APPEAL AGAINST DECISION TO TAKE REMOVAL ACTION ON 16 NOVEMBER 2020

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00050

DELIVERED : TUESday, 8 FEBRUARY 2022

FILE NO. : APPL 63 OF 2020

Appellant

AND

Director-General Department of Justice

Respondent

Catchwords : Industrial law (WA) - Removal of prison officer - Appeal against removal - Loss of confidence by respondent - Proper name of respondent - Relevant principles to apply to the appeal - Principles applied - Appeal dismissed

Legislation : Police Act 1892 (WA)

Prisons Act 1981 (WA) s 13, s 13(1), s 13(3), s 101(a), s 101(b), s 101(c), s 102(1), s 104(1), 104(2), s 106, s 106(1), s 106(2), s 107(4)(a), s 107(4)(b), s 108

Prisons (Officers Drug and Alcohol Testing) Regulations 2016 (WA) reg 24

Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : In person

Respondent : Mr S Pack of counsel

Case(s) referred to in reasons:

Adib Abdennabi v The Commissioner of Police WA Police [2020] WAIRC 00859; (2020) 100 WAIG 1464

Carlyon v Commissioner of Police [2004] WAIRC 11966; (2004) 85 WAIG 708

Hawthorn v Minister for Corrective Services [2019] WAIRC 00302; (2019) 99 WAIG 1542

Lee v Western Australia Police Force [2021] WAIRC 00481; (2021) 101 WAIG 1294

McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006

Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477

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

Reasons for Decision

THE COMMISSION:

Background

1         The appellant was engaged as a prison officer under s 13 of the Prisons Act 1981 (WA).  At the time of the events relevant to these proceedings, the appellant was based at Hakea Prison.  On 18 July 2020, whilst on duty, the appellant was the subject of a targeted drug test. The targeted drug test was authorised in accordance with the Prisons (Officers Drug and Alcohol Testing) Regulations 2016 (WA).  A urine sample, obtained from the appellant, returned a presumptive positive result for methamphetamine and amphetamine.

2         In accordance with the procedures specified in the Regulations, the appellant was provided an opportunity to explain the presumptive positive test result.  In his interview with officers of the respondent, the appellant denied that he deliberately ingested methamphetamine or amphetamine. He did admit to being in the presence of a person who he suspected had been smoking methamphetamine, about three days prior to the drug test.  The appellant also indicated during the interview that he thought that many prison officers associated with regular drug users.

3         The appellant’s urine sample was the subject of laboratory testing. In a toxicology report prepared by Safework Laboratories dated 21 July 2020 (see pp 27-32 respondent’s Bundle of Documents) the test result was confirmed as consistent with the ingestion of a standard dose of methamphetamine.  It was estimated that the appellant’s oral ingestion of methamphetamine occurred between 24 and 48 hours prior to the specimen being collected.  Furthermore, the toxicology report concluded that the test result was not consistent with environmental or passive exposure to methamphetamine, nor with medications the appellant said he was taking at the time.  The toxicology report indicated that the level of impairment of executive function of the appellant, given the level of methamphetamine detected, would be significant.  Additionally, the report also concluded that the amphetamine/methamphetamine ratio in the test sample result for the appellant, being approximately 23.7%, was consistent with oral methamphetamine use.

4         As a result of the toxicology report and the interview with the appellant, the respondent commenced loss of confidence proceedings in accordance with s 102(1) of the Prisons Act.  After considering the appellant’s written response to the Notice of Loss of Confidence, the appellant was removed as a prison officer effective on 18 November 2020.  The appellant now appeals against his removal under s 106 of the Prisons Act.

Reasons for removal

5         The reasons for the appellant’s removal as a prison officer on the grounds of loss of confidence were set out in the respondent’s Decision Notice dated 16 November 2020.  The grounds for removal were as follows:

(a) Ground 1 - There is significant inconsistency between your explanation of why you tested positive to amphetamine and methamphetamine and the opinion expressed in the toxicology report.  The differences relate particularly to the timeframe you have provided for ingestion of the drugs and the environmental explanation you have offered for your ingestion of the drugs.  Your explanations lack credibility and cause me to form a suspicion that you are using illicit drugs yourself.

(b) Ground 2 - There is significant inconsistency between your explanation of why you tested positive to amphetamine and methamphetamine and the opinion expressed in the toxicology report.  The differences relate particularly to the timeframe you have provided for ingestion of the drugs and the environmental explanation you have offered for your ingestion of the drugs.  Your explanations lack credibility and cause me to form the view that you have been dishonest in explaining the results of your drug test.

(c) Ground 3 - You admit to socialising with associates outside the workplace who you believe are in possession of and use illicit drugs, including both the woman who was present in the room who you believe was smoking methamphetamine and, as I read your answer in the interview, you knew that your ex-partner used or uses methamphetamine as her 'drug of choice'.

(d) Ground 4 - As a prison officer, you demonstrate a highly dismissive attitude towards your associations with drug users, saying "there's probably a lot of prison officers in here who know people who are using [methamphetamine]".  This causes me to suspect that you are actively engaged in a lifestyle that is inextricably linked to illegal drug possession and use.

The appeal

6         The notice of appeal as filed contained no grounds of appeal.  Rather, attached were various documents, including a copy of the respondent’s Decision Notice in relation to the loss of confidence process, confirming the appellant’s removal, which was dated 16 November 2020. Following directions from the Commission, the appellant filed a document described as ‘Amended Grounds of Appeal’.  In it, the appellant set out various bases as to why he contended that his removal as a prison officer was unfair and harsh.

7         The appellant contended that his removal was unfair because the drug testing undertaken by the respondent was performed incorrectly and with less scrutiny in comparison to drug testing conducted on a prisoner within a prison.

8         Secondly, the appellant maintained that his removal was harsh, on the grounds of the incorrect testing procedure.  Furthermore, the appellant contended that the respondent erroneously made assumptions about his lifestyle and that his name has been ‘slandered’ throughout the prison staff.  The appellant contended that he was not dishonest in explaining the results of his positive drug test result.  Additionally, the appellant contended that he never stated that he socialised with persons using drugs.  Rather, his comment was to the effect that drug usage is so common it is difficult to not be around people who do so at some point.  The appellant also asserted that the respondent had no right to tell a prison officer what they may do in their private time and made various assertions that other prison officers consume illicit drugs.

9         The appellant also denied that he engaged in a lifestyle linked to illicit drug possession and usage, and the respondent has made assumptions about his lifestyle and behaviour, as a part of its decision to remove him.  Finally, the appellant referred to the impact of his removal on himself and his family, due to his loss of income and the need to find other employment. The appellant contended that this added to the unfairness of his removal.

10      In this appeal, which is the first appeal of this kind under s 106 of the Prisons Act, two preliminary issues arise.  The first issue is the proper name of the respondent.  The second issue is the approach that the Commission should take to determining the appeal.  We turn to the first issue now.

Proper name of the respondent

11      The named respondent is the ‘Department of Justice’. At the outset of the proceedings, the Commission considered the name should be corrected to ‘the Director-General, Department of Justice’.  The reasons for this now follow.

12      A prison officer such as the appellant, is appointed by the responsible Minister under s 13(1) of the Prisons Act.  Division 3 of Part X of the Prisons Act deals with the removal of prison officers due to a loss of confidence.  By s 100(1)(a) to (c), the terms of Subdivision 2 are set out.  It applies in circumstances where the Chief Executive Officer of the respondent does not have confidence in a prison officer’s suitability to continue as a prison officer.  The subdivision extends to circumstances where the Chief Executive Officer decides not to take or continue to take disciplinary action under the Public Sector Management Act 1994 (WA) against a prison officer and takes removal action instead.  However, in the case of a prison officer such as the appellant, engaged under s 13(1), the consent of the responsible Minister must be obtained to take removal action.

13      Under s 101(1), in the event that the Chief Executive Officer loses confidence in a prison officer, the Chief Executive Officer may take removal action.  As noted immediately above, in the case of a prison officer engaged under s 13(1) of the Prisons Act, the power of the Chief Executive Officer is to recommend to the responsible Minister that the prison officer be removed.  Under s 102, a notice of loss of confidence may be given by the Chief Executive Officer to a prison officer, which sets out the grounds of the Chief Executive Officer’s loss of confidence.  The prison officer may make a written submission in response to the Chief Executive Officer, following which the Chief Executive Officer is required to decide whether or not to take removal action.  Notably too, under ss 104(1) and (2) of the Prisons Act, the Chief Executive Officer may withdraw the removal action or revoke the removal.

14      Under s 106(1), a prison officer may lodge an appeal to the Commission against the removal decision on the ground that the decision was harsh, oppressive, or unfair.  The ‘removal decision’ is, by s 99, the decision of the Chief Executive Officer to take removal action.  The notice of appeal is to be directed to the Chief Executive Officer under s 106(2).  Importantly, and arguably conclusively, under s 106(5), it is provided that the only parties to the appeal are the prison officer and the Chief Executive Officer.  Aside from the receival of, and acting on, a recommendation to remove a prison officer, the Minister plays no part in the removal process established under Division 3 of Part X of the Prisons Act.  The Chief Executive Officer takes all of the steps that may be taken under these provisions in his own capacity, and not as a representative or delegate of the Minister.

15      Having regard to the preceding provisions of the Prisons Act, we conclude that the appropriate respondent for the purposes of appeals of the present kind is the ‘Chief Executive Officer’ as defined in s 3(1) of the Prisons Act, being the Chief Executive Officer of the Department of the Government principally assisting the Minister with the administration of the Prisons Act, that being the Department of Justice.  In this case, the office undertaking these responsibilities is the Director-General. Accordingly, the proper named respondent is the ‘Director-General, Department of Justice’.

Approach to the disposition of the appeal

16      The second preliminary issue arising is the approach that the Commission should take in determining appeals from loss of confidence removals under the Prisons Act.  As set out in the respondent’s written outline of submissions, the loss of confidence removal provisions in the Prisons Act were modelled on the loss of confidence and appeal provisions for police officers under the Police Act 1892 (WA).  In the Second Reading speech in Parliamentary debates in relation to the Custodial Legislation (Officers Discipline) Amendment Bill 2013, the then Minister for Corrective Services, in dealing with the loss of confidence process, said:

The loss-of-confidence provisions in the bill mirror section 8 and part IIB of the Western Australian Police Act 1892.  The introduction of these provisions will enable the Department of Corrective Services to assure the public that although its prison and custodial officers hold very special powers, these powers are matched by very special standards of integrity and accountability and the requirement to act in a way that is above reasonable suspicion and reproach.  The introduction of loss-of-confidence powers will enable the Commissioner of Corrective Services to use a fair and straightforward process to promptly remove those very few officers whose incompetence, criminality, corruption or lack of integrity is such that he has lost confidence in their suitability to remain in office.

(Hansard 20 November 2013 pp 6294 - 6296)

17      As noted above, the substantive amendments to the Prisons Act to introduce the loss of confidence and appeal provisions for prison officers are contained in Division 3 of Part X.  The provisions dealing with the removal of prison officers are very similar to those for the removal of police officers.  Likewise are the appeal provisions in Subdivision 3, setting out the right of appeal to the Commission, the proceedings on appeal, new evidence on an appeal and other matters. The provisions dealing with the decision of the Commission and remedies that may be granted on a finding of a harsh, oppressive, or unfair removal, are virtually the same as those under the Police Act.

18      In his submissions, the respondent has outlined the relevant tests applied by the Commission in relation to loss of confidence and appeal provisions for police officers under the Police Act.  The overarching submission was that given the need for integrity, honesty, and competency required of prison officers under the comparable provisions of the Prisons Act, then the same approach should be adopted by the Commission in cases of the present kind, as is adopted in relation to police appeals.  It was also submitted that the Chief Executive Officer of the Department of Justice, as the respondent, is in the same position as is the Commissioner of Police. The Chief Executive Officer has a statutory responsibility to manage, control and ensure the security of prisons and the safe custody and welfare of prisoners. In order to perform these functions, the respondent submitted that he needs to ensure that prisons are staffed by prison officers whose integrity, honesty, competence, performance, and conduct can be relied upon, and in whom the community can maintain trust and confidence.  As with police officers, the respondent submitted that the standard of behaviour expected by the community for prison officers is also high.

19      Prison officers exercise significant statutory powers, including the use of force in relation to prisoners under their care and control in a prison: Hawthorn v Minister for Corrective Services [2019] WAIRC 00302; (2019) 99 WAIG 1542.  In commenting on the nature of the responsibilities of prison officers, in Hawthorn, Kenner SC (as he then was) said at [105]:

It goes without saying in my view, that as with police officers, prison officers are in a position of trust.  They are able to exercise substantial powers under the Prisons Act, including the use of force, in relation to prisoners under their supervision.  They do so in an environment largely away from public scrutiny.  Thus, the respondent, and the CEO under the Prisons Act, must be able to rely on the integrity and honesty of officers in the discharge of their duties.  The respondent must be able to have a high level of trust and confidence in an officer.

20      In our view, given the nature of the work of prison officers in the community, and the responsibilities of the Chief Executive Officer under the Prisons Act, and the expectations of the community to require prison officers in this State to discharge their duties to a very high standard, it is only appropriate that the approach adopted by the Commission to appeals against removals of police officers under the Police Act, be adopted in proceedings of the present kind.

21      Ultimately, the test is whether, having regard to the circumstances of a particular case, and in the overall context of whether a removal is harsh, oppressive or unfair, it was open to the Chief Executive Officer to lose confidence in a prison officer by reason of their integrity, honesty, competence, performance, or conduct: Lee v Western Australia Police Force [2021] WAIRC 00481; (2021) 101 WAIG 1294 at [37] - [40], citing and applying the decision of the Commission in Carlyon v Commissioner of Police [2004] WAIRC 11966; (2004) 85 WAIG 708.  Furthermore, we adopt and apply the approach taken to the application of the relevant statutory provisions in determining whether the removal of a police officer is harsh, oppressive, and unfair, in cases such as McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006; Polizzi v Commissioner of Police [2014] WAIRC 00302; (2014) 94 WAIG 477; and Adib Abdennabi v The Commissioner of Police WA Police [2020] WAIRC 00859; (2020) 100 WAIG 1464.

22      As has been stated by the Commission in appeals against the removal of police officers, despite a loss of confidence by the Commissioner of Police, the removal of an officer may still be unfair, applying the test of industrial fairness in Undercliffe Nursing Home v The Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.  Importantly however, as was emphasized in Carlyon at [182] to [188], the industrial principle of a ‘fair go all around’, must be applied in the context of the relevant statutory provisions, especially the special nature of (in that case), the relationship between the Commissioner of Police and a police officer.  Likewise, in this case involving a prison officer, particular regard must be had to s 107(4)(b) of the Prisons Act.

23      Accordingly, the above approach will be adopted in the determination of this appeal.

Admission of new evidence

24      In accordance with s 108 of the Prisons Act, the Commission granted the appellant and respondent leave to tender new evidence by consent.  The appellant’s new evidence was a letter dated 17 April 2020 from Mr Keith Woods, a clinical psychologist, of Base Psychology, to Superintendent Hedges at the Eastern Goldfields Regional Prison.  The second item of new evidence was a series of ‘screenshots’ in relation to drug test sampling procedures, taken from the internet.  For the respondent, the new evidence consisted of witness statements of Nigel Mark Squirres, a Senior Investigator at the respondent; a witness statement of Victoria Baylem, the Principal Drug and Alcohol Testing Officer at the respondent; and a witness statement of Catherine Bennett, a Senior Drug and Alcohol Testing Officer employed by the respondent.

Consideration

Drug testing procedure

25      The procedure undertaken by the respondent in testing the appellant at Hakea Prison on 18 July 2020 was the subject of evidence by Ms Bennett and Mr Squirres. Ms Bennett has completed the Australian Quality Training Framework approved course in specimen collection for testing for drugs of abuse.  She is a designated approved sample collector under the Regulations.

26      Ms Bennett said she attended at Hakea Prison in the company of Mr Squirres at a about 10.00 am on Saturday 18 July 2020.  The purpose of the attendance at the prison was to conduct an authorised targeted drug test on the appellant.  Both she and Mr Squirres spoke to the appellant and informed him that he was required to provide a urine sample for drug testing purposes under the Regulations.  Ms Bennett said that the appellant agreed to the testing process and that he signed a form to this effect.  A ‘SureStep Urine Cup’ was used by the appellant, from a sealed testing kit taken into the prison by Ms Bennett.  The cup remained sealed in its plastic bag and was placed on the table in the meeting room where the appellant was present.

27      Mr Squirres said that prior to the test, he inspected the male toilet facilities where the appellant was to provide his sample.  He cleaned the toilet and used ‘toilet blue’ in the toilet water, so that the water in the toilet bowl could not be used to dilute the test sample.  Mr Squirres said that the appellant came into the meeting room and Ms Bennett explained the testing procedure.  Mr Squirres then put on gloves and took the testing cup, still in its bag, to the toilet area with the appellant.

28      The appellant did not wear gloves and Mr Squirres said there was not a requirement for him to do so.  The appellant washed his hands with soap and water.  Mr Squirres unwrapped the testing cup and gave it to the appellant.  The appellant entered the toilet in the view of Mr Squirres and gave a urine sample.  Once the sample had been given, the appellant returned the sample cup to Mr Squirres who accompanied the appellant back to the meeting room.

29      Mr Squirres handed the sample cup to Ms Bennett, who said she saw it had a sample of urine in it.  She activated the cup by removing the sticker on the device and inserting a key into the cup, which releases a portion of the sample into a separate chamber.  Ms Bennett said this small chamber is separated from the main sample and there can be no contamination.  Ms Bennett said that the sample test in the separate small chamber showed a presumptive positive test result for amphetamine and methamphetamine.  She said that she showed the appellant the result and took a photo of it.

30      Once this was done, Ms Bennett then said she started the process to split the urine sample.  This involved the use of two test tube like ‘vacuettes’ and a straw like device.  First, Ms Bennett drew a sample from the main chamber of the cup into the first vacuette.  The second vacuette was also filled.  Chain of custody procedures were then completed.  Ms Bennett said all of the above steps were done in accordance with the relevant Australian Standard, that being AS/NZS403:2008 Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine.  The appellant witnessed Ms Bennett taking these steps and signed the relevant documents in relation to sample collection procedures and the chain of custody.

31      Ms Baylem explained the usual procedure for administering a random drug test of prison officers. Prior to being employed by the respondent, Ms Baylem worked for the Western Australian Police in a similar capacity and she is familiar with relevant testing procedures.  Ms Baylem described the procedure to prepare the toilet for a test, as undertaken by Mr Squirres.  Ms Baylem described the SureStep Urine Cup method of testing, and that whilst the prison officer must wash their hands, they are not required to wear gloves, which is consistent with the Australian Standard.  The testing officer does wear gloves.

32      Ms Baylem then outlined the process for the initial test, followed by the splitting of the sample.  Once the relevant forms are signed, the samples and the completed forms are then placed in a biohazard bag.  Whilst Ms Baylem said she had no experience in conducting drug tests on prisoners, she understood that there may be some differences in procedure.

33      The appellant contended that the drug testing performed on him at Hakea Prison differed to the procedures used for tests on prisoners.  For prisoners, this involves the person being tested wearing gloves and urinating into a cup.  Urine is then poured into a test which is then activated.  A further sample is then obtained from the cup and is sealed and sent to the laboratory for testing.  The original test sample is then frozen.  As noted above, the new evidence document relied upon by the appellant, tendered as exhibit A2, is seemingly an extract from a document on the internet from an organisation called ‘Progressive Diagnostics’.  In part, the appellant relied upon this to suggest that the urine specimen should be split into a ‘test specimen’ and a ‘referee specimen’.  Both are sealed in the presence of the donor.  One specimen can be made available for independent laboratory testing if required.

34      We are not, to any extent, persuaded that the testing procedures undertaken by the respondent were unfair or non-compliant with the Australian Standard. The Australian Standard sets out procedures for the collection of urine samples, on site screening and the handing and dispatch of specimens for laboratory testing.

35      Contrary to the appellant’s contentions, there is nothing in the Australian Standard to require the donor to wear gloves.  Handwashing is required which occurred in this case.  Secondly, there is no real difference between the SureStep Urine Cup process involving initial testing in a separate chamber, followed by the splitting of the sample into two vacuettes, which are then sealed and sent for testing and the process outlined by the appellant for testing prisoners.  In any event, the SureStep Urine Cup procedure is plainly compliant with the Australian Standard.  Appropriate chain of custody procedure was followed in this case, all in the presence of the appellant.  The appellant signed the relevant specimen collection and chain of custody documents. These documents contained a declaration that the specimens accompanying the documents were his own and that those sent for further testing were sealed in his presence and the information contained on the chain of custody form was correct.

36      We therefore consider it was entirely reasonable for the respondent to rely upon the testing procedure and the test results in relation to the appellant’s urine drug test at Hakea Prison, as it did in this case.  The appellant has not established any flaw in the testing procedure such as to call into question the test results.

Appellant’s associations and honesty

37      The appellant complained that the respondent, in its decision as to its loss of confidence in him and his removal as a prison officer, made assumptions in relation to his lifestyle that were not reasonably open.  Furthermore, the appellant denied that he was dishonest when interviewed immediately after the drug test when responding to questions about his voluntary consumption of illegal drugs.  The appellant also maintained in this context, that the respondent did not have the right to tell prison officers what they could and could not do in their own time away from the workplace.  The appellant also maintained that his comments in the interview and in response to the Notice of Loss of Confidence, as to the prevalence of drugs in the community and that it was hard to not be around them at some time, were taken out of context and were unfairly used against him.

38      In the interview with the appellant immediately following the sample test presumptive positive result on 18 July 2020, Ms Bennett was exercising her powers under reg 24 of the Regulations.  This deals with providing the appellant an opportunity to explain the positive drug test result.  When asked whether he had any explanation for the positive result for amphetamine and methamphetamine, the appellant said that he did not.  He could not dispute those drugs were in his system.  In response to a question from Ms Bennett as to whether he had knowingly ingested the drugs, the appellant told Ms Bennett and Mr Squirres, that he did not do so ‘on purpose’.

39      The appellant mentioned in the interview that on the prior Wednesday, 15 July 2020, he had visited the house of his former girlfriend.  He went to a room where a woman was present who was ‘smoking a pipe’.  When asked what this meant, the appellant said he presumed from its appearance, it was ‘probably meth’ which was his former girlfriend’s ‘drug of choice’.  The appellant said that he spent approximately 10 minutes in the room and did not take much notice of the woman.  The appellant also commented in the interview to the effect that it was hard not to run into someone on a regular basis using this substance, given the number of people in the community using it.

40      As noted earlier in these reasons, the Safework Laboratories toxicology report prepared by Dr Tynan, dated 21 July 2020, noted a high level of amphetamine and methamphetamine in the test sample, ‘consistent with the ingestion of a standard 30mg dose of methamphetamine’.  Furthermore, such a result was inconsistent with external environmental contamination, as claimed by the appellant. Also, the ratio of the amphetamine to methamphetamine of approximately 23.7%, in the context of the methamphetamine concentration in the appellant’s urine sample, was said in the report to be consistent with the recent ingestion of drugs prior to the sample collection.  We note also that the report posited the view that given this ratio of amphetamine to methamphetamine, it was most likely less than 24 hours prior to the sample collection that ingestion of the drugs took place.

41      The conclusive toxicology report result is completely at odds with the appellant’s denial he ingested illegal drugs at the material time.  Importantly, the most likely time of ingestion, being less than 24 hours, or at the most, 48 hours prior to the test at Hakea Prison, is also quite at odds with the appellant’s suggestion of environmental contamination.  This is because, on his own case, he was present at his former girlfriend’s house some two and a half days prior to the test.  The toxicology report clearly indicated the likelihood of oral ingestion of amphetamine and methamphetamine in the days after his visit to his former girlfriend’s house.

42      In view of this evidence, the inference was plainly open to be drawn that in his denials of illicit drug use to the respondent, the appellant was not being honest.

43      As to the challenge to the respondent’s conclusions regarding the appellant’s associations with persons possessing and using illicit drugs, taking all of what was before the respondent as a result of the notice of loss of confidence process, such a conclusion was reasonably open.  The appellant’s responses to these issues were somewhat cavalier.  His admission of his former girlfriend being a user of methamphetamine; that given the prevalence of methamphetamine in the community it was hard not to encounter it; his view that it was not for the respondent to control what prison officers may do outside of working hours; and taken in conjunction with the appellant’s own positive test result for amphetamine and methamphetamine, considered together, all point in the direction of a conclusion that the appellant had the associations contended by the respondent.

44      Therefore, we are not persuaded that the appellant has established that the respondent’s conclusions in relation to these issues were not reasonably open.

Impact of removal on the appellant and his family

45      It is to be accepted that the removal of a prison officer from the prison service in this State will have a substantial impact on the officer concerned and his or her family.  This is also the case for the removal of police officers under the Police Act and the dismissal of an employee at common law.  All such cases will to a greater or lesser degree, involve a loss of income and cause some degree of stress.

46      In the present appeal, while the Commission is required to take into account the interests of the appellant under s 107(4)(a) of the Prisons Act, s 107(4)(b) requires the Commission to have regard to the public interest, in particular the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of prison officers. This is in the context of the special relationship between the Chief Executive Officer and prison officers generally.

47      Whilst exhibit A1, being the letter from Mr Woods, refers to some psychological health issues being experienced by the appellant, it seems that they related to a period of time predating the appellant’s removal as a prison officer.  It was not clear from this evidence, how the appellant maintained that it related to the removal itself and the consequences of such removal, for the appellant and his family.

Conclusions

48      In the circumstances of this matter, it was open to the Chief Executive Officer to lose confidence in the appellant by reason of his integrity, honesty, and conduct.  For the foregoing reasons, we are not persuaded that, in applying the test set out earlier in these reasons, the appellant has established that his removal as a prison officer was harsh, oppressive, or unfair.  Accordingly, the appeal is dismissed.