APPEAL AGAINST DECISION TO TAKE REMOVAL ACTION ON 27 JULY 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00186

DELIVERED : Friday, 6 May 2022

FILE NO. : APPL 25 OF 2021

Appellant

AND

Minister for Corrective Services

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 : Industrial Relations Act 1979 (WA) s 23, s 24, s 25, s 26, s 27(1)(k), s 28, s 29A, s 30

Misuse of Drugs Act 1981 (WA)

Prisons Act 1981 (WA) s 6(5), s 7, s 13, s 13(3), s 13(12), s 14(1)(a), s 14(1)(b), s 14(1)(d), s 106(5), s 107(4)(a), s 107(4)(b)

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 reg 38(1), reg 38(2)

Public Sector Management Act 1994 (WA)   

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr C Fordham of counsel

Respondent : Mr S Pack of counsel

Solicitors:

Appellant : Slater & Gordon Lawyers

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

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

BCI Finances Pty Ltd (in liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227

Beverley v The Commissioner of Police [2017] WAIRC 00270; (2017) 97 WAIG 627

Bista v Glad Group Pty Ltd [2016] FWC 3009

Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410

Carlyon v The Commissioner of Police [2004] WAIRC 11428; (2004) 84 WAIG 1395

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

Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458

Ferguson v The Commissioner of Police [2017] WAIRC 00238; (2017) 97 WAIG 502

Frantzen v Director General Department of Justice [2022] WAIRC 00050; (2020) 102 WAIG 139

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139

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

Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212

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

Metcash Trading Ltd T/A Metcash Trading v Michael Hudson [2022] FWCFB 2

Metropolitan Meat Industry Board v Australasian Meat Industry Employees’ Union, New South Wales Branch [1973] AR (NSW) 231

Morris v Commissioner of Police [2016] NSWIRComm 1034

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

Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Board [2020] WAIRC 00758; (2020) 100 WAIG 1300

Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Board [2021] WAIRC 00618; (2021) 101 WAIG 1457

Toshach v Commissioner of Police (2009) 181 IR 420

Trustees of the Property of John Daniel Cummins v Cummins [2006] HCA 6; (2006) 224 ALR 280

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

Reasons for Decision

KENNER CC:

Background

1         The appellant was engaged as a prison officer under s 13(2) of the Prisons Act 1981 (WA) in August 2005. He initially commenced his employment with the respondent in April 2000. The appellant was removed by the respondent as a prison officer in July 2021, because of a loss of confidence process under Part X of the Prisons Act. At the time of his removal, the appellant was a Chief Instructor at Hakea Prison. The reason for the appellant’s removal was his returning of a positive test result for cannabis, arising from a random drug test at Hakea Prison on 11 August 2020. Based on the random drug test, and a post-test interview with officers of the respondent, the decision of the respondent to lose confidence in the appellant was formulated on three bases which included:

(a) the appellant’s positive drug test for cannabis;

(b) the appellant’s admission that he consumed cannabis two days prior to the test; and

(c) the appellant’s admission that he socialised outside of the workplace with persons who possessed, used, or supplied him with cannabis.

2         The respondent took the view, as a part of the loss of confidence process, that the illicit drug use and having associations with illicit drug users, were serious issues. This was because of the susceptibility of prison officers to corruption and the impact of illicit drug use and associations on this susceptibility. Furthermore, the respondent relied upon its WA Prisons Drug Strategy 2019–2020 and a procedure known as Prison Procedure 402 Drug and/or Alcohol Testing for Prison Officers. The Procedure, which outlines the respondent’s approach to the use or association with drug use, among other things, includes:

(a) Prison officers not being at work affected by alcohol or drugs;

(b) Prison officers not taking part in conduct or behaviour outside of the workplace that involves illicit drugs; and

(c) Recognition that the possession and use of illicit drugs by prison and custodial officers is a significant issue for the respondent in terms of its reputation in the community, given that the community is entitled to expect the highest standards of accountability, integrity, and ethical behaviour.

3         The appellant now challenges his removal as a prison officer, under s 106 of the Prisons Act on the basis that the removal action was harsh, oppressive, and unfair. Whilst the appellant admitted the relevant conduct, the appellant maintained, that given several extenuating circumstances, the removal action was a disproportionate response. The appellant seeks reinstatement, alternatively, compensation for loss.

Proper name of the respondent

4         In these proceedings the appellant has cited the ‘Minister for Corrective Services’ as the named respondent. In his written outline of submissions, the appellant contended that the proper respondent is the named Minister because it is the Minister who has certain statutory responsibilities under the Prisons Act. This includes the responsibility for the engagement and control of prison officers under ss 6(5) and 13 of the Prisons Act. The appellant also pointed to the power of removal of a prison officer by the Minister under s 13(3) of the Prisons Act, on the recommendation of the Chief Executive Officer. The appellant contended that if an appeal is successful, and a prison officer is ordered by the Commission to be reinstated, then it is the Minister who, as the employer, is responsible for re-employing a prison officer.

5         Despite the foregoing, the appellant accepted that s 106(5) of the Prisons Act, which provides that the ‘only parties’ to an appeal under Part X of the Prisons Act are the prison officer and the Chief Executive Officer, is problematic for his argument. In recognition of this, the appellant further submitted that the Chief Executive Officer of the respondent should be named as the respondent party to the appeal, in his capacity as the delegate of the Minister.

6         After the hearing of this appeal, the Commission delivered its decision in the first appeal by a prison officer under Part X of the Prisons Act, in Frantzen v Director-General Department of Justice [2022] WAIRC 0050; (2022) 102 WAIG 139. In Frantzen, as the appellant initially named the respondent as the ‘Department of Justice’, the Commission ordered that the name of the respondent be changed to the ‘Director-General Department of Justice.’  The Commission’s reasons for this order being made were set out at [11] to [15] as follows:

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’.

7         After the decision in Frantzen was delivered, the parties to this appeal were given an opportunity to make further written submissions in relation to the issue of the proper named respondent, and the approach that the Commission should take to determining appeals under Part X of the Prisons Act, which was a further issue dealt with in Frantzen.

8         The appellant continued to maintain that the Director-General of the respondent, for the purposes of proceedings of the present kind, acts for and on behalf of the responsible Minister and for those reasons, Ministerial control should be recognised in the proper name of the respondent parties. The appellant submitted, after setting out the reasons for decision relevant to this issue in Frantzen, that the powers exercised by the Director-General under various parts of the Prisons Act, are subject to the control of the Minister. It was contended therefore, that if the Parliament intended that the Director-General was to have powers to be exercised without Ministerial control, then clear words would be needed in the legislation.

9         With respect, there could be nothing clearer than s 106(5) of the Prisons Act, as specifying who the parties (and the only parties) to an appeal under Part X are. This provision exists despite the role the Minister plays under the Prisons Act, in other respects, as identified by the appellant.

10      A further submission made by the appellant was that relevant authorities suggest that under the Industrial Relations Act 1979 (WA) and the Public Sector Management Act 1994 (WA), the Director-General acts as a delegate of the Minister in relation to disciplinary proceedings which may be brought before the Commission. It was said that if so, it would be inconsistent for the Director-General to not act in the same capacity in proceedings of the present kind.

11      This submission cannot be accepted. Under the PSM Act, the ‘employing authority’ of an employee of a department or organisation for the purposes of s 5 of the PSM Act, is the chief executive officer. The relevant Minister plays no role in disciplinary matters under that legislation, and it is the chief executive officer, in his or her own right, who is the employer and is the appropriate party to proceedings in such matters. The chief executive officer as the employer, does not discharge their statutory functions under that legislation as a delegate of the responsible Minister. In any event, irrespective of this, what may occur under the PSM Act, is not relevant to the appeal provisions set out under Part X of the Prisons Act, which provides for a separate and distinct legislative regime in relation to appeals by prison officers from their removal.

12      The final submission made was that if s 106(5) of the Prisons Act has the effect as found in Frantzen, which is that the only parties to an appeal are the prison officer and the Chief Executive Officer, then this precludes the Minister from intervening in proceedings before the Commission on an appeal under  s 30 of the IR Act. However, the premise underlying such a submission, that such a right exists in any event, cannot be accepted. Firstly, s 30 of the IR Act provides that ‘the Minister’ may seek leave to intervene in proceedings before the Commission, in any proceedings in which the State may have an interest. For the purposes of this provision, ‘the Minister’ is the Minister for Industrial Relations, responsible for the administration of the IR Act, and intervenes in proceedings in that capacity, and not under the Prisons Act.

13      Secondly, and in any event, as with an appeal against the removal of a police officer under the Police Act 1892 (WA), s 30 of the IR Act is not an adopted provision in s 110B of the Prisons Act, and has no application to appeals under Part X. Similarly, the Commission’s general power to grant a person leave to intervene under s 27(1)(k) of the IR Act, is also not an adopted provision under either the appeal provisions of the Prisons Act or the Police Act. By these omissions, the Parliament has clearly intended that the Commission should not have the power to grant the Minister responsible for the administration of the Prisons Act leave to intervene in appeal proceedings under Part X. Similarly, that the Commission should not have the general power to grant a person leave to intervene in proceedings in connection with the removal of a prison officer. Even if this were not so, there is, contrary to the submissions of the appellant, a clear distinction between a ‘party’ and an ‘intervenor’ as ss 27(1)(k), 29A and 30 of the IR Act make clear.

14      The approach taken by the Commission in Frantzen is affirmed.

Approach to the disposition of the appeal

15      This matter was also dealt with in Frantzen. The Senior Commissioner has considered this issue in her reasons, and I respectfully agree with her general summary of the approach on the authorities. Importantly, in the context of appeals of the present kind, the issue to be decided is not whether the removal action was disproportionate to the conduct or misconduct that occurred, but rather, whether the relevant conduct supported the conclusion reached by the respondent to lose confidence in the officer: McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006. It is also implicit that the Commission’s consideration of the broad approach to the determination of appeals under the Prisons Act in Frantzen, was in the context of the statutory framework regarding the appointment, duties, and responsibilities of prison officers, rather than police officers. The degree to which this distinction will be relevant, will depend on the facts of each case, as in this appeal.

Disciplinary action as an alternative

16      A part of the appellant’s case on appeal was that the respondent had other options to respond to the appellant’s admitted misconduct, aside from removal action. The appellant referred to reg 38(1) of the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016, in cases where adverse test results indicated something other than a drug as specified in the Misuse of Drugs Act 1981 (WA). I note that this is not relevant to the appellant’s admitted conduct, as his possession and use of drugs was of an illicit substance, cannabis, as prescribed by Schedule I, item 5 of the MD Act, as ‘cannabis or cannabis resin or any cannabis derivative’. The appellant’s positive test result, and subsequent laboratory report, confirmed the appellant’s cannabis metabolite alpha-9 THC reading at 89ug/l, well above the minimum concentration level of 15ug/l.

17      Regulation 38(2) of the Regulations provides that if a test of a prison officer returns a positive test result, for drugs of the kind detected in this case, the Chief Executive Officer ‘may accept the resignation of the prison officer or may take removal action against that prison officer under the Prisons Act 1981 Part X’. The appellant submitted that from the terms of reg 38(2), read with the Regulations as a whole, the respondent had the option to accept the appellant’s resignation, take removal action, or to do nothing. I do not accept this submission. It is plain from reading regs 38(1) and 38(2) of the Regulations together, that the consequences of an adverse test result for drugs is dependent on the class of drug involved. Regulations 38(1) and 38(2) draw a clear distinction between ‘drugs’ (as defined in reg 3), and a ‘targeted drug’ as defined in reg 3, read with reg 12.  For present purposes, a ‘targeted drug’ includes cannabis, to which the MD Act applies.

18      The terms of regs 38(1) and 38(2) read with these relevant provisions, clearly express the different, and more grave consequences in the event of a positive test result for a drug set out in the MD Act. It is trite that the Regulations are to be construed in accordance with the usual principles of statutory interpretation. (As to those principles see Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Board [2020] WAIRC 00758; (2020) 100 WAIG 1300 at [18]-[20] (FB); Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Board [2021] WAIRC 00618; (2021) 101 WAIG 1457 (IAC)). The only construction reasonably open as to the last part of reg 38(2), is for the Chief Executive Officer to either accept the resignation of a prison officer, or to take removal action under Part X of the Prisons Act. This reflects the gravity of a positive test result for illicit substances, covered by the MD Act. In my view, as a matter of plain meaning, the Chief Executive Officer taking no action, is not a course open to him.

19      In any event, as referred to by the respondent in his submissions, irrespective of whether another option was or was not open to the respondent in the present case, or cases of the present kind generally, the appeal is to be determined on the basis of the removal action taken by the respondent under Part X of the Prisons Act and whether, in all of the circumstances and having regard to the statutory scheme, the removal action was harsh, oppressive or unfair.

Any breach of duty to avoid drugs leads to removal?

20      No one could seriously question the importance of policies, procedures, and appropriate regulation to have the purpose and effect of, as far as possible, eradicating the impact of illicit drugs in the State’s custodial system. It is well known in the community, and I consider that judicial notice can be taken of the fact, that a significant percentage of criminal offences committed in Western Australia, are drug related offences. Available data also indicates that a substantial number of the prison population in this State have a substance abuse disorder (See Western Australian Prisons Drugs Strategy 2018-2020 respondent’s bundle at p 61). Hence, the importance of measures taken by the respondent to mitigate the impact of illicit drugs on the prison population, to maintain the good order and management of prisoners, and to achieve the rehabilitation objectives of the State custodial system.

21      Prison officers are, by their oath of office under s 13(2) of the Prisons Act, sworn to uphold the Prisons Act and regulations, rules and standing orders to maintain the security of prisons and prisoners. Also, by s 14 of the Prisons Act, a prison officer is obliged to obey all ‘… orders and directions of the chief executive officer …’. Prison officers may also issue orders to prisoners for the purposes of the security and good order, and management of a prison. In giving effect to such orders, a prison officer may use such force as is necessary, on the basis that he or she has reasonable grounds to do so.

22      The appellant in his written submissions referred to the decision of the Commission in Carlyon v The Commissioner of Police [2004] WAIRC 11428; (2004) 84 WAIG 1395 and contended that the decision was authority for the proposition that the mere fact of a criminal conviction does not necessarily determine the ultimate issue of an officer’s suitability to remain a police officer, in the context of removal proceedings under the Police Act. Furthermore, the appellant referred to Toshach v Commissioner of Police (2009) 181 IR 420, a decision of the New South Wales Industrial Relations Commission dealing with, in a similar vein, challenges to the removal of police officers under the comparable New South Wales legislation. The upshot of this submission by the appellant was that both Carlyon and Toshach supported the contention that the Commission should adopt a more nuanced and flexible approach. It is not in every case, that a contravention of the respondent’s Procedure applicable to the prison system, should lead to removal action.

23      Several things need to be said about the authorities referred to. Firstly, the matter dealt with in Carlyon, related to an application by the respondent to seek leave to tender new evidence on the appeal. That new evidence was the transcript of a criminal trial of the appellant who was charged with assault occasioning bodily harm and the reasons of the presiding Magistrate, in relation to the appellant’s conviction for the offence. Importantly, the criminal trial took place after the decision was made by the respondent to remove the appellant from the Police Force but referred to conduct which occurred whilst the appellant was a serving police officer. It was on this basis that the respondent contended that the trial transcript and the reasons for decision of the court in relation to the criminal conviction, were material facts relevant to the consideration of the Commission for the purposes of the removal appeal. It was contended that the significance of this material, lay in the fact that in subsequent civil proceedings, the appellant’s conviction could not be called into question by way of a collateral attack.

24      The appellant opposed the tender of the new evidence, on the basis that the fact of the conviction and the grounds, therefore, were not before the respondent when he took the decision to remove the appellant and therefore, the material was irrelevant to the Commission’s determination of the removal appeal.

25      The Commission rejected the appellant’s argument and considered that the admission of the transcript and the reasons and sentencing remarks of the Magistrate were directly relevant to the disposition of the appeal, and the respondent was not limited only to the matters before him at the time of the removal decision. This was based on the obligation on the Commission to have regard to the public interest and the impact of the appellant’s conduct on maintaining public confidence in the integrity, honesty, and standard of performance of a police officer, as a relevant consideration.

26      Similarly, in the case of Toshach, consideration was given to the general obligation on police officers to act with integrity, without that obligation becoming an absolute criterion for suitability to remain a police officer. Further, that whilst codes of practice or general ethics statements may be promulgated by the Commissioner of Police, they should be seen in a more general light, in assessing a police officer’s conduct, whilst maintaining room for flexibility and fairness in assessing an individual case.

27      Whilst Toshach and the cases cited in that matter, and additionally Carlyon, refer to more general conduct and behaviour by police officers, the present circumstance is distinguishable in that the prohibited conduct, that being the possession, use or association with illicit drug use by prison officers, is an express, particular and clearly articulated prohibition, which the respondent has instituted as an expected standard of behaviour for prison officers, through the Procedure and the Regulations.  This is not a case which raises for consideration, more general assessments of behaviour, integrity, and character, in terms of the primary decision to remove.

28      Having said this however, the appellant contends, and the respondent does not challenge the proposition, that it will not be in every case that a prison officer who contravenes the Procedure will automatically be removed. Each case will require an assessment of the relevant facts and circumstances, as to whether the conduct justifies the conclusion of a loss of confidence by the respondent in the officer concerned.

The grounds for removal

29      Given the admissions made by the appellant, the respondent accepts that there is a degree of overlap between grounds one and two of the grounds for removal, despite its reliance on each of the three grounds, taken individually, to support the loss of confidence by the respondent in the appellant.

30      Whether taken in isolation or taken together, grounds one and two supporting the removal were, in my view, sufficient for the respondent to lose confidence in the appellant’s ability to remain as a prison officer. In this regard, I respectfully agree with the reasons expressed by the Senior Commissioner, in relation to grounds one and two, concerning her consideration of the appellant’s breach of the Procedure; the removal action; the soundness of the respondent’s findings on the removal action in relation to both grounds; and the gravity of the conduct warranting removal. In my view, those findings and conclusions reached by the respondent, in relation to grounds one and two for the  removal, are sufficient to dismiss this appeal, subject to what I say below, in relation to matters of mitigation, as advanced by the appellant. I do not need to consider ground three of the grounds for removal, for my purposes, but as the matter was argued, I will address the issues arising from it.

31      The appellant’s conduct, in the context of the clearly established and well-known approach of the respondent to illicit drugs, the Procedure, and the effect of the Regulations, provided a sound basis for the respondent to lose confidence in the appellant. One factor that I also place weight on in this case, is that the appellant’s conduct, in engaging in the knowing consumption of an illicit drug, contrary to the MD Act and in the context of the Procedure, was not a spur of the moment decision. An admitted fact in this case was that the appellant took the cannabis from his friend and then returned to his home. In the transcript of the post-test interview (see pp 17-19 respondent’s bundle) the appellant told the interviewers that he took the part of the cannabis cookie home with him when he left his friend’s house. He did not consume it at his friend’s house. Both the appellant and his friend live in different suburbs and the appellant said he lives about a six-to-seven-minute drive from his friend. He drove his car on the occasion in question. Whilst it was not entirely clear, it seems that the appellant took the cannabis cookie at about 5.00 pm in the afternoon, after returning home.

32      Given this sequence of events, the appellant knew that the cookies possessed by his friend, who he visited often, contained cannabis and that he kept them in a container at his house; that his friend regularly used cannabis; that the part of the cannabis cookie provided to him by his friend was an illicit drug under the respondent’s Procedure; and that the respondent conducted random tests for drugs and alcohol, because the appellant had been tested previously. Despite this state of knowledge, and the time to reconsider and reflect in the period in travelling from his friend’s house to his own, the appellant proceeded to consume cannabis.

33      The third ground relied on by the respondent to support the loss of confidence of the respondent in the appellant to remain a prison officer, was the respondent’s contention that ‘You admit to socialising with associates outside the workplace who possess, use, and supply you with cannabis’. The relevant part of the Procedure in relation to this ground of removal is par 5.5, that provides ‘Custodial officers must not engage in behaviour or conduct outside the workplace that involves illegal drugs’.

34      From the admitted facts, I consider that it was open for the respondent to conclude that the appellant associated with persons participating in the conduct contended. The appellant admitted that he visited his friend regularly each week. The respondent’s conclusions in relation to this ground of removal may be derived from his post-test interview and his response to the respondent’s notice of loss of confidence. The appellant’s summary of this evidence and the conclusions able to be drawn from them, are set out at [118] to [121] of the Senior Commissioner’s reasons, which I gratefully adopt, and I need not repeat.

35      From these facts and the inferences open to be drawn from them, the conclusion was open that the appellant was, by his conduct and behaviour, ‘involved’ in illegal drugs. In my view, voluntarily being in the presence of person(s), on a regular basis, who a prison officer knows possess, use, or supply illegal drugs, constitutes associating with such persons. I consider, having regard to the terms of the Procedure read as a whole, in particular having regard to its purpose in cl 1 and its principles in cl 4, and the respondent’s well known policy and stance on illicit drugs, and the reputational risk to which the respondent may be exposed, that regularly being in the presence of persons who the appellant knew possessed and used illegal drugs, which possession and use constitutes a criminal offence, is being ‘involved in illegal drugs’.

36      In its ordinary meaning, ‘involve’ includes ‘To envelope within the folds of some….circumstance; …to entangle (a person) in trouble…to include…’ (Shorter Oxford Dictionary). In this context, being knowingly present, without any objection or the taking of steps to avoid such a situation, is sufficient conduct to bring a prison officer within par 5.5 of the Procedure in my opinion. Furthermore, on the day in question on or about 9 December 2020, the appellant admitted that his friend also supplied him with illegal drugs. I would add however, there was no suggestion by the respondent that to ‘supply’, in the context of the third ground for removal, implied that the appellant had a supply of illicit drugs from elsewhere.

37      There was no suggestion from the appellant, either in his response to the notice of loss of confidence, or in submissions made on his behalf in this appeal, that he was unable to cease his association with his friend, at least whilst his friend participated in illegal activity, and there had been at least one other person present regularly it seems, likewise engaged. There was no suggestion that the appellant’s continued association, which appears to continue, was other than voluntary. As the respondent contended in his oral submissions in the hearing of the appeal, the situation may be different if a prison officer, on becoming aware that a person(s), with whom the officer voluntarily associates outside of the workplace, possesses, uses, or supplies illicit drugs to others, withdraws from that association as soon as this becomes apparent. I consider such a situation would be different.

38      However, this was not the circumstance in the present case. I consider that the respondent’s conclusions in relation to this ground of removal were open, given the respondent’s clear position on illicit drugs in prisons and for prison officers. The continued voluntary association by a prison officer, with a person(s) who the prison officer knows to be a user or supplier of illegal drugs, and who has on his premises another known user of illicit drugs, is inconsistent with the standards the respondent has set for prison officers, in terms of their conduct or behaviour. In my view, the continuation of such an association raises a legitimate concern for the respondent, as to the attitude of a prison officer to illicit drugs, and specifically, if the prison officer was to encounter the possession or use of illicit drugs in a prison. Would the officer turn a blind eye, or would he/she take appropriate steps? The propensity for such attitudes to be susceptible to corrupting influences in a prison environment is quite apparent. This is a matter which goes directly to the special relationship between a prison officer and the respondent, and the maintenance of public confidence in the integrity, honesty, conduct and standard of performance of prison officers. It is that doubt in the mind of the respondent which, in my view, can lead to a loss of confidence in the officer.  

Honesty and contrition

39      The appellant contended that he was candid with the respondent in his post-test interview and admitted the use of cannabis on or about 9 December 2020. Also, that he has admitted the use of cannabis on at least two prior occasions; one when he was a teenager and another occasion when he again consumed a portion of a cannabis cookie, seemingly a few years prior to the random test the subject of these proceedings. On the basis that the appellant has been a prison officer for many years, this latter consumption would have taken place whilst the appellant was subject to the obligations of a prison officer in the custodial system.

40      According to the appellant, this candour, along with his contrition, in accepting responsibility for his actions and expressing regret, are mitigating circumstances in this case.

41      There are some difficulties with this contention, which diminish its impact. Primarily, as I raised with counsel for the appellant during the hearing of the appeal, the fact that the appellant did not self-report his use of cannabis at the first opportunity on returning to work after 9 December 2020 is of some significance. It was not until he had the random test, and returned a positive test result, that he admitted his prior conduct. The appellant was aware that the respondent undertook random drug tests because as already noted above, he said he had been tested previously. It is open to infer, and I do infer, that the appellant took his chances, on the basis that his consumption of illegal drugs would not be detected. Once the presumptive positive test result was returned, it must have been readily apparent to the appellant that the subsequent laboratory analysis to be conducted, would confirm his prior ingestion of cannabis.

42      As noted, the appellant did not admit his prior use of cannabis, which he thought occurred a couple of years prior to December 2020. Furthermore, the appellant’s written response to the notice of loss of confidence dated 19 February 2021 (see pp 48-49 respondent’s bundle) refers at p 48, to the appellant saying to the respondent that he had never taken any drugs in any form before. This was at odds with his statements to the respondent’s officers in the post-test interview on 11 December 2020 (see p 17 and p 19 respondent’s bundle) where he told them that he had, a couple of years prior, consumed a part of a cannabis cookie, but did not smoke cannabis.

43      I consider it to be more likely that the post-test interview was a more accurate account of the appellant’s prior conduct (which was not disclosed at the time), rather than his formal response given some months later, when the appellant had time to reflect on the possible consequences of his conduct.

44      As pointed out by the respondent in his submissions, there is a further inconsistency in the material before the Commission, as to the appellant’s prior conduct which is apparent from the content of the medical report of Dr Lee dated 29 October 2021. Dr Lee reports that the appellant told her that he only recalled the prior use of cannabis at a party some 20 years ago and had no other drug use at all. This is at odds with both his post-test interview, and with his written response to the respondent’s notice of loss of confidence. Likewise, is the statement from the appellant’s psychologist Ms Schutz dated 14 December 2020, (see p 50 respondent’s bundle) to the effect that the occurrence on 9 December 2020 was ‘the first and only time that Mr Byers has had marijuana or indeed any illegal substance’. Whilst I do not place great weight on this material, and the respondent did not contend that the appellant was dishonest in his interview and responses as a ground for removal, these inconsistencies do cause me some apprehension.

45      Given the specific reference to self-reporting in the Procedure, and the apparent different pathway available to prison officers in such a situation, I would imagine the respondent would be inclined to deal with such cases differently. If this were not so, then one would expect there would be little or no incentive for officers to self-report, thus undermining this aspect of the respondent’s overall approach.

46      I am not therefore persuaded that the appellant’s arguments in the context of these issues, is sufficient to outweigh the gravity of his conduct in terms of the removal action taken by the respondent.

Mitigating circumstances and the public interest

47      It was common ground that the appellant had a good service history with the respondent. In this respect the appellant relied on five character references from colleagues, in support of his opposition to the removal action. However, the appellant’s good standing with his peers, admirable that it may be in other contexts, is not strictly relevant to the grounds of removal for the following reasons.

48      Firstly, the fact of testing positive for illicit drugs and the consumption of cannabis, two days prior, was not impacted by the appellant having a good service record and being well regarded by his peers. As noted by the respondent in his submissions, the prior admitted use of cannabis whilst also a prison officer, also diminishes the aspect of good service. Similarly too is the letter from his general practitioner to the effect that he had not seen signs of drug use in 18 years of treating the appellant as a patient. Whilst it may be accepted that this is so, it does not mean that the appellant has not consumed cannabis on occasions, including as a prison officer, contrary to the respondent’s policies, and as admitted by the appellant in his post-test interview.

49      Whilst in a similar vein, Dr Lee refers to the appellant’s consumption of drugs on 9 December 2020 as a lapse of judgement, there must have been an additional lapse of judgement a couple of years prior. The fact that the appellant reported to Dr Lee not making the connection between his conduct and his work as a prison officer is of some concern, given the importance of the respondent’s clearly articulated policies and attitude to illicit substances in prisons, and amongst prison officer ranks. It is also a factor capable of undermining the confidence held by the respondent in the appellant. The inconsistencies referred to above, between what the appellant told the interviewers in the post-test interview, his response to the notice of loss of confidence and his reported comments to his treating health care professionals, also cause me some hesitation in relation to this aspect of the appellant’s challenge to his removal.

50      Additionally, the previous use of cannabis by the appellant is a factor weighing against the good record issue. Whilst matters of character and employment history are factors to be considered in the overall assessment of whether a loss of confidence is open in a particular case, or whether not taking such matters into account renders a removal unfair, I am not persuaded that they are of such weight to override other relevant considerations on this occasion.

51      In terms of the appellant’s explanation for his conduct, that he was suffering stress due to difficult personal circumstances at the time, it is to be acknowledged that the appellant did not seek to shift blame to others for his conduct. However, given that the appellant has been suffering such personal difficulties for some time, and has been receiving professional assistance for these difficulties, without the need to resort to illicit substances, this significantly diminishes the strength of this factor.

52      As to the appellant’s remorse and his contention that it was a one-off incident, the latter is, on the appellant’s own admissions, not the case, given the earlier transgression. As I have noted above, the inconsistencies in the appellant’s accounts about the past also have left me with some reservations. I accept the appellant was remorseful.  But it must also be said, this remorse must be seen in the context of the prior occasion of illicit drug use, not admitted at the time.

53      Finally, the appellant made submissions to the effect that with over 20 years of service as a prison officer, it was in the public interest that his services be retained. The difficulty with this contention is that the respondent, having concluded that he has lost confidence in the appellant as a prison officer, for good cause, he should not be required to retain a prison officer in whom he has properly lost confidence, only because of a lengthy period of service. It is that essential character of maintaining public confidence in prison officers through their integrity, honesty, conduct and standard of performance, which underpins the public interest element, for the purposes of s 107(4)(b) of the Prisons Act.

54      There can be no doubt that the loss of his position as a prison officer is a matter having consequences for the appellant, in terms of his interests under s 107(4)(a). Where however, as in this case, the respondent has lost confidence in a prison officer for reasons that were reasonably open for him to do so, it would be at odds with the statutory scheme to conclude that because a removal decision may have more of an impact on person A rather than person B for example, that should therefore negative or reduce the level of loss of confidence in person A, to a point where it is overridden. Whilst I have sympathy for the circumstances the appellant found himself in, at the end of the day, the appellant has not established that the removal decision of the respondent was harsh, oppressive, or unfair.

Conclusions

55      For the foregoing reasons I would dismiss the appeal.

COSENTINO SC:

56      Mr Alexander Byers was removed from his position as a prison officer on 27 January 2021 because he breached the Department of Corrective Service’s policy requiring that prison officers avoid illicit drugs when off duty.

57      Mr Byers admitted the breach of the policy.  The facts that constitute the breach are not in dispute.  Briefly, Mr Byers was socialising with his friend at his friend’s home on 9 December 2020.  His friend gave him a piece of a marijuana cookie.  He consumed the piece of the marijuana cookie when he arrived home, before going to bed.  When he attended work at Hakea Prison on 11 December 2020, he was subjected to a random drug test which returned a positive result for THC/cannabis.

58      Mr Byers accepts that his conduct whilst off duty on 9 December 2020 failed to meet the standard required of him as a prison officer.  Without seeking to deflect responsibility for his own poor judgement, he nevertheless argues that contextual and mitigating circumstances are such that the removal action by his employer is harsh, oppressive or unfair under s 107 of the Prisons Act.

59      Accordingly, the issues for the Commission to decide are:

(a) whether the seriousness of Mr Byers’ conduct justified removal action for loss of confidence;

(b) what are the relevant mitigating circumstances, and do they render his removal harsh; and

(c) how public interest considerations should be weighed in the removal action process.

60      Under the Prisons Act, Mr Byers was employed by the Minister for Corrective Services.  The ultimate removal is by the Minister for Corrective Services, made upon the recommendation of the Chief Executive Officer of the Department of Justice.  The Director‑General is the Chief Executive Officer of the Department of Justice.  The appeal is against the ‘removal decision’.  The removal decision is the Director‑General’s decision to take removal action: s 99 of the Prisons Act.  The Prisons Act specifies that appeals are against the removal decision (not the dismissal decision) and that the Director‑General is the necessary and only respondent to an appeal: s 106 of the Prisons Act.  Given this nuance and complexity, in these reasons, I use the term ‘employer’ as shorthand to refer to the relevant entity or authority, whether that be the Minister, the CEO/Director‑General or the Department, unless greater precision is necessary.

Legislative provisions relevant to this appeal

61      Under Part X, s 101(1) of the Prisons Act, the Director‑General may take removal action against a prison officer if the Director‑General does not have confidence in a prison officer’s suitability to continue as a prison officer having regard to their integrity, honesty, competence, performance or conduct.

62      This appeal is brought pursuant to s 107 of the Prisons Act, which provides:

107. Proceedings on appeal

(1) On the hearing of an appeal, the WAIRC must proceed in the following manner —

(a) first, it must consider the chief executive officer’s reasons for the removal decision;

(b) second, it must consider the case presented by the appellant as to why the removal decision was harsh, oppressive or unfair;

(c) third, it must consider the case presented by the chief executive officer in answer to the appellant’s case.

(2) The appellant has at all times the burden of establishing that the removal decision was harsh, oppressive or unfair.

(3) Subsection (2) has effect despite any law or practice to the contrary.

(4) Without limiting the matters to which the WAIRC is otherwise required or permitted to have regard in determining the appeal, it must have regard to —

(a) the interests of the appellant; and

(b) the public interest, which is to be taken to include —

(i) the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of prison officers; and

(ii) the special nature of the relationship between the chief executive officer and prison officers.

63      The approach the Commission is to take in determining appeals from loss of confidence removals was recently set out in Frantzen v Director‑General Department of Justice [2022] WAIRC 00050; (2020) 102 WAIG 139 at [20]‑[23]:

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.

64      The relevant principles are, therefore:

(a) The appellant bears the burden of establishing that the removal action was harsh, oppressive or unfair: s 107(2).

(b) In determining whether the removal decision was harsh, oppressive or unfair, the Commission is to first determine whether there is a logical and sound basis for the Director‑General to find as he did.  Are the reasons actually made out?  The Commission should be attentive to the Director‑General’s reasons, examining them closely in terms of substance and the process by which they were formulated: Carlyon at [15]; Ferguson v The Commissioner of Police [2017] WAIRC 00238; (2017) 97 WAIG 502; Abdennabi at [57].

(c) Reasons must be based on evidence and conclusions reasonably open to be drawn: Carlyon at [16].  If there is a sound, logical reason for removal, then, even if an aspect of the Director‑General’s reasons is invalid or mistaken, it does not necessarily mean that the whole of the decision ought to be overturned.

(d) It is the overall reasonableness or fairness of the decision, taking account of all of the circumstances, which is significant: Polizzi at [144] and McGrath.

(e) The grounds of appeal mark out the scope of the issues to be determined: Beverley v The Commissioner of Police [2017] WAIRC 00270; (2017) 97 WAIG 627 at [43]‑[44].

(f) The test of whether the removal action was harsh, oppressive or unfair is the test set out in Undercliffe.  That is whether the employer’s lawful right to dismiss an employee had been exercised so harshly or oppressively as to amount to an abuse of that right.  Harshness in this context refers to considerations of the gravity of conduct and mitigating circumstances.

(g) Additionally, the interests of the applicant and the public interest must be considered.  The express reference to these considerations in the legislative scheme is an indication that these considerations should be given substantial weight: Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139 at [14] citing Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458.  This requirement is directed at ensuring that the industrial standard applied is particular to service under the Prisons Act: Carlyon at [183], [186].

(h) It is, in the final analysis, a judgment as to whether the applicant’s interests outweigh the detriment that is suffered to the public interest: Carlyon at [214].

(i) As the decision being appealed is a removal for loss of confidence, rather than a decision to dismiss, the focus is not on whether the penalty is too severe for the conduct, but rather whether the fact the conduct was committed can fairly lead to a conclusion that the person is not suitable to be a prison officer: McGrath [21]‑[22].

65      While the Commission is to apply the same principles as apply to appeals against loss of confidence removals under the Police Act, it does not necessarily follow that the outcomes in analogous cases will be the same for police officers and prison officers.  In Carlyon, the Commission described the relevant factor, the context of the relationship between the Commissioner of Police and members of the police force at [186]:

In our view this provision serves to remind the WAIRC to take into account that the nature of the relationship between the Commissioner of Police and members of the Police Force extends beyond those duties and obligations which are implied in normal employer/employee relationships.  It goes beyond the member’s duty of honesty, fidelity, obedience and to co‑operate and the Commissioner of Police’s duty to provide training and a safe work environment.  It encompasses the commitment of a member to discharge the requirements of his/her commission whether on duty or off duty and to serve as a member of a disciplinary force.  While the very nature of policing assumes that the environment in which members discharge their duties will not always be safe it is the duty of the Commissioner of Police to ensure that members receive appropriate education, training, information and supervision in order for them to make decisions appropriate to the proper discharge of their duties and in the public interest.

66      While prison officers certainly hold positions of trust that demand high standards of integrity and honesty, their duties and responsibilities are not on all fours with police officers.  Reference to the oath of office of police officers under s 10 of the Police Act 1982 (WA), reveals that police officers are sworn to prevent crime and protect the community at large.  Under s 13 of the Prisons Act, prison officers have responsibility for the security of prisons and the welfare of prisoners and their co‑workers.  The distinction will have varying or no practical significance depending on the particular case.  However, perhaps particularly when it comes to out of hours conduct, the difference in the nature of the two occupations might lead to different conclusions as to the suitability to continue in the occupation on the same facts.

Policies to address the impact of drugs in prisons

67      It should be acknowledged that the impetus for restricting prison officers’ use of and involvement with illicit drugs outside of the workplace is unique to the prison context.  In some workplaces, drug and alcohol policies are geared towards and are intended to promote safety in the workplace, particularly in the operation of plant and machinery.

68      In the prisons context, such policies are not merely to promote safety in prisons, but are also directed at the particular risk of corruption of prison officers or the potential for them to be compromised in the course of performing their duties to maintain the security of prisons, and manage prisoners, many of whom have a history of offending connected with either the use or supply of illicit drugs.

69      Accordingly, the employer has, over many years, committed significant resources to research and develop policies and practices to address the impact of alcohol and other drugs on Western Australian prisons.

70      The Western Australian Prisons Drug Strategy 2018‑2021 (Strategy) documents:

(a) the significant links between drug use and criminality;

(b) the existence of close relationships between imprisonment, illicit and injecting drug use, and the prevalence of blood‑borne virus infections in prisoners; and

(c) the important role that the criminal justice system has in supporting offenders with drug problems and in facilitating treatment, including the unique opportunities the prison environment provides to engage and retain individuals in treatment programs.

71      As stated in the Strategy:

The availability of contraband contributes to a weakening of good governance within a prison and undermines the aims of making a prison environment safe and secure.  Perceptions about inadequate control and poor security can be created, and this can undermine public confidence in the prison system.

72      Having strategies that address demand, supply and harm reduction are necessary not only for the maintenance of good order in prisons but also for the safety, health, rehabilitation and reduction of offending amongst the prison population.

73      According to the Strategy, the drug testing of staff/prison officers is important for promoting community confidence in prison officers and serves as a deterrent to serious misconduct, corruption and criminal behaviour.

74      It is also relevant that the Strategy seeks to minimise the demand for drugs by:

…encouraging individuals, families and communities to develop the knowledge and skills to choose healthy lifestyles.  The goal of demand reduction strategies is to assist the offender achieve abstinence or reduce their use of drugs and alcohol by providing access to services to address these problems.

75      The Strategy includes the provision of training to new operational staff in the form of a one day drug and alcohol course to broaden their knowledge, skills and abilities to better understand and manage prisoner drug using behaviours.  This training is delivered by the Western Australian Mental Health Commission.

76      It is therefore not only legitimate but also necessary that the employer have policies and procedures to ensure prison officers do not become involved in or use illicit drugs outside of the workplace.  Should they do so, they would undermine the Strategy as described above.

77      The employer has developed Prison Procedure 402 (the Policy) for drug and/or alcohol testing of prison officers to:

…promote community confidence in the ethical health of the Department.

78      Serve as a deterrent against serious staff misconduct, corruption and criminal behaviour.

79      The principles underpinning the Policy are as follows:

4.1. All employees are expected to abide by the Department’s vision, mission and values to uphold the behavioural standards set out in the Department’s’ Code of Conduct 2015 in the daily performance of their work.

4.2. The principles of natural justice and procedural fairness must underpin the processes of DOA testing and any subsequent discipline or removal action.  This is outlined in 4.2.1 to 4.2.3:

4.2.1. Custodial officers subject to DOA testing will be informed of the following:

• Basis for testing (random, targeted or mandated);

• Type of testing media required from them;

• Any allegations against them giving rise to DOA testing

• Outcome of testing analysis.

4.2.2. All persons appointed to conduct DOA testing must be objective and impartial in undertaking all DOA testing.

4.2.3. DOA testing will be conducted:

• In a timely manner with no undue delay in sample collection and related DOA testing proceedings

• With confidentiality respected and maintained within the constraints of the need to fully investigate the matter and subject to any legal requirements for disclosure and privilege.

80      Insofar as the Policy imposes positive obligations on prison officers, the relevant provisions are:

…

5.4. Custodial officers must not present for duty whilst under the effects of alcohol or drugs.

5.5. Custodial officers must not engage in behaviour or conduct outside the workplace that involves illegal drugs.

…

5.10. Discipline

5.10.1. Custodial officers who do not comply with these Procedures may be subject to disciplinary or other corrective action by the Commissioner.

5.10.2. Non‑compliance may include:

• Refusal to comply with a requirement to undergo DOA testing.

• Avoidance or delay of DOA testing by the custodial officer without written medical explanation.

• Provision of false or misleading information regarding the inability to provide a testing media.

• Provision of false or misleading information regarding a positive presumptive result.

• Tampering with the DOA testing process, including possession or use of a masking agent prior to a DOA testing process.

5.10.3. Custodial officers who return a confirmed adverse test result may be subject to disciplinary or other corrective action by the Commissioner.  This is pursuant to regulation 37 and 38 of the Regulations.

…

6.1. Persons to whom the Commissioner's authority to conduct or direct drug and alcohol testing is delegated.  These are:

• Executive Director Operational Services

• Director Investigation Services

• Director Security and Response Services

6.2. Custodial officers subject to DOA testing must:

6.2.1. Comply with a direction made by the approved person under the regulations, including to:

• Attend DOA testing at a time and place nominated by the approved person.

• Provide a sample(s) of testing media to the approved sample collector or blood sample collector.

• Provide identification to the approved person pursuant to regulation 16 of the Regulations.

…

81      The Policy sets out the consequences of a custodial officer presenting with an adverse test result for alcohol or drugs under part 13 as follows:

13.1. Where a custodial officer presents a confirmed adverse test result for alcohol or drugs, he/she may be subject to the following actions by the Commissioner:

• Referred to Investigation Services Directorate for potential disciplinary action;

• Referred to the Department’s Employee Welfare Services for review; and/or

• Have managerial interventions imposed upon him/her.

13.2. A custodial officer, other than a contract prison officer authorised under section 15I to carry out prison officer functions and/or who require permits to do high‑level security work under 15P Prisons Act 1981, who presents a confirmed adverse test result for alcohol or drugs may also be subject to:

• Removal action against him/her under Part X Prisons Act 1981 or Division 3 of Part 3 of the Young Offenders Act 1994; or

• Disciplinary action against him/her under the Public Sector Management Act 1994 Part 5.

13.3. A contract prison officer authorised under section 15I to carry out prison officer functions and/or who require permits to do high‑level security work under 15P Prisons Act 1981 who presents a confirmed adverse test result for alcohol or drugs will have his/her permit to do high level security work revoked.

13.4. Custodial officers who present a confirmed adverse test result for alcohol or drugs may be subject to rehabilitation or counselling and a planned target testing regime.  This regime will involve the collection of the staff member’s urine for the purpose of analysis once a week for the first four weeks and then once a month for five subsequent months.

13.5. The decision for the custodial officer to participate in counselling or rehabilitation as opposed to the disciplinary process is at the discretion of the Commissioner.

82      The Policy also deals with self‑reporting in the following terms:

14.1. Custodial officers who believe they have an issue regarding the use of alcohol or drugs may self‑report to their Superintendent where they will be directed to the appropriate areas to receive support and/or counselling.  The custodial officer may subsequently be subject to a series of target testing events to ensure compliance with any rehabilitative regimes.

14.2. Custodial officers who believe they have involuntarily or unknowingly consumed alcohol while on duty, or any targeted drugs may self‑report the occurrence to their Superintendent, supervisor or officer‑in‑charge.  The custodial officer will be subject to an immediate target test and subsequent target testing events to ensure there is no further drug use.  This is in accordance with regulations 32 and 33 of the Regulations.

14.3. In both of the above self‑reporting events, support and/or rehabilitation as opposed to disciplinary action is the desired outcome.

14.4. A custodial officer cannot self‑report as a result of being chosen to participate in DOA testing.

Mr Byers’ breach of the Policy

83      As indicated above, Mr Byers accepts that the Policy applied to him and that he was in breach of cl 5.5 of the Policy by engaging in behaviour or conduct outside the workplace that involved illegal drugs.

84      It is worth outlining some further context to the breach.

85      As at December 2020, Mr Byers was 64 years of age.  He had been working with the Department of Justice for over 20 years and at Hakea Prison for the entirety of that period.  As at December 2020, he was a Chef Instructor in Hakea’s kitchen.

86      In his interview with the test sample collectors on 11 December 2020, Mr Byers explained that after he had finished work on Wednesday, 9 December 2020, he went around to his friend’s home to have a couple of beers.  He was not rostered to work the following day.  His friend gave him a piece of a cookie and said words to the effect ‘You should take this, it will calm you down/help you sleep’.  The piece of the cookie was apparently offered in response to Mr Byers having disclosed some anxiety or worry about his wife’s health and condition.  He took the piece of cookie home with him, leaving his friend’s house at around 5.00 pm, and consumed it when he was at home.  The amount he consumed was described by him as being smaller than a 20‑cent piece.

87      When asked by the sample collectors why he took the piece of cookie, Mr Byers responded:

Well, just to chill out because I’m having ‑ my wife is not well and he said it would just calm me down because, you know, she’s having a lot of problems so he said it’d just calm me down because I get ‑ just calm me down, so yes…

88      The urinary sample testing results from the workplace random drug test indicated the presence of the cannabis metabolite alpha‑9 THC at a concentration of 89 µg/L, substantially above the confirmatory cut‑off concentration of 15 µg/L.  The report concluded that Mr Byers may have consumed a cannabis load equivalent to a NIDA standard cannabis brownie more than 24 hours but less than a week prior to testing, but that it was not expected Mr Byers would have had any cannabis‑associated task performance impairment at the time of testing.

89      Mr Byers had no previous history of warnings or disciplinary action taken against him.  He has had no prior action taken regarding his conduct, performance or competence.

90      In his letter in response to the removal action dated 19 February 2021, he stated:

…

I have been under quite a lot of stress at home at the time of the(sic) my wife is not well physically and mentally.  We have been seeing a psychologist from Aug 2020.

I have never ever taken any drugs in any form before, and never ever smoked a cigarette.

…

On the day in question when I got home things got very stressful, so I went to a friends in the late afternoon had a beer.  He is in his late sixties and battling bladder cancer told him what was happening he gave me about a quarter of a cookie he sometimes said it might chill me out a bit and help me sleep, so in stupid and serious lack of judgement without thinking I took it with another couple of beers when I got home,

I knew I had at least the next day off.

…

The removal action

91      The Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 (WA) set out the consequences of a confirmed adverse test result for drugs at reg 38 as follows:

38. Consequences of an adverse testing outcome: drugs

(1) Subject to subregulation (2), if testing of a selected prison officer returns a confirmed adverse test result for drugs the chief executive officer may take one or more of the following actions in relation to that prison officer or contract prison officer —

(a) refer the prison officer or contract prison officer to the Department’s employee welfare unit for review;

(b) impose managerial interventions in relation to that prison officer or contract prison officer;

(c) initiate removal action against a prison officer under the Prisons Act 1981 Part X or disciplinary action against a prison officer under the Public Sector Management Act 1994 Part 5 (where applicable);

(d) revoke the permit of a contract prison officer to do high level security work under section 15P of the Act.

(2) If testing of a prison officer returns a confirmed adverse test result for drugs and the drug found or ingested is —

(a) a drug set out in the Misuse of Drugs Act 1981 Schedule I or II; or

(b) a Schedule 8 poison or a Schedule 9 poison as those terms are defined in Medicines and Poisons Act 2014 section 3; or

(c) a specified drug within the meaning of the Misuse of Drugs Act 1981 section 3(1); or

(d) a masking agent,

the chief executive officer may accept the resignation of the prison officer, or may take removal action against that prison officer under the Prisons Act 1981 Part X.

(3) Subregulation (2) does not apply if the adverse test result for drugs is to —

(a) a masking agent; or

(b) a Schedule 8 poison as defined in the Medicines and Poisons Act 2014 section 3,

that has been prescribed to that prison officer by a medical practitioner.

92      Therefore, it is clear that the testing results on 11 December 2020 gave legitimate cause for the Director‑General to initiate removal action against Mr Byers.  He did so.  On 24 December 2020, Mr Byers was given written notification that the Director‑General had decided to commence removal action against him under the loss of confidence provisions contained in Part X Division 3 of the Prisons Act.  Mr Byers was stood down on full pay while the loss of confidence process took place.

93      On 27 January 2021, the Director‑General wrote to Mr Byers confirming his decision to commence removal action pursuant to Part X Division 3 of the Prisons Act, following receipt of a summary of investigation and consideration of the documents contained in the inspection list of documents.  The particular conduct upon which the loss of confidence was based and the grounds for losing confidence in Mr Byers’ suitability to continue as a prison officer were set out in the correspondence as follows:

…

Particular conduct or behaviour on which my loss of confidence is based

7. On 16 August 2005, you took the Oath of Engagement Section 13(2) of the Act and are considered to be a sworn prison officer.

8. At about 1000hrs on 11 December 2020, whilst on duty as a Chef Instructor at Hakea Prison, you were the subject of a random drug test.  You complied with a request that you provide a sample of your urine to an approved collector from the Drug and Alcohol Testing Branch.

9. Your urine sample returned a presumptive positive result to cannabis.

10. Immediately following the presumptive positive test result and in accordance with regulation 24 of the Drug and Alcohol Regulations (D&AR), you were provided with an opportunity to explain the result of the presumptive positive test prior to further analysis.

11. In your interview you and the testing officers refer to cannabis by another widely used term for the same substance, namely marijuana.  In this notice, the substance for which you returned a positive result to will be referred to as marijuana.

12. In your interview you stated that on the evening of Wednesday 9 December 2020, you attended a friend’s residence where he gave you a part of a cookie that you took home later and consumed.

13. You further stated that your friend had advised you that the cookie contained marijuana, prior to you ingesting it.

14. You advised that you attend your friend’s house once or twice a week for a beer and he is sometimes accompanied by another friend who also smokes marijuana, but the other friend was not in attendance on the evening of 9 December 2020.

15. You further stated that you have used marijuana twice previously.  Once when you were sixteen when you attempted to smoke it, and another time “a couple of years ago”, when you also ingested a cookie.

16. You further stated that you have never brought drugs into any prison, or made any cookies yourself and are aware that the department consider marijuana, to be illicit substance.

17. Your urine sample was later analysed by SafeWork Laboratories who conducted a urine assay.  They provided a report on 11 December 2020, confirming the positive test result for cannabis.  This report also concurs with the information you provided to the testing officers on 11 December 2020.

Grounds on which loss of confidence is based

18. As the Director General responsible for the provision of the Department’s services in this State, I am required to consider your conduct in the context of my responsibility to the community to ensure that officers in the Department are suitable for their office. This involves a consideration of your suitability on the grounds of honesty, integrity, conduct, competence and performance.

19. In summary, based on the following conduct and behaviour, I have lost confidence in your suitability to remain a prison officer on the grounds of your integrity and conduct.

a) You were subject to a random drug test and returned a confirmed positive result, to the ingestion of cannabis.

b) You admit to consuming ‘marijuana’ two days prior to the test.

c) You admit to socialising with associates outside the workplace who possess, use and supply you with ‘marijuana’.

20. To be clear, each of the three behaviours and conduct outlined in paragraph 19 above, form a separate grounds for my loss of confidence in you, on the basis of your integrity and conduct.  In other words, each ground listed in paragraph 19 a), b) and c), in itself and without the others, forms the basis for my loss of confidence.

21. In determining that this conduct and behaviour has caused me to lose confidence in your suitability to remain a prison officer, I have considered the special relationship I must have with prison officers who are exercising significant powers in a prison environment that operates largely away from public scrutiny.

22. The environment is also one in which, in certain circumstances, prison officers are highly susceptible to corruption.  The use of illicit drugs and maintenance of associations with drug users outside the workplace is one such circumstance.

23. The WA Prisons Drug Strategy 2019‑2020 includes the goal of Supply Control.  This includes drug testing of staff to serve as a deterrent to serious misconduct and criminal behaviour.  The policy underpinning the strategy is contained in Prison Procedure 402 Drug and/or alcohol testing for prison officers. This policy clearly sets out the Department’s approach to prison officers who use or are associated with the use of drugs:

o Prison officers must not present for duty whilst under the effects of alcohol or drugs;

o Prison officers must not engage in behaviour or conduct outside the workplace that involves illegal drugs;

o The Department is committed to providing and maintaining a workplace which is safe for employees, visitors and those in our custody or care;

o The Department is committed to maintaining a workforce that demonstrates the highest standards of accountability, integrity and ethical behaviour; and,

o The possession and use of illicit substances by prison and custodial officers is a significant issue for the Department and its reputation.  The community is entitled to expect the highest standards of accountability, integrity and ethical behaviour.

24. The Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 specifically contemplate that the consequences of an adverse testing outcome to Schedule I or II drugs under the Misuse of Drugs Act 1981 (which includes cannabis) are for the Director General to accept the resignation of the prison officer or take removal action under Part X of the Act.

25. The associations maintained by prison officers are critical to the confidence that I as the Director General can maintain in the officer.

26. Your conduct and behaviour is incongruous with your professional responsibilities and the vision, mission and values of the Department.

27. The community is entitled to expect that persons holding the office of prison officer have and maintain the highest levels of integrity and ethics.  Your conduct falls well below these standards.

…

94      Mr Byers was given 21 days to respond to the grounds and state why confidence in his suitability to continue as a prison officer should be retained.

95      Mr Byers provided his response on 19 February 2021.  Some parts of his response have been set out above.  He also says in his response:

…

I cooperated and told the truth immediately at random test on 11 December.

…

I have never compromised myself in my difficult and challenging work and believe I do a very good job at training and helping some difficult and challenging prisoners work through the production and delivery of so many meals at Hakea, I am sure my supervisor senior staff and management would vouch for my honestly, integrity performance and conduct.

I acknowledge that my actions have caused an issue within the Department and for this I am truly sorry.

I can only express my regret and assurance that this was a one off incident and would never happen again.

I hope you can take all of the circumstances into consideration and allow me to continue in a job I have given my all to over the years and still take great pride in.

I have also attached a number of references as to my character along with two references from medical practitioners as to my state of mind and confirming that I have never had issues with drug use…

96      Mr Byers’ psychologist, Ms Joan Schutze, provided a letter in support of Mr Byers, which was attached to his response.  It confirmed that she was providing counselling to Mr Byers and that he had been dealing with stressful situations in his personal life, which contributed to a lapse of judgement on Wednesday, 9 December 2020.  Ms Schutze also stated:

…

Mr Byers is responsible and takes his commitment to his work very seriously, so his current situation of having been stood down as a result of returning a positive drug test on Friday has been extremely difficult for him.  Additionally, Mr Byers has found that being able to focus on his work duties has been an important way of being able to manage and cope with his personal stresses.

…

97      Ms Schutze suggested that the situation is ‘…very unlikely to ever happen again…’.

98      The response was also supported by a brief letter from Mr Byers’ GP, who stated that Mr Byers had been his patient for 18 years and that there had never been any sign of drug abuse.

99      Also attached to Mr Byers’ response was five character references from work colleagues which refer to Mr Byers as professional, having a high degree of integrity and honesty, an excellent work ethic, good interpersonal skills and being well liked by peers, managers and prisoners.

100   The Director‑General received and considered Mr Byers’ response and issued a letter confirming the Minister’s approval of the Director‑General’s recommendation of the removal with effect from 27 July 2021.

101   In finding each of the grounds substantiated, the Director‑General reasoned as follows:

…

12. Having considered your Written Submission, I take the view that there were alternative ways for you to manage your personal issues without resorting to the use of illicit drugs.  If I were to accept the statements in your Written Submission as fact, it would be reasonable for me to assume that given you ‘have never used drugs in any way before’ you possess alternate coping mechanisms you could have relied on.

13. However in considering your responses given during the post‑test interview it is clear that, contrary to the claim in your Written Submission, you have acknowledged your prior use of cannabis on two separate occasions, the last of which you claim was ‘a couple of years ago’.

14. Overall, your response to the first ground does not persuade me that the seriousness of your positive drug test to cannabis is mitigated by the matters you have raised in your Written Submission.  Accordingly, I maintain my loss of confidence in your suitability to continue as a prison officer based on the first ground outlined in paragraph 19(a) of the NLOC.

…

16. You have asked me to consider that you have admitted the use of cannabis and ‘told the truth immediately’ after the random drug test on 11 December 2020.  Whilst this is not an insignificant consideration, it must be done so within context.  My loss of confidence is not based on concerns about your honesty in your post‑test interview.

17. Prior to the test being carried out, you were aware that the Department considered cannabis to be an illicit substance.  To declare that you had recently ingested cannabis before the test was conducted, would have been ‘immediately’.  You only declared your cannabis use once the drug test was completed and returned a positive result, leaving you little option but to do so.

…

21. Each explanation you have offered about the circumstances in which you used cannabis confirms that you were socialising with associates outside the workplace who use or possess cannabis.  The settings and circumstances you have described do nothing to assuage my concerns about the impact of these associations on your suitability to remain a prison officer, having regard to your conduct and integrity.

…

23. Finally, I have reviewed the correspondence you have forwarded written by your peers and colleagues, attesting to your competency in your job and work place performance.  None of the matters raised in these character references are relevant to the grounds on which I have lost confidence in you, so are not persuasive in restoring my confidence in your suitability to remain a prison officer based on the grounds set out in the NLOC.

…

102   It is noted that although the Director‑General addresses Mr Byers’ responses as relevant to one or other of the three grounds, it would appear that Mr Byers’ response was intended to be a response to the allegations at large, rather than to individual allegations.

Removal action as the consequence of the positive drug test result

103   As acknowledged above, the initiation of removal action under Part X of the Prisons Act was a legitimate, reasonable and statutorily sanctioned consequence of Mr Byers’ consumption of cannabis and resultant positive test result.

104   It was argued on behalf of Mr Byers that having decided to take removal action in accordance with reg 38 and Part X, the Director‑General was able to decide not to continue removal action after considering Mr Byers’ response.  In other words, having initiated the removal process, the employer was not bound to conclude it by removal on the grounds of loss of confidence.

105   This proposition was not challenged by the employer.  The employer simply reiterated that once the removal action process was initiated, the question then becomes whether the ultimate decision to take removal action was harsh, oppressive or unfair.

106   Mr Byers did not argue that the removal action ought not to have been initiated at all.

107   I agree that the initiation of removal action under reg 38 does not ultimately necessitate the removal of a prison officer.  That is apparent from s 102(3) and (4) of the Prisons Act, which provides:

102. Notice of loss of confidence

…

(3) After the submission period, the chief executive officer must —

(a) decide whether or not to take removal action against the prison officer; and

(b) give the prison officer written notice of the decision (the decision notice).

(4) The chief executive officer must not decide to take removal action against the prison officer unless the chief executive officer —

(a) has taken into account any written submissions received from the prison officer during the submission period; and

(b) still does not have confidence in a prison officer’s suitability to continue as a prison officer.

…

108   The fact that a different decision could have been taken earlier, that there were other possible outcomes of the initiation of removal action, is neither here nor there.  The Commission is required to review the Director‑General’s reasons for removal action and make an evaluation of whether removal action was harsh, oppressive or unfair, in accordance with the scheme of s 107 of the Prisons Act.

Were the Director‑General’s findings sound?

109   The Form 8C ‑ Notice of Appeal contains a single ground of appeal: that the ‘dismissal’ (which should read ‘removal action’) was harsh, oppressive and unfair because the seriousness of the misconduct in Mr Byers’ case is outweighed by significant mitigating and other factors.  This single ground of appeal calls upon the Commission to consider several factors, but it does not challenge the Director‑General’s findings of misconduct.

110   Nevertheless, s 107(1)(a) of the Prisons Act imposes on the Commission a requirement that it consider the soundness of the Director‑General’s finding, as a step in the appeal.

111   From what I have set out above in relation to the removal action, it will be abundantly clear that the findings relevant to the first two allegations were sound.  Mr Byers admitted the conduct.  The first allegation is that Mr Byers was subject to a random drug test and returned a confirmed positive result for the presence of cannabis.  Mr Byers admitted the allegation and made no case that the positive result was other than because of his knowing consumption of cannabis.  In the circumstances, the finding of the allegation as substantiated is implicitly a finding that Mr Byers knowingly and voluntarily consumed an illicit drug.  To that extent, the first allegation and the second allegation that Mr Byers consumed marijuana on 9 December 2020, substantially overlap.

112   The employer accepts that there is no substantive difference between the first two allegations but says that removal action was justified based on one or other allegations separately, rather than as considered cumulatively, so that there is no error on the part of the Director‑General merely by articulating two separate grounds.  I agree.

113   However, I have misgivings about the findings related to the third allegation.  This allegation was that Mr Byers admitted to socialising with associates outside the workplace who possess, use and supply him with marijuana.  My difficulty is not with the soundness of the factual finding that Mr Byers made such an admission.  Rather, my reservation is the implicit consequential finding that the admitted facts mean Mr Byers’ integrity was compromised by those facts such that he was unsuitable to continue as a prison officer.

114   It should be pointed out that the employer does not have a written policy that expressly prohibits prison officers from socialising with associates outside the workplace who possess, use or supply illicit drugs.  Rather, the Policy prohibits conduct that involves illicit drugs.

115   I expect it is uncontroversial that not every association by a prison officer with a third person who uses or possesses illegal drugs will justify removal action.  Parenting a teenager or young adult who has used illegal drugs either recreationally or because of an addiction are examples of practically unavoidable associations which could not be said to taint the parent’s integrity as a prison officer.  Similarly, making contact with a friend who is in a drug rehabilitation program to check on that friend’s welfare is an association, yet it might not be an association that undermines a prison officer’s integrity.

116   Multiple factors relevant to the nature of the association might be relevant in assessing a prison officer’s conduct.  The circumstances of the possession, use or supply of illegal drugs will usually be relevant, that is, the recency, extent and notoriety of an associate’s use of illegal drugs, as well as any prior or pending criminal convictions relating to the possession, use or supply.

117   It is, therefore, appropriate that the Policy refers to something more than a mere association.  By using the word ‘involved’ the Policy suggests conduct that is proactive:  active participation in an activity concerning illegal drugs.  The key, ultimately, is the Policy’s purpose in maintaining the security of prisons and the integrity of the prison system.  Unless the prison officer’s conduct undermines these purposes, it should not result in a loss of confidence.

118   In this case, the admitted facts were that:

(a) Mr Byers visited a friend at the friend’s home once or twice a week.

(b) The friend was in his late sixties and suffering bladder cancer.

(c) During his visit to the friend on 9 December 2020, the friend had three, four or five marijuana cookies in a Chinese container/box and gave Mr Byers ‘a bit of’ one that the friend had broken off.

(d) Mr Byers did not know where the friend got the cookies from.

(e) The friend has a friend (second associate) ‘…that comes round sometimes, he’ll smoke it…’.

(f) Mr Byers had been at his friend’s house when the second associate was there and while the second associate was smoking ‘it’.

119   Additionally, in his response to the removal action, Mr Byers said his friend used cannabis because he had bladder cancer.  He does not say when or how he had knowledge of this fact, but, taken with his statement in interview ‘He doesn’t make them, I think he gets them somewhere else’ it can be inferred that he knew of his friends’ use of cannabis prior to 9 December 2020.

120   I note that the Summary of Interview attributed to Mr Byers an admission that he had witnessed his friend using cannabis.  This was repeated in the Loss of Confidence ‑ Summary of Investigation.  This does not appear to be an admission that Mr Byers in fact made during the interview on 11 December 2020 or at any other time, as was conceded by the employer’s counsel at the hearing of the appeal.  There was no evidence before the Director‑General or the Commission that Mr Byers had been present when his friend used cannabis.

121   From the admitted and inferred facts, it was clearly open to the Director‑General to find that

(a) Mr Byers’s friend and the second associate possessed and used illegal drugs;

(b) Mr Byers knew about their use of illegal drugs; and

(c) Mr Byers acted knowingly and voluntarily to maintain an association with his friend.

122   However, these facts alone are insufficient to find that Mr Byers was in breach of the Policy‑ or engaged in conduct that undermines the Director‑General’s confidence in him.  For the Director‑General to have lost confidence in Mr Byers for the reason of his maintenance of associations with drug users, he needed as a minimum to also find that the association meant that Mr Byers should be regarded as himself being involved with illegal drugs or that his conduct otherwise reflected negatively on his integrity.

123   Mr Byers’ conduct, which is at the heart of the allegation, is his ‘socialising’ with two other individuals.  By describing the conduct as ‘socialising’, the Director‑General has used an imprecise term that does not really describe any particular conduct.  The Macquarie Dictionary relevantly defines ‘socialise’ as ‘to be sociable and mix freely, as at a social gathering’.  Other definitions refer to talking or interacting with others, taking part in social activities, behaving in a friendly way towards others.  Socialising with a person who possesses or uses illegal drugs need not mean involvement with illegal drugs.

124   At the hearing of the appeal, I asked the employer’s counsel how Mr Byers socialising with his friend and the second associate meant Mr Byers was himself involved in illegal drugs.  Counsel gave the example of ‘…sitting down somewhere where someone was using illicit drugs in front of them…’ but counsel also acknowledged that even in those circumstances, there may be reasons why the prison officer is exonerated.  Counsel indicated that making a request that the person cease using drugs in the prison officer’s presence would exonerate the prison officer.

125   Counsel also referred to the circumstances in Morris v Commissioner of Police [2016] NSWIRComm 1034 where Mr Morris, a police officer, attended a reunion at an apartment in the Gold Coast.  While he was there, a man produced a bag of ‘hash cookies’. Mr Morris left 20 minutes after the bag of cookies was produced.  He socialised with the same group of people the following day, in a public bar and then later at the same apartment.  A group of people at the apartment used cocaine and ecstasy, albeit behind Mr Morris’s back.  In these circumstances, his removal from the NSW police was found by the NSW Industrial Relations Commission to be harsh, unreasonable, and unjust.

126   Counsel summarised the employer’s position as:

So that I think, is the sort of flavour that the respondent might be looking for.  It's hard to talk about hypotheticals and I don’t know what now precisely is the relationship between the appellant and this friend, sorry, second associate.  But on the information which was before the respondent and the information that’s before the Commission this is something which is a real concern to the respondent.

127   This reveals the difficulty with the Director‑General’s position.  The evidence could only establish that Mr Byers was present at his friend’s house when the second associate was using drugs.  It did not establish that Mr Byers did anything proactive to maintain an association with the second associate.  The Director‑General’s conclusions are based on a ‘flavour’ or a ‘concern’, not on facts known or inferred from known facts.  The Director‑General’s concern is for possible, unspecified and indeterminate conduct, not probable and definite conduct.  The Director‑General has effectively speculated as to a range of possibilities that might be a reason for losing confidence in Mr Byers.  To that extent, the Director‑General’s findings cannot be said to be sound, logically or rationally based.

128   It might be said that Mr Byers had the opportunity to enlighten the Director‑General as to the precise nature of his associations and any factors which disproved his being involved in illegal drugs in the course of the removal action process.  Even so, this does not assist me to find that the Director‑General’s finding on this allegation was reasonably open for three reasons.

129   First, the Director‑General did not give Mr Byers a clear indication of what conclusions the Director‑General was likely to draw from Mr Byers’ admissions about what happened at his friend’s house during his time there.  Rather, the Director‑General’s Notice of Loss of Confidence letter dated 27 January 2021 suggested that Mr Byers’ admissions were themselves enough to warrant a loss of confidence.  Accordingly, Mr Byers’ failure to provide further details or information about his associations cannot logically or reasonably be taken to be an indication that he had something to hide.

130   While the removal action is not a criminal prosecution nor a civil proceeding, it is recognised in legal proceedings that in order for any adverse inference to be drawn from the absence of an explanation from a party, the nature of the case against the party has to first be such as to require an explanation or contradiction from them: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at [321].  There must be some existing basis in the evidence to support the inference sought be relied upon, before the absence of an explanation takes on any significance: BCI Finances Pty Ltd (in liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227 at [130].  The Notice of Loss of Confidence did not require an explanation about the admitted associations.  Indeed the allegation was expressed to be based on the admissions alone.

131   Second, the inferences that the Director‑General could draw from the lack of information from Mr Byers needed to be reasonable and definite and could not be an inference as to multiple conflicting and equally probable possibilities: Trustees of the Property of John Daniel Cummins v Cummins [2006] HCA 6; (2006) 224 ALR 280 at [34].  The Director‑General has determined no more than that Mr Byers’ associations were ‘cause for concern’ and had a ‘flavour’ that caused concern.  This falls far short of the requirement that an inference be definite.  This is because the evidence did not allow for a definite conclusion that, for example, Mr Byers’ conduct was such as to condone the use of illegal drugs in his presence, or that he maintained his association with his friend in order to be able to access a supply of illegal drugs.

132   Finally, any adverse inference is unreasonable and illogical to the extent that different conclusions are more or equally probable.  If the inference the Director‑General sought to draw was that Mr Byers willingly placed himself in the presence of illegal drug users while they were using, it is, on the totality of the evidence, more or equally probable that his presence while cannabis was being smoked was accidental.  He may have gone to his friend’s house without knowing that the second associate would be there.  He may have been one of a large number of guests at a party.  He may have remained within the house but at a distance from the person smoking marijuana.  His contact with the marijuana smoking activity may have been casual and unintended.  Indeed, in light of the evidence of his rare use of cannabis, his personal circumstances, the character references, and his frankness in the post‑test interview, these inferences are more probable than an inference that he proactively sought to be involved with illegal drug use.

133   It is implicit in the Director‑General’s findings that in order for Mr Byers to maintain his confidence, he had to cease all association with his sick friend because he knew his friend possessed and consumed marijuana cookies.  That expectation is unrealistic and ignores the potential positive and important role that the friendship had for both Mr Byers’ and his friend’s wellbeing.

134   The Director‑General’s reasons relating to the third allegation relied upon conclusions that were not supported by the known facts.  They relied upon speculation as to indefinite and unspecified possibilities that were not put to Mr Byers in terms that enabled him a fair opportunity to explain himself.  Accordingly, in my view, to the extent that the Director‑General found ground 3 to be cause for removal, the Director‑General did not have a sound basis to have so found.

135   However, because the first/second allegation did provide reasonable grounds for removal action, this conclusion is not determinative of Mr Byers’ appeal.

Gravity of the conduct: was Mr Byers’ conduct sufficiently serious to warrant removal?

136   By raising the issue of the seriousness of Mr Byers’ conduct, Mr Byers’ grounds of appeal invite the Commission to make an evaluative assessment of whether his conduct was so serious as to lead to a loss of confidence or whether removal is disproportionate to the gravity of his conduct.  The ground goes to the validity or reasonableness of the reason for removal, as distinct from the consideration of mitigating circumstances.  If the seriousness of the conduct is not sufficient to create a loss of confidence, this will lead to the conclusion that the removal action was harsh: Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 at [71]; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at [465]; Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 per Watson J at [233]; Bista v Glad Group Pty Ltd [2016] FWC 3009.

137   In making this evaluative assessment, the key is the regulatory context in which prison officers, such as Mr Byers, work, including the regulations and policies targeted at fulfilling the Strategy discussed above.

138   In light of the regulatory context, which I have detailed above, it is difficult to see how any involvement by a prison officer with illegal drugs would not be viewed as sufficiently serious to prima facie justify the sanction of removal.  That is not to say, though, that the Commission can circumvent its obligation to consider whether removal action was harsh.

139   To the extent that the Director‑General found that Mr Byers’ knowing and voluntary consumption of an illicit drug on 9 December 2020 was sufficiently serious misconduct to justify removal, I find that conclusion was reasonably open.  In my assessment, none of the context here detracts from the seriousness of Mr Byers’ involvement with an illegal drug by using it.  I accept that Mr Byers’ consumption was unusual for him, that he did not use illicit substances habitually, regularly, occasionally or perhaps ever in recent times.

140   I also accept that he had personal stressors that either clouded his judgement or motivated his conduct.  It is also relevant that his consumption was in the privacy of his own home.  Even so, none of these factors detracts from the prima facie seriousness of becoming involved in illegal drugs outside the workplace by taking possession of and consuming them, even on a single occasion.  The clear expectation is that prison officers astutely avoid involvement with illegal drugs.  Failure to uphold that expectation may reasonably result in a loss of confidence in the prison officer.

141   Having said that, I do not consider Mr Byers’ past use of marijuana implies his conduct should be viewed as significantly more serious either.  In this regard, he admitted trying a little bit of a marijuana cookie once a few years or a couple of years before 9 December 2020.  This means his conduct was not, strictly speaking, a ‘one off’ instance.  However, it is nevertheless exceptional.  He also appears to have admitted trying marijuana smoking when he was 16 years old.  If he had smoked marijuana when he was 16, that is clearly too historical to bear any relevance to the 9 December 2020 conduct.

Mitigating circumstances

142   Under s 107 of the Prisons Act, the Commission may decide that the decision to take removal action was harsh after weighing mitigating circumstances or past good conduct.  In this case, the grounds of appeal and response are considerably focused on the mitigating factors raised by Mr Byers.  They are:

Good previous service and character

143   Mr Byers has in excess of 20 years’ service record with no prior disciplinary issues.  He clearly has good standing with his peers and a very good work record.

144   The employer accepts that Mr Byers has ‘rendered good service’ in his employment but says that it does not bear directly on the grounds for loss of confidence.  That misses the point that the good previous service and character must be weighed in determining whether removal is appropriate.

145   The employer also points out that the weight of Mr Byers’ evidence of good character is lessened in circumstances where he has admitted to illicit drug use on a previous occasion and an ongoing association with an illicit drug user.  As I have found, I do not consider the evidence soundly establishes that Mr Byers was culpable for what ongoing associations he had with his friend and the second associate.  His prior use of marijuana does, to a relatively minor degree, reflect adversely on his character, but the 9 December 2020 conduct was still exceptional.  Overall, Mr Byers’ length of service and good character should be given considerable weight in determining whether the removal was harsh.

Absence of a likelihood of re‑offending

146   Mr Byers’ response to the removal action showed that he had a high degree of insight that his behaviour involved a serious lack of judgment.  His response also shows insight into the factors which contributed to his lapse of judgment.  I find he was genuinely sincere in owning up to his misconduct and his assurances he would not repeat it.

147   Mr Byers started seeing a Psychologist, Ms Schutze, from August 2020 through to at least September 2021 for counselling to help him manage the personal stressors in his life.  He provided the Director‑General with a letter from Ms Schutze dated 14 December 2020 in which she gave her professional opinion that the situation ‘…is very unlikely to ever happen again…’.

148   Mr Byers also tendered, as new evidence by consent, a report of Psychiatrist Dr Yue Chong (Olivia) Lee dated 29 October 2021.  In her report, Dr Lee states:

…

[Mr Byers] is utilising psychological supports appropriately to prevent him from making the same mistake again thus he is highly unlikely to use illicit substances again.

…

From his description, the consequence of his use had been of such a significant deterrent, that I am confident if he was to work in the prison again, he is not going to use again…

149   I consider this mitigating factor ought to have been, but was not, given significant weight by the Director‑General, thus rendering the removal action harsh.

Acceptance of responsibility and remorse

150   Mr Byers has not attempted in any way to deflect responsibility for his actions or to deny the seriousness of his actions.  He has demonstrated genuine remorse.  A fair go all round requires that this be taken into account in his favour.

Cooperation in investigation

151   Mr Byers readily admitted that he had consumed cannabis and cooperated fully in the investigation into the results of the random drug test on 11 December 2020.  The employer says that the weight of this factor is limited in circumstances where he did not make any disclosure of his drug use until after the drug test was returned positive, and where the positive result gave him little choice but to admit to drug use.

152   The employer also points out that Mr Byers’ position about his history of drug use has been inconsistent in that he has apparently resiled from the admissions he made in the post‑test interview about his prior drug use.

153   I agree that these circumstances lessen the weight of this factor.  Mr Byers’ cooperation in the investigation assists me to find that he accepts responsibility for his actions and that he is genuinely remorseful.  However, I would not give any further ‘credit’ for his cooperation as a separate factor.  Rather, his cooperation is a neutral consideration.

Consequences of removal

154   The removal action has materially and significantly impacted on Mr Byers both financially and personally.  In her letter dated 14 December 2020, Ms Schutze states:

Mr Byers is reliable and responsible and takes his commitment to his work very seriously. so his current situation of having been stood down as a result of returning a positive drug test on Friday has been extremely difficult for him. Additionally Mr Byers has found that being able to focus on his work duties has been an important way of being able to manage and cope with his personal stresses.

155   Dr Lee states in her report:

I am concerned that not working puts him at high risk of deterioration in his mental state as it is an important positive environment that is no longer regularly available to him.  Seeking work at this stage of his life is going to exacerbate his already stressful life situation.

156   Later in that report, she states:

...the loss of his vocation does put him at high risk of falling into an adjustment or depressive illness or worsening his alcohol use.  The loss of a more positive environment, loss of structure and loss of purpose at a late stage of his career, the implications of the loss are great, adding to his already significant difficult situation at home.  Returning to work as soon as possible is a priority to maintain his current level of coping.

157   Dr Lee’s report records that Mr Byers had recently secured part‑time or casual employment with a car dealer, which he was finding enjoyable.

158   Clearly the impact of removal on Mr Byers is substantial, but it seems to me it is not exceptionally so.  In all cases of dismissal and removal, there will be some degree of adverse consequences financially and personally.

159   Concluding, I consider that the Director‑General had insufficient regard to the mitigating effect of Mr Byers’ good previous service and character, the unlikelihood of him again transgressing, his insight and genuine remorse.  These factors do, in a real way, mitigate the misconduct so that confidence in Mr Byers suitability to continue as a prison officer, having regard to his integrity, honesty, competence, performance and conduct, can be maintained.

Public Interest

160   In unfair dismissal claims under ss 23‑29 of the Industrial Relations Act 1979 (WA), the conclusion reached about harshness based on mitigating factors would resolve the claim.  However, as alluded to above, in appeals under Part X the Commission is additionally required to balance and weigh, the public interest.  Under s 107(4) of the Prisons Act, the public interest is taken to include:

(a) the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of prison officers; and

(b) the special nature of the relationship between the chief executive officer and prison officers.

161   Reference to the special nature of the relationship between the Director‑General and prison officers, calls to mind the provisions of Part III and Part X of the Prisons Act, and in particular:

(a) the Director‑General’s responsibility for the management, control and security of prisons and the welfare and safe custody of all prisoners: s 7;

(b) prison officers’ responsibility to maintain the security of the prison in which they serve: s 14(1)(a);

(c) prison officers’ liability to answer for the escape of prisoners in their charge: s 14(1)(b);

(d) prison officer’s duty to obey all lawful orders given them by their superintendent of other officer under whose control or supervision that are applied and the orders and directions of the Director‑General: s 14(1);

(e) prison officers’ power to issue orders to prisoners: s 14(1)(d);

(f) the terms of prison officers’ oath of engagement: to maintain the security of prisons and the prisoners, to deal with prisoners fairly and impartially, to uphold the Prisons Act, regulations, rules and standing order and to obey lawful orders: s 13(2); and

(g) the ability of the Director‑General to take removal action where the Director‑General does not have confidence in a prison officer’s suitability to continue as a prison officer: Part X.

162   These considerations must be afforded significant weight.

163   As I have indicated above, there can be no doubt that a prison officer’s voluntary taking possession of and using an illegal drug is conduct that is capable of undermining the strategies in place for eliminating drugs in prisons, strategies which are ultimately geared to the security of prisons and the welfare of prisoners.  In the particular circumstances of Mr Byers’ case, there is no suggestion that Mr Byers’ conduct created a direct risk of drugs coming into a prison.  The problem with his conduct is that it demonstrates a tolerance of or apathy towards the use of illegal drugs.  This attitude means he might be susceptible to being compromised, or that he would not be astute in his assessment of risks within the prison.

164   It must therefore be acknowledged Mr Byers’ conduct did have the potential to cause detriment to public confidence in the integrity of prison officers and the security of the prisons.

165   Nevertheless, I doubt that his conduct has in any material or practical way impacted adversely on the security of prisons.

166   I also consider his demonstrated insight and remorse, together with his experience working in prisons and his good character, mean that he poses no risk to the future maintenance of public confidence in prison officers.

167   Put another way, weighing the mitigating factors and absence of aggravating factors against the seriousness of Mr Byers’ conduct and also the significant public interest, I am of the opinion that the admitted breach did not justify a conclusion that Mr Byers was no longer suitable to continue as a prison officer.  Accordingly, the removal was harsh, oppressive and unfair.

168   Ultimately, my view as to the fairness of removal is different to that taken by the Director‑General.  Reaching this contrary view, having properly considered all relevant matters, does not amount to impermissibly standing in the shoes of the employer: Metcash Trading Ltd T/A Metcash Trading v Michael Hudson [2022] FWCFB 2 at [102].  It is merely to fulfill the role of the legislative loss of confidence scheme, ‘the entire point’ of which is to enable the Commission to overturn the Director‑General’s decision on the basis of a finding that the removal was harsh, oppressive or unfair: Lawrance at [14], [16].

Remedy

169   It follows from my reasons that I consider the ground of appeal is made out.  I would order that the removal action against Mr Byers is and be taken to have always been of no effect.

170   Mr Byers brought these proceedings against the Minister, rather than the Director‑General.  It was pointed out to his representatives early in the proceedings that the correct respondent to the appeal was the Director‑General.  However, Mr Byers has maintained that the Minister is properly a party and has not applied to join or substitute the Director‑General as a respondent.

171   Mr Byers’ position as to the Minister’s respondency to the appeal is based on the position that the Minister is Mr Byers’ employer, the Director‑General remains subject to ministerial control, and the State therefore has an interest in involvement in appeal proceedings and should be involved in the proceedings to ensure orders made by the Commission are given practical effect.

172   Mr Byers’ counsel also argued that Part X contemplated Ministerial involvement because:

…

a) Only the Minister may give a direction (to the Director General) under s 103(2) of the Prisons Act for a continuation of payment to a prison officer after the end of a maintenance period.

b) A summons may be issued to the Director General or to the Minister in relation to a removal action pursuant to the table found at s 110B of the Prisons Act.

c) …the Minister is required to accept and separately consider a recommendation for removal provided under s l0l(l)(b) of the Prisons Act.

173   None of these considerations detract from the clear legislative intention expressed in Part X and described by the Commission in Frantzen at [14]‑[15]:

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’.

174   The failure to name the Director‑General as a respondent to the appeal might have been determinative of Mr Byers’ appeal.  Had Mr Byers failed to demonstrate his appeal grounds had any merit, it would have been open to the Commission to dismiss the appeal on the ground that it was not brought in accordance with the provisions of Part X.  However, because I consider Mr Byers’ appeal grounds have merit, the requirement that the Commission act according to equity, good conscience and the substantial merits of the case means that it is appropriate to order that the Director‑General be substituted as the Respondent in this appeal, despite the absence of an application by either party to that effect.

EMMANUEL C:

175   Broadly I agree with the Chief Commissioner’s reasons for decision.

176   For those reasons, I consider that either ground one or ground two of the grounds for removal is sufficient for the respondent to lose confidence in the appellant, and in all the circumstances I am not persuaded that the removal decision was harsh, oppressive or unfair.  Accordingly, it is not necessary for me to consider ground three of the grounds for removal.