Appeal against a decision of the Commission in matter no. CR 9/2016 given on 13 February 2017

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2017 WAIRC 00452

DELIVERED : FRIDAY, 14 JULY 2017

FILE NO. : FBA 5 OF 2017

Appellant

AND

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Acting Senior Commissioner S J Kenner

Citation : [2017] WAIRC 00071; (2017) 97 waig 324

File No. : CR 9 of 2016

CatchWords : Industrial Law (WA) - Termination of employment - Appeal against a decision that dismissal was harsh, oppressive and unfair and order of reinstatement - Disciplinary history found to be a relevant consideration in determining proportionate and appropriate penalty not considered at first instance - Power to make order of reinstatement to a lower increment level pursuant to s 44 of the Industrial Relations Act 1979 (WA) considered - Decision suspended and remitted for further hearing to reconsider penalty

Legislation : Industrial Relations Act 1979 (WA) s 23(3)(h), s 23A, s 23A(3), s 26(1)(a), s 26(1)(c), s 26(2), s 29(1)(b)(i), s 44, s 44(6)(bb), s 44(6)(bb)(ii), s 44(7)(a)(i), s 44(9), pt II div 4 

Labour Relations Reform Act 2002 (WA) s 137, s 141(1) 

Industrial Relations Commission Regulations 2005 (WA) reg 31 

Result : Appeal upheld - Order made

Representation:

Counsel:

Appellant : Mr D Anderson

Respondent : Mr C Fogliani

Solicitors:

Appellant : State Solicitor's Office

Respondent : W.G. McNally Jones Staff Lawyers

Case(s) referred to in reasons:

Aurion Gold v Bilos [2004] WASCA 270; (2004) 84 WAIG 3759

BHP Billiton Iron Ore Pty Ltd v The Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch [2006] WAIRC 03908; (2006) 86 WAIG 642

Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266

Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WASCA 86; (2017) 97 WAIG 431

Case(s) also cited:

Landwehr v Director General, Department of Education [2017] WAIRC 00233

Pemberton v Civil Service Insurance Agency Pty Ltd [2008] WAIRC 01116

Burswood Resort (Management) v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2000] WASCA 386

House v The King (1936) 55 CLR 499

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273

Reasons for Decision

SMITH AP:

Introduction

1         This is an appeal against a decision of the Commission given on 13 February 2017 reinstating an employee in CR 9 of 2016 ([2017] WAIRC 00071; (2017) 97 WAIG 324).

2         CR 9 of 2016 was an industrial matter referred for hearing and determination under s 44(9) of the Industrial Relations Act 1979 (WA) (the Act) by The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the union).  The parties were in dispute about whether on 8 June 2016 the Public Transport Authority of Western Australia (the PTA) unfairly dismissed Mr Stefano Merlo, a member of the union who was employed by the PTA as a transit officer.

3         Mr Merlo was dismissed because following an investigation the PTA found that he had used excessive force by deploying oleoresin capsicum spray (OC spray) during the course of an incident with an aggressive intoxicated juvenile male ('A') who appeared to be about 16 or 17 years of age.

4         On 15 November 2016, an order was made by the Commission referring the following matters for hearing and determination (AB 9 - 12):

2. The applicant says that:

(a) On the night of Friday 6 November 2015, Mr Merlo was working at the Perth Train Station.

(b) At around 12.49am on Saturday 7 November 2015, Mr Merlo and his partner were called to attend a disturbance at the upper concourse of the Station.

(c) Upon arriving at the upper concourse, Mr Merlo and his partner were threatened by an aggressive male (POI). The POI appeared to be affected by drugs or alcohol.

(d) The POI made verbal threats to punch and spit at Mr Merlo and his partner. Mr Merlo warned the POI that he would use OC spray if the POI attempted to assault them.

(e) Mr Merlo repeatedly asked the POI to go away from the Station.

(f) The POI hocked up some phlegm, pursed his lips, and motioned as if he was going to spit at Mr Merlo. At the same time, the POI also made a fist and motioned as if he was going to throw a punch in Mr Merlo's direction. The POI's motions turned out to be a baulk.

(g) Mr Merlo had a split second to react to the POI's baulk. Mr Merlo felt threatened and in danger. Mr Merlo was concerned that the POI may have had a disease that could have passed through the POI's spit.

(h) Mr Merlo reacted by deploying his OC spray at the POI. This was a reflex action by Mr Merlo that occurred in a split second.

(i) The OC spray did not have any immediate effect on the POI. The POI was offered aftercare but refused it. The POI instead kept threatening the transit officers. The POI eventually left the Station.

(j) Mr Merlo apologised to the respondent for his involvement in the 7 November 2015 incident.

(k) After the incident, Mr Merlo actively sought counselling from his supervisors and peers about how he could have handled things better.

(l) Between 7 November 2015 and 9 June 2016, Mr Merlo continued to work as a transit officer. He was faced with other threatening situations in that time. Mr Merlo took on the advice from his supervisors and peers and increased the distance between himself and other persons who had threatened him with violence.

(m) Mr Merlo offered to undergo retraining and to participate in a performance management process. The respondent refused this offer.

(n) On 9 June 2016, the respondent terminated Mr Merlo's employment due to his involvement in the 7 November 2015 incident.

(o) Mr Merlo has two dependent children. Those children were aged 10 and 12 at the time of the dismissal. Mr Merlo's children rely on Mr Merlo's income from his employment with the respondent to survive. Mr Merlo's income pays for their food, clothing, schooling and accommodation. Mr Merlo has a mortgage on his family home.

(p) Mr Merlo has no other skills, trade or qualifications. The prospects of him finding equivalent work are slim.

(q) Mr Merlo was a good employee. There was no reason for the respondent to suspect that this would change in the future.

3. The applicant contends that Mr Merlo's dismissal was harsh, oppressive and unfair because it was not open to the respondent to make the finding it did and further, or in the alternative, the penalty applied is disproportionate to the misconduct alleged.

4. The respondent says the following by way of response:

(a) By memorandum dated 17 November 2015, the respondent informed and invited Mr Merlo to respond to an allegation received on 7 November 2015:

'On 7 November 2015, you deployed OC spray whilst located on the Eastern Concourse of the Perth Railway Station on a 12 year old juvenile. This deployment may have been in contravention of section 3.17.3 of the Transit Officer Operations Manual due to the potential threat posed by that juvenile in relation to his comparative size and location to you.'

(b) By letter dated 3 December 2015, Mr Merlo wrote to the respondent in response to its memorandum dated 17 November.

(c) By memorandum dated 10 December 2015, in accordance with clause 2.11.8 of the Public Transport Authority (Transit Officers) Industrial Agreement 2015 (Agreement), of a formal allegation of breach of discipline:

'On 7 November 2015, you deployed OC spray whilst located on the Eastern Concourse of the Perth Railway Station on a 12 year old juvenile.'

5. In accordance with clause 2.11.8(d) of the Agreement, Mr Merlo was informed that a formal investigation had commenced.

(a) By letter dated 10 May 2016, the respondent wrote to Mr Merlo to enclose a copy of its investigation report and to invite Mr Merlo to respond to proposed adverse findings and a proposed penalty of dismissal.

(b) By letter dated 21 May 2016, Mr Merlo wrote to the respondent in response to its letter dated 10 May 2016.

(c) By letter dated 8 June 2016, the respondent wrote to Mr Merlo finding:

'I find, and you later admitted, that you have engaged in breaches of discipline on 7 November 2015 on the Eastern Concourse at Perth Railway Station when you used excessive force by deploying OC spray at [the POI] off PTA property, therefore breaching Sections 3.17 - Carriage and Use of OC Spray, 3.18 - Off PTA Property and 7.10 - Use of Force of the Transit Operations Manual.'

6. The respondent objects to and opposes the applicant's claim. It maintains that in all of the circumstances, Mr Merlo's dismissal was justified.

7. In determining whether the respondent's dismissal of Mr Merlo was harsh, oppressive or unfair, the parties, by agreement, invite the Commission to decide the following issues:

(a) Did Mr Merlo deploy OC spray at the POI in self-defence?

(b) Did Mr Merlo cease the use of the OC spray once the threat to his safety, health and well-being had subsided?

(c) Was Mr Merlo's use of force against the POI commensurate with the force that the POI applied to Mr Merlo?

(d) Did Mr Merlo issue the POI with a verbal warning about his intention to deploy OC spray? If not, was it impracticable to do so?

(e) Once Mr Merlo had drawn his OC spray, did he conceal it from the POI's view?

(f) Did Mr Merlo deploy OC spray at the POI solely for the purpose of keeping the POI from coming on to PTA property?

(g) Was Mr Merlo's use of OC spray on the POI authorised by section 3.17.3 of the Transit Officer Manual?

(h) Did Mr Merlo use excessive force by deploying OC spray at the POI?

(i) Did Mr Merlo admit to using excessive force by deploying OC spray at the POI?

(j) Did Mr Merlo breach section 3.17, 3.18 or 7.10 of the Transit Officer Operations Manual?

(k) Was dismissal a proportionate and appropriate penalty for Mr Merlo's conduct?

5         After hearing evidence given by witnesses on behalf of the union and the PTA, the learned Acting Senior Commissioner made the following declaration and order (AB 13 - 14):

(1) DECLARES that the dismissal of Mr Stefano Merlo by the respondent on 8 June 2016 was harsh oppressive and unfair.

(2) ORDERS the respondent to reinstate Mr Merlo as a Transit Officer Level 3 in accordance with the Public Transport Authority/ARTBIU (Transit Officers) Industrial Agreement 2015.

(3) ORDERS that Mr Merlo be paid an amount in respect of remuneration lost from the date of his dismissal to the date of his reinstatement in accordance with the rate of pay, entitlements and benefits applicable to the position of a Transit Officer Level 3.

(4) ORDERS that Mr Merlo's service with the respondent otherwise be deemed continuous for all benefit purposes.

The incident on the night of 6 November 2015

6         At the time of the incident, Mr Merlo was a transit officer, level 5, and was in his sixth year of employment with the PTA.  Mr Merlo usually worked on the Midland line where he regularly encountered customers who were affected by drugs and alcohol and on occasions he, like other transit officers, was required to use OC spray as a force option in dealing with certain situations.

7         On the night of Friday, 6 November 2015 Mr Merlo had been assigned to work at the Perth train station with another transit officer as his partner, Ms Ariana Warr.

8         At about 12.50am on Saturday, 7 November 2015, Mr Merlo and Ms Warr were at the Perth train station, downstairs near the train platform.  They received an urgent radio call from a revenue officer who asked Mr Merlo and Ms Warr to go upstairs to assist with some aggressive disorderly males.

9         When Mr Merlo and Ms Warr headed up the escalators to the eastern concourse section of the Perth train station they saw two young males who were on the concourse but off PTA property near the fare gates.  One of the males was A who was behaving in an aggressive and abusive manner.  The other appeared to be his friend and was attempting to persuade A to leave.  Mr Merlo thought that both the males looked between 15 and 16 years old because of their size.  A was as tall as and heavier set than Ms Warr.  A was intoxicated and abusive and was behaving in a manner that sometimes happens when 15 to 17-year-old males get drunk on a night out with their friends.  Although A was actually only 12 years old, it is accepted by the PTA that it was reasonable for Mr Merlo to assume at the time that A was a lot older.

10      Mr Merlo and Ms Warr were on the PTA property side of the fare gates on the eastern concourse with three revenue officers.  A and his friend were still on the other side of the fare gates.  The fare gates are just under waist height.  Ms Warr told the males to leave.  A started abusing Ms Warr and Mr Merlo.  A said words to the effect of 'You fucking Maori slut', 'You fucking cunt' and 'I'm going to come over there and smash you cunts'.  Mr Merlo's evidence was that initially most of the abuse was directed at Ms Warr.  At that stage A was in a fighting stance.  He was spitting on the ground and making sudden jolting movements towards Ms Warr and Mr Merlo.  A continued with the abuse.  He was threatening to 'smash' the officers.

11      Ms Warr's evidence was when A first saw her and Mr Merlo he tried to jump over the fare gates but was unsuccessful.  She said that A was shadowboxing, spitting on the ground and yelling words to the effects of, 'Do you want to have a go, you motherfuckers'.

12      Mr Merlo's evidence was that whilst standing at the gates and A continued with his abuse, he asked Ms Warr to step back.  Ms Warr's evidence was that Mr Merlo did not give that instruction.  She did, however, turn around with her back towards A and Mr Merlo and walked away.  She was smiling as she walked away from A.  She said she did so as she did not find A's comments threatening, she found them to be funny.  Her evidence was that she disengaged because the verbal abuse was not solely directed at her, A was off PTA property and she did not feel threatened.  She also said she disengaged to give A an opportunity to come onto PTA property or to leave as he had been instructed.  However, Ms Warr's evidence was that she believed if A had have come onto PTA's property, then he most likely would have done something.

13      When Ms Warr turned and walked away from the confrontation she thought that Mr Merlo would be walking back with her.  She did not realise that Mr Merlo remained where he was and she did not hear any further communications between Mr Merlo and A, nor did she see Mr Merlo deploy the OC spray.

14      Mr Merlo's evidence was that he spoke to the two males and told them if they went away and grabbed something to eat they could come back later and catch the last train out of the city.  Mr Merlo told A to go away and gave him several warnings that he was going to be sprayed with OC spray if he did not leave.  Mr Merlo said he made this threat because sometimes it encourages patrons who have been sprayed before to think twice and move on.  A then turned his attention towards Mr Merlo.  A remained very close to but on the side of the fare gates off PTA property.  Mr Merlo took a step backwards away from A.  He took that step back so that he could get out of A's 'punching range' because at this point in time the only threats that A had made against him and Ms Warr were that he was going to jump over the fence and physically attack them.  Mr Merlo unclipped his OC spray which was located on his belt and rested his hand on it.  A looked at it and pointed to Mr Merlo's OC spray and said to Mr Merlo words to the effect of 'I am going to spit at you.  You can't do fuck all if I spit at you'.  It appeared that these words were heard only by Mr Merlo.  A then made a sound as if he was hocking phlegm up into his mouth and at the same time Mr Merlo said A lifted his hand as if he was going to strike at him.  Simultaneously, A cocked his head back and then moved forward towards Mr Merlo and the fare gates motioning as if he was going to spit phlegm at him.  By that time Mr Merlo was about one to one and a half metres away from A on PTA property and was outside A's punching range but was at a distance where A could have reached him with a spit.  Mr Merlo had a second or less to decide how to react to A's sudden movement.  Mr Merlo believed that A had spat at him and in that split second he made a decision to pull his OC spray and spray it at A.  When he did so he stepped towards A.  CCTV footage shows his arm reaching over the gates of the PTA boundary when he sprayed A.  Mr Merlo's evidence was the only reason he used his OC spray was because he thought he was being attacked by A.  A responded to the OC spray by retreating.  He then grinned at Mr Merlo and said words to the effect of 'Yeah, is that it?  Give me some more'.

15      Shortly after discharging his OC spray, Mr Merlo realised that A had not actually spat at him.  The actions of A are described by the parties as a baulk by A.  A baulk is a baseball term.  It refers to a situation where the pitcher fakes a movement so as to trick the batter into believing that the pitcher is pitching the ball.  It is common ground that Mr Merlo did not know that A was baulking at the time when he sprayed OC spray at A.

16      When giving evidence Mr Merlo denied that he used the OC spray in order to keep A off PTA property.  He said his decision to use the OC spray was an instinctive response to the threats and motion that A had made towards him.

17      Mr Merlo's evidence was that he had prior experiences with members of the public spitting saliva and blood at him.  On two occasions, he had been spat at in the face which required him to be tested for hepatitis or anything else.  He described the process of waiting for the test results after such an attack as gruelling.

18      Once Ms Warr had realised what occurred she asked Mr Merlo whether he had done the 'right thing'.  She was surprised about what had happened.  She went off the PTA's property to provide aftercare assistance to A.  However, A refused aftercare and continued to behave abusively and made threats.  A and his friend then ran away and returned later in the night.  At that point A's friend informed Ms Warr that A was 12.  A was taken into protective custody, was assessed by an ambulance officer, but found not to have an imminent health risk and was taken home to his mother by transit officers.

19      When asked about the circumstances that confronted both Mr Merlo and herself on the night in question, Ms Warr said she acted according to what she understood from her training, that is in cases where an individual is threatening a transit officer, the appropriate course is for the officer to disengage and where possible walk away.  This is so a safe distance can be established between the officer and the individual concerned.  She also said that she has had occasions where individuals confronting her had 'baulked' and she has responded by moving back to create further space between her and the person.  She also testified that she has faced abusive people on the eastern concourse at the Perth train station and has experienced situations of people spitting at her, which required her to cover her face.  She agreed, however, that being spat upon was a very unpleasant and stressful experience, given the possibility of transmission of infectious diseases through spitting.

20      Mr George Steven Svirac, the transit manager of security for the PTA, who oversees the operations of the transit officers on the urban network, testified that the authority of transit officers only extends to the exercise of powers on PTA property as an offender must be on PTA property to commit an offence that can be dealt with by a transit officer.  Mr Svirac said that if someone behind the barrier fence threatened to spit at him he would have taken a few extra steps back and if the person then jumped the fence he would have pulled the OC spray and sprayed the person.

21      After having reviewed the CCTV footage of the incident, Mr Svirac's view is that Mr Merlo should have disengaged, moved back and called for backup.  He said these types of issues are regularly discussed in safety committee meetings and by taking a step back and creating further distance, Mr Merlo would have been out of range for A to have spat on him.  Mr Svirac said from a training perspective, a key component is teaching officers to disengage with potential offenders by moving away from them and creating distance.

22      Mr Svirac, however, agreed that:

(a) Mr Merlo had stood back, to be sufficiently out of range to stop any attempted punch from A striking Mr Merlo.

(b) The incident, as revealed in the CCTV footage, occurred over only a couple of seconds.  This was from the point where A moved towards Mr Merlo, threatened to spit, baulked and Mr Merlo deploying his OC spray.

(c) Mr Merlo from the CCTV footage only used his OC spray when A appeared to try to spit at him.

23      Mr Svirac's evidence was that if a member of the public spits at a transit officer, it is a circumstance, depending on the context, where a transit officer may use OC spray to defend them self.  Mr Svirac also accepted that a transit officer may use their OC spray in self-defence.  However, he also said that in his view the first option is always to attempt to disengage.  Having regard to all of the circumstances of the incident, Mr Svirac's opinion was that Mr Merlo should have distanced himself from A so as to put himself out of the range of any potential hazard.

24      Mr Svirac agreed that being spat on was one of the worst things that could happen to a transit officer and described the act of spitting at someone as an aggressive movement and as disgusting.  Mr Svirac said that being spat at is worse than being punched.  Ms Warr disagreed and said that being spat at is no better or worse than being punched.

25      Transit officers receive training on how to deal with people who are attacking them, but Mr Merlo said that the training does not teach transit officers how to respond to or defend against people who are spitting at them.  Ms Warr disagreed with that evidence.

26      Mr Svirac testified that there was no training specific to spitting, rather transit officers are trained about situational awareness and protecting yourself by a defensive stance, by putting your hands up to block your face to reduce the amount of spit that connects.

Findings made by the PTA

27      The grounds upon which the PTA relied upon in dismissing Mr Merlo are set out in a letter dated 8 June 2016 sent to Mr Merlo from Mr Pasquale Italiano, General Manager, Transperth Train Operations.  In the letter Mr Italiano stated:

I refer to the Investigation Report No. I0039/15 into the allegation that you used excessive force in regards to the manner in which you deployed Oleoresin Capsicum (OC) spray on a 12 year old juvenile.

Final Determination on Alleged Breaches of Discipline

Having reviewed the evidence and having regard to:

• your memorandum responding to the first notification dated 3 December 2015;

• the Investigation Report;

• correspondence to you from the Principal Consultant Labour Relations, Ms Anita Ryan dated 10 May 2016 advising of potential adverse findings and proposed penalty;

• your letter dated 21 May 2016 responding to that advice;

• your past employment history which includes:

○ disciplinary matters of

▪ 18 November 2011 - Warning - Failure to follow direction - Parking on PTA property whilst not rostered on shift

▪ 2 December 2011 - Reprimand - Breach of Transit Officers Operations Manual (the Operations Manual) - Failure to submit an action report, request CCTV footage and use of force

▪ 23 January 2013 - Counselled - Breach of Operations Manual - Off PTA Property

▪ 15 October 2014 - Warning - Breach of Operations Manual - Punctuality

▪ 28 October 2014 - Counselled - Breach of Operations Manual - Security Officers Purpose

▪ 17 February 2016 - Warning - Breach of Operations Manual - Station Duties

○ performance development - My Action Plans dated

▪ 5 March 2013

▪ 17 February 2014

▪ 28 July 2014

▪ 8 July 2015

• your length of service (since commencing on 3 September 2010) and progression through the Transit Officer salary increments;

• when you last undertook Defensive Tactics Refresher Training;

• our evening meeting of 26 May 2016 where you nominated Transit Line Supervisors Mr Lee Crane and Mr Steve Svirac as character references; and

• Mr Crane and Svirac's written references:

it is my task as the nominee of the Chief Executive Officer to make a final determination on the allegation that you committed breaches of discipline.

I find, and you later admitted, that you have engaged in breaches of discipline on 7 November 2015 on the Eastern Concourse at Perth Railway Station when you used excessive force by deploying OC spray at [A] off PTA property, therefore breaching Sections 3.17 - Carriage and Use of OC Spray, 3.18 - Off PTA Property and 7.10 - Use of Force of the Transit Officer Operations Manual.

Considerations Relevant to Imposition of Revised Penalty

Having determined that you have committed breaches of discipline, I must now decide which if any penalty should be applied.

The penalties available to be imposed as disciplinary action in response to a breach of discipline include those available at Clause 2.11.21 of the Public Transport Authority/ARTBIU (Transit Officers) Industrial Agreement 2015 (the Industrial Agreement). These include:

a) No penalty;

b) A reprimand (which may include a final reprimand);

c) Deferring the payment and anniversary date for annual increments by a period not exceeding six months;

d) A permanent or temporary transfer to another location within the PTA or to another employment position within the PTA, including to a position to which this agreement does not apply;

e) A permanent or temporary demotion or reduction to a lower increment or to a lower grade or position to which this agreement applies;

f) A permanent or temporary demotion to another position to which this agreement does not apply; and/or

g) Dismissal.

In Ms Ryan's correspondence of 10 May 2016, the Labour Relation Division recommended I consider dismissal due to the severity of this incident and two previous disciplinary matters for breaches of the Operation Manual relating to:

1) a reprimand for failure to submit an action report, failure to request CCTV footage and excessive use of force on 2 December 2011 and

2) counselling for chasing an offender off PTA property in 23 January 2013.

My decision is again based on the documents and meeting referred to above.

Your service since September 2010 with the PTA is acknowledged.

In considering the appropriate penalty, I note that:

• in your memorandum responding to the first notification you:

○ deny breaching Section 3.17.3 of the Operations Manual citing that you deployed the OC spray in 'self-defence' as the POI was actioning to spit at you; and

○ apologise for any inconvenience or embarrassment this matter may have caused.

• the Investigator, in the Investigation Report, found that:

○ [A] continually behaved in a disorderly and threatening manner but during the course of his actions did not come onto PTA property.

○ you were standing behind the barrier fence away from [A] and had sufficient room to extend that gap between him and yourself if you believed he was going to spit at you or may have jumped the barrier fence.

○ the footage shows [A] remained behind the barrier fence and whilst he was behind the barrier fence, feigned a movement towards you and you reacted to that movement.

○ as a result of his action, you deployed your OC spray, striking him in the facial area whilst he remained off PTA property. Furthermore, you stepped towards him thus closing the distance between you and him.

○ You cannot use force to stop somebody coming onto PTA property if they are off property.

○ given the instruction in the Operations Manual, you deployed OC spray when [A] was off PTA property and the use of the OC spray was not in accordance with the Operations Manual and as such the force used by you could be considered excessive.

• in your letter responding to the potential adverse findings and proposed penalty correspondence dated 21 May 2016, you state that:

○ with the benefit of hindsight, you would not have deployed your OC spray at him.

○ you have gained a greater appreciation of how critical it is to be aware of PTA boundaries.

○ you could have handled the incidence better, given his threats, increased the distance between yourself and [A].

○ you recognise 'that self-improvement is essential to being a good employee and will continue to try to improve my own practices and understanding' as well your willingness to undergo retraining and participate in performance management if a lesser penalty than dismissal is considered.

At our meeting of 26 May 2016, we discussed that the four additional disciplinary matters and four My Action Plans listed above would be used to form part of my understanding of your past pattern of behaviour, conduct and service to assess the appropriate penalty.

When discussing what type of worker you have been and why you should keep your job, you invited me to seek character references from your Midland Transit Line Supervisors, Mr Lee Crane and Mr Steve Svirac. I have received written advice from them on your ability to perform as a Transit Officer and they have not provided me with any additional information to dissuade me from the recommended penalty.

I have considered the matters you raised in your letter of 21 May 2016 and during our meeting, including the impact a decision to dismiss would have on you and your family, noting what you have told me about your two dependant [sic] children and mortgage.

In the end, however, when considering whether dismissal is a proportionate and reasonable response after taking into account and weighing up all of these circumstances, I consider this latest lapse in judgement justifies your dismissal, noting that your actions during the incident exacerbated this situation, leading to your subsequent deployment of OC spray.

When viewing this incident in the context of you [sic] past employment record, I have concluded that you have demonstrated that you are not suitable for continued employment as a Transit Officer. Regrettably, I am not persuaded that allowing you another reprieve is likely to prevent a recurrence of such conduct.

Having taken all these matters into account, I have therefore decided that dismissal is the appropriate penalty in all the circumstances. This penalty is being imposed in accordance with Clause 2.11.21 g) of the Industrial Agreement.

Our established procedures are designed for the safety of our employee and patrons. Compliance with them is not optional.

28      Part of Mr Italiano's responsibilities is to deal with disciplinary matters as the delegate of the chief executive officer, in accordance with the disciplinary procedure set out in the Public Transport Authority/ARTBIU (Transit Officers) Industrial Agreement 2015.  Mr Italiano interviewed Mr Merlo, after reviewing the investigation report.  There were two issues for Mr Italiano to decide.  The first was to make findings in relation to the allegations of misconduct and, if established, the second issue was what penalty should apply.

29      Mr Italiano did not accept all of what Mr Merlo had told the investigators.  In particular, having reviewed the CCTV footage he did not agree that A had raised a fist towards Mr Merlo.  He was of the opinion A had raised his left arm and hand.  He also did not necessarily accept Mr Merlo's assertion that he had issued three to four warnings to A that he would use his OC spray because Ms Warr had no recollection of it.  He was also critical of Mr Merlo because Mr Merlo had no recollection of stepping forward when he deployed his OC spray.  Mr Italiano thought Mr Merlo should have recollected this aspect of the incident.

30      Mr Italiano formed the opinion that having reviewed the investigation report and the CCTV footage, Mr Merlo should not have put himself in the position that he did.  He did not accept that Mr Merlo was in an imminent position of danger because:

(a) there was a barrier between Mr Merlo and A;

(b) Ms Warr did not apprehend any imminent threat to her safety or well-being at the time; and

(c) Mr Merlo had sufficient room behind him to distance himself from A's actions.

31      When cross-examined, however, Mr Italiano conceded that he had formed this opinion with the benefit of hindsight.

Commissioner's reasons for decision at first instance

32      After setting out a summary of the facts of the incident and subsequent events and noting the events were not significantly in dispute, the learned Acting Senior Commissioner had regard to Mr Merlo's work history.  He pointed out that there had been some prior issues of performance raised, which were set out in Mr Italiano's letter of 8 June 2016.  He then observed that:

(a) Mr Italiano's evidence of those matters was that he had no difficulty with Mr Merlo's competency or integrity as a transit officer, or anything arising from the various 'My Action Plans' in evidence;

(b) what Mr Italiano drew from Mr Merlo's work history was that there were some issues of punctuality in the past, but he accepted that they had been remedied;

(c) Mr Italiano was concerned about what he described as breaches of various parts of the transit officer operations manual (the manual) and his lack of confidence that this would not continue to occur;

(d) Mr Italiano had some reservations as to Mr Merlo's temperament, having regard to the duties and responsibilities of a transit officer; and

(e) Mr Italiano did consider the options of demotion and transfer in the alternative to dismissal, but he did not consider they were appropriate, having reached the view that Mr Merlo seemed to have difficulties with compliance with procedures.

33      The learned Acting Senior Commissioner then turned to a consideration of the evidence and in doing so had regard to the principle in Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 that it must be demonstrated there has been an abuse of the employer's right to dismiss an employee, such that the dismissal is rendered harsh or oppressive.  He also had regard to the principles that:

(a) it is not for the Commission to assume the role of a manager in considering whether the dismissal is or is not unfair; and

(b) the test is an objective one in accordance with the Commission's duty pursuant to s 26(1)(a) and s 26(1)(c) of the Act.

34      Before specifically addressing each of the questions posed in the matters referred for hearing and determination, the learned Acting Senior Commissioner found that having regard to all of the circumstances of the case and the particular aspects of the incident that occurred on 7 November 2015, the dismissal of Mr Merlo was harsh, oppressive and unfair.  He also found that the appropriate penalty that should have been imposed on Mr Merlo was that Mr Merlo should be demoted to a transit officer, level 3, which would mean the loss of two increment levels and he should be provided with any necessary refresher training that the PTA considers appropriate.  The learned Acting Senior Commissioner made these findings on grounds that with the benefit of hindsight, Mr Merlo could have taken an alternative course by creating more distance between himself and A.  However, the learned Acting Senior Commissioner found that this did not detract from the fact that finding himself in the position he did, Mr Merlo acted with reasonable cause.

35      The learned Acting Senior Commissioner then addressed each of the questions posed in the memorandum of matters referred for hearing and determination as follows.

(a) Did Mr Merlo deploy OC spray at the POI in self-defence?

36      Having regard to all of the circumstances of the case and having carefully viewed the CCTV footage, the learned Acting Senior Commissioner found Mr Merlo deployed his OC spray in self-defence and did not accept that Mr Merlo did so in any way to provoke or inflame the situation with A as it unfolded.  He found that:

(a) the evidence clearly revealed that A did 'baulk' and appeared to clearly prepare to spit at Mr Merlo;

(b) taking the evidence as a whole, Mr Merlo had a basis to believe, on reasonable grounds, that he was about to be spat upon by A and his deployment of OC spray was to prevent that occurring and the fact of the existence of the fence barrier between A and Mr Merlo would not have prevented this from occurring; and

(c) the deployment of the OC spray only occurred in response to A's actions and was responsive to it.

(b) Did Mr Merlo cease the use of the OC spray once the threat to his safety, health and well-being had subsided?

37      The learned Acting Senior Commissioner found Mr Merlo ceased the use of OC spray after its first application and it was clear that A was no longer prepared to or intended to spit at him.

(c) Was Mr Merlo's use of force against the POI commensurate with the force that the POI applied to Mr Merlo?

38      The learned Acting Senior Commissioner found it was necessary to put oneself in Mr Merlo's position on the night in question, without the benefit of hindsight, having to make a split-second decision in response to a person engaging in the behaviour and conduct that A was at the time.  In doing so, he found that he considered that Mr Merlo's use of OC spray in all of the circumstances was commensurate with responding to A's threat.

39      The learned Acting Senior Commissioner went on to find that whilst there was some conjecture as to whether A raised a fist towards Mr Merlo as the CCTV footage appeared to suggest something less than that, the accounts of the incident given by Revenue Officer Aurang and Revenue Officer Webb, referred to in the investigation report supported the contention that A 'tried to take swing' and 'started air boxing or throwing punches across the gate' in Mr Merlo's direction.  The learned Acting Senior Commissioner observed that while these officers were not called to give evidence, those statements were open to be taken into consideration by the PTA in its decision concerning the disciplinary allegations against Mr Merlo.

40      The learned Acting Senior Commissioner then found that:

(a) most importantly, however, it must be borne in mind that Mr Merlo's use of force option was in response to what he regarded as a clear threat of A spitting on him at a distance where Mr Merlo would be affected;

(b) the evidence revealed that Mr Merlo had a genuine belief, based on reasonable grounds, that this was going to occur; and

(c) it was not contended by the PTA that being spat upon by an intoxicated and very disorderly member of the public would not only be a very unpleasant experience, but may also constitute an obvious risk to the health and safety of an officer.

(d) Did Mr Merlo issue the POI with a verbal warning about his intention to deploy OC spray?  If not, was it impracticable to do so?

41      The learned Acting Senior Commissioner observed that Mr Merlo's evidence was that he warned A several times of his intention to deploy OC spray and Ms Warr's evidence was that she did not hear such a warning but had turned around and was walking away from Mr Merlo and A.  The learned Acting Senior Commissioner then found:

(a) that Ms Warr may not have been close enough to hear anything said to A by Mr Merlo;

(b) notably, Revenue Officer Jakovlev, when interviewed during the investigation, referred to Mr Merlo saying something to A, but he was not sure what it was; and

(c) having regard to all of the evidence he accepted Mr Merlo's version of events that he did warn A that he would use his OC spray before he deployed it.  Simply because there was no precise corroboration of Mr Merlo's version of events in this regard, did not preclude the acceptance on balance, of his evidence, having regard to the totality of material before the Commission.

(e) Once Mr Merlo had drawn his OC spray, did he conceal it from the POI's view?

42      The learned Acting Senior Commissioner found that Mr Merlo did not conceal the OC spray when he withdrew it from its pouch.  The evidence revealed A was aware that Mr Merlo had his hand on his OC spray canister pouch.  A pointed to it and clearly saw it.  Once drawn, the OC spray canister was visible.

(f) Did Mr Merlo deploy OC spray at the POI solely for the purpose of keeping the POI from coming on to PTA property?

43      From all of the evidence the learned Acting Senior Commissioner found that Mr Merlo did not deploy his OC spray at A solely for the purpose of preventing A coming onto PTA property and was satisfied on balance that the predominant reason for Mr Merlo deploying his OC spray was his genuine belief, on reasonable grounds, that A was about to spit upon him.

(g) Was Mr Merlo's use of OC spray on the POI authorised by s 3.17.3 of the manual?

44      Section 3.17.3 of the manual provides as follows:

3.17.3 The PTA will supply either Defence Industries Mk3 X2 OC spray or Sabre Red Crossfire Mk3 OC spray to authorised personnel and these spray [sic] may only be deployed under the following guidelines:

• For the personal protection (self defence) of the Security Officer or any other person where there is an imminent and immediate danger to safety, health and well-being.

• That the use of the OC spray is ceased when the threat to the safety, health and well-being of the Security Officer or any other person subsides.

• The use of force is justified commensurate with the force applied to the victim.

• A verbal warning must be given of the intention to deploy OC spray unless it is impracticable to do so.

• If OC spray is drawn, it must not be concealed but is displayed in an overt manner.

• OC spray is not to be deployed within the confines of a railcar.

• After care (decontamination) must be provided to persons who have been directly sprayed or received a secondary exposure of OC spray.

45      Having regard to the findings already made, the learned Acting Senior Commissioner found he was satisfied on balance that Mr Merlo's deployment of OC spray on A during the incident did not contravene s 3.17.3 of the manual.

(h) Did Mr Merlo use excessive force by deploying OC spray at the POI?

46      The use of force is set out in s 7.10 of the manual which is in the following terms:

7.10 Use of force

Security Officers have been authorised to utilise any reasonable force in order to remove a person from PTA property or to affect an arrest. Although sect 58 of the PTA Act 2003 does not directly authorise the use of force in effecting an arrest; however, sect 231 of the Criminal Code states 'It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.'

7.10.1 In any circumstances where the use of force is justified; the minimal amount of force required to establish control should be utilised and once achieved, lower force options are to be employed at the earliest opportunity.

7.10.2 Excessive use of force can be defined as:

• Any force when none is needed;

• More force than is needed in a particular situation;

• Any force or level of force continuing after the necessity for that use has ended;

• Knowingly wrongful use(s) of force; or

• Well intentioned mistakes that result in undesired use of force.

7.10.3 The use of a Defensive Push:

• The use of a defensive push against a person is only lawful when that person is approaching officers or members of the public in an aggressive manner and they are in close proximity. The use of pushing or shoving to an offender in order to remove them from PTA property is not a defensive push and as such is unlawful.

• If the member of public is standing flat footed and an officer steps forward towards that person, thus instigating physical contact, then this can be classified as an assault and any reaction from the person towards the officer could be defended by citing 'Provocation'. This could result in the case against the offender being dismissed for any offences committed.

• To use a defensive push against a person to move them away from an officer is not a physical strike or push to that persons chest area; but is effected by way of an outstretched arm, allowing the person to move no closer than an arm's length from the officer. Where-ever possible, the officer should also take one step rear-ward in order to open a safe distance, between the officer and the person.

7.10.4 The use of a Forward Leg Sweep:

• The Forward Leg Sweep when utilised to place a person face down onto the ground in order to restrain that person is an uncontrolled take-down method that consistently results in injuries to the subject and to Security Officers.

• This technique is not part of the PTA's Intercept-Stabilise-Resolve Training package and therefore is not to be utilised.

7.10.5 In accordance with Section 3.13 of this Manual - Reporting of accidents and incidents, in any occurrence where force has been used (including the arrest of a person under an Outstanding Warrant), an Action/Incident Report (PTA form 4030-700-029) accompanied by a CCTV Imagery Request form (PTA form 4030-700-032) must be submitted.

47      Whilst there was some argument as to whether s 7.10 of the manual had any application to the circumstances of the deployment of OC spray because it speaks of reasonable force being used in order to remove a person from PTA property or to affect an arrest, the learned Acting Senior Commissioner found that:

(a) the use of force principles in s 7.10 of the manual do apply to the use of OC spray;

(b) OC spray is clearly a use of force option as it is available to security officers as an alternative to the use of concussive force, such as a tactical baton, whereas concussive force may not be appropriate; and

(c) the use of OC spray is a lower level force option and should be seen as such in the hierarchy of force options available to security officers.

48      The learned Acting Senior Commissioner was not persuaded on the evidence that having regard to all of the circumstances, Mr Merlo used excessive force against A.  He found that:

(a) Mr Merlo apprehended a threat to his person which could have had significant adverse health effects on him; and

(b) it was a judgment made in a split second where Mr Merlo was confronted with appalling conduct by an intoxicated individual, making threats to both him and others in circumstances where Mr Merlo had every reason to believe the threat to spit would be carried out.

(i) Did Mr Merlo admit to using excessive force by deploying OC spray at the POI?

49      The learned Acting Senior Commissioner found that Mr Merlo did not make an admission that he used excessive force but simply acknowledged that his employer obviously had a different view of his conduct.  With the benefit of hindsight, had Mr Merlo known that when A baulked and prepared to spit at him he did not actually spit, Mr Merlo would not have deployed his OC spray.

(j) Did Mr Merlo breach s 3.17, s 3.18 or s 7.10 of the manual?

50      The learned Acting Senior Commissioner observed that Mr Italiano conceded the allegation that Mr Merlo contravened s 3.18 of the manual was erroneous.  This was because there was no suggestion that A had committed an offence whilst on PTA property.

51      The learned Acting Senior Commissioner also found that Mr Merlo did not breach s 3.17 or s 7.10 of the manual.

(k) Was dismissal a proportionate and appropriate penalty for Mr Merlo's conduct?

52      The learned Acting Senior Commissioner found that self-evidently, his answer to this question was, having regard to all of the circumstances, no.

53      In making this decision he had regard to disciplinary action taken against other transit officers employed by the PTA where some of those incidents led to disciplinary outcomes short of dismissal, including reprimands and demotion.  In particular, he had regard to an incident in September 2015 where a senior transit officer deployed OC spray at a patron who was displaying his buttocks at the officers seconds after the deployment of OC spray to the face region of several offenders.  It also appeared that the officer concerned chased the offenders away from the station over an area not deemed to be PTA property, contrary to established procedures.  The learned Acting Senior Commissioner found that whilst great care must be exercised when looking at other incidents such as this, without the benefit of knowing all of the circumstances, it was self-evident that the discharge of OC spray towards a person displaying their buttocks could not be regarded as the use of reasonable force or an action reasonably taken in self-defence.  He then observed that in that particular case the officer was demoted from a senior transit officer to a transit officer position and found that although he did not place great weight on this comparative incident, it was a matter that some regard could be had to when considering the PTA's response to Mr Merlo's conduct on the night in issue in this matter.  The learned Acting Senior Commissioner also took into account Mr Merlo's contrition after the incident, in particular, that he was clearly remorseful as to what had occurred and sought advice from others as how to better manage such a situation in the future.

The grounds of appeal

54      At the hearing of the appeal leave was granted to the PTA to amend the grounds of appeal as follows:

1. The Senior Commissioner erred in law by finding, at [36] of the reasons for decision, that Mr Merlo did not use excessive force by deploying his OC spray at A on the night in question.

Particulars

(a) Mr Merlo was dismissed on the basis of a finding by the Appellant that he used excessive force by deploying OC spray at a person off PTA property.

(b) The question asked of the Senior Commissioner as a part of the referral of the dispute under section 44(9) of the Industrial Relations Act 1979 (WA) was whether Mr Merlo used excessive force by deploying OC spray at A on the night in question.

(c) The Senior Commissioner answered a narrower question, at [36] - [38] of the reasons for decision, namely whether Mr Merlo had reasonable cause to deploy OC spray in self-defence.

2. The Senior Commissioner erred in law by taking into account, at [38] of his reasons for decision, irrelevant considerations, namely that:

(a) Mr Merlo apprehended a threat to his person which could have had significant health effects on him;

(b) it was a judgment made in a split second where he was confronted with appalling conduct by an intoxicated individual making threats; and

(c) Mr Merlo had every reason to believe the threat of spit would be carried out.

Particulars

(a) The above considerations are only relevant to the question of whether Mr Merlo used excessive force by deploying OC spray at A on the night in question in the absence of a finding that earlier Mr Merlo could have taken an alternative path.

3. The Senior Commissioner erred in law by finding, at [23] of his reasons for decision, that the fact that Mr Merlo could have taken an alternative course does not detract from the fact that, finding himself in the position he did, he acted with reasonable cause.

Particulars

(a) The Senior Commissioner did not give reasons to explain why he found at [23] that Mr Merlo misconducted himself by failing to take an alternative course by creating more distance between himself from A.

(b) The respondent led evidence that the 'barking dog training' given to transit officers is to disengage by creating distance between themselves and aggressive people not on PTA property and that the mischief that the training seeks to avoid is interaction between transit officers and aggressive people not on PTA property.

(c) Mr Merlo did not find himself in a position where he was required to use spray on an aggressive person not on PTA property, he put himself in that position by misconducting himself.

(d) Mr Merlo's misconduct in failing to distance himself from a person not on PTA property acting aggressively wholly detracts from Mr Merlo relying on A's aggression to constitute a reasonable cause to deploy OC spray.

4. The Senior Commissioner erred in law by failing to consider a relevant consideration, namely Mr Merlo's previous disciplinary history.

Particulars

(a) The Senior Commissioner failed to give consideration to Mr Merlo's documented disciplinary history which was tendered as evidence during the proceedings and is contained in the Appeal Book at pages 181 - 198.

5. The Senior Commissioner erred in law by ordering that Mr Merlo be reinstated to the position of Transit Officer Level 3 in accordance with the Public Transport Authority/ARTBIU (Transit Officers) Industrial Agreement 2015.

Particulars

(a) The Senior Commissioner was not empowered by section 23A of the Industrial Relations Act 1979 to reinstate Mr Merlo to his former position on conditions less favourable than the conditions on which Mr Merlo was employed immediately before dismissal.

The heart of the PTA's case on appeal

55      Whilst the appellant does not challenge any of the findings of fact made by the learned Acting Senior Commissioner, it challenges the relevance and evidentiary weight of the findings made.

56      During the incident in question A was aggressive, appeared intoxicated and engaged in threatening behaviour.  Immediately before and when Mr Merlo deployed the OC spray A was at the fare gates which are on the boundary of PTA property.  At all material times, it appears A was not on PTA property.  He was on the other side of the fare gates.

57      At the heart of the PTA's case is the contention that if Mr Merlo believed that A was acting aggressively he was required to extend the distance between himself and A such that A would either leave or come onto PTA property where Mr Merlo would be able to respond with A's aggressive behaviour in accordance with the procedures set out in the manual.  In particular, the PTA argues that in dealing with such a person who is near to the boundary of PTA property, but off PTA property, a transit officer is trained to and required by the policies, procedures and rules set out in the manual to disengage from the abuse by moving back from the person.  By taking this action the PTA says the situation may be diffused if the person walks away or if they come onto PTA property the person can be dealt with, if necessary, by the use of force.

The PTA's submissions - Grounds 1 to 3 of grounds of appeal

58      Transit officers are provided with training and a manual.  The PTA says that the manual comprises of rules, policies and procedures that transit officers must follow.  However, the manual does not prescribe every scenario that could arise in the work of a transit officer.

59      Section 3.18 of the manual provides (AB 73):

Off PTA property

In order for Security Officers to effectively and legally deal with offenders, the offences in question must have been committed whilst the person was on PTA property. The PTA Act 2003 defines PTA property as any property that belongs to the PTA; property where the PTA has care, control and management; or any property operated on behalf of the PTA.

3.18.1 When escorting a person from PTA property, Security Officers should disengage at a safe distance from the edge of property boundary. If the person returns to property, they can be arrested safely within the property boundary with no risk of injury to staff or offenders which may occur by doing this adjacent to or on public roads. Offenders that continue with offensive behaviour on general public property for any extended time will be dealt with by Police who will be contacted by the Shift Commander.

3.18.2 Security Officers are not to chase offenders off or from PTA property.

3.18.3 Security Officers are also reminded that following an OC deployment, the duty of care only exists whilst a person is in the custody of the PTA and an exposure to OC spray does not justify the movement off PTA property for the sole purpose of taking the person into custody in order to issue OC aftercare.

3.18.4 If an offender escapes lawful custody and is no longer under the control of the PTA, duty of care does not apply; however, if Security Officers are in pursuit and the offender or any other person is injured (struck by a vehicle, falls over, etc ...), the PTA is deemed to still be in custody of the offender and is responsible for their welfare.

3.18.5 Security Officers are not to enter private residences whilst in the conduct of PTA duties.  If is known that the location of offenders is private property the matter will be passed on to police to deal with.

60      The PTA concedes there is nothing in the manual that provides a direction 'Do not use OC spray on people off property', but what the manual does say in s 3.18 is that:

(a) transit officers cannot chase people off or from property;

(b) people need to be on PTA property if a transit officer is going to arrest them;

(c) a transit officer cannot arrest a person unless the person has committed an offence on property; and

(d) if a person is being aggressive on property they are to be escorted off property by taking them to the boundary and letting them go at the boundary.

61      In particular, s 3.18.1 provides that when escorting a person from PTA property, transit officers should disengage at a safe distance from the edge of property boundary.  By this statement the PTA says the manual contemplates that a transit officer should disengage before the edge of PTA property.

62      Consequently, the PTA's argument is that the matters set out in the manual reflect that transit officers work within boundaries and, when read as a whole, the rules, policies and procedures in the manual tells you that people off property are not the concern of transit officers and the reason why the manual takes that approach goes to the legal authority of the transit officers to exercise their duties and to protect transit officers and their safety.

63      When an aggressive person is at the boundary threatening to come across onto PTA property the training that transit officers are given to deal with such a person is called 'black mat' training and a component of that training is called the 'barking dog' policy.  Mr Svirac described the training in the following way:

Transit Officers work within boundaries. One of the things that we've found over the years is that if we sit there and we stand on the boundaries, we create what's referred to as the barking dog syndrome. The barking dog syndrome is when you're on the boundary and people are arguing with you.

The instruction to Transit Officers is to sit there and disengage if you find yourself in that situation.

64      Thus, it is said that the thrust of the training is that a transit officer is to disengage from an aggressive person to give them a choice as to whether to leave or to come onto PTA property.  The training contemplates two things.  Firstly, a transit officer cannot do anything when the aggressive person is off property.  Secondly, an aggressive person may not come onto PTA property, they will just leave.  The whole point of the procedure is that a transit officer cannot diffuse an aggressive interaction situation on the edge of the property so why engage with a person at that point.  Thus, it is said that the barking dog training supplements the procedures stated in the manual which speak about escorting people off property.  Consequently, it is said that the manual and the training provided to transit officers makes it clear that aggressive people off property are to be ignored and that point is well understood by transit officers.  This it is said was made clear from the evidence given by Mr Svirac and Ms Warr.

(a) Ground 1

65      Mr Merlo was found by the PTA to have misconducted himself by using excessive force against A off PTA property, thereby breaching s 3.17 of the manual.

66      In appeal ground 1, the PTA submits that the learned Acting Senior Commissioner asked himself the wrong question when he was asked to determine whether Mr Merlo used excessive force when he deployed OC spray at A and whether Mr Merlo had breached s 3.17 of the manual.  In construing this question, the PTA argues that the learned Acting Senior Commissioner should have had regard to, as contextual consideration, the fact that transit officers are trained to distance themselves from aggressive persons on the boundary who are off PTA property, a principle reinforced by s 3.19.2 of the manual, and the fact that if Mr Merlo believed that A was acting aggressively, he was required to extend the distance between himself and A such that A would either leave or come onto PTA property where Mr Merlo would be able to respond with force if necessary.

67      The PTA's argument is that Mr Merlo used excessive force because the rules, policies and procedures in the manual prohibit a transit officer using force off PTA property and training provided to transit officers requires disengagement from aggressive males on or near the boundary of PTA property.

68      The PTA rely upon the definition of excessive force in s 7.10.2 of the manual which provides, among other situations, the use of 'any force when none is needed'.  The PTA argues that whilst the learned Acting Senior Commissioner accepted that the 'use of force' principle set out in s 7.10 of the manual applies to the use of OC spray, the facts reveal that Mr Merlo did not retreat from A to diffuse and distance himself from the threat as he was required to do by the terms set out in the manual and the training he had received.  Instead Mr Merlo flipped open his OC spray canister pouch, approached A, warned A several times that he would be sprayed if he did not leave and leaned over the barrier when deploying the OC spray after A threatened to spit directly at him.  The PTA says that Mr Merlo used excessive force because had Mr Merlo followed correct procedure by distancing himself from A's abuse and threats it would not have been necessary to use force on a person who was not on PTA property.

69      In support of its argument, the PTA points to the evidence of Mr Svirac that:

(a) instead of unclipping his OC spray canister pouch and advancing, it would have been appropriate for Mr Merlo to disengage and distance himself from A to, among other reasons, reduce the risk of being spat on;

(b) if he was in Mr Merlo's shoes he would have distanced himself from the threat by taking a few more steps back, noting that Mr Merlo had some eight metres behind him; and

(c) Ms Warr did exactly what she was trained to do.  She disengaged from A and walked away.

70      Thus, the PTA says that Kenner ASC erred by asking a narrower question than the PTA considered, that is, he should have answered the question whether Mr Merlo used excessive force by having regard to all of the circumstances.  Instead, without regard to all of the circumstances he only had regard to whether Mr Merlo's split second judgment to use force, when A motioned towards him with a threat that he would spit at him, was reasonable.  Consequently, it is said Kenner ASC examined Mr Merlo's conduct isolated from the circumstance that he had put himself at risk of a threat from A when doing so was in breach of the provisions of the manual and the training.

(b) Ground 2

71      In ground 2 of the appeal, the PTA contends that the learned Acting Senior Commissioner was required to consider whether Mr Merlo's decision to deploy the OC spray was excessive in light of his failure to adhere to procedure which would have obviated the need to use the OC spray.  It is said that the use of the OC spray was a direct consequence of Mr Merlo's misconduct.  It is also argued that necessity is a precondition to the use of force and it is self-evident that if Mr Merlo had not misconducted himself by failing to disengage from A he would not have had to use the OC spray on A while A was off PTA property.  It is also argued on behalf of the PTA that if a precondition to the use of force is necessity, it was not open for the learned Acting Senior Commissioner to consider the factors set out in appeal ground 2.

72      In finding that Mr Merlo could have taken an alternative course by creating more distance between himself and A and that Mr Merlo should be demoted to a transit officer, level 3, it is said that it is implicit in this finding that the learned Acting Senior Commissioner found that Mr Merlo misconducted himself.  However, it is argued that the learned Acting Senior Commissioner did not properly articulate the conduct the subject of the finding of misconduct, that is, why and at what point Mr Merlo was required to take an alternative course.  Yet it is implicit in this finding that the PTA's 'barking dog' training, in particular, the testimony of Ms Warr and Mr Svirac that Mr Merlo was required to disengage and distance himself was accepted.

73      Whilst s 3.17.3. of the manual provides that the OC spray may be only deployed in accordance with the guidelines, which include use for personal protection (self-defence) of a security officer or any other person where there is an imminent and immediate danger to safety, health and well-being, the PTA argues that s 3.17.3 does not provide a test of whether the use of OC spray is used reasonably and appropriately.  Also, they say that this rule does not authorise the use of OC spray, rather it sets out guidelines for its use.

74      The requirement for the use of OC spray to be reasonable and appropriate is found in s 3.17.6 which provides:

The use of OC spray must be reasonable and appropriate, any misuse could have significant impact on the image of the PTA and in particular the Security Services Branch. Additionally, misuse of OC spray will result in an internal review of the incident and could lead to criminal action being commenced against the Security Officer(s) involved.

75      The PTA says the use of OC spray on people off property can never be reasonable and appropriate.  The PTA relies upon the evidence given by Mr Italiano that in his opinion Mr Merlo's failure to distance himself or retreat from the danger posed by A was a factor affecting whether or not his use of the OC spray was reasonable and appropriate.  Mr Italiano's evidence was that given Mr Merlo's training he would have been in a better position had he retreated and should have been in a better position to have not found himself confronting A over a fare gate.  Thus, Mr Italiano explained these factors led him to find that Mr Merlo had used excessive force because, as per the definition in s 7.10 of the manual, force had been used when no force was needed.

76      Thus, the PTA says the live issue at the hearing at first instance was whether it was necessary for Mr Merlo to use OC spray on A while he was off PTA property, necessity being a precondition in s 7.10 of the manual to use force.  That question it is said is not answered solely by whether Mr Merlo felt threatened in a moment of time, but rather by what lower force options (including retreat) he could have, and was required to, employ prior to the incident.  Whether Mr Merlo's use of OC spray was necessary, and therefore not excessive, needed to be considered in light of all of the circumstances and not only at a moment in time.

(c) Ground 3

77      The PTA puts appeal ground 3 as an alternative to grounds 1 and 2.  It is submitted that the learned Acting Senior Commissioner did not properly exercise his discretion when considering whether the dismissal of Mr Merlo was harsh, oppressive and unfair.

78      The PTA points out that whilst it was found that the dismissal of Mr Merlo was harsh, oppressive and unfair it was also found that the appropriate penalty that should have been imposed on Mr Merlo, having regard to the particular features of the incident, with the benefit of hindsight, was a demotion.  It is argued that the learned Acting Senior Commissioner did not properly articulate the conduct the subject of the finding that Mr Merlo misconducted himself by not taking an alternative course, but says that his reasoning is implicit.  Yet the basis of the finding of misconduct is not clear.  It is said that Mr Merlo was authorised to tell A to go away or to leave, but he was not authorised to warn A when A was off PTA property that he would be sprayed with OC spray if he did not leave.  The PTA says the misconduct was that Mr Merlo failed to disengage and distance himself from the threat at the barrier of the PTA property.

79      It is argued on behalf of the PTA that if the finding of misconduct made by the learned Acting Senior Commissioner is a finding that Mr Merlo failed to disengage and distance himself from an aggressive person who was not on PTA property, then the finding of misconduct wholly detracts from the finding that Mr Merlo, finding himself in the position he did, acted with reasonable cause.  It is said it follows that Mr Merlo did not find himself in a position where he was required to use OC spray on an aggressive person not on PTA property, but that he put himself in that position by misconducting himself.  The use of OC spray by Mr Merlo it says was the unnecessary and predictable consequences of his misconduct, which exposed an intoxicated 12-year-old juvenile to the deleterious effects of OC spray whilst not on PTA property.

80      Thus, it is said the error in the learned Acting Senior Commissioner's reasons is that he analysed and treated the incident as two transactions, rather than one.  In doing so, the learned Acting Senior Commissioner rationalised Mr Merlo's decision to use OC spray on a person off property despite the PTA's procedures being designed to prohibit such conduct.  Consequently, the learned Acting Senior Commissioner's finding that Mr Merlo misconducted himself by failing to distance himself from an aggressive person not on PTA property must be regarded as significantly or wholly detracting from his later finding that A's aggression constituted a reasonable cause for Mr Merlo to deploy OC spray in self-defence.

Conclusion

(a) Discretionary decisions - relevant principles of appellate review

81      The decision made by the learned Acting Senior Commissioner that the dismissal of Mr Merlo was harsh, oppressive and unfair was made on an assessment of the evidence given in the proceedings at first instance.

82      The Full Bench is empowered to set aside a discretionary decision in limited circumstances.  A decision cannot be set aside because members of the Full Bench would have exercised the discretion in a different way.  A Full Bench is to accord an evaluative decision made at first instance that a dismissal was or was not fair with sufficient deference:  Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266 [139] (Ritter AP).  After making this observation, Ritter AP in Michael set out the well-established principles [140] - [143]:

The relevant principles were set out in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 as follows:

'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'

As there stated, an appeal against a discretionary decision cannot be allowed simply because the appellate court would not have made the same decision. The reason why this is so was explained in the joint reasons of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]-[21]. At [19] their Honours explained by reference to the reasons of Gaudron J in Jago v District Court (NSW) (1989) 168 CLR 23 at 76, that a discretionary decision results from a 'decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result"'. Instead 'the decision-maker is allowed some latitude as to the choice of the decision to be made'. At [21] their Honours said that because 'a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process'. Their Honours then quoted part of the passage of House v King which I have quoted above.

Similarly, Kirby J in Coal and Allied at [72] said that in considering appeals against discretionary decisions, the appellate body is to proceed with 'caution and restraint'. His Honour said this is 'because of the primary assignment of decision-making to a specific repository of the power and the fact that minds can so readily differ over most discretionary or similar questions. It is rare that there will only be one admissible point of view'. (See also Norbis v Norbis (1986) 161 CLR 513 per Mason and Deane JJ at 518 and Wilson and Dawson JJ at 535).

These principles of appellate restraint have particular significance when it is argued, as here, that a court at first instance placed insufficient weight on a particular consideration or particular evidence. This was considered by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519. There, his Honour explained that although 'error in the proper weight to be given to particular matters may justify reversal on appeal, … disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge'. This is because, in considering an appeal against a discretionary decision it is 'well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion', and that when 'no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight'. (See also Aickin J at 534 and 537 and Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 at [36]).

(b) Grounds 1, 2 and 3 of the appeal

83      Whilst the PTA's submissions have been set out in these reasons at some length, the central point to its arguments is that the learned Acting Senior Commissioner failed to have regard to the evidence given on behalf of the PTA that established Mr Merlo was required through the training he received and relevant sections of the manual to have taken an alternative course of action when confronted by A's aggressive behaviour at the fare gates (on the boundary of PTA property) by disengaging and stepping back to put distance between himself and A.

84      There are a number of difficulties with this point.

85      Firstly, whilst the breach of discipline found by the PTA does not specifically prohibit the raising of this point, the breach found did not directly raise this issue.  The finding by the PTA was that Mr Merlo had used excessive force by deploying OC spray at A off PTA property therefore breaching s 3.17, s 3.18 and s 7.10 of the manual. 

86      Secondly, the issues the Commission was invited to decide in the memorandum of matters for hearing and determination did not on their face directly point to this issue.  In particular, questions (a) to (c) appear on their face to raise questions that went only to the actions of Mr Merlo once A had lunged towards him as if to spit in his face.  Questions (d) and (e) went to the issue whether Mr Merlo had warned A and whether A could have clearly seen Mr Merlo draw the OC spray.  Question (f) went to the issue of the reason why Mr Merlo drew the OC spray.  Question (g) essentially raised the same question as (a).  Question (g) asked whether the use of the OC spray by Mr Merlo was authorised by s 3.17.3 of the manual, that is in self-defence.  This question, on its face, like (a) directly raised an examination of Mr Merlo's conduct when he used the OC spray and not what he did prior to being in the position where he found himself in the position of A lunging towards him as if to spit.  Question (h) also required an examination of the facts from the point of deploying the OC spray.  Question (i) raises an issue that arose during the investigation.  Question (j) went to whether specific provisions of the manual were breached and not to directions given to transit officers during their training.  Question (k) raised the issue of whether the penalty imposed by the PTA was proportionate and appropriate for Mr Merlo's conduct.

87      Thirdly, in opening the case for the PTA at first instance, Mr Anderson, counsel for the PTA, did not put this point in the same way it is not raised in this appeal.  Mr Anderson put as the central point of the PTA's case the proposition that Mr Merlo had used force off PTA property.  Mr Anderson said (ts 39 - 40):

ANDERSON, MR:   Now, the respondent's - the respondent concedes, I think, for all intents and purposes that [A's] behaviour is aggressive and threatening.

Ultimately, what the respondent found was that the use of force in the circumstances couldn't be justified.  It found that Mr Merlo used excessive force, but it's not excessive in the sense that, you know, disproportionate to the spit.  It's not a question of, you know, in self-defence terms, weighing it up in that context.  The use of excessive force, as it's defined in the Manual, includes a definition of:

'Using force when no force is necessary.'

So the finding was essentially that it ought not to have been used at all, that there was perhaps no cause for it, if you like.

You know, it's unnecessary to say that it - has to be used for self-defence.  And I don't think the respondent concedes that there was an imminent danger posed by [A], but nor does it, you know, cede to contest it.  And equally, I don't think that the respondent made a finding that [A] [sic] didn't intend to, as a part of the deployment, to use in self-defence.  What we know is that Mr Merlo threatened three or four times to spray [A], and that's in Mr Merlo's response to the respondent in his memorandum.  He made those sort of - he made that sort of warning, if you like, that if [A] didn't cease threatening and leave he'd be sprayed.  And ultimately that was a warning he carried through with.

The point that we're here debating before the Commission, if you like, is the respondent's finding that Mr Merlo used OC spray to stop [A] coming onto the property.  Okay?

But that finding isn't inconsistent with Mr Merlo's explanation that he used it in self-defence because, of course, no doubt he was probably worried about [A] coming on and - or perhaps he just wanted him to leave so that he wasn't a threat - didn't pose as a threat anymore.  Or whatever the reason is, the respondent can't know what was in Mr Merlo's head, definitively.  But on the evidence, it said there's enough there for us to make a finding that, 'Given that what you've said to the investigator, you were principally concerned, if not entirely concerned, with preventing him from coming onto the property.  You were fed up with him, basically',

And the tension between the parties' respective positions is that Mr Merlo's explanation that - well, Mr Merlo knows that he can't justify the use of OC spray to deter a person - or at least he should know now anyway.  So his explanation is that he used the OC spray to prevent being spat upon.  And that's what's at odds with the respondent's finding, because he says, 'That's the only reason I used the spray.  I wasn't concerned with his threats to come on property, with his - and keeping him off property.  I wasn't concerned with his threats of violence.  The only reason I used the spray was because I didn't want to be spat at'.  And the respondent just simply says that's unlikely because of the evidence that he gave to the investigator.

So that's ‑ ‑ ‑

KENNER SC:   Even if the - even if Mr Merlo's partial motivation was to prevent being spat upon, given all of the circumstances and the - obviously aggressive and threatening and fairly outrageous behaviour by these two young people, even a partial motivation would be self-defence, wouldn't it?

ANDERSON, MR:   Yes.  And that's why the finding's not necessarily at odds.

I mean, you can use OC spray in a force that's not - I mean, there is conflict in one sense because on the one hand you have a provision which says, you know, you can use OC spray in self-defence, on another one you have a provision saying you can't use any force to stop someone coming onto property.  And there's a crossover, if you like, when the threat is off-property and you need to use self-defence in those circumstances.  But the way that's overcome is that there are provisions in the Manual that prevent people - you know, stop you from getting that close.  But before we get to that point, we say that principally he - Mr Merlo used the OC spray to stop him coming on the property.

But if we get to the point where we need to talk about whether or not the use of OC spray is self-defence partially, is a situation warranted and justifiable in the circumstances, then what we then have to do is to question the reasonableness of the - or the appropriateness of the use - the choice to use OC spray in those circumstances.  And that's a separate question.  So you have - is the respondent's finding legitimate?  Yes, it might be.  It may also be the case Mr Merlo used the spray in self-defence.  Okay.  Then we need to consider whether that was reasonable in the circumstances separately.  Because that, of course - if it wasn't reasonable for him to use OC spray in self-defence in those circumstances, then it's still a contravention of the policy.

88      Mr Anderson in opening then said (ts 41):

[T]here was the option for Mr Merlo to walk away.  And that - and he didn't do that, he chose to step forward and use force.  So we say that it - you know, in that situation, albeit in a split second, the use of O spray - C, sorry - was unreasonable.

But otherwise, the respondent says, 'Okay, you do have a split second'.  Maybe he didn't.  He was fearful for his safety.  Otherwise the respondent says in those - in that situation the first thought of - instinct you do is you put up your hands or you protect your face and you sort of retreat.  There are things that he should have done, the respondent says, before whipping out the OC spray.  I mean, it's important, you know, to assess of all this in the context, of course, with the timing, the split second.  But that militates against the use of the OC spray, the respondent says.

But then the respondent also says - and I think this is probably the most sort of critical point of the respondent's case, is that had Mr Merlo not contravened other aspects of the Manual in failing to distance himself from [A's] threats and aggression at any stage prior to the incident itself when you see all the other Transit Guards standing back, he wouldn't had been required to use any force.  So it's a situation of his own making.

89      Thus, it appears in opening Mr Anderson on behalf of the PTA put to the learned Acting Senior Commissioner that after Mr Merlo took a step back from A, Mr Merlo had the 'option' to walk away but instead of doing so, he stepped forward and unreasonably used force because he did not exercise the option of walking away.

90      Whilst it was not put on behalf of the PTA in closing that Mr Merlo had the option of stepping back, this point was accepted and adopted by the learned Acting Senior Commissioner in his reasons for decision when he found that with the benefit of hindsight Mr Merlo could have taken an alternative course by creating more distance between himself and A [23].

91      In closing, Mr Anderson reiterated the point that the PTA made the factual finding that Mr Merlo used the OC spray to prevent A from coming onto PTA property (ts 149).  He then, put the point that Mr Merlo concedes with hindsight that he should have distanced himself from A and made the submission (ts 150):

[H]e's admitted in his testimony, and I think in the investigation report, that, you know, in hindsight he should have distanced himself.  And we know that there's an obligation in the Manual in 3.19 that, you know, codifies that requirement so it's not something Mr Merlo's simply formed a view to of his own realisation on reflection.  It's something that he needed to do at the time.

And so I think, you know, that's quite an important point because when considering if Mr Merlo used his OC spray in self-defence, we don't assess that reasonableness in a snapshot at the moment that the incident occurred.  It's not, you know, take the chain of events and pick out the frame where you say, 'There's a split-second decision here and therefore it must be reasonable and appropriate because it's a, you know, subjective assessment and that's what he feared'.  My client says, well, it says what it did, and that is it looked at all the circumstances of his conduct during the exchange and formed a view as to whether or not deployment of the OC spray was reasonable in those circumstances.

He looked at whether or not Mr Merlo had exposed himself a threatening situation, you know, was the situation unnecessarily inflamed, where did the threat emanate from, was it on property, off property, did the Manual give guidance and prevent force being used when a person's off property, is a person required to distance themselves from a threat, you know, a threatening situation either on or off property, is a person trained to distance themselves from people off property making threats?  And if the answer to all those things is 'Yes', or even if the answer to some of those things is 'Yes', then the decision-maker has to sit down and attempt to rationalise the person's conduct not by virtue of the decision made in a split second but by reference to the chain of events.

92      Mr Anderson then made a submission that the requirement to disengage is in the manual (ts 151):

If you look at the Manual, the Manual says you can't use force off property on someone.  The Manual says you can use OC spray in self-defence.  But in the middle, the Manual says if you find yourself or you assess the situation as threatening or endangering you disengage, you distance yourself from that situation, and that's what Ms Warr's evidence was.  She disengaged.  She saw it, she thought it was disorderly, she didn't consider it threatening but she still disengaged because, well, if you disengage the person's either going to leave or the person's going to come on property, in which case you effect an arrest.  You know, and that's what they're trained to do.

So if you comply with the Manual there is no tension.  As soon as you fail to comply with the Manual you find yourself in the situation Mr Merlo's found himself, contrary to his training, which is - we've heard about, from the barking dog, and then you do find yourself in a situation and you have to say, 'I had a split second.  I couldn't make a decision.  One person reacts differently to another'.  But you don't get there if you comply with the Manual and that's why you look at the - you read the Manual as a whole.

It's a very difficult - you can't prescribe for every circumstance that might arise.  With the benefit of hindsight my client will probably go back and write into the Manual, 'Don't use OC spray on persons off property even in self-defence'.  But it doesn't need to be spelt out in that sense because they've had so much training drilled into them.

93      Thus, the requirement to disengage from an aggressive person who is near the boundary but is off PTA property is said on behalf of the PTA to arise from a construction of s 3.18 of the manual.  The first difficulty with this submission is that the PTA does not appeal against the finding that Mr Italiano admitted that the allegation that Mr Merlo contravened s 3.18 of the manual was erroneous as there was no suggestion that A had committed an offence on PTA property ([42], AB 31).

94      Secondly, some of the provisions of the manual could be construed as directions that do not require strict compliance, but instead confer a discretion that is to be exercised in accordance with the guidelines.  In the heading 'About this Manual' it is stated (AB 53):

This Manual is to provide guidance to Transit Officers, Transit Supervisors and Shift Commanders on PTA policies and procedures. It constitutes essential rules, policies and procedures to provide guidance for the level of professionalism expected in order to fulfill the role as a Security Officer. Work performance will be assessed against relevant sections of this Manual.

95      Whilst many of the provisions are expressed as directions and some of the provisions in s 3 of the manual are expressed as requirements (such as s 3.4.2 which provides that in the absence of revenue officers, security officers are required to be at fare gates for the entire peak period), some provisions are not specific.  In particular, with the exception of the requirement not to use OC spray in a railcar, s 3.17.3 sets out guidelines for the use of OC spray in circumstances, of self defence/protection of others, that are generally defined, whereby an officer who wishes to use OC spray is required to exercise his or her discretion within those guidelines.

96      In any event, s 3.18 provides no specific guidance to a security officer dealing with a person off the boundary of the PTA who by their physical action constitutes a threat to use force immediately against a security officer who is and remains on PTA property.  The act of A moving to the PTA boundary and feigning to spit in Mr Merlo's face, which if carried out would have resulted in Mr Merlo being assaulted on PTA property, is a circumstance or situation that is not addressed by s 3.18 or addressed directly by any another other provision in the manual.

97      Thirdly, the submission that Mr Merlo was in all of the circumstances required to disengage from A cannot be said to be entirely supported by all of the evidence given by PTA witnesses.  In particular, Mr Italiano gave the following evidence (ts 115 - 116):

Yes?‑‑‑ ‑ ‑ ‑ ah, ah, in the circumstances even if he was heated and he thought the guy was getting excited and all the rest of it, I still don't see that, ah, the use of OC spray was the appropriate defence.

If Mr Merlo - if you had believed Mr Merlo that he held a belief that there was an imminent threat to his safety, health and wellbeing ‑ ‑ ‑?‑‑‑Mm.

‑ ‑ ‑ then his use of the OC spray would have been justified by the earlier provision that we've just gone through.  You accept that, don't you?‑‑‑No, I - I don't necessarily accept that, no.

Why don't you?  Why do you say that's wrong?‑‑‑Because again, I say even in those circumstances with the guy on the other side of the barrier, ah, he could have called the back - for - for backup, he could have called for the - for the, ah, the - the, ah, his partner to come along and actually assist him to arrest him.

Yes, but isn't that missing the point with all due respect, because the reason why Mr Merlo used the OC spray was because the kid had made a baulk; Mr Merlo was ‑ he didn't ‑ ‑ ‑?‑‑‑Yeah, but he - he could have grabbed him then and called for ‑ for - for back up, you know.

Well, how can he grab him if he wasn't on the property?‑‑‑Well, you've asked me what his reaction should have been ‑ ‑ ‑ 

And you're saying he should have grabbed this person?‑‑‑Well, if he - if he felt it was in such - such a - I mean, my first response would be to move back ‑ ‑ ‑ 

Yes?‑‑‑ ‑ ‑ ‑ but - but if he felt that he was in such danger and rather than use the pepper spray which is almost the penultimate, you know, it's ‑ ‑ ‑ 

Well, it's not almost because if that is the penultimate which - the Transit Manual says that ‑ ‑ ‑?‑‑‑Well, yeah, a - a softer option would have been to - to grab him to try and restrain him.

But there's the barrier in-between?‑‑‑Yes.

So how ‑ ‑ ‑?‑‑‑Yeah.  Well, yeah, he was just there.

Okay?‑‑‑Yeah.

So you're saying it - I mean, because really the two relevant provisions for what you're saying if he's - 7.10.1 and 7.10 ‑ ‑ ‑?‑‑‑But - and 2.

‑ ‑ ‑ 1.02, the others I ‑ ‑ ‑?‑‑‑Correct.  That's right.

‑ ‑ ‑ with the defensive portion ‑ ‑ ‑?‑‑‑No, they're at - no.  No, it's only those.  Exactly.

And you're saying what Mr Merlo should have done is if he did have that belief that there was an imminent threat to his safety and health, he should have grabbed the kid instead of spraying?‑‑‑No, he should have backed off and called for backup, that's ‑ ‑ ‑ 

Yes?‑‑‑ ‑ ‑ ‑ what he should have done.

But if he had to use force you say he should have grabbed him?‑‑‑Yeah, I - I would have probably tried to restrain him, yeah.

98      Whilst a submission to the contrary was made during the hearing of the appeal on behalf of the PTA, Mr Italiano did not directly address this issue or depart from this evidence when re-examined (ts 120 - 122).

99      As the learned Acting Senior Commissioner answered the questions as they were framed and considered the case of the PTA as it was put to him, I am not satisfied that any error is demonstrated in the exercise of his discretion insofar as the decision is sought to be impugned in grounds 1 to 3 of the grounds of appeal.

100   For these reasons, I am of the opinion that grounds 1 to 3 of the grounds of appeal have not been made out.

(c) Ground 4 of the appeal

101   In appeal ground 4, the PTA contends that the learned Acting Senior Commissioner erred in law by failing to consider a relevant consideration, namely Mr Merlo's previous disciplinary history when determining whether dismissal was a proportionate and appropriate penalty for Mr Merlo's conduct.  The PTA relied on Mr Merlo's previous disciplinary history when exercising its right to dismiss, yet it says it is apparent from the reasons for decision that the learned Acting Senior Commissioner failed to take it into account.

102   In making the finding that it was 'self-evident' that the dismissal was disproportionate and an inappropriate penalty, the learned Acting Senior Commissioner relied upon the conduct of Mr Merlo and had regard to a comparable case involving another transit officer which had not attracted a penalty of dismissal and to the fact that Mr Merlo was contrite, but had no regard to Mr Merlo's disciplinary history.

103   The PTA says it is not its case that Mr Merlo's previous disciplinary matters of themselves could support dismissal, rather that the severity of the incident on 6 November 2015, taken together with the continued and repeated past contraventions of the manual, led to the PTA reasonably losing confidence in Mr Merlo's temperament to be a transit officer and to have trust in his ability to comply with directions, policies and procedures.

104   The PTA says the reason it dismissed Mr Merlo was not only because of his actual conduct on the night in question, but because its lack of confidence in Mr Merlo in the future to follow procedures.

105   It says by the date of the incident Mr Merlo should have been aware what was required of him and if not he should have sought further information from Ms Warr on the night of the incident as:

(a) he was dealing with an inflammatory and provocative situation that transit officers' work inevitably entails which requires self-control;

(b) Mr Merlo had been involved in two related disciplinary matters which related to self-control in the past;

(c) Mr Merlo had been reprimanded and cautioned in the past for two related disciplinary matters and warned of more severe consequences in future; and

(d) in light of past incidents, Mr Merlo had been directed in the past to be mindful of not using excessive force and to review all relevant sections (particularly use of force) of the manual and had been explicitly warned against placing himself in danger.

106   Consequently, the PTA says that Mr Italiano's evidence about why Mr Merlo's disciplinary history was a relevant consideration should have been considered by the learned Acting Senior Commissioner.  Mr Italiano is uncertain as to what Mr Merlo would do next and saw him as a high risk for the PTA that he would continue to breach the provisions of the manual in the future.  Because of past disciplinary matters involving Mr Merlo go to Mr Merlo's 'self-control' to manage his impulses, Mr Italiano has doubts about Mr Merlo's temperament to be a transit officer after the most recent incident and because of his continued infractions.

107   The union argues that this ground is without merit.  It points out that the learned Acting Senior Commissioner documented Mr Merlo's disciplinary history in his reasons for decision as follows ([20], AB 24):

In terms of Mr Merlo's work history there have been some prior issues of performance raised, which were set out in Mr Italiano's letter of 8 June 2016 dismissing Mr Merlo. Mr Italiano's evidence as to those matters was that he had no difficulty with Mr Merlo's competency or integrity as a transit officer, or anything from the various 'My Action Plans' in evidence before the Commission. What Mr Italiano said he drew from Mr Merlo's work history were some issues of punctuality in the past, but accepted they had been remedied. He was however, also concerned about what he described as breaches of various parts of the Manual and his lack of confidence that this would not continue to occur. Mr Italiano also testified that he had some reservations as to Mr Merlo's temperament, having regard to the duties and responsibilities of a transit officer. When asked about alternatives to dismissal, Mr Italiano said that he did consider the options of demotion and transfer. However, he did not consider they were appropriate, having reached the view that Mr Merlo seemed to have difficulties with compliance with procedures.

108   The union argues that when making his decision to dismiss, Mr Italiano considered six disciplinary matters each of which were of a minor nature.  It also points out that not every matter Mr Italiano referred to in the letter of dismissal resulted in Mr Merlo being disciplined.  Further, that one incident was a reprimand issued on 2 December 2011 for failing to fill out an action report, a use of force form and failing to request the CCTV footage of an incident on 31 August 2011 involving a use of force by Mr Merlo.  However, contrary to the finding made by Mr Italiano in the letter setting out his reasons for dismissal of Mr Merlo, this incident did not result in Mr Merlo being reprimanded for excessive use of force (AB 186; AB 234).

109   The union contends Mr Merlo's disciplinary history could not justify dismissal as Mr Merlo has not prior to the incident on 7 November 2015 been disciplined for use of excessive force.  Further, it says that even if it is found that the learned Acting Senior Commissioner failed to have regard to Mr Merlo's disciplinary history, the error if made out was not material because there was nothing in the history that would lead to a conclusion that the appropriate penalty for the incident on 7 November 2015 is dismissal.

110   When regard is had to the whole of the learned Acting Senior Commissioner's reasons for decision, it is apparent that he only had regard to:

(a) the relevant circumstances of the incident as found by him in answer to questions (a) to (j) and to the finding that with the benefit of hindsight Mr Merlo could have taken an alternative course by creating distance between him and A;

(b) the fact that a penalty of demotion had been imposed on another transit officer who had deployed OC spray in an unrelated incident in circumstances that could not be regarded as the use of reasonable force or action taken in self-defence; and

(c) Mr Merlo's contrition after the incident.

111   Whilst the learned Acting Senior Commissioner referred to the prior issues of performance set out in Mr Italiano's letter of 8 June 2016, he made no analysis of the circumstances of or whether the history of breaches was correctly recorded ([20], AB 24).  Also, although he referred to Mr Italiano's evidence, which goes to the PTA's claim that dismissal was a proportionate penalty on grounds that the PTA could not have a sufficient level of trust and confidence in Mr Merlo that he has the appropriate temperament for the duties of a transit officer and that he would in the future not breach the provisions of the manual, the learned Acting Senior Commissioner did not have regard to this evidence and whether the opinion of Mr Italiano is soundly and rationally based.

112   The Full Bench considered at length the principles that apply to the discretion to order reinstatement pursuant to the power conferred in s 23A of the Act in Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408 (Vimpany FB).  Although the principles were enunciated in context of the specific statutory provisions that authorise the making of orders pursuant to the power conferred by s 23A, the following principles may have application in an appropriate case to the making of an order pursuant to the power conferred under s 44 of the Act.  In that matter, Scott ASC and I found [106]:

In our opinion, when regard is had to s 23A of the Act, the statutory scheme to provide remedies to a claimant who has been harshly, oppressively or unfairly dismissed and the decided cases the following principles should apply to an exercise of discretion when considering whether to order reinstatement of a claimant where a relevant circumstance is a claim by the employer that there has been a loss of trust and confidence in the claimant:

(a) Reinstatement is the primary remedy afforded by s 23A.  If reinstatement of a claimant who has been harshly, oppressively or unfairly dismissed is impracticable, the Commission is to consider whether another position is available and suitable for the claimant to be re-employed.  If reinstatement or re-employment is impracticable, the Commission may order the employer pay compensation.

(b) The onus is on the employer to establish credible reasons why reinstatement of the claimant is impracticable.

(c) Trust and confidence can be a relevant factor to consider when considering whether reinstatement is impracticable.  Whether it is a relevant factor will depend upon the factual circumstances of a particular matter.  Trust and confidence is not the sole criterion or even a necessary one in determining whether reinstatement is impracticable.

(d) For reinstatement to be impracticable on grounds of trust and confidence, some embarrassment or doubt by the employer, friction between the claimant, the employer and/or other employees is not sufficient to make the relationship unviable.

(e) The reluctance of an employer to shift from the view of the claimant's conduct, despite an assessment by the Commission that the conduct in question had not been made out, does not provide a sound basis to conclude that the necessary level of trust and confidence is irreparably damaged or destroyed.

(f) The employer's opinion about whether there is a necessary level of trust and confidence must be genuine, credible and rationally based.  The necessity of an appropriate level of trust and confidence to restore an employment relationship will depend upon not only the attitude of the claimant towards the employer and/or any other relevant employees and the employer to the claimant, but also whether the attitudes expressed have a reliable foundation and the nature and function of the duties of the employee. 

(g) The level of sufficient trust and confidence in an employment relationship will vary depending upon the circumstances of a particular matter.

(h) The assessment of whether there is a sufficient and cogent loss of trust and confidence is a matter for the Commission to determine.  The degree of trust and confidence an employer could be said to reasonably expect of one category of employee may be higher or lower than another.

(i) The question to be determined by the Commission is whether there can be, in the circumstances, a sufficient level of trust and confidence restored to make the employment relationship between the employer and the claimant viable and productive.

113   In an appeal to the Industrial Appeal Court against this decision, these principles were approved:  The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WASCA 86; (2017) 97 WAIG 431 (Vimpany IAC).  As a high level of trust and confidence is to be expected in the employment relationship of a transit officer, the evidence of the opinion of Mr Italiano is a matter that the learned Acting Senior Commissioner should have had regard to when considering whether dismissal was a proportionate and appropriate penalty for Mr Merlo's conduct.

114   In making such an assessment, regard should also have been had to the fact that it appears that the disciplinary history recorded in Mr Italiano's letter of 8 June 2016, in which he set out the matters he relied upon in making the decision to impose a penalty of dismissal on Mr Merlo, is incorrect in that Mr Merlo had not in the past been disciplined for excessive use of force (AB 186; AB 234).

115   For these reasons, I am of the opinion ground 4 of the appeal has been made out.

(d) Ground 5 of the appeal

116   In ground 5 of the appeal, it is argued that the learned Acting Senior Commissioner erred in law by ordering that Mr Merlo be reinstated to the position of transit officer, level 3.  The parties agree that the power to make this order does not arise from s 23A(3) of the Act, as s 23A(3) only empowers an order of reinstatement of Mr Merlo to his pre-dismissal position as a transit officer, level 5.  This consequence arises because s 23A(3) expressly restricts the power to make an order that an employer reinstate an employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

117   The issue raised in this appeal is whether the power to make the order requiring the PTA to reinstate Mr Merlo as a transit officer, level 3, arises pursuant to the powers conferred by s 44(9) of the Act by operation of s 23(3)(h) of the Act.  Section 23(3)(h) provides:

The Commission in the exercise of the jurisdiction conferred on it by this Part shall not —

(h) on a claim of harsh, oppressive or unfair dismissal —

(i) in the case of an application under section 44, make any order except an order that is authorised by section 23A or 44; and

(ii) in any other case, make any order except an order that is authorised by section 23A.

118   Following the hearing of oral submissions in respect of grounds 1 to 4 of the appeal, the parties filed written submissions about the effect of s 23(3)(h) of the Act.

119   On 6 June 2017, the parties filed joint submissions.  On the same day, the PTA filed supplementary submissions in which it set out its position in respect of the matters not agreed between the parties.  On 9 June 2017, the union filed its submissions in respect of the matters that go beyond the agreed position set out in the joint submissions.

(i) The parties' joint submissions on the effect of s 23(3)(h) of the Act

120   In the parties' joint submissions, the parties point out that s 23(3)(h) of the Act, in its current form, was inserted into the Act by s 137 of the Labour Relations Reform Act 2002 (WA).

121   They also point out that the second reading speech for the Labour Relations Reform Bill did not make any specific reference to the amendments to s 23(3)(h) of the Act.  They do, however, raise that in the second reading speech for the Bill the amendments to s 44 of the Act were referred to.  In the speech, it was stated:

The following key changes will be made to the unfair dismissal and associated enforcement provisions of the Act: reinstatement will be the primary remedy regardless of whether an employer agrees to pay compensation and the commission will in certain circumstances be able to make interim orders under section 44, Compulsory conference, as to reinstatement or re-employment pending the resolution of the claim … (Western Australia, Parliamentary Debates, Legislative Assembly, 19 February 2002, 7519 (Mr Kobelke).

122   The joint submissions observe that some passing comments were made to the amendments to s 23(3)(h) of the Act at the committee stage of the Labour Relations Reform Bill in the Legislative Council (Western Australia, Parliamentary Debates, Legislative Council, 20 June 2002, pp 11747 - 11774).  They then point to the recent decision of the Industrial Appeal Court of Western Australia in Vimpany IAC in which it was made clear that the Commission should be cautious about relying upon committee debates in determining legislative intention [146] - [147].

123   The parties make a submission it may be arguable, based on the second reading speech and the committee discussion in the Legislative Council, that the mischief that s 23(3)(h) of the Act was aimed at was allowing the Commission to make interim orders in relation to s 44 unfair dismissal claims.  They point out, however, that the words in s 23(3)(h) are not confined to the making of interim orders under s 44 of the Act.  They appear broad enough to encompass any type of order that the Commission may make under s 44 (including final orders).  The parties state the explanatory memorandum for the Labour Relations Reform Bill and the long title of the Bill are of no assistance.

124   The parties drew to the attention of the Full Bench that the interaction between s 23(3)(h) and s 44(9) of the Act was addressed by Ritter AP in BHP Billiton Iron Ore Pty Ltd v The Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch [2006] WAIRC 03908; (2006) 86 WAIG 642, 652 (BHP v TWU).  In that matter, Ritter AP (with whom Beech CC and Gregor SC agreed) clearly accepted that s 23(3)(h) empowered the Commission, in relation to an unfair dismissal arbitration instituted under s 44(9), to issue a remedy that was not contemplated by s 23A (albeit, not in the case that was put before them) [79].  However, in order to do so, the remedy would need to be a 'part of a dispute remaining for determination under s 44(9) of the Act, following the conclusion of a conference'.  The parties say it is implicit within the reasoning in BHP v TWU that in order to determine the jurisdiction of the Commission to make orders under s 44(9), it is necessary to consider the parameters of the dispute referred to the Commission by the memorandum of matters for hearing and determination.

125   In BHP v TWU, Ritter AP said [75] - [79]:

In this matter, the application did claim harsh, oppressive or unfair dismissal under s44, and therefore s23(3)(h) limited the orders which could be made. It limited the orders to those which could be made under s23A or s44 of the Act. S23A does not provide jurisdiction to make any order of the type made by the Commissioner with respect to the counselling note.

With respect to the orders which could be made under s44 of the Act, s44(9) is relevant. This provides:-

'Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.'

Accordingly, the Commissioner had jurisdiction to hear and determine the dispute which had not by then been settled by the parties. As contained in the schedule to the Memorandum of the Commission dated 5 August 2005, that dispute was about the unfairness of Mr Johnston's termination of employment, and whether he ought to be reinstated with consequential orders. In my opinion, s44(9) of the Act and the Memorandum of Matters for Hearing and Determination did not provide the Commissioner with the jurisdiction to make order 6.

I note that s26(2) of the Act provides that in granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim. In my opinion, this general power is subject to the specific prescription of the jurisdiction and powers of the Commission when dealing with a claim for 'unfair dismissal' as set out in s23(3)(h) of the Act.

It may be that an order of the type which was made could be within jurisdiction if the making of such an order was explicitly part of the dispute remaining for determination under s44(9) of the Act, following the conclusion of a conference. Alternatively, if during the hearing of a dispute under s44(9), the issue of the making of such an order was raised by the parties or the Commission, the order could perhaps be made, by the Commission, in reliance upon s26(2). Neither of the possibilities applied, however, in this case.

(ii) The PTA's submissions

126   In the PTA's written submissions filed on 6 June 2017, it says that the observations made by Ritter AP in BHP v TWU are obiter and the ratio decidendi of the decision of the Full Bench in BHP v TWU is that the matter referred under s 44(9) in that case was merely a referral of a dispute as to an unfair dismissal, and therefore neither the memorandum of matters referred for hearing and determination, nor s 44(9), provided the Commission with the jurisdiction to make orders that fell outside of s 23A of the Act.  The PTA says that the present case before the Full Bench is on all fours with this point.  It therefore submits it is not necessary for the presently constituted Full Bench to determine whether the obiter observations in BHP v TWU were correct and it is not appropriate to consider that question until it is squarely raised.

127   Despite making that submission, the PTA goes on to make a submission which goes to an analysis of the matters referred for hearing and determination in the memorandum in this matter.  It says:

(a) paragraph 1 of the memorandum sets out that this matter is a dispute about whether the PTA unfairly dismissed Mr Merlo;

(b) paragraphs 2 to 6 set out the respective parties' contentions regarding the dispute as to whether Mr Merlo was unfairly dismissed; and

(c) paragraph 7 relevantly provides:

In determining whether the respondent's dismissal of Mr Merlo was harsh, oppressive or unfair, the parties, by agreement, invite the Commission to decide the following issues:

…

(k) Was dismissal a proportionate and appropriate penalty for Mr Merlo's conduct?

128   When regard is had to these paragraphs of the memorandum, the PTA argues that the only dispute referred to the Commission was whether the dismissal of Mr Merlo was unfair.  Accordingly, they say unless paragraph 7 of the memorandum provides a power for the Commission through s 44(9) of the Act to make orders other than those authorised by s 23A, there was no power for the learned Acting Senior Commissioner to make the order that he did (ordering that Mr Merlo be 'reinstated' to a position with conditions less favourable than that which he originally occupied).

129   It is said that it is clear from the prefatory words of paragraph 7 of the memorandum that paragraph 7 neither expands upon the dispute as between the parties, nor confers any extra powers on the Commission to make orders binding on the parties through s 44(9) of the Act.  This construction might be characterised as an argument that the ambit of the dispute arises because paragraph 7 makes it clear that the questions set out in subparagraphs (a) to (k) are merely questions that the Commission was invited to answer in its process of determining whether the dismissal was unfair.  Consequently, it argues it was not necessary for the Commission to answer those questions, nor does the answering of those questions provide the Commission with powers to make orders not authorised by s 23A.

130   The PTA also contends that whilst it may be argued that paragraph 7(k) of the memorandum provides a source of power for the Commission to make further orders not authorised by s 23A, such an argument must fail for three reasons:

(a) Firstly, this question is merely one that the Commission may wish to consider in the process of determining whether the dismissal was unfair, it does not provide a power to make further orders outside of the dispute as to whether the dismissal was unfair.

(b) Secondly, even if the Commission chooses to answer this question, the question on referral simply leads to a 'yes' or 'no' answer.  There has been no conferral of jurisdiction upon the Commission to make a binding order for the PTA to impose a penalty (which the Commission considered proportionate) upon Mr Merlo.

(c) Thirdly, even if the Commission considered that the conduct of Mr Merlo did not warrant dismissal, it does not follow that a lesser penalty should have been imposed upon Mr Merlo (this is because the employer imposed a penalty of dismissal both due to Mr Merlo's conduct, and due to the PTA's loss of confidence in Mr Merlo's suitability to continue in his employment as a transit guard (due to previous disciplinary matters)).  Even by answering the question posed by the parties in paragraph 7(k), the Commission is not placed in a position where it is able to determine whether some other penalty would have been appropriate both for Mr Merlo's conduct and for the loss of confidence that the PTA had in Mr Merlo's suitability for the role of a transit guard.

131   In all of the circumstances, the PTA says the Commission had no power to make an order which required the PTA to reinstate Mr Merlo as a transit officer, level 3.  It says the only order that could be made is an order made pursuant to s 23A(3) to reinstate Mr Merlo as a transit officer, level 5.

(iii) The union's submissions

132   The union in its written submissions filed on 9 June 2017 says that its case is that the reinstatement order was within the scope of s 44(9) of the Act because:

(a) the express terms of cl 2.11.22 of the Industrial Agreement required the disciplinary penalty issued to Mr Merlo to be proportionate and reasonably suitable; and

(b) the parties expressly requested the learned Acting Senior Commissioner to consider whether the penalty of dismissal was proportionate.

133   Clause 2.11.22 of the Industrial Agreement reads:

The type of penalty applied must be proportionate to the conduct which gave rise to the breach of discipline or must be reasonably suitable in consideration of all of the circumstances of the case.

134   Consequently, the union argues a review of whether the PTA's decision to dismiss Mr Merlo was harsh, oppressive, or unfair required an assessment of the proportionality and suitability of that penalty.

135   In support of its argument, the union relies upon the question put in paragraph 7(k) of the memorandum which was 'Was dismissal a proportionate and appropriate penalty for Mr Merlo's conduct?'

136   The union argues that:

(a) the proportionality of the disciplinary penalty issued to Mr Merlo was in dispute between the parties and the memorandum of matters referred for hearing and determination empowered the Commission to resolve that issue;

(b) in dealing with the issue of proportionality, the learned Acting Senior Commissioner first needed to determine what penalty would have been proportionate and appropriate in the circumstances.  The answer to that question would provide the learned Acting Senior Commissioner with a yardstick to measure against the penalty of dismissal.  After considering the circumstances of this case, Kenner ASC found that the proportionate penalty in relation to Mr Merlo was a demotion to the position of transit officer, level 3.  Given that finding, the harsher penalty of dismissal was consequentially found to have been disproportionate and not appropriate; and

(c) the union says that the order requiring the PTA to reinstate Mr Merlo as a transit officer, level 3, merely gave effect to Kenner ASC's ruling that the proportionate and appropriate penalty in the circumstances should have been a demotion to the position of transit officer, level 3.

137   In the circumstances, the union submits that Kenner ASC was empowered to make the order he did by the combination of the effect of s 23(3)(h) of the Act, s 44(9) of the Act, cl 2.11.22 of the Industrial Agreement and the memorandum of matters referred for hearing and determination.

(iv) Conclusion - Ground 5

138   Prior to the enactment of s 137 of the Labour Relations Reform Act, s 23(3)(h) provided the Commission shall not:

(h) on a claim of harsh, oppressive or unfair dismissal make any order except an order that is authorized by section 23A.

139   At the time s 137 of the Labour Relations Reform Act was enacted s 44 was also amended by the enactment of s 141(1) of the Labour Relations Reform Act.  Section 141(1) amended s 44(6)(bb) to provide:

The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may —

(bb) with respect to industrial matters —

(i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and

(ii) without limiting paragraph (ba) or subparagraph (i) of this paragraph, in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;

140   As the parties point out in their joint submissions, the amendment to s 23(3)(h) by the enactment of s 137 of the Labour Relations Reform Act, does not restrict the Commission to making interim orders, at or in relation to a conference convened under s 44 of the Act, in the case of an industrial matter that raises a case of a claim of harsh, oppressive and unfair dismissal.  If that was the case, given the enactment of s 44(6)(bb)(ii) at the same time s 23(3)(h) was amended, then it could be expected that s 23(3)(h) would have been amended to only authorise interim orders on a claim of harsh, oppressive or unfair dismissal made pursuant to s 44(6)(bb)(ii) or final orders made pursuant to s 23A of the Act.

141   In Aurion Gold v Bilos [2004] WASCA 270; (2004) 84 WAIG 3759 EM Heenan J observed that the jurisdiction to deal with an industrial matter concerning a claim for relief for a harsh, oppressive and unfair dismissal in a matter brought before the Commission pursuant to s 44 of the Act is more extensive than the Commission's power to provide relief for a claim referred under s 29(1)(b)(i) of the Act.  This is because the effect of s 23(3)(h) of the Act authorises orders under s 44 and because the prescribed time limit for referring a claim pursuant to s 29(1)(b)(i) does not apply to a matter that comes before the Commission under s 44 [50] - [56].

142   In BHP v TWU the memorandum of matters referred for hearing and determination were brief.  It set out the facts upon which the TWU relied to support a claim of unfair dismissal and stated that in all of the circumstances the termination of the employee in question is unfair and sought an order of reinstatement without loss of entitlement.  After hearing the parties, the Commission at first instance made an order requiring reinstatement of the employee and ordered that a counselling note be placed on his personal file.  At the hearing of the appeal, the TWU conceded that the Commission had no jurisdiction to make an order stipulating a counselling note.  Despite this concession, as this was an issue of jurisdiction, Ritter AP found it was necessary to consider and determine the matter [73].  As the dispute referred for hearing and determination was solely about the unfairness of the termination of the employee's employment and his reinstatement with consequential orders, the effect of the finding made by Ritter AP was that the scope of the matter referred to did not extend to whether a counselling note should by order of the Commission be placed on the employee's file.

143   Whilst the observations made by Ritter AP at [79] of his Honour's reasons for decision in BHP v TWU were obiter, I reject the argument that it is not necessary or appropriate in this matter to determine whether some of those observations are correct.  The point, whilst not raised at first instance, is squarely raised by the PTA in ground 5 and both parties have filed comprehensive submissions addressing the point.  In my opinion, his Honour's observations in the first sentence at [79] are clearly correct.  As the other possibilities referred to at [79] are not raised in this matter, it is not necessary to consider those in this appeal.

144   Clause 2.11.21 of the Industrial Agreement, when read with cl 2.11.22, provides for a range of penalties that the chief executive officer may impose on a transit officer where a breach of discipline has been found to have been committed that must be proportionate to the conduct which gave rise to the breach of discipline or reasonably suitable in consideration of all of the circumstances of the case.  These are:

a) No penalty;

b) A reprimand (which may include a final reprimand);

c) Deferring the payment and anniversary dates for annual increments by a period not exceeding six months;

d) A permanent or temporary transfer to another location within the PTA or to another employment position within the PTA, including to a position to which this agreement does not apply;

e) A permanent or temporary demotion or reduction to a lower increment or to a lower grade or position to which this agreement applies;

f) A permanent or temporary demotion to another position to which this agreement does not apply; and/or

g) Dismissal.

145   In paragraph 3 of the memorandum, the case for the union is put as two contentions.  The first is that the dismissal of Mr Merlo was harsh, oppressive and unfair because it was not open to the PTA to make the finding it did.  The second, expressed in the alternative, is that the penalty applied is disproportionate to the misconduct alleged.  When this paragraph is read with paragraph 7(k), it is clear that the ambit of the dispute before the learned Acting Senior Commissioner extended to:

(a) the proportionality of the penalty imposed on Mr Merlo;

(b) an assessment of Mr Merlo's conduct which gave rise to the breach of discipline; and

(c) what penalty would have been proportionate when considering the circumstances of the case.

146   When considering all of the circumstances of the case in determining a proportionate penalty it was open to the learned Acting Senior Commissioner as he did to have regard to:

(a) the circumstances of the conduct of Mr Merlo during the incident on 7 November 2015, including an assessment of the conduct which constituted a breach of discipline;

(b) an assessment of matters going to Mr Merlo's character and temperament; and

(c) penalties imposed on other transit officers who had been disciplined for deploying OC spray on grounds of a breach of discipline for use of excessive force.

147   As found in these reasons, the learned Acting Senior Commissioner should have also had regard to Mr Merlo's disciplinary history, including an assessment of the veracity of the PTA's contention of loss of confidence in Mr Merlo.

148   Having made a finding that dismissal was not a proportionate penalty (leaving aside the disposition of this appeal raised in ground 4 of the appeal), and then determining a demotion was a proportionate and appropriate penalty, these findings were findings that were squarely part of or put another way explicitly part of the industrial matter referred for hearing and determination pursuant to s 44(9) of the Act.  Consequently, by the power conferred in s 44(9) to hear and determine a dispute, it was open to the learned Acting Senior Commissioner to make the order reinstating Mr Merlo to a position of transit officer, level 3, and to make the order for loss of remuneration assessed at the rate of pay, entitlements and benefits applicable to the position of transit officer, level 3.

149   For these reasons, I am of the opinion that ground 5 of the appeal has not been made out.

Disposition of the appeal

150   In my opinion, the consequence that flows from upholding ground 4 is that the decision should be suspended and the matter remitted for further hearing and determination on grounds that the Full Bench is not in a position to properly weigh and assess all of the evidence of relevant matters to draw its own inferences and a conclusion whether in all of the circumstances the dismissal of Mr Merlo was a proportionate and appropriate penalty for Mr Merlo's conduct.  This is because the Full Bench has not had the opportunity to see and hear the witnesses give their evidence in respect of the issues that go to trust and confidence.  In particular, it is not in a position to make a proper assessment of all of the matters going to the character of Mr Merlo.

SCOTT CC:

151   I have had the benefit of reading the draft reasons of Her Honour, the Acting President.  I agree with those reasons and have nothing to add.

MATTHEWS C:

152   By grounds 1 to 3 the PTA contends that the Acting Senior Commissioner failed to have proper regard to the fact that if Transit Officer Merlo had not put himself in the situation that he did occasion to use the OC spray would not have arisen.  That is, if Transit Officer Merlo had, in accordance with his training, disengaged as Transit Officer Warr had done then A would not have made to spit at him and Transit Officer Merlo would not have discharged his OC spray.

153   The PTA says that, viewing the circumstances in their totality, Transit Officer Merlo was the author of his own misfortune.

154   This issue was squarely raised in the disciplinary proceedings of the PTA.  An example is found at page 41 of the Investigation Report, which is page 174 of the Appeal Book.  Transit Officer Merlo addresses the issue in his response to the Investigation Report, which may be found at pages 179 and 180 of the Appeal Book.

155   The memorandum of matters produced pursuant to regulation 31 Industrial Relations Commission Regulations 2005 (WA) raises, at paragraph 7, various questions but none of these detract from the main issue being whether the dismissal was harsh, oppressive or unfair nor from the PTA's contention that it was not because, in all the circumstances, including that Transit Officer Merlo did not disengage, that the decision to dismiss was fairly open to the PTA. 

156   The relevant circumstances, as the PTA saw them, clearly emerge from the paperwork produced as part of its disciplinary proceedings against Transit Officer Merlo and included whether, if Transit Officer Merlo had distanced himself from A, the occasion to use the OC spray in self‑defence would have arisen.

157   A review of the evidence at the hearing shows, in my view, that this point was very much alive before the Acting Senior Commissioner.  There was a great deal of evidence, none of it objected to, on the matter.

158   It was not put against the PTA on the appeal that the point raised by the PTA on appeal was, in effect, a new or different point or something that had not been alive in the proceedings before the Acting Senior Commissioner.

159   I consider however that the grounds of appeal must fail because the PTA has failed to establish that the Acting Senior Commissioner did not take account of the point or, having done so, erred in his conclusions in relation to it.

160   At [23] of his reasons for decision the Acting Senior Commissioner summarised his findings by saying, and here I paraphrase the Acting Senior Commissioner, dismissal was too harsh an outcome but that some penalty must be applied because Transit Officer Merlo should have put more distance between himself and A and, had he done so, the use of the OC spray, while justified when done, would not have occurred.

161   With respect to the Acting Senior Commissioner the outcome is succinctly, logically and well put and any suggestion that he has not understood or dealt with the issue must fail.

162   A finding that Transit Officer Merlo should probably not have been where he was but, finding himself in that situation, had reasonably deployed the OC spray was open to the Acting Senior Commissioner as was a finding that, in all of the circumstances, Transit Officer Merlo had misconducted himself but not in such a way as to, in itself, warrant dismissal.

163   In my respectful view what the Acting Senior Commissioner did was a classic and uncontroversial example of taking into account all of the circumstances.

164   I agree with the majority in relation to ground 4 and for the reasons given.

165   By ground 5 the appellant contends that if the Acting Senior Commissioner found that Transit Officer Merlo had been unfairly dismissed, and his reinstatement was not impracticable, the Acting Senior Commissioner was obliged to reinstate him to his former position on conditions no less favourable than those on which Transit Officer Merlo was employed immediately before his dismissal and had no power to, as the Acting Senior Commissioner did, order "reinstatement" to his pre-dismissal position but at a lower level.

166   The parties both contend, and I find, as the majority has, that section 23A Industrial Relations Act 1979 does not give the Acting Senior Commissioner power to make the order he made.  It is clear that the Acting Senior Commissioner did not act under section 23A Industrial Relations Act 1979.  Reinstatement to a former position but on terms less favourable than those on which an employee had been employed immediately before dismissal is not contemplated or allowed by section 23A.

167   However, I am of the view that the power to make such an order may be found in section 44 Industrial Relations Act 1979.

168   The present matter commenced as an application by the respondent, an organisation registered under Division 4 Part II Industrial Relations Act 1979, brought under section 44(7)(a)(i) Industrial Relations Act 1979.

169   The Notice of Application tells the reader that the dispute related to whether Transit Officer Merlo was unfairly dismissed by the appellant, presented facts as the respondent saw them, gave particulars of the dispute as the respondent saw them and concluded with an "Orders Sought" section.

170   Under the heading "Orders Sought" the respondent stated that it sought that Transit Officer Merlo be reinstated to his former positon on conditions at least as favourable as the conditions on which he was employed immediately before dismissal or, in the alternative, re-employed or, in the alternative, awarded compensation.

171   On its face the Notice of Application is a normal unfair dismissal application contesting the dismissal and seeking, by way of remedy, an exercise of powers provided for in section 23A Industrial Relations Act 1979.

172   The question then is how can the Western Australian Industrial Relations Commission, in these circumstances, end up making an order within jurisdiction not provided for by section 23A Industrial Relations Act 1979?

173   The answer to this is provided by section 44(9) Industrial Relations Act 1979 and regulation 31 Industrial Relations Commission Regulations 2005.

174   Section 44(9) Industrial Relations Act 1979 provides as follows:

Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.

175   It is the common experience of the Western Australian Industrial Relations Commission, and organisations, associations and employers who participate in conferences under section 44 Industrial Relations Act 1979, that at a conference held under that section questions, disputes and disagreements touching upon the matter brought to the Western Australian Industrial Relations Commission, but not necessarily raised on a strict reading of the Notice of Application, are discussed.

176   Such questions, disputes and disagreements may not have been settled by the agreement of the parties at the conclusion of the conference.

177   In my view, so long as those questions, disputes or disagreements are in relation to an industrial matter the Western Australian Industrial Relations Commission, pursuant to section 44(9) Industrial Relations Act 1979, "may hear and determine" them and "may make an order binding…the parties…" in relation to them.

178   So that the Western Australian Industrial Relations Commission and parties know the exact nature of the questions, disputes and disagreements regulation 31 Industrial Relations Commission Regulations 2005 provides as follows:

Where at the conclusion of a conference under section 44 of the Act a matter is to be heard and determined by the Commission, the Commission is to draw up or cause to be drawn up and sign, a memorandum of the matter requiring hearing and determination and for that purpose may direct parties to file statements of claim, answers, counter-proposals and replies in such manner and within such time as the Commission sees fit.

179   It is obvious that the parties entering arbitration must know the boundaries of that arbitration. If regulation 31 Industrial Relations Commission Regulations 2005 did not exist there would be a good argument that the boundaries of arbitration must be found in the Notice of Application and that section 44(9) Industrial Relations Act 1979 cannot have been intended to extend those boundaries beyond it.

180   The conference process under section 44 Industrial Relations Act 1979 is too dynamic and fluid for parties to, in each case, come away from it, where settlement is not achieved, knowing the exact questions, disputes and disagreements which remain, especially given that the issues discussed may be wider than those raised by a strict reading of the initiating document.

181   However, that potential problem is avoided by regulation 31 Industrial Relations Commission Regulations 2005.

182   Section 44(9) Industrial Relations Act 1979 gives the Western Australian Industrial Relations Commission the power to hear and determine, and make binding orders, on any question, dispute or disagreement in relation to an industrial matter that is not settled by agreement and regulation 31 Industrial Relations Commission Regulations 2005 ensures that the parties know the particulars of the question, dispute or disagreement to be ventilated at the hearing and resolved by orders made following it.

183   A Commissioner, of course, would have to ensure, in drawing up the memorandum under regulation 31 Industrial Relations Commission Regulations 2005, or agreeing to hear matters included in the memorandum he or she has caused to be drawn up, and in authorising the hearing of those matters by his or her signature, that the questions, disputes or disagreements contained therein were questions, disputes or disagreements in relation to an industrial matter and which were not settled, after attempts to do so, by agreement between all of the parties at the section 44 conference.

184   Subject to those things however, section 44(9) Industrial Relations Act 1979, in my view, clearly gives the Western Australian Industrial Relations Commission the power to make orders on what is included in the memorandum signed pursuant to regulation 31 Industrial Relations Commission Regulations 2005.

185   In BHP Billiton Iron Ore Pty Ltd v Transport Workers' Union, Industrial Union of Workers, Western Australian Branch (2006) 86 WAIG 642 at 652 the Full Bench said, without needing to decide, that:

It may be that an order of the type which was made could be within jurisdiction if the making of such an order was explicitly part of the dispute remaining for determination under s44(9) of the Act, following the conclusion of a conference.  Alternatively, if during the hearing of a dispute under s44(9), the issue of the making of such an order was raised by the parties or the Commission, the order could perhaps be made, by the Commission, in reliance upon s26(2). (my emphasis)

186   In my view the Western Australian Industrial Relations Commission may, within jurisdiction, make an order that was "explicitly part of the dispute remaining under section 44(9) of the Act."  That is, I consider that the comment of the Full Bench in bold above was clearly correct.

187   The only question then in this matter is whether the issue in relation to which the Acting Senior Commissioner made orders was "explicitly part of the dispute remaining under section 44(9)."

188   Whether or not the issue was "explicitly" part of the dispute is a matter, in my view, of determining whether it was "clearly expressed" (Macquarie Dictionary 3rd edition) in the memorandum signed pursuant to regulation 31 Industrial Relations Commission Regulations 2005.

189   Paragraph 7(k) of the memorandum says as follows:

In determining whether the respondent's dismissal of Mr Merlo was harsh, oppressive or unfair, the parties, by agreement invite the Commission to decide…was dismissal a proportionate and appropriate penalty for Mr Merlo's conduct.

190   The question is self-evidently different from, in the event of a finding that Transit Officer Merlo's dismissal was unfair, which subsection of section 23A Industrial Relations Act 1979 the Western Australian Industrial Relations Commission should act under.

191   It is a question which only needs to be answered if there was a finding of wrongdoing on the part of Transit Officer Merlo. This in itself makes it a different question than one touching upon section 23A Industrial Relations Act 1979.

192   It is a question that assumes wrongdoing, as found by the Western Australian Industrial Relations Commission, and which can only sensibly be answered by considering the range of disciplinary penalty options available to the employer in the event of a finding of wrongdoing by the employee. It is only in that context the question makes sense.

193   It is assumed by me, given that it appears in the memorandum signed pursuant to regulation 31 Industrial Relations Commission Regulations 2005, that the question was one which was raised at the section 44 conference but which had not been settled by agreement at that conference.

194   In those circumstances the Western Australian Industrial Relations Commission had jurisdiction, under section 44(9) Industrial Relations Act 1979, to "hear and determine" the question and "make an order binding on the parties" in relation to it.

195   This is exactly what the Acting Senior Commissioner did. In relation to the question, having found wrongdoing, he determined that dismissal was not a proportionate and appropriate penalty and that demotion from Transit Officer Level 5 to Transit Officer Level 3 was the proportionate and appropriate penalty. He went on to make an order reflecting that finding.

196   The alternative would have been for the Acting Senior Commissioner to find that dismissal was not appropriate but say no more. In my view this would not have been answering the question but more to the point would not have resolved the dispute that the Acting Senior Commissioner was hearing and determining.

197   Given that the Western Australian Industrial Relations Commission exists to provide practical solutions to problems between registered organisations and employers, and section 44(9) Industrial Relations Act 1979 empowers the Western Australian Industrial Relations Commission to hear and determine questions, it would have been inappropriate to return the matter of penalty back to the appellant and allow the dispute to continue.

198   I should add in conclusion that I have only considered the first sentence in the paragraph quoted above from BHP Billiton Iron Ore Pty Ltd v Transport Workers' Union, Industrial Union of Workers, Western Australian Branch (2006) 86 WAIG 642 at 652.  Reliance upon section 26(2) Industrial Relations Act 1979 is not raised by the appeal.