ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00359

DATE : MONDAY, 3 JULY 2023

FILE NO. : PRES 8 OF 2022

Applicant

AND

WA Prison Officers Union of Workers

Respondent

Catchwords : Industrial law (WA) - Application under s 66 of the Industrial Relations Act 1979 (WA) for orders alleging breaches of union rules - Application made by respondent to dismiss  application under s 27(1)(a) - Jurisdiction or power under s 66 to grant the relief sought - Relevant principles applied -  No jurisdiction to make some orders sought - Other relief sought not relate to any existing or future obligations - Lapse of time - Interlocutory application granted - Section 66 application dismissed

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(a); s 66; s 66(1)(a)   

Result : Application dismissed

Representation:

Counsel:

Applicant : In person and with him Ms C Phillips

Respondent : Mr C Fordham of counsel

Solicitors:

Applicant : 

Respondent : Slater and Gordon

Case(s) referred to in reasons:

Arnott v Western Australian Police Union [2022] WAIRC 00208; (2022) 102 WAIG 369

Fink v Fink [1946] HCA 54; 74 CLR 127

McJannett v Construction Forestry Mining and Energy Union of Workers 2012 WAIRC 00935; (2012) 92 WAIG 1889

Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229

United Voice WA v Minister for Health [2012] WAIRC 319; (2012) WAIG 585

Reasons for Decision

The application and background

1         The applicant was a member of the respondent until 20 January 2021 when he was expelled. He brings this application under s 66 of the Industrial Relations Act 1979 (WA) seeking relief that he be reinstated as a member of the respondent; that he be paid compensation for legal fees incurred by him in defending himself in relation to allegations made against him whilst employed as a prison officer in the State; and an acknowledgement from the respondent that his expulsion was contrary to the respondent’s Rules.

2         I am satisfied that, as a former member of the respondent, the applicant has standing to bring this application under s 66(1)(a) of the Act.

3         In short, the applicant alleged that he was involved in an incident at the Wandoo Rehabilitation Prison, where he worked as a prison officer, on 26 November 2020.  The applicant contended that the incident also involved another prison officer, who was the partner of the respondent’s Secretary, Mr Smith.  The applicant maintained that as a result of this incident, the respondent informed him by letter in late-December 2020, that it was alleged that he had threatened a female prison officer on 26 November 2020.

4         The applicant contended that the respondent’s State Council met on 16 December 2020 and, in light of the allegation, had ‘voted unanimously to expel the applicant from the union because of the incident’.  The applicant was informed that he was to attend a special State Council meeting on 20 January 2021 to respond.  I note that the applicant’s contention that the Council voted to expel him on 16 December 2020, is inconsistent with his further contention that he was to attend the later State Council meeting in January 2021 to respond.

5         The applicant maintained that he wrote to the respondent on 23 December 2020 and requested further details of the complaint against him, and informed the respondent that he would attend the meeting.  In a response the next day on 24 December 2020, the applicant says that the respondent’s President wrote to him.  The correspondence did not include more detail of the allegation against him, but did include a further allegation against him that he acted aggressively and made threats to the other prison officer.

6         The applicant said he replied by way of a letter dated 24 December 2020, stating to the effect that the respondent had not provided the information he requested.

7         On 11 January 2021, the Professional Standards Division of the Department of Justice reopened an investigation into the incident.  The applicant alleged that this was at the behest of the respondent’s Secretary.

8         On 2 March 2021, the applicant said he received a further letter from the respondent’s President, stating that he did not attend the State Council meeting of the respondent convened on 20 January 2021 to consider the complaint, and the respondent had expelled him as a member.

9         The applicant alleged that the respondent had breached rule 11 of its Rules, which deals with the respondent’s powers and processes in relation to disciplinary matters.  The applicant maintained that once he was notified of his expulsion, on 12 March 2021, he wrote to the respondent’s Secretary and requested an appeal of the decision to be heard at a Special General Meeting of the respondent.  The applicant maintained that he received no response to his request.

10      The applicant alleged that he was denied natural justice.  The applicant also maintained that the respondent’s Secretary had misused his position to influence the Department of Justice to reopen the investigation into the incident, involving his partner.  The applicant maintained that the respondent had unfairly and unjustly expelled him.

11      The respondent maintained that it had observed its Rules and that the applicant’s claims had no merit.  It contended that when the allegation regarding the incident was raised, it was considered by the respondent’s State Council on 16 December 2020, which resolved to examine the matter further.

12      The respondent maintained that it wrote to the applicant on 21 December 2020 to advise that the State Council would meet again on 20 January 2021 to further consider the allegation and any action that should be taken. Following the applicant’s request for more information, the respondent says that it wrote to the applicant on 24 December 2020 and provided further information, including the name of the person making the allegation; the date and location of the incident; a description of the conduct alleged against the applicant; and why it was being dealt with as a disciplinary matter under the respondent’s Rules.

13      The respondent maintained that a meeting of its State Council took place on 20 January 2021 to hear and determine the allegation.  The respondent contended that the applicant did not attend the meeting.  The State Council determined that the complaint was upheld and the matter justified the expulsion of the applicant as a member.

14      Whilst contending that it was not clear when the applicant was first notified of his expulsion, the respondent says it was confirmed by letter from the respondent dated 2 March 2021.

15      The respondent contended that, to the extent that the applicant maintained that he did not engage in conduct warranting his expulsion as a member of the respondent, this amounts to seeking a merits review of the respondent’s decision.  The respondent submitted that this is not a matter that can be the subject of an application under s 66 of the Act.

16      The respondent denied that the applicant was given insufficient information in relation to the complaint, and said that in the correspondence between the applicant and the respondent in late-December 2020, sufficient information was provided to enable the applicant to know the case he had to meet. The respondent also maintained that the applicant was informed of the State Council meeting to consider his complaint; that the principles of natural justice would be applied and he would be given a fair hearing; that he could make oral or written submissions; and that he could have another union member represent him if he wished, along with the opportunity to ask questions.  These assertions were not denied by the applicant.

17      In short, the respondent maintained that the applicant was afforded natural justice.  The respondent submitted that the applicant had the opportunity to attend the State Council meeting to answer the compliant, but did not do so. The respondent also submitted that no appeal was lodged against his expulsion within time, as required by its Rules.

18      The respondent also contended that there was no basis for the relief that the applicant claimed under s 66 of the Act.  The respondent submitted that there was no power for an award of compensation to be made and, in any event, under the respondent’s Rules, even if the applicant had remained as a member, the only right was for a member to make a request for legal assistance.  There is no right or expectation that legal representation and assistance will be provided to a member.  It is for the respondent’s State Council to consider such a request on a case-by-case basis, as a matter of discretion.

19      Furthermore, the respondent contended that as to the applicant’s claim to be reinstated as a member, given that the allegations against the applicant related to alleged past breaches of the respondent’s Rules, this was unrelated to any existing or future obligation under its Rules and therefore, such a remedy should not be granted under s 66 of the Act.

Application to dismiss under s 27(1)(a) of the Act

20      In August 2022, I made directions regarding the conduct of the applicant’s claim.  These included the provision of informal discovery, and the filing of agreed bundles of documents, outlines of evidence and written submissions.  Subsequently, in mid-October 2022, an application was made by the respondent under s 27(1)(a) of the Act to have the applicant’s substantive application dismissed.

21      The respondent maintained that it appeared that the applicant was no longer a prison officer, from answers to a notice to admit filed by the respondent, and accordingly, under its Rules, he was ineligible to be a member.  On the basis of my decision in Arnott v Western Australian Police Union [2022] WAIRC 00208; (2022) 102 WAIG 369, the relief that the applicant sought of reinstatement, was no longer possible. Additionally, as noted above, the applicant also sought compensation, which the respondent maintained was not within power under s 66 of the Act.

22      For these reasons, the respondent maintained that further proceedings were not necessary or desirable in the public interest and that the application should be dismissed. To facilitate the hearing and determination of the respondent’s s 27(1)(a) application, directions were made regarding the provision of written submissions.  To avoid unnecessary expense to the parties, the respondent sought, and I granted, an application to suspend the programming directions for the substantive proceedings, pending the determination of the s 27(1)(a) application.

23      The s 27(1)(a) application was originally listed for hearing on 8 November 2022.  At that hearing, I raised a number of issues with the parties, as to my jurisdiction under s 66 of the Act to grant some of the relief claimed by the applicant.  Also, in response to the notice to admit filed by the respondent, and the applicant’s answers, noted above, it appeared that the status of the applicant’s continued employment as a prison officer was unclear.  The applicant confirmed that there were then confidential processes underway between himself and the Department of Justice in relation to his ongoing employment, but as at the date of that hearing, the applicant remained employed as a prison officer.

24      Given the above events and in particular the uncertainty as to the applicant’s ongoing employment status as a prison officer, and the possible consequences of this under the respondent’s Rules, the s 27(1)(a) application was adjourned to a date to be fixed.  This would enable the processes then underway involving the applicant to be concluded, and for both the s 27(1)(a) application and the substantive s 66 application to proceed at a later date on a clearer foundation.  This was so because any change in the employment status of the applicant may have fundamentally affected both the s 27(1)(a) application and the substantive s 66 application.  Furthermore, if the proceedings had not been then adjourned, and the applicant’s employment status had changed, nothing would preclude a further s 27(1)(a) application being brought by the respondent at a later time, in any event.

25      The respondent’s s 27(1)(a) application was relisted for mention on 14 February 2023.  At that hearing, the applicant advised that he had resigned as a prison officer with the Department of Justice on 9 December 2022 and he no longer held a position as a prison officer anywhere in the State.  Given this state of affairs, and the other issues identified by the respondent in its amended response to the applicant’s claims, outlined above, the respondent pressed its application to dismiss, which was relisted for hearing on 6 April 2023.

26      At the resumed hearing the applicant abandoned his claim to be reinstated as a member of the respondent.

27      The respondent submitted that there were three grounds for its application to dismiss under s 27(1)(a).  They were that:

(a) the relief sought by the applicant is not open to be granted under s 66 of the Act;

(b) the complaints of the applicant relate to events over two years ago and do not relate to any existing or future obligations under the respondent’s Rules; and

(c) therefore, the continuation of the application is not in the public interest.

28      In reliance on Stacey v Civil Service Association of Western Australia (Incorporated) [2007] WAIRC 00568; (2007) 87 WAIG 1229, the respondent submitted that given the applicant’s allegations related to events over two years ago, it was not apparent how the events of January 2021 are relevant to the respondent’s current operations and ongoing compliance with its Rules.  In the time since the events the applicant complained of, the respondent submitted that the composition of the State Council has changed, as has the respondent’s office holders.

29      The respondent also contended that nothing it has done prevents the applicant from making a further application for membership if he meets the criteria under its Rules.  No order under s 66 of the Act is necessary for this to occur.

30      A submission made by the respondent was that on a broad approach to the interpretation of rule 40 of its Rules, a person may still seek and be granted legal assistance, despite membership of the respondent having ceased.  No such request was made to the State Council, on the respondent’s submission.  Given the lack of connection between the events of over two years ago, the respondent contended that the orders sought do not relate to the purposes of s 66 of the Act, as discussed in Stacey, to keep the respondent ‘on track’.

31      The respondent submitted that given his resignation as a prison officer, the applicant was no longer eligible to be a member of the respondent under rule 5 of its Rules.  Therefore, as in Arnott, the applicant no longer had a sufficient interest in the proceedings.  The respondent maintained that it was not enough for the applicant to say what he alleged occurred should not occur to other members of the respondent or other unions.  It was submitted by the respondent that interest is insufficient to enliven the jurisdiction of the Commission under s 66 of the Act.  The respondent did not cavil with the applicant’s assertion that his expulsion from the respondent was a relatively rare event.  But the respondent suggested that because of this, it reflects no current or future issues in relation to the application of its Rules.

32      Nor can the applicant succeed, the respondent submitted, in his claim for compensation or damages, as this is beyond the scope of the remedies that the Commission may grant under s 66 of the Act: Arnott at [19] (citing and applying Stacey at [247]).  On this basis, the respondent contended that there was no capacity for the applicant to recover compensation or restitution for any alleged losses, in any event.

33      The respondent further submitted that rule 40 of its Rules does not confer on a member of the respondent an entitlement to financial assistance for legal representation.  The rule provides that the State Council may consider such a request but it is a matter for the State Council, in its sole discretion, whether such financial assistance is granted or not.  Thus, even if the applicant remained a member, there was no right to what he now says he has lost.  As a consequence of his expulsion, all the applicant has lost, according to the respondent, was the opportunity to have made a request to the State Council for its consideration, at the material time.

34      For all of these reasons, the respondent contended that it was not in the public interest that the matter proceed and the application should be dismissed.

35      The applicant maintained the thrust of his submissions originally filed in this matter.  He contended that the Commission should only dismiss the application if it could not possibly succeed:  McJannett v Construction Forestry Mining and Energy Union of Workers 2012 WAIRC 00935; (2012) 92 WAIG 1889.  He maintained that his expulsion from the respondent denied him natural justice and that the respondent did not comply with its Rules. 

36      Furthermore, the applicant reasserted his view that his interests in maintaining the claim is important so that other members of the respondent will not be exposed to the same conduct.  Whilst, given the applicant is no longer a member of the respondent and he does not seek now to be reinstated as a member, in his submissions he sought a determination from the Commission ‘that any future application for membership, should he again be eligible, be considered favourably by WAPOU’ (applicant’s written submissions 7 November 2022 par 10).

37      The applicant maintained his claim that the legal costs he has incurred as a result of legal proceedings he has been engaged in would have been avoided, had he remained a member.  The applicant also sought and maintained his claim for an apology from the respondent, in particular from its Secretary, Mr Smith.

Consideration

38      I set out the relevant principles applicable to both s 66 applications and the exercise of the Commission’s power to dismiss or refrain from further hearing a matter under s 27(1)(a) of the Act, in Arnott at [17] to [23] and [28].  I need not repeat what I said in that case and I adopt and apply them for the purposes of the disposition of these proceedings.  It is accepted that the power to dismiss a matter under s 27(1)(a) of the Act is a power to be exercised sparingly and only in a clear case (See too United Voice WA v Minister for Health [2012] WAIRC 319; (2012) WAIG 585 considered and applied in McJannett at [116]). 

39      The applicant originally, but no longer, seeks reinstatement as a member of the respondent.  This is because the applicant is no longer a prison officer anywhere in the State.  It is a condition of eligibility for membership of the respondent that a person be ‘employed in a prison or prison service in the State of Western Australia …’ (rule 5 of the respondent’s Rules).  Furthermore, under rule 5, a member who severs employment in a prison or a prison service in Western Australia, ceases to be a member of the respondent.  I say more about this below, but it seems therefore, a condition of membership of the respondent is the applicant’s ongoing engagement as a prison officer, at their initiative.  For the same reasons I expressed in Arnott at [46], it would be beyond power for the Commission to make an order under s 66 of the Act to reinstate the applicant as a member of the respondent.  Such an order would be contrary to the respondent’s Rules.

40      In this sense, a mainstay of the applicant’s original claim, that he be reinstated as a member of the respondent, has now fallen away.

41      The second order sought by the applicant was an order for costs of $80,000 (which the applicant submitted in the proceedings had risen to $100,000) for what he described as ‘costs for legal fees’ in connection with costs he said he has incurred in defending himself concerning allegations made against him.  This claim for costs is based on rule 40 of the respondent’s Rules, which is in the following terms:

40 - LEGAL ASSISTANCE

The State Council may grant from the funds of the Union, financial assistance for the obtaining the provision of legal assistance arising from an action or event brought about by the member performing his or her duties within the Prison Service or Prison Operations.

The State Council shall establish the merit of each request for legal assistance and resolve whether to grant assistance or not to grant assistance.

The State Executive may grant emergency legal assistance should they consider the circumstances necessary, provided that any decision by the State Executive to grant emergency assistance is conveyed to the State Council at its next meeting.

The State Council and State Executive shall have the discretion to retain legal representation from a firm of Solicitors appointed by the Union for any member’s request for assistance under this Rule.

State Council shall also have the authority to grant any further financial assistance to any member’s application for assistance that is approved, so that any fines or other imposts whatsoever arising from any proceedings may be discharged from Union funds.

Members shall not have a right to be granted legal assistance and the granting of assistance in accordance with this Rule shall be at the sole discretion of State Council.

42      First, as a matter of construction, the generous approach to the interpretation of union rules applies. This approach to construction requires the rule to be construed broadly, and in accordance with the Rules as a whole.  This includes rule 5 - Qualifications for Membership.  As noted above, the third paragraph of rule 5 provides ‘membership shall cease upon the member severing employment with a prison or prison service within the State of Western Australia’.  Whilst it is not necessary to decide the matter on this occasion, this suggests that it is only in circumstances where the member resigns from a prison service that membership ceases, as in the applicant’s case, and not where the employer terminates the employment of a prison officer.  This would be understandable because if this was not the case, then a prison officer, as a member of the respondent, who is dismissed, would not be entitled to financial assistance to contest their dismissal.  Such an outcome would appear to be inconsistent with rule 3 – Objects of the respondent’s Rules. 

43      However, and despite this, I disagree with the respondent’s contention that a non-member may fall within the entitlement to request assistance under rule 40.  As a matter of the ordinary and natural meaning of the words used, it is clear that the State Council’s power to grant financial assistance for legal advice or representation, is limited to members of the respondent only.

44      Second, the power conferred on the State Council by rule 40 of the Rules is plainly discretionary.  The use of the words ‘may’ in the first paragraph of the rule makes this clear.  The second paragraph also makes clear that whether any financial assistance is provided to a member depends on the merit of the request.  Whilst there is little doubt from the rule as a whole that the power of the State Council to provide financial assistance is discretionary, the final paragraph puts the matter beyond doubt.  A member has no right to financial assistance: the only right is to make a request.

45      Accordingly, the applicant’s claim for compensation faces two major hurdles.  The first hurdle is that, even if he remained a member of the respondent and was not expelled, his only entitlement under rule 40 was to request that the State Council consider providing him financial assistance.  Whether he would have been granted financial assistance would be a matter for the sole discretion of the State Council, in assessing the merits of his request.  For the applicant to maintain now that he would have received such financial assistance is purely speculative.  Even if the applicant could rely on a contractual right in this regard, given that any loss suffered by him would be so dependent on the exercise of a discretion exercised by others in the applicant’s favour, it would be likely that only nominal damages would flow: Fink v Fink [1946] HCA 54; (1946) 74 CLR 127.

46      The second hurdle, and more problematic for the applicant, is even if rule 40 did provide for some form of entitlement, then there is no jurisdiction under s 66(2) of the Act to make an order in the nature of compensation for loss, unconnected with the contemporary activities of the respondent or necessary to secure the performance of an existing obligation under the respondent’s Rules: Stacey at [243] to [303] and [305].  Nor would it appear at first blush, that the applicant’s claims for an apology, and for the respondent to favourably consider any future application for membership, be within my jurisdiction and powers under s 66 of the Act either.

47      The applicant complains that his request for an appeal was not considered.  In the absence of evidence as to that matter at this stage of the proceedings, I cannot make any findings on that issue.  But I can find that the process established under the respondent’s Rules for the conduct of a State Council meeting to consider the complaint against the applicant, and an invitation to the applicant to attend the meeting and to answer the complaint, did occur.  It seems on the application as amended, the amended response as filed, and the written submissions, that the applicant does not contest the respondent’s assertion that he did not attend the State Council meeting, scheduled in January 2021, to consider the complaint against him.  Having regard to these matters, and also those referred to at [16] above, it is difficult to see how a denial of natural justice could be made out in these circumstances.

48      Finally, the applicant’s concern that others may suffer the same fate that he alleged gave rise to his expulsion from the respondent, is also problematic.  Given that the two major limbs to the applicant’s initial claim have now fallen away, this assertion is not of sufficient interest, in and of itself, to warrant the continuation of the proceedings.  In the circumstances, it is not evident as to how such a claim is directly relevant to the respondent’s current operations and the present and future observance of its Rules, as discussed in Stacey.

Conclusion

49      Whilst I acknowledge the applicant has a sense of grievance arising from the events of January 2021, I am not persuaded that, having regard to all the relevant considerations, including the lack of jurisdiction to make orders the applicant seeks, that the matter should continue to be heard.  Accordingly, I grant the respondent’s application under s 27(1)(a) and dismiss the application.