APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 15 OCTOBER 2020

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00165

DELIVERED : THURSDAY, 28 APRIL 2022

FILE NO. : PSAB 31 OF 2020

Appellant

AND

Speaker of the Legislative Assembly

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board practice and procedure – outlines of witness evidence – objections to part of evidence – s 26(1)(b) – admissibility – Relevance

Legislation : Industrial Relations Act 1979 (WA)

Public Sector Management Act 1994 (WA) 

Result : Application upheld in part

Representation:

Appellant : Mr M Baldwin of counsel

Respondent : Mr M Ritter SC and Ms K Ellson of counsel

Case(s) referred to in reasons:

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

Miller (T.A.) Limited v Minister of Housing and Local Government [1968] EWCA Civ J0205‑3

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

Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482

Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (PSAB).

2         This appeal is listed for a final hearing commencing on 4 May 2022.

3         Programming orders were made by the parties’ consent, pursuant to which the appellant, Ms Sanja Spasojevic, filed witness outlines for four witnesses, including herself, on 22 October 2021.

4         Under the Western Australian Industrial Relations Commission’s (Commission) Practice Note 9 of 2021 (Practice Note), a witness outline is not a witness statement and is not tendered into evidence. It is an outline of the evidence it is expected a witness will give in a hearing. Witness outlines cannot be used to cross‑examine a witness without leave. The Practice Note provides that ‘A witness outline must only cover matters relevant to the case’.

5         The consent orders required the respondent employer to file responsive witness outlines. In the meantime, the respondent applied for orders upholding objections to various parts of the evidence the applicant has foreshadowed, by the witness outlines, that she will lead.

6         Although it could be said that the objections are premature, given that the witness outlines will not themselves form the evidence in the proceedings and cannot be tendered into evidence, there is utility in the PSAB indicating at this stage what its approach will be at the hearing to evidence of the nature foreshadowed by the witness outlines. This will facilitate the efficient hearing and determination of the matter.

7         The PSAB is not, at this stage, ruling on the admissibility of evidence which is yet to be tendered. We do make directions pursuant to s 27(1)(hb) of the Industrial Relations Act 1979 (WA) (IR Act) with a view to limiting the evidence that may be adduced to evidence that is relevant to the issues in the appeal.

8         In considering the objections raised by the respondent, the PSAB will first make some observations as to the role of the rules of evidence in proceedings before the PSAB. The PSAB will then discern the issues for determination in these proceedings by reference to:

(a) the test that is applied in appeals under the Public Sector Management Act 1994 (WA) (PSMA) and s 80I(1)(d) of the Industrial Relations Act 1979 (WA);

(b) the respondent’s reasons for the decision to dismiss Ms Spasojevic; and

(c) Ms Spasojevic’s grounds of appeal.

9         Finally, we analyse the contentious topics of foreshadowed evidence to find whether these topics are relevant to the issues in the necessary sense.

Dealing with objections to evidence in PSAB matters

10      The contentious foreshadowed evidence is set out in detail below. The basis for the objections to the contentious foreshadowed evidence is that the evidence will not be relevant to the issues to be determined on the appeal. In this regard, the respondent says the evidence is not relevant in that it is not capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact or other issue on the appeal.

11      By her submissions, Ms Spasojevic accepts that the evidence parties seek to adduce in proceedings must be relevant to the issues in the proceedings. She maintains the evidence she seeks to adduce is relevant, in the sense described in Cross on Evidence:

[A]ny two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non‑existence of the other.

12      Under ss 80L and 26(1)(b) of the IR Act, the PSAB is not bound by the rules of evidence, but may inform itself on any matter in such a way as it thinks just. Under s 27(1)(hb) of the IR Act, the PSAB is empowered to decide the matters on which it will hear oral evidence or argument and to make such orders as may be just with respect to interlocutory proceedings to be taken before the hearing of any matter. The PSAB may also give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter: s 27(1)(v) of the IR Act.

13      That the PSAB is not bound by the rules of evidence does not mean that the PSAB should disregard the rules of evidence or allow any evidence to be tendered without limitations. Sections 26(1)(a) and 26(1)(b) of the IR Act are designed to provide a flexible approach to the receipt of evidence and other material in proceedings. The PSAB always retains a discretion as to whether to accept material upon which it may rely in reaching a decision. These are provisions that provide flexibility in matters of procedure only, not to circumvent the substantive law.

14      In Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482, the President of the Administrative Appeals Tribunal, Brennan J, observed that it was well established that a tribunal should only act on material that is reliable and logically probative. His Honour cited Lord Denning in Miller (T.A.) Limited v Minister of Housing and Local Government [1968] EWCA Civ J0205‑3 where Lord Denning said:

Tribunals are entitled to act on any material which is logically probative even though it is not evidence in a Court of law.

15      This means that the PSAB must not only act on material that is logically probative, but on material that is relevant to the issues in the proceedings.

What are the issues in these proceedings?

The test under s 80I(1)

16      Ms Spasojevic’s appeal is brought under s 78 of the PSMA and s 80I(1)(d) of the IR Act.

17      Section 78 provides the relevant provision of Part 2A Division 2 of the IR Act is s 80I which is in the following terms:

80I. Board’s jurisdiction

(1) Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 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 under the Public Sector Management Act 1994 section 78 against a decision or finding referred to in subsection (1)(b) of that section;

(c) an appeal by a government officer under the Health Services Act 2016 section 172 against a decision or finding referred to in subsection (1)(b) of that section;

(d) an appeal, other than an appeal under the Public Sector Management Act 1994 section 78(1) or the Health Services Act 2016 section 172(2), by a government officer that the government officer be dismissed,

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

[(2) deleted]

(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.

18      The appeal involves the review of the respondent’s decision de novo. As such, the PSAB is to consider the appeal based on the evidence before it, not merely on the basis of whether the respondent made the right decision available to it at the time. The PSAB has greater scope to substitute its own view for that of the respondent’s. In the case of dismissal for misconduct, it is for the employer to establish on the evidence that the misconduct occurred: see Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266 and Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 434.

19      The respondent’s decision is not to be totally disregarded by the PSAB hearing and determining the matter. That the appeal involves a hearing de novo does not necessarily mean that the PSAB must re‑hear every aspect of the allegations afresh.

20      What precisely the PSAB must consider in the proceedings ultimately depends upon the nature of the challenge to the decision under review: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 at [26] and [29]. However, because the PSAB is conducting what is effectively a re‑trial of the misconduct allegations during which the appellant will have a fulsome opportunity to be heard, procedural failings in the disciplinary process will ordinarily be irrelevant: Harvey at [65]‑[66].

The reasons for dismissal

21      The decision against which Ms Spasojevic appeals is a decision set out in a letter to her dated 15 October 2020 which was to terminate Ms Spasojevic’s employment in accordance with cl 81(c) of the Electorate Officers’ Award 1986, effective 15 October 2020. The reasons given for this decision were articulated as follows:

…

I am satisfied that you repeatedly failed to apply for authorised leave prior to numerous periods of absence from the workplace, including extended periods of absence whilst overseas. The fact that you did not retrospectively apply for authorised leave is an aggravating circumstance. The salary payments made in respect of those periods of absence from the workplace is a financial benefit to which you were not entitled.

I note your explanation that the Honourable Roger Cook has generally been aware of your whereabouts and that you answered emails, working remotely and flexibly during periods of absence from the workplace.

For the avoidance of doubt, it is not said that the Honourable Roger Cook was unaware that you were periodically absent from the workplace, but rather that you were absent from the workplace without authorised leave.

…

Ms Spasojevic’s grounds of appeal

22      In her grounds for appeal, Ms Spasojevic alleges that the dismissal was harsh, oppressive and unfair because:

(a) she was given no opportunity to address the decision maker on penalty;

(b) the alleged defaults by her were factually wrong. In other words, she disputes the factual basis for the findings of misconduct; and

(c) if the procedural requirements for taking leave were not met by her, then this failing was condoned by the Honourable Roger Cook MLA and her employer over a long period of time.

23      Ms Spasojevic’s narrative contained in her Notice of Appeal addresses the factual matters concerning her periods of absence from the workplace, the reasons for her absences and the processes which she followed in relation to those absences. She also details matters which she characterises as bullying. The individuals whose behaviour she says constituted bullying were her electorate office co‑workers, and colleagues with whom she did not work, but who attended functions or events that she also attended. She does not allege bullying by her managers or the Member for whom she worked.

24      As to how these matters relate to the dismissal decision and her appeal, the Notice of Appeal states:

11. In the lead up to my dismissal, whilst at work I was subjected to bullying and intimidation from co‑workers about my medical conditions; and later when I returned to work on 1 July 2020 and after that date, I was subjected to squeezing out behaviour from management to make me resign.

12. The squeezing out behaviour included baseless allegations of misconduct [e.g. fraud which was never put in writing], an offer of severance, removal of my email access, and sent home.

25      So, insofar as Ms Spasojevic raises a grievance about ‘behaviour from management’, that grievance relates to management actions that either were a consequence of the investigation of misconduct, or led to the dismissal decision. Those grievances are therefore tied to the substantive issue raised in the grounds of appeal, that is, whether the allegations of misconduct are substantiated or not. If the allegations of misconduct are substantiated, it follows that the allegations of misconduct were not baseless, and any offer of severance, removal of email access and suspension were not unreasonable.

26      It is not clear from the Notice of Appeal how the allegations of bullying ‘in the lead up to my dismissal’ relate to the decision to terminate the employment or why the allegations would lead to a conclusion that the decision to terminate the employment for misconduct was harsh, unjust or oppressive. An attempt to connect the bullying allegations to the appeal was made in the Outline of Submissions filed on behalf of Ms Spasojevic for the purpose of the final hearing. From these submissions it emerges that the bullying was relied upon in two ways:

(a) at par 78 of the submissions, it is said that the respondent ‘…gave no consideration to any mitigating factors’ such as; the bullying behaviour she had been subjected to, and her previous excellent work record and her long career with the WA Labor Party; and

(b) at par 82 of the submissions, the allegation is made that the termination decision was in part, due to her formally and persistently complaining about the bullying and harassment she experienced.

27      In her submissions in relation to the current application, Ms Spasojevic makes no reference to either of the above grounds. Rather, what she now says is:

The Appellant’s position is that the real reason the Appellant was terminated was because other staff members wanted her out, rather than because she allegedly took unauthorised leave (the Reason for Termination Position).

28      This is not a ground of appeal. It is an entirely new allegation, raised in these proceedings for the first time when Ms Spasojevic’s submissions dated 17 March 2022 were filed. The submissions of 17 March 2022 do not seek to rely upon the evidence of bullying to support the grounds mentioned in paragraph 26 above.

29      During the hearing of the current application, Ms Spasojevic’s counsel was asked whether she continued to rely upon the alleged bullying as a mitigating factor, and to elaborate on what the bullying evidence showed about the reasons for termination. Counsel, quite properly, did not pursue an argument that bullying was a mitigating circumstance. To have done so would be unsupportable, unless the alleged bullying was said to have caused Ms Spasojevic to take unauthorised leave. That is not her case.

30      What Counsel said about Ms Spasojevic’s case as to the reasons for dismissal was to the effect that the leave audit was concocted as a means to terminate Ms Spasojevic’s employment. The case is that it was instigated because the employer had already decided it wanted to get rid of Ms Spasojevic, and this was a convenient means of doing so.

COSENTINO SC: …But the evidence that your client wants to rely upon in relation to bullying refers to various individuals within the electorate office.

BALDWIN, MR: Yes.

COSENTINO SC: So can you just tell me why that assists in the case as you've just described?

BALDWIN, MR: Well, there was ‑ the politics of this office was front and centre. There was, our client was in essence picked on by others within the office and that in essence that was ‑ she was ‑ essentially, “How do we get rid of her”? And the audit was one avenue by which she was gotten rid of. Now, our case is also the fact that these leave forms were filed and were given to the Minister and the Minister in effect in the presence of our client tore up the leave forms.

31      Counsel did not explain how the contentious foreshadowed evidence, which concerns the conduct of electorate officer co‑workers’ conduct between 2012 and September 2019, had any bearing on this argument. That is, nothing was said about how the leave audit was connected in any way to the alleged bullying. It is worth noting here that the events leading to the leave audit occurred from 30 June 2020. This omission leaves an impression that the case is merely fanciful. This impression is fortified by the fact that the case is raised, for the first time, some 18 months after the appeal was initiated.

Conclusion as to the issues in the proceedings

32      The parties agree that the overarching issues in these proceedings are:

(a) whether Ms Spasojevic did in fact take unauthorised leave, that is, whether the misconduct occurred;

(b) whether in all of the circumstances, the dismissal by the respondent was justified; and

(c) if the dismissal was not justified, whether the PSAB can and should exercise its discretion to grant a remedy to Ms Spasojevic.

33      The parties were not agreed as to what sub‑issues need to be determined, to arrive at a decision in relation to these overarching issues. Based on the reasons for the dismissal decision and the grounds of appeal as described above, we consider the issues for determination in this case are:

(a)               what were the requirements for taking authorised leave;

(b) whether Ms Spasojevic failed to comply with the requirements for taking authorised leave;

(c) whether the requirements for taking authorised leave were commonly ignored by management in practice such that the misconduct was effectively condoned;

(f) whether Ms Spasojevic’s misconduct, if any is made out, is mitigated by such conduct being condoned or being widespread;

(g) whether Ms Spasojevic’s misconduct, if any is made out, is mitigated by her prior service history; and

(h) whether Ms Spasojevic’s misconduct, if any is made out, is mitigated because she did not know her leave was unauthorised or unapproved.

33      Although it is not strictly a ground of appeal raised in the Notice of Appeal or Ms Spasojevic’s submissions for hearing, we accept a further issue may be whether the reason for dismissal was contrived because the respondent had a predetermined wish to terminate Ms Spasojevic’s employment. Even though this ground appears to us, at this stage, to be fanciful, we are prepared to consider the relevance of the foreshadowed evidence on the basis that it is an issue in the appeal.

Analysis of contentious foreshadowed evidence: Ms Spasojevic’s witness outline

34      By her witness outline, Ms Spasojevic set out the topics she will address in her oral evidence. Of those topics, the respondent objects to the following:

(a) the routine and persistent bullying and harassment experienced by Ms Spasojevic during her employment at the electorate office;

(b) role in monitoring emails in the period 6 July and 7 November 2017;

(c) evidence on the subject of leave due to illness;

(d) a letter written on 22 June 2015 and an application in 2017 for a third full time equivalent staff member for the electorate office;

(e) discussions with Ms Mei Wood, former department Human Resources Manager, about staffing arrangements in the electorate office in 2017;

(f) evidence of Ms Spasojevic’s dealings with a union delegate on 13 July 2020;

(g) the Minister’s Chief of Staff’s conduct towards from July or August 2020 her culminating in her seeking a Misconduct Restraining Order against him;

(h) discussions she had with another member of parliament in July 2020 concerning the Minister’s Chief of Staff;

(i) Ms Spasojevic’s access to employee assistance documents 91, 92, 93, 100 (Appellant’s Book of Documents);

(j) a Ministerial staff member’s alleged access to her medical details and emails; and

(k) payment of personal and annual leave in the period 1 July 2020 to 15 October 2020 and the absence of pay slips provided for that period.

The routine and persistent bullying and harassment experienced by Ms Spasojevic during her employment at the electorate office

35      Ms Spasojevic submits the evidence concerning her allegations of bullying are relevant to issues in the proceedings, particularly whether there was misconduct and whether the termination was harsh, for the following reasons:

(a) The evidence highlights the background circumstances of the Honourable Roger Cook MLA’s electorate office, including the way that Honourable Roger Cook MLA dealt with, or failed to deal with, the bullying and harassment experienced by the appellant.

This rationale does not go to any issue in the proceedings.

(b) The bullying and harassment and the Honourable Roger Cook MLA’s failure to intervene, is a significant circumstance of the appellant’s employment relevant to harshness of the dismissal, particularly as it gives context to the poor treatment of the appellant by the respondent and the respondent’s staff, which is inextricably linked to the eventual termination of the appellant.

Ms Spasojevic has not established that these circumstances are relevant to the dismissal either as a mitigating factor or that it is in any way ‘linked’ to the termination of her employment.

(c) The hostile environment of the Honourable Roger Cook MLA’s electorate office and bullying and harassment of the appellant, supports the appellant’s Reason for Termination Position.

Ms Spasojevic has not established how these matters are relevant to the Reason for Termination Position ground. As detailed above, that ground is, in effect, that the respondent had pre‑determined that it wanted to dismiss Ms Spasojevic. Her co‑workers’ conduct towards her from 2012 to September 2019 is not probative of this allegation.

(d) The absence of meaningful intervention or procedures by the Honourable Roger Cook MLA or the Department of Premier and Cabinet in dealing with the bullying, supports the existence of an informal environment in the Honourable Roger Cook MLA’s electorate office.

The former fact, if established, does not in any meaningful or substantive way tend to prove or render probable the latter conclusion. The submission, in effect, seeks to rely upon this evidence to show a propensity for ‘informality’ that is, that because there was informality in dealing with one topic which was being discussed in May 2019, that there is an increased probability that there was also informality in dealing with leave authorisations. The two events or topics are entirely unrelated. Accordingly, we do not consider the evidence has the requisite probative value or relevance.

(e) The informal environment at the Honourable Roger Cook MLA’s electorate office indirectly supports the Leave Procedure Position, which is directly relevant to the Misconduct Issue.

We repeat what we have said in relation to (d) immediately preceding.

36      Ms Spasojevic’s foreshadowed evidence of alleged bullying and harassment during her employment is not relevant to the issues in this appeal, and accordingly should be excluded at the hearing.

Role in monitoring emails in the period 6 July and 7 November 2017

37      Ms Spasojevic submits the evidence is relevant because:

(a) it shows her long‑term loyalty and commitment to the Minister which is a mitigating factor;

(b) it highlights the informal nature of the working arrangements and the respondent’s knowledge and approval of the existence of an informal working relationship; and

(c) the informal culture of the electorate office is relevant to the issues of what procedures were required for taking leave, and whether particular practices were condoned.

38      We do not consider that the evidence foreshadowed in the witness outline is probative of the issues in the proceedings, in particular, the issue of what were the requirements for taking leave or whether it was commonplace to disregard those requirements. Ms Spasojevic’s service history is not in dispute. The evidence objected to does not tend to prove anything about an informal culture in the electorate office. Accordingly, the evidence will not meaningfully inform the issues for determination. It should be excluded at the hearing of the appeal.

Evidence on the subject of leave due to illness

A letter written on 22 June 2015 and an application in 2017 for a third full‑time equivalent staff member for the electorate office

Discussions with Ms Mei Wood, former department Human Resources Manager, about staffing arrangements in the electorate office in 2017

39      Ms Spasojevic’s Counsel properly conceded during the hearing that this evidence, and the document referred to in this evidence (document 11, Appellant’s Book of Documents) did not have the effect of showing an informal working arrangement or knowledge of any particular leave arrangement between the Member and Ms Spasojevic. There is no dispute that Ms Spasojevic was entitled to take leave when she was unwell. The issue is what was required for authorisation of such leave. The evidence does not touch on nor is it relevant to this issue.

Evidence of Ms Spasojevic’s dealings with a union delegate on 13 July 2020

40      Ms Spasojevic no longer seeks to rely upon this evidence.

The Minister’s Chief of Staff’s conduct towards from July or August 2020 her culminating in her seeking a Misconduct Restraining Order against him

Discussions she had with another member of parliament in July 2020 concerning the Minister’s Chief of Staff

Ms Spasojevic’s access to employee assistance documents 91, 92, 93, 100 (Appellant’s Book of Documents)

41      Ms Spasojevic submits these documents are relevant to whether the termination was harsh, because the respondent’s treatment of her during the investigation and leading to the termination is a circumstance relevant to the fairness of the termination.

42      The respondent submits that to the extent that the evidence concerns the Chief of Staff’s conduct in a personal capacity, it is not conduct by the respondent towards Ms Spasojevic, and therefore cannot be relevant to whether the respondent’s decision to dismiss was harsh.

43      We agree that that evidence of the Chief of Staff’s dealings with Ms Spasojevic generally in the lead up to dismissal will be relevant to whether the dismissal was harsh in the manner in which it was carried out. This establishes a ground for the admissibility of the evidence foreshadowed at paragraph 11(g), 11(l) and documents 91, 92 and 93 but not the balance of the foreshadowed evidence which is not evidence of the respondent’s treatment of Ms Spasojevic during the investigation and leading to the termination.

A Ministerial staff member’s alleged access to her medical details and emails

44    Paragraphs 11(m) to (n) of Ms Spasojevic’s witness outline are relied upon by Ms Spasojevic as relevant to the issues of whether there was misconduct, and whether the dismissal was harsh. She says that this is evidence of bullying by the Chief of Staff, which supports her case that the real reason for termination was that her co‑workers wanted to get rid of her.

45    The foreshadowed evidence of the Chief of Staff’s involvement begins at the point when leave practices come under scrutiny, that is, in the investigation of the allegations of misconduct.

46    It is simply not logically possible that evidence to the effect that this individual impermissibly accessed Ms Spasojevic’s personal information, after the alleged misconduct was identified, will tend to show that he had a pre‑determined wish to dismiss Ms Spasojevic.

47    Ms Spasojevic also seeks by this evidence to show that the Chief of Staff accessed her private information contrary to office practices, and that this in turn was support for ‘the informal nature of the DPC’s and Minister Cook’s offices practices’ which ‘indirectly’ supports the conclusion that disregarding leave authorisation requirements was common practice and condoned. It is probably evident merely by the articulation of this argument that it is a tenuous possible link between the first and last facts. Admission of this evidence cannot be justified acting in accordance with the substantial merits of the case.

Payment of personal and annual leave in the period 1 July 2020 to 15 October 2020 and the absence of pay slips provided for that period

48      Ms Spasojevic submits that paragraph 11(x) and documents 105 to 108 are relevant to the harshness of the dismissal because they go to the respondent’s poor treatment of her during the investigation, being that she was not provided with access to her information about her pay, and her relevant leave balances. She says this therefore shows that the investigation lacked procedural and substantive fairness.

49      It is apparent on the face of the foreshadowed documentary evidence that the information that Ms Spasojevic was seeking, and complains of not being provided, is not information that was relevant to the investigation. That is, it was not information that she sought for the purpose of responding to the allegations, nor was it information that she required to respond to the allegations. Accordingly, the evidence does not tend in any way to show an absence of procedural or substantive fairness.

50      This evidence should also be excluded at hearing.

Analysis of contentious foreshadowed evidence: Mark Foott’s witness outline

51      Mr Foott’s outline of evidence addresses the following topics:

(a) the practices within the Honourable Roger Cook MLA’s electorate office, including hours worked and staff;

(b) the practice within electorate offices in relation to leave forms and procedure for employees taking leave;

(c) Ms Spasojevic’s work ethic; and

(d) bullying within the Honourable Roger Cook MLA’s electorate office.

52      The respondent objects to the evidence in its entirety. While the respondent concedes that Ms Spasojevic’s service history and work ethic are relevant to mitigation, it says Mr Foott’s evidence is too remote in time to have any significant value.

53      It follows from what we have indicated above in relation to Ms Spasojevic’s evidence, that we are not satisfied evidence of bullying is relevant to this appeal. However, Mr Foott’s evidence of Ms Spasojevic’s service history should be allowed, other than matters that are speculative.

Analysis of contentious foreshadowed evidence: Justine Elliott’s witness outline

54      Finally, the respondent objects to the entirety of Ms Elliott’s foreshadowed evidence. The witness outline for Ms Elliott indicates her evidence will address the following topics:

(a) her relationship with Ms Spasojevic and her observations of Ms Spasojevic’s work;

(b) the roles of and functions of Ministerial staff and electorate staff, including limits on access by one group to the other group’s private information;

(c) the practice within electorate offices in relation to day to day processes and procedures, working hours and leave; and

(d) the practice within electorate offices in relation to leave forms.

55      There is no suggestion that Ms Elliott had experience working in the Honourable Roger Cook MLA’s electorate office, nor that she made any direct observations of the practices in that office. Her evidence will be that that there were official processes and procedures that applied to Ministerial staff for the authorisation of leave. She would also give evidence, though, that in her experience such processes and procedures were not uniformly or consistently adhered to. With no connection between her experiences, and the situation in the electorate office where Ms Spasojevic worked, Ms Elliott’s evidence of these matters cannot logically or relevantly prove what the practice or culture was in the Honourable Roger Cook MLA’s electorate office. Nor can the evidence assist Ms Spasojevic’s arguments in mitigation.

56      For the same reasons that Mr Foott’s evidence as to Ms Spasojevic’s work history should be allowed, Mr Elliott’s evidence of her relationship with Ms Spasojevic and Ms Spasojevic’s work should also be allowed. However, the balance of her foreshadowed evidence should be excluded.

Directions

57      In accordance with the above reasons, the PSAB directs:

1. THAT the appellant not lead evidence at the hearing of the appeal in relation to the topics identified in:

a. Paragraphs 2(c), 5(a) through to 5(ee) inclusive, 3(b) second sentence, 7(f)(i), 7(f)(ii), 7(f)(iii) insofar as it concerns events of 2017, 11(h), 11(i), 11(j), 11(k), 11(m), 11(n) and 11(x) of Sanja Spasojevic’s Witness Outline filed on 22 October 2021;

b. Paragraphs 6, 19 and 24‑30 inclusive of Mark Foott’s Witness Outline filed on 21 October 2021; and

c. Paragraphs 8 to 34 inclusive of Justine Elliott’s Witness Outline filed on 22 October 2021.

2. THAT the appellant not be permitted to tender documents 11, 34, 35, 36, 105, 106, 107 and 108 of the Appellant’s Book of Documents filed 25 October 2021.