APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 3 NOVEMBER 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00420

DELIVERED : MONday, 31 July 2023

FILE NO. : PSAB 34 OF 2021

Appellant

AND

Housing Authority

Respondent

CatchWords : Public Service Appeal Board – Termination of Employment – Retirement on grounds of ill health – Call to retire – Failure of appellant to progress appeal - Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)

  Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Appellant : Ms M Meunier (in person)

Respondent : Mr M McIlwaine (of counsel)

Case(s) referred to in reasons:

The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162

Reasons for Decision

1         Ms Mary ‘Jennifer’ Meunier was employed by the Director General, Department of Communities as a Customer Service Officer from 14 March 2014 until 3 November 2021 when she was dismissed. Ms Meunier seeks reinstatement to her position.

2         The respondent opposes the appeal because it considers the decision to dismiss was sound and justifiable, and made following a procedurally fair disciplinary process.

Background

3         The appellant was employed under a series of fixed term contracts between 14 March 2014 and 18 February 2018. The appellant was appointed to a permanent Customer Service Officer, Level 2 position located in Halls Creek on 19 February 2018.

4         On 18 May 2018 the appellant commenced a period of sick leave and relocated to Perth. On 10 December 2019 the respondent approved a period of three months leave without pay and directed her to return to her position in Halls Creek at the end of the leave.

5         Following a medical examination of the appellant, directed by the respondent, the appellant commenced a graduated return to work program on 15 June 2020. The plan consisted of an initial 4-week period of adjusted hours and duties in Perth and subsequent relocation to Halls Creek.

6         On 1 July 2020 the appellant advised the respondent in writing through her union representative, that she was unable to return to Halls Creek due to ‘traumatic association’ with that office. The appellant was granted an application for leave without pay until 10 August 2020.

7         On 5 August 2020 the respondent wrote to the appellant and informed her that it was of the preliminary view that she was unfit to perform the inherent requirements of her role and the respondent was considering calling on her to retire on the grounds of ill health under s 39 of the Public Sector Management Act 1994 (WA) (PSM Act).

8         On 27 October 2020 the respondent wrote to the appellant calling on her to retire on the grounds of ill health within 5 working days.

9         On 18 March 2021 the respondent commenced a disciplinary process against the appellant because she had failed to comply with the direction to retire.

10      On 4 October 2021 the Acting Director General wrote to the appellant confirming that she had found the appellant had committed a breach of discipline and proposed to dismiss her. The appellant was invited to respond to the proposal. No response was provided.

11      On 3 November 2021 the respondent dismissed the appellant.

12      On 22 November 2021 the appellant lodged an appeal to the Board to adjust the respondent’s decision to dismiss her.

Procedural Matters

13      The case management of this application has some history.

14      On 24 January 2022 the Board issued Directions [2022] WAIRC 00022 concerning the filing of agreed facts, a bundle of agreed documents, outlines of evidence including further documents and outlines of submissions.

15      On 22 March 2022 the appellant applied for an extension to comply with the direction to file her outlines of evidence and further documents until 28 March 2022. The Board requested the appellant provide her reasons for seeking an extension.

16      On 29 March 2022 the respondent requested that the Board list the appellant’s application for an extension to file evidence and documents for hearing, because the appellant had neither responded to the Board’s request for her to provide reasons in support of her extension application nor filed her outlines of witness evidence by 28 March 2022.

17      On 1 April 2022 the parties were notified of a hearing set down for 12 April 2022.

18      At the hearing before the Board, the appellant had telephoned a ‘support person’ to assist her during the hearing. The appellant placed the support person on the loudspeaker of her mobile phone. The respondent objected to the irregular appearance of the support person and questioned whether the person was able to represent the appellant. The support person confirmed that he was not representing the appellant and was simply assisting her as a support person. The Board determined that in these circumstances the support person was not able to speak for the appellant at the hearing and advised the parties that the Board would grant any adjournments requested by the appellant during the hearing, in order for her to obtain assistance of the support person. The appellant submitted that her vision was impaired and asked how she was to manage. The Board requested the appellant consider whether an adjournment was necessary for her to identify the nature of assistance or the provision of visual aids. The hearing was adjourned for a short period to enable the appellant to consult with her support person.

19      At this hearing the respondent suggested that the appellant need not give evidence as her application, the agreed statement of facts and the bundle of agreed documents already filed may be sufficient. It was the appellant’s submission that she believed she would be disadvantaged if she did not have an opportunity to submit evidence, however, she advised that she had difficulties in providing oral evidence, nevertheless she confirmed she would be able to answer questions from the respondent under cross examination.

20      Following the hearing the Board issued a further Direction [2022] WAIRC 00151 varying the directions to provide for the appellant to file a signed witness statement, with an extension of time to file, modifying the dates for the respondent to file its outlines of evidence and further documents and granting leave to file written outlines of submissions. The direction concerning the appellant’s evidence was adjusted to accommodate the appellant’s submission that she would have difficulty giving oral evidence at the hearing but would be able to provide her evidence in writing and was able to respond to questions from the respondent.

21      On 27 April 2022 the appellant filed outlines of witness evidence for 6 witnesses and filed two Form 9 - Summons to Give Evidence and Produce Documents. The Board requested the appellant advise her views on the Board’s capacity to issue summons’ to give evidence and requested this response to occur by no later than 29 April 2022. The appellant has not provided her views on this matter.

22      On 27 April 2022 the appellant filed further bundles of document titled ‘Jen part 1’ and ‘Jen part 2’, without any identification of the documents within the bundle. The appellant advised she would provide a cover sheet in response to a request from the Registry to provide further information identifying the documents filed. The appellant has not provided a cover sheet.

23      On 29 April 2022 the respondent sought an adjournment of the hearing listed for 10 May and 11 May 2022 because he was unable to comply with the directions due to having COVID-19. The respondent also noted that three of the outlines of witness evidence filed by the appellant appeared to be expert evidence and the Industrial Relations Commission Regulations 2005 (WA) (IR Regulations) requires expert evidence to be filed 21 days prior to a hearing. Further the respondent said it is not clear if the appearances of the witnesses would be on a voluntary basis or by summons. The respondent requested the hearing not be re-listed before 1 July 2022.

24      The Board sought the appellant’s views on the respondent’s request for the hearing to be adjourned and re-listed after 1 July 2022. There has been no response from appellant.

25      On 5 May 2022 the Board issued an Order [2022] WAIRC 00182 vacating the substantive hearing and listing an Interlocutory Hearing to deal with the two Form 9 - Summons to Give Evidence and Produce Documents and the witness evidence.

26      On 8 May 2022 the appellant emailed the Board seeking approval for a support person to attend the hearing by telephone to assist her with reading documents at the hearing. The appellant referred the Board to her application that indicated that she had an impairment, and that the respondent did not indicate before the directions hearing that it had any objections. The appellant advised that she had been informed by an optometrist that she could have Vision Stress and was experiencing the following symptoms: Misreading text, reading words in the wrong order, missing out words or whole lines of text, losing the place on a page when reading, blurred visions, dizziness, eye twitching, headaches, watery or dry eyes, sensitivity to light and colour flashes. The appellant further stated:

I was denied a support person at the Directional hearing on April 2022 and the support person was unable to attend by phone (even just to listen in) I was directed to stand outside which I found very humiliating. The respondent did not attend on that day he was permitted a support person that was able to speak on the respondents behalf.

If the respondent or the board insists on not providing me with the help from Matthew if you could please arrange visual assistance on the day. If the respondent could please provide the legislation that does not provide me a person with a disability to be supported in my case without a "reasonable accommodation". I should not have to face this barrier to being able to recognize my rights on my own without a support person.

27      On 9 May 2022 the Board advised the parties that the Interlocutory Hearing listed on 10 May 2022 was vacated and that the Board will be in contact with the appellant concerning her request for support to assist in conducting her case.

28      Also on 9 May 2022, the Board wrote to the appellant noting that in her application, in response to the question: ‘Do you, or any person attending the Public Service Appeal Board with you, require any special assistance (such as wheelchair accessibility or a hearing loop)?’, the appellant had indicated that she arranged for an advocate ‘Exportability’ to assist her in proceedings. The appellant’s email dated 8 May 2022 referred to assistance with reading documents to address visual impairments, however the supporting information attached to the appellant’s email was a medical certificate concerning her mental health and did not reference any of the symptoms or presentations concerning visual impairment. Further, the medical certificate was not current as it was dated 18 November 2020, and it did not provide information concerning any current health concerns nor impairments that may require special assistance. The Board requested the appellant specify the nature of the support or assistance she requires and also to provide a current relevant medical certificate or other evidence in support of her request for assistance. The Board noted that it would be necessary for a support person to attend in person at the hearing because of the likelihood that new documents and new information could be tendered through witnesses or provided through submissions by the other party, which if introduced, the appellant would not have had the opportunity to prepare a response to be read aloud to the Board by a support person. The Board invited the appellant to provide sufficient detail of her requirements so that appropriate adjustments may be made to the hearing process. The Board advised that in the event the appellant or her support person wished to participate remotely, a request ought to be made for their attendance to be by video or telephone, and they should outline the reasons in-person attendance is not possible. The Board noted that if remote attendance was granted this facility would be arranged and facilitated by the Board and not by the parties.

29      On 12 May 2022 the respondent wrote to the Board and the appellant acknowledging that the appellant references difficulties in attending hearings and noting that these difficulties do not apply to filing her witness statement. The respondent further noted that the appellant had failed to comply with a direction to file her witness statement and requested the Board direct the appellant to file her witness statement.

30      On 13 May 2022 the appellant emailed the Board and respondent to advise: ‘I am preparing a response will submit by next Monday’.

31      On 17 May 2022 the appellant wrote to the Registry:

I am writing in relation to several matters, in particular is the appearance of a significant disparity of the board strongly favouring the respondent and granting substantial leeway to the respondent that is represented by the State Solicitors Office, while I am self-represented.

In relation to the interlocutory, I will be unable to provide current medical evidence prior to Monday 16 May 2022. I am only able to supply an eye test dating back to 2019. I am uncertain in relation to which form I am required to complete is it form 1a now or 11?

In additional I would like to bring to the attention of the panel, 12 April 2022 hearing it was the respondent that attempted to refuse the support person attend via teleconference, to which I am entitled to for support. I was asked to start [sic] outside if I wanted to speak to the support person.

Also on 12 April 2022, the respondent counsel failed to attend the directional hearing on 12 April 2022 without prior notice to the applicant Ms Meunier, wheras [sic] my support person was refused permission to speak, after it was approved by email dated 11 April 2022 which included Mr Mcllwaine. I was requested to stand outside to talk to my support person. I found that request to be diffiult [sic] to cope with and felt it injurious toward my ability to speak and further my matter. Mr Donnahie will (because of respondent objections to merely listening) be acting as agent & friend in addition to support and I expect him to be allowed to speak, should I be unable to continue or need support.

The respondant [sic] gave no prior ntice [sic] to the Directional hearing advise he would not be attending on the day and an Interlocutory application but be replaced by a stand-in counsel.

Respondent to date has not supplied witness statements and the board has failed to provide the respondent with a new date as to when the witness statements should be provided. (email dated 29/4/2022 from Mr Mcllwaine).

Respondent has not provided a statement in relation to my bundle of evidence both on his email dated 6 May and again on his emailed 29 April board has failed to provide the respondent with a new date as to when thee [sic] witness statements (email dated 29/4/2022 from Mr Mcllwaine) (other than the agreed documents)

I, Ms Meunier has [sic] given last minute notice the day before the hearing would not go ahead since costing me a fee from last minute cancellation, is this chargeable to the respondent?

I Ms Meunier also would like to know why a hearing date has not been rescheduled, it seems this too is going in favour of the respondents request on 29 April to reschedule a hearing after 1 July 2022.

In relation to the respondent letter dated 11 May 2022, the respondent had been invited to extend an offer to the applicant in order to discontinue the matter, provided it did not leave the applicant out of pocket, but without asking for interest or damages. They are declining to make any offer whatsoever, the applicant feels the respondent has again failed to engage in good faith negotiation while continuing to adhere to procedural objections, not address the core issues, and the parties are no closer as a result of these delays.

I await the Commission’s response in due course and would request sufficient notice be given to further hearings either directional or in full.

32      On 18 May 2022 the respondent replied to the appellant’s letter and advised it is unable to file its outlines of witness evidence until it understands what evidence is required to respond to in these proceedings. The respondent asserts that it maintains its position that the Board should direct the appellant to file her witness statement, and foreshadowed that if the appellant does not file her witness statement the respondent will make an application that this matter be dismissed.

33      On 18 May 2022 the Board issued a Draft Direction to the parties and requested the parties provide their views by no later than 25 May 2022, the Draft Direction was as follows:

1. THAT the appellant files, by 15 June 2022, her signed witness statement and any documents (other than the agreed documents) which she intends to rely, and the appellant’s evidence be adduced by the witness statement and will stand as the evidence in chief in this matter;

2. THAT the respondent files outlines of evidence and documents (other than the agreed documents) on which it intends to rely by 6 July 2022;

3. THAT the parties may file written outlines of submissions and any list of authorities upon which they intend to rely by no later than 3 August 2022;

4. THAT the matter be listed for final hearing on two days to be fixed; and

5. THAT the parties have liberty to apply on short notice.

34       The appellant did not reply to the Board to advise her views on the Draft Direction, the time to provide her views expired, and therefore Direction [2022] WAIRC 00226 issued on 26 May 2022.

35      On 17 June 2022 the respondent emailed the Board and copied the appellant noting that the appellant failed to comply with Direction 1 of [2022] WAIRC 00226 and proposed that a hearing be listed for one day and the matter proceed on the basis that the appellant does not intend to adduce additional evidence beyond that which is contained in the statement of agreed facts and documents.

36      On 29 June 2022 the Board advised the parties that it proposed to list the matter for a one day hearing on the basis that the appellant has elected not to give evidence. The email requested the parties provide their availability for a one day hearing by no later than 6 July 2022.

37      The appellant did not provide her availability.

38      On 6 July 2022 the respondent sought an extension of time to comply with Direction 2, the filing of outlines of evidence and documents. The Board sought the appellant’s views to the respondent’s extension request. On 7 July 2022 the appellant requested an extension of time for her to consider her response to the respondent’s extension request. The Board acknowledged the appellant’s request and again sought her available dates for the hearing.

39      On 7 July 2022, the respondent filed its outlines of witness evidence and documents.

40      On 14 July 2022 the Board notified the parties by email of a hearing set down on 7 September 2022. On 29 July 2022 the notice of hearing was also posted to the appellant.

41      On 3 August 2022 the respondent filed and served its outline of submissions and list of authorities.

42      On 23 August 2022 the respondent emailed the Board raising concerns that the appellant has not responded to the Associate’s emails of 29 June 2022 and 7 July 2022 regarding the respondent’s extension request and the requests for her availability for hearing. The respondent requested the appellant confirm her intention to appear at the hearing on 7 September 2022. The respondent requested that in the event there is no response from the appellant the matter be listed for the appellant to show cause.

43      On 26 August 2022 the Board emailed the parties requesting that the appellant advise if she intends to appear at the hearing listed on 7 September 2022 and put her on notice that if there is no reply received by 4pm on 30 August 2022, the matter will be re-listed to a Show Cause Hearing. The appellant was also served with this notice by post and on 29 August 2022 the Board’s Associate telephoned the appellant and left a voicemail message.

44      On 30 August 2022 the Board notified the parties that a Show Cause Hearing was listed for 7 September 2022. The notice was also posted via express post to the appellant.

The Law

45      The Commission can dismiss a matter under s 27(1)(a) of the IR Act:

27. Powers of Commission

 (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part thereof is trivial; or

(ii)  that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

46      In The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162, the Full Bench set out the principles to consider when deciding whether to dismiss an application for want of prosecution. They include the length of the delay, the explanation for the delay, the hardship to the applicant if the application is dismissed, the prejudice to the respondent if the action is allowed to proceed, and the conduct of the respondent in the litigation.

Should this Application Be Dismissed?

47      The Board has the power to proceed to hear and determine the matter in the absence of any party who has been duly served with notice of the proceedings: s 27(1)(d) of the IR Act. Service on the appellant in this matter was effected by leaving the notice at, or sending it by pre-paid post to, the appellant’s usual or last known place of abode: r 24(2)(d) of the IR Regulations.

48      Alternatively, service was effected on the appellant by sending the notice of hearing as an attachment to an email sent to the email address that the appellant provided to the Board, in accordance with r 25(3) of the IR Regulations.

49      The Board is satisfied that the appellant was duly served with notice and that the hearing could proceed in her absence.

50      There was no appearance by the respondent.

51      The onus rests with a party initiating proceedings to prosecute those proceedings diligently. In this matter the Board provided ample opportunity to the appellant to provide her views on the conduct of the hearing of her application. Where the Board requires advice to be provided for the purpose of the matter being dealt with expeditiously, it is not the role of the Board to continue to pursue parties to ascertain the status of matters or information required. It is the responsibility of the appellant to progress the application. The appellant has not responded to matters concerning the Board’s requests for extensions of time, requests for assistance or support, requests for further information concerning the summonsing of witnesses, or requests concerning her intentions. The appellant has not met the onus which falls to her and has not pursued this matter appropriately.

52      In the circumstances, the Board finds that the appellant has not progressed her appeal before the Board and will order that this appeal be dismissed under s 27(1)(a) of the IR Act.