APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 23 FEBRUARY 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00681

DELIVERED : friday, 11 August 2023

FILE NO. : PSAB 24 OF 2022

Appellant

AND

Director General, Department of Communities

Respondent

CatchWords : Public Service Appeal Board – failure to prosecute – 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 : Mr L Osborne (in person)

Respondent : Ms E Negus (of counsel)

Case(s) referred to in reasons:

Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689

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         The Public Service Appeal Board (Board) dismissed this appeal on 15 November 2022 pursuant to s 27(1) of the Industrial Relations Act 1979 (WA) (IR Act) for the following reasons.

2         Mr Lloyd Osborne was employed by the Director General, Department of Communities (the Department) as a Secure Care Worker Level 3.2 at the Kath French Secure Care facility from 29 October 2019. Mr Osborne had been employed on a fixed term contract which was due to expire on 31 March 2022.

Background to Matters Appealed

3         On 12 January 2022 Mr Osborne was advised allegations had been made against him and he would receive written notification of all the allegations in the near future and the Department’s Integrity, Intelligence & Professional Standards Unit would assess the allegations and determine whether to conduct a disciplinary investigation, he was directed to not attend the workplace. Mr Osborne was suspended on full pay on 12 January 2022.

4         In the Director General’s Form 4 - Response, it is reported that Mr Osborne attended an informal work function and that an attendee reported to the Department that Mr Osborne had assaulted multiple attendees at the function. Further, at some time prior to 4 February 2022 Mr Osborne was charged with breaching a violence restraining order.

5         On 25 January 2022 Mr Osborne attended an interview for Secure Care Worker permanent pool positions and was notified on 23 February 2022 that he had been successful in being added to the Level 3 pool.

6         Subsequently Mr Osborne was informed that he would not be offered any further fixed term contracts because he was currently suspended.

7         On 7 February 2022, the Department’s A/Assistant Director General wrote to Mr Osborne stating:

I have become aware that you may have committed acts which constitute breaches of discipline under Section 80 of the Public Sector Management Act 1994 (the Act). Specifically, it was reported that you may have committed acts of family domestic violence towards or in the presence of your family.

I have been advised that you were provided with verbal advice of your suspension on full pay by Dr Penny Wakefield, on 12 January 2021.

I have since become aware of allegations that you may have displayed inappropriate behaviour towards work colleagues on 22 January 2022, and that you have also been charged with breaching a violence restraining order. The nature of the allegations against you will be fully particularised and forwarded to you in due course, in order to enable you to respond.

8         In this letter, Mr Osborne was notified that his suspension on full pay continued, and he was invited to submit reasons why the suspension should not continue.

9         On 10 February 2022, the Department received a response from Mr Osborne.

10      On 22 February 2022, the Department wrote to Mr Osborne and advised him that his suspension on full pay would continue.

11      In his Form 8B - Notice of Appeal, Mr Osborne states that he attended the Midland Police Station on 25 March 2022. An interview occurred and afterwards he was told that the allegations would not be pursued.

12      The Department continued to pay Mr Osborne until 31 March 2022 when his fixed term contract ended.

13      Mr Osborne appeals the decision to not extend his fixed term contract and seeks the Board adjust the decision by ordering that the Director General issue a fixed term contract or offer permanent appointment from the Secure Worker Level 3 pool and he be returned to work with immediate effect.

14      The Department opposes the appeal because it says the Board does not have jurisdiction to determine the matters referred in the notice of appeal. The Department submits that it did not make a decision under s 78(1)(b) of the Public Sector management Act 1994 (WA) (PSM Act) to take disciplinary action. The Department contends that the decision to not offer any further employment after the expiry of Mr Osborne’s fixed term contract does not constitute a dismissal and therefore is not a decision to take disciplinary action.

Conduct of Case

15      On 9 May 2022 the parties were notified by email that the matter was listed for a Directions Hearing on 20 June 2022. The appellant did not appear at the Directions Hearing. The respondent’s representative attended. The Board’s Associate attempted to contact the appellant by telephone however the phone call was declined and there was no option to leave a voicemail.

16      On 23 June 2022 the Board’s Associate emailed the parties noting the appellant did not appear at the Directions Hearing and sought an explanation. The email advised the parties that the Board were of a view that the respondent’s jurisdictional objection ought to be heard and determined as a preliminary issue. The jurisdictional objection was set out in the respondent’s Form 4 - Response filed on 22 April 2022. The Board provided a Minute of Proposed Directions for the parties’ consideration. The appellant was requested to advise of his views to progressing this appeal and issuing the Minute of Proposed Directions.

17      On 28 June 2022 the Board’s Associate emailed the appellant noting that the Board were not in receipt of a response to the earlier email of 23 June 2022 and requested the appellant advise of his intentions in progressing this application.

18      On 29 June 2022 the Board’s Associate called Mr Osborne and spoke with him. Mr Osborne advised that he had not received any correspondence and stated that the email address he had provided in his application was an address he used infrequently, and he provided an alternate email address.

19      On 30 June 2022 the Board’s Associate emailed the appellant, using the recently provided alternate email, enclosing the four emails he had said that he had not seen.

20      On 22 July 2022 the Board’s Associate emailed the parties:

Mr Osborne, I note the Board have not received a reply from yourself and the dates in the Minute of Proposed Directions have passed. If you wish to continue with this application, please provide the Board with a response to my emails below and attached.

The Board have instructed me to prepare a further Minute of Proposed Directions for the parties’ consideration. Kindly advise your views to issuing the Minute of Proposed Directions? Please do this via return email to myself and by no later than 4pm on 27 July 2022.

21      On 27 July 2022 the Board’s Associate twice attempted to contact the appellant by telephone, there was no answer and no option to leave a voice message.

22      On 28 July 2022 the Board issued the Directions and provided these to the appellant by email and post.

23      On 8 August 2022 the respondent invited the Board to exercise its powers to dismiss the appeal for lack of prosecution given the lack of communication from Mr Osborne.

24      On 9 August 2022 the Board sought Mr Osborne’s views on the proposal to dismiss the appeal for want of prosecution. No response has been received.

25      On 18 August 2022 the Board notified the parties of a hearing listed on 15 November 2022 for the appellant to advise of his intentions to progress his application and show cause why his application ought not be dismissed in the circumstances. Mr Osborne was notified that failure to attend the hearing may result in the appeal being dismissed. The notice was emailed and posted to Mr Osborne.

Question to be Decided

26      The Board must decide whether to dismiss application PSAB 24 of 2022 because by failing to prosecute his appeal the appellant has demonstrated that he does not have sufficient interest in the matter.

The Law

27      The Board 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 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 of it discontinued, as the case may be;

28      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.

29      A party is entitled to invoke the Commission’s jurisdiction and prima facie expect it to be exercised: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 per Deane J at 399. However, it is beyond doubt that the Commission has the power under s 27(1)(a) of the IR Act to dismiss or refrain from further hearing a matter at any stage of proceedings if it is satisfied that the requirements set out in s 27(1)(a) of the IR Act are met. That power is broad and should be exercised with caution: Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595 [13]-[15], applying the reasoning in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689 at [137]-[139]. The Board adopts the approach set out in these matters.

Should this Application be Dismissed?

30      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: Section 27(1)(d) of the IR Act. Service on Mr Osborne was effected by leaving the notice at, or sending it by pre-paid post to, Mr Osborne’s usual or last known place of abode: Regulation 24(2)(d) of the Industrial Relations Commission Regulations 2005 (WA) (IR Regulations).

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

32      We are satisfied that Mr Osborne has been duly served with notice of these proceedings and the Board may proceed with the hearing in his absence.

33      There has been a relatively long delay in the context of this application and there has been no explanation for that delay. There is no evidence of hardship to Mr Osborne if his application is dismissed; and there is nothing before the Board to suggest the respondent’s conduct in the matter has in any way contributed to Mr Osborne’s failure to prosecute his application.

34      The onus rests with a party initiating proceedings to prosecute those proceedings diligently. Where the Board requires advice to be provided within given time frames 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. It is the responsibility of the appellant to progress the appeal. Mr Osborne has not met the onus which falls to him and has not pursued this matter appropriately.

35      In the circumstances, the Board found that Mr Osborne has not prosecuted his appeal and ordered that the appeal be dismissed under s 27(1)(a) of the IR Act.