APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 26 APRIL 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00674

DELIVERED : THURSday, 10 AUGUST 2023

FILE NO. : PSAB 37 OF 2022

Appellant

AND

Department of Communities

Respondent

CatchWords : Public Service Appeal Board – appeal against decision to terminate employment – whether the appellant committed a serious offence – consideration of appellant’s criminal conviction – dismissal proportionate in the circumstances – appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)
Medicines and Poisons Act 2014 (WA)
Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Appellant : Mr S Matveev (in person)

Respondent : Mr M McIlwaine (of counsel)

Case(s) referred to in reasons:

Gaudet v Commissioner Ian Johnson Department of Corrective Services [2013] WAIRC 00032; (2013) 93 WAIG 279

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

Reasons for Decision

1         Mr Stan Matveev was employed by the Director General, Department of Communities (the Department) from 17 April 2007 until his dismissal on 26 April 2022. Immediately prior to his dismissal, the appellant was a Level 5 Area Manager.

2         The respondent dismissed the appellant pursuant to s 92 of the Public Sector Management Act 1994 (WA) (PSM Act) because the appellant had been convicted of a serious offence. The Department considered that alternative sanctions did not adequately mitigate the risk to the respondent in maintaining the appellant’s employment and the conduct of the appellant was incompatible with employment as a public officer.

3         The appellant contends that the decision to dismiss him is not proportionate to the misconduct and that the respondent did not consider the circumstances of his offence. The appellant seeks reinstatement with the Department.

Background

4         The parties filed a Statement of Agreed Facts (SOAF) and a Bundle of Agreed Documents (Agreed Documents). The appellant declined an opportunity to give evidence and submitted that he relied on the SOAF and the Agreed Documents.

5         In January 2021 as part of his role as an Area Manager, the appellant attended a house owned by the Department where a deceased client had previously resided. When at the house the appellant took possession of some of the deceased client’s medications and then stored some of them in his drawer at the Narrogin Office of the Department.

6         On 16 February 2021, WA Police Officers executed a search warrant at the Department’s Narrogin Office. As a result of this search warrant WA Police located and seized the following medication from the appellant’s office drawer:

1. 4 x boxes (each containing 28 tablets) of tramadol 100 milligram tablets with the name of ‘Mark Williams’ prescribed on the box;
2. 24 tramadol 50 milligram tablets in a loose blister pack;
3. 9 kapanol or morphine sulphate 20 milligram tablets in a loose blister pack; and
4. 18 tramadol 200 milligram tablets in a loose blister pack.

7         On 17 February 2021 the appellant participated in a video recorded interview with WA Police in relation to the medications seized from his drawer on 16 February 2021.

8         Sometime after this video recorded interview, the appellant was charged with one count of being in possession of a Schedule 4 Poison (tramadol) without a valid excuse, contrary to s 14(4) of the Medicines and Poisons Act 2014 (WA) (MP Act) and one count of being in possession of a Schedule 8 Poison (morphine sulphate) without valid excuse, contrary to s 14(4) of the MP Act.

9         On 16 August 2021 the Assistant Director General of the Department wrote to the appellant and informed him that he intended to suspend him from the workplace on full pay and provided the appellant with an opportunity to comment on this proposal.

10      On 3 December 2021, after a criminal trial, the appellant was convicted of the charges in the Albany Magistrates Court. The Court imposed a global fine of $1,500 and granted a spent conviction order. The transcript of the sentencing hearing is part of the Agreed Documents.

11      On 29 December 2021 the Director General of the Department wrote to the appellant informing him that because of his convictions, the Department had found that the appellant had committed a breach of discipline pursuant to s 92 of the PSM Act and that he was proposing to dismiss him as a result. The appellant was provided with an opportunity to respond to this proposed action.

12      On 4 January 2022 the appellant provided a written response to the Director General's dismissal proposal.

13      On 26 April 2022 the Director General of the Department wrote to the appellant and confirmed that he was dismissing him from his employment.

What Must the Board Decide?

14      The parties agree that the appellant was convicted of a serious offence, and it is not in dispute that the Department had authority to impose disciplinary action and did so by dismissing the appellant.

15      The appeal before the Public Service Appeal Board (Board) is a hearing de novo: Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266. The question for the Board is whether the Department’s decision to dismiss the appellant should be adjusted in the circumstances of this matter.

Principles to be Applied

16      Section 92 of the Public PSM Act concerns employees convicted of serious offences:

Employee convicted of serious offence, powers as to

(1) Despite the Sentencing Act 1995 section 11, if an employee is convicted or found guilty of a serious offence, the employing authority may take disciplinary action or improvement action, or both disciplinary action and improvement action, with respect to the employee.

(2) Before any disciplinary action or improvement action is taken with respect to an employee under this section, the employee must be given an opportunity to make a submission in relation to the action that the employing authority is considering taking.

(3) If an employee is dismissed under this section, for the purposes of sections 58(4) and 59(1) the employee is taken to have been dismissed for breach of discipline.

17      Disciplinary action is defined in s 80A of the PSM Act:

80A. Terms used

 In this Division —

disciplinary action, in relation to a breach of discipline by an employee, means any one or more of the following —

 (a) a reprimand;

 (b) the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made;

 (c) transferring the employee to another public sector body with the consent of the employing authority of that public sector body;

 (d) if the employee is not a chief executive officer or chief employee, transferring the employee to another office, post or position in the public sector body in which the employee is employed;

 (e) reduction in the monetary remuneration of the employee;

 (f) reduction in the level of classification of the employee;

 (g) dismissal;

 …

18      Serious offence is defined in s 80A of the PSM Act:

…

serious offence means —

(a) an indictable offence against a law of the State (whether or not the offence is or may be dealt with summarily), another State or a Territory of the Commonwealth or the Commonwealth; or

(b) an offence against the law of another State or a Territory of the Commonwealth that would be an indictable offence against a law of this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or

(c)  an offence against the law of a foreign country that would be an indictable offence against a law of the Commonwealth or this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or

(d) an offence, or an offence of a class, prescribed under section 108.

19      As observed in Gaudet v Commissioner Ian Johnson Department of Corrective Services [2013] WAIRC 00032; (2013) 93 WAIG 279 (Gaudet) all the circumstances of the offending and the employment need to be considered [24]:

Moreover, it should also be observed that the combined effect of ss 80A and 92 of the PSM Act are such that there is no presumption that dismissal will be the only outcome of an employee being convicted of a serious offence. Section 92 contemplates that the employing authority may take disciplinary action or improvement action or both, as a consequence of an employee being convicted of a serious offence. Plainly, in our view, all of the circumstances of the offending and of the employment need to be weighed in the balance in the employer’s ultimate decision as to what action to take.

Was the Department’s Decision Lawful and Valid?

20      Section 92 of the PSM Act provides that the Department may take disciplinary action or improvement action if an employee is convicted or found guilty of a serious offence. It is not disputed that the appellant was convicted of serious offences as defined in the PSM Act. The Board finds that the Department can rely on the appellant’s conviction to take disciplinary action and there was no requirement to investigate.

21      Before taking any disciplinary or improvement action there is a requirement prescribed by s 92(2) of the PSM Act that an employing authority give an employee an opportunity to make submissions in relation to the action that an employing authority is considering taking. The appellant was given an opportunity to make submissions regarding the proposal to dismiss him and did so by letter dated 4 January 2022. The Department also met with the appellant on 28 February 2022 to provide the appellant an opportunity to comment on the proposal to dismiss him.

22      The Board finds that the Department’s decision to dismiss was lawfully and validly made consistent with s 92 of the PSM Act.

Was the Decision to Dismiss Proportionate?

23      The appellant submits the Board review the dismissal decision on the basis that it was disproportionate. The Board understands the appellant contends that the Department purportedly did not have a policy in place for how to dispose of the medications and that he believed he was doing the right thing by removing a risk from the property and storing them in his office drawer.

24      The appellant submits that he did not intend ‘anything nefarious’ and did not have ‘malintent’ by taking and storing the medication in his drawer at the Narrogin Office. The appellant says he disposed of the nonprescription medications he had taken however he believed he ought not throw away schedule 4 or schedule 8 medications in the same way. The appellant says the Department does not have any policies or guidelines on the method of disposal of schedule 4 and schedule 8 medications. The appellant says there needs to be a process in place to determine what happens in these circumstances. The appellant submits that if there had been a policy that stated that medications found on either an abandoned property or a deceased estate should be taken to the chemist at the first available opportunity, he would have done that.

25      The Department submits that the reasons for the appellant keeping the medication is a key issue. The Department says that based on the Magistrate Court’s findings it is unreasonable to infer that the appellant retained the medications for the purpose of safely disposing of them. The Department contends that the Board may infer that the appellant decided to store the medication for a purpose other than the safe disposal and did so away from the knowledge of the Department. These circumstances results in the destruction of the necessary trust and confidence to maintain an employment relationship.

26      The Department contend that, irrespective of his intentions, the appellant was careless and negligent by storing the medications in his office drawer where others could access them, failing to keep a record of the storage and failing to speak to a more senior staff member before storing the medication.

27      The Board considers the sentencing remarks of Magistrate Scaddan in December 2021 cast doubt upon the appellant’s stated rationale for storing the medication:

Therefore, I do not accept, and I reject the accused’s [the appellant] suggestion that it was more likely – more than likely or there was every chance he would take the found medications to a pharmacist or pharmacy.

…

I do not accept the submission by the accused that he was merely tardy about the delivering of the tramadol and morphine sulphate to a chemist.

28      The Board are not convinced by the appellant’s statements that he did not know what he ought to do with the medications. The appellant’s submissions to the Magistrate indicate that he did know that he could or should take them to a chemist but had not yet done so before the Police searched his office. The appellant was able to differentiate between types of medications he took from the deceased client’s estate and disposed of some whilst retaining others. The appellant’s submissions that the lack of a policy specifically addressing the disposal of the medications found at a deceased client’s estate meant he did not know what he ought to do is not credible. The appellant did not record the medications and the storage of them in his drawer. However, the appellant does not dispute that he did place other items of value into Departmental storage.

29      The appellant contends that he is not remorseful because he was unaware that he was breaking the law and the Department did not have a policy concerning the proper disposal of medications found at abandoned or deceased estates to guide him. The appellant says everything that employees do in the course of their work is set out in policy and guidelines.

30      The appellant submits that he would have contravened the Department of Health – Disposal of Medicines policy if he had disposed of the medications in line with the Department’s Housing Authority Abandoned Goods and Documents procedure. However, the appellant acted contrary to the Department of Health document by both throwing some medications away, presumably in the rubbish, and placing other medications in his office drawer where others could access them.

31      The doubt over the credibility of the appellant’s explanations concerning the reasons he retained the medications, without recording them and properly storing them until he could determine how to dispose of them, and the appellant’s complete lack of remorse and insight into his conduct has consequences for the employment relationship. In these circumstances the Board cannot have trust and have confidence that the appellant can conduct himself appropriately if he was reinstated.

32      The Board has considered all the circumstances of the offending and of the employment, like Gaudet, and has concluded that the Department’s decision to dismiss should not be adjusted.

Conclusion

33      For the reasons set out above the Board will dismiss the appeal.