DISPUTE RE TERMINATION OF EMPLOYMENT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00760

DELIVERED : FRIday, 25 July 2014

FILE NO. : CR 11 OF 2014

Applicant

AND

The Governing Council of Kimberley Training Institute

Respondent

CatchWords : Application to amend the Memorandum of Matters Referred for Hearing and Determination – Inclusion of additional grounds – Scope of the Commission’s inquiry

Legislation : Industrial Relations Act 1979  s 44, s 44(9)

Result : Application granted in part

Representation:

Applicant : Mr M Amati

Respondent : Mr D Anderson of counsel

Reasons for Decision

1         The applicant seeks to amend the Memorandum of Matters Referred for Hearing and Determination (the Memorandum) to expand on the grounds upon which it seeks to rely.  The respondent says that the applicant has had an opportunity to respond to the Commission’s draft Memorandum and failed to raise the issues at that time.  The respondent also says that it is not appropriate for the Commission to consider some of the matters the applicant wishes to raise.  The respondent also seeks an opportunity to respond to any amendments allowed. 

Background

2         On 14 April 2014, the applicant filed an application seeking ‘[a] very urgent section 44 conference – for an order quashing a decision by the employing authority to dismiss Mr James (Alex) Petticrew’. 

3         The grounds on which the application was made were cited as:

The respondent’s disciplinary process against Mr Petticrew is alleged to have been unfair, oppressive and unduly prejudiced; as well as unlawful, including that it has been carried out by the respondent in a summary manner. 

SEE ATTACHED SCHEDULE

4         Schedule A to the application sets out the background to the matter and elaborates on the grounds for the application.  It sets out interim relief sought should agreement not be reached in conference as including an order that Mr Petticrew be reinstated, on full salary, until the matter is heard and determined.  The remainder of the interim orders sought relate to discovery. 

5         The final orders sought include a declaration that the whole of the disciplinary process is null and void and of no effect, and orders that the respondent’s decision to dismiss Mr Petticrew on 9 April 2014 be quashed and that he be reinstated; that the respondent be prevented from re‑instigating any further disciplinary process in respect of the allegations; that the documents generated by the respondent in relation to the matter be expunged from Mr Petticrew’s personnel file, enclosed in another file marked ‘Privileged and Strictly Confidential’ and be opened only in the presence of Mr Petticrew, and any other orders that the Commission may consider necessary and just. 

6         The Commission convened conferences in this matter on 16 April 2014, 1 May 2014 and 9 May 2014. 

7         On 12 May 2014, Ms Karen Dickinson, the Managing Director of Kimberley Training Institute, wrote to Mr Petticrew, informing him that: 

[A]ll previous findings made against you in relation to the above disciplinary matter are hereby withdrawn.  I have made this decision after considering legal advice recently received by Kimberley Training Institute from the State Solicitor’s Office.

As a consequence of my rescinding the findings made against you, you are hereby re‑instated at your substantive position of Lecturer Maritime Security effective immediately and I confirm that your continuous service has been maintained. 

8         However, the letter also noted that the disciplinary process would continue and had not been discontinued as a result of the decision to rescind the findings.  Ms Dickinson advised that she had made a decision to delegate her responsibilities under the respondent’s disciplinary policy to her colleague, Ms Julie Kean, and had sought Ms Kean’s assistance in conducting the disciplinary process from that point and that she, Ms Dickinson, would no longer be involved.  It was noted that Ms Kean had not been involved in the disciplinary matter to date and therefore, she would be able to deal with the matter.  In the meantime, Mr Petticrew was directed to remain at home on full pay and not attend the Kimberley Training Institute campus unless formally instructed or invited. 

9         By letter dated 15 May 2014, Ms Kean wrote to Mr Petticrew, noting the background to the matter and advising that it was her intention to continue the disciplinary process related to the suspected breach of discipline, and she set out the approach she was intending to take.  She also set out the evidence and particulars, inviting Mr Petticrew to respond. 

10      On 30 May 2014, a further conference was convened at which time the applicant sought that the disciplinary process cease and not be re‑instituted on a number of grounds, including its deleterious effect on Mr Petticrew’s health, that some of the evidence put to the applicant is tainted because it has been commented on by a third party, and for other reasons.  The applicant sought that the matter be referred for hearing and determination.  The respondent agreed that the disciplinary process would be put on hold whilst the matter is heard and determined.  The parties discussed, at great length, the scope of the matter to be referred for hearing and determination.  It was my understanding that ultimately there was agreement that the matter for determination was quite limited in its scope.  The Commission was to draft a Memorandum of Matters to be Referred for Hearing and Determination and forward that to the parties for their comment.  Other procedural matters were also discussed. 

11      The Commission was in the process of finalising a draft Memorandum when, on 5 June 2014, the applicant filed ‘Applicant’s Memorandum of Matters’ setting out the background and the grounds for its particulars to be included in the Memorandum.  This document was of approximately three pages in length. 

12      By email dated 9 June 2014, the Commission, through the Associate, forwarded to the parties a draft Memorandum prepared by the Commission for the parties’ comments.  The email noted: 

Mr Amati (the applicant’s representative), the Commission is in receipt of your ‘Applicant’s Memorandum of Matters’.  Whilst the A/Senior Commissioner has seen the document, she has asked that the attached document be forwarded to the parties in any event. 

13      The draft Memorandum provided by the Commission was significantly briefer than that provided by the applicant, and referred to both the applicant’s and the respondent’s positions as the Commission understood them.  It relied on the Commission’s understanding of the position reached in discussions in the conference on 30 May 2014.  It did not, however, contain all of the grounds set out in the Applicant’s Memorandum of Matters filed on 5 June 2014. 

14      The respondent responded to the Commission’s draft Memorandum of Matters to be Referred by email dated 19 June 2014, setting out a couple of proposed variations to the Memorandum.  By email dated 23 June 2014, the applicant’s representative responded with some minor changes to paragraphs 4 and 8 of the Commission’s draft Memorandum and an amendment to the declarations and orders sought.  The respondent replied with some proposals for changes. 

15      After taking account of the parties’ responses to the draft Memorandum, the Commission finalised the Memorandum and it was issued by the Commission on 24 June 2014, in the following terms: 

1. Mr James Alex Petticrew, a member of the applicant, is employed by the respondent as a Lecturer Maritime Security at Kimberley Training Institute in Broome. 

2. The respondent alleges that on 24 February 2014 Mr Petticrew breached discipline. 

3. On 28 February 2014, the respondent began a disciplinary process in respect of the alleged breach of discipline by Mr Petticrew. 

4. On 24 March 2014, the respondent informed Mr Petticrew that he had breached discipline and that he would be dismissed; proceeding to dismiss Mr Petticrew effective from 9 April 2014. 

5. On 12 May 2014, after a conference between the parties before the Commission, the respondent wrote to Mr Petticrew advising that the findings against him were withdrawn and he was reinstated to the substantive position of Lecturer Maritime Security. 

6. On 15 May 2014, the respondent wrote to Mr Petticrew, informing him the respondent intended to continue the disciplinary process relating to the alleged breach of discipline. 

7. The applicant says that:

(1) The disciplinary process in relation to the alleged breach of discipline on 24 February 2014 was flawed. 

(2) Having regard to the flawed process and the impact the disciplinary process is having on Mr Petticrew’s health, it is harsh, oppressive and unfair to continue the disciplinary process. 

8. The applicant seeks that the Commission:

a) Declare that the respondent’s stated intention to recommence the disciplinary process in light of the previous flawed process, recession [sic] of the dismissal and reinstatement is unduly harsh, oppressive and unfair;

b) Order that the respondent is prevented from proceeding with any disciplinary process against Mr James Alex Petticrew regarding the incident said to have occurred on 24 February 2014. 

9. The respondent says that:

(1) The disciplinary process in relation to the alleged breach of discipline on 24 February 2014 was flawed. 

(2) It should be allowed to continue its investigation of the matter either by recommencing the existing disciplinary process at a particular stage to overcome errors or flaws in the existing disciplinary process or by declaring the existing disciplinary process null and void and commencing a new disciplinary process to resolve the allegation and, if necessary, impose the appropriate penalty. 

(3) That this application ought to be dismissed. 

16      It is noted that the applicant had not, until that point, sought to include the detail which it had previously sought in its own draft Memorandum filed on 5 June 2014.  The applicant says that it assumed those matters would be included, however, they were not. 

17      On 25 June 2014, the matter was listed for hearing and determination for 16 July 2014. 

18      On 30 June 2014, six days after the issuing of the Memorandum, the applicant’s representative, Mr Amati, telephoned the Commission expressing concern that the Memorandum had not included the detail contained in paragraph 6(a) to (h) of the document filed by the applicant on 5 June 2014, and did not wish to be prevented from putting all of those matters to the Commission during the hearing.  He was advised by the Associate, in an email dated that day, that the Memorandum had been finalised, taking account of the parties’ responses to the draft.  The email went on to note: 

It is suggested that the applicant foreshadow, with as much notice as possible to the respondent, and perhaps seek the respondent’s consent, to make variations on the day of the hearing. 

19      By email dated 2 July 2014, the applicant did, in fact, foreshadow seeking to make the amendments to the Memorandum in accordance with paragraph 6(a) to (h) of its document filed on 5 June.  The respondent objected to those amendments at that point and there was an exchange of emails between the parties. 

20      The changes, which the applicant seeks to make, include additional grounds for its application by the inclusion of the following: 

a. Mr Petticrew having already been subjected to documented prolonged acute stress and anxiety, since February – the time at which the disciplinary process was initiated by the respondent; 

b. Mr Petticrew having forthrightly admitted with contrition the words uttered and that such words did not represent a material threat to Master (JB) at any time;

c. As a matter of fact, Master (B) does not attend that class at all – so no ‘intention’ may be ascribed to his behaviour; except it being reactive and thoughtless, regrettably. 

d. Mr Petticrew having given an unqualified undertaking to the respondent that it will refrain from voicing any such utterances in the future; 

e. the alleged misdemeanour being at the ‘lower‑end’ of the scale;

f. the evidence upon which the respondent has said to rely – as this was enclosed in a further correspondence to Mr Petticrew on the 15th May 2014 – being overtly contradictory; as well as irretrievably tainted;

g. Mr Petticrew having absolute [sic] no responsibility whatsoever for the botched disciplinary process implemented by the respondent, notwithstanding the rescission of its effects. 

h. The sought Order would be a general deterrent for ensuring that other employees are not dealt with unfairly and oppressively by well‑established public sector employees which operate within a complex set of statutory regimes to which they are compelled to comply. 

21      It is quite common for circumstances to change between the time an application is filed and a matter is referred for hearing and determination pursuant to s 44 of the Industrial Relations Act 1979 (the Act).  This is partly because, during the conciliation process, some matters which were originally referred have been resolved.  This is envisaged by s 44(9) of the Act.  It is part of the reason why a Memorandum of Matters is prepared following conciliation, to set out the dispute as it stands at that point. 

22      The question in this case is whether, and to what degree, the matter before the Commission should traverse matters which would be for the respondent to determine, should it not be prevented from continuing the process.  The matters which the applicant seeks to add to its grounds include matters which would have the effect of requiring the Commission to step into the shoes of the employer and make a decision as to Mr Petticrew’s conduct, the circumstances under which the conduct occurred, the effect of that conduct, whether and to what extent Mr Petticrew has acknowledged his behaviour and the undertakings he has given, the severity of that conduct, and any appropriate penalty.  The effect of this would be to not only prevent the respondent undertaking the further investigation which it intended to do, but would obviate the need for the respondent to manage that process for itself and exercise its responsibilities, and the Commission would be doing those things in lieu of the employer. 

23      The respondent says it should have an opportunity to undertake the whole of the process. 

Consideration and Conclusion

24      In Civil Service Association of Western Australia Incorporated v Director General of Department for Community Development [2002] WASCA 241, the Industrial Appeal Court commented on the appropriateness or otherwise of the Public Service Arbitrator (the Arbitrator) conducting an investigation into the facts of an allegation as opposed to the employing authority doing so.  Anderson J, with whom Parker and Hasluck JJ agreed, said: 

20 I do not consider that this was appropriate.  If an employing authority suspects that there may have been an actionable breach of discipline, and there are reasonable grounds for that suspicion, the authority ought to be allowed to carry out its statutory duty to conduct an investigation to see whether there was in truth an actionable breach of discipline.  Prima facie it would not seem to be a proper exercise of jurisdiction by the Public Service Arbitrator to stop the employing authority from doing so on the basis of the Public Service Arbitrator's own investigation of the facts.  No doubt it is perfectly proper for the Public Service Arbitrator to stop baseless disciplinary proceedings.  However, I think the judgment as to whether the proceedings are or are not baseless should be made by reference only to the matters alleged in the complaint.

21 As it happens, I think that in the end this is exactly what the Arbitrator did in fact do in this case.  Although the Arbitrator summarised Mr H's evidence, it appears from her reasons for decision that she looked only at the conduct that was ‘alleged in respect of … [Mr H] …’, as she put it, in order to determine whether she should put a stop to the investigations, which she did. There is little or no indication in her reasons that her decision to do so was based on the evidence given by Mr H.  It would have been better if at the outset the Arbitrator had declined to hear that evidence.

25      That matter involved an application to the Arbitrator to, in effect, order that the employer cease its investigation at least partly on the ground that the alleged conduct of Mr H was not undertaken in the course of his employment and therefore, the employer was not entitled to enquire into that conduct. 

26      The matter before the Commission in this case is one where the employer has already completed the investigation process, made findings and imposed a penalty.  The applicant then filed the application, alleging, amongst other things, procedural flaws.  During the course of conciliation, the respondent acknowledged that the process was flawed, withdrew the findings and penalty, and, as a consequence, reinstated Mr Petticrew. 

27      Therefore, there are differences between the factual matrix and the stage of the process reached of this matter and that in the Civil Service Association of Western Australian Inc v Director General of Department for Community Development.  However, the principle espoused by Anderson J appears apposite; that is, that the Commission ought not to undertake its own investigation of the facts, but ought to consider whether there are grounds to prevent the employer from carrying out its statutory duty to conduct an investigation.  Where this application seeks to stop the respondent from continuing that investigation for reasons going to the process undertaken by the respondent, I am of the view that this ought to be the scope of the Commission’s inquiry, rather than the facts of the alleged conduct, or the appropriate findings and, if any, the penalty.  Those things might ultimately be the subject of consideration if the Commission decides against ordering the respondent to cease the process, it proceeds, makes findings and imposes a penalty, and the applicant or Mr Petticrew refer the matter of the penalty, such as harsh, oppressive or unfair dismissal, to the Commission. 

28      Therefore, the matter before the Commission ought to be limited to deciding whether or not to order the process to cease on grounds relating to that process and to the effects on Mr Petticrew. 

29      In that context, the Memorandum ought to be amended to cover those matters set out in paragraphs 6(a), (g) and (h).  Paragraph 6(f) in so far as it relates to the evidence being ‘irretrievably tainted’ is also to be included, however, that part relating to the evidence being contradictory is not to be included.  Those matters set out in paragraphs 6(b), (c), (d) and (e), and (f) in so far as it deals with the evidence being contradictory, require the Commission to consider what the Industrial Appeal Court in Civil Service Association of Western Australia Inc v Director General Department for Community Development said it ought not to do; that is, to conduct its ‘own investigation of the facts’ regarding the allegations. 

30      Accordingly, the Memorandum is to be amended to include paragraph 6(a), (g) and (h), and part of (f), of the Applicant’s Memorandum of Matters filed on 5 June 2014.  Attached is a draft which includes those amendments. 

31      The respondent is to file and serve on the applicant any consequential amendments it wishes to have included in the Memorandum as to its position in response to those matters, within seven days of the date of these Reasons.  The Commission will then formally amend the Memorandum. 

32      The parties are to advise, as soon as possible, as to their availability for the hearing to be reconvened, and whether they wish to rely on witness statements to deal with any necessary evidence in chief.

DRAFT AMENDED SCHEDULE TO MEMORANDUM OF MATTERS REFERRED FOR HEARING AND DETERMINATION

1. Mr James Alex Petticrew, a member of the applicant, is employed by the respondent as a Lecturer Maritime Security at Kimberley Training Institute in Broome. 

2. The respondent alleges that on 24 February 2014 Mr Petticrew breached discipline. 

3. On 28 February 2014, the respondent began a disciplinary process in respect of the alleged breach of discipline by Mr Petticrew. 

4. On 24 March 2014, the respondent informed Mr Petticrew that he had breached discipline and that he would be dismissed; proceeding to dismiss Mr Petticrew effective from 9 April 2014. 

5. On 12 May 2014, after a conference between the parties before the Commission, the respondent wrote to Mr Petticrew advising that the findings against him were withdrawn and he was reinstated to the substantive position of Lecturer Maritime Security. 

6. On 15 May 2014, the respondent wrote to Mr Petticrew, informing him the respondent intended to continue the disciplinary process relating to the alleged breach of discipline. 

7. The applicant says that:

(1) The disciplinary process in relation to the alleged breach of discipline on 24 February 2014 was flawed. 

(2) Having regard to the flawed process and the impact the disciplinary process is having on Mr Petticrew’s health, it is harsh, oppressive and unfair to continue the disciplinary process. 

a) Mr Petticrew having already been subjected to documented prolonged acute stress and anxiety, since February – the time at which the disciplinary process was initiated by the respondent;

(3) The evidence upon which the respondent seeks to rely is irretrievably tainted. 

(4) Mr Petticrew has no responsibility for the flawed disciplinary process implemented by the respondent, notwithstanding the rescission of its effects. 

(5) The sought Order would be a general deterrent for ensuring that other employees are not dealt with unfairly and oppressively by well‑established public sector employers which operate within a very complex set of statutory regimes to which they are compelled to comply. 

8. The applicant seeks that the Commission:

a) Declare that the respondent’s stated intention to recommence the disciplinary process in light of the previous flawed process, recession of the dismissal and reinstatement is unduly harsh, oppressive and unfair;

b) Order that the respondent is prevented from proceeding with any disciplinary process against Mr James Alex Petticrew regarding the incident said to have occurred on 24 February 2014. 

9. The respondent says that:

(1) The disciplinary process in relation to the alleged breach of discipline on 24 February 2014 was flawed. 

(2) It should be allowed to continue its investigation of the matter either by recommencing the existing disciplinary process at a particular stage to overcome errors or flaws in the existing disciplinary process or by declaring the existing disciplinary process null and void and commencing a new disciplinary process to resolve the allegation and, if necessary, impose the appropriate penalty. 

(3) That this application ought to be dismissed.