APPEAL AGAINST THE DECISION TO TAKE DISCIPLINARY ACTION ON 29 JANUARY 2015;
APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 10 MARCH 2016

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00728

DELIVERED : TUESDAY, 15 AUGUST 2017

FILE NO. : PSAB 2 OF 2015, PSAB 2 OF 2016

Appellant

AND

Commissioner for Corrections, DEPARTMENT of Corrective Services

Respondent

Catchwords : Industrial Law (WA) - Appeal against decision of the respondent to take disciplinary action - Appeal against  decision of the respondent to terminate employment - Whether appeals are in the nature of a hearing de novo - Whether misconduct occurred - Whether decision was harsh, oppressive and unfair - Whether the appellant was denied procedural fairness - Whether penalties imposed were fair or reasonably proportionate to the conduct engaged in - Principles applied - Appeals upheld and decisions of the respondent quashed - Orders issued

Legislation : Industrial Relations Act 1979 (WA)

  Public Sector Management Act 1994 (WA)   

Result : Appeals upheld.  Decisions at first instance quashed

Representation:

Counsel:

Appellant : Ms K Vernon of counsel and with her Mr T Kucera of counsel

Respondent : Mr R Hooker of counsel and with him Mr J Misso of counsel

Solicitors:

Appellant : Turner Freeman Lawyers

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824

Baker v University of Ballarat (2005) 225 ALR 218

Basil Milentis v The Honourable Minister for Education (1987) 67 WAIG 1124

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Briginshaw v Briginshaw (1938) 60 CLR 336

CSA v Director General, Department of Family and Children’s Services [2003] WAIRC 07213; (2003) 83 WAIG 390

Director General of the Department of Education v Mr Patrick Guretti (2014) 94 WAIG 425

Gary Mark Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158

Johnston v Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553

Krishna Thavarasan v The Water Corporation (2006) 86 WAIG 1434

Patrick Fels v The Department of Agriculture and Food (2010) 90 WAIG 1485

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

Sherry Martin v The Director General of Health [2012] WAIRC 00703; (2012) 92 WAIG 1620

State Government Insurance Commission v Johnson (1997) 77 WAIG 2169

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

The Minister for Health v Denise Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203

The Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385

Case(s) also cited:

A & JA Derjaha v BGC (Australia) Pty Ltd T/AS BGC Transport [2015] WAIRC 00250

AMA and Minister for Health [2016[ WAIRC 699

Baron v George Weston Foods (1984) 64 WAIG 590

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Commissioner of the ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Danijel Pantovic v Public Transport Authority of Western Australia [2011] WAIRC 00876

Fabre v Arenales (1992) 27 NSWLR 437

Fazio v Fazio [2012] WASCA 72

Frigger v Kitay (No. 8) [2015] WASC 104

Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893

Glenn Ross v Peter Conran Director General, Department of the Premier and Cabinet [2013] WAIRC 00152

HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334

Jones v Dunkel (1959) 101 CLR 298

Khalil Ihdayhid v Director General, Department of Mines & Petroleum [2012] WAIRC 00949

Laurent v City of Greater Geraldton [2016] WASC 48

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Mr Cesare Violanti and Mrs Somsri Violanti trading as Kwinana Pizza v Liam Christopher Porter [2014] WAIRC 01246

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

Polo Enterprises Australia Pty Ltd v Shire of Broome (2015) 49 WAR 134; [2015] WASCA 201

Public Service Board (NSW) v Osmond (1986) 159 CLR 656

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Re A Medical Assessment Panel; Ex parte Hays (Unreported, WASC, Library No 98057C, 5 October 1998)

Re Medicaments and Related Classes of Goods (No 2) [2011] 1 WLR 700

SBBA v Minister for Immigration and Multicultural Affairs [2003] FCAFC 90

Sherlock v Lloyd (2010) 27 VR 434

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

The Australian Rail Tram and Bus Industry Union and Employees (WA Branch) v Public Transport Authority of WA [2015] WAIRC 00936

William Amourous v Commissioner for Corrections, Department of Corrective Services [2007] WAIRC 00548

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Reasons for Decision

Background

1         This is the unanimous decision of the Appeal Board.

2         The appellant, Ms Harvey, was employed by the respondent in December 2008, in the position of Director of the Corrective Services Training Academy in Perth. The Academy is located in Bentley. The Academy is responsible for not only the training of prison officers to be employed throughout the State, but for all other training undertaken by the respondent. As the Director of the Academy, the appellant was responsible for all aspects of the Academy’s operations.  At the time of the appellant’s employment, some 66 staff are employed at the Academy. About 800 to 900 employees are trained by the Academy each year.  The Academy at the material time of the events giving rise to these appeals, had a budget of about $20 million.

3         The appellant remained as Director of the Academy until 29 January 2015. Because of several breaches of discipline allegations made against her, and findings arising from an investigation, she was removed from this position. It was then intended that she be transferred to another level 8 position. For a variety of reasons, which will be developed further below, the appellant did not relocate to another position.  Following the first investigation and its outcome, in July 2015, a review of the initial 2014 investigation led to further breaches of discipline allegations against the appellant. As a result of findings made from this latter process, the appellant’s employment was terminated on the grounds of misconduct.

4         Both the first alleged breaches of discipline and the second alleged breaches of discipline are now the subject of appeals to the Appeal Board. The appellant seeks to overturn the disciplinary decisions. She seeks the remedy of reinstatement without loss. Given the background to both appeals, they were joined and heard and determined together.

Overview of alleged breaches of discipline and the outcomes

5         Both appeals stem from events occurring from in or about January to April 2014, about purchasing decisions by the appellant in relation to meals for Academy staff and new curtains for the Academy’s hall. A variety of allegations were made against the appellant in her capacity as the Director of the Academy. In relation to the first set of allegations arising in PSAB 2 of 2015, it is convenient at this point to set them out now. They were set out in a letter dated 1 April 2014, in the following terms:

ALLEGATION ONE

Between July 2009, and February 2014, you committed a breach of discipline contrary to the Department of Corrective Services Code of Conduct 2011 (the Code), ‘Use of Public Resources’.  You did this by authorising Department funds to purchase meals for Academy staff, from Boronia Pre‑Release Centre to which they were not entitled.

ALLEGATION TWO

On 31 January 2014, you committed a breach of discipline when you contravened the Code, ‘Fraudulent, Corrupt and Inappropriate Behaviour’.  You did this by sending a deliberately misleading email to Assistant Commissioner Adrian Robinson purporting to outline legitimate reasons for purchasing meals from Boronia Pre‑Release Centre when the additional meals were ordered for Academy staff.

ALLEGATION THREE

In January 2014, you committed a breach of discipline when you contravened the Code, ‘Personal Behaviour’.  You did this facilitating the purchase of new curtains for the Academy’s hall at a cost of $6,710.  This purchase breached a directive given to you by Assistant Commissioner Adrian Robinson on 21 January 2014, stating that all expenditures after 21 January 2014, must be authorised by him.

ALLEGATION FOUR

On 3 February 2014, you committed a breach of discipline when you contravened the Code, ‘Record Keeping and Use of Information’.  You did this by dating a verbal quotation form the 21 January 2014, when you actually signed it on the 3 February 2014.

ALLEGATION FIVE

On [sic] February 2014, you committed a breach of discipline when you contravened the Code, ‘Fraudulent Corrupt and Inappropriate Behaviour’.  You did this by making a false entry on the minutes for a meeting held on 21 January 2014, where you stated that Assistant Commissioner Adrian Robinson agreed that currently approved / committed expenses could go ahead as planned.

(exhibit A1 pp 403 – 404)

6         A further breach of discipline was alleged against the appellant on 12 May 2014.  It alleged:

ALLEGATION SIX

On or about 14 April 2014, you committed a breach of discipline when you contravened the Department of Corrective Services Code of Conduct 2011 "Record Keeping and Use of Information". You did this by apparently altering the contents of an untitled memorandum purportedly written by Ms Helen Kelly, and dated 8 April 2014. Specifically you:

a. inserted details into the memorandum to incorrectly include a 1 hour timeframe given by Assistant Commissioner Adrian Robinson for the completion of a previous memorandum when that was not the case; and

b. included information to the effect that a "verbal quote form" was apparently signed on 21 January 2014, when in fact it was signed on or around 3 February 2014.

7         An investigation into the allegations was commenced by an internal investigator, Mr Milward.  On or about 17 June 2014 the Civil Service Association on behalf of the appellant responded to the allegations against her. Additionally, various requests for information and documents were made by the CSA on the appellant’s behalf, which she contended were either not responded to at all, or not adequately responded to by the respondent. In late June 2014, the appellant was removed from her position as the Director of the Academy while the investigation process was underway. Whilst it was intended that she be relocated to other substantive duties, it seemed to be common ground that this did not ultimately occur.

8         Of these six allegations, by letter of 3 September 2014, the respondent informed the appellant that allegations two to six were made out and allegation one was not proceeded with.  A proposed penalty of a reprimand and a disciplinary transfer was also set out in the same letter. On 1 October 2014, the appellant responded to the findings and proposed penalty. By letter dated 29 January 2015, the respondent informed the appellant that having considered her reply, it had decided to impose the penalties foreshadowed in its letter of 3 September 2014, effective from 29 January 2015.

9         After the conclusion of the first investigation, by letter dated 16 July 2015, the respondent made a further five allegations of breach of discipline against the appellant. These were said to have arisen out of and following a review of the first set of allegations and the ensuing investigation. These further allegations were in the following terms:

ALLEGATION ONE

About, or after, 30 January 2014, you committed a breach of discipline by back dating an Asset Acquisition Form to 21 January 2014.

To assist you in responding to this allegation, the Asset Acquisition Form is attached, marked “Attachment 1”.  The Vista invoice referred to in the Asset Acquisition Form is attached, marked “Attachment 2”.

ALLEGATION TWO

In June 2014, at the Department of Corrective Services Academy, you committed a breach of discipline by requesting Helen Kelly to include false information in a memorandum regarding the date on which an Asset Acquisition Form was signed by yourself.

To assist you in responding to this allegation, the Asset Acquisition Form is attached, marked “Attachment 1”.

ALLEGATION THREE

In June 2014, at the Department of Corrective Services Academy, you committed a breach of discipline by requesting Helen Kelly to include false information in a memorandum regarding the date on which a Verbal Quote Form was signed by yourself.

To assist you in responding to this allegation, the Verbal Quote Form is attached, marked “Attachment 3”.

ALLEGATION FOUR

On or about 1 April 2015, you committed a breach of discipline by saying during a telephone conversation to Mr Adrian Rivalland, an employee in the Department’s Investigation Services Directorate, words to the effect of “You’re all cunts.”

ALLEGATION FIVE

In March 2015, you committed a breach of discipline when you accessed an internal memorandum from Mr Peter Murdoch dated 16 March 2015, when such access was not required for you to perform your duties, contrary to policy 5 of the Department of Corrective Services’ Confidentiality and Information Privacy Policy.

To assist you in responding to this allegation, the memorandum from Mr Peter Murdoch dated 16 March 2015 is attached, marked “Attachment 4”.  The Department of Corrective Services’ Confidentiality and Information Privacy Policy is attached, marked “Attachment 5”.

(exhibit A1, pp 826 – 827)

10      A further letter of 16 July 2015 proposed suspending the appellant, in view of the nature of the new allegations and assertions made by the respondent about the appellant’s conduct in the workplace. By emailed document dated 24 July 2015, the appellant responded with what she described as an “initial response”, to both the further five allegations and the respondent’s proposed suspension.  On 3 July 2015, the respondent advised the appellant that she was suspended from duty on full pay with immediate effect. On 19 August 2015, the respondent notified the appellant that following an investigation, the further alleged breaches of discipline had been made out. In response, the appellant’s solicitors, Turner Freeman, wrote to the respondent on 28 August 2015, requesting confirmation that the relevant manager of the respondent, Mr Hassall, had the requisite delegated authority to make the decision he purported to make, amongst other matters.

11      Later, on 11 September 2015, the Commissioner for Corrective Services wrote to the appellant advising that he had rescinded Mr Hassall’s findings, but went on to advise that based on the investigation report dated 3 September 2015, it was open to him to conclude that the allegations were made out. The appellant was given a further opportunity to respond, which, after various exchanges between the appellant’s solicitors and the State Solicitor’s Office, she did on 23 September 2015. Additionally, Turner Freeman made further submissions to the respondent on 2 February 2016. Subsequently, by letter of 15 February 2016, the respondent informed the appellant that allegations one to four were made out and allegation five was not proceeded with.  It was proposed that the appellant be dismissed. By letter of 10 March 2016, after reviewing submissions from the appellant in relation to the penalty of dismissal, the respondent terminated the appellant’s employment, with effect from the date of the letter.

The appeals

12      As noted, both appeals have been heard and determined together.  If the appeal in PSAB 2 of 2016 is not successful, then the issues raised in appeal PSAB 2 of 2015 necessarily fall away.

13      Given the background to these matters, which has a lengthy history, it will assist in the comprehension of these reasons for decision to set out the appeal grounds, which places the preceding allegations in context. In relation to the grounds of appeal in PSAB 2 of 2015, whilst quite lengthy, they are in the following terms:

1. The Appellant is employed by the Respondent as the Director of the Corrective Services Academy, a level 8 position with the Department of Corrective Services.

2. The Appellant has been employed as Director of the Corrective Services Academy since December 2008.

3. The Appellant is a member of the Civil Service Association.

4. On the 18 February 2014 the Appellant received a letter (Attachment 1) notifying her that Central Investigations would be investigating allegations that she had failed to follow correct procedures to purchase items that the Appellant was not authorised to purchase.

5. No further details were given of the alleged Breach of Discipline at this point in time.

6. On the 20 February 2014 (Attachment 2) The [sic] Appellant received a further letter requesting her not to communicate either directly, or indirectly, with Ms Sait, Business Manager, and to maintain confidentiality in regard to the investigation.

7. This effectively gagged the Appellant from making any inquiries on her own behalf.

8. On the 1 April 2014 the Appellant received a letter from Paul Milward, Central Investigations, at the Department of Corrective Services listing five allegations against the Appellant (Attachment 3).

9. On the 12 May 2014 another letter was received from Mr Milward listing another sixth allegation against the Appellant (Attachment 4).

10. On the 17 June 2014 Mr Warwick Claydon, Senior Industrial Officer, Civil Service Association (CSA) wrote a letter of response on behalf of the Appellant (Attachment 5).  The letter denied all allegations and indicates the need for further and better particulars for all allegations giving the factual basis for the allegations.

11. The above letter of the 17 June 2014 also provided a comprehensive paper trail of emails, meeting minutes, an invoice and a letter which supported the Appellant’s case (Attachment 5.)

12. At a meeting 25 June 2014 the Appellant was removed from her position as Director of the Corrective Services Academy and an Acting Director, Mr Peter Murdoch, put in her place.  There was no warning about the purpose of the meeting and no support person offered.

13. The decision to remove the Appellant was made after she approached Ms Helen Kelly, level 1 Clerical Officer, through a third party seeking a statement required to support her defence.

14. This action prevented the Appellant from properly responding to the allegations made against her and was a breach of the principles of procedural fairness which allows you “...to provide evidence that you believe disproves the allegation...” WA Ombudsman Guidelines Procedural Fairness revised May 2009.

15. On the 11 July 2014 the CSA provided a Mr Adrian Rivalland, Acting Manager, Central Investigations, with additional supporting explanatory statements from both current and former employees of the Department of Corrective Services: Ms Rian Myers (Executive Officer), Sue Skowron (Manager DCS Recruiting), Mr Mark Glasson (ex‑Assistant Commissioner), and Mr Steve Robins (Assistant Commissioner) (Attachment 6‑9 respectively).

16. On the 12 August 2014 the Appellant received a final letter from Mr Steven Norris Director of Investigation Services stating the investigation had been concluded and a report provided to the Professional Conduct and Review team (Attachment 10).

17. On the 3 September 2014 the Appellant received a letter of outcome of the investigation (Attachment 11.) Allegation 1 was discontinued but the other allegations were upheld despite the evidence against such a finding provided to the Central Investigations.  A response to the findings was requested within 14 days addressed to Mr Damien Stewart, Executive Director, Corporate Support.

18. The above letter 3 September 2014 ordered the Appellant to “remain away from the Academy and to cease communicating with the DCS Academy staff in any work related Capacity.” Again the Department acted to prevent the appellant from speaking to witnesses and attempting to find more evidence to prove her innocence.

19. On the 9 September 2014 Ms Lois Kennewell, Industrial Officer, CSA emailed Mr Damien Stewart requesting a copy of the documentary evidence and Investigator’s Report relied upon in the decision of outcome, and an extension of time in which to address the documentation and the report (Attachment 12.)

20. On 12 September 2014 Mr Stewart replied by email agreeing to the extension but reserving his reply as to the provision of the documentation and Investigator’s Report (Attachment 13.)

21. On 15 September 2014 Ms Kennewell from the CSA sent another email to Damien Stewart about the provision of the Investigator’s Report and other relevant documentation.  In this email he was made aware that Adrian Rivalland had committed to providing this material if the allegation was supported (Attachment 14).

22. The Investigation Report and other associated documentation were not provided at this point in time.  No formal answer to the request for this material was received.

23. On 1 October 2014 the Appellant submitted her response without being able to reference the documentation and Investigator’s Report used to support the proposed outcome.  This meant the Appellant could not address the evidence which had been used against her.

24. The Appellant’s response was comprehensive as she attempted to address the proposed outcome without full knowledge of what she needed to address.  The appellant’s response provided 54 attachments supporting her case (Attachment 15).

25. On the 3 November 2014 Damien Stewart emailed Lois Kennewell, CSA, to inform her that two Public Sector Commission employees would be undertaking an external review of the Investigation (Attachment 16.)

26. On the 17 November 2014 the Appellant emailed Ms Kennewell informing her that she has sought a meeting with the Commissioner, Mr James McMahon, to discuss the situation as her health was deteriorating because of the uncertainty of the situation.  The matter had now been ongoing for 10 months (Attachment 17.)

27. On the 16 December 2014 the Appellant met with the Commissioner.  Ms Kennewell, CSA, was told in a phone call that day that the Commissioner said he had to take advice but wanted to close things off and return her to work.  The PSC had suggested to the Department that the original investigator consider the evidence that the Appellant had presented but which he had not considered.  He would need two weeks to have a look at any additional evidence.

28. On the 18 December 2014 the Appellant emailed the Commissioner reminding him of his obligation to fully consider the response himself and attaching a copy of her response (Attachment 18.)

29. On the 19 December 2014 Mr Damien Stewart, Executive Director, responded on behalf of the Commissioner assuring her the Commissioner would go through the file in detail and would expect to respond formally by letter within a week (Attachment 19.)

30. On the 20 December 2014 the Appellant met with the Commissioner who said he would read her response and that he wanted her back at work.  The Appellant told him she had yet to see the report so if he had any questions to ask her.

31. On the 29 January 2015 the Appellant finally received a letter of outcome which supported the initial letter of outcome of 3 September 2015 and gave a penalty of a reprimand and a disciplinary transfer (Attachment 20).  Interestingly while the letter mentioned a review by Mr Milward, the investigator, no mention was made of any external review as stated by Mr Stewart in his email to Ms Kennewell 3 November 2015.  The inference being that no such external review of the evidence was actually conducted.

32. On the 9 February 2015 Ms Kennewell, CSA, was finally allowed access to view the Investigation Report, witness statements and exhibits at the Department of Corrective Services.

33. The documents did assist to place the investigation in perspective with a few critical points of apparent evidence being made available.  These points were put to the Appellant and were answered readily and in such a way as to negate the value of the purported evidence.  If the documents had been made available to he Appellant, or the critical points put to the Appellant last September when the documents were first requested (9 September 2014) he Appellant’s response would have been able to clarify the points and it is probable that the allegations would have been dropped.

34. On 7 February 2015 the Appellant emailed the Commission re a phone call 3 February 2014 in which the Commissioner appeared to be unaware of certain items of evidence and provided him with a timeline for some of the allegations for the Commissioner to review (Attachment 21.)

35. The Department may believe that a fair process was undertaken but all assessments were based on the same flawed evidence and misinterpretations of the meanings of emails, with no opportunity given for the Appellant to address the flaws in the evidence presented by the Investigator.

36. The Respondent’s proposed penalty of a reprimand and a disciplinary transfer is harsh, oppressive and unfair.  There has been insufficient provision of evidentiary documents to allow the Appellant to effectively rebut the allegations.  The Appellant’s career is based in the education and training of Department of Corrective Services officers at the Academy, a sideways move at level both denies the Respondent of the benefit of the Appellant’s skills and six years experience in this area, and denies the Appellant the opportunity to continue to work within the area of her expertise.  Such a move will also cause damage to the Appellant’s reputation and future career.  The stress of the yearlong investigation process has already caused damage to the Appellant’s health and wellbeing aggravating a past post-traumatic stress injury.

37. The Public Service Appeal Board has jurisdiction to hear this Appeal under s 78(1)(b)(iv) of the Public Sector Management Act 1994 because the Respondent has made a finding under s 82A(3)(b).

38. The CSA is seeking the Public Sector Appeal Board under s 78 (5) of the Act determine that the Respondent has failed to comply with the Commissioners Instruction: Discipline General and the rules of procedural fairness in the decision making process and the subsequent findings against the Appellant.

39. The CSA is seeking the Public Sector Appeal Board pursuant to s 78(5)(a) or (b) either determine this Appeal on its merits or quash the decision or finding and remit the matter back to the Respondent with directions.

14      In relation to the appeal from the appellant’s dismissal in PSAB 2 of 2016, the grounds of appeal are in the following terms:

1. The Appellant appeals the decision of the Respondent to dismiss the Appellant from her employment (“the decision”) on the following grounds:

(a) There was, having regard to all of the available evidence, no valid, substantial or reasonable reason for the decision;

(b) The Appellant was denied procedural fairness as the Respondent failed to properly afford the Appellant an opportunity to respond to:

(i) The allegations which gave rise to the disciplinary investigation which preceded the decision (“the investigation”); and

(ii) The findings and conclusions in relation to the allegations upon which the decision was based;

(c) The investigation was not conducted fairly and was biased;

(d) The Respondent failed to properly consider the Appellant’s responses to allegations of misconduct;

(e) Even if there was a valid, substantial or reasonable reason for the Respondent to take disciplinary action against the Appellant (which is denied);

(i) There were reasonable alternative penalties to the decision that were available to the Respondent which were not properly considered and/or which ought to have been imposed instead of dismissal;

(ii) The decision was not, having regard to the Applicant’s age, length of service, seniority, experience and the numerous alternatives to dismissal, a fair reasonable and proportionate response to the claimed misconduct upon which the decision was based;

(iii) When the Respondent made the decision, the Respondent failed to have proper regard to factors including the Applicant’s length of service, her personal circumstances, age, previous good conduct/performance;

2. The decision was, in all of the circumstances, harsh, oppressive and unfair.

The nature of the appeals

15      Whilst there was no indication prior to the hearing of these appeals that the matter was in contention, in the outlines of written submissions, both parties raised the issue of the nature of the present appeal. The appellant contended, consistent with long-standing authority in the Appeal Board’s jurisdiction, originating in the decision of the Appeal Board in Gary Mark Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266, that the appeals are in the nature of a hearing de novo.  As such, it is for the Appeal Board to consider the appeals based on the evidence before it, and it has greater scope to substitute its view for that of the employer at first instance. In the case of dismissal for misconduct, as in PSAB 2 of 2016, it is for the employer to establish on the evidence that the misconduct occurred. This is opposed to the test applicable in unfair dismissal claims before the Commission, to the effect that the employer is only required to have a genuine belief, based on reasonable grounds, that the relevant misconduct took place.

16      This contention was advanced with acceptance by the appellant, that she bears the overall burden to establish that the Appeal Board should interfere with the respondent’s decision and to adjust it in accordance with s 80I(1) of the Industrial Relations Act 1979 (WA) .

17      For the respondent, several contentions were advanced. The principal submission made was that an appeal brought under s 78(1) of the Public Sector Management Act 1994 (WA), when read with ss 80H to 80L of the IR Act, is not to be regarded as a hearing de novo. This proposition was advanced in particular, in view of the grounds of appeal as made by the appellant in PSAB 2 of 2016. Two key propositions emerged from the respondent’s submissions on these issues. They were that:

(a)  The true character of each of the appeals in these proceedings under s 78(1) of the PSM Act, is by way of a re-hearing and not a re-hearing de novo; and

(b) There is no onus either at law or in practical terms, on the respondent to establish on balance on the evidence, that the alleged misconduct committed by the appellant occurred.

18      As to the first issue, the respondent submitted that as opposed to the approach adopted by the Appeal Board in Raxworthy, the Appeal Board should, given the nature of the appeals as set out in the grounds, when read with s 78(1) of the PSM Act, and the relevant provisions of the IR Act, conclude that the appropriate approach is that as set out by the Full Bench of the Commission in Director General of the Department of Education v Mr Patrick Guretti (2014) 94 WAIG 425.  In Guretti, which was an appeal from a decision of the Commission on a matter referred to it under s 78(2) of the PSM Act, and not an appeal to the Appeal Board, the Full Bench made some observations as to the nature of such proceedings. The Full Bench referred to an earlier decision of Smith C (as she then was) in Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824.  In Ayling, the Commission also considered the nature of an appeal and the difference between an appeal stricto sensu and a hearing de novo. The Commission also referred to the decision of Kenner C in Johnston v Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553 where consideration was given to the nature of a referral to the Commission under s 78(2) of the PSM Act.

19      In Guretti, Smith AP at par 64, in referring to her earlier decision in Ayling, doubted the view expressed by Kenner C in Johnston, to the effect that on a referral under s 78(2) of the PSM Act, the Commission is not necessarily restricted to a consideration of the reasonableness of the employer’s conduct, but may review the employer’s decision de novo.  In Ayling, Smith C further observed that the reason she questioned that approach was because necessarily, proceedings referred to the Commission under s 78(2) will involve a review of past events in relation to the conduct of an employee and the circumstances that existed at the time the conduct occurred. In Guretti at par 65, Smith AP further commented that following the addition of s 78(5) to the PSM Act, this put the matter beyond doubt that the nature of a hearing under s 78 of the PSM Act, will depend on the grounds set out in the referral to the Commission, and any matters that may be agreed in the respondent’s notice of answer.

20      As to the second issue, the respondent submitted that the relevant principle in relation to the “evidentiary onus” on the respondent, in relation to proof of misconduct, is as that set out by the Full Bench of the Commission in The Minister for Health v Denise Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203. That is, in the context of the present appeals, there is no requirement on the respondent to establish by evidence, that the misconduct alleged against the appellant occurred. Rather, the test is that the respondent had a genuine belief, based on reasonable grounds that the misconduct occurred.

21      After argument of counsel for the parties in relation to this preliminary issue, and after the amendment to the grounds of appeal in PSAB 2 of 2016, the Appeal Board announced its decision that it considered that the hearing of appeals before it was a hearing de novo. The Appeal Board was not persuaded to depart from the long-standing approach to this matter since the decision of the Appeal Board in Raxworthy. We came to this conclusion for the following reasons.

22      It is common ground that the present appeals are brought under s 78(1) of the PSM Act. Section 78(1) provides as follows:

78. Appeals etc.  against some decisions under s.  79, 82A, 82, 87, 88 or 92

(1) Subject to subsection (3) and to section 52, an employee or former employee who —

(a) is, or was, a Government officer within the meaning of section 80C of the Industrial Relations Act 1979; and

(b) is aggrieved by —

(i) a decision made in respect of the Government officer under section 79(3)(b) or (c) or (4); or

(ii) a finding made in respect of the Government officer in the exercise of a power under section 87(3)(a)(ii); or

(iii) a decision made under section 82 to suspend the Government officer on partial pay or without pay; or

(iv) a decision to take disciplinary action made in respect of the Government officer under section 82A(3)(b), 88(b) or 92(1),

may appeal against that decision or finding to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.

23      In the present case, the proceedings before the Appeal Board are an “appeal”.  By s 78(1) the Appeal Board has jurisdiction to hear and determine the appeals under and subject to Division 2 – Part IIA of the IR Act. The relevant provisions of Division 2 – Part IIA being s 80I at the material time of the institution of these appeals, was in the following terms:

80I. Board’s jurisdiction

(1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;

(b) an appeal by a government officer, who is the holder of an office included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975, under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section;

(c) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary not lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed;

(d) an appeal by a government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section;

(e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed,

and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).

(2) In subsection (1) prescribed salary means the lowest salary for the time being payable in respect of a position included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975.

(3) A Board does not have jurisdiction to hear and determine an appeal by a government officer from a decision made under regulations referred to in the Public Sector Management Act 1994 section 94 or 95A.

24      In Raxworthy, which was an appeal brought before the Appeal Board under the then s 80I(e), as to the nature of the appeal, it was said at 2266 as follows:

The nature of an appeal made under section 80I(1)(e) is somewhat different from the authority ordinarily given to the Commission to enquire into whether a dismissal is fair or not.  The decided cases make it clear that in claims of unfair dismissal per se the Commission is not to act as an appellate court and substitute its own view as if it were the employer, but rather determine whether the employer’s conduct was in all the circumstances reasonable.  Hence in cases of misconduct the test is not whether to the satisfaction of the Commission the misconduct occurred, but whether the employer had a reasonable suspicion amounting to a belief that the misconduct had in fact occurred (see Mavromatidis v.  TNT Pty Ltd (1987) 67 WAIG 1650). However, these proceedings are expressly an appeal, with the Appeal Board being given the power “to adjust” a decision to dismiss an employee. The onus is of course on the appellant to show that the Board should interfere with and adjust the decision. However, as with promotion appeals the decision is to be reviewed de novo on the basis of the evidence before the Board, not merely on the basis of whether the decision maker made the right decision on the evidence available to it at the time (cf: Colpitts v. Australian Telecommunications Commission (1986) 20 IR 184). The process afforded by section 80I is such that the Commission, constituted by an Appeal Board, is given a greater license to substitute its own view. Although as Mr Burns so rightly said the dismissal was lawful, the matter does not end there. Where as here the dismissal was based on a particular act of misconduct, albeit that there are parts to it, the Board, as part of the appellate process, is required to enquire into that allegation, if as is the case, the Appellant denies the Commission of such misconduct. If on appeal the act of misconduct is not shown to have occurred, then the very basis for the decision under appeal, in this case the decision to dismiss, is lost.

25      These proceedings are also before the Appeal Board under s 80I, albeit having been referred to it under s 78(1) of the PSM Act as a matter arising from disciplinary proceedings commenced under Part 5 of the PSM Act. Under s 80I, as it stood when these appeals were commenced, a range of “appeals” could be commenced before the Appeal Board. The basis of the Appeal Board’s jurisdiction as noted in Raxworthy in cases of a dismissal is different to that of the Commission under s 29 of the IR Act. There is no reference to “harsh, oppressive or unfair” dismissal in s 80I. Thus, as referred to in Raxworthy also, the role of the Commission, as not standing in the shoes of the employer and judging for itself whether the conduct complained of occurred or not, is not applicable. The test in The Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385, whether objectively considered, an employer abused its right to dismiss and denied the employee a “fair go all round”, is not directly applicable either. As the proceedings are an appeal, there is greater scope for the Appeal Board to substitute its view for that of the employer.

26      As to the contentions of the respondent that the decision of the Full Bench in Guretti has altered the approach to be taken by the Appeal Board under s 80I of the IR Act, for the following reasons, we are not persuaded to this view. Firstly, Guretti is distinguishable on the basis that it involved an appeal to the Full Bench under s 49 of the IR Act, from an application to the Commission under s 78(3) of the PSM Act, in relation to the dismissal of a school teacher on the grounds of substandard performance. The substandard performance provisions of the PSM Act can be found in s 79 of that legislation. The present appeals do not involve issues of substandard performance. The present appeals involve breach of discipline matters.

27      Secondly, while it was mentioned in Guretti, the approach taken by the Commission in Johnston, which was a referral of a matter to the Commission under s 78(2) of the PSM Act, is not in any sense inconsistent with Raxworthy. In Guretti, Smith AP cited three pars of reasons of the Commission in Johnston, they being pars 25, 26 and 27. However, to appreciate the full context of the conclusions reached by the Commission in Johnston requires a consideration of earlier passages of the decision when dealing with the nature of an appeal to the Appeal Board or a referral to the Commission under ss 78(1) or (2) of the PSM Act.

28      Commencing at par 22 in Johnston, Kenner C said:

22 In referring one of the specified matters to the Commission as if that matter were an industrial matter, the Commission’s jurisdiction is enlivened to “inquire into and deal with” that industrial matter: s 23(1) Act.  By section 78(1) of the PSMA, a government officer may appeal against one of the prescribed decisions to the Public Service Appeal Board.  In the determination of an appeal, the Public Service Appeal Board has jurisdiction and power pursuant to s 80I(1) of the Act to “adjust all matters” referred to it on appeal.  It would appear therefore, from the language of s 78(1), read with the jurisdiction and powers of the Public Service Appeal Board, that the nature of those proceedings, whilst an “appeal”, is in the nature of a de novo proceeding, enabling the Public Service Appeal Board to hear and determine the matter afresh, if the circumstances require it.  Some support for this view would appear to be found in the decision of the Public Service Appeal Board in Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266.

23 A similar approach was taken to the interpretation of the right of appeal by a teacher to the former Government School Teachers Tribunal, pursuant to the repealed s 78(1)(b) of the Act: Milentis v Minister for Education (1987) 67 WAIG 1124.  In Milentis, the Full Bench concluded that the nature of an appeal to the Government School Teachers Tribunal was to be essentially heard de novo, however this would depend on the grounds of appeal in each particular case.  In so concluding, the Full Bench adopted and applied observations of the then Chief Justice when considering the nature of an appeal to a tribunal created by statute under the Prisons Act.  In Ex parte Hill, Director of WA Prisons Department v Ormsby No 1987 of 1985 the Chief Justice said at 11—

“The nature of the appeal is not, I think, to be determined by a resort to the cases which are legion dealing with appeals within or to establish courts and by asking whether it is an appeal by way of rehearing in the sense in which that word was understood in old chancery practice.  In the context of this Act no a priori restriction should be placed upon the right which it gives and which by the statute is called an appeal.  The intention of the statute, in my opinion, is simply to allow the prison officer to challenge the determination (?) or penalty before the Tribunal upon any grounds which are said to render it either unjust or wrong.  Grounds of appeal are to be given and the manner in which the Tribunal goes about its task will be controlled by those grounds.  But that manner is not controlled or restricted by anything to be found within the nature or character of the appeal itself.  If the grounds are such that in the judgement of the Tribunal justice cannot be done without hearing the proceedings all over again then it has power to do so.  If, on the other hand, the grounds can be adequately dealt with by the Tribunal on such record of the proceedings below as comes up to it, supplemented or not by evidence, then the Tribunal can deal with the appeal on a more restricted basis.  The procedure to be adopted is such as will, on the grounds of appeal, enable full and complete justice to be done.”

24 This approach was also broadly applied in relation to appeals under the former s 23B of the Act.

25 Whilst s 78(2) does not refer to an “appeal” to the Commission, it seems plain enough from the language in the section as a whole, that it is concerned with challenges to a decision taken by the employer in relation to which the employee is “aggrieved”.  Reference to “aggrieved” is made in s 78(1)(b) dealing with appeals to the Public Service Appeal Board, and also in ss 78(2)(b), (3) and (4) dealing with referrals to the Commission.  In my opinion, given the nature of the proceeding contemplated by s 78 of the PSMA, a matter referred to the Commission pursuant to s 78(2) by an aggrieved employee from one of the nominated decisions, is to be dealt with in the same manner as a matter referred under s 78(1) of the PSMA.  That is, I do not consider that such a proceeding ought to be regarded as an “appeal” in the strict sense, as that issue was discussed by the Full Bench in Milentis.  Nor is it the case in my opinion, that the Commission is limited to determining only the reasonableness of the employer’s decision.

26 In other words, depending upon the nature of the challenge to the decision under review, such a proceeding may involve the Commission re-hearing the matter afresh or it may only be necessary to consider the decision taken by the employer “on such record of the proceedings below as comes up to it, supplemented or not by evidence”: Ormsby.  It would seem to be the case therefore, that consistent with the reasoning of the Full Bench in Milentis, the decision of the employer is not to be totally disregarded in the Commission hearing and determining the matter.

29      At pars 22 and 23, Kenner C recognised, consistent with Raxworthy that an appeal to the Appeal Board may be a hearing de novo, if the circumstances require it. That is, to make the matter clear, consistent with the approach of the Full Bench in Basil Milentis v The Honourable Minister for Education (1987) 67 WAIG 1124, which decision has much to commend it, whilst appeals of the present kind will essentially be a hearing de novo, it will ultimately depend upon the grounds of appeal in each case. Thus, in the present matter, in view of the grounds of appeal when read and particularly considering the amendment to which reference will be made below, it was clear that not only did the appellant contend that she was denied procedural fairness in the investigation and other processes leading to her dismissal, but, she also denies on the facts, that there were any breaches of discipline in any event.

30      In cases such as this where the primary finding of fact, leading to breaches of discipline are in dispute, the circumstances enable the Appeal Board to decide for itself, based on all the evidence, whether the relevant misconduct took place. There may be other cases for example, where there is no challenge to the factual findings, but there is a challenge to the severity of the penalty imposed. In this situation, a hearing before the Appeal Board will be much more confined. There may be other situations where discrete issues are raised, such as an allegation of a denial of natural justice in the procedure followed leading to disciplinary decision, rather than a challenge to the primary facts. Both situations will obviously not require the matter to be reheard over again in its entirely (See too: CSA v Director General, Department of Family and Children’s Services [2003] WAIRC 07213; (2003) 83 WAIG 390).

31      These considerations do not depend in our view, contrary to the respondent’s submissions, upon the fact that the appeal to the Appeal Board under s 80I of the IR Act, originates from ss 78(1) or (2) of the PSM Act. We also disagree with respect, with the view expressed in Ayling that because, necessarily, the Appeal Board or the Commission will be considering past events when the relevant conduct occurred, a hearing should not be considered de novo. The reason that we do not agree with this proposition, is that almost in all cases coming before the Appeal Board under s 80I by way of appeals, for example, from a dismissal, it is axiomatic that consideration of prior events, leading to a dismissal, will be required. This was plainly the case in Raxworthy.  On all the evidence, the Appeal Board will decide for itself, whether the conduct complained of occurred, such as to give rise to the right in the employer to terminate the contract of employment when it did. This assessment must necessarily involve circumstances that were in existence prior to the hearing of the appeal.

32      For these reasons, in our view, the same general approach to s 78(2) adopted in Johnston, as applied by the decision of the Full Bench in Milentis, applies to appeals to the Appeal Board under s 78(1) of the PSM Act. This approach is entirely consistent with Raxworthy, given the issues that arose in that appeal.  Ultimately, it is the approach that enables justice to be done and an approach consistent with equity, good conscience and the substantial merits of the case, as prescribed by s 26(1)(a) of the IR Act, which applies to the Appeal Board’s jurisdiction by s 80L(1) of the IR Act.

33      The respondent also raised the issue of the effect of s 78(5) of the PSM Act. Section 78(5) provides as follows:

78. Appeals etc.  against some decisions under s.  79, 82A, 82, 87, 88 or 92

…

(5) If it appears to the Industrial Commission or the Public Service Appeal Board that the employing authority failed to comply with a Commissioner’s instruction or the rules of procedural fairness in making the decision or finding the subject of a referral or appealed against, the Industrial Commission or Public Service Appeal Board —

(a) is not required to determine the reference or allow the appeal solely on that basis and may proceed to decide the reference or appeal on its merits; or

(b) may quash the decision or finding and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process.

34      Section 78(5) clarifies the scope of powers to be exercised by the Commission or the Appeal Board, in any given case.  It does not, in our opinion, in any way restrict the powers of the Appeal Board. Given that a conclusion by an Appeal Board to the effect that an employee has been denied natural justice would ordinarily lead to the Appeal Board “adjusting” such a decision by quashing it, on the basis that a decision made contrary to natural justice is void, s 78(5)(a) appears directed at enabling the Appeal Board to proceed to resolve other matters in dispute.  Whether the Appeal Board or the Commission chooses to deal with the rest of any matters in dispute, despite finding a breach of natural justice, or to quash the decision under appeal and remit the matter to the employer making the decision, will no doubt, depend on the nature and circumstances of the case.

35      We do not consider that the presence of s 78(5) of the PSM Act is an indicator either way, or alters the view expressed above, as to the nature of the appeal to the Appeal Board of the present kind.

36      As to the second issue, that being the “evidentiary onus” on the respondent to establish, beyond an honest and genuine belief, based on reasonable grounds, after due inquiry, that in fact the misconduct alleged against the appellant occurred, we make the following observations. To the extent that the respondent relied on the observations of the Full Bench as to this issue, in Drake-Brockman, this case involved an appeal under s 49 of the IR Act from a decision of the Commission in an unfair dismissal claim, where the employee was dismissed for misconduct. The Full Bench considered the application of the long-standing decision of the South Australian Industrial Relations Commission in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 as adopted and applied by the Commission on numerous occasions in unfair dismissal cases involving misconduct. Indeed, such an approach flows from the decision of the Industrial Appeal Court in the Undercliffe case, to the effect that the test in an unfair dismissal case is not whether the dismissal was lawful, but whether it was fair, in an industrial sense. This necessarily involves an objective assessment by the Commission as to the reasonableness of the employer’s conduct in dismissing an employee.

37      This approach to unfair dismissal cases had been adopted prior to the decision in Raxworthy, in which, as set out above, the Appeal Board distinguished appeals from unfair dismissal claims in this regard.  Given the approach of the Full Bench referred to and relied upon in this long-standing line of authority in relation to unfair dismissal cases, and that nothing in Drake-Brockman would give rise to a reconsideration of a different approach to that taken by the Appeal Board in Raxworthy, we confirm that the approach in the Raxworthy appeal is appropriate.  Therefore, it is necessary for the respondent to establish that the misconduct occurred. Such an approach has been referred to in several subsequent appeals to the Appeal Board, for example in Krishna Thavarasan v The Water Corporation (2006) 86 WAIG 1434; and Patrick Fels v The Department of Agriculture and Food (2010) 90 WAIG 1485.

38      We also accept the submissions made by the appellant, that in cases such as the present, involving some allegations of serious misconduct, in applying the civil standard of proof, a higher degree of persuasion may be required: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J.

Application for leave to amend

39      As part of the submissions of counsel in relation to the nature of the appeals, the appellant made an application to amend the grounds of appeal in PSAB 2 of 2016 in the following terms:

The appellant denies the alleged breaches of discipline occurred.

40      Without conceding that the appeals were not in the nature of a hearing de novo, the appellant contended that such an amendment would put the issues in dispute beyond doubt. She submitted that the grounds of appeal filed, read with the outlines of evidence and submissions filed on her behalf, make it plain that the merits of the respondent’s decision to dismiss her were contested. It was submitted by the appellant that for the Appeal Board to grant her leave to amend the grounds of appeal, would be consistent with equity and good conscience.

41      As to any possible prejudice to the respondent, the appellant submitted that given the outlines of evidence put on by her, and putting in issue the factual basis for the respondent’s decision to dismiss her, coupled with the content of the agreed bundle of documents, of which there are some five volumes, there could be no real suggestion of surprise to the respondent that the material facts said to support the appellant’s dismissal were contested.

42      The application for leave to amend the grounds of appeal was opposed by the respondent. Part of the opposition to the amendment was linked to the respondent’s submissions as to the nature of the appeals to the Appeal Board, arising from the application of s 78(1) of the PSM Act, dealt with in some detail above. It was suggested that the amendment would further alter the nature and form of the appeals from their true character. Submissions were made in general terms that until the outline of the appellant’s evidence was received by the respondent, it was not clear to it as to the basis of the case it had to meet. Part of the respondent’s opposition also was a contention advanced as to the “evidentiary onus” issue, referred to above, in reliance on the decision of the Full Bench in Drake-Brockman.

43      After hearing counsel on the application to amend, the Appeal Board considered the application to amend and granted it. The Appeal Board informed the parties that having regard to s 26(1) of the IR Act, and to do justice between the parties, it was our unanimous view that leave to amend the grounds of appeal would be granted. The Appeal Board paid regard to the issues raised in the appellant’s outline of evidence, at pars 48 to 116 and 139 to 156, and the outline of opening submissions, that she challenged not just the procedural aspects of her dismissal, but also the factual basis of the allegations against her.

44      It was the Appeal Board’s view that to grant leave to amend would enable the real issues in dispute to be determined. Because of the Appeal Board’s ruling on the leave to amend issue, it invited the respondent to consider its position and whether the amendment would cause it any difficulties. The respondent did not seek an adjournment of the hearing or any other indulgence. On this basis, the proceedings continued.

Contentions of the parties

45      The appellant made the overall submission that in relation to both appeals, the decisions made by the respondent were harsh, oppressive and unfair.  The basis for that submission was that in both investigations undertaken by the respondent in relation to the appellant’s alleged conduct, the appellant was denied procedural fairness. Furthermore, as to the substance of the allegations, on the material available to the respondent, the disciplinary decisions had no reasonable foundation. Finally, the broad submission was made that irrespective of the first two contentions, even if the respondent’s disciplinary findings were reasonably open on all the material, the penalties imposed were not fair or reasonably proportionate to the conduct engaged in by the appellant.

46      Within this broad framework, several specific contentions were made against the respondent. As to the first appeal there were several strands to the appellant’s argument that she was denied procedural fairness. Firstly, when the appellant received the notification from the respondent’s investigator Mr Milward on 1 April 2014 that she was suspected of five alleged breaches of discipline, there were no details of the allegations included in the letter, nor the basis in fact for them. This also extended to the further sixth alleged breach of discipline that was made against the appellant by letter again, from Mr Milward, dated 12 May 2014.  The failure to provide further information about the alleged breaches of discipline, was despite two requests that the respondent do so, one from the appellant herself on 12 May 2014 and one from the CSA on 17 June 2014.

47      Secondly, it was contended that the appellant was denied procedural fairness when, on 25 June 2014, she was, without any notice to her, removed from her position at the Academy at a meeting with Mr Cullen, the respondent’s Executive Director, Operational Support. The appellant contended that not only was this done without notice to her, she also had no chance to say anything about it.

48      Thirdly, the appellant submitted that she was denied procedural fairness when in a letter of 3 September 2014 to her from the respondent, the appellant was informed of the findings of the investigation. However, the respondent did not give any reasons for the findings that were made and failed to provide the appellant with a copy of the investigation report.

49      Subsequently, in early October 2014, the appellant responded in writing to the respondent’s findings, despite not having been provided with the respondent’s reasons or documents relied upon by the respondent in relation to them. A little later in January 2015, the respondent informed the appellant of its disciplinary decision. The appellant maintained that having failed to provide her with the evidence on which they relied before making the findings they did and in not providing reasons for the findings or the disciplinary decision, she was denied procedural fairness.

50      In addition to the alleged failure to provide the appellant procedural fairness, the appellant also contended that the respondent breached, or failed to comply with, in various ways, the Public Sector Commissioner’s Instruction No.  3 Discipline – General. The appellant maintained there were several contraventions of the Instruction in relation to failing to deal with her fairly and failing to deal with the allegations and the subsequent investigation, free of actual bias or conflicts of interest.

51      In relation to the second appeal too, the appellant contended there were several failures to accord her procedural fairness. Firstly, in relation to Mr Milward’s letter of 16 July 2015 informing the appellant of the further five allegations, as with the first set of allegations, the appellant contended there were no details provided nor any factual underpinning of the allegations against her. Secondly, the appellant contended she was denied procedural fairness by Mr Milward, in him refusing her request of 24 July 2015 to provide the evidence against her and requiring her to respond to the respondent’s allegations without sufficient detail of them being provided.

52      Thirdly, the appellant contended that the respondent’s findings against her made on or about 19 August 2015 by Mr Hassall, the respondent’s Executive Director, Operational Services, constituted a gross denial of natural justice and procedural fairness. This was because the investigation report prepared by Mr Milward and on which Mr Hassall purportedly relied in making his decision, was dated 3 September 2015, that being about two weeks after Mr Hassall’s decision.  Accordingly, the appellant contended that the actions of Mr Hassall were not only a gross denial of procedural fairness, but tainted the entire decision making process through bias in the form of prejudgment.

53      Fourthly, the appellant contended she was also denied procedural fairness in that she was not afforded a reasonable opportunity to respond to the 2015 investigation report; was refused assistance in accessing what she contended were crucial documents in the possession of the respondent which would exonerate her; and in requiring the appellant to respond to the 2015 investigation report without access to relevant materials.

54      Fifthly, in relation to the second appeal, the appellant submitted that the respondent also failed to provide her procedural fairness in that no reasons were provided to her by the respondent for the findings made in the 2015 investigation report.  Additionally, the respondent furnished no reasons for its decision in relation to the 2015 investigation.

55      Sixthly, the respondent also failed to afford the appellant procedural fairness by considering her “lack of candour during the investigation process”, set out in a letter from the respondent of 15 February 2016, in circumstances where she had no knowledge of such an assertion, was not provided any basis for it, nor any opportunity to respond to it before the decision was made.

56      Finally, as with the first appeal, the appellant contended that the respondent, in relation to its 2015 investigation and the subsequent investigation report, failed to comply with various provisions of the Discipline Standards, and the relevant Instruction and procedural fairness guidelines produced by the Western Australian Ombudsman.

57      There were also several submissions made by the appellant that as with the first set of allegations, the second set of allegations the subject of the second appeal, were tainted by bias and conflicts of interest. As to the specific allegations the subject of the first disciplinary decision and the second disciplinary decision, the appellant maintained there was no basis in fact for the conclusions that the respondent reached.

58      In the alternative, if the Appeal Board was not satisfied that the alleged misconduct did not occur, then the appellant submitted that the first and second decisions should be adjusted. In this connection, the submission was that neither decision was fair, reasonable nor a proportionate response to the conduct alleged. Furthermore, that the appellant was denied procedural fairness in both investigations leading to the decisions, of such a serious kind, the Appeal Board should intervene. This was particularly so, in circumstances where the respondent did not independently assess the investigation report findings or properly consider the appellant’s detailed responses to both investigation reports and their findings. Having regard to these matters, the appellant contended that her dismissal was harsh, oppressive and unfair. She should be reinstated into another comparable position within the respondent.

59      On behalf of the respondent the following submissions were made. It generally denied that it did not have valid, substantial and reasonable grounds to terminate the appellant’s employment having regard to the circumstances. Furthermore, the respondent submitted that at all material times, having regard to the content of the agreed bundle of documents, the appellant was given every reasonable opportunity to respond to matters put to her. Therefore, the respondent contested the appellant’s assertion that she was denied procedural fairness during the investigations leading to the respondent’s decisions to take disciplinary action.

60      In relation to the allegation of bias made by the appellant, the respondent submitted that from the framing of the appeal grounds, the conclusion must be that the allegation is of actual, rather than apprehended or perceived bias. From the relevant authorities in relation to establishing actual bias, the respondent contended that the conduct of the second investigation by Mr Milward, could not reasonably support a conclusion that the respondent himself displayed any actual bias on the available evidence or at all. In any event, the factual foundations for the allegation of bias were strongly contested by the respondent. In all the circumstances, the respondent submitted that it could not be established by the appellant that the decision to terminate her employment was in any sense, harsh, oppressive or unfair.

Procedural fairness

61      In this case the appellant maintained that despite the Appeal Board ruling that both appeals be heard de novo, the breaches of procedural fairness by the respondent may still be considered by the Appeal Board. The appellant referred to s 78(5) of the PSM Act which is quoted in par 33 above.

62      In accordance with this provision, the appellant submitted that it was open to the Appeal Board to quash the two decisions subject to appeal, in view of what she maintained were a “litany” of breaches of procedural fairness, referred to above.  The appellant set out in some detail in her written closing submissions, these alleged failures, some of which are outlined above. The appellant maintained that both the first and second investigations and decisions were so infected with a failure to comply with procedural fairness, that both decisions should not now stand.

63      For the respondent, it was submitted that as the Appeal Board is hearing both appeals together de novo, the appellant has been given a full opportunity to put her case and any breach of procedural fairness in these appeals may be cured. This is because the Appeal Board can review the allegations and evidence afresh, and reach its own conclusions as to the merits of the appeals. It was a further submission of the respondent that even if errors or injustices were found to have occurred in the disciplinary process, these may be remedied by the Appeal Board:  Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158 at 185-186.

64      In these appeals, both the appellant and the respondent had been given the opportunity and have been fully heard on all issues in dispute, both of fact and law.  The appellant has put a very extensive evidentiary case and the respondent has been given a fulsome opportunity to respond to it. The hearing of the appeals has been lengthy, over some 16 sitting days. Eleven witnesses were called by both parties and the transcript of the proceedings runs to 1,532 pages. Furthermore, there are five volumes of documents running to 1,355 pages, plus many other documents tendered in evidence. This documentary evidence has been examined in detail by the parties during the appeal. The evidence, both oral and documentary, has been the subject of extensive and detailed submissions by counsel and has been carefully considered by the Appeal Board.

65      The Appeal Board, in determining the matters de novo, decides for itself whether the appellant engaged in the misconduct complained of. In these circumstances, with a full re-trial of all issues in dispute in these appeals, breaches of procedural fairness can be cured: Baker v University of Ballarat (2005) 225 ALR 218. In Forbes, JRS, Justice in Tribunals 4th Ed, the learned authors, in discussing the curing of breaches of procedural fairness on appeal, said at pars [14.10] – [14.11] as follows:

Conditions for a “Cure”

[14.10]  If an internal appeal is to cure a breach of natural justice it must give the appellant the same opportunity to canvass the issues that he would have had if the original process had been properly conducted.  An appeals tribunal that can only request the original authority to reconsider its decision is unsuitable for present purposes.  It must be authorised to substitute its own view of the merits, if so disposed.  In practice this probably means that the appeal should be a rehearing de novo – effectively a re-trial and a fresh decision, without any restriction or presumption arising from the first adjudication.  If so, the appeals tribunal is endowed with all the powers of the primary tribunal, whatever the rules may say.  If the original hearing was a viva voce affair, a mere re-reading and reconsideration of the evidence taken below will probably not suffice, unless, of course, the appellant accepts that procedure.

Natural Justice Issues Need Not Be Revisited

[14.11]  In McIntosh v Minister for Health it was pointed out that a tribunal proceeding de Novo need not deal with points of natural justice arising from the primary hearing.  At first sight this may seem inconsistent with the rule that the second hearing must be unrestricted, but precisely because it is a rehearing de novo, what occurred in the primary tribunal does not really matter.  A rehearing de novo is a re-trial rather than an appeal.

66      Given the comprehensive nature of the appeals in these proceedings, any allegations of a failure to comply with procedural fairness can be remedied and the Appeal Board can reach its own conclusions on the merits of the investigations and the decisions, after a fulsome consideration of the evidence and submissions. For the purposes of this issue, we include the contentions advanced by the appellant in relation to procedural fairness generally and bias and conflict of interest. Whilst we accept that s 78(5) of the PSM Act can have work to do in certain circumstances, this very much depends on the grounds of appeal and the nature and circumstances of the case. We do not find it necessary to consider exercising the power of quashing the respondent’s decision for breaches of natural justice, without hearing the merits of the appeals, and sending the matters back to be dealt with again, in the circumstances of these appeals.

67      However, despite these conclusions, we note that to their credit, when giving their evidence, both Mr McMahon, the then Commissioner for Corrective Services and Mr Rivalland, the Manager of Investigation Services at the relevant time, accepted there were substantial shortcomings in the processes of the investigations into the allegations against the appellant, leading to the decisions the subject of these appeals. We consider those concessions to have been properly made.

Consideration

68      In relation to the evidence and our findings, we will first deal with the allegations the subject of the appeal in PSAB 2 of 2015, followed by the appeal in PSAB 2 of 2016, which led to the dismissal of the appellant. In the 2014 allegations, Allegation One was not upheld.  Accordingly, we will not consider it further.  We will deal with each allegation in turn.

PSAB 2 of 2015

Allegation Two – On 31 January 2014, you committed a breach of discipline when you contravened the Code, ‘Fraudulent, Corrupt and Inappropriate Behaviour’.  You did this by sending a deliberately misleading email to Assistant Commissioner Adrian Robinson purporting to outline legitimate reasons for purchasing meals from Boronia Pre-Release Centre when the additional meals were ordered for Academy Staff.

69      The provision of lunch meals for Academy staff first became an issue it seems in about 2005. This was set out in an email from Mr Archer at the respondent’s head office to Mr Cattai, the Assistant Director of the Academy dated 19 January 2005 (exhibit A1 p 32). It seems the matter then involved some industrial relations issues, the nature of which were not clear on the evidence. Later, in March 2007, Ms Tang, then a Deputy Commissioner of the respondent, formally approved the practice of the provision of meals at lunch time for Academy staff, at no cost. This was set out in a memo dated 15 March 2007 to Ms Tang from Mr Jones, the then Director of the Academy. In the memo, the background and rationale for the issue of meal provision to Academy staff was set out. Options were put. The recommendation made, and endorsed by Ms Tang on 26 March 2007, was that meals be provided to all Academy staff at no cost.

70      The memo was not explicit in relation to the exact number of meals to be provided, rather there was a reference made to costs being in the “vicinity of 20 meals a day…”. This was based on the then 48 staff members of the Academy. This became known in the proceedings as the “Tang Memo”. Thus, from at least March 2007, the purchase and supply of lunch meals for Academy staff had been approved at a very high level of the respondent. Ms Tang testified that the memo formalised what was a prior practice, and there was no reason to suggest this approval had changed.

71      The appellant gave evidence that when she commenced at the Academy, there was approval for all staff to be provided a meal for lunch. The meals were prepared by inmates at the Boronia Pre-Release Prison, which then had an industrial scale kitchen. The appellant referred to her discussions with Ms Sait, the Academy’s Business Manager, which made her aware of the Tang Memo and the past practice.  Despite this, it was the appellant’s testimony that the meals from Boronia were mainly for trainees and others attending the Academy on courses, and the Academy staff directly involved. The appellant put in place an arrangement whereby other Academy staff may have access to leftover meals, once the trainees had had their lunch. This was to ensure that there was sufficient food for trainees.

72      On 31 January 2015, Mr Robinson, the then Assistant Commissioner, People and Organisational Development, sent an email to the appellant about two issues. The first was the purchase by the Academy of new curtains for the Academy hall and the second related to the purchase of “up to 20 meals per day from Boronia @ $7.00 per meal and that these meals are purchased for Academy staff” (exhibit A1 pp 74-75). Both issues were raised in the context of a budget deficit for the respondent and the need for expenditure control.

73      It was the appellant’s testimony that she did not order meals for all Academy staff, so that they could all have lunch. She said she ordered the extra 20 meals in order that there would be sufficient food for those attending training courses at the Academy. On the same day of Mr Robinson’s email, the appellant replied. The appellant’s response was as follows:

The 20 meals per day @ $7.00 each from the Academy staff budget it [sic] is to ensure that we have enough food to cater for all those attending scheduled events.  Even then we sometimes don't have enough, although thankfully this doesn't occur often anymore now we do this.  The funds are kept in the Academy staff budget line because it is too difficult to spread it across the programs.

74      The appellant said this was the reason for ordering the additional meals. The Tang Memo was not relevant to this reason. Furthermore, the appellant testified that if the extra meals were ordered for Academy staff, given the then staff numbers, which were about 68, 20 extra meals would not cover the number required. Accordingly, the appellant considered that she responded to Mr Robinson’s email truthfully and correctly. Mr Robinson confirmed that he sent the email to the appellant on 31 January 2014 and he received a reply from the appellant on the same day. Otherwise, Mr Robinson gave no direct evidence about the meals issue.

75      The only other evidence relied on in respect of this issue, were passages of a witness statement from Ms Sait, given to the investigators, where she stated that the additional meals purchased from Boronia were for Academy staff. Ms Sait went on to allege in her witness statement, that the ordering of these additional meals, initially 15 and then increased to 20 per day, were not recorded on the Academy’s “stock item request form”. This was done allegedly following a discussion between Ms Sait and the appellant to this effect. Ms Sait stated in her witness statement that “staff who work at the Academy are not entitled to free meals”. None of these assertions were supported by oral testimony from Ms Sait.

76      There are difficulties in relation to the respondent’s conclusions as to this allegation.  A premise underlying the complaint against the appellant was that she engaged in the misleading communication to Mr Robinson, to disguise the true purpose of ordering additional meals from Boronia. This theme was reflected in Ms Sait’s witness statement, in relation to her assertion that Academy staff were not entitled to receive meals and, that there had been some form of covering up of the real reason for these additional purchases. This was of course, fundamentally wrong. Ms Sait’s assertion in relation to entitlement to meals, was directly inconsistent with the Tang Memo, which as the Business Manager of the Academy, one would have thought Ms Sait would be aware. That is, staff of the Academy were entitled to meals. Had the appellant ordered meals for Academy staff, this would have been entirely consistent with Ms Tang’s prior approval.

77      However, the appellant’s evidence, which was the only direct oral evidence before the Appeal Board, was that she did not do this and on the contrary, only enabled staff access to lunch when training courses were held, after the trainees had finished their lunch. The appellant said that she put in place procedures to limit this access and ordered more meals to ensure that there was sufficient food for trainees attending courses.

78      Furthermore, as a matter of logic and common sense, given the evidence of the appellant and Ms Tang that the appellant was aware of the Tang Memo, there could be no purpose and nothing to be gained, by attempting to disguise a practice which had the approval of a Deputy Commissioner of the respondent. In any event, the only direct oral testimony as to the reason for the purchase of the additional meals, was from the appellant. The respondent has not established on the evidence on the balance of probabilities, that the appellant purchased additional meals for Academy staff.

79      We therefore conclude that this allegation has not been made out.

Allegation Three – In January 2014, you committed a breach of discipline when you contravened the Code, ‘Personal Behaviour’.  You did this by facilitating the purchase of new curtains for the Academy’s hall at a cost of $6,710.  This purchase breached a directive given to you by Assistant Commissioner Adrian Robinson on 21 January 2014, stating that all expenditures after 21 January 2014, must be authorised by him.

80      The Academy has a hall which is used for various purposes, including swearing-in ceremonies for new prison officers. Large curtains are fitted to one end of the hall which are used as a backdrop. The curtains are approximately 23.5 metres long and 4 metres high. They were originally made by prisoners at Bandyup Women’s Prison.

81      The appellant testified that by 2013, the curtains were old and moth-eaten. There were also some maintenance problems in looking after them. As Bandyup Women’s Prison no longer did textile work and no one else was able to undertake repairs on the curtains, the appellant testified that she asked the then Site Co-Ordinator Ms Chu she thought in about April or May 2013, to make enquiries as to the cost of replacing the curtains. Responses to this enquiry led to an estimated replacement cost of about $12,000. This amount was then put in the Academy budget for 2013-14.

82      The appellant testified that once into the 2013-14 financial year, she requested the Site Co-ordinator to get three quotes for the replacement of the hall curtains.  Quotes were obtained from Vista, Curtain World and Specialty Curtains in about August or September 2013. The appellant asked the Site Co-ordinator to negotiate better prices. She said she then further chased the matter up with the Site Co-ordinator who was then Ms Kelly, in about December 2013.  A revised quote from Vista was obtained in the sum of $6,710. The appellant spoke to Ms Sait in the first week of January 2014 and told her to put the curtain replacement project on the agenda for the next site meeting. This was held about every fortnight, and involved the management staff of the Academy.

83      A site meeting was duly held on 15 January 2014. These meetings were formally minuted. Ms Sait chaired the meeting and both the appellant and Ms Kelly were present. Exhibit A1 at pp 170-175, was a copy of the minutes for the meeting of 15 January 2014.  At par 2(c) on p 172 appears the following entry:

c) The Hall curtains - a decision has already been made to replace them, we have quotes and a supplier has been chosen.  The curtains keep coming unhooked and they do not cover the areas we need covered, we are getting those replaced.  The curtains have been repaired a couple of times and cannot be repaired again.

84      At the end of the meeting minutes there is a list of “outstanding actions”. One of them recorded the decision to go ahead with the replacement of the hall curtains (exhibit A1 p 177).  The note recorded this item as “in progress” and that Ms Kelly would “follow up ordering them”. From this, the appellant understood that Ms Kelly would progress the matter with Ms Sait, as the responsible manager.

85      The next relevant event was a regular senior managers’ meeting on 21 January 2014, which was held approximately each month to six weeks. In attendance were generally those managers in the People and Organisational Development Division (POD) and included the Academy. The appellant identified those present as herself, Mr Robinson, Ms Lowicki the Executive Officer to the Assistant Commissioner, Ms Skowron the Manager of DCS Recruiting, Ms Meyn the Business Finance Manager, Mr Cinquina the Manager of Industrial Relations, Mr Larkin from human resources and a couple of other attendees. The appellant testified that Mr Robinson led the meeting and spoke of the respondent’s overall budget deficit of $24 million and the need to identify savings. She said he mentioned that money had to be recovered from the POD Division and the Academy and returned to the respondent’s budget. In the case of the Academy specifically, the appellant thought the amount involved was about $2 million.

86      In response to these matters being raised at the meeting, the appellant testified that she raised the issue of expenditure already committed e.g. for training etc. The appellant gave some examples of courses scheduled for 2014 and committed to.  These included a prison officer training course to commence in February 2014 at a cost of about $575,000. The appellant said that she asked at the meeting whether items in the budget and committed to already, could go ahead.

87      At that point, Ms Skowron’s evidence was that she also raised similar issues in relation to her area. It was the appellant’s testimony that Mr Robinson responded to the effect that “those things could go ahead but anything coming down the track later … we’d have to get approval for”: 82T. In her testimony, Ms Skowron recalled those persons in attendance at the meeting. She said that most of the detail on the financial matters discussed came from Ms Meyn.  Ms Meyn had a document setting out the budget and where savings were to be made from the POD.  Ms Skowron recalled Mr Robinson commenting on the need for careful control of expenditure. She further recalled the appellant raising the issues of training courses etc. at the Academy, which had already been committed to, which as noted above, she did too.

88      Ms Skowron said this took place as part of the general discussion in the meeting. Her evidence was that in this general discussion “it was actually determined that those pre-identified training activities could actually … carry on because they actually had prior approval”: 558T. Ms Skowron noted that Ms Lowicki took minutes of the meeting. When Ms Skowron was shown a copy of a document, she identified it as the minutes of the managers’ meeting on 21 January 2014 (exhibit A1 pp 33-36). When her attention was drawn to the bottom of an item in the minutes headed “Budget Updates” (exhibit A1 p 34) Ms Skowron testified that this was “basically what had been decided”: 560T.

89      Mr Robinson’s evidence was that he did not have a clear recollection of what was said at the meeting on 21 January 2014.  However, he said he did raise the issue of the need to reduce costs and that there be a freeze on spending.  He considered that he would have told those in attendance at the meeting words to the effect of “no spending for non-essential items”: 589T. Mr Robinson did not have a recollection of either the appellant or Ms Skowron raising the issue of expenditure already committed to. He did not consider that he would have told the appellant and Ms Skowron that such committed expenditure could proceed.

90      After the meeting finished, the appellant said she returned to the Academy. She spoke to Ms Kelly and requested that she create a “pending” file, to identify work or projects that could lead to savings. We pause to note that Ms Kelly could not recollect such a request. The appellant testified that she also spoke to Ms Sait on the same day to see if the order for the hall curtains could be cancelled. The appellant testified that she looked at the Vista order document and saw that a 100% cost would be incurred for cancellation. Unbeknown to the appellant however, Ms Sait had, prior to 21 January 2014, and indeed on 15 January 2014, the day of the site meeting, told Ms Kelly not to proceed with the Vista order. The appellant said she also spoke with Ms Sait and Mr Cattai together about savings that might be identified. Despite the approval to proceed with the order from the 15 January 2014 site meeting, it appears Ms Sait only directed Ms Kelly to proceed, as it turned out, on the morning of 21 January 2014, the day of the managers’ meeting (exhibit A1 p 60).

91      The uncontested evidence was that the appellant was not aware of any of this until after she had responded to the 2014 investigation and the proposed penalty letter in early 2015. The appellant was not aware of Ms Kelly’s email to Vista of 23 January 2014, confirming the Academy would go ahead with the order, in accordance with the revised quote from Vista, dated 13 December 2013 (exhibit A1 p 61). The appellant’s evidence was that she was not told by Ms Kelly of her response to Vista on 23 January 2014.

92      After the 21 January 2014 managers’ meeting had finished but on the same day, the appellant testified that she received an email from Ms Smith, with an attached memorandum from Mr Robinson. The memorandum from Mr Robinson (exhibit A1 pp 738-739), referred to the managers’ meeting earlier that day, the poor budget position of the respondent and the need for the division to identify some $3,950,600 in savings. The memorandum further referred to, amongst other items, a “Non-Essential Expenditure Freeze”. The third last paragraph of the memorandum said:

Please be reminded that no officer has the delegation to spend or commit expenditure without my pre-approval.

93      Furthermore, the last paragraph of the email from Ms Smith, to the managers present at the 21 January 2014 meeting, said as follows (exhibit A1 p 741):

As advised by Adrian at the meeting, a request/approval to either, commit to expenditure or to advise of expenditure the Division has already committed to should be detailed in a formal memorandum for the AC POD and Commissioner to consider.

94      The appellant’s evidence was that it was this email that prompted her to ask both Ms Sait and Ms Kelly to begin preparing a memorandum in relation to the purchase of the hall curtains.

95      It was common ground that the usual process at the managers’ meetings was for minutes to be taken and distributed to attendees later. The person responsible in this case was Ms Lowicki. Ms Lowicki outlined the process of minute taking for managers’ meetings. She took notes in long hand during the meeting and then typed those up later. A copy of Ms Lowicki’s notebook extract for the meeting was exhibit A1 pp 742-747. Ms Lowicki said that sometimes after the meeting people may seek changes to add or remove items. Ms Lowicki testified that normally she would type the minutes very soon after the meeting, the next day or so. Once prepared, she would give a copy of the typed meeting minutes to Mr Robinson to review. In relation to the 21 January 2014 meeting, Ms Lowicki recalled there was discussion of finances.

96      When Ms Lowicki was taken to her notes at the meeting, she agreed the handwritten notes were generally more accurate. She testified that not all the content of her handwritten notes was transcribed into the final typed version of the minutes. Ms Lowicki was taken to both her handwritten notes and typed minutes (exhibit A1 pp 750-753) and the reference to “all expenditure must be pre-approved”. Ms Lowicki agreed that this was not in the handwritten notes recording what was said: 891T. Ms Lowicki’s evidence was that as the note-taker, she had to focus carefully on what was said in the meeting. She said from the discussions on the day, that she understood that “all expenses incurred had to be made known. Any from then on had to be approved”: 890T. Ms Lowicki also testified that she did recall Mr Robinson saying words to the effect that whatever had been proposed and agreed to could go ahead: 900T.

97      In relation to the change to the minutes of the meeting, Ms Lowicki testified that she received a telephone call from the appellant the day after the meeting, to say that the draft minutes had missed something out. Ms Lowicki did not recall the detail of the conversation with the appellant. Drafts of the changes requested by the appellant were sent to her.  Ms Lowicki said that she had a “couple of goes” at the wording. A copy of the final typed meeting minutes, with the changes requested by the appellant, with a covering email from Ms Lowicki, were exhibit A1 pp 765-768. The addition referred to the appellant’s evidence that Mr Robinson said in the meeting words in the following terms:

Deb Harvey asked if expenditure that was approved and committed and had budget allocated could go ahead.  Adrian Robinson agreed that any currently approved/committed expenses could go ahead as planned.

98      Ms Lowicki also made a change to the handwritten notes of the meeting and noted the request made by the appellant for the change.  Ms Lowicki raised the proposed change to the minutes with Ms Smith who told her to put it to the next meeting in February 2014. Ms Lowicki did so and said that the amendment to the minutes was agreed by those attending the February meeting. She further said that no one present from the earlier January meeting raised any objections. Mr Robinson was not present at the February meeting, as there had been management changes.  Ms Lowicki did not consider the change requested by the appellant to be at odds with what she understood to be the outcome of the meeting on 21 January 2014.

99      As with many aspects of these appeals, resolution of this allegation involves a conflict on the evidence. We found Ms Lowicki to be an impressive witness. It was her job at the meetings to listen carefully and take accurate notes. Whilst she was called as a witness by the respondent, in our view she did not give any impression of being in “either camp”. There was no obvious reason for Ms Lowicki to have any bias or predilection to either party. Her evidence was that the best record of the events was in her handwritten notes. She accepted however that in saying so, she did not record everything. There were some omissions from the typed notes of more miscellaneous matters. Ms Lowicki also accepted that what the appellant requested be included in the meeting minutes, was consistent with what her recollection of the general discussion was, on that occasion.

100   In the case of any conflict between the versions of events given by either the appellant or Mr Robinson and Ms Lowicki, we prefer Ms Lowicki. In stating this, we do not suggest that either the appellant or Mr Robinson are not to be believed.  In the case of Mr Robinson, he was not able to recall what he said at the meeting on 21 January 2014 as to expenditure. His recollection, in giving his evidence, was plainly prompted by documents shown to him.

101   Despite some criticisms advanced by the respondent, we also found Ms Skowron to be a credible witness. She gave cogent evidence as to the matters raised and discussed at the meeting on 21 January 2014 and that both her and the appellant did raise the issue of recruitment and training costs already committed to. This evidence was consistent with the handwritten notes of the meeting taken by Ms Lowicki and the oral evidence of the appellant in relation to these matters. This evidence also confirmed the general thrust of the record of the meeting in the revised minutes as being what was discussed (exhibit A1 pp 34).  As a senior officer of the respondent, we have no reason to doubt the tenor of Ms Skowron’s testimony. Whilst Ms Skowron suffered a personal loss in the 12 months prior to the hearing, we do not consider that impacted on the veracity of her evidence as to the events on or around 21 January 2014.

102   Given Mr Robinson’s lack of recollection as to the matters discussed in the meeting on 21 January 2014, we also consider that the best guide as to what he said at or about the time was contained in his witness statement given to the investigator Mr Milward, on 12 March 2014, which was only some weeks after the managers’ meeting in January. Mr Robinson himself accepted in cross-examination, that his memory of the events was much fresher at that time, as opposed to the time he prepared his witness statement for these proceedings and his oral testimony. In his witness statement prepared for Mr Milward in the first investigation, Mr Robinson stated, when referring to the meeting of 21 January 2014, “during the meeting an update on the Department’s financial deficit was discussed and I gave an instruction that all expenses from that point forward needed to be approved by myself”. Mr Robinson referred to his memorandum to all managers distributed on the same day of the meeting. He disputed the addition to the meeting minutes for 21 January 2014, proposed by the appellant (exhibit A1 pp 793-795).

103   Mr Robinson agreed that if an expense such as the hall curtains had been agreed, committed to and a “contract was in place” it would be alright to proceed.  If money had been put aside and expenditure approved, but no contract was in place, Mr Robinson said he would need to know about it to decide whether the expenditure could go ahead or not: 1030T. Mr Robinson also accepted that what he said in his witness statement to Mr Milward (exhibit A1 pp 793) regarding expenses incurred from the time of the meeting moving forward needing to be approved by him, reflected what he told those present at the meeting on 21 January 2014: 1028T.

104   There were inconsistencies in relation to the contentions advanced by the respondent and the evidence of Mr Robinson. Whilst the respondent contended that there was, in effect, a “freeze” on all expenditure and no officer had authority to commit to expenses without the approval of Mr Robinson, that was not the tenor of Mr Robinson’s testimony. He reaffirmed in his evidence, the content of his witness statement that the “freeze” on expenditure referred to that incurred after 21 January 2014, which was reflected in the testimony of the appellant, Ms Skowron and Ms Lowicki. Consideration must also be given of course, to Mr Robinson’s memorandum to the managers, following the meeting, referred to above. However, this must also be seen in the context of what was discussed and agreed at the meeting, earlier that day.

105   The preparation of a memorandum at the direction of the appellant, in relation to the purchase of the hall curtains, was consistent with what was set out in the email from Ms Smith of 21 January 2014, distributing Mr Robinson’s memorandum (exhibit A1 pp 740-741). This is despite the need for written verification of expenditure committed to, not seemingly having been discussed in the meeting on 21 January 2014. Mr Robinson was also not able to recall both the appellant and Ms Skowron raising commitments made by them, during the meeting. In the context of the training obligations of the Academy, and recruitment commitments of the respondent, this would be a very natural issue to raise. In our view, the raising of such matters would be plausible and a matter of common sense.

106   A further issue arises in relation to Ms Sait’s role in relation to the hall curtains issue. The respondent contended that the appellant’s version of events was not credible because it was open to Ms Sait to inform the appellant on 21 January 2014, when the appellant said she spoke to Ms Sait, that the order for the curtains had not been placed at that time.  As noted above, Ms Sait did not tell the appellant she had directed Ms Kelly to not proceed with the Vista order after the approval and direction to do so, on 15 January 2014. This was due to the apparent difference of opinion between Ms Sait and the appellant, as to whether such matters should be classified as an “asset” or as “refurbishment”, for accounting purposes. Despite this, Ms Sait was not able to explain why she worded item 2, dealing with the hall curtain purchase, the way that she did in an email to Ms Kelly on 21 January 2014 at 11:27AM, which was in the following terms (exhibit A1 pp 60):

2.  Curtains - Deb has decided to go with the Kresta quote due to the quality of the fabric being better quality to last longer and not fade with sun etc.  Please check out deposit arrangements etc with Sales Rep.

107   The decision had already been taken on 15 January 2014 to proceed with the hall curtains purchase, so there was no need for any further “decision” at all.  As noted, the appellant was never made aware that Ms Sait had not complied with her direction to proceed with the hall curtain purchase. The appellant naturally assumed the matter was progressing. Ms Sait suggested that she may have worded the item 2 above because of her prior instruction to Ms Kelly to hold off on the order.

108   Having regard to the evidence, in our view, it was reasonable for the appellant to reach the view, at the time of the meeting on 21 January 2014, that in the context of the budget restraint, expenditure approved and committed to up to that time, could proceed. This was subject to any such expenditure being identified in writing to Mr Robinson and Mr McMahon. This was the process commenced by the appellant in the preparation of the memorandum to Mr Robinson.

109   We are not satisfied on balance that this allegation has been made out.

Allegation Four – On 3 February 2014, you committed a breach of discipline when you contravened the Code, ‘Record Keeping and Use of Information’.  You did this by dating a verbal quotation form the 21 January 2014, when you actually signed it on the 3 February 2014

110   As to this allegation, both the 2014 and 2015 investigation reports concluded that the VQF and AAF (relevant to the 2015 allegations) as exhibits 1 and 26 in the respective reports, were created on 30 January 2014. The conclusions reached by the investigator were not in any way qualified or expressed conditionally. The investigator concluded from the “metadata”, that exhibits 1 and 26 established that the creation date was 30 January 2014. This evidence fortified the investigator’s conclusion that the VQF and AAF forms could not have been signed on 21 January 2014, as alleged by the appellant.

111   Before considering the evidence of those directly involved in this allegation, they being the appellant, Ms Kelly and Ms Sait, we will first consider the expert evidence led by the appellant in relation to the metadata material and the conclusions reached by the respondent based upon it.

112   Professor Valli is the Professor of Digital Forensics at Edith Cowan University and is the Director of the ECU Security Research Institute. Professor Valli has a Doctorate in Information Technology. As well as his academic position, Professor Valli undertakes cyber security work, assists Interpol and works with several external bodies and law enforcement agencies. Professor Valli developed the ECU course for the Masters of Digital Forensics degree.  Professor Valli is engaged in research and investigations in relation to information technology metadata. He has written papers on information technology file systems and digital forensics. The Professor is clearly an expert in this field.

113   The appellant’s solicitors wrote to Professor Valli on 10 June 2016 and requested his opinion on the issue of the creation date of the VQF and AAF as not being earlier than 30 January 2014, as contended by the respondent, and not on 21 January 2104, as contended by the appellant.  Related questions were asked as to the plausibility of the appellant’s explanation for the signing of the documents on 21 January 2014 and what evidence would verify the appellant’s explanation.  Professor Valli was provided the documents relevant to these issues. A copy of the Turner Freeman letter to Professor Valli was exhibit A4.

114   It was Professor Valli’s overall professional opinion, in relation to the contention of the respondent to the effect that the VQF and AAF documents were created on 30 January 2014, that no forensic support for this conclusion could be drawn.

115   Professor Valli was taken to exhibit 26 in the 2014 investigation report (exhibit A1 p 772-773). This is a “screenshot” of the metadata and the copy of the VQF. He outlined the steps necessary to forensically examine such a document and its information technology properties, to accurately identify its creation date. From what he understood to be the facts in this case, which were not controversial, none of these steps were taken by the respondent. Professor Valli testified that the dates presented in the documents such as the screenshot at p 772, may be incorrect. None of the dates he reviewed could be verified, given the lack of forensic procedures applied.

116   In addition, Professor Valli was taken to exhibit A3. These two documents were obtained by the appellant from her own search of her work computer, under the “Business Services Section”. The first document, a screenshot, contains at the bottom of the page a reference to a VQF document prepared by Ms Kelly with a “date created” of 24 January 2014. He was taken to a second document, also a screenshot, of “document properties” for the VQF.  In the properties, is revealed a “content created” of 24 January 2014 and a further “date last saved” of 30 January 2014. From this, it is also noted that the “total editing time” was one hour and one minute.  Having considered these materials, Professor Valli expressed the view that this suggested there had been some substantial work done to create and edit the document, prior to the apparent dates appearing on it.

117   As to the 2015 investigation report, Professor Valli was also taken to the AAF (exhibit A1 p 876). He was taken through the same analysis as with the VQF document.  Having done so, Professor Valli expressed the opinion in relation to both the VQF as exhibit 26 in the 2014 investigation report and the AAF as exhibit 1 in the 2015 investigation report, that neither established with any certainty, the creation date of 30 January 2014, as relied on by the respondent in its findings. Furthermore, Professor Valli expressed the opinion that exhibit A3, cast both the VQF and AAF documents further into doubt, given that it showed that a copy of these documents was made in another folder altogether.

118   We found Professor Valli to be an impressive witness.  His conclusions in relation to the apparent creation dates of both the VQF and AAF documents were emphatic. Without hesitation, we accept his evidence.

119   The appellant’s evidence as to the VQF was that when she returned from the managers’ meeting on 21 January 2014, she spoke to Ms Kelly, as noted above. This was to request Ms Kelly to prepare a pending file to identify budget savings measures. The appellant testified that Ms Kelly gave her two forms, the VQF and the AAF. The forms were completed with typed in information (exhibit A1 p 62). The appellant signed them. Whilst the VQF at p 62 had Ms Sait’s signature on it, the appellant was not sure when Ms Sait signed it. A further signature at the bottom of the form, as “Approving Officer”, was said by the appellant to also look like Ms Sait’s. The VQF form set out the three quotes obtained and the justification for the purchase of the hall curtains. Both the appellant’s and Ms Sait’s names and signatures were written on the form and dated 21 January 2014. The appellant denied that she signed the VQF on a later date and backdated it to 21 January 2014.

120   Ms Kelly gave evidence that either Ms Sait or the appellant told her that Vista was the preferred supplier for the hall curtains.  She thought her predecessor, “Renou” started the process. Some quotes were obtained in September to October 2013 and a revised quote in December 2013. Whilst Ms Kelly could not recall the site managers’ meeting on 15 January 2014, she was aware that this was when the approval was given for the purchase of the new hall curtains to proceed. The meeting minutes, which she was taken to in her testimony, recorded the decision to replace the hall curtains. Ms Kelly accepted it was her job to go ahead and organise the replacement. As to the issue of Ms Sait telling Ms Kelly not to proceed with the purchase, Ms Kelly said that she could not recall this. However, when Ms Kelly was shown Ms Sait’s email to her of 21 January 2014 (exhibit A1 p 60) at item 2, Ms Kelly accepted that this was consistent with a prior direction from Ms Sait to Ms Kelly to hold off on the hall curtain purchase.

121   The timing of the preparation and signing of the approval documents, in this case the VQF, was the subject of considerable evidence from Ms Kelly. She maintained in her evidence in chief, that both the VQF and AAF documents were not prepared on 21 January 2014. Ms Kelly said she prepared them within a day or two of the fitter from Vista attending at the Academy to do a final check measure for the curtains. Ms Kelly thought this was about the end of January 2014. She thought so because she checked the visitor book at the reception for the Academy with an entry of 29 January 2014.  Ms Kelly thought that both the VQF and the AAF were done at the same time. She said she typed the information into the forms. Ms Kelly further referred to this being done within a few days of the request from Mr Robinson to prepare a memorandum for Mr McMahon regarding the justification for the hall curtains purchase. Ms Kelly thought this to be the case because she had all the information in front of her (i.e. VQF, AAF forms and quotes etc) when she prepared the memo to Mr McMahon. Ms Kelly generally maintained this position as to the timing of the preparation of the VQF and AAF. Ms Kelly did not recall who she gave the completed VQF to and did not see it get signed.

122   However, despite Ms Kelly’s evidence that she prepared the paperwork for the hall curtain purchase after the Vista final measure at the end of January 2014, and at about the time of the final invoice for payment, Ms Kelly was not able to explain how it was that the AAF (exhibit A1 p 63) had the date of 21 January 2014 typed into the body of the document with her signature. As a part of her testimony, Ms Kelly also was taken to the metadata comprising the screenshots of the computer folders (exhibit A1 pp 1009-1010). When the apparent creation date of the hall curtains documents of 30 January 2014 was put to her, Ms Kelly accepted, consistent with the thrust of the evidence of Professor Valli, that this date may well have been the date that the folder was created and the documents in the folder put into it. This was particularly so as some documents in the folder were created well before 30 January 2014, and included some of the original quotation documents from late 2013.

123   As to having both the VQF and AAF documents in front of her when she was preparing the memorandum for Mr McMahon on 3 February 2014, Ms Kelly seemed to suggest that they helped her prepare the memorandum because she had the paperwork in front of her. However, we found this evidence puzzling. It seems to the Appeal Board that given these two documents both contained the 21 January 2014 date, as did the purchase order document, we cannot see how Ms Kelly would gain some confirmation of timing because of the time of the Vista final measure at the end of January, when the documents themselves on their face, referred to an earlier point in time.

124   Furthermore, Ms Kelly was asked to and did provide two witness statements to the respondent’s investigator Mr Milward, one on 5 May 2014 (exhibit A1 pp 868-870) and the other on 26 June 2014 (exhibit A1 pp 864-867). Despite the dates of the witness statements being much closer in time to the relevant events about which Ms Kelly gave evidence in these appeals, there were significant inconsistencies. In her witness statement of 5 May 2014, Ms Kelly said that she recalled typing the VQF but not when she finished it. She said that she had no recollection of when either the appellant or Ms Sait signed the VQF. Ms Kelly also referred to assistance provided by Ms Meyn to check when the document was created, and Ms Kelly concluded from what she saw, from the document properties on the computer, that the VQF was “created” on 30 January 2014. However, this evidence was at odds with exhibit A3, which showed the VQF with an apparent creation date of 24 January 2014 and with Professor Valli’s general evidence about these matters.

125   Similarly, in her witness statement of 26 June 2014, Ms Kelly said that Ms Meyn also helped her to look at the document properties for the AAF document, which again showed a creation date of 30 January 2014. However, as noted above, Ms Kelly then said she could not explain why the AAF bore her signature and typed in date of 21 January 2014, if the creation date was some days later.

126   Ms Sait gave evidence as to the VQF process for the hall curtain purchase.  Ms Sait testified that she instructed Ms Kelly to go ahead and prepare the VQF and AAF.  After the documents were prepared, Ms Sait testified that some changes were made to the VQF document in the middle part of it in relation to the justification.  Ms Sait seemed to suggest in her evidence, that there were several versions of the VQF document.  It was also Ms Sait’s testimony that the VQF was signed on the Monday morning that Ms Meyn came to the Academy to collect the memorandum for Mr Robinson, which would have been 3 February 2014.  Ms Sait said she only saw the VQF and not the AAF document.

127   As to the 21 January 2014 date on the VQF, it was Ms Sait’s testimony that despite her witness statement of 6 March 2014 to the investigator giving the impression that the signing date of 21 January 2014 was urged by the appellant, and the appellant placed Ms Sait under some pressure, it was Ms Sait who proposed the earlier date. This was because this was the date of Ms Kelly’s email to Vista to proceed with the hall curtain purchase. There were three signatures on the form.  Ms Sait said that she signed it first. Whilst it was not clear when it occurred, Ms Sait said she put a “sticky note” on the VQF form to refer to the justification of the signing date of 21 January 2014. Ms Sait said that she then went to a meeting. In the half hour gap between her going to a meeting and her return, she said this was when the appellant signed the form. There was no other evidence to support this. Ms Sait said that she then signed the form again as the “Approving Officer” and this was the third signature on the form and the second one of hers.  Ms Sait said that Ms Kelly was present when this happened. The appellant was too as she had come into the office and there was some discussion about who should sign the VQF, as the third signatory.

128   During her cross-examination, Ms Sait accepted, contrary to her witness statement to the investigator, that she and Ms Kelly were not present when the appellant signed the VQF on what Ms Sait was alleged to be 3 February 2014. Ms Sait therefore had to accept that when the VQF came back to her for her final signature, as the Approving Officer, the appellant’s signature was already on it.

129   In view of the evidence just referred to, Ms Sait accepted that there were significant inconsistencies between her version of events given to the investigator in March 2014 and her testimony in these proceedings. This is despite the witness statement she gave to the investigator having been provided within a relatively short time after the events in question.

130   Ms Sait also referred to the purchase order document for the hall curtains (exhibit A1, p 1002). This document was prepared by the Purchasing Officer, Ms Rubie, with a purchase order number (6330-0213-0114) and a typed in date of 21 January 2014. The purchase order was signed by Ms Sait as the “Authorised Officer” but there was no date on the document as to when Ms Sait signed it. Ms Rubie was not called by the respondent as a witness.

131   The evidence as to when the VQF was signed by the appellant was significantly conflicting. As to Ms Sait’s testimony generally, we have some reservations about it in several respects. Firstly, her statement to the investigator in March 2014 regarding the authority of staff of the Academy to have lunch time meals, was wrong.  It was surprising that someone in the position of a Business Manager would not be aware of the “Tang Memo”, an approval of some years’ standing given by one of the respondent’s Deputy Commissioners. Secondly, Ms Sait attempted to portray the insertion of the handwritten date of 21 January 2014 on the VQF, as being in response to pressure exerted by the appellant on her.  In our view, this was a clear attempt to shift any blame for the alleged backdating of the signing of the VQF to the appellant, to place her in a poor light, when the clear admission by Ms Sait was that it was in fact she who proposed the date of 21 January 2014 for the signing of the VQF. Thirdly, the oral evidence of Ms Sait in relation to this issue, was directly inconsistent with her witness statement to the investigator, regarding the presence of the appellant when the VQF was signed by the appellant.

132   Ms Sait’s oral evidence as to various later versions of the VQF being prepared by Ms Kelly, one seemingly as late as 3 February 2014, was at odds with the evidence of the metadata. None of this evidence supported the conclusion of a “final” version of the VQF being produced on or around 3 February 2014 (see exhibit A1 pp 1009-1010 and exhibit A3). As pointed out by the appellant, this assertion was also inconsistent with Ms Sait’s witness statement to the investigator of March 2014, which referred to the VQF being brought to her by Ms Kelly on 29 January 2014. There was also no mention of a further and final version of the VQF on or about 3 February 2014, by Ms Kelly, at any time. Furthermore, if as Ms Sait maintained in her evidence, there were multiple versions of the VQF, it was surprising that no such documents were in evidence in the materials before the Appeal Board.

133   Additionally, both Ms Kelly and Ms Myers testified that Ms Myers helped Ms Kelly with the drafting of the memorandum to Mr McMahon regarding the justification for hall curtains. Ms Sait said it was she who gave Ms Kelly some assistance. They all cannot be correct. Given both Ms Kelly’s and Ms Myers’ evidence, we prefer the latter to that of Ms Sait.

134   These inconsistencies in the testimony of Ms Sait, and the deliberate attempt to shift blame towards the appellant, has caused the Appeal Board to approach Ms Sait’s evidence with some caution, unless it is corroborated by other evidence.

135   We are not persuaded by the respondent’s submissions that the purchase order document (exhibit A1 p 184) contains information to confirm Ms Kelly and Ms Sait’s version of events as to the preparation and signing of the VQF. This document, signed but not dated by Ms Sait, bears a typed date of 21 January 2014 in the body of the document. It was also prepared by Ms Rubie, the purchasing officer and not Ms Sait. As already noted, Ms Rubie was not called to give evidence. The submission of the respondent was that given that the supplier details (Vista) had not been provided to it prior to 24 January 2014, in the form of the purchase order, then this supported the respondent’s position as to the date of the signing of the VQF.

136   There are problems with this contention. As noted, Ms Rubie was not called and therefore it was not able to be established when the purchase order document was prepared. This was not apparent on its face, although the only date that it did bear, 21 January 2014, was consistent with the appellant’s contentions. Secondly, the respondent contended that the supplier details for Vista, such as the full name of the business, address and telephone contact details etc, were not provided to the respondent until the 24 January 2014 email from Ms Ball (exhibit A1 pp 881-887). However, when one examines the original quotes from Vista, (exhibit A1 p 1016; pp 1018-1019; pp 1022-1023) and the attached emails from Ms Ball, there was sufficient information from those documents available to include in the purchase order document.

137   As to the evidence of Ms Kelly generally, as noted already, there were significant inconsistencies between her version of the events as contained in her witness statements to the investigator (exhibit A1 pp 868-870), and her oral evidence. In her witness statement dated 5 May 2014, a relatively short time after the events of January 2014, Ms Kelly did recall preparing the VQF form but not when she finished it. She had no recollection of when the VQF was signed either by the appellant or by Ms Sait. Importantly, we note also that Ms Kelly referred to being assisted by Ms Meyn to look at the document history.  It was not clear on Ms Kelly’s evidence whether she was shown a copy of a print out or viewed the documents on a computer. From this, Ms Kelly concluded in her witness statement that this “established” that the VQF was created on 30 January 2014. Also, in her oral testimony, Ms Kelly confirmed that this assisted her in including in the 3 February 2014 memorandum she prepared to Mr McMahon, that both the VQF and the AAF were created after the visit to the Academy by the Vista fitter.

138   We consider that Ms Kelly in the hearing, attempted to give the best evidence that she could as to the events of January and February 2014. It was clear however, that her memory had been substantially impacted by the passage of time. Ms Kelly retired from the respondent not long after the events in question. From many of Ms Kelly’s responses both in evidence in chief and cross-examination, she had little independent recollection of the events. It was striking that in her witness statement to Mr Milward of May 2014 Ms Kelly was not able to recall the detail of when the VQF was completed, quite close in time to the events in question. Yet, over three years later when giving evidence in these appeals, Ms Kelly seemed to recall that she prepared both the VQF and AAF documents at the same time, after the fitter came to the Academy at about the end of January 2014, for the final measure. We cannot in these circumstances, discount the possibility that the experience of sitting with Ms Meyn to look at the document properties and history for the hall curtain material, referred to in her witness statement to the investigator, may not have at least subconsciously, influenced Ms Kelly’s view of the timing of the preparation of these documents. This is particularly so, given that Ms Kelly had no independent recollection of these matters as far back as May 2014.

139   This is also particularly the case, when Ms Kelly accepted in her cross-examination, when taken to the metadata, that the date of 30 January 2014, referred to in her witness statement to the investigator, may well have been when she created a folder for the hall curtain documents and put all the relevant documents into it. Given her lack of independent recollection of these events, and the earlier statements given to the investigator, in the context of the evidence as to the metadata from Professor Valli, we are not able to reliably conclude from her evidence, that the VQF was prepared at the end of January or even a little later, as contended by Ms Kelly.

140   The position is that the available documentary evidence, in the form of the purchase order, the VQF and the AAF, documents prepared by persons other than the appellant, all contained a reference to the date of 21 January 2014. That is, leaving aside the conflicts on the evidence between the appellant, Ms Kelly and Ms Sait, and there was a considerable amount of it, and indeed the internal inconsistencies in the evidence of Ms Sait and Ms Kelly, the common reference documents themselves are more consistent with the appellant’s version of the events than anything else.

141   Furthermore, neither Ms Sait nor Ms Kelly gave any evidence in the appeals that they saw the appellant sign the VQF. Taken with the dates on the documents in evidence, the metadata in the form of exhibit A3, which was the VQF screenshot document with the creation date of 24 January 2014, whilst not establishing the date when the appellant signed the VQF, is, on balance, more consistent with the appellant’s version of the events than either the evidence of Ms Sait or Ms Kelly.  We also note the evidence of Professor Valli in relation to exhibit A3. His evidence was that this document, from what was before him, showed that it had been edited. The total editing time of an hour plus, led to an inference that work done on the document to create or edit it, was prior to the apparent date of 24 January 2014. This further calls into question the respondent’s case that the VQF was created much later than exhibit A3 suggests.

142   We are therefore not satisfied the allegation that the appellant signed the VQF on 3 February 2014 and backdated it to 21 January 2014, has been made out.

Allegation Five – on February 2014, you committed a breach of discipline when you contravened the Code, ‘Fraudulent Corrupt and Inappropriate Behaviour’.  You did this by making a false entry on the minutes for a meeting held on 21 January 2014, where you stated that Assistant Commissioner Adrian Robinson agreed that currently approved / committed expenses could go ahead as planned.

143   A summary of the evidence regarding the minutes of the meeting on 21 January 2014 is outlined in pars 95 to 98 above.

144   The appellant testified that upon receiving a copy of the draft minutes of the meeting by email from Ms Lowicki, she followed the correct process for amending minutes, and telephoned Ms Lowicki to inform her that they did not contain a reference to Mr Robinson’s statement that currently approved/committed expenses could proceed as planned. Both the appellant and Ms Lowicki gave evidence that they then communicated back and forth regarding the wording of the proposed amendment to the minutes. Ms Lowicki testified that she added the proposed wording to her original handwritten notes, with the notation “added by Deb Harvey 25/2/14”. A copy of Ms Lowicki’s handwritten notes and the final minutes, as amended, are exhibit A1 pp 742-753.

145   Ms Lowicki testified that when she took the draft minutes to Ms Smith to ask how she should handle the amendment, she was told not to insert it into the typed minutes, but rather wait until they had been discussed at the next meeting.

146   The appellant gave evidence that at the next senior managers’ meeting on 26 February 2014, she verbally moved for an amendment to the minutes of the previous meeting. The amendment was approved by all those present, including eight employees who also attended the meeting on 21 January 2014, without demur. Ms Lowicki also confirmed in her evidence that no one objected to the proposed amendment. She also said it reflected her understanding of what had been agreed; that expenditure proposed and committed to could go ahead. Ms Skowron also testified that it was determined during the meeting on 21 January 2014, that those pre-identified training activities could carry on as they had prior approval.

147   Ms Lowicki testified that what appears in the final amendment to the minute, is what those at the meeting on 26 February 2014 agreed should be inserted into the minutes of 21 January 2014. She gave evidence that the appellant never had access to, nor made any alteration to, the handwritten or typed minutes.

148   Mr Robinson’s evidence was that he did not recall the appellant or Ms Skowron raising the issue of funds that had already been committed for training or recruiting purposes. He stated that the final amendment to the minute is incorrect. He confirmed there was to be no expenditure, and if there were any changes to that or anything people wanted to know, the usual process was to seek prior approval before action. The respondent contended that rather than seeking to clarify the effect of the spending freeze with Mr Robinson, the appellant sought the minutes of the meeting to be amended, to give the impression that the purchase of the curtains was exempt from the expenditure freeze.

149   The appellant noted the allegation against her is that she “made a false entry on the minutes”, and not that she sought an amendment to the minutes which she knew to be false. The appellant contended there is no evidence that the appellant made an entry on the minutes of the meeting, handwritten or typed. The fact that she proposed an amendment to reflect what she believed was said by Mr Robinson at the meeting, and that amendment was passed in a proper manner by those attending the next meeting, does not constitute a breach of discipline simply because Mr Robinson says the amendment does not reflect what was said. Further, the appellant noted that Mr Robinson never had the approved minutes rectified through the processes available to him.

150   As to the first point just made, we consider that taken in context, despite its literal meaning, the thrust of the allegation against the appellant was that she caused an amendment to be made to the minutes of the meeting on 21 January 2014 that she knew to be false.

151   We refer to our conclusions on the evidence in relation to Allegation Three above, and our view that it was reasonable for the appellant to form the view that she did, arising from the meeting.  In light of those findings and conclusions, the contention that the appellant caused an amendment to be made to the minutes of the meeting of 21 January 2014 that she knew to be false, cannot be sustained.

Allegation Six – On or about 14 April 2014, you committed a breach of discipline when you contravened the Department of Corrective Services Code of Conduct 2011 “Record Keeping and Use of Information”.  You did this by apparently altering the contents of an untitled memorandum purportedly written by Ms Helen Kelly, and dated 8 April 2014.  Specifically you:

(a) inserted details into the memorandum to incorrectly include a 1 hour timeframe given by Assistant Commissioner Adrian Robinson for the completion of a previous memorandum when that was not the case; and

(b) included information to the effect that a “verbal quote form” was apparently signed on 21 January 2014, when in fact it was signed on or around 3 February 2014.

152   Given our conclusion as to Allegation Four above concerning the VQF, part (b) of this allegation cannot be sustained. That leaves par (a) to be dealt with.

153   The appellant testified that not long after she received the letter dated 1 April 2014 with the allegations against her, she began collating relevant material on advice from the CSA. While doing so, she noticed that one of the dates in the memorandum dated 3 February 2014 was incorrect, as it did not match up with the email from Vista on 13 December 2013 containing the second quote. The appellant said she told Ms Kelly that she thought the date in the memorandum was wrong, and Ms Kelly confirmed the date was incorrect, and noted there were several other errors contained in the memorandum. The appellant testified that she sought Mr Cattai’s advice, and was told to prepare a further memorandum rectifying the errors. In a statement dated 24 September 2014, Mr Cattai confirmed the appellant sought his guidance as to how the inaccuracy should be corrected for record purposes. He said he suggested another supporting memorandum be prepared, referring to the original memorandum, detailing the errors and subsequently the correct information.

154   The appellant on 8 April 2014, asked Ms Kelly to prepare another memorandum correcting the errors contained in the original. She asked Ms Kelly to include the one hour timeframe given by Mr Robinson, because she did not want Ms Kelly to be considered at fault for the errors. The appellant gave evidence that she subsequently obtained copies of the email correspondence from Mr Robinson to check what the timeframe was. When the appellant asked Ms Myers for the TRIM number of the original memorandum, she was informed that the Commissioner never received the memorandum because it had been given to the Chief Financial Officer, Mr Kessaris. In the meantime, the appellant said she received an email from Ms Kelly containing a copy of the draft memorandum. The appellant testified that she decided the memorandum dated 8 April 2014 could not be used because the person reading it would have no reference for what the errors referred to.  Accordingly, she left the email and draft memorandum in her email system and did not do anything with it.

155   The appellant said she decided the appropriate course was to amend the original memorandum and attach the original memorandum to it, so the corrections could be easily identified. She understood Ms Kelly and Ms Myers worked on the memorandum together, as the normal practice was that Ms Myers would assist in the preparation of memorandums. The appellant testified that the memorandum they prepared was dated 14 April 2014. The appellant said she obtained screen dumps of the document data for the memorandum dated 8 April 2014, and the metadata shows that it was “last saved by” Ms Kelly. The appellant submitted this suggests she did not alter the memorandum after Ms Kelly saved it.

156   Ms Kelly testified that sometime after 3 February 2014 she was asked by either the appellant or Ms Myers on the appellant’s behalf, to prepare a second memorandum as there were two errors contained in the original memorandum. Ms Kelly said she was quite happy to correct the first error, that being the date the second quote was received, as it was simply a typographical error. However, Ms Kelly gave evidence that she was not happy about rewording the second last paragraph of the memorandum, to indicate that the AAF and VQF were completed before the date on which the fitter from Vista attended the Academy. This was because she knew that the information contained in the original memorandum was correct, or as near to correct as it could be. Ms Kelly testified that although she did not feel comfortable making the change, she did so because the request had come from the Director of the Academy.

157   Ms Kelly gave evidence that what she typed into the second last paragraph of the memorandum dated 14 April 2014 does not accurately reflect the true state of affairs about the process for buying the curtains. Specifically, Ms Kelly testified that the sentences “confirmation was given of 21 January 2014 and the requisition and verbal quote forms were completed at this time” and “no changes were required to the requisition and verbal quote forms after the fitter attended the Academy on 29 January as he identified no changes were required to the installation” were incorrect.

158   A series of emails passed between Mr Robinson and the appellant between Friday 31 January and 3 February 2014 in relation to Academy expenditure on meals for staff, the purchase of hall curtains and the preparation of a memorandum with supporting documents (exhibit A1 pp 72-75). In an email from the appellant to Mr Robinson on Monday, 3 February 2014 at 9.31am she informed Mr Robinson that Ms Kelly is preparing the memo. Relevantly it read as follows:

From:   Harvey, Deborah

To:   Robinson, Adrian

Sent:   Mon  Feb 03 09:31:34  2014

Subject: RE: Budget restrictions - reclaiming of unspent budget as at 31/12/13

Hi Adrian,

Helen (the Site Coordinator) is preparing the memo. It won't be ready in time for Anna to pick up this morning. I believe she's coming down to Boronia between 10 and 10.30 and was going to pick up the paperwork then. Did you want the paperwork kept all together or are you ok with Anna picking up the quotes etc and the memo emailed to you later today?

Regards,

Deborah

Director - Corrective Services Academy

159   Mr Robinson then replied a few minutes later in the following terms:

From:    Robinson, Adrian

Sent:    Monday, 3 February 2014  9:34 AM

To:   Harvey, Deborah

Subject:  Re: Budget restrictions - reclaiming of unspent budget as at 31/12/13

Hi Deborah

Thanks. Can you hand all over to Anna please; I think Anna will wait.

Cheers - Adrian

Adrian Robinson

Assistant Commissioner

Department of Corrective Services

160   It was the appellant’s evidence that she understood from Ms Sait that Ms Meyn was going to arrive at the Academy between 10-10:30am and that Ms Meyn would not be able to stay. The appellant accepted that she did not check this with Ms Meyn. She took the view from the time she saw Mr Robinson’s email on the Monday morning and her understanding of Ms Meyn’s arrival at the Academy, that there was only about an hour to prepare the memo with the supporting documents. As noted, the appellant also testified that she requested Ms Kelly to refer to the one hour timeframe in the memo because the appellant did not want someone to think Ms Kelly had made mistakes.

161   When it was put to him in cross-examination, Mr Robinson agreed he had no reason to doubt what the appellant told him about her view of the time available to prepare the memo with the supporting documents.  Further, Mr Robinson accepted from the timing of the emails regarding the preparation of the memo and the time of Ms Meyn’s intended arrival at the Academy on the Monday morning, that a conclusion that about one hour was available to complete the task, was open.

162   The appellant contended there is no evidence that she altered the contents of the memorandum dated 8 April 2014. Ms Kelly gave evidence that she was requested to prepare a memorandum to correct mistakes in the original, and the second memorandum she prepared was dated 14 April 2014.  The appellant submitted that this alone is sufficient to dispose of the allegation. On the other hand, the respondent contended that the evidence of Mr Robinson should be accepted and that his emails to the appellant did not refer to any one hour time frame.

163   The allegation as to par (a) above was, in our view, pedantic, erroneous and we reject it for the following reasons. Firstly, the evidence is that the appellant herself made no changes to the memorandum prepared by Ms Kelly, after she saved it. This is clear enough from the metadata referred to by the appellant (exhibit A1 pp 209-211; p 817) and the evidence of the appellant in relation to it which was not contradicted by any evidence from Ms Kelly on the matter. Secondly, given the timing of Mr Robinson’s emails to the appellant and the time of Ms Meyn’s intended arrival at the Academy on 3 February 2014, which evidence was again, not contradicted, it was plainly reasonable to assert that in practical terms, there was only about one hour to complete the task at hand. To his credit, Mr Robinson conceded as much in his testimony. Finally, in any event, if one did want to be pedantic, in the memorandum, Ms Kelly did not say Mr Robinson had given one hour to complete the task. She simply said that she had that time to complete the memo, because Ms Meyn was collecting it.

164   This allegation is not made out.

PSAB 2 of 2016

Allegation One - About, or after, 30 January 2014, you committed a breach of discipline by back dating an Asset Acquisition Form to 21 January 2014.

165   We refer to the evidence of Professor Valli and the Appeal Board’s findings, as set out above at pars 112 to 118, in relation to Allegation Four in the 2014 appeal. We have also referred to aspects of the evidence in relation to the AAF when dealing with the VQF allegation above. We will endeavour to adopt, without unnecessarily repeating, our earlier observations.

166   The appellant testified that when she went to see Ms Kelly after the senior managers’ meeting on 21 January 2014, Ms Kelly presented her with the VQF and the AAF for her to sign in relation to the purchase of the hall curtains. The AAF was dated 21 January 2014 and contained Ms Kelly’s signature. The appellant said she signed and dated the AAF at Ms Kelly’s desk and handed it back to Ms Kelly.

167   Ms Kelly testified that to the best of her knowledge, the AAF and VQF were prepared on the same day. She thought this was on 30 January 2014, when she received a final invoice from Vista after the fitter had attended the Academy.  Ms Kelly’s evidence was that she typed all the information into the AAF including the date for her own signature, and signed it before giving it to someone. She did not have any further involvement in filling out the form. Ms Kelly could not explain why she typed the date of 21 January 2014 as being the date of her signature. She agreed it was possible that the AAF was dated 21 January 2014 because she did in fact prepare and sign it on that date.  Ms Kelly was also taken to the purchase order document dated 21 January 2014 and agreed that it also contained the order number that was typed in the AAF document, was for the correct dollar amount and had GST allocated. Ms Kelly did not recall being present when the appellant signed the AAF. However, in fairness to Ms Kelly, as noted above, when pressed on the timing of the creation of both the VQF and the AAF, she said she did not have an independent recollection of these matters when giving her evidence.

168   The AAF contains the invoice number Z544152-3 and the purchase order number 6330-0213-0114. Ms Kelly gave evidence that the invoice number came from the final tax invoice she received from Vista on 30 January 2014. Under cross-examination however, Ms Kelly accepted that the invoice numbers Z544152 and Z544153 first appeared on the quotes she received from Vista in September and December 2013, which she had access to. The respondent contended that although the invoice numbers appeared on the earlier quotes, the format of the invoice number “Z544152-3” was not included in any documents from Vista until the final invoice dated 30 January 2014. The respondent submitted that it is highly unlikely Ms Kelly would have independently decided, before she had received the final invoice on 30 January 2014, that the invoice number should be inserted into the AAF in the format “Z544152-3”. Counsel for the appellant submitted that the format of the numbers is nothing more than a shorthand for grouping sequentially numbered invoices, and that any administration officer would be capable of such a grouping.

169   We are not persuaded that the connotation placed on the numbering of the invoice number in the AAF is as persuasive as maintained by the respondent, in the absence of other compelling evidence. It equally could have been presented in the manner suggested by the appellant.

170   In relation to the existence of the purchase order number on the AAF, Ms Kelly testified that a purchase order number is usually created after an invoice has been approved for payment and given to the purchasing officer. The final invoice provided by Vista is dated 30 January 2014 and states the purchase order is “TBA”. The invoice was not approved for payment until 31 January 2014. Accordingly, the respondent contended the purchase order number could not have existed prior to that date.

171   The purchase/requisition order is signed by Ms Sait and records the date of order as being 21 January 2014. There is no space for the person signing the document to insert the date of their signature.  Ms Sait could not recall the date she signed the purchase order, however agreed that the date of the order suggests the document was created on 21 January 2014. Ms Kelly had no recollection of the purchase order, however confirmed that she had access to it when she prepared the AAF. She accepted that if the purchase order number existed as at 21 January 2014, as noted above, it would suggest she could have completed the AAF on that date.

172   As with the VQF allegation, the respondent contended that the purchase order could not have been created prior to 24 January 2014 because until that date, the supplier details contained in the purchase order had not been communicated to the Department. The name “Vista Blinds” and the address, phone and fax numbers stated on the purchase order do not appear on the quotes received prior to 15 January 2014, and were only provided to Ms Kelly in an email from Ms Ball on 24 January 2014.  We reject this contention for the same reasons in relation to the VQF document.

173   Further, the respondent submitted that it is apparent from an email between Ms Ball and Ms Kelly on 7 February 2014, that Vista had not been provided with a copy of the purchase order allowing it to proceed with the order for the curtains.  Likewise, the respondent also concluded from the metadata of the AAF that it was created at 2:38 pm on 30 January 2014 and therefore could not have been signed by the appellant on 21 January 2014.

174   For several reasons, the appellant submitted the Appeal Board cannot be satisfied that the metadata objectively establishes creation of the AAF on 30 January 2014. Firstly, as with the VQF, the metadata of the “Hall Curtains” folder in which the AAF is located, shows it was created on 30 January 2014 at 2:36 pm. Seven of the 10 documents within that folder appear to have creation dates of 30 January 2014, with the other documents having creation dates much earlier. The appellant submitted that the timing of the creation of the “Hall Curtains” folder and the timing of the creation of the documents within the folder demonstrates that it is highly unlikely the AAF was created for the first time on 30 January 2014.

175   It was also contended by the appellant that Ms Kelly’s evidence that the VQF and AAF were prepared on the same day, was also consistent with the appellant’s evidence that Ms Kelly presented her with both documents on the same date on 21 January 2014, when she signed them and gave them back to Ms Kelly.

176   Also, problematic for the respondent in relation to this allegation is exhibit A3. The reason is that it was Ms Kelly’s evidence that she created both the VQF and the AAF at the same time, after the Vista fitter went to the Academy at the end of January 2014. Given the provenance of the VQF as set out in exhibit A3, and Professor Valli’s evidence about it, it is more likely that the AAF was also created at or around the earlier time too, if Ms Kelly is correct in her contention that she did both documents at the same time. This is also consistent with the appellant’s position that both documents were given to her by Ms Kelly at the same time to sign on 21 January 2014.

177   Given our conclusions in relation to the signing of the VQF, we consider that it has not been established by the respondent that it is more likely than not, that the AAF was signed on 3 February 2014 and backdated to 21 January 2014, as alleged.

Allegation Two - In June 2014, at the Department of Corrective Services Academy, you committed a breach of discipline by requesting Helen Kelly to include false information in a memorandum regarding the date on which an Asset Acquisition Form was signed by yourself

Allegation Three - In June 2014, at the Department of Corrective Services Academy, you committed a breach of discipline by requesting Helen Kelly to include false information in a memorandum regarding the date on which a Verbal Quote Form was signed by yourself.

178   Given these two allegations arise from the same events we will deal with them together. Considering the Appeal Board’s findings and conclusions set out above in relation to both the VQF and the AAF allegations, it follows that these two allegations cannot be sustained. We conclude that the appellant did not request Ms Kelly to include false information in the memorandum Ms Kelly was requested to prepare, concerning the date of signing by the appellant of both the VQF and the AAF.

179   However, we wish to observe that we consider it was an error of judgment for the appellant to approach Ms Kelly, through Ms Myers, to prepare such a statement. An investigation had been commenced by the respondent into the appellant’s conduct, which included the very matters about which Ms Kelly was requested to provide a statement. The appellant was notified of the allegations against her by letter of 1 April 2014. The error of judgment was more so due to Ms Kelly being a lower level employee in the organisation and one who, we are satisfied on the evidence, felt somewhat uncomfortable about complying with such a request. The uncontradicted evidence that Ms Kelly would rather leave the workplace by the back door rather than speak to the appellant about the file note, was quite clear evidence of this discomfort. The conduct by the appellant in this regard could reasonably have been seen, and obviously was seen by the respondent, as an attempt to interfere with the investigation.

Allegation Four - On or about 1 April 2015, you committed a breach of discipline by saying during a telephone conversation to Mr Adrian Rivalland, an employee in the Department’s Investigation Services Directorate, words to the effect of “You’re all cunts”

180   The appellant testified that on 1 April 2015 she telephoned the IT help desk regarding access to her Citrix account, and was informed that her account had been cancelled and an investigation was on foot.  She recalled being concerned and upset but not angry. The appellant gave evidence that she telephoned Mr Rivalland because she had been told by Mr Buckingham, a former Assistant Commissioner of Professional Standards, to contact him if she ever needed assistance. The appellant said she identified herself and asked Mr Rivalland if he could tell her anything about the investigation. Mr Rivalland said he was no longer with investigation services, but would try to find out what was going on.

181   The appellant said she became upset and started “bawling my eyes out” when Mr Rivalland enquired as to how she was doing in relation to the previous investigation process. She denied saying “you’re all cunts” and said she has never used such language towards an employee of the Department. The appellant however later in her testimony accepted she could not discount the use of foul language in other parts of the conversation, as she was distraught. The appellant agreed she could use foul language if she was upset or distraught, but said this did not occur very often. The appellant stated she was suffering a mental illness as at 1 April 2015 and had informed Mr Stewart of this.

182   Mr Rivalland testified that when he answered the telephone he could immediately tell someone was upset, as the conversation began with “words to the effect of, um, ‘my access has been cut’ or, ‘I can’t access my emails’, something along those lines”.  He noted the caller was crying and spoke with a raised voice. He did not recall the appellant introducing herself. Mr Rivalland said it was difficult to recall the conversation word-for-word, however he did recall the appellant saying “you’re all cunts”. Mr Rivalland testified that a few minutes after the phone call concluded, he made a note in his diary about the content of the conversation and his observations regarding the appellant’s conduct. He then reported the matter to the Director of Investigations.  Mr Rivalland said he was not upset or aggrieved by the words because he considered they came from the appellant’s distressed state.

183   During cross-examination, Mr Rivalland said he could not recall specifically when the alleged words were spoken, which counsel for the appellant noted was in direct contradiction to his written statement dated 13 August 2015, that “upon answering the call Ms Harvey was immediately abusive towards me using the words “you’re all cunts”.  Mr Rivalland said he looked at the note in his diary before he prepared the statement for Mr Milward, and accepted this could by why he decided to write that the first thing the appellant said to him were the words “you’re all cunts”. Mr Rivalland agreed his note was selective about what he had chosen to record. He did not record the date or time of the entry, any reference to the appellant’s Citrix account, or what action he agreed to take. The appellant argued these matters cast doubt on the accuracy of Mr Rivalland’s evidence.

184   The appellant submitted the Appeal Board should consider the audio recording of phone messages left by the appellant for Mr Hassall in July 2015 (exhibit R8).  Based on the tone and volume of her voice, the appellant was audibly upset, yet she still managed to introduce herself each time and speak without using foul language. Further, counsel noted Ms Tang’s evidence to the effect that the appellant was honest and trustworthy, and submitted the Appeal Board should consider it inconsistent with the appellant’s character to say such words to a work colleague, even under stress.

185   The respondent submitted that Mr Rivalland’s evidence should be preferred by the Appeal Board, as he was clear and forthright, and his account is supported by the note he made in his diary only a few minutes after the conversation. The respondent contended that in circumstances where the appellant accepts she was feeling distraught, and could not discount using foul language, it is plausible that she did in fact say “you’re all cunts” during her conversation with Mr Rivalland.

186   Having considered carefully the evidence of both the appellant and Mr Rivalland, we prefer the version of events outlined by Mr Rivalland. We have reached that conclusion for several reasons. Firstly, the appellant was plainly upset because of the investigation process generally. In her later telephone calls to Mr Hassall, played in open court, the frustration and anger in Ms Harvey’s voice and demeanour was clear (exhibit R8). Secondly, the context of the telephone conversation in issue in this allegation was important. On the day in question, 1 April 2015, the appellant had just found out her Citrix account had been cancelled. This meant she could no longer access the respondent’s IT system and access documents relevant to her defence of the complaints against her.

187   Thirdly, the appellant had by the time of the telephone call, become mentally unwell. Mr Stewart was told of this. In such a state of agitation, combined with ill health, a person could well say things that may not be said under normal circumstances. Fourthly, we found Mr Rivalland’s recounting of the telephone conversation to be direct and quite compelling. Mr Rivalland did make a partial note of the conversation in his diary (exhibit A1 p 912). Whilst Mr Rivalland was cross-examined on this and his subsequent statement to the investigator (exhibit A1 pp 873-874), and apparent inconsistencies, we are satisfied that the gist of what the appellant said was recorded by Mr Rivalland in his diary note. We also observe that Mr Rivalland made significant concessions as to shortcomings in the investigation process engaged in by the respondent, including some of his own. Finally, in her cross-examination, the appellant somewhat shifted in her testimony from denying the language used to saying she did not recall it.

188   How this incident should be regarded in the context of the events the subject of these appeals is a matter that we will come to next, when considering the outcome of these proceedings. However, we merely observe that when Mr McMahon was asked about this incident, he described it in the context of “people having bad days” (1113-1114T).

189   This allegation is made out.

Adjustment of the decision

190   In proceedings before the Appeal Board under s 80I(1) of the IR Act, the Appeal Board has the jurisdiction to “adjust” any decision from which an appeal is brought.  The scope of this power was considered by the Industrial Appeal Court in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169. In this case, the issue for consideration by the Industrial Appeal Court was whether the jurisdiction and powers under s 80I(1) to “adjust” the relevant matters within the Appeal Board's jurisdiction as specified by the then s 80H(1)(a) to (e) of the IR Act, included a power to award compensation to a dismissed employee who did not wish to be reinstated.  In considering the meaning of “adjust” Anderson J (Franklyn and Scott JJ agreeing) said at p 2170:

The word “adjust” has various applications in common parlance and in any given case it obtains its precise meaning or sense from the context in which it is used.  In this legislation, the context is provided by each of the paragraphs (a) to (e) of s80I(1) and in the case under consideration the context is provided by para (e).  The only “matter” which is referred to in that paragraph is “a decision, determination or recommendation ...  that the Government officer be dismissed”.  It is that, and only that, which may be “adjusted” in the exercise of this particular aspect of the Board’s jurisdiction.  The power to “adjust” a decision or determination can only be a power to reform the decision in some way.  In the case of a decision or determination by an employer to dismiss an employee with one month’s pay in lieu of notice, the most obvious way to do that would be to reverse it.  Whether there may be other ways of adjusting such a decision is perhaps an open question.  It may be arguable that the power to adjust a decision of dismissal includes a power to adjust the period of notice.  The issue does not arise in this case because no such adjustment was sought by the respondent.  He made no claim to reform the decision in that Way that is, by altering the period of notice.  He made only a claim for monetary compensation on the ground that the decision of dismissal itself was unfair.  Hence, the Board was not asked to change the decision in any way.  To give compensation to a dismissed employee is perhaps to change and thus to adjust the rights and obligations flowing from the decision to dismiss, or to super-add a consequence to the decision to dismiss, but it is not to adjust the decision to dismiss.

191   Furthermore, as considered by the Full Bench of the Commission in Sherry Martin v The Director General of Health [2012] WAIRC 00703; (2012) 92 WAIG 1620 at pars 48 - 49, the “adjustment” of a relevant decision may involve the quashing of it or an order to reverse it, both of which would effectively lead to the reinstatement of an appellant and consequential reimbursement for financial loss.

192   Whilst the appellant made a submission that it was not open to the Appeal Board, having regard to the terms of s 80I(1) of the IR Act, to consider the workability of the reversal of a decision when considering how to adjust it, that submission cannot be accepted. In our opinion, to so limit the scope of “adjust” in s 80I(1) would be to fail to consider the nature of the Appeal Board's jurisdiction when dealing with a matter of the present kind, arising from the termination of an employment relationship and a claim that it be restored. We do not consider that Parliament would have intended the Appeal Board, as a constituent authority of the Industrial Relations Commission, to not be able to have regard to submissions in a case, that a working relationship has so broken down as to be irretrievable, when considering how a decision under appeal should be adjusted. We do not think that the only option open to the Appeal Board in such a case, would be to reverse or quash a decision, having the effect of restoring a manifestly unworkable employment relationship. Such an outcome would be at odds with the requirement on the Appeal Board, as with the Commission, to exercise its jurisdiction and powers in accordance with s 26(1)(a) of the IR Act. We note that a similar conclusion was reached by the Appeal Board in Thavarasan.

193   Therefore, it is appropriate that the Appeal Board consider the matters raised by the respondent in opposing the restoration of the employment relationship between the appellant and the respondent, in determining how the respondent's decision to dismiss the appellant should be adjusted. In cases where an employer resists the re-establishment of an employment relationship, the onus is on it to make out its contentions, based on credible evidence. A recent summary of relevant factors to have regard to, based on unfair dismissal cases, is found in the decision of the Full Bench 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 at paras 75 - 106.  This decision was affirmed on appeal to the Industrial Appeal Court in 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.

194   Whilst the decision of the Full Bench in the PTA case concerned the exercise of powers by the Commission under s 23A of the IR Act arising from a claim of unfair dismissal under s 29, as was concluded in Thavarasan, some assistance can be obtained from such cases, when considering “adjusting” the respondent's decisions arising from these appeals.

195   For the respondent, submissions were made as follows. Firstly, was the broad contention that the then respondent, Mr McMahon, who has since left office, had lost trust and confidence in the appellant in her ability to discharge the functions of the Director of the Academy. In this respect, the respondent referred to and relied upon the attempted return to work by the appellant, following her clearance to do so by Dr Tay, in May 2015. This was, as was common ground, after a period where the appellant suffered some mental illness. The respondent referred to the efforts of both Mr Stewart and Mr McMahon to give the appellant an opportunity to return to work to restore her confidence. Reference was made to the discussions between Mr McMahon and the appellant, both oral and by email, where a six-month trial was proposed, as a part of the return to work arrangement.

196   The respondent submitted that when Mr Stewart had identified a temporary position for the appellant, the appellant took issue with this and complained. The respondent referred to a lengthy email from the appellant to Mr Stewart in this respect, in which the respondent said the appellant was debating the merit and content of any such return to work plan (see exhibit A12). The upshot of this was, a demonstration of an attitude by the appellant whereby she was not committed to making the return to work successful; rather highlighting deficiencies and making criticisms of the respondent's proposal.

197   Reference was made to a further email between the appellant and the respondent through Mr Stewart (exhibit A11) where the respondent asserted that the appellant 'castigated' Mr Stewart for the alleged failures in the return to work plan. There was reference to taking out restraining orders against various employees of the respondent, who were involved in the present appeals on behalf of the respondent.  Furthermore, concerning the return to work, the respondent also submitted that when the appellant first met Mr Hassall after she returned in 2015, she refused to shake his hand. This was said to be an example of a failure of good manners and professional conduct by the appellant, regardless of any personal reasons that she may have had for declining to do so.

198   The breakdown in the relationship between the appellant and officers of the respondent was also said to be illustrated by exhibit R8, which was the audio recording of messages left by the appellant for Mr Hassall, in which she was upset and expressed great frustration at the investigation processes. The respondent contended that this was a clear example of the breakdown of the relationship between the appellant and Mr Hassall, who then held the position of Deputy Commissioner and one with whom the appellant would need to work quite closely as a senior manager of the respondent.

199   Further submissions were made in this vein about complaints and grievances lodged by the appellant against other officers and former officers of the respondent. The submission generally was this demonstrated a level of animosity between herself and those individuals all of whom were involved in the disciplinary processes against her. Reference was also made by the respondent to a complaint that the appellant made against Mr Kessaris, in relation to the interception of the memorandum regarding the purchase of the hall curtains, that was addressed to Mr McMahon. The general submission made about the appellant's conduct in relation to these matters, and her various complaints about the conduct of Mr Milward, as the investigator, allegedly being biased against her, was a failure to appreciate the impact of her conduct on other employees of the respondent and a general lack of courtesy in her dealings with others.

200   Additionally, reference was also made to Mr McMahon's evidence and the opinion that he formed in dealing with the appellant over the long period of the investigations, that the appellant lacked any insight or remorse for the effect of her actions on others. Reference was made to the pressure placed by the appellant on both Ms Sait and Ms Kelly, who were both said to be fearful of the appellant and her reactions if either of them questioned her decisions or conduct. The submission was made that Mr McMahon was justified in being concerned about the risk to the organisation through any possible reinstatement of the appellant in terms of the safety and well-being of other employees and his general lack of confidence in and trust of her, to make the appropriate decisions necessary for a senior officer of the respondent.

201   For these reasons, the respondent contended that it would not be appropriate if the Appeal Board upheld the appeals, to order that the decision be reversed by reinstating the appellant. It was said that such a decision would place great strain on the working relationship between senior officers of the respondent.

202   An alternative submission was made by the respondent that if the Appeal Board was minded to adjust the relevant decisions, then as a matter of equity and good conscience, it would be open to the Appeal Board to adjust the period of notice of termination of employment to be given to the appellant, and a payment made in lieu of such notice. This submission was made in reliance upon observations by the Industrial Appeal Court in Johnson and by the Appeal Board in Thavarasan.

203   The appellant submitted there was no proper or credible basis on which the Appeal Board should find that reinstatement of the appellant should not take place. Firstly, the appellant referred to the resignation of Mr McMahon from the office of Commissioner of Corrective Services, made publicly known in early April 2017, after the hearing in these appeals had concluded. It was therefore contended that any suggestion that he had lost trust and confidence in the appellant necessarily fell away. Furthermore, and irrespective of this development, the appellant contended that Mr McMahon's loss of trust and confidence in the appellant, depended on the findings of the investigations upholding the complaints against the appellant. In the event of the appeals succeeding, and the breaches of discipline not being made out, then the foundation for such a loss of trust and confidence necessarily also falls away.

204   Reference was made to the submissions by the respondent about the return to work plan the subject of correspondence between the appellant and Mr Stewart in June 2015, already referred to above. The submission of the appellant was that despite repeated requests by her to view a return to work plan that was undertaken to be prepared, none was forthcoming. She said her requests were ignored. Ultimately, Mr Stewart, by email of 3 July 2015, relieved the appellant of any obligation to return to work at all and she simply stayed at home and continued to receive her salary. Prior to this occurring, when she did present for work on 29 June 2015, under what she understood to be a return to work plan, no such plan existed. She had no desk to sit at and she was given nothing to do.

205   The submission in this respect was that the respondent's criticisms of the appellant, by her raising what she maintained were legitimate and proper concerns about a return to work plan, as a senior manager of the respondent, were farcical.  Reference was made to the original decision to transfer the appellant from her position as Director of the Academy, for which she was well qualified and experienced, into another level 8 position within the respondent, without any indication at all as to what work she may be required to perform and what skills she may be required to have to perform it. The submission was that any senior manager would express concerns about such a proposed move. The appellant said the respondent’s handling of this issue demonstrated a lack of proper managerial governance. She also referred to the respondent's treatment of Mr Robinson, about which he gave some evidence, in that regard.

206   As to the incident where the appellant declined to shake Mr Hassall's hand, she contended this could never be the basis of any form of criticism, let alone disciplinary sanction against her. The appellant maintained this was a basis for suspending her in 2015 and following also, Mr Hassall's purported dismissal of the appellant on 15 April 2015, which was acknowledged to have been made erroneously and without any proper authority. As to the failure to shake hands itself, the appellant maintained that even though Mr Hassall was never formally introduced to her, she did offer to apologise for not doing so, if any offence was taken.

207   In relation to the recorded messages which the appellant left for Mr Hassall (exhibit R8), she contended it was little wonder that she was upset and in the state of mind she was, due to her mistreatment by employees and officers of the respondent, during the investigation process. In any event, however, the further submission was made that given Mr Hassall was never called to give evidence by the respondent, and in view of the appellant's evidence that she saw no difficulty in her working with other employees of the respondent if she was to be successful in these appeals, then any suggestion that Mr Hassall could not work with the appellant, had no foundation on the evidence.

208   As to the submissions made by the respondent regarding the various grievances that the appellant lodged against other employees during the investigation and disciplinary processes, the appellant submitted that she should not be criticised for taking steps that she was properly entitled to take under the respondent's grievance management procedures. The appellant made the further point that despite progressing these matters, as at the time of giving her evidence, she still had no response to her various complaints except for one, which was resolved in her favour by Mr Stewart. It was therefore contended that the use of these processes by the appellant was no basis to now criticise her.

209   Other submissions were made. As to the suggestion by the respondent that the appellant's correspondence with various senior officers of the respondent displayed a lack of courtesy, a lack of concern and respect for others or was aggressive, this was said to be a particularly egregious submission. This was so as the appellant contended that none of these matters were put to her fairly and squarely when she gave evidence in these proceedings. In any event, it was contended that such allegations simply had no proper foundation. Furthermore, the appellant maintained that these submissions were directly contradicted by the evidence of Ms Tang,  who expressed very positive views about the appellant's character and her role as Director of the Academy. In a similar vein, was the opinion expressed by Mr Robinson, as to the abilities and skills of the appellant.

210   Also, the appellant noted that Messrs Cullen, Stewart, Murdoch, Rivalland and Robinson and Ms Kelly and Ms Sait, either no longer were employed by the respondent or no longer work at the Academy. Thus, even if there was any substance to the contentions advanced by the respondent concerning the workability of reinstatement, which was denied, the absence of those employees meant that any potential difficulties were no longer an impediment.

211   Finally, the appellant commented on the submission of the respondent that in some way she was a safety risk for the respondent. The submission was such a contention was completely without foundation as there was no evidence at all as to what risks could possibly be posed by someone such as the appellant. It was submitted that this contention advanced by the respondent, was not only unsupported by evidence of any specific incidents, from independent witnesses, but generally beggared belief.  Accordingly, the appellant submitted that if both appeals were upheld, then she sought an adjustment of the decision to quash or set aside her dismissal of 10 March 2016. Furthermore, she sought the quashing or setting aside of the reprimand and transfer to another level 8 position with the respondent, which would effectively restore her to the position of Director of the Academy.

212   We have carefully had regard to the evidence and the submissions in relation to adjusting the decisions of the respondent, considering the findings of the Appeal Board in these appeals.

213   The outcome of the first disciplinary process was that the appellant was informed by letter of 29 January 2015 (exhibit A1 pp 308-309) that she was to be reprimanded and transferred to a level 8 position within the respondent.  Mr Stewart, the then Executive Director Corporate Support, was to discuss possible positions with the appellant once she obtained a medical clearance to return to work. The appellant obtained a medical clearance to return to work from Dr Tay as set out in Dr Tay’s report dated 6 May 2015 (exhibit A1 pp 1337-1348). On the same day, the appellant informed both the respondent and Mr Stewart that she would be returning to work on 29 June 2015 after a period overseas, and would need to obtain security access etc. Mr Stewart responded to the effect that arrangements would be put in place (exhibit A10).

214   On her return from overseas, the appellant attended the respondent’s head office on 29 June 2015. However, she had to wait in the reception area of the respondent’s head office, as no security access had been granted to her. Mr McMahon, who happened to be passing through the reception, saw the appellant and queried what was occurring.  He arranged for Mr Stewart to collect the appellant and they both left the building for a cup of coffee. The appellant was informed that no return to work plan had been prepared however, it was intended that she do some work with a consultant as a “special project”.

215   Given the circumstances as outlined in Dr Tay’s report, for the appellant to engage on a graduated return to work plan, and the fact that the respondent had several weeks to prepare for the appellant’s return to work, for the appellant to arrive at the respondent’s head office on 29 June 2015 as previously advised, with plainly no return to work plan in place or any other arrangements having been made for that matter, was an unacceptably poor response by the respondent. This situation was completely at odds with the respondent’s stated intention of bringing the appellant back to the workplace to enable her to “to get her confidence back and then move to more challenging roles” (respondent’s written submissions par 184). In the circumstances, whilst the respondent was critical of the exchanges of correspondence between the appellant and Mr Stewart (see exhibit s A10, A11 and A12), they were professional and raised legitimate issues for consideration, from a senior manager of the respondent. This is particularly so when the whole idea seemed to be about giving the appellant a fresh start back at work.

216   We are also not persuaded that the reference to “restraining orders”, made by the appellant in one of her communications with Mr Stewart, when seen against Mr McMahon’s evidence on that issue, was a matter that was raised with any serious intent.  In any event, the return to work as recommended by Dr Tay and as was agreed by the respondent through Mr McMahon and Mr Stewart, was of course negated by the respondent’s sudden removal of the appellant from the workplace altogether on 3 July 2015 (see exhibit A13).

217   We are therefore not persuaded that the issue of the conduct of the appellant regarding her return to work plan was indicative of a breakdown in trust and confidence between the parties.

218   As to exhibit R8, being the recording of the telephone messages left by the appellant for Mr Hassall, we have dealt with this above when considering the evidence at pars 180-189. Given the circumstances leading up to those messages, and the appellant’s legitimate negative view of her treatment by the respondent as a part of the disciplinary process, we consider the incident should be seen in the same light as the upset displayed by the appellant in her telephone call to Mr Rivalland, on 1 April 2015. These events should also be seen in the same context as Mr McMahon clearly saw them, when giving his evidence. We are not persuaded they demonstrate as of now, an inability to restore a working relationship between the appellant and the respondent. Also, in the same vein, is the matter of declining to shake Mr Hassall’s hand.

219   As to the broad submissions of the respondent that the tenor of the appellant’s correspondence to the respondent reflected an aggressive or uncaring attitude by her towards other staff of the respondent, on balance, we do not accept this contention. As the appellant submitted, not only was this not put to her directly when giving her evidence, but also, such contentions need to be seen in the context of events as unfolding at the time. The appellant’s many written responses to the allegations against her, to the results of the investigations and responses to proposed penalties, were very detailed and professional, both in terms of content and tone. Likewise, in response to the suggestion of the respondent that the appellant posed some sort of safety risk, the broad assertions made in this respect by some of the respondent’s witnesses, were totally without any evidentiary foundation and were hearsay in nature.

220   As to character generally, Ms Tang and Mr Robinson, both former senior officers of the respondent and whom no longer have an association with the respondent and therefore had no vested interest in the outcome of these appeals, spoke very highly of the appellant’s character, professional competence and her positive relationships with other staff. Also, and in any event, as noted in the appellant’s submissions, the fact that staff of the respondent that were involved in the subject matter of these appeals, are either no longer employees of the respondent, or based at the Academy, mitigates against any possible level of discomfort in the re-establishment of an employment relationship between the appellant and the respondent.

221   It is also almost unnecessary to observe, that Mr McMahon’s misgivings as to the appellant returning to the workplace, were based on the findings of the investigations in respect of both the 2014 and 2015 allegations, which have now, save for one matter, been overturned. In particular, Mr McMahon placed considerable weight on the statement of Ms Sait to the investigator, which has been found to be wanting in a number of significant respects. To the extent that reference was made to requesting Ms Kelly to provide a statement, we have already noted that this was an error of judgement on the appellant’s behalf. We do not consider however, in the context of all of what was before the Appeal Board, that this incident should outweigh all other considerations.

222   We are not therefore persuaded the respondent has established that due to a lack of trust and confidence, or other relevant considerations, a working relationship between the appellant and the respondent should not be restored.

Conclusions

223   The Appeal Board has found that the allegations the subject of appeal PSAB 2 of 2015 have not been made out on the balance of probabilities. In relation to appeal PSAB 2 of 2016, the Appeal Board has found all but one of the allegations are not made out. For these reasons, the decision of the Appeal Board is that the decision of the respondent of 10 March 2016 to dismiss the appellant be adjusted by quashing it. Instead, the appellant should receive a formal reprimand, in respect of Allegation Four in PSAB 2 of 2016. As to PSAB 2 of 2015, the decision of the Appeal Board is that the decision of the respondent to formally reprimand and transfer the appellant to a level 8 position with the respondent is adjusted by quashing it.

224   Orders now issue.