Appeal against a decision of the Commission in Matter No CR 2 of 2013 given on 21 August 2013

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 00451

DELIVERED : WEDNESDAY, 4 JUNE 2014

FILE NO. : FBA 12 OF 2013

Appellant

AND

Public Transport Authority of Western Australia

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S J Kenner

Citation : [2013] WAIRC 00752; (2013) 93 WAIG 1436

File No : CR 2 of 2013

CatchWords : Industrial law (WA) - Appeal against a decision of the Commission to dismiss an application on grounds that further proceedings not necessary or desirable in public interest - Termination of employment of a transit officer - Spent conviction order made by the Supreme Court - Effect of spent conviction order on employment as a security officer considered - Doctrine of approbate and reprobate considered - Claim before the Commission error in exercise of discretion demonstrated - Not satisfied claim of unfair dismissal had clear potential to undermine Supreme Court decision

Legislation : Industrial Relations Act 1979 (WA) s 23A, s 23A(1), s 23A(4), s 23A(5), s 23A(6), s 26(1), s 26(1)(a), s 26(1)(c), s 27, s 27(1), s 27(1)(a), s 27(1)(a)(ii), s 44, s 49

Criminal Code (WA) s 313(1)

Spent Convictions Act 1988 (WA) s 18, s 20, s 22, div 4, sch 3, sch 3 cl 1(1) item 11

Criminal Appeals Act 2004 (WA) s 7(1)

Conciliation and Arbitration Act 1904 (Cth) s 41(1)(d), s 41(1)(d)(iii)

Result : Appeal upheld

Representation:

Counsel:

Appellant : Mr P G Laskaris

Respondent : Mr D J Matthews

Solicitors:

Respondent : State Solicitor for Western Australia

Case(s) referred to in reasons:

Civil Service Association of WA Inc v Director General, Ministry of Justice [2003] WAIRC 08587; (2014) 94 WAIG 215

Codrington v Codrington (1875) LR7HL 854

Elder's Trustee & Executor Co Ltd v Commonwealth Homes & Investment Co Ltd [1941] HCA 31; (1941) 65 CLR 603

Express Newspapers v News (UK) Ltd [1990] 1 WLR 1320

Lissenden v CAV Bosch Ltd [1940] AC 412

M v O'Neill [2013] WASC 187

Mcjannett v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395

McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association [No 1] [1920] HCA 40; (1920) 28 CLR 278

O'Connor v S P Bray Ltd (1936) SR (NSW) 248

Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1; (1987) 21 IR 151

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

Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263; (2008) 72 NSWLR 624

Case(s) also cited:

Civil Service Association of Western Australia Inc v Director General, Ministry of Justice [2003] WAIRC 08587; (2014) 94 WAIG 215

House v The King (1936) 55 CLR 499

Pridmore v Magenta Nominees Pty Ltd [1999] FCA 0152; (1999) 161 ALR 458

Sanzana and Director General, Disability Services Commission [2011] WASAT 208

The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd [2006] WAIRC 03535; (2006) 86 WAIG 1268

Reasons for Decision

SMITH AP:

Introduction

1          This is an appeal to the Full Bench pursuant to s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision of the Commission given on 21 August 2013 in CR 2 of 2013:  [2013] WAIRC 00752; (2013) 93 WAIG 1436.

2          The decision appealed against is an order dismissing an application which arose out of an application for a conference in C 2 of 2013, under s 44 of the Act, in respect of an industrial matter.  The industrial matter was a dispute, between The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the union) and the Public Transport Authority of Western Australia (the PTA), in relation to an alleged unfair dismissal of an employee of the PTA who is a member of the union.  The employee in question was employed at all material times as a transit officer.  In these reasons he will be referred to as Mr M. 

3          Mr M was dismissed by the PTA in December 2012, following an incident which occurred in March 2010.  The incident involved Mr M, in the course of his duties, assaulting a patron of the PTA at a train station.  The incident resulted in Mr M being charged by the police with three counts of common assault which were part of a single course of conduct, contrary to s 313(1) of Criminal Code (WA).

4          In October 2010, Mr M was stood down from operational status by the PTA and reduced in grade, from transit officer level 4 to transit officer level 3, for a period of four months.

5          On 4 May 2012, Mr M was convicted of the charges of assault in the Magistrate Court of Western Australia, fined $5,000 and ordered to pay $639 in costs.  At the time Mr M was convicted he was still employed as a transit officer by the PTA.  Mr M subsequently filed an appeal against conviction and penalty.

6          On 28 December 2012, the PTA terminated Mr M's employment and on 3 January 2013 the union filed an application for a conference claiming that the dismissal was unfair: C 2 of 2013.

7          C 2 of 2013 was referred for hearing as CR 2 of 2013.  On 14 March 2013, the parties agreed to vacate the hearing dates set in March 2013 until after the delivery of a decision in the appeal in the Supreme Court.  At that time the PTA had undertaken that if the appeal was successful, and the convictions were overturned, Mr M would be returned to his employment as a transit officer (AB 18).

8          On 5 April 2013, the Supreme Court granted Mr M's application to amend his grounds of appeal to remove the appeal against conviction.  The appeal in the Supreme Court proceeded solely on the basis that there had been a miscarriage of justice occasioned by the failure of counsel to apply for a spent conviction order.

9          On 17 May 2013, McKechnie J delivered a decision upholding the appeal and granting a spent conviction order.

10       After the publication of McKechnie J's reasons for decision the union sought the relisting of CR 2 of 2013.  The matter was listed for mention and in the course of the proceedings the PTA foreshadowed an application under s 27(1)(a) of the Act, seeking an order that the Commission dismiss or refrain from hearing the matter.  The grounds of the application by the PTA were that as CR 2 of 2013 seeks the reinstatement of Mr M to his employment as a transit officer the matter should not proceed further, as it was not in the public interest to do so, as the circumstance of Mr M not having employment as a transit officer and not returning to that employment were determinative, or at the least very significant, factors in the decision of McKechnie J to grant Mr M a spent conviction order.

Supreme Court decision to grant spent conviction order to Mr M

11       As the observations of McKechnie J in M v O'Neill [2013] WASC 187 are of paramount importance in the resolution of the issues in this appeal, I will set out the findings made by his Honour in some detail.  In reasons for decision, his Honour made the following findings:

(a) The question to be resolved in the appeal was whether there was a miscarriage of justice because a spent conviction order should have been made by the Magistrate ([9]).

(b) The three assaults were part of one course of conduct, a point apparently accepted by the Magistrate in imposing a global penalty ([10]).

(c) The Magistrate made findings for the purpose of sentencing and set out the following relevant mitigating factors [15]:

(i) Mr M had no prior convictions.

(ii) There was a significant impact on Mr M's job.  Although he still had his job he suffered financially as a result of not being able to work the hours he was working before and perhaps for other reasons.

(iii) Mr M initially was acting entirely properly and within his powers and reasonably.

(iv) The action against the victim of spraying pepper spray and bringing him to the ground with the use of force was severe and a long way from what should have been applied. 

(v) The global fine of $5,000 takes account of the fact that Mr M had suffered some financial distress, but the penalty reflects the serious nature of the offence, the fact that he was a person in authority; and the fact that there were a lot of alternatives available which he put aside and substituted the use of force.

(vi) Mr M was with other officers who were fully supportive of him.  There was no violence being threatened to him.  There is a need for an element of personal deterrence.  There is also a need for a general deterrence in terms of the way railway officers, authority officers and security officers approach their tasks and the need to strictly comply with the law and in that regard to comply with what they are trained to do.

(vii) Mr M's relative immaturity was to be taken into account together with the fact that his actions were probably as a result of some lack of experience and maturity in dealing with that sort of situation.

(d) Mr M was granted leave to adduce further evidence relevant to sentencing.  Mr M deposes he is now 25 years old and was 22 when the offences occurred.  He joined the PTA as a transit officer in July 2007, just over 2 1/2 years before the offences.  He completed high school to Year 12 and did a one-year TAFE police preparation course, before working at several jobs over the next two years, including storeman and pizza driver, ultimately joining the PTA.  He was stood down from operational status in October 2010 and his employment terminated on 28 December 2012.  He is presently employed as a storeman.  Following the incident on 28 March 2010, the PTA commenced an internal investigation demoting him in pay grade for three months which resulted in $1,200 lost wages ([16] - [18]).

(e) In respect of future employment, Mr M in his affidavit states that he wishes to use the training he received from the PTA and his subsequent experience to obtain future employment in the security industry and without a spent conviction he will not be able to secure a police clearance certificate.  Following the termination of his employment he started looking for work and discovered that most jobs in the mining industry and even certain cleaning jobs required police clearance certificates.  In January 2013, he decided to apply to join the armed forces.  He wishes to attend a program at the Australian Defence Force Academy in the ACT and obtain a degree whilst working in the military ([19]).

(f) Mr M provided impressive character evidence.  Extracts from those character statements give a picture of a young man whose actions on the night were entirely out of character ([20] - [21]).

(g) The term 'spent conviction' is a misnomer.  The conviction is not spent at all.  It remains on the record for subsequent court proceedings.  The Spent Convictions Act 1988 (WA) prevents discrimination against a person for employment and other purposes and allows them to answer 'No' to questions about convictions.  But there are many exceptions listed in the Spent Convictions Act sch 3, including for persons applying to be police officers or security guards when the benefits of a spent conviction do not apply ([23]).

(h) The questions to be asked when considering whether to make a spent conviction order are [26] - [28]:

(i) Is the offender unlikely to commit such an offence again?

(ii) Is the offence trivial?

or

Is the offender of previous good character?

(iii) Should the offender be relieved immediately of the adverse effect that the conviction might have on the offender?

The answer to the first question involves a prediction, noting the prediction is of the likelihood of committing 'such' an offence, not 'any' offence.

The answers to the alternatives in the second question are matters of fact.

(i) The answer to the third question is a matter of discretion.  The discretion will be formed by a number of considerations including [29]:

A. The discretion should be exercised:

• sparingly;

• in a clear case; and

• for good reason is desirable.

B. The court should take into account:

• the nature and seriousness of the offence (both in its commission and referable to the offender); and

• the rehabilitative effect of immediate removal of the conviction, the effect both on the offender and the community being considered. The conviction for a lesser offence (of which this is one) will be able to become spent after 10 years so emphasis is placed on immediacy.

(j)     At [30] McKechnie J said:

In taking into account the rehabilitative effect it may be necessary to consider, among other things:

• impact on employment, present or future; and

• exceptional hardship to offender or family.

C. The court must also take into account the public interest which includes:

• any employer or potential employer being aware of the offences in assessing suitability and reliability for the type of work; and

• general and personal deterrence.

(k) Under the heading 'Question 1:  Is the appellant unlikely to commit such an offence again?' McKechnie J said [32] - [33]:

The respondent submits that there is no evidence that the appellant is 'unlikely to commit an offence again'. The appellant submits that the court can infer the appellant is unlikely to offend having regard to:

• his antecedents;

• the specific circumstances in which these offences occurred no longer existing;

• the serious consequences of these offences to the appellant;

• the appellant was 22 years old when the offences occurred and had been a transit guard prior to the offences without incident;

• the learned magistrate took the view that the appellant's immaturity and lack of experience were factors in what occurred;

• the circumstances of the offences also require consideration. They occurred when the appellant was on duty as a Public Transit Authority officer where he had lawful access to OC spray. He encountered the Hagerstroms and it is not in dispute that Shane Hagerstrom was acting like a fool and being obstructive to the appellant doing his job;

• the learned magistrate made the following observations in sentencing:

I find that effectively what happened is he allowed himself to be overcome - emotionally is probably not the right word but it is probably good enough - by the behaviour of the father and the son.

That is in circumstances where there were members of the public present, there were his colleagues present. Very stressful for him. I find that for whatever reason he allowed that to build up into frustration - some frustration, some anger and he lost his cool, to put it in the vernacular, and therefore committed these three offences.

The appellant is now older and has paid dearly for his offending. The consequences have been brought home to him. Despite his desires, it is unlikely that he will obtain employment where he is in a position to exercise lawful force over others for sometime, if ever. There are relevant employment exemptions to the operation of the Spent Convictions Act in the schedule. I am of opinion that the appellant is unlikely to commit such an offence again. All of his character witnesses attest to this being out of character with the person they know. The answer is yes.

(l) Under the heading 'Question 2:  Is the appellant previously of good character?'  McKechnie J said, it was conceded by Mr M that the offences of assault were not trivial and it was conceded by the respondent that Mr M is of good character, so the second question is satisfied ([34] - [35]).

(m) Under the heading 'Question 3:  Should the appellant immediately be relieved of the adverse effects of the conviction?'  McKechnie J said [36] - [47]:

The appellant argues there is no public interest in maintaining the conviction. He is no longer a person in authority. The community is not better protected by knowing of the conviction. The community is better served by rehabilitation compared with adverse consequences. There is nothing overwhelming about the community interest.

The respondent argues that the circumstances could reoccur in a similar field and the public interest is in knowing the facts is a relevant and decisive consideration. He was in a position of authority and acted with excessive force. He could be in a similar position in the security field or in the military. Other potential employers should have the same information as the PTA to take it into account as to whether he needs extra training etc.

The assaults in combination were serious. Although not accompanied by any pleaded circumstance of aggravation, they are made serious by the circumstances in which they occurred.

Seriousness is not an automatic bar to a spent conviction order: Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211. It is a factor to be considered in balance with other factors. Factors balancing the seriousness of the particular offence are findings by the magistrate previously set out, including:

• his age;

• the circumstances were very stressful for the appellant;

• lack of experience; and

• relative immaturity.

The impact on actual or potential employment is often a battle ground in appeals such as this. It is a factor but never the only factor. Sometimes arguments between the parties develop into disputes about the impact of a lack of spent conviction on an appellant with suggestions that an appellant must establish impact before the discretion is enlivened. This is incorrect.

In an employment environment where police clearances are common for many occupations the particular question becomes whether the circumstances of the particular conviction should be known to employers not listed in the exemption schedule so they can assess the employment application 'without blinkers', to borrow an expression from Brewer v Bayens ([2002] WASCA 271; (2002) 26 WAR 510).

It is often clearly in the public interest that rehabilitation of an offender is actively assisted through employment.

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

The appellant does not require further personal deterrence by continuation of the conviction for the personal matters I have previously outlined in a slightly different context.

Young men and women sometimes do really silly things and go on to lead fulfilling lives. The appellant was a young man in a stressful situation who over reacted. The past does not have to be brought up on every occasion. This is one such case.

Balancing all the factors I have outlined, the public interest is now best served by the rehabilitation of the appellant, which will be assisted if the adverse effects of the conviction are immediately removed.

I am satisfied there will be a miscarriage of justice if a spent conviction order is not made.

Findings made at first instance by the Commission

12       After setting out the findings made by McKechnie J in his reasons for decision and the submissions made by the parties, the learned Commissioner made the following findings:

(a) A tribunal or Court in exercising a power to refrain from hearing grounds of public interest, ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree:  Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1; (1987) 21 IR 151 (5); (154) (Re QEC) (Mason CJ and Wilson and Dawson JJ).  The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked:  Re QEC (12 - 13); (162) (Deane J).

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

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

(d) In this case, it is necessary as a first step, to reach some view as to the degree to which McKechnie J relied upon Mr M's loss of employment and it not being restored, in the grant of a spent conviction.  As well as the reasons for judgment, the Commission also has before it, the transcript of the proceedings before McKechnie J.

(e) In the Supreme Court appeal Mr M said in affidavit evidence in support of his appeal that he had his employment as a transit officer terminated by the PTA.  No reference was made by Mr M in his affidavit to his application for reinstatement before this Commission, nor was the issue raised before McKechnie J in the oral submissions of the parties.  Therefore, his Honour was not aware of these proceedings, and that Mr M was seeking the restoration of his employment, in circumstances where he maintained on his appeal, that his loss of employment, and the unlikelihood of it being restored, was a significant factor in terms of the 'price' paid by him for his offending, and the impact of that loss in terms of both personal and general deterrence.

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

(g) In relation to the third question, and the issue of general deterrence, his Honour placed considerable weight, as is evidenced from [43] of the judgment, on Mr M's loss of his job, as largely satisfying this element, and there being little extra general deterrence to be achieved by the continuation of the conviction.

(h) Mr M's loss of employment, and the fact that it would not be recovered, was central to Mr M's appeal and the seeking of a spent conviction order.  The learned Commissioner also concluded that this was a significant factor relied upon by McKechnie J in the upholding of Mr M's appeal, and the making of a spent conviction order, as is evident by a fulsome reading of his Honour's judgment and the transcript.

13       The learned Commissioner, after finding those facts, then went to consider how the discretion under s 27(1)(a) of the Act should be exercised in the matter.  In doing so, he made the following findings:

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

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

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

Grounds of appeal

14       The grounds of appeal, with particulars omitted, are as follows:

2.1. The Learned Commissioner made an error of law:

In holding that Mr M had made an election in pursuing the Supreme Court appeal and that the union was therefore not entitled to pursue, on behalf of Mr M, the unfair dismissal claim, including the seeking of an order for reinstatement of Mr M in the employ of the PTA, as it would be contrary to equity and good conscience.

2.2. The Learned Commissioner made an error of law:

In holding that Mr M in the Supreme Court appeal maintained as a ground to obtain a spent conviction order his dismissal and non-restoration to his position of employment with the PTA.

2.3. The Learned Commissioner made an error of law:

In holding that the maintenance of the unfair dismissal claim has the clear potential to undermine the decision of the Supreme Court appeal granting Mr M a spent conviction.

2.4. The Learned Commissioner made an error of law:

In holding that it would not, in the present case, weighing up the competing interests of the parties, be in the public interest for the unfair dismissal claim to be heard by the Commission.

Submissions made by the union

(a) Appeal ground 2.1

15       The union takes issue with the finding made by the learned Commissioner that Mr M had made his election in the Supreme Court appeal to pursue a spent conviction order and by seeking now to continue with the unfair dismissal claim in relation to a claim for reinstatement, Mr M is attempting to both approbate and reprobate.

16       The particulars to each of the grounds set out the submissions to be put in respect of each ground.

17       The particulars to ground 2.1 point out the right of Mr M to bring the criminal sentencing appeal is a legislative right given to him under s 7(1) of the Criminal Appeals Act 2004 (WA) unencumbered by any concomitant prohibition on commencing or maintaining the unfair dismissal claim.  Also they say in the particulars that the right of the union on behalf of Mr M to bring or continue the unfair dismissal claim following the commencement and maintenance of the criminal sentencing appeal is not prohibited by any legislative enactment or rule of law (legal or equitable).

18       It is also contended in the particulars that the right of the union, on behalf of Mr M, to bring or continue the unfair dismissal claim cannot be contrary to equity and good conscience because the claim does not have the potential to undermine the decision of the Supreme Court granting Mr M a spent conviction.

19       The union submits that the equitable concept of an 'election' has no application to the determination of a question under s 27(1)(a) of the Act.  The concept of an 'election' is an election in equity which provides that a person taking a benefit under a deed or will cannot 'elect' to accept only that part of the instrument conferring the benefit and reject the rest – that is, he or she cannot approbate and reprobate:  O'Connor v S P Bray Ltd (1936) SR (NSW) 248, 263 (Jordan CJ); approved by the High Court in Elder's Trustee & Executor Co Ltd v Commonwealth Homes & Investment Co Ltd [1941] HCA 31; (1941) 65 CLR 603, 617 - 618 (Rich ACJ, Dixon and McTiernan JJ); and followed in Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263; (2008) 72 NSWLR 624, [28], 630 (Basten JA) (with whom Beazley JA agreed); Codrington v Codrington (1875) LR7HL 854, 861 - 862 (Lord Cairns).

20       The union also takes issue with the finding made by the learned Commissioner that the case for Mr M for a spent conviction order was advanced on the basis that he had lost his employment as a result of his conviction for assault and he was not going to get his job back.  This submission is dealt with in grounds 2.2 and 2.3 of the grounds of appeal.

21       The union also argues that the respondent in the Supreme Court appeal clearly disclosed the fact of the unfair dismissal application and that McKechnie J clearly contemplated the possibility of Mr M getting back his employment.  However, even if that proposition is rejected, it is clear that the Supreme Court appeal and the unfair dismissal application have nothing to do with each other.

22       It is also put on behalf of the union that even if the equitable doctrine of approbation and reprobation applies to applications in the Commission so as to prohibit parties to legal proceedings adopting two inconsistent stances on grounds that a party is not allowed to blow hot and cold, the union asks the question what benefit has Mr M taken or what has arisen in the course of him pursuing the Supreme Court appeal which is inconsistent with his right to pursue an unfair dismissal claim.

(b) Appeal grounds 2.2 and 2.3

23       In ground 2.2 the union says that the learned Commissioner made an error of law in holding that Mr M in the Supreme Court appeal maintained as a ground to obtain a spent conviction order his dismissal and non-restoration to his position of employment with the PTA.

24       In ground 2.3 the union contends that the learned Commissioner made an error of law in holding that the maintenance of the unfair dismissal claim has the clear potential to undermine the decision of the Supreme Court appeal granting Mr M a spent conviction.

25       The union says that the learned Commissioner correctly identified the principles to be applied in considering an application under s 27(1)(a) of the Act.  When having regard to matters of public interest he did not identify any reason why the allowance of the unfair dismissal claim to proceed in the Commission would constitute an undermining of the due administration of justice in the State.

26       The fact that Mr M had lost his job with the PTA and put forward the fact of his lost job as a ground of appeal to the Supreme Court is in error.  There was only one ground of appeal and that was that there had been a miscarriage of justice because a spent conviction order should have been made by the Magistrate's Court.

27       It was contended on behalf of the union that a statement made in the respondent's outline of submissions to the Supreme Court at [25] in which it was stated, 'In support of this appeal, the appellant relies upon the effects of these convictions upon his efforts to retain his employment as a security guard for the Public Transport Authority' can only mean that the unfair dismissal claim is being recognised by the respondent and was brought to the attention of the Supreme Court because he had already been dismissed from his employment in December 2012 and these submissions are dated 18 April 2013 in preparation for the hearing before McKechnie J on 23 April 2013.  Also in [27] of the respondent's submissions they state, 'The offences should properly be able to be taken into account by the Public Transport Authority in assessing the appellant's suitability for future employment in that role.'  It is said this submission contemplates that the respondent was saying to the Supreme Court, which submission ultimately failed, that you should not grant a spent conviction to Mr M because if you do so then it will be difficult for us to argue before the Commission in the unfair dismissal claim that the PTA were entitled to take into account the conviction of Mr M of the three assault charges in terminating his employment.

28       Whilst it is common ground that a submission was made by counsel on behalf of Mr M in the Supreme Court appeal that there was an unfair dismissal application on foot, the union says that McKechnie J in his reasons for decision did not rely upon, in making his decision, that there had been a miscarriage of justice, any issue that relates to Mr M having been terminated from his employment.

29       The union rejects the contention that McKechnie J had formed the opinion that the circumstances which led to the offence were no longer on foot because Mr M was no longer employed as a transit officer and does not have or will not have access in the future to exercise statutory powers of a transit officer.  To the contrary, the union says that McKechnie J's decision expressly considered the possibility of Mr M having resort to employment in the security field which could include employment with the PTA.  In particular, McKechnie J in stating it is unlikely that he would obtain employment where he is in a position to exercise lawful authority over others for some time contemplates the possibility that he could obtain employment at some time in the future.  Further, McKechnie J goes on and critically says that there are relevant employment exemptions to the operation of the Spent Convictions Act.  In particular, in item 11 of cl 1(1) of sch 3 of the Spent Convictions Act, the PTA is identified as an entity that does not have to have regard to the provisions of s 18, s 20, s 22 and Division 4 of the Spent Convictions Act.  Consequently, if a person is an applicant for a job as a transit officer with the PTA and he has been granted a spent conviction the PTA is entitled to inquire and you are obliged to inform the PTA of that conviction.

30       In the submissions made by counsel on behalf of Mr M in the Supreme Court appeal it is stated that the circumstances in which Mr M found himself that night are unlikely to reoccur now that he is no longer in the employment of the PTA.  The union says that this submission should be read as simply an opinion of counsel about the likelihood of Mr M being reinstated.

31       In addition, the submission made on behalf of the respondent to the Supreme Court appeal that Mr M was no longer seeking to retain, or, as it were, get back his employment with the PTA but is looking at other similar positions in the security field or in the military, was not a submission put on behalf of Mr M by his counsel.  It is said that this submission should be understood as a submission that even if you accept that Mr M had abandoned his intention of getting his job back with the PTA you should still refuse to grant a spent conviction because he might be looking for employment in other security-related fields and as a matter of public interest his conviction should be recorded on his record.

32       Further, it is contended that the finding made by McKechnie J that the specific circumstances in which the offence occurred no longer existed must be understood in the light of the evidence that Mr M was at the time a young security officer who was inexperienced and not properly trained.

33       Also, counsel for Mr M in the Supreme Court appeal made an important submission that the position you hold, or the occupation you have, has not been accepted by McKechnie J as a basis for refusing to grant a spent conviction.

34       The reasoning of McKechnie J does not, and cannot, affect the reasoning the Commission must adopt for the purposes of the consideration of the merits of the unfair dismissal claim.  However, the fact of the granting of the spent conviction order is relevant to the determination required to be made by the Commission in the unfair dismissal claim as it can inform the Commission on the ultimate question which it has to decide, being whether the PTA's dismissal of Mr M was harsh, oppressive or unfair (s 23A(1) of the Act).  In deciding whether or not a person has been unfairly dismissed the Commission informs itself by having regard to the equity, good conscience and the merits of the case, but the reasons of the Supreme Court decision have nothing to do with the indicia that the Commission has to consider.

(c) Appeal ground 2.4

35       In ground 2.4 the union says the learned Commissioner erred in law by finding that having weighed up the competing interests of the parties it would not be in the public interest for the unfair dismissal claim to be heard by the Commission.  An argument is put on behalf of the union that although the public interest can include the interest of the parties pursuant to s 27 of the Act it is the matters of public interest which relate to industrial issues which must be considered.

36       It is also contended that the competing interests of the parties in relation to the unfair dismissal were not the subject of any evidence or any determination by the learned Commissioner in his reasons for decision, despite the fact that the learned Commissioner did find that this was not a case where, on its face, the union's claim is so manifestly hopeless that it obviously had no prospects of success or there is a clear issue of lack of jurisdiction or the case is affected by a manifest delay.

37       The union also says that the Supreme Court appeal did not involve any competing interests of the parties, as the PTA was not a party to that proceeding.  In any event, it says that the reasons for decision do not weigh up the competing interests of the parties.  In particular, it says that as a matter of law the ambit of the public interest referred to in s 27(1)(a)(ii) of the Act is confined to the resolution of merits of the issues raised by the unfair dismissal claim in the Commission of which there has not been any findings.

38       It is also said that the basis of the finding made by the learned Commissioner that to allow the unfair dismissal claim to proceed could undermine the due administration of justice in the State is a finding made unsupported by any finding as to how that is the case.  In particular, when the reasons for decision of McKechnie J are examined, his Honour is saying that employment is not that relevant to determining whether a spent conviction order should be made.  His Honour found that whether or not Mr M obtains employment in the security industry in the future was not in any way critical to the decision as to whether or not his Honour would grant a spent conviction order.  If that analysis is right, how can that reasoning affect or disentitle Mr M through his union to pursue an unfair dismissal claim in the Commission.

Submissions made by the PTA

39       The PTA says the learned Commissioner did not err in the exercise of his discretion in dismissing the application on grounds that further proceedings were not in the public interest.  The learned Commissioner also correctly found that if he was to allow the matter to proceed he would not be acting consistently with the statutory guiding principle, binding the Commission in the exercise of its jurisdiction, to act with equity and good conscience, as found in s 26(1)(a) of the Act.  In addition, the learned Commissioner, as he was obliged to do pursuant to s 26(l)(c) of the Act, also took into account Mr M's interests as a person immediately concerned with the matter.

40       The PTA contends it is clear that the learned Commissioner considered it was not in the public interest for the matter to proceed further when the matter sought the reinstatement of Mr M to his previous employment in circumstances where Mr M had relied upon the loss of, and non-return to, that employment to achieve a successful outcome on the Supreme Court appeal and the interests of Mr M in having the matter proceed before the Commission were not sufficient to override this.

41       In relation to the question of public interest, the learned Commissioner clearly and cogently enunciated his decision, which was to the effect that pursuit of an unfair dismissal claim had the potential to undermine the decision of the Supreme Court.

42       In relation to the question of Mr M's interests, the learned Commissioner clearly and cogently set out what they were and his decision on why they did not override the public interest in the matter, which was to the effect that Mr M had made a choice to rely on the loss of, and non-return to, employment to his advantage in court proceedings and that, having done this, it would be unfair if he was later, in other proceedings, returned to that employment.

43       The learned Commissioner appropriately applied the principle that there is a genuine public interest in consistent decision-making across various bodies with judicial and quasi-judicial functions and powers.  A decision in the proceedings before the learned Commissioner that the dismissal of Mr M had been unfair and that he should be reinstated (or have some other remedy) would clearly be inconsistent with the decision of the Supreme Court that because, in part or whole, Mr M had lost that employment and would not be returning to it he should be granted a remedy by that court.  If the proceedings could lead to that outcome it was not in the public interest for those proceedings to continue.

44       The learned Commissioner noted that, prima facie, Mr M had an entitlement to an unfair dismissal claim being pursued on his behalf.  However, the learned Commissioner properly found that Mr M's interests in relation to the matter had to include that Mr M had relied upon his dismissal and him not being restored to his employment as a ground to obtain a spent conviction order.  On this ground the learned Commissioner found that it would not be unfair to the interests of Mr M if the proceedings did not proceed and that, in fact and at law, it would be contrary to equity and good conscience if they did.  Thus, properly taking into account Mr M's interests did not overcome the public interest in the proceedings not being further heard.

(a) Appeal ground 2.1

45       The PTA says that the union in its submissions makes too much of the learned Commissioner's use of the terms 'election' and 'approbate and reprobate'.  It says the Commission is entitled to have regard to relevant equitable principles as part of inquiring into and dealing with an industrial matter:  Civil Service Association of WA Inc v Director General, Ministry of Justice [2003] WAIRC 08587; (2014) 94 WAIG 215 [55].  However, it is clear that the learned Commissioner used the term simply to explain Mr M's conduct in properly and thoroughly considering the interests of Mr M and the question of overall fairness.

(b) Appeal grounds 2.2 and 2.3

46       The PTA says the learned Commissioner explained clearly and cogently why he considered that the proceedings had the clear potential to undermine the decision of the Supreme Court.  The learned Commissioner correctly found that a significant factor in McKechnie J's decision to make an order in favour of Mr M was the very circumstance that was sought to be reversed in the proceedings before him.

47       The obvious concern about the undermining of the decision of the Supreme Court is that 'the overall jurisdiction of the courts and public tribunals' may be brought into disrepute if different branches make decisions without regard to relevant proceedings in other branches.  This is not in the public interest.  The learned Commissioner's decision avoided, and with respect properly so, the potential for Mr M to be returned to employment after the Supreme Court appeal had granted him a remedy based, in part or whole, on the loss of, and non-return to, that employment.

(c) Appeal ground 2.4

48       The PTA says the learned Commissioner, went through a thorough process of weighing up the interests of the parties, noting the effect that an exercise of discretion under s 27(1) of the Act would have and giving detailed consideration to the interests of Mr M in the whole of the circumstances in which the application under that subsection was before him.  The public interest, as explained by the learned Commissioner, went beyond and involved matters other than who was a party to what proceedings and the resolution of the merits of the issues raised by the unfair dismissal claim in the Commission.

The public interest

49       Section 27(1)(a) of the Act provides:

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

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

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

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

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

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

50       The parties agree that the principles to be applied to an exercise of the discretion conferred by s 27(1)(a)(ii) of the Act to refrain from further hearing a matter were correctly identified by the learned Commissioner.  However, the union argues that the learned Commissioner did not correctly identify relevant matters of public interest.

51       The words 'in the public interest' ordinarily require consideration of a number of competing arguments about, or features or 'facets' of, the public interest:  Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 [137] (Hayne J); applying McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [55].

52       The nature of determining what is in the 'public interest' was described in O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ):

[T]he expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, 505 per Dixon J.

53       In Re QEC, the Queensland Electricity Commission applied to the Conciliation and Arbitration Commission to refrain from further hearing, or from further determining an industrial dispute insofar as it related to Queensland.  The application was made under s 41(1)(d) of the Conciliation and Arbitration Act 1904 (Cth).  Section 41(1)(d)(iii) created a discretionary power to dismiss a matter or refrain from further hearing, the terms of which were substantially the same as the discretion to dismiss, or refrain from further hearing or determination, conferred by s 27(1)(a)(ii) of the Act.  After hearing the parties, the Full Bench of the Conciliation and Arbitration Commission acceded to the application.  The matter was subsequently reviewed by the High Court in an application for the issue of a writ of mandamus and a writ of certiorari by the Electrical Trades Union of Australia (ETU).

54       In their reasons for decision each of the justices of the High Court found the Full Bench of the Conciliation and Arbitration Commission had not erred and that the Full Bench had recognised the existence of competing public interests and then proceeded to weigh up the factors on one side against the factors on the other.  In a joint judgment Mason CJ, Wilson and Dawson JJ observed:

Counsel for the ETU seeks to meet the onus resting on his client in relation to the first ground that we have set out by an argument made up of several steps. First, it is said that the Act makes it clear that the settlement of industrial disputes is the fundamental concern of the Act and that consequently any consideration of the public interest under s 41(1)(d)(iii) must take that concern into account.

…

The first step in this argument makes an important point. It is undoubtedly correct. At the same time, it is necessary to remember that the importance the Act places upon the settlement of industrial disputes cannot of itself dictate the exercise of the discretion given by s 41(1)(d)(iii). That paragraph itself recognises that it may be in the public interest to leave an industrial dispute unresolved. Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree (5).

55       Justice Deane observed that the starting point in the rare instances where a court or tribunal is given a broad discretion to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point whether a refusal is warranted in the circumstances of a particular case is the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (13); applying Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association [No 1] [1920] HCA 40; (1920) 28 CLR 278, 281 (Higgins J).  Justice Deane also found:

In the context of the general legislative policy that a party to an inter-State industrial dispute should ordinarily be entitled to invoke the jurisdiction of the Commission and of the general philosophy underlying the Act that the exercise of that jurisdiction to settle inter-State industrial disputes will be in the public interest, that onus is a particularly heavy one in a case where what is sought is a refusal to exercise jurisdiction on the general 'public interest' ground (s 41(1)(d)(iii)) and it appears that there is no other tribunal which possesses jurisdiction fully to resolve the dispute.

56       As the learned Commissioner correctly found in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia the Industrial Appeal Court made it plain that in the exercise of the discretion to refrain, the Commission is required to have regard to its obligations under s 26(1) of the Act.

57       This is a matter that forms part of the legislative scheme of the Act and as such is a matter of 'public interest':  Re QEC (13) (Deane J).

58       When all these principles are considered it is clear that the learned Commissioner in this matter was obliged to have regard to:

(a) The union is ordinarily entitled to invoke the jurisdiction of the Commission to settle the industrial matter concerning its member, Mr M.

(b) Pursuant to s 26(1)(c) of the Act, the interests of Mr M as a person immediately concerned in the industrial matter is a matter relevant to the interests and right of the union to invoke the jurisdiction of the Commission.

(c) Pursuant to s 26(1)(a) of the Act, the Commission is required to act according to equity, good conscience and the substantial merits of the case.

(d) The 'onus' on a party seeking the refusal to exercise jurisdiction is a heavy one as the only tribunal who possesses jurisdiction to deal with the industrial matter in issue, is the Commission:  Re QEC (13) (Deane J).

(e) If it could be established that the continuation of the unfair dismissal claim had the potential to undermine the decision given by McKechnie J, the competing matter of public interest that was to be weighed and balanced is that the Commission is part of the hierarchy of courts of the State, and it should not act in such a way which may undermine the due administration of justice in the State.

59       These are all matters the learned Commissioner had regard to.  In my opinion unless it can be established that the learned Commissioner erred in finding that the continuation of the unfair dismissal claim was likely to undermine the decision made by McKechnie J to grant a spent conviction to Mr M, no error in the exercise of the discretion to refrain from hearing could be demonstrated. 

60       Given that the union has a prima facie right to insist upon the exercise of the Commission's jurisdiction to hear and determine an industrial dispute, the onus in refraining to hear a matter is heavy when a refusal of jurisdiction is sought on a public interest ground.  Thus, where a mere potential to undermine a decision of another Court or tribunal is raised, on the matters pleaded in a matter before the Commission, this would be insufficient to ground a decision to refrain from hearing a matter.

Did the continuation of the unfair dismissal claim have the potential to undermine the decision given by McKechnie J?

61       This question is, in my view, the central and determinative issue in this appeal.

62       What is firstly of importance in the resolution of this issue is that whilst reinstatement of Mr M is the remedy sought in the application before the Commission, it is not the only remedy open if the Commission was to determine that the dismissal of Mr M was harsh, oppressive or unfair.  Pursuant to s 23A(4), s 23A(5) and s 23A(6) of the Act, if the Commission considers that reinstatement would be impracticable, it may order re-employment of the employee in another position, or make an order for compensation.

63       The application referring the matter under s 44 of the Act sets out in some detail the reasons why the union contends that the dismissal of Mr M was unfair.  Two of the grounds why it is said the dismissal was unfair raise issues of procedural unfairness.  The first ground relies upon an argument that pursuant to cl 2.8.6 to cl 2.8.8, cl 2.8.17.2 and cl 2.8.16.2 of the Public Transport Authority (Transit Officers) Agreement 2010 (2010 Agreement) the time for taking and completing a disciplinary inquiry must not exceed longer than six months.  If this ground were to succeed, the union says it follows that the PTA were unable to take any disciplinary action against Mr M after he was convicted of the three assaults (AB 13).  The second argument is put in the alternative and that is if the first argument is rejected, the PTA took an unreasonable time to discipline Mr M.  The remaining grounds raise arguments as to why the union contends that the dismissal of Mr M was substantively unfair. 

64       In making an assessment of the facts of the convictions, the Commission would be bound by the findings made by the Magistrate who heard the assault charges and the findings made by McKechnie J about the facts of the matter.

65       If after hearing the matter referred by the union the Commission was to find that the dismissal was unfair, the Commission would at that point be required to consider whether reinstatement of Mr M was impracticable.  If the Commission was to find that an order for reinstatement was impracticable and re-employment by the PTA should not be made it could be difficult to find that a decision that the dismissal was unfair would undermine the decision of McKechnie J.  This would be particularly so if it was also found that the dismissal of Mr M was unfair solely on grounds that the PTA was prohibited from taking disciplinary action against Mr M by operation of the provisions of the 2010 Agreement.

66       Secondly of importance, is the fact that although McKechnie J varied the sentence imposed on Mr M for the assaults by making a spent conviction order, the effect of the spent conviction order is not a matter that should cause the decision made by the PTA to terminate the employment of Mr M to be viewed differently by the PTA, or by the Commission, in the unfair dismissal claim.  This is because item 11 of cl 1(1) of sch 3 of the Spent Convictions Act has the effect that (in respect of employment as a transit officer), Mr M's convictions are not 'spent', in the sense that they cannot be acted upon by the PTA.  As McKechnie J said in his reasons for decision the term 'spent conviction' is a misnomer.  A spent conviction remains on the record for subsequent court proceedings and the benefits of a spent conviction do not apply to employment as a transit officer as such a position is clearly a security officer within the meaning of item 11 of cl 1(1) of sch 3 of the Spent Convictions Act.

67       The issue whether Mr M was unfairly dismissed by the PTA and whether he should be reinstated to the position of transit officer is a matter that would require a determination being made by regard to all relevant facts and matters.  However, a matter relevant to the determination of that issue would not be the fact that after Mr M's employment was terminated the sentence imposed on him had been varied by the Supreme Court.  This is because for the purposes of employment as a transit officer regard can be had to the convictions of assault.

68       When his Honour found at [33] of his reasons for decision that despite his desires, it was unlikely that Mr M would obtain employment where he is in a position to exercise lawful force over others for some time, if ever, his Honour was expressing a view that organisations such as the PTA can when considering employment as a transit officer have regard to convictions that are 'spent'.  Thus, his Honour went on to say after making this observation that there are relevant employment exemptions to the operation of the Spent Convictions Act in the schedule [33].

69       Despite the lengthy and valiant submissions made by counsel for the union in this appeal, it is absolutely clear that at the hearing of the appeal, McKechnie J was informed by counsel for Mr M that he had lost his employment as a transit officer, so the very circumstances in which he would be given a lawful use of force on members of the public had gone (AB 125, 9).  Justice McKechnie also had before him an affidavit in which Mr M deposed that he had decided in January 2013 to apply to join the armed forces.  It also seems from the matters stated in his affidavit that he was seeking work in the security industry and in the mining industry. 

70       It is plain from the reasons of McKechnie J that he was not informed that Mr M was seeking reinstatement to his position as a transit officer.  To the contrary it could clearly be inferred from the matters deposed in Mr M's affidavit and the submissions of his counsel that he was not seeking a review of his dismissal or reinstatement to his previous position as a transit officer.  For these reasons I am not satisfied that ground 2.2 of the grounds of appeal has been made out.

71       However, the fact that Mr M was no longer in a position of authority to exercise lawful force, had lost his job as a transit officer and was unlikely to ever obtain another position that enabled him to exercise lawful force were only part of the reasons why McKechnie J found that Mr M was unlikely to commit such an offence again (AB 95 - 96, [32] - [33]).  The other reasons were:

(a) his antecedents;

(b) his age and fact that he had been a transit officer prior to the offences without incident;

(c) his immaturity and lack of experience; and

(d) he is now older.

72       In making the finding that Mr M was unlikely to ever obtain another position that enabled him to exercise lawful force, McKechnie J had regard to:

(a) the submission by Mr M's counsel to that effect; and

(b) that the PTA and other employers of court and custodial officers could have regard to the convictions as if they were not 'spent' (AB 93, [23]).

73       However, McKechnie J did not find that the PTA would not or should not re-employ Mr M as a transit officer.  He left this matter open.  He simply made a prediction that such an occurrence was unlikely for some time, if ever.  This finding is consistent with the submission made by counsel for Mr M when she said:

What the PTA thinks or whether they might decide to give him back his job because he got a spent conviction and in the future they might say, 'We now think you're older and wiser and we forgive you,' who knows, that's a matter for the Public Transport Authority.  We wouldn't even begin to suggest as to what they might do (AB 141, 25).

74       In the event that the Commission was to find that Mr M had been unfairly dismissed and concluded that Mr M should be reinstated, that finding would unlikely to be inconsistent with the findings made by McKechnie J as his Honour left open the issue whether Mr M should be re-employed as a transit officer in the future.  Thus this is a matter that would be open to the Commission to consider if a finding is made that the dismissal of Mr M was harsh, oppressive or unfair.

75       For these reasons I am satisfied that grounds 2.3 and 2.4 of the grounds of appeal have been made out.

76       In respect of ground 2.1 of the appeal, I do not accept the union's contention that the doctrine of approbate and reprobate has no application in any matter before this Commission.  This doctrine has been described as prohibiting a litigant from blowing hot and cold.  In cases where the doctrine does apply the person concerned must choose between two alternative or mutually exclusive rights:  Lissenden v CAV Bosch Ltd [1940] AC 412 (Atkin LJ) (429); Express Newspapers v News (UK) Ltd [1990] 1 WLR 1320 (1329) (Browne-Wilkinson VC).

77       This doctrine was applied by Ritter AP in Mcjannett v Reynolds [2009] WAIRC 01282; (2009) 89 WAIG 2395 [8](a), [98] - [100].  In that matter Mr Mcjannett sought to argue that the Construction, Forestry, Mining and Energy Union of Workers did not have any members as those who had voted in an election were not properly enrolled.  Mr Mcjannett sought an inquiry into an election under s 66 of the Act.  The standing he relied upon to bring the application was that he was a member of the union.  Acting President Ritter found that if Mr Mcjannett's contentions were accepted he would not be a member of the union. 

78       Whilst I am of the opinion that the doctrine of approbate and reprobate can be applied to matters before the Commission, I am not satisfied that the pre-conditions for the application of that doctrine arise as I am of the opinion that seeking a spent conviction in the Supreme Court appeal could have no effect on the issue whether Mr M was unfairly dismissed or not.

79       For the reason that McKechnie J left open the prospect of future employment with the PTA, providing the findings made by the Magistrate who heard the charges against Mr M and the facts about the circumstances of the assaults found by McKechnie J are regarded as binding, the right to seek the spent conviction on the basis that Mr M's employment had been terminated by the PTA, cannot be said to be inconsistent with the right of the union to seek the reinstatement of Mr M.  For this reason I am of the opinion that ground 2.1 of the grounds of appeal has been made out.

80       For these reasons I am of the opinion that an order should be made that the decision should be suspended and the case remitted to the Commission for further hearing and determination.

BEECH CC:

81      I have read in advance the Reasons for Decision of Her Honour the Acting President and gratefully adopt the background as set out by her.  The learned Commissioner stated at the commencement of his Reasons for Decision that the substantive application in the matter is one by the union on behalf of its member that Mr M has been unfairly dismissed.  The particulars of the claim set out in [4] - [24] (AB 9 - 14) show the significant majority of the particulars detail the reasons why the appellant considers the dismissal to have been unfair.  The relief sought is that Mr M be reinstated to his former position as a transit officer by the PTA, however, the relief to be granted if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair is a matter for the Commission; the relief claimed is not necessarily the relief to be ordered by the Commission.  The respondent's application to the Commission at first instance to dismiss the substantive application under s 27(1)(a) of the Act conflated the relief sought with the claim that the dismissal was unfair.

82      A finding that Mr M's dismissal was unfair would not undermine the reasons why Mr M was granted a spent conviction.  As Her Honour points out, reinstatement is not the only remedy open if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair:  s 23A of the Act.

83      In any event, for the reasons given by Her Honour, I am far from persuaded that an order of reinstatement would have the potential to undermine the decision given by McKechnie J.  The conclusion of McKechnie J was not that Mr M's employment would not be recovered but that it is unlikely that he will obtain employment where he is in a position to exercise lawful force over others for some time, if ever.  That conclusion leaves open whether or not Mr M would obtain employment in a position where he is able to exercise lawful force over others.

84      The particular 2.1.4 to ground 2.1, that the learned Commissioner's conclusion that the right of the union on behalf of Mr M to bring or continue the unfair dismissal claim under the Industrial Relations Act cannot be contrary to equity and good conscience because it does not have the potential to undermine the decision of the Supreme Court granting Mr M a spent conviction, and grounds 2.3 and 2.4, in my view are made out.

85      For those reasons, I agree with the order to issue.

MAYMAN C

86       I have had the benefit of reading a draft of the reasons for decision of Her Honour the Acting President.  I respectfully agree with the conclusions that she reached and have nothing further to add.