APPEAL AGAINST THE DECISION TO TAKE DISCIPLINARY ACTION ON 16 APRIL 2018

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2019 WAIRC 00195

DELIVERED : MONday, 15 APRIL 2019

FILE NO. : PSAB 10 OF 2018

Appellant

AND

Director General of the Department of Justice

Respondent

Catchwords : Industrial Law - Appeal against decision of respondent to take disciplinary action - Whether conduct of appellant constituted breach of discipline - Whether penalty of reprimand and transfer to another position in the respondent was reasonable and proportionate - Whether respondent could rely on past disciplinary matter - Principles applied - Breach of discipline occurred - Reprimand to note appellant was acting with sound intentions - Appeal otherwise dismissed  

Legislation : Industrial Relations Act 1979 (WA)

  Public Sector Management Act 1994 (WA) ss 80, 80A, 82A, 80I, 81

Result : Order issued

Representation:

Counsel:

Appellant : In person

Respondent : Mr J Carroll of counsel

Solicitors:

Respondent : State Solicitor of Western Australia

Case(s) referred to in reasons:

Blyth v Birmingham Waterworks Co (1856) 11 Ex 781

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

Titelius v the Public Service Appeal Board (1999) 21 WAR 201

Case(s) also cited:

Anthony David Craig v The State of South Australia (1995) 184 CLR 163

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Briginshaw v Briginshaw (1938) 60 CLR 336

Reasons for Decision

The appeal and background

1         The appellant is employed by the respondent and at the material times was a Relief Customer Service Officer. The appellant has been employed by the respondent for about 35 years. In June 2017 the appellant was working at the Fremantle Magistrates Court. At the time, he was undertaking training as a Judicial Support Officer (JSO). Following a civil trial, the presiding Magistrate requested the appellant to type up his reserved reasons for decision.  In the course of doing so, on 14 June 2017, the appellant made telephone contact with a witness who gave evidence in the trial, to clarify his evidence that he gave in open court.  In reliance on information provided to him, the appellant altered and included additional information in the draft reasons for decision prepared by the Magistrate.

2         Subsequently, the appellant was subject to disciplinary proceedings under the Public Sector Management Act 1994.  On 16 April 2018, having found a breach of discipline occurred, the respondent imposed a penalty on the appellant by way of a reprimand and a transfer to another position.

3         The appellant now appeals against the disciplinary action and the imposition of the penalty.  The appellant contended that the conduct involved did not warrant a finding of a breach of discipline and was the result of an honest and mistaken belief about his course of action. The appellant maintained that he was not negligent in the performance of his duties.  The appellant maintained that the appropriate response of the respondent should have been remedial action by way of further training.  Additionally, the appellant complained that the respondent’s reliance on a previous disciplinary matter in 2016 was inappropriate, as that matter was the subject of mediation before the Commission and a settlement.  The appellant seeks an order that the finding of a breach of discipline and the imposition of a penalty be quashed.  In the alternative, if the breach of discipline finding is to be sustained, the appellant maintained that improvement action should be imposed instead. The respondent maintained that the conclusion of a breach of discipline was justified on the facts and that the penalty imposed in all of the circumstances, was fair and reasonable.

Approach to the appeal

4         In Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525, the Appeal Board affirmed the approach to appeals of the present kind, as set out in Raxworthy v the Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266.  That being, as an appeal, the appeal board is given greater scope to substitute its view for that of the employer and the hearing is in the nature of a hearing de novo, based on all the evidence and submissions before the appeal board. It is of course, for the appellant to make out his appeal, and to persuade the appeal board that the decision taken by the respondent should be “adjusted”: s 80I(1) PSM Act.

Factual issues

5         The parties to the appeal have agreed that the essential facts are not in dispute.  The fact of the appellant making contact with a witness who appeared in the civil proceedings, after the conclusion of the trial and the reservation of the Magistrate’s decision, was admitted.  Also admitted was that the appellant did, in reliance on this information, alter the draft typed reasons of the Magistrate as they were being prepared by the appellant. What is in issue on this appeal, is whether the admitted conduct constituted a breach of discipline in all of the circumstances and if it did, whether the penalty of a reprimand and a transfer to another position, was a reasonable and proportionate response to that conduct.

6         In light of those observations, the essential facts are these.  They are taken largely from the correspondence to and from the appellant and his union, as set out at annexure A to the respondent’s notice of answer, which correspondence was tendered as exhibit R1. The appellant was working as a trainee JSO for a Magistrate at Fremantle Magistrates Court. As noted earlier, at the conclusion of a civil action, the Magistrate reserved his decision in the matter.  Subsequently, the Magistrate gave the appellant a written draft of his reasons for decision to be typed.  The Magistrate told the appellant to type exactly what he had written however, corrections could be made in relation to any obvious errors of syntax or grammar. As he was typing the Magistrate’s reasons, the appellant noticed that reference was made to evidence given by a witness, who was described as the managing director of a business, only described by its business name. The appellant, from his own knowledge, that a person could not be a managing director of a business name but only a corporation, searched for any reference to the relevant corporation on the court file but found none.  The appellant then went to discuss the matter with the Magistrate who was not then available in his Chambers.  Because of what the appellant described as expectations to complete the task in a timely fashion, he located the phone number to contact the witness on the court file.  The appellant telephoned the witness, spoke to him and asked him the name of the company of which he was the managing director.  The witness told the appellant the name of the company following which the appellant ended the telephone call. The appellant made a file note of the telephone conversation and put it on the court file.  A copy of his file note was exhibit A5.

7         Following the telephone call, the appellant altered the Magistrate’s draft reasons he was typing by inserting the name of the company as given to him by the witness over the telephone.

8         Resulting from these events, by letter of 17 August 2017, the appellant was alleged to have committed two breaches of discipline. The relevant parts of the letter, formal parts omitted, are as follows:

ALLEGED BREACHES OF DISCIPLINE

Pursuant to section 81 (1)(a) of the Public Sector Management Act 1994 (PSM Act) I inform you that I have become aware that you may have committed breaches of discipline.

It has been alleged that on 14 June 2017 you had undertaken activities that were outside the role and responsibilities of your duties, in relation to a civil matter in the Fremantle Magistrates Court, without instruction or authority to do so.

Allegations

As a result of this conduct, it is alleged that:

1. On 14 June 2017 you contacted a witness to a matter before Magistrate Malley, acting outside of your duties as Relief Customer Service Officer, without authority to do so.

This act is contrary to the principles of conduct prescribed under Paragraph 2 of the Department of the Attorney General's Code of Conduct (Attachment 1) and Paragraph 1 of Commissioner's Instruction No 7- Code of Ethics (Attachment 2). It is alleged that your actions further constituted an act of misconduct under section 80(c) of the PSM Act.

2. On or around 14 June 2017 you altered and included additional information in a reserved decision of Magistrate Malley, acting outside of your duties as Relief Customer Service Officer, without authority to do so.

This act is contrary to the principles of conduct prescribed under Paragraph 2 of the Department of the Attorney General's Code of Conduct and Paragraph 1 of Commissioner's Instruction No 7- Code of Ethics. It is alleged that your actions further constituted an act of misconduct under section 80(c) of the PSM Act.

It is alleged that the above actions constitute a breach of discipline under sections 80(b) and 80(c) of the PSM Act. I have enclosed a copy of these sections of the PSM Act (Attachment 3).

Procedural Fairness

I have decided to deal with this as a disciplinary matter under section 81 (1 )(a) of the PSM Act. In accordance with the PSM Act and the Commissioner's Instruction No. 3, Discipline - general (Attachment 4) you are provided with an opportunity to submit a written response in respect of the above matter.

What you need to do

If you wish to provide me with a written explanation, please do so within 10 working days from receipt of this letter. Your submission is to be marked "PRIVATE AND CONFIDENTIAL" to the attention of Ms. Tracey Bell, Director Human Resources, Department of Justice, PO Box F317, Perth, WA 6841.

If no response is received by the due date I will make a decision on what further action is to be taken on the information I currently have.

I may decide to further investigate the matter. If so you will be informed of this decision and what that investigation will entail. Alternatively, I may decide on the basis of the information I have to hand, that I can make findings on whether or not you have committed the breaches of discipline set out above without further investigation.

Possible action

If I find that you have committed a breach of discipline section 82A(3)(b) of the PSM Act provides that I may take:

a)  disciplinary action; or

b)  both disciplinary action and improvement action; or

c)  improvement action only; or

d)  take no further action.

I enclose a copy of the definition of "disciplinary action" in section 80A of the PSM Act (Attachment 5) and a copy of the definition of "improvement action" in section 3 of the PSM Act (Attachment 6).

As you will see the actions that may be taken range from counselling to dismissal and combinations of actions may be taken. If I provisionally decide to take any of the actions set out above you will be given an opportunity to comment before I do so.

9         In his defence, the appellant maintained that he acted honestly and without any intention to do the wrong thing.  Indeed, he said that at the time he was trying to do the right thing by seeking to clarify and correct what he described as a “legal impossibility”.  As a part of his actions, the appellant referred to the Magistrates Court’s Registry Process Area document, which he said provided guidance to him in making contact with the witness to clarify the matter of the company name.  As for the alteration of the draft reasons of the Magistrate, the appellant maintained that he was relatively new to the task of preparing reasons for decision but in any event, the Magistrate would always check and approve the decision, prior to it being handed down.

10      Subsequently, by letter of 15 December 2017, the respondent made findings of a breach of discipline and informed the appellant that it proposed to take disciplinary action by way of a formal reprimand and transfer to another position within the respondent.  In reaching this decision, the respondent noted that the appellant had a previous breach of discipline in May 2016 when it was found that the appellant, on that occasion also, had acted outside of the scope of his position without authority.  After hearing further from the appellant’s union, by letter of 7 February 2018 the respondent modified its allegations against the appellant, from misconduct under s 80(c) to negligence and carelessness under s 80(d) of the PSM Act.  By further letter of 2 March 2018, the appellant was found to have so acted and the penalty as proposed was confirmed. 

Consideration

11      As mentioned above, the essential facts in this matter are not in dispute. The appellant does not dispute that he did in June 2017, contact a witness who gave evidence in civil proceedings before a Magistrate, after the trial had concluded.  It was also not in dispute that as a result, the appellant did alter a draft of a decision he was typing for the Magistrate. The real issue arising on the appeal is how should this conduct be characterised and whether, it could form the basis of a conclusion of a breach of discipline under ss 80(b) and (d) of the PSM Act. Secondly, if the conduct did warrant a breach of discipline finding, whether the disciplinary action imposed under ss 80A and 82A of the PSM Act was warranted. Thirdly, and related to the second point, is whether it was open for the respondent to have regard to the appellant’s prior disciplinary history arising from his conduct in May 2016.

12      Sections 80(b) and (d) provide as follows:

80. Breaches of discipline, defined

An employee who — 

…

(b) contravenes — 

(i) any provision of this Act applicable to that employee; or

(ii) any public sector standard or code of ethics;

or

…

(d) is negligent or careless in the performance of his or her functions; or

13      The appellant in his submissions denied that he was negligent or careless in the performance of his duties.  He submitted that it had been some years since he had been working in the Court’s criminal jurisdiction and he was sent to the Fremantle Court for an eight-week placement to learn the role of a Court Support Officer. The appellant had prior experience as a JSO in the restraining order court.  The appellant submitted that prior to going to Fremantle, his manager gave him a copy of the JSO Induction Manual (exhibit A4), which the appellant said did not contain any reference to the procedure for typing up Magistrates’ reserved decisions.

14      On the day in question, the appellant said that he had been typing the decision for the Magistrate and noticed that the reference to the business of which the witness was the managing director, was described only by its business name. When it became known that the appellant had contacted the witness, the Magistrate, according to the appellant, was upset by his conduct and this led to him being removed from court work and the subsequent commencement of the disciplinary action. A report of the incident is contained in a memorandum to the respondent’s Director-General Dr Tomison, dated 26 June 2017. A copy of this memorandum was exhibit A5. To the extent that the report contains reference to matters beyond the admissions made by the appellant in the documents in evidence in these proceedings, I have not had regard to it.  The memorandum has annexed to it the file note dated 14 June 2017, placed on the court file by the appellant, which recorded contacting the witness after the conclusion of the trial and prior to the delivery of the Magistrate’s decision. 

15      Whilst the appellant maintained that he acted in good faith and in accordance with the only procedure he then knew may be applicable, that being the Magistrate Court’s Registry Process Area Procedure (see attachment 1 to the respondent’s notice of answer), this procedure only applies to documents lodged in the Court’s Registry.  Additionally, the fact that the appellant went to see the Magistrate to clarify what he should do in the situation he found himself in, strongly suggests that this was not a straightforward situation.  Despite not being able to discuss the matter with the Magistrate, and also that the reserved decision in the case was not due to be handed down until 5 July 2017, the appellant went ahead and made contact with the witness and obtained an out of court statement from him. This was a significant error of judgement. It is a foundational principle that a court or tribunal must determine matters based on the evidence and submissions made in open court. The position of a JSO includes the duty of providing support to a Magistrate in and out of court.  Self-evidently, contacting a witness who gave evidence in a civil trial after the conclusion of the trial and before a reserved decision is delivered, goes well beyond the scope of a JSO’s role.

16      The appellant took issue with the respondent’s conclusion that his actions had the potential to lead to a negative impact on the respondent. The tenor of the appellant’s submissions in this respect, was to the effect that there was no suggestion of any actual damage and therefore, the respondent should not have relied on this ground in coming to its decision. The respondent acknowledged that there was no actual damage in its letter of outcome dated 2 March 2018.  However, the potential for a negative impact on the respondent and the Magistrate concerned, is clear. It may have seemed to a reasonable outside observer, being aware of what had occurred, that despite the obligation on a judicial officer to hear and determine a case based on the submissions and evidence put in open court, that the Magistrate had taken into account and relied on information and material informally obtained, outside of the hearing and without the knowledge of all the parties to the proceedings. This clearly had the potential to reflect adversely on the Magistrate concerned, and more broadly, the respondent.

17      As to the question of alterations to the Magistrate’s draft reasons, this cannot be divorced from the conduct of contacting the witness. To an extent, they go hand in hand. It was the case that the appellant was instructed to type what the Magistrate had written. Any modifications of substance would be for the Magistrate to make. No such modifications could be properly made without the Magistrate’s instructions to do so. In making the change, which the appellant made, he went well beyond the correction of spelling and grammatical errors.  It was a change of substance to the Magistrate’s reasons, even though they were still in draft form.

18      As part of the appellant’s case, it was put, in reliance on Titelius v the Public Service Appeal Board (1999) 21 WAR 201, that having regard to the meaning of “negligence” as discussed in that case (per Malcolm CJ at pars 70-71), the appellant’s conduct in contacting the witness could not be so characterised.  The appellant also contended that “carelessness” for the purposes of s 80(d) of the PSM Act, means that he had to do something wilfully, whilst also being aware that it was done not in accordance with a standard he was trained for.

19      For the purposes of s 80(d), the words “negligent” and “careless” bear their ordinary and natural meaning. In its ordinary meaning “negligent” means “… Inattentive to what ought be done; … of actions, conduct etc … displaying negligence or carelessness …” “careless” is defined to mean “… 3. Not taking due care, negligent, thoughtless, inaccurate”: Shorter Oxford Dictionary.  I do not consider that these ordinary meanings are at odds with the references made in Titelius. It certainly comprehends an action or behaviour “which a reasonable man would not do …”:  Blyth v Birmingham Waterworks Co (1856) 11 Ex 784 cited by Malcolm CJ in Titelius above.  In the context of the role of a JSO, and given the instructions to the appellant to type only what the Magistrate had written in his draft reasons, I do not think it was reasonable for the appellant to make contact with the witness, obtain an out of court statement from him and to then incorporate the content of the statement into the Magistrate’s draft decision.

20      Having regard to the circumstances of this case, I am not able to conclude that the respondent’s decision, that the appellant did commit a breach of discipline, was unreasonable or was not reasonably open to it.

21      Moving to the issue of the penalty imposed, a range of options were open to the respondent on a finding of a breach of discipline. Under s 82A(3)(b) of the PSM Act, on a finding of a breach of discipline, an employer may take disciplinary action, improvement action, both actions, or take no further action. In this case, the appellant contended that if the respondent’s breach of discipline finding stood, then the appropriate action would be improvement action. This is because the appellant maintained that the matter was one of training. 

22      Had this been a one-off incident, there may have been some merit in this contention. However, a previous breach of discipline incident was recorded against the appellant in May 2016, where it was found that the appellant also acted outside of the scope of his authority. Whilst the appellant made submissions about this prior incident, and sought to explain the circumstances of it, this appeal is not for the purposes of re-hearing the circumstances of the earlier matter.  Whilst in that matter, the fine originally imposed on the appellant was withdrawn following mediation, the reprimand remained on the appellant’s file. It was reasonable for the respondent to have regard to this in its deliberations as to the appropriate penalty in this matter. 

23      I note that for the purposes of s 80A of the PSM Act, the penalty of a reprimand is the lowest level of penalty that may be imposed.  A transfer to another office, post or position, can be regarded as a “middle order” penalty, short of the more serious penalties of a reduction in remuneration or classification and dismissal, as being the most serious. Having regard to the overall circumstances of the appellant’s actions, in conjunction with the prior incident in May 2016, I do not consider that the penalty imposed by the respondent was harsh or excessive, such that the Appeal Board should intervene and adjust it.

24      However, the Appeal Board acknowledges that the appellant’s consistent stance throughout the disciplinary process, was that he did not act with any malintent. He considered that at all material times he was doing the right thing. In my view, this is a qualification that should be made to the appellant’s reprimand for the purposes of his employment record. In all other respects the appeal must be dismissed.