour of the Union’s claims. The Department appealed to the Full Bench which held that s 80E(7) of the Act did not preclude the Arbitrator from dealing with the matter, despite the existence of a public sector standard dealing with recruitment, selection and appointment and procedures made under s 97(1)(a) of the PSM Act to deal with breaches of such a standard. The matter went on appeal to the Court. In dealing with the scope of s 80E(7) of the Act, when read with s 97(1)(a) of the PSM Act, Wheeler and Le Miere JJ said at pars 53-56:

        The "matter" in respect of which the procedure may be prescribed pursuant to s 97(1) is the matter of the "breaching of public sector standards".  In the present case, there is a standard dealing with "Recruitment, Selection and Appointment", and that is the "matter" in respect of which the procedure is prescribed.  That matter having been dealt with by the prescribing of a procedure pursuant to s 97(1)(a), it would follow, in our view, that the jurisdiction of the Arbitrator is therefore excluded in respect of it.

As we understand it, the Full Bench considered that there were two reasons why s 80E(7) did not operate to exclude the jurisdiction of the Arbitrator in the present case.  The first is to be found in [77] of the reasons of the President, with whom Senior Commissioner Gregor agreed.  That was that the present case was not a matter "which related in any way to any Public Sector Standards, at least in the manner and in the way in which it came before and was required to be considered by the Arbitrator".  That approach reads s 80E(7) as excluding the jurisdiction of the Arbitrator only where a breach of a public sector standard is the allegation made to the Arbitrator.  However, the subsection is not framed so narrowly.  Rather, it excludes jurisdiction in relation to any "matter" in respect of which a procedure is prescribed.  That is, it excludes jurisdiction in relation to the "matter", not in relation to particular allegations.  The matter in this case is the breach of a very broad standard relating to the appointment of employees.

If the Full Bench's reasoning were correct on this point, s 80E(7) on one view would never have any work to do, since the "matter" before the Arbitrator will always be an "industrial matter" as defined by the Act, being, in effect, a matter affecting or pertaining to the work of employees, rather than a matter relating directly to breach of a public sector standard.  Since ss 7 ‑ 9 of the PSM Act are so broad in their scope, it would invariably be possible to frame a claim so as to allege breach of those principles, rather than to rely directly on breach of a public sector standard. 

While s 80E(7) is in some respects not happily phrased, and while we acknowledge that as a matter of legal principle, it is undesirable to construe too broadly provisions which limit the right of persons to approach courts and tribunals, it seems to us that, having regard to the statutory context, s 80E(7) must be read as excluding jurisdiction in respect of a matter, wherever there is a matter in respect of which a relevant standard has been prescribed and in respect of which procedures of the type described in s 97(1)(a) have been prescribed.  In this case, as we have noted, a standard has been prescribed in relation to selection and appointment, and the result of the prescription of procedures pursuant to s 97 of that standard is that the jurisdiction of the Arbitrator is excluded in relation to the whole of that "matter", regardless of the precise allegations of misconduct or unfair conduct which may be made in respect of it. 

23       By the paragraph immediately above, Wheeler and Le Miere JJ concluded that there needs to be a relevant standard that has application to the subject matter of the dispute before the Commission, and, procedures have been prescribed to deal with a breach of such a standard.  It is also clear from the Court’s decision, that there is no necessity for allegations of a specific breach of the relevant standard to be the subject matter before the Commission, for the Commission’s jurisdiction to be ousted.  It is sufficient for the operation of ss 23(2a) and 80E(7) of the Act, that the industrial matter before the Commission, concerns the subject matter of the relevant standard.

24       Also, earlier in 1999, the Full Bench considered the same issue in the context of the then public sector standard in relation to transfers of public sector employees.  In Ishmael’s case, the Full Bench heard an appeal from a decision of the Arbitrator, in which declarations were made that the Arbitrator had jurisdiction to deal with the relevant industrial matter of the alleged unfair transfer of a TAFE employee, despite the existence of a public sector standard dealing with transfers.  In his decision upholding the appeal, Sharkey P (Kenner C agreeing) said at pars 32-40:

(32) If one reads s.21(1)(a) and s.97(1)(a) of the PSMA and s.80E(7) of the Act together, the “matter”, in respect of which the Arbitrator does not have jurisdiction, is whether minimum standards of merit, equity and probity have been met in relation to this case (see CSA v Perth Theatre Trust 79 WAIG 14 at 17 (FB) and Hansard, “Legislative Council Debates and Committee”, Volume 319, 16 December 1994 at page 9920), if the appellant is right.

(33) By virtue of the prescribed standards (see paragraph (13)(c) above), transfer decisions must be equitable and must take into account “the organisation’s requirement and employee needs”. Inter alia, too, there are requirements for compliance with the standard, including the following: that the movement is at a comparable classification level, that the organisation’s employees’ needs are taken into account in the transfer decision, that the employee is notified of the transfer decision and arrangements, and that decision and processes embody the principles of natural justice.

If these requirements are breached, then there is a breach of the prescribed standard. If there is a breach of the prescribed standard, then the employee, Ms Ishmael, who complains that there is, may make a claim for review pursuant to Regulation 8 of the PSMR.

There is a prescribed procedure to obtain relief and, further, a prescribed power to prescribe relief within the meaning of s.97(1) of the PSMA.

(34) The applicant organisation (“the CSA”) at first instance, complained that Ms Ishmael, who was a Computer Systems Officer Level 2, had been appointed to a position located at the respondent’s Rockingham Campus, but on 6 April 1998, she was notified that she was to be transferred to another position located at the respondent’s Fremantle Campus. This seems to have been common ground between the parties.

Her claim was that the respondent had failed to consult with her and had “adopted an oppressive and unfair usage of its right to managerial prerogative” in seeking to transfer her. In particular, in terms of the declaration sought, it was alleged that—

“(1) ...the respondent has harshly and oppressively exercised its prerogative in that it has—

(a)  Failed to adequately consult with Ms Ishmael.

(b)  Failed to fairly and reasonably consider the objections of Ms Ishmael.

(c)  Failed to fairly and reasonably assess the systems and processes of work thereby introducing a hazardous work practice.

(2) …

(a)  the respondent failed to notify the union as to the Introduction of Change as required by clause 49 of the Government Officers Salaries Conditions and Allowances Award 1989(sic).

(b)  the respondent has attempted by vexatious means to introduce a process of work rejected by Ms Ishmael and other employees at an earlier time.

(c)  the respondent has failed in its obligations as provided by sections 8, 9, 29(1)(a), 29(1)(d), s29(1)(e), s30(b), s30(c) and s30(d) of the Public Sector Management Act.

(d)  the respondent failed to fairly and reasonably consider the International Labour Organisation 1981 Convention concerning Workers with Family Responsibilities.”

(See pages 7-8 (AB1)).

(35) The application plainly sought that the Arbitrator examine whether the minimum standards of merit, equity and probity had been met by the appellant in relation to the decision to transfer Ms Ishmael, there being the allegations that the appellant had acted “harshly”, “oppressively” and “unfairly”, to which I have referred above.

(36) The matter and even whether the right to transfer had been exercised harshly, oppressively, unfairly and vexatiously was a matter relating to whether the minimum standards of merit, equity and probity had been met by the appellant in relation to the decision to transfer Ms Ishmael.

(37) The matter was one at its core which the Arbitrator had no jurisdiction to hear and determine, it being plainly a matter exclusively within the preserve of the public sector standards and the procedures relating thereto. That is because a breach of these standards was alleged.

(38) It was submitted for the respondent that the correct application of the abovementioned provisions is that the Arbitrator has jurisdiction to deal with a matter relating to a transfer which does not involve a breach of the transfer standard.

That is, of course, what s.97 of the PSMA prescribes. The section does not oust the jurisdiction conferred on the Arbitrator, otherwise, by s.80E or on the Commission by s.23(2a) of the Act.

Further, a breach of a public sector standard occurs where one or more of the compliance requirements stipulated by the standard are not met. The transfer requirements are what determines whether there is a breach of the standard or not. The compliance requirements are the core of the standard.

(39) In my opinion, the needs of the employer and employee require that each treats the other fairly. Accordingly, that is a requirement for compliance and a component of the standard and a breach of that requirement is not within the jurisdiction of the Arbitrator. There is, however, clearly and unequivocally, having regard to the words of s.97(1)(a) of the PSMA and s.80E(7) of the Act, a jurisdiction to deal with matters relating to the transfer which does not involve a breach of the transfer standard.

(40) For those reasons, the fairness or otherwise of the appellant’s conduct in transferring Ms Ishmael would be excluded from the Arbitrator’s jurisdiction. 

25       One qualification to the decision of the Full Bench in Ishmael’s case, decided by the Court in Department of Justice, is that it is not permissible for the Commission to deal with specific matters, not involving a breach of a relevant standard, that may be before the Commission.  The effect of ss 23(2a) and 80E(7) of the Act is to remove the jurisdiction of the Commission and the Arbitrator completely, over the relevant subject matter of the standard.

26       In the present case, the relevant industrial matter referred for hearing and determination under s 44(9) of the Act, is an allegation that the forced transfer of Officer Billings is harsh, oppressive and unfair.   It is important, for reasons which will become apparent shortly, to characterise the circumstances in which the relevant events took place, leading to the proposal by the Minister to transfer Officer Billings.  As the memorandum of matters referred outlines, the proposed transfer arises out of an external investigation into allegations that Officer Billings and another prison officer, engaged in workplace bullying. Grievances were raised by the prison officers who were alleged to have been bullied.  Officer Billings also raised a grievance against one of the complainants, alleging she had also acted inappropriately towards her in the workplace.

27       The Investigator concluded that Officer Billings, by her “attitude, conduct and behaviours” towards the complainants, was inappropriate, and “in breach of the Department of Corrective Services Code of Conduct, the Occupational Safety and Health Act 1984, the Department’s Workplace Grievance Management Policy, Workplace Bully (sic) and Harassment Policy”: tab 12, exhibit A1.  The Department concluded that as a consequence of these findings, that it would be “for the good governance, good order and security of Wooroloo Prison that Officer Billings be transferred to Hakea Prison”: tab 12, exhibit A1.  This reference is plainly to the powers of the Chief Executive Officer or a delegate under s 8(1) of the Prisons Act 1981, to issue such a direction for the purposes set out in s 36(3) of the Prisons Act.

28       Thus, it is quite clear, that the proposed transfer of Officer Billings, arises out of matters in the nature of disciplinary and misconduct matters, even though the formal disciplinary processes of the Department were not invoked in this case.  It is a proposed forced transfer, for the stated purpose of the good governance and good order of the prison, and for no other purpose.

29       The Court in Director General Department of Justice, found it necessary to focus on both issues of the existence of a relevant public sector standard made under s 21(1)(a) of the PSM Act and whether procedures for a breach of such a standard have been prescribed under s 97(1)(a) of the PSM Act.   In both Director General Department of Justice and Ishmael’s case, there existed a public sector standard the terms of which applied to the relevant matter before the Arbitrator in each case.  In the former, it was a standard in relation to the “matter of appointment” and in the latter, it was a general standard in relation to the “matter of transfer”.

30       To determine the jurisdictional challenge therefore, it is necessary to consider the terms of the Employment Standard and whether, it has any application to the industrial matter before the Commission in these proceedings.  Axiomatically, the terms of s 23(2a) of the Act, read with s 21(1)(a) and s 97(1)(a) of the PSM Act, can only have operation when the relevant public sector standard under consideration applies to the “matter” before the Commission.  If the standard has no application to the matter before the Commission, and thus no procedure made under s 97(1)(a) could be invoked, then it could not be the case that the Commission’s jurisdiction is ousted. If it was, the employee concerned would have no remedy at all. This would be nonsensical and could not have been the intention of the Parliament in enacting ss 23(2a) and 80E(7) of the Act.

31       The standard is entitled “The Employment Standard”. This is a broad and generic heading.  It is prefaced by a “Statement of Intent” in the following terms:

Statement of Intent

This Commissioner’s instruction (CI) establishes the minimum standards of merit, equity and probity to be complied with by the employing authority of each public sector body when filling a vacancy.

32       A further heading “Reference” then says:

Reference

When making employment decisions and exercising employment powers and functions the employing authority of each public sector body and its employees must comply with the minimum standards of merit, equity and probity established by the Commissioner under the Employment Standard, set out below, and the CI on Filling a Public Sector Vacancy.  This requirement is in addition to compliance with the PSMA (particularly section 8(1)(a), (b) and (c), section 8(3) and section 9), the Western Australian Public Sector Code of Ethics and other relevant legislation.

Supporting information produced by the Public Sector Commission may assist the employing authorities of public sector bodies fill vacancies.  Such material is explanatory and does not form part of the legislative framework.  A list of products is available at the end of this CI.

33       The body of the standard then appears under the heading “The Employment Standard” and it provides as follows:

THE EMPLOYMENT STANDARD

(EFFECTIVE ON AND FROM 21 FEBRUARY 2011)

The Employment Standard applies when filling a vacancy (by way of recruitment, selection, appointment, secondment, transfer and temporary deployment (acting)) in the Western Australian Public Sector.

The Employment Standard requires four principles to be complied with when filling a vacancy:

Merit Principle

The Western Australia Public Sector makes employment decisions based on merit.  Merit usually involves the establishment of a competitive field.

In applying the merit principle a proper assessment must take into account:

• the extent to which the person has the skills, knowledge and abilities relevant to the work related requirements and outcomes sought by the public sector body; and
• if relevant, the way in which the person carried out any previous employment or occupational duties.

Equity Principle

Employment decisions are to be impartial and free from bias, nepotism and patronage.

For secondment the employee consents.

For transfer employment conditions are comparable.

Interest Principle (applies to secondments, transfers and acting)

Decisions about an employee’s secondment, transfer or acting take account of the employee’s interests and the work related requirements of the relevant public sector body.

Transparency Principle

Decisions are to be transparent and capable of review.

34       A section then follows, called “Terminology”.  It contains a number of defined terms.  The defined terms include that for “Competitive Field”:

Competitive Field:

A field which includes more than one person who meets the requirements of the vacant position; competitive fields are generally achieved through the advertising of a vacancy.

35       Next is a definition of “Transfer” which appears as follows:

Transfer:

The permanent movement at the same classification level.  Transfers occur in accordance with the employment standard, industrial awards and agreements or other applicable legislation.

36       Furthermore “Vacancy” is defined as follows:

Vacancy:

A vacant post, office or position within the public sector.  A vacancy can result from the creation of a new office, post or position or by the temporary or permanent movement of another employee.

For redeployment purposes a vacancy is defined as all offices, posts or positions, newly created, recently vacated or to be filled on a temporary basis in excess of six months.

(My emphasis)

37       Accompanying the Employment Standard, in materials prepared by the Public Sector Commission, are attached “Questions and Answers”. They are described by the Public Sector Commission as “practical information to assist public sector bodies and their employees to understand and apply the Commissioner’s Instruction:  The Employment Standard”.  It is clear they do not form part of the standard.  Throughout the question and answers, reference is made to “vacancies” and the “filling of vacancies” by public sector bodies, in explaining the application of the Employment Standard and its requirements.

38       It is trite that in construing the terms of an instrument, it should be considered as a whole.  The meaning of each provision of the Employment Standard is to be considered in the context of its purpose and object, gathered from its provisions read in their entirety.  It is also clear from s 21 of the PSM Act, that a public sector standard has the status of delegated legislation and should therefore be interpreted in accordance with accepted canons of construction that apply to legislative instruments generally.

39       In the first paragraph of the Employment Standard, set out above, it commences with the words “The Employment Standard applies when filling a vacancy …”.  This is repeated in the second paragraph.  The reference to “filling a vacancy” is reaffirmed in the definition of “Employment Standard” in the terminology section.  Under the heading “Merit Principle” is a reference to “a competitive field”, as the preferred approach to merit based employment decisions.  The first dot point requires some consideration of the employer, in applying this principle, to have regard to the “outcomes sought” by the public sector body and the “work related requirements”.  These references can only sensibly be understood as referring to the requirements of a vacant position sought to be filled by the employer.

40       Next, is reference to the “Equity Principle”, which suggests that in filling a vacancy, an employer is required to avoid any circumstance that may suggest favouritism and, in the case of a transfer to a vacant position, the position occupied by the person to be transferred is to be comparable with the position into which he or she is to be transferred.  The next heading “Interest Principle” is seemingly confined to secondments, transfers and acting appointments. It requires some consideration of the particular interests of the transferee, and the particular features or aspects of the job that needs to be filled.  The overall sense of this provision seems to be directed towards some matching of the transferee’s interests with the requirements of the position into which they may be transferred.

41       Apart from the terms of the Employment Standard itself, the preamble to it, which I have set out above, makes clear its scope of application.  The limits of its operation are further marked out.  As noted, the “Statement of Intent”, makes it plain that the standard applies to “filling a vacancy”. The fact that the Employment Standard repeals and replaces the “Recruitment, Selection and Appointment Standard”, is a strong indicator, read with the rest of the standard, that it has application to various methods by which vacancies in the public sector may be filled.

42       Under the heading “Reference”, the public sector body, in addition to complying with the Employment Standard, is also required to comply with the “CI on Filling a Public Sector Vacancy”.  It goes without saying that other statutory obligations set out in the PSM Act will also apply.  Further reference is made to other supporting information published by the Public Sector Commission in relation to assisting public sector bodies fill vacancies.  Also, importantly, a “Vacancy” is specifically defined, as set out above.  It plainly means a vacant or unoccupied post, position or office that is required to be filled.

43       When an analysis of the Employment Standard is undertaken as set out above, the conclusion is compelling, that on its ordinary and natural meaning, the standard is a legislative instrument, directing public sector bodies that where they need to fill a vacancy in their organisation, they are obliged to do so in the manner set out in the Employment Standard.  The Employment Standard does not apply to a transfer proposed by an employer, unrelated to filling a vacancy, in my view.

44       The matter before the Commission in this case is not concerned with the process engaged in by the Minister in the “filling of a vacancy” in a prison.  The industrial matter in this case, in the language of s 23(2a) of the Act, is not a “matter” in relation to a transfer to fill a vacancy, nor an alleged breach of the Employment Standard, for these purposes.  On the evidence, there was no identified vacancy, as defined in the Employment Standard, at Hakea Prison, into which Officer Billings is proposed to be transferred. On the contrary, the reason for the proposed transfer, on the evidence, as I have set out above, is expressly stated to be for the “good governance, good order and security of Wooroloo Prison”.  The needs of Hakea Prison, let alone a need to “fill a vacancy”, are not even identified in the employer’s reason for the transfer.

45       Taken as a whole, and construing the Employment Standard consistent with settled principles of interpretation, in my view, it has no application to a “matter” dealing with the proposed transfer of a prison officer in circumstances entirely unrelated to filling a vacancy. This is so, despite reference to the general minimum standards of merit, equity and probity, which are repeated in the Employment Standard, from earlier standards.  The Employment Standard has plainly been crafted, from the ordinary and natural meaning of the language used in it, read with its supporting principles and explanatory documents, for a specific purpose.  The circumstances before the Arbitrator, and in turn before the Full Bench in Ishmael’s case, are distinguishable from those before the Commission in this matter.

46       Accordingly, I am not persuaded that the jurisdiction of the Commission is ousted in this matter, by the operation of s 23(2a) of the Act.   I will now proceed to consider the merits of the claim by the Union.

Agreed facts

47       Helpfully, the parties have prepared a Statement of Agreed Facts which is in the following terms:

Statement of Agreed Facts

1. Officer Mary Lois Billings is employed as a First Class Prison Officer at Wooroloo Prison Farm pursuant to the Prisons Act 1981 and the Prison Regulations 1982.

2. During the period of this dispute Officer Billings conditions of employment were governed by the Prison Officers Award and Department of Corrective Services Prison Officer' Enterprise Agreement 2010.  Since the 27th September 2013 the Award and the 2010 Agreement have been replaced by Department of Corrective Services Prison Officer' Enterprise Agreement 2013.

3. On 25 October 2012 the Department engaged the services of an independent external Investigator, Mr Jonathan Theodorsen to undertake an investigation into the complaints from staff at Wooroloo.

4. On Tuesday 30 October 2013 Officer Billings received a meeting invite to meet with Mr Theodorsen.

5. Officer Billings accepted the meeting invite and met with Mr Theodorsen on 7 November 2012 with Officer Mathew Wellbourne-Wood in attendance as her support person.

6. Mr Theodorsen's Grievance Investigation Report dated 13 December 2013 was forwarded to the Department of Corrective Services.

7. The Grievance Investigation Report indicated Mr Theodorsen had identified four (4) complaints involving Officer Billings had been substantiated.  The four complaints from the Report were one (1), five (5), eight (8) and fifteen (15).

• Complaint 1: On 11/8/12 Ms Billings made disparaging remarks to Ms Noakes concerning her ill-health, and later "slandered" Ms Noakes to Ms O'Neil.

• Complaint 5: On 19/5/2011 Ms Billings falsely accused Ms Barnett of improperly using a "senior officer" key to enter the Unit 3 Manager's office.

• Complaint 8: On 18/8/2011, Ms Billings spoke disparagingly about Ms Barnett in front of other officers, accusing Ms Barnett of leaving early.

• Complaint 15: On 24/11/2010 Ms Billings acted in a negative and disrespectful way towards Ms Davies.

8. On the 16th January 2013 Officer Billings received an email from the Deputy Commissioner, Heather Harker, indicating that her executive team was currently reviewing the recommendations made in Mr Theodorsen's report.

9. On the 30th January 2013 the Deputy Commissioner, Heather Harker, wrote to Officer Billings providing a preliminary outcome of the Grievance Investigation conducted by Mr Theodorsen.

 Ms Harker's letter indicated her intention to transfer Ms Billings to Hakea and provided her with an opportunity to submit in writing any reasons the Department should consider before making a final determination on the transfer.

10. A dispute was lodged by Wooroloo WAPOU representative Officer Paul Barry dated 30 January 2013 disputing the findings set out in the Deputy Commissioner's letter and alleging Officer Billings had been denied the right to natural justice.

11. Officer Billings provided the Department with her response dated 4th February 2013 alleging that she had not been afforded natural justice.

12. On February 8 2013 Officer Billings applied for copies of the findings by Mr Theodorsen and copies of any grievances or complaints lodged by Sylva Noakes, Deborah Davies and Donna Barnett.  Access to this information was refused as the requested documents disclosed third party information which was considered to be an exempt matter under clause 3(1) of Schedule 1 of the Freedom of Information Act 1992.

13. Formal correspondence dated 18 February 2013 from WAPOU advised the Department that the Union is in dispute with regard to the transfers of Officers Billing and O'Neil.

14. The Department's response dated 7 March 2013, advising WAPOU that a final decision to transfer Ms Billings and Ms O'Neil had not been made as the Department was still reviewing their submissions.  Once the Acting Deputy Commissioner, Brett McMerrin, had considered the submissions he would arrange a meeting between the Assistant Commissioner, People & Organisational Development and the Union to resolve the matters raised.

15. No meeting with the Union had taken place before correspondence was sent dated 23 May 2013 to Officer Billings notifying her of a final decision to transfer her to Hakea Prison.

16. On June 17 2013 WAPOU Industrial Officer, John Walker, and WAPOU Wooroloo Delegate, Paul Barry, met with the Department's representatives, Mr Jon Peach and Ms Ngaro Sagar, regarding the final decision to transfer Officer Billings to Hakea Prison.

17. The Department advised WAPOU that notwithstanding the arguments put by the Union the decision to transfer Officer Billings would stand.  The Department offered that it would consider a transfer to another prison of Officer Billings' choosing which she declined.  In accordance with the Dispute Management procedures the status quo remained in place whilst the transfer of Officer Billings was in dispute.

18. The unresolved dispute was referred to the Western Australian Industrial Relations Commission by the Union and a section 44 compulsory conference was held on the 5 August 2013.

19. Having heard the arguments from both parties, Commissioner Kenner made four (4) recommendations for the parties to consider.

• A copy of the Investigation Report be provided to the Union so the Union can take instructions from Officer Billings.  The Report was not to be released to any third party.

• The parties confer within 14 days.

• Consideration be given to mediate between the complainants and Officer Billings in relation to the allegations.

• That the parties report back to the Commission within 21 days.

20. The Department made enquires with the three (3) complainants as to whether they would be open to participate in mediation between themselves and Officer Billings.  Two (2) of the three complainants able to be contacted declined.

21. In accordance with the Commissioner's recommendations the parties conferred on the 19th August 2013 without reaching a resolution to the dispute.

22. The Department and WAPOU reported back to the Commissioner for further conciliation and or directions prior to being referred for arbitration.

23. A further conciliation conference was held on Wednesday 4 September 2013, resulting in the matter being referred for hearing and determination under s 44(9) of the Industrial Relations Act 1979.

24. On the 6th September Commissioner Kenner issued a Memorandum of Matters referred for Hearing and Determination.  A hearing date was set for the 13th and 14th November 2013.

Compliance by the Department with its policies

48       The Department has a number of human resource management policies in place.  Those most relevant for the purposes of dealing with this matter, were included in the agreed bundle of documents, exhibit A1. The “Bullying in the Workplace Policy Statement”, sets out the Department’s overall policy in relation to bullying behaviour in the workplace.  Under the heading “Scope” at par 4 of the Policy, is a definition of bullying which is as follows:

4. This Policy applies to all employees of the Department of Corrective Services.
Bullying behaviour:

4.1. is defined as repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's dignity at work, and creates a risk to wellbeing, health and safety

4.2. can occur between two or more employees or between an employee or employees and a manager or a person in authority and result in a workplace situation that harms, intimidates, threatens, victimises, undermines, offends, degrades or humiliates an employee or employees, whether in front of co-workers, clients, visitors, customers or alone.

4.3. Bullying does NOT include the application of legitimate authority in the workplace including:

• The legal right to direct and control how work is done;

• Monitoring workflow and providing feedback on performance; and

• Performance management when it is conducted in a constructive way and does not involve personal insults or derogatory remarks.

49       The Policy states that “The Department provides a working environment that is free from bullying, and does not condone or tolerate such behaviour”.  Employees are also obliged to ensure no bullying behaviour occurs towards other employees or persons providing or receiving departmental services.  Part of the Policy also requires the application of the principles of natural justice and procedural fairness, for both “complainants” and “respondents”.

50       There is a further document called “Bullying in the Workplace - Guidelines”.  This document restates the broad principles set out in the Policy document.  Examples of possible bullying behaviour are set out.  Procedures for reporting and managing complaints of bullying are set out. Again, reference to procedural fairness is set out in the following terms:

• In accordance with the principles of natural justice and procedural fairness the respondent will be advised of the complaint, the process to be followed, and available support mechanisms, as well as being provided with an opportunity to respond to the allegation.

• The complainant and the respondent are to be advised of progress as required.

51       A quite detailed document known as the “Workplace Grievance Management Policy” was also contained in exhibit A1. This document sets out the policy of the Department in relation to a range of grievances in the workplace, including what are described as “bullying in the workplace grievances”.  Another document, called the “Workplace Grievance Management Procedures” sets out detailed procedural steps in the reporting and management of complaints. The principles that apply to the grievance management process are described.  Included are references to both complainants and respondents being informed of their rights as to the grievance process and the procedural fairness obligation, as set out above, is largely restated.

52       The Procedure refers to broad processes, both informal and formal.  There is an obligation on all staff to attempt an informal resolution of a grievance.  These steps involve direct contact between the complainant and respondent as a first stage, followed by assistance from management as a second.  If the grievance is still unresolved, a formal process can then take place.  The Procedures provide that “The formal process only occurs when all avenues for resolution through the informal process have been exhausted”.  Importantly also for present purposes, a formal grievance cannot be submitted in relation to allegations that have occurred greater than 12 months prior.  The significance of this requirement will become apparent later in these reasons.

53       A further step is the determination by senior management. This involves an assessment as to whether all informal attempts to resolve the matter at hand have been explored.  If not, the matter may be remitted back to the relevant line manager for further action.  If informal resolution has been exhausted, the grievance is then progressed to the next, and final, level.  At this formal level, called “Step 5”, the relevant Director is to arrange to meet the respondent and provide the formal grievance to them.  A response is to be obtained. Having considered the grievance and the respondent’s response to it, a decision can be made in relation to the grievance.  If a conclusion cannot be reached, an independent investigator can be appointed to investigate the complaint, at that stage.  Once the independent investigation has taken place, the outcome of the investigation is to be provided to senior management for a decision.

54       In this case, the Minister accepts that the Department did not comply with the Procedures in that the informal grievance process was not followed.  Mr Peach, the Assistant Commissioner Custodial Operations, to his credit, acknowledged this.  This was said, by Superintendent Hedges, in his memorandum of 18 October 2012, setting out his decision to proceed directly to the formal processes in the Policies and Procedures (tab 4, exhibit A1) to be because of the large number of complaints at the prison, over an extended period of time.  The consequence of this step, and issues of compliance more generally with the Policy and Procedures, is a matter I will return to later in these reasons.   Suffice to say at this stage, it was Officer Billings’ unchallenged testimony, that the first she became aware of the specific allegations against her by Officers’ Noakes and Davies, was when she attended her interview with the Investigator.  Additionally it was also common ground that the first time that Officer Billings saw the conclusions of the Investigator, set out in his Investigation Report, upon which the Minister made his decision to forcibly transfer her, was after the first s 44 compulsory conference before the Commission in these proceedings.

55       On the basis of this evidence, it is clear that the four allegations against Officer Billings made by the other officers as “complainants”, and the subject of a formal investigation, were never put to Officer Billings in accordance with the Procedures.  To that extent, Officer Billings was clearly denied natural justice.  This was directly contrary to the Policy and Procedures that I have set out above. Further, it was also the case on the evidence that three of the four allegations against Officer Billings, those being complaints 5, 8 and 15, as set out in the Investigation Report, occurred more than 12 months prior to the commencement of the formal grievance process, and the appointment of the Investigator. Accordingly, by pars 12.1.3 and 12.1.4 of the Procedures, the submission of these particular complaints for investigation, was also contrary to the Procedures.

56       Both the Policy and the Procedures are formal documents of the Department. They set out standards of conduct and behaviour by all persons covered by them. They are approved by the Chief Executive Officer and are drawn in terms that require them to be read with relevant legislation and other policies and procedures of the Department.  By submitting allegations, as a formal grievance, to be the subject of a formal investigation, outside of the established time limits, the Department acted in breach of its Policy and Procedures. Whilst such non-compliance with a policy, as opposed to a statutory obligation, would not render any decision or action ultra vires, at the very least, any such decision should be regarded as unfair.  There are a number of reasons why such a conclusion should follow.

57       Unlike public sector standards or codes of ethics made under s 21 of the PSM Act, the Policies and Procedures do not have statutory effect.  As a general rule, policies that are not embodied in legislation do not have legal standing in their own right: see Pearce D, “Courts, Tribunals and Government Policy” (1980) 11(2) Federal Law Review 203.  The doctrine of ultra vires is generally limited to circumstances where a decision maker has acted contrary to a mandatory procedural requirement.  However, just because, in this case, the Policies and Procedures do not have legislative effect, does not mean that the Department is free to depart from them without consequence. Requirements imposed by documents such as the Policies and Procedures operate in an important area of the employment relationship.  Employees of the Minister are required to submit to them and there may be disciplinary consequences if they do not comply with specific obligations imposed.

58       Consequently, employees bound by such policies have a legitimate expectation that the employer will also comply with its obligations under them.  A legitimate expectation has been held to be recognised and incorporated into the obligation of procedural fairness: Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 (see also Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273).  In particular, in cases where procedural rights are contained in government policies, persons subject to those policies will have a legitimate expectation that such rights will be afforded to them: Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648; The Attorney General v Ng Yuen Shiu also known as Ng Kam Shing [1983] 2 AC 629; R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40.

59       It is not just in immigration type cases or those between a government department and a member of the public, that these principles will have application.   In McDade v State Rail Authority (1985) 10 IR 225, the plaintiff was a legal officer employed by the defendant, who sought promotion to a higher level position. The plaintiff was unsuccessful, and another candidate was appointed to the position.  The promotion process involved a selection committee, which interviewed candidates and made recommendations to the senior executive for the appointment.  The plaintiff contended the selection committee was biased in that it failed to follow established guidelines and afford him an unbiased hearing, and sought an order to quash the decision.  In upholding  the plaintiff’s claim, and referring to his legitimate expectations,  Lee J, after referring to Khan and other cases said at 233-243:

     The very procedures themselves established by the Authority contemplate that a proper and fair investigation into an applicant's claim for promotion is required, and will be given. This is not to say that the Authority cannot, at any time, alter those procedures anymore than it could have been said in Attorney-General of Hong Kong v Ng Yuen Shiu (supra) or in R v Secretary of State (supra), that the undertakings given in those cases could not have been withdrawn before they were acted on. But the fact that the machinery for promotion in cases to which reg 10 applied had, for a number of years, included a selection committee (it is referred to in a document dated 27 June 1980 and headed "Guidelines for the Application of Staff Regulation under the Transport Authorities Act 1980", ex B) and that the guidelines of 1984, which required selection committees to be established on the lines of the guidelines, were operating and in force at the time the plaintiff lodged his application for the position, in my view constituted an offer or promise by the Authority that those procedures would be observed in dealing with the plaintiff's application. A hearing before a selection committee was held out as an integral part of the Authority's decision making process in regard to promotions. In short, the Authority was holding out or undertaking to all its employees applying for promotion that in the exercise of its power to promote, those procedures would be observed, just as the decision making authorities in Attorney-General of Hong Kong v Ng Yuen Shiu and R v Secretary of State were respectively undertaking that the power each was exercising would not be exercised except in accordance with the procedures that had been specified. The plaintiff thus had a legitimate expectation that a hearing by a selection committee would be afforded, and the rules of natural justice thus required that he be given that hearing.

60       In my view, those observations equally apply to the Minister and the Department in terms of undertakings given in policies as to how they will be applied.  In particular, in relation to the commitment to abide by the principles of natural justice and procedural fairness stated in the Policies and Procedures, to then not comply with those fundamental obligations, must be regarded as particularly unfair. Whilst the above cases, in the main, deal with administrative law remedies, mainly judicial review, the underlying principles in relation to a failure to comply with established policies, are matters relevant to the fairness of the employer’s actions in this case.

61       I will now turn to consider the specific allegations made against Officer Billings.

Allegations

62       As to the specific allegations against Officer Billings, she was the only person to give evidence.  The complainants, Officers Noakes, Davies and others did not give evidence.  Therefore the Commission only has the benefit of the sworn testimony of Officer Billings, against which to assess the allegations, and the content of the Investigation Report.

63       As noted at the outset of these reasons, Officer Billings is a first class Prison Officer and has been employed in the prison service for 34 years.  According to Officer Billings, there has been some staff conflict at Wooroloo Prison Farm for some time prior to the events of late 2012.  She herself had lodged a formal grievance complaint against one of the complainants, Officer Davies, in 2011.  She also had lodged her own complaint in relation to the behaviour of Officer Noakes. Officer Billings informed the Investigator of this workplace conflict, and her own complaints, in her interview of 7 November 2012.  It seems that these grievances raised by Officer Billings, have yet to be resolved.  She also told the Investigator that a number of allegations of staff bullying have previously been made against a Senior Prison Officer at Wooroloo Prison Farm, which have led in her view, to a number of prison officers leaving the prison.

64       In September 2012, Officer Billings said she was approached by the occupational health and safety representative in the workplace, to ask her whether she would be prepared to mediate her differences with Officer Noakes, arising from an incident involving herself, Officer O’Neil, and Officers Noakes and Wall.  In this incident, Officer Billings said that Officer Noakes had told her to “f… off” in the presence of prisoners.  In connection with the same incident, Officer Billings testified that Officer Noakes moved towards her aggressively and she thought she was going to punch her, as she was very angry.  This stemmed from an earlier event where Officer Noakes thought that both Officers Billings and O’Neil had been talking about her.  Officer Billings also said she had a conversation with Superintendent Hedges in September 2012, in which he was alleged to have told her that he would transfer her if he had to.  Superintendent Hedges had no recollection of this in his evidence.  He testified that in any event, he had no power to transfer a prison officer, as this was ultimately a decision for the senior executive of the Department.

65       By this time, Officer Billings said that she had become concerned as she had not seen any written allegations against her.

66       The next that she heard of any of these matters, was in an email from Ms Ruane of the Department, advising her of an interview with the Investigator, to take place on 7 November 2012.  This email mentioned the referral of alleged bullying claims by Superintendent Hedges for investigation. This refers to the memorandum from Superintendent Hedges, mentioned above. In the memorandum, Superintendent Hedges refers to a meeting the day prior to 18 October, and the conclusion “that due to the volume of complaints over an extended period of time, they should be investigated through the formal grievance process, bypassing the informal process”.  It should be emphasised at this point, that Officer Billings had no idea that specific complaints had been made about her conduct.  As noted above however, Officer Billings had made complaints against Officers Davies and Noakes.  With this background in mind, the email from Ms Ruane, which was exhibit A2, formal parts omitted, was in the following terms:

Adult Custodial Human Resources (Head Office) have recently received alleged bullying claims from the Acting Superintendent John Hedges.  As a result it was determined that an independent external investigator be asked to review these claims.

The initial step is for John Theodorsen, Investigator (appointed under the HRCUA) to meet individually with each person mentioned in the claims.

One of the claims of the alleged incidents was submitted by you and therefore I am contact you to advise of the upcoming process.  The above time has been scheduled for you to meet with the investigator at the location mentioned below.

This meeting will enable John to understand your perspective of the situation.  It is recommended that you allow 1.5 – 2 hours for this meeting.

You are welcome to bring an appropriate support person to the meeting.  A support person may be a trusted colleague or friend.  The support person cannot act as an advocate and legal representation is not permitted

All parties are reminded that this process is strictly confidential.

67       Officer Billings’ testimony was she thought this request to attend an interview with the Investigator, was in relation to the complaint she had lodged against the other officers. This is entirely understandable as the email says nothing of complaints made by other officers against Officer Billings, as a respondent.  It does however specifically refer to her complaint.  Officer Billings said she had no information from administration about any complaints against her and had no idea what she had to answer, prior to the interview with the Investigator. Therefore, it is open to find, and I do find, that prior to attending the investigation interview, Officer Billings was not made specifically aware that she was a respondent to the complaints which were the subject of the investigation.  She had every reasonable expectation that she was attending for the purposes of discussing her own complaints against other officers.

68       Officer Billings attended the interview with the Investigator, Mr Theodorsen on 7 November 2012.  She had another officer, Officer Welbourne-Wood with her for support. Prior to the start of the interview, Officer Billings said she briefly saw a document called “Consent to Release Information” and signed it.  It was at tab 5 of exhibit A1. This contains a one page summary of the purpose and process of the investigation.  Mr Theodorsen in his testimony confirmed that he went through this sheet with Officer Billings prior to the interview commencing.  He did not however, tell her she was a respondent to some of the complaints, nor provide any detail of the complaints at that stage.   Mr Theodorsen testified that he would do this once the recorded interview commenced. Therefore, up until the point of the commencement of the recorded interview, Officer Billings was still not aware of the specific allegations against her.  From the transcription of the interview, the allegations against Officer Billings are developed, one by one.  As a general observation, Officer Billings said that she answered the questions from the Investigator honestly but had trouble with recollection, given that some of the matters related to events two years prior, combined with the fact that she had no prior notice of the allegations.

69       Given the way in which the evidence unfolded, I will deal with each of the specific allegations against Officer Billings that were upheld by the Investigator, in turn.  For the purposes of their identification, I will use the numbering as adopted by the Investigator in his Investigation Report, which was exhibit A6.  The three complainants identified in the Report are Officers Noakes, Barnett, and Davies.

Allegation 1 – 11/8/12

70       By this allegation, it was said that:

On 11/8/2012, Ms BILLINGS made disparaging remarks to Ms NOAKES concerning her ill-health, and later "slandered" Ms NOAKES to Ms O'NEIL.

71       As to this allegation, which falls inside the 12 month time limit set out in par 12.1.4 of the Procedures, Officer Billings testified that she was working in Unit 3 on this day.  Officer Noakes had come to work with the flu.  According to Officer Billings, Officer Noakes had taken a lot of time off on sick leave prior to this time.  This seemed not to be in dispute.  Officer Billings had also provided considerable support to Officer Noakes, as a support person, in the past.  Additionally, Officer Billings told the Investigator in her interview, that Officer Noakes had a long history of leaving work early, prior to the completion of her shifts. She told him that this placed extra pressure on the officers remaining on the shift, who had to cover the extra duties, especially when the prison was short staffed.  From the tenor of the remarks to the Investigator, this was obviously an issue of concern for Officer Billings, and others too it seems.

72       The absences of Officer Noakes by way of early shift completion were confirmed to a large extent, by a statutory declaration of Senior Prison Officer Barry from Wooroloo Prison Farm, tendered as exhibit A11.  According to Senior Officer Barry, from information obtained from the prison’s human resources department, in the period 12 May 2011 to 13 September 2012, Officer Noakes had left work prior to completing her shift on 22 occasions. Officer Billings said in her evidence, that Officer Noakes had also had some health problems in the past and had been unwell.  Given the amount of time off that Officer Noakes had had in the past, Officer Billings said she suspected that all the absences may not be completely genuine.  She asked Officer Noakes on the day in question, if she had her pay docked when she was away.  Officer Noakes said that she did not.  Officer Billings said she asked this because she was aware that Officer Noakes had used all her sick leave for her prior medical problems.  On that particular day, Officer Billings accepted that Officer Noakes was not well and thought she should not have been at work at all.

73       Officer Billings testified that she and Officer O’Neil then either went to or returned from the lunch room, to supervise prisoners.  As they were doing this, Officer Billings admitted she said to Officer O’Neil words to the effect that “she was disgusted that Sylvia (Officer Noakes) was going home early all the time”.  Officer Billings said this privately to Officer O’Neil.  It seems however, that Officer Noakes must have overhead their conversation when following behind them.  Officer Billings denied that she was disparaging Officer Noakes.  She said that, as a support person for 20 odd years, she had given Officer Noakes a lot of support in the past.

74       In the absence of evidence from Officer Noakes, the Commission can only proceed on the basis of statements made to the Investigator.  Of course, those statements were not made under oath or affirmation and Officer Noakes has not been subjected to cross examination in these proceedings. On p 6 of the Investigation Report, appears a summary of Officer Noakes’ allegations.  Reference is made to Officer Billings raising the issue of whether Officer Noakes is penalised for going home early.  Reference was made to Officer Billings suggesting an eight hour job elsewhere may be more suitable for Prison Officer Noakes. In response to a question about whether Officer Noakes sought permission for leaving early and her absences, Officer Noakes replied that she did. As to overhearing the conversation between Officer Billings and O’Neil, Officer Noakes said in her interview “so I was catching up and Miss O’Neil and Miss Billings were walking in front of me and I started hearing Miss Billings say ‘oh well it’s Sylvia’s own fault, you know, she’s in that position’ and I thought, what’s she talking about and then she was talking about how I was always sick and I left it at that …”

75       Officer O’Neil also gave evidence in these proceedings. She testified that all Officer Billings said to her was that Officer Noakes was sick again and was always going home early.  Officer Noakes was not included in this conversation.  Officer O’Neil said she never heard Officer Noakes being “slandered”.  Officers Billings and O’Neil’s comments to the Investigator were noted on pp 7-8 of the Investigation Report, and are generally consistent with this description of the event.  Officer O’Neil told the Investigator that she also told Officer Billings (in the absence of Officer Noakes), that she also had “had enough” of Officer Noakes leaving early and other officers having to “pick up the slack”.  Officer O’Neil also told the Investigator that Officer Noakes should have stayed home sick that particular day, given someone else the overtime, and come back to work when she was feeling better. Officer O’Neil also said in her evidence, that it was common knowledge that Officer Noakes often went home early.

76       At pp 35-36 of the Investigation Report, the Investigator concluded that Officer Billings, in the context of Officer Noakes being unwell on the day in question, and with knowledge of her prior health problems, was insensitive in her remarks.  In this respect, the Investigator concluded that Officer Billings had breached the Department’s Code of Conduct, which requires colleagues to treat each other “with respect, dignity, courtesy, honesty and fairness and with due regard for their interests, rights, safety and welfare.”

77       In assessing this allegation, context is very important. Whilst the Investigator seems to have had regard to the circumstances of Officer Noakes, which he was entitled to do, with due respect, he paid no regard at all to the context of the remarks from the perspective of Officers Billings and O’Neil.  The context, from their perspective, was that Officer Noakes had a long history of absences from work. In particular, was the evidence that Officer Noakes had numerous occasions on which she failed to complete her shift and left work, often early in the afternoon.  This would, as a matter of common sense, place additional burdens on other officers in their duties for the rest of their shifts.  As a matter of logic and common sense also, from a workplace relations perspective, this can cause some resentment amongst employees. This was clear in the statement by Officer O’Neil to the Investigator.  A balanced consideration of this allegation, required a weighing up of these matters, and an assessment as to whether, having regard to all of the circumstances, the complaint could be established.  No doubt from the perspective of Officers Billings and O’Neil, Officer Noakes, in regularly absenting herself from work by not completing shifts, and placing greater work burdens on others, was not having due regard for their interests or welfare under the Code either.

78       Whilst the evidence before the Commission was to the effect that Officer Billings can, at times, be blunt and direct in her style of communication, and is a “stickler” for compliance with the rules, to find a breach of the Code, in the full context of these events, was, in my view, harsh. 

Allegation 5 – 19/5/11

79       By this allegation, it was said that:

On 19/5/2011, Ms BILLINGS falsely accused Ms BARNETT of improperly using a "senior officer" key to enter the Unit 3 Manager's office.

80       The first observation to make in relation to this complaint is that it was invalid, as being outside of the time limit provided for in par 12.1.4 of the Procedures.  The allegation is unrelated to any of the other allegations against Officer Billings.  Therefore, par 12.1.3 of the Procedures had no application. 

81       Irrespective of my conclusions just expressed, I will consider the allegation in light of the evidence before the Commission.   Officer Billings testified that on the day in question, she was in between Unit 3 and Unit 4.  She was walking back towards Unit 3.  Officer Billings saw Officer Barnett standing in front of the door to the Senior Officer’s office.  Officer Billings said that only the Senior Officer could unlock this office.  She testified that she saw Officer Barnett make a hand gesture as if unlocking the door, and thought this was with a key.  Officer Billings thought this was “illegal”.  She also considered Officer Barnett had the means to cut a key to the office, as she had been in the security area cutting keys.  Officer Billings was also aware that Officer Barnett was friendly with the Senior Officer.

82       In terms of her response to this complaint, Officer Billings said that prison officers have a duty to report suspicious security matters.  She said that this obligation was “drummed into us when we were at school”.   Officer Billings said she did not report the matter directly, but when speaking to Officer Collier in security about a prisoner matter, she asked whether Officer Barnett had a key to the Senior Officer’s office.  This then led to a meeting between Officer Billings, Mr Bond and Ms Birch in administration.  As a result of this meeting, Officer Billings realised that she had made a mistake as to her impression that Officer Barnett had a key to the Senior Officer’s office.  After inspecting the door to the office, Officer Billings apologised for her mistake and thought the matter would go no further.

83       In relation to her reporting of this incident, Officer Billings was taken in her evidence to the Department’s “Reporting and Management of Suspected Misconduct and/or Criminal Activity by Employees Policy”. A copy of the Policy was at tab 27 in exhibit A1. By par 1.2, it provides that the purpose of the Policy is “to establish clear parameters and procedures for all employees of the Department for the immediate reporting and management of suspected misconduct and/or criminal activity committed by employees.” Clause 1.2 goes on to provide that “The Department acknowledges and values … employees who report suspected misconduct” and “is committed to protecting and supporting these employees.”  By cl 5.1 the policy requires all employees to “immediately report all matters which they suspect involve misconduct and/or criminal activity by staff, including those matters in which they are involved, they observe, or of which they otherwise become aware.”  A general duty of confidentiality is set out in cl 5.3.  It provides that if confidentiality cannot be maintained, the employee concerned will be notified prior to this occurring, and provided appropriate support.  Officer Billings testified that despite this allegation being disclosed, she was not contacted by the Department and was not given any support.

84       As to this matter, Officer Barnett told the Investigator that Senior Officer Curtis had requested she go to his office to do his “PADS”.  This is a form of assessment/performance reporting tool.  Officer Barnett said she knocked on the window to the door, and as it was unlocked, she went in.  After leaving the office, Officer Barnett became aware that someone had made a complaint that she had let herself into the office with a key.  Officer Billings informed the Investigator that she had been wrong about the key.  She could not recall at the time whether she made a formal complaint, but recollected she raised the matter with Mr Collier, who was in security at the time.  She told the Investigator that she did not raise the matter with Officer Barnett, because she did not trust her.  She also suspected Officer Barnett and Senior Officer Curtis were having an inappropriate relationship. Officer Billings also did not want to raise it with Senior Officer Curtis, for fear of retribution.

85       As to this incident, the Investigator concluded at pp 38-39 of the Investigation Report, that it was “not appropriate for Ms Billings to make a formal complaint in circumstances where her concerns could have been resolved by simply talking to Ms Barnett or Senior Officer Mr Curtis.” The Investigator concluded Officer Billings was “not motivated by genuine concern and the approach she took was not respectful, courteous or professional.”

86       It is apparent from the Investigation Report, and Mr Theodorsen’s evidence in these proceedings, that he was not made aware of the Misconduct Policy or obligations on a prison officer under s 12(b) of the Prisons Act 1981, to report suspected misconduct or conduct which may jeopardise the security of a prison.  In my view, given the nature of this allegation, and the presumed knowledge by the Department of these matters, these matters should have been drawn to the Investigator’s attention by the Department, as part of his investigation into this allegation.  Had this occurred, the conclusion of the Investigator in relation to this particular allegation was not one reasonably open in my view.  The obligation on a prison officer by cl 5.1 of the Misconduct Policy is to report all suspected misconduct, including that which may be observed.  To “suspect” something, is to “have an impression of the existence or presence of (danger, a plot, foul play, collusion, a casual relation); believe without adequate proof ...” (see Sykes JB, The Concise Oxford Dictionary of Current English (7th ed revised, 1982) 1075). 

87       In my opinion, there was nothing vexatious or malicious about Officer Billings’ conduct in relation to this matter.  She had an impression from what she saw that there may have been an act of misconduct, which she was obliged by the Misconduct Policy and to the Prisons Act to report.  The fact that the observation or impression may turn out to be incorrect, is immaterial. Also, the fact that Officer Billings promptly realised her error, and apologised for her raising the matter, is quite at odds with any conclusion of malicious or vexatious intent.  For the foregoing reasons, this allegation is not established.

Allegation 8 – 18/8/11

88       Allegation 8 was in the following terms:

18/8/2011, Ms BILLINGS spoke disparagingly about Ms BARNETT in front of other officers, accusing Ms BARNETT of leaving early.

89       As with allegation 5, this complaint relates to an incident that occurred more than 12 months earlier than the formal grievance process and was therefore invalidly submitted to the Investigator for consideration.  Regardless of this, I will, as for allegation 5, consider the evidence.

90       Officer Barnett informed the Investigator that a couple of days prior to the incident, she had a long day with a difficult prisoner escort. The following day, Officer Barnett said she requested to leave early and permission was granted.  She said she left approximately one hour early that day.  Officer Barnett then told the Investigator that she had “heard from another prison officer that Officer Billings had been mouthing off at her”. Officer Billings told the Investigator that she could not recall this incident on the day alleged, but may have spoken about Officer Barnett in front of others.  She told the Investigator of her general concerns about officers leaving early and the problems this creates for others, in terms of increasing their workload.  In her testimony, Officer Billings said on checking, she was not at the prison on 18 August 2011, as she had taken bereavement leave for the day. The sign-on sheet for the prison for 18 August 2011, which was exhibit A 12, supports this as it shows Officer Billings was replaced by another officer for the full shift from 0700 to 1840 hours.

91       Based on the statements, even though the observations of Officer Barnett were hearsay, the Investigator concluded at p 40 of the Investigation Report that “it is most probable that Ms Billings did speak disparagingly about Ms Barnett.”  Given the statements made by Officer Billings to the Investigator, in the context of her concerns as to prison officers generally leaving work early, despite apparent error on the date, it is possible such a conclusion might be reasonably open. However, the allegation is most general.  There was nothing specifically identified that Officer Billings was alleged to have said to others.  In any event, as the complaint was brought contrary to the Policy and Procedures, it must be held to also be invalid.

Allegation 15 – 24/11/10

92       The terms of this complaint were as follows:

On 24/11/2010, Ms BILLINGS acted in a negative and disrespectful way towards Ms DAVIES.

93       This complaint was almost two years prior to the formal grievance process commencing. It is therefore very substantially out of time and invalid.  Regardless, as with the other two out of time allegations, I will assess the evidence.

94       Officer Davies told the Investigator that as she went through the door to go to work on the day in question, Officer Billings was alleged to have said words to the effect “oh well this is going to be a really interesting day, isn’t it?”.  Officer Davies told the Investigator that this was put in a “derogatory tone”. Officer Davies said another officer, Officer Kelly was present.  Whilst there was no statement to the Investigator from Officer Kelly, because he was not interviewed, Officer Davies is recorded as saying that on being spoken to Officer Kelly had no recollection of the incident. Additionally, and curiously, Officer Davies added in her statement to the Investigator “these are nothing incidents really, but they are just there all the time”.  One wonders, given this comment, as to the genuine seriousness attached to them by some of the complainants.

95       Officer Billings’ response to the Investigator was that she did recall this matter.  She said she received a Regular Monitoring Form from the acting Principal Officer. An RMF is a tool used to record information in relation to an employee’s performance.  It was alleged that she had made this remark to Officer Davies.  Officer Billings told the Principal Officer she had no recollection of this and refused to sign the RMF.   The RMF also had no date or time on it.  It was retyped at least twice. Officer Billings told the Principal Officer that he would need to speak to Officer Kelly, who was present.  Ultimately, Officer Billings said she was “fed up” with the whole process, so just signed the form. The Principal Officer then interviewed Officer Kelly, who said that the incident did not occur.

96       In her evidence, Officer Billings said that additionally, there was an attempt at mediation with Officer Davies at this time.  Officer Billings agreed to do so.  She said it was a “disaster”.  Officer Billings testified that it ended with Officer Davies “threatening to get me every time she was at work … she threatened to report every move I made every time she came to work, which is exactly what happened, and so consequently, I ended up putting in a grievance against her”:  T 19.

97       In relation to this incident, Officer Kelly was called to give evidence.  He said that he also received a RMF, because as the Senior Officer on the day in question, he was alleged to have failed to manage staff properly.  Officer Kelly said he never saw any such incident and objected to the RMF. As the Senior Officer, he testified that he also should have been informed of any incident and he was not.  Officer Kelly informed the Principal Officer that no such incident took place.  He then went to see then then Superintendent, Mr Florence who, on hearing the issue explained, agreed with Officer Kelly and “ripped up the RMF and threw it in his bin”: T 73.

98       In the findings on this issue at p 42 of the Investigation Report, the Investigator referred to Officer Billings signing the RMF because she was fed up with the whole process.  Reference was made to Officer Billings not denying the incident but not recalling it. The Investigator concluded that “there were not [sic] independent witnesses.”  This is not correct.  Officer Kelly was present at the time, but he was not interviewed by the Investigator. I have no reason to doubt Officer Kelly’s evidence. The fact that he pursued the matter through to Superintendent Florence, and his own RMF was destroyed, is of some significance.  I am not persuaded, on the basis of all of the evidence before the Commission, that the allegation against Officer Billings could be sustained on the balance of probabilities.  This is so even if it were otherwise validly brought under the Policy and Procedures, which it was not.

Outcome of disciplinary investigation

99       On 16 January 2013 Officer Billings received an email from Ms Harker, the Deputy Commissioner Adult Custodial, informing her that the Investigator had provided his final report and recommendations to the Department. In the Investigation Report, in the section headed “Overall Findings” at p 43, the Investigator concluded that on the basis of the four complaints against Officer Billings that were established, the conduct constituted a breach of the Code of Conduct. The Investigator also found that Officer Billings acted insensitively towards Officer Noakes. He also concluded that “It is open to conclude, on the evidence, that Ms Billings is probably engaging in behaviour that meets the definition of workplace bullying”.

100    In the section of the Investigation Report headed “Investigation Summary and Recommendations”, the Investigator restated his findings on each complaint and the conclusion that Officer Billings “probably” engaged in workplace bullying behaviour.  In relation to recommendations, the Investigator recommended that:

(a)         Action be taken to eliminate the risk to health and safety to Officers Noakes, Barnett and Davies; and

(b)        Officer Billings be advised of the findings made, and disciplinary action be considered under the Department’s Misconduct and Disciplinary Policies.

101    As a result of consideration of the Investigation Report, Superintendent Hedges, in a memorandum of 19 December 2012, made recommendations to senior management of the Department, to transfer Prison Officers Billings and O’Neil to another prison (see tab 6 exhibit A1).  Superintendent Hedges also recommended that Officers Noakes and Davies be “medically assessed” as to their suitability to continue as prison officers.  Superintendent Hedges in his testimony said he made these recommendations so that all involved could “move on” from the issues in the workplace at Wooroloo Prison Farm. Additionally, Superintendent Hedges referred to some comments by staff that management had not resolved these long standing issues in the past, and therefore, this raised questions as to its credibility.

102    By letter of 30 January 2013 (see tab 8 exhibit A1) Officer Billings was informed by Ms Harker that based on the Investigation Report conclusions reached that she had “breached the Department of Corrective Services’ (The Department) Code of Conduct, the OSH Act 1984, Department of Corrective Services’ Workplace Grievance Management Policy, (sic) Workplace Bullying and Harassment Policy”, that Officer Billings was to be transferred to Hakea Prison. Officer Billings testified that she “was shattered” to receive this letter.  She said that she had been found in “breach” of various requirements, but no-one had told her how. Officer Billings was required to respond to the proposed transfer to Hakea Prison within five days, without still having the allegations of misconduct put to her.

103    By letter of 4 February 2013 to Superintendent Hedges (exhibit A4), Officer Billings responded to Ms Harker’s letter.  In it she emphasised the lack of natural justice in the process in not having been made aware of the allegations against her.  She also emphasised her long period of service, and that if she was required to transfer to Hakea Prison, she would have no option but to leave the prison service.

104    The issue of the proposed transfer of Officer Billings was then placed in dispute by the Union. Having considered various issues, the Department maintained its view that Officer Billings should be transferred to Hakea Prison and that the final decision was communicated to her by letter of 23 May 2013 (see tab 12, exhibit A1).  In terms of this final decision, Mr Peach gave evidence that the view was taken that it was important for there to be a “fresh start” at Wooroloo Prison Farm, given the history of interpersonal conflicts amongst staff in the past. As with Superintendent Hedges, Mr Peach expressed the view that the issues also raised the credibility of management. However, Mr Peach, again to his credit, accepted that the letter to Officer Billings in relation to “breaches” of the OSH Act etc was not accurate, given that there had been no “charges” of the same, made against Officer Billings.

Conclusions

105    For the following reasons, the decision of the Minister to forcibly transfer Officer Billings was harsh, oppressive and unfair.  There can be no question that in investigating and reaching conclusions in relation to the allegations against Officer Billings, the Minister and the Department were required to observe the principles of natural justice and procedural fairness.   Not only do the Policies and Procedures of the Department themselves refer to this principle, as a matter of law and industrial principle, Officer Billings was entitled to be treated fairly.  This is particularly so in cases where a person may be adversely affected by the decision of a decision maker. Additionally, Officer Billings had a legitimate expectation that the terms of the Policies and Procedures would be applied to her, just as she was obliged to comply with them.

106    In The Department of Education and Training v Weygers (2009) 89 WAIG 267, the Full Bench of the Commission set out some general principles in relation to the application of procedural fairness at pars 30-40.  The onus is on the Union to establish a breach of procedural fairness.  I am well satisfied that the onus has been discharged in this case.

107    In my view, on balance, it has been established by the Union, that the Department failed to comply with the Policies and Procedures in a number of substantial respects.  The first was to proceed directly to the formal process under the Policy and Procedures for dealing with the relevant grievances. Whilst Superintendent Hedges and others, referred to some longstanding tensions and allegations in the workplace at Wooroloo Prison Farm, and the need for an impartial and independent investigation, the Policy and Procedures do place emphasis on local, workplace resolution of grievances, as far as practicable.  This is sensible and is recognition of the fact that the best level to resolve such matters, is at their source.  It is also important to note that at all material times, Officer Billings was willing to try to resolve issues in this way.

108    Next, and significantly, is the fact that three of the four allegations sustained against Officer Billings, as a result of the investigation, fell outside of the time limits the Department itself prescribed in the Policy and Procedures.  These time periods in cls 12.1.3 and 12.1.4 of the Procedures, are expressed in mandatory language such as “must” and “cannot be”.  As noted above, whilst as a matter of law, the Policy and Procedures may not have legislative effect, in the sense of action outside of them being ultra vires such non-compliance certainly constitutes unfair action against Officer Billings, in an industrial sense.  I also note the requirements of s 8 of the PSM Act, in relation to human resource management principles. Section 8(1)(c), requires all employees to be treated fairly and consistently, and are not to be subjected to arbitrary or capricious administrative acts.  Additionally, there is nothing in the Prisons Act to suggest that the Commission cannot exercise its general powers under s 23 of the Act to enquire into and deal with a dispute as to an industrial matter, arising from the exercise of a power by the chief executive officer of the Department under s 36(3) of the Prisons Act: Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch v Mt Newman Mining Co Pty Ltd (1989) 69 WAIG 1036.

109    Also, as outlined above in some detail, for Officer Billings to not have had the details of the allegations ever put to her, prior to the formal investigation, let alone after it concluded, and prior to being required to respond to the Department’s proposed transfer, was fundamentally unfair.  Had Officer Billings been given the allegations prior to the investigation, she would have been able to properly prepare herself for her interview with the Investigator, in relation to events that went back, in some cases, two years.  It is also the case that had Officer Billings been fully informed of the allegations against her prior to attending her interview with the Investigator, she may have taken advice from the Union and/or others, which may have led to a submission at that time to the Department, that three of the four allegations were outside of the time limits prescribed by the Policy and Procedures.

110    Therefore, having regard to all of these matters, in no sense could it be suggested that affording Officer Billings procedural fairness could not possibly have made any difference to the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141.  Additionally in this respect, the Policies and Procedures themselves require respondents to complaints, to be advised of the complaints and to be given an opportunity to respond to them.  A reference to “opportunity to respond”, to complaints and allegations, in the context of the Policies and Procedures, read as a whole, can only be reasonably understood as an informed opportunity to do so. That is, armed with the substance of the allegations.  None of this occurred in this case.

111    Further, as I have concluded above, regardless of the lack of observance of the time limits for bringing complaints against Officer Billings, the complaints were of doubtful merit.  In my view, given the long time periods between the incidents alleged, and the nature of the allegations, when considered in context, it is difficult to see how they could be reasonably construed as bullying conduct, in the terms expressed in the Policies and Procedures.  As I have already noted, it was clear on the evidence that Officer Billings has a direct style of communication and may at times, be somewhat blunt.  But all of those who gave evidence in the case for the Union, as colleagues, regarded Officer Billings as a very good prison officer, who has some 34 years’ service in the corrections system in this State.  She, along with some others it seems, has had strong views in relation to others who absent themselves from work frequently, and the impact that this has on prison officers remaining at work.  No doubt in the future, such matters will be handled differently.

112    It was also very clear on the basis of all of the evidence before the Commission, that there have been ongoing personality conflicts between some officers at Wooroloo Prison Farm. In that sense, it was understandable for those responsible for the prison to want to resolve the issues.  That should not be at the sole expense of Officer Billings however.  The evidence was also, at least in more recent times, since the proposed transfer of Officer Billings has been the subject of these proceedings, that the workplace has been relatively calm.

113    For all of the foregoing reasons, the Commission will order that the forced transfer of Officer Billings not proceed.