DISPUTE RE ALLEGED DENIED PROCEDURAL FAIRNESS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00753

DELIVERED : WEDNESday, 23 July 2014

FILE NO. : CR 9 OF 2014

Applicant

AND

Director General, Department of Education

Respondent

CatchWords : Industrial law (WA) – Jurisdiction – Industrial matter – Public Sector Standard – Employment Standard – Investigation/enquiry regarding allegation against former employee – Notation on employee’s file – Procedural fairness – Penalty – Employee not seeking re‑employment – Employee did not take up opportunity to make submission or to meet investigator – Failure to pursue diligently

Legislation : Interpretation Act 1984  s 5

  Industrial Relations Act 1979  s 7, s 7(1a), s 23(1), s 23(2a), s 44

  Public Sector Management Act 1994  s 76(5), s 80A, s 97(1)(a)

  Public Sector Reform Act 2010  s 94

  Public Sector Management (Breaches of Public Sector Standards) Regulations 2005

Result : Application dismissed

Representation:

Applicant : Mr D Stojanoski of counsel

Respondent : Mr D Matthews of counsel

Reasons for Decision

1          The matter in dispute between the parties is set out in the Memorandum of Matters Referred for Hearing and Determination under s 44 of the Industrial Relations Act 1979 (the IR Act) in the following terms: 

1. Mr Joseph Munforti, a member of the applicant, was employed by the respondent as a teacher.

2. On 5 August 2011, Mr Munforti ceased employment with the respondent. 

3. On 9 August 2011, the respondent wrote to Mr Munforti advising that it had been notified of an alleged incident said to have occurred on 10 March 2011 between Mr Munforti and a student.  As Mr Munforti was no longer an employee of the respondent, the respondent did not at that time conduct an investigation, although it continued to make enquiries.  Mr Munforti did not at that time have an opportunity to respond as he was not an employee. 

4. Subsequently, the respondent advised Mr Munforti that although he was not subject to a finding or possible penalty, the information obtained by the respondent lead to his employment record being marked “not to be permitted future employment with the Department of Education without prior reference to the Director, Standards and Integrity Directorate”. 

5. The applicant says that Mr Munforti has been denied procedural fairness and suffers a penalty in the form of the notation on his employment record. 

6. The applicant seeks that the Commission order:

(1) THAT the respondent remove any caveats from Mr Munforti’s employment record.

(2) THAT the respondent agree that no penalty or finding has been made against Mr Munforti in these circumstances. 

7. The respondent says that:

(1) The Commission has no jurisdiction to hear the matter.

(2) The notation on the file is not a prohibition on employment.

(3) A further investigation of the matter would be difficult because of the passage of time.

(4) The application ought to be dismissed.

Background

2          Mr Joseph Munforti, a member of the applicant, was employed by the respondent as a teacher.  He resigned and ceased employment on 5 August 2011.  Until that time, Mr Munforti had not been subject to any disciplinary proceedings in his employment with the respondent. 

3          By letter dated 9 August 2011 (exhibit A1), Mr Geoff Davis, Manager, Investigative Services, Standards and Integrity of the Department of Education (the Department), advised Mr Munforti that the Department had been notified on 11 March 2011 of an alleged incident said to have occurred between Mr Munforti and a student on 10 March 2011.  As Mr Munforti was no longer an employee, the respondent would not conduct an investigation pursuant to Part 5 of the Public Sector Management Act 1994 (PSM Act), and therefore he would not be subject to any findings or penalty.  The letter advised, however, that ‘in order for the Department to meet the broader expectations of the community, enquiries into this matter will be continued’. 

4          By letter dated 26 March 2012 (exhibit A2), Mr Michael Cullen, Director, Standards and Integrity of the Department informed Mr Munforti that enquiries were ‘now complete and although you are not subjected to a finding or any possible penalty, the information obtained during the inquiry process is such that it is my intention to mark your employment record ‘Not to be permitted future employment with the Department of Education without prior reference to the Director, Standards and Integrity Directorate’.  The letter went on to say that prior to taking that course of action, the respondent was providing Mr Munforti with an opportunity to make a written submission in regards to the intended action noted above.  It said that ‘[i]n accordance with procedural fairness requirements, I have enclosed a copy of the investigator’s report for your information.  The material is provided to assist you in responding to the action I intend to take’.  A copy of the Standards and Integrity Investigation Report (the report) (exhibit A4) was attached. 

5          By letter dated 3 May 2012 (exhibit A3), Mr Cullen, in referring to his correspondence of 26 March 2012, noted that Mr Munforti was provided with an opportunity to respond to the proposed action and that on 5 April 2012, Mr Munforti had contacted the respondent and informed Ms Kristy Gulland, a Senior Investigator with the Standards and Integrity Directorate, of his interest in arranging an appointment to discuss the incident the subject of the report.  He agreed to contact Ms Gulland prior to the close of business on 13 April 2012 to arrange a mutually convenient time for the meeting to occur, however, as at 3 May 2012, the date of the letter, Mr Munforti had not contacted Ms Gulland.  The letter then went on to say that as a consequence, his employment record had been marked ‘Not to be permitted future employment with the Department of Education without prior reference to the Director Standards and Integrity Directorate’ (the notation). 

6          There is no evidence that Mr Munforti has applied for and been refused employment with the respondent or that he has any intention of applying in the future. 

7          The applicant says that:

1. The notation constitutes a penalty imposed on Mr Munforti by the respondent and that there is a direct link between employment and the notation;

2. The penalty has been imposed in circumstances where Mr Munforti was denied procedural fairness at each stage of the process;

3. The penalty imposed is unlawful as the only penalties available are those set out in s 80A of the PSM Act;

4. The notation constitutes a penalty because it is a detriment to Mr Munforti’s livelihood; alternatively,

5. The notation affects Mr Munforti’s legitimate interests.  If he applies for employment, there is a prejudice in the respondent’s mind.  The notation is the same as saying that he will not be permitted future employment at all. 

8          The respondent says that the matter is not an industrial matter in that while some matters of dispute between a person who is not a current employee of the employer and the employer may be industrial matters, not every such dispute is ‘really and truly a dispute of an industrial nature, susceptible of just resolution under the’ Industrial Relations Act 1979 (the IR Act).  The matter does not constitute a refusal to employ as Mr Munforti has not applied for and been refused employment.  Rather, the issue relates to the process an employer adopts to gather information about an applicant for employment, and the presence in the mind of the employer of a reservation in relation to the person.  That is not a matter properly for regulation by the Commission. 

9          Further, the respondent says that the matter of recruitment and appointment of persons in the WA public sector is the subject of a Public Sector Standard.  The IR Act, under s 23(2a), together with s 97(1)(a) of the PSM Act, excludes the Commission’s jurisdiction in relation to such a matter. 

10       Alternatively, the respondent says that even if a penalty was imposed, Mr Munforti was afforded natural justice yet he failed to take up the opportunities provided to him. 

11       The respondent also says that the matter is now stale as Mr Munforti resigned three years ago and the applicant has not dealt with the matter expeditiously.  The respondent is entitled to have moved on in that time. 

Issues and Consideration

Jurisdiction

12       The Commission has jurisdiction to enquire into and deal with any industrial matter (s 23(1) IR Act).  An industrial matter is defined in s 7 of the IR Act.  Relevant parts of that definition are: 

… any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to —

(a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;

(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;

(c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;

(ca) the relationship between employers and employees;

…

and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include —

…

13       Section 7(1a) qualifies that definition in the following terms: 

(1a) A matter relating to —

(a) the dismissal of an employee by an employer; or

(b) the refusal or failure of an employer to allow an employee a benefit under his contract of service,

is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended.

14       In Hotcopper Australia Ltd v Saab (2002) 82 WAIG 2020, Anderson J, with whom Parker and Hasluck JJ agreed, said: 

‘Industrial matter’ – s 7 and s 7(1)(1a)

19 Prima facie a claim by an employee (as distinct from an ex-employee) that he has not received a benefit provided for in the employment contract falls within the definition of ‘industrial matter’ in s 7 of the Act.  It is a matter ‘relating to the ... rights ... of [the] employee’ within the general words of the definition and it is a matter relating to ‘the wages, salaries, allowances or other remuneration of ... [the employee] in respect of ... [his] employment’ within subpar (a) of the definition and is a matter squarely within the matters declared by s 7(1)(1a) to be ‘an industrial matter for the purposes of this Act ...’.  Thus, a dispute concerning either the denial of a money entitlement provided for in the contract or the denial of an entitlement in a form other than money would be within the literal ambit of the definition of ‘industrial matter’ in s 7.  So much was assumed by this Court in Belo Fisheries v Froggett (1983) 63 WAIG 2394 per Olney J at 2396 at least with respect to money entitlements.  It would also plainly be a claim of the kind described in s 29(1)(b)(ii) and so referable to the Commission by the employee himself.

20 The question whether a dispute is an industrial matter, if it is a dispute between a former employer and an ex‑employee, was answered in the negative by this Court in a series of decisions which may be referred to as the ‘Pepler’ line of cases, they being Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11; Kounis Metal Industries Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 73 WAIG 14; Coles Myer Ltd trading as Coles Supermarkets v Coppin & Ors (supra); The Federated Miscellaneous Workers Union of Australia (WA Branch) v Nappy Happy Hire Pty Ltd t/a Nappy Happy Service (1994) 74 WAIG 1493 and Sakal v T O'Connor & Sons Pty Ltd (1995) 75 WAIG 1509.  In these cases, it was held, in effect, that a claim for a monetary sum, whether it had accrued due under the contract or whether it was in the nature of a claim for damages for breach of contract, was not an industrial matter if the employment relationship had ended.  The effect of these cases was, however, reversed by the enactment in May 1995 of s 7(1)(1a) which provides:

‘(1a) A matter relating to – 

(a) the dismissal of an employee by an employer; or

(b) the refusal or failure of an employer to allow an employee a benefit under his contract of service,

is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended.’

…

Was this claim an industrial matter?

26 It must be recognised that there is a limit to what is and what is not an industrial matter in the master/servant context for the purposes of the Industrial Relations Act 1979 even although the definition of the term in s 7 would appear to be far‑reaching in that context. Parliament cannot be taken to have intended that any matter relating in any way to the duties of employers as regards contractual benefits is a matter that may be dealt with by the Commission as an industrial matter, although it is possible to read the definition of industrial matter as expansively as that. Notwithstanding the enactment of s 7(1)(1a), the definition must be read down by reference to the scope and purpose of the Act as a whole ‘and so read, must be confined to [matters] of an industrial nature’:  Slonin v Fellows (1984) 154 CLR 505.  Otherwise, as Kennedy J pointed out in Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (Pepler's Case) (supra) at page 18, a vast range of powers would be available to the Commission which it could never have been thought appropriate to confer on it.  Take, for example, a reference by an employee of a dispute with respect to a safety matter.  The employee may fairly allege that his implied contractual entitlements include providing him with a reasonably safe workplace, and safe and suitable equipment, and that the failure to do so, being a matter relating to a benefit under the contract of service within the general words of the definition of industrial matter in s 7, is an industrial matter.  Subject to s 7(3), it would be difficult to deny the employee's standing to refer the matter to the Commission under s 29(1)(b)(ii) and, again subject to s 7(3), it would be difficult to deny the Commission's power to deal with the matter by making appropriate orders in order to settle the dispute.  But supposing the employee's reference included a claim that, because he had been denied the benefit of a safe workplace in breach of the implied agreement, he had suffered loss through injury.  To my knowledge, it has not been suggested that a claim by an employee for damages for injuries sustained in the course of his employment, in consequence of a breach of the employer's obligation under the contract of employment to provide a safe working environment, is a matter which can be dealt with by the Commission, even although it would be within the reach of the literal words of the definition of industrial matter. 

27 I think it is impossible to attribute to parliament an intention that the Commission should be a tribunal with power to deal with the full range of conflicts and causes of action that might possibly arise between master and servant, including between corporations and their highly‑paid executives and top management.  In my opinion, a line must be drawn at some point to mark out the boundary beyond which it was never intended that the Commission's powers to settle disputes should be exercised and I think that the line must be drawn by reference to the intrinsic nature and circumstances of the particular dispute, the question being whether it is or is not really and truly a dispute of an industrial nature, susceptible of just resolution under the Act.

15       Therefore, the Industrial Appeal Court drew a line dividing matters ‘by reference to the intrinsic nature and circumstances of the particular dispute’ and whether it is ‘really and truly a dispute of an industrial nature’.  At one point, matters were divided according to whether the employment relationship was ongoing or had ceased and was not to be re‑established.  However, the legislation now clearly provides that a number of different matters are industrial matters even though the employment relationship has not yet or will not come into existence, such as refusal to employ. 

16       The issue of refusal to employ is clearly an industrial matter as (see s 7(1), ‘industrial matter’ (c) and RGC Mineral Sands Ltd & Anor v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch and Ors (2000) 80 WAIG 2437; [2000] WASCA 162). 

17       The conditions to apply in future employment may be included.  The conditions which are to apply after the employment has ended are included.  Unfair dismissal and denied contractual benefits claims are included even though the employment relationship has ended. 

18       Even though the applicant says that the notation is effectively declaring that Mr Munforti will not be permitted to be employed at all, this is not the plain meaning of the notation.  It says that he is not to be permitted to be employed without a particular thing occurring.  As Mr Munforti has not sought employment with the respondent, the notation has not come into effect.  Unless he does so, it may never come into effect.  In that sense, it is hypothetical. 

19       Therefore, there has been no refusal to employ.  Nor does the notation contain a refusal to employ in the future. 

20       The dispute is about the fairness of the respondent, the former employer, undertaking enquiries about an allegation of breach of discipline during the employment, without providing the employee with an opportunity to be heard; placing a notation on its employment records, requiring a particular thing to happen in the event that there is consideration given to employing Mr Munforti.  It is also about whether the notation constitutes a penalty. 

21       I will deal later with the issue of the respondent having a prejudiced mind as to any future employment, as asserted by the applicant.  On its face, the notation is merely that the Director of Standards and Integrity is to have some input into any such decision.   

22       There is no authority which provides that the definition of ‘industrial matter’ either includes or excludes the considerations an employer might have or not have in appointing employees, or any records it might make on the files of its former employees which might affect those former employees should they seek future employment. 

23       Given the scope of the definition of ‘industrial matter’, I conclude that a dispute about the circumstances under which enquiries into conduct of a former employee relating to matters arising during the employment, resulting in an employer placing a note on the file of a former employee as to conditions for consideration of re‑employment of the former employee, is a matter affecting or relating to the duties of employers or the rights of employees.  It relates to matters occurring within the employment and goes to the prospect of re‑establishing the employment relationship, the essence of the industrial matter.  Accordingly, it falls within the definition of ‘industrial matter’.

24       The respondent says that the matter relates to the recruitment or appointment of Mr Munforti and accordingly, s 23(2a) of the IR Act and s 97(1)(a) of the PSM Act exclude the Commission’s jurisdiction from dealing with a matter where there are regulations prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of Public Sector Standards.  The Employment Standard is one which prescribes that the employer is required to apply principles of merit, equity and transparency in the process of making appointments to fill vacancies.  The Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 set out a procedure to deal with such matters.  As the Industrial Appeal Court said in Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231, per Wheeler and Le Miere JJ: 

53 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. 

54 … 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. 

…

56 ... 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.

25       The issue before the Commission is not about whether the respondent will or will not appoint Mr Munforti according to the requirements of the Employment Standard.  It is about whether the respondent’s action in making the notation is fair in the circumstances and whether the notation constitutes a penalty against Mr Munforti.  In those circumstances, it is not a matter to which s 23(2a) applies because it is not a matter, at this stage of the process, relating to the Employment Standard.  Were Mr Munforti to apply for employment and the respondent rely upon the notation in a way which was not in accordance with the principles of merit, equity and transparency in particular, then that may be a matter which is beyond the jurisdiction of the Commission. 

26       In those circumstances, I find that there is no jurisdictional impediment to the Commission dealing with the matter. 

Merits

27       Neither party called any evidence during the hearing of this matter.  A number of documents were received into evidence without objection.  My consideration of the facts in this matter is therefore based on what is contained in the documents.  The applicant says that Mr Munforti has been subject to a penalty.  The PSM Act does not refer to a ‘penalty’ being imposed on an employee following a finding of a breach of discipline or at any other time.  It refers to ‘disciplinary action’ (s 80A, PSM Act).  The range of disciplinary actions which may be applied to an employee is set out.  According to s 76(5) of the PSM Act, the Commissioner’s Instructions may specify the disciplinary action that may be taken in respect of a former employee. 

28       The Interpretation Act 1984 sets out the meaning of terms used in written law in this state.  It includes ‘penalty’, which ‘means a fine, imprisonment, or other form of punishment, including the suspension or cancellation of a licence, registration or permit and disqualification from obtaining a licence, registration or permit’ (s 5). 

29       In common usage, penalty means: 

1.  a punishment imposed or incurred for a violation of law or rule.  2.  a loss or forfeiture to which one subjects oneself by non‑fulfilment of an obligation.  3.  that which is forfeited, as a sum of money.  4.  consequence or disadvantage attached to any action, condition, etc.  …

(The Macquarie Dictionary, (3rd ed, 1997))

30       The respondent advised Mr Munforti that there was an allegation against him, and although there would be no investigation under Part 5 of the PSM Act, the respondent would continue to make enquiries. 

31       I note in passing that s 76 of the PSM Act was amended by s 94 of the Public Sector Reform Act 2010 to insert a new subclause (4) in the following terms: 

(4) A former employee who —

(a) may have committed a breach of discipline; and

(b) was an employee to whom this Part applied at the time of the suspected breach,

is, in circumstances specified in the Commissioner’s instructions, to be taken to be an employee for the purposes of this Part even though the person has ceased to be employed in the Public Sector by or under an employing authority.

32       This amendment came into effect from 28 March 2011.  Therefore, there was nothing preventing the respondent from formally commencing or continuing an investigation of the allegation which was notified to the respondent on 11 March 2011.  Mr Munforti was still an employee of the respondent for a further five months after the alleged incident, and four and a half months after the legislation was amended. 

33       In any event, Mr Munforti was notified by the letter from the Manager, Investigative Services, Standards and Integrity on 9 August 2011 that the respondent intended to continue to make enquiries.  He was not interviewed and, according to the report, he was not ‘provided any opportunity to respond or provide evidence.  As such, no finding can be made as to Mr Munforti’s culpability or otherwise’ (exhibit A4, [3.1]).  The report also notes that ‘the circumstances surrounding Mr Munforti requesting possession of the laptop from Brendon remain unclear given the inconsistencies in Mr Munforti’s, Brendon’s and Tyson’s accounts’ (exhibit A4, [3.2]).  The report goes on to note ‘[w]hilst Mr Munforti’s claims …’.  In this way, the report suggests that whilst Mr Munforti was not interviewed during this enquiry, he may have provided his version of events to the then school principal, Mr Trevor Hunter. 

34       I note that the Initial Reporting Form which was attached to the report appears to have been completed by the ‘reporting person’, Mr Hunter, the school principal at the time.  This form contains comments that Mr Munforti stated certain things.  This raises an inference that Mr Munforti was interviewed by the school principal prior to the initial report of the incident being made. 

35       I find that, notwithstanding that the report says that no conclusions can be reached, in fact conclusions have been reached.  It says in a number of places that ‘it is reasonable to conclude’ (see exhibit A4, [3.2], [3.3], [3.4], [3.5] and [3.6.2]).  Of particular concern is that at [3.6.1], [3.6.2] and [3.6.3] it records that: 

3.6.1 Both Brendon and Tyson state Mr Munforti raised a closed fist at Brendon which is inconsistent with the statement of Harlen and slightly different to the information provided in the IRF by Mr Hunter which suggests Mr Munforti initially raised a clinched fist ‘but almost immediately changed the action to that of an open hand as if preparing to slap the student.’  Whilst this difference is acknowledged, either action is considered to be an inappropriate action by a teacher towards a student. 

3.6.2 It is reasonable to conclude that Mr Munforti did raise his hand, either open or closed as a result of the information stipulated in point 3.6 and that such action is considered to be threatening behaviour. 

3.6.3 Mr Hunter’s information which states Mr Munforti advised him that he raised his hand to convey his disgust to the student cannot be considered as mitigation for Mr Munforti’s actions.  Any form of threatening behaviour by a teacher towards a student is not acceptable conduct and contravenes Relationships with others within the Office of the Public Sector Standards Code of Ethics. 

36       However, it notes under 4 – Issues Arising, [4.2]:

As this matter was not managed under the provisions of Part 5 of the Act for valid reasons, Mr Munforti’s account has not been obtained, considered or tested. 

37       At [4.3] it notes: 

As this matter was not managed under the provisions of Part 5 of the Act for valid reasons, no findings can be made to Mr Munforti’s culpability or otherwise. 

38       Under the heading of ‘Recommendation’, the report says: 

5.1 In light of the information collected to date, it would appear that Mr Munforti has acted in an aggressive and threatening manner towards a student.  Should Mr Munforti have remained a Department employee, I would have recommended a formal allegation letter be issued to him seeking his response. 

5.2 As Mr Munforti is no longer a Department employee, it is recommended that Mr Munforti’s employment record number be marked ‘Not to be permitted future employment with the Department of Education without prior reference to the Director Standards and Integrity.’

39       The report is signed by Ms Gulland, Senior Investigator, Standards and Integrity, and dated 16 March 2012. 

40       The report appears to be of an investigation into Mr Munforti’s conduct, it contains conflicting comments in that it suggests that conclusions have been drawn but goes on to say that no conclusions have been drawn.  It notes the conflict in the various accounts but concludes that whichever account is accepted, the conduct is inappropriate.  It notes that Mr Munforti’s account has not been obtained, considered or tested, but refers to an account given to Mr Hunter by Mr Munforti saying it cannot be considered as mitigation.  It says that in light of the information collected ‘it would appear that Mr Munforti has acted in an aggressive and threatening manner towards a student’.  It notes that had he been continuing in employment, then a formal allegation would have been made against him, and recommends that the notation be made on his file. 

41       It is difficult to reconcile: 

1. What appears to be analysis of evidence, judgments as to acceptability of conduct and conclusions as to the conduct;

2. A statement that if Mr Munforti had continued to be employed, a formal allegation would have been made against him;

3. A recommendation that a notation be made; and

4. The statement that no findings can be made as to Mr Munforti’s culpability or otherwise,

without forming the view that the notation is not a ‘consequence or disadvantage attached to any action, condition’, that is, a penalty.  Had the report simply recorded the allegation and the various accounts, it may appear to be a record of an allegation.  The repeated comments that ‘it is reasonable to conclude’, along with comments that either of raising a closed fist or ‘an open hand as if preparing to slap the student … is considered to be an inappropriate action by a teacher towards a student’ (exhibit A4, [3.6.1]), followed by a comment that either ‘is considered to be threatening behaviour’ (exhibit A4, [3.6.2]), make the report appear to be one in which conclusions as to the conduct are drawn.  In this context, the notation on the file is not merely a procedural step should Mr Munforti apply for employment, but is a consequence of those conclusions. 

42       The letter to Mr Munforti dated 26 March 2012 invites him to make a written submission in regard to the ‘intended action’ of the Director of Standards and Integrity to mark his file.  It says that the report ‘is provided to assist you in responding to the action I intend to take’.  There is no invitation for him to respond to the allegation or make a submission regarding the substance of the report but rather in respect of the marking of the file. 

43       Given those circumstances, it seems to me that the respondent has undertaken an unfair process which has the potential to result in the respondent ultimately imposing a penalty by way of not permitting Mr Munforti’s future employment without prior reference to the Director Standards and Integrity, who has already seen a report which appears to reach conclusions about Mr Munforti’s conduct, that he has acted in an aggressive and threatening manner towards a student, and at the same time says that his side of the story has not been obtained. 

44       I am of the view that the report has the potential to affect Mr Munforti’s interests in the future.  The question arises as to what, if anything, ought to be done, or could practicably be done.  There is no evidence that it has actually affected Mr Munforti and its future effect is hypothetical, depending on whether he seeks employment in the future. 

45       Further, I note that whilst Mr Munforti was not invited to make submissions about the allegations, he was invited to make a written submission about the notation only after the report came down.  He did not do so.  He sought an opportunity to meet with the Senior Investigator, the author of the report, and Mr Munforti was to get back to her to arrange a mutually convenient time, but he did not do so. 

46       This matter was the subject of an application filed by the applicant on 5 April 2013 (C 197 of 2013), 11 months after Mr Munforti was advised of the notation having been made.  However, that file was closed on 6 November 2013, following the applicant’s failure to advise the Commission of any need to keep the file open.  A further application was filed on 4 April 2014, five months later.  The applicant has not diligently pursued this matter. 

47       After three years, it would not now be practicable for the respondent to investigate further, particularly regarding the recollections of the witnesses, all of whom appear to have been children.  The matter is now stale.  Having said that, I am surprised that, in all of the circumstances, there is no evidence to suggest that Mr Munforti has made any efforts to provide the respondent with his perspective on the matter such as to enable the respondent to properly reconsider its position, and if he has not done so, it may be appropriate for him to consider it.  The respondent could then at least keep his correspondence on its file in case Mr Munforti ever needs to have resort to the respondent for possible employment in the future. 

Conclusion

48       I find that the matter is an industrial matter and the Commission has jurisdiction to deal with it as it does not relate to a matter in respect of which there is a procedure referred to in s 97(1)(a) of the PSM Act. 

49       The report appears to have reached conclusions about Mr Munforti’s conduct, even though it says conclusions cannot be reached, which caused the respondent to make the notation without allowing Mr Munforti to make a submission about the allegations.  It invited a submission about the intention to make the notation but not about the material which formed the basis for that notation.  The invitation to make the submission about the notation is analogous to inviting a submission about a proposed penalty after findings of a breach of discipline or misconduct have been made.  In that context, the notation has the appearance of a penalty. 

50       However, Mr Munforti did not respond to the invitation to make a submission, did not follow‑up about a time to meet the Senior Investigator, and the applicant has failed to pursue the matter in a timely manner.  Further, there is no evidence that Mr Munforti has suffered or will suffer any detriment as there is no indication that he has sought or ever will seek to be employed by the respondent. 

51       In those circumstances, the matter will be dismissed.