APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 02 DECEMBER 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00442

DELIVERED : FRIday, 25 July 2025

FILE NO. : PSAB 30 OF 2024

Applicant

AND

Public Sector Commission

Respondent

CatchWords : Industrial Law (WA) - Public Sector Appeal Board - Appeal against decision to dismiss under s 78 of the Public Sector Management Act 1994 - Appellant convicted of a serious offence - Whether the conviction for a serious offence was related to the requirements of the appellant’s role - Dismissal not harsh, unfair, or disproportionate - Appeal dismissed

Legislation : Industrial Relations Act 1979

Result : Appeal dismissed

Representation:

Applicant : In person

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

Brianna Conti-Nibali v Main Roads [2024] WAIRC 00120

Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241

Deborah Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

Gaudet v Commissioner Ian Johnson Department of Corrective Services [2013] WAIRC 00032

Picks v WA Country Health Service Board [2020] WAIRC 00806

Rose v Telstra [1998] AIRC 1592

Safeta Kos v Director General, Department of Transport [2023] WAIRC 00298

Sanja Spasojevic v Speaker of the Legislative Assembly [2021] WAIRC 00641

Scott v Consolidated Paper Industries (WA) Pty Ltd (1998) 78 WAIG 4940

Selvahandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Williams v Commissioner of Police, Western Australia [2018] WAIRC 00720

Reasons for Decision

1         This is the unanimous decision of the Public Service Appeal Board (Board).

2         The case involves an appeal by Adrian Mitchell (appellant) of a decision by the Public Sector Commissioner (respondent), that resulted in the termination of his employment.

3         The appellant, who was employed by the Public Sector Commission (PSC) as a Senior Consultant, was dismissed from his employment on 2 December 2024 (dismissal), after he was convicted by a jury in the District Court, for the offence of ‘aggravated common assault’ contrary to s 313(1)(a) of the Criminal Code Act Compilation Act 1913 (offence).

4         The offence was committed in August 2020, against the appellant’s former wife, in the family home. The circumstances of aggravation included that the assault involved a non-fatal strangulation, and the couple’s children were present.

5         Upon his conviction for the offence, the appellant was sentenced to a suspended term of 12 months’ imprisonment.

6         Following this, the PSC commenced disciplinary action under the Public Sector Management Act 1994 (PSM Act) which culminated in the appellant’s dismissal.

7         On 3 December 2024, the day after he was dismissed, the appellant filed an appeal against his dismissal under s 78 of the PSM Act (appeal).

8         By way of relief, the appellant sought orders that he be reinstated to his former position or to a different public sector role. He also asked the Board to exercise its discretion to impose alternative sanctions under s 80A of the PSM Act.

9         In the reasons to follow, the Board explains why it has decided that it is not appropriate to adjust the respondent’s decision and why her decision to dismiss the appellant must stand.

Appeals to the Board

10      As a starting point, it is worth providing a brief description of the following:

a. why the Board has the jurisdiction to hear the appeal,

b. some of the powers the Board has in dealing with the appeal; and

c. the matters the Board is entitled to consider.

11      On this, Part 5 of the PSM Act applies to Public Service Officers and other prescribed employees (public sector employees) in relation to any suspected breaches of discipline, including acts of misconduct.

12      Under s 80 of the PSM Act, a public sector employee who commits an act of misconduct commits a ‘breach of discipline’ and is liable to face disciplinary action.

13      The PSM Act includes in its definition of ‘disciplinary action’ under s 80A ‘a reprimand, fine, transfer, reduction in remuneration or classification and dismissal’ (disciplinary action). Section 82A sets out how an employing authority deals with a disciplinary matter.

14      In situations where an employing authority decides to take disciplinary action, the affected public sector employee may appeal a decision to take disciplinary action to the Board under s 78 of the PSM Act and s 80I(1)(b) of the Industrial Relations Act 1979 (IR Act).

15      The Board as a constituent authority of the Western Australian Industrial Relations Commission (WAIRC), exercises jurisdiction under the IR Act when hearing and determining such appeals.

16      The Board has a discretion to ‘adjust’ the matters referred to in s 80I(1) of the IR Act, which includes setting aside a decision to dismiss a public sector employee.

17      Section 26(1)(a) of the IR Act applies to the exercise of the Board’s jurisdiction. It requires the Board to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms.

18      The Board is empowered to review the Department’s decision de novo: see Deborah Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 (Harvey).

19      This means the Board can decide the matter afresh, on the evidence before it, not merely based on whether the Department made the right decision available to it at the time: Safeta Kos v Director General, Department of Transport [2023] WAIRC 00298 (Kos) at [15].

20      When determining matters de novo, the Board makes its own decision as to whether the appellant engaged in the misconduct alleged: see Harvey at [31] and [65]. It also means the Board has much greater scope to substitute its own view for that of the employing authority: Brianna Conti-Nibali v Main Roads [2024] WAIRC 00120 at [67].

21      An employing authority’s decision is not to be totally disregarded by the Board. However, a hearing de novo does not necessarily mean the Board must re‑hear every aspect of the allegations afresh: see Kos at [17].

22      The matters that are to be to be considered in an appeal to the Board, will largely depend on the circumstances of the particular case: see Harvey at [29] – [30] and Sanja Spasojevic v Speaker of the Legislative Assembly [2021] WAIRC 00641 at [40] – [44].

Evidence and submissions in the appeal

23      Before the appeal was listed for hearing, the Board made the following programming directions:

1. THAT discovery is to be informal.
2. THAT the parties are to file any statement of agreed facts and bundle of agreed documents by 4.00 pm on 31 January 2025.
3. THAT by 4.00pm on Friday, 14 February 2025 the appellant is to file:
   1. any witness outlines; and
   2. any documents which are not agreed documents upon which he intends to rely on.
4. THAT by 4.00pm on Friday, 28 February 2025 the respondent is to file:
   1. any witness outlines; and
   2. any documents which are not agreed documents upon which they intend to rely on.
5. THAT the appellant is to file an outline of written submissions upon which he intends to rely on by 4.00 pm on Friday, 14 March 2025.
6. THAT the respondent is to file an outline of written submissions upon which they intend to rely on by 4.00 pm on Friday, 28 March 2025.
7. THAT the appeal is to be listed for hearing of up to 1 day not before Thursday, 3 April 2025.

24      The parties as directed, filed a Statement of Agreed Facts and a Bundle of Agreed Documents, which included a copy of the transcript from the sentencing hearing in the District Court.

25      The appellant, who was self-represented, declined to file any witness outlines or any further documents in support of his appeal. In email correspondence to the Board, the appellant confirmed that he was content for the appeal to be decided on the material contained in the Statement of Agreed Facts and the Bundle of Agreed Documents.

26      Although the respondent filed a further bundle of documents to be relied upon in opposition to the appeal (Respondent’s Bundle of Documents) like the appellant, the respondent did not file any witness outlines. The respondent was similarly content for the appeal to be decided on the material that was filed by agreement between the parties.

27      It is reasonable to describe the Respondent’s Bundle of Documents, as a series of guidance notes and policy statements, on how employing authorities are to respond to and the supports that are available for public sector staff who are affected by the incidence of domestic violence.

28      The appellant and the respondent both filed brief outlines of submissions. In accordance with the programming directions, the Board then convened a half day hearing that was held on Wednesday, 28 May 2025 (hearing).

Statement of Agreed Facts and Bundle of Agreed Documents

29      Before providing a summary of the parties’ submissions and to describe the context in which the respondent made her decision to dismiss the appellant, it is worth setting out those matters the parties were able to agree upon in the Statement of Agreed Facts.

30      It is also helpful to extract and include relevant content from the Bundle of Agreed Documents.

The appellant’s employment and job description

31      The appellant commenced employment with the PSC in December 2010. Prior to his dismissal, he worked as a Level 6.4 Public Service Officer, in the position of Senior Consultant.

32      Agreed Document 1 which was attached to the Statement of Agreed Facts, is a copy of the Job Description Form that applied to the appellant’s position of Senior Consultant (job description).

33      A copy of the appellant’s job description is extracted below:

Senior Consultant Referrals, Notifications and Assessments (PSC18055)

Role of the position

The Senior Consultant Referrals, Notifications and Assessments is responsible for:

• contributing to the management and delivery of referrals, notifications and assessment services to provide high quality, innovative and timely services to the WA public sector
• undertaking an oversight role including investigation and reviews relating to minor misconduct, breach of standards, matters of referral and any other matters allocated by the Commissioner.

Reporting relationship

Responsibilities of the position

• Undertakes reviews and investigations to support the legislative functions of the Commissioner in assessing performance and compliance with the relevant legislation, standards, instructions and ethical codes across the WA public sector.
• Researches and analyses issues relevant to compliance and performance.
• Contributes to the development of policies, systems and frameworks to ensure referrals, notifications and assessment services are provided in the most effective and efficient manner and incorporate innovative approaches.
• Assists key stakeholders to understand their responsibilities and obligations under various Acts including the Public Sector Management Act 1994, Public Interest Disclosure Act 2003, Corruption, Crime and Misconduct Act 2003, Commissioner's Instructions and other requirements and subsidiary legislation relevant to the scope of the Division.
• Provides advice, both internally and externally, to address and resolve a broad range of public sector governance, human resource management, and integrity and conduct matters, and clarify directives, policies and procedures.
• Researches and prepares reports, briefing notes, speeches, correspondence and other written material relevant to the outputs of the Division and for a wide audience including Parliament, Ministers and Chief Executive Officers.
• Provides advice to the Commission’s Executive, senior management and employees in relation to reviews, investigations and matters relating to performance and compliance and strategic streamlining opportunities.
• Promotes the Commission’s and the Division’s interests by developing and maintaining positive and effective working relationships with external and internal stakeholders.
• Represents the Commissioner and the Commission’s interests at various agency, community and state forums.
• Actively contributes to the efficient operation of the Commission and undertakes other roles and tasks as directed.
• Demonstrates the highest standards of honesty and integrity, and operates within public sector values, code of ethics and conduct, organisational processes, and legislative and policy parameters.

Work related requirements (selection criteria)

The selection panel assesses applications against the work related requirements of the responsibilities of the position. The panel also takes into account the needs of the Commission and availability of suitable applicants.

1. Role specific requirements ● Experience in interpreting legislation, standards

and codes and the application of assessments,

investigations and reviews in an oversight role

• Demonstrated ability to enhance service processes and procedures to achieve maximum efficiency

2. Shapes and manages strategy ● Supports shared purpose and direction
   • Thinks strategically
   • Harnesses information and opportunities
   • Shows judgment, intelligence and common sense
3. Achieves results
   • Identifies and uses resources wisely
   • Applies and builds professional expertise
   • Responds positively to change
   • Takes responsibility for managing projects to achieve results

The appellant’s conviction

34      On 4 June 2024, the appellant at the conclusion of a trial by jury that was held in the District Court, was convicted of the offence (conviction). Following the trial, the sentencing hearing was deferred to a later date.

35      On 20 September 2024, District Court Judge Ritter sentenced the appellant to a term of 12 months’ imprisonment suspended for 18 months (sentence).

36      Agreed Document 2 that was referred to the Bundle of Agreed Documents is a copy of the 31 pages of transcript setting out His Honour Judge Ritter’s sentencing decision (sentencing transcript).

37      When providing his reasons for the sentence the appellant received, Ritter J described the circumstances in which the offence was committed.

38      At pages 15 -16 of the sentencing transcript Ritter J stated:

To summarise my findings, therefore, they are:

(a)                on 16 August 2020, you and Ms Mitchell had been to a party;

(b)                you both returned home to 13 Brown Street, Claremont;

(c)                after you came home, you paid a babysitter who left;

(d)                you were at that time quite inebriated;

(e)                an argument broke out between you and Ms Mitchell;

(f)                 you then moved to the master bedroom downstairs;

(g)                the argument continued and you pushed Ms Mitchell against the wall where she hit her head. She was pushed by you by your hands on her chest;

(h)                you then grabbed the neck of Ms Mitchell with your hand and pinned Ms Mitchell up against the wall. Ms Mitchell said in her evidence that she was suffocating and choking at that time and you were squeezing her neck;

(i)                  Lachlan came to the door, had Ms Mitchell’s phone and said, “Dad, I’m going to call the police.”

(j)                  you then let go of Ms Mitchell, smacked Lachlan on the thigh and said, “You little shit.”

(k)                Ms Mitchell then grabbed the telephone, went upstairs and hid in the boys’ bedroom;

(l)                  Ms Mitchell and the children barricaded the door and waited until they thought you had definitely gone;

(m)              Ms Mitchell said at that time that she felt terrified.

39      At page 17 Ritter J noted:

I need to take into account now the objective seriousness of your offending. I take into account specifically the contemporary concern for this type of offending. It is, rightly, described as a scourge on society. There have been very justifiable concerns by governments and the community about the seriousness of this type of offending. It happens far too frequently, and the seriousness of offending of this type is patent.

40      Quoting from the decision of Bropho v Hall [2015] WASC 50, Ritter J on page 18 of the sentencing transcript stated:

His Honour said that it must be accepted, that:

An offence of this nature generally involves an abuse of trust which one partner places in another, often where the complainant is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the complainant is generally increased by the difficulty which she (it is usually a she) may have in extracting herself from the situation.

41      On page 19 of the sentencing transcript Ritter J said:

I note also that your offending in this case was the holding of Ms Mitchell’s throat and the squeezing of her neck and applying pressure to that. That offence could be described as one of non-fatal strangulation.

The act of strangulation can pose a real risk of conduct to the life and health of a victim. That was referred to, in particular, in the decision of the Court of Appeal in MYB v The State of Western Australia [2024] WASCA 53 at paragraph 64. The court said:

Strangulation, which is commonly reported by women who have experienced domestic violence, can be distinguished from other forms of family and domestic violence on the basis that it often leaves very few marks or signs; even in cases where the strangulation was life-threatening.

The court said:

The fact that this type of offending is more likely to go undetected makes strangulation a particularly dangerous form of domestic violence, and recent studies have consistently shown that it is both a predictive risk factor for future domestic violence and a relatively common cause of domestic violence-related homicide.

42      Further down on page 19 of the sentencing transcript, Ritter J also said:

I look now at the aggravating factors to your offending. Your child, Lachlan, was present, and you hit Lachlan in the aftermath of your offending. Your son witnessed at least part of the assault that represented the assault by you, his father, upon his mother. I regard it as an aggravating factor that your son had to witness this type of unprovoked violence, and that he was hit when he tried to do something about it.

The Sentencing Act, as I have said, provides that in sentencing I need to take into account the vulnerability of the victim. The person you offended against was your wife who you were then living with. It was a gross breach of trust. Rather than being there for the mutual support and protection involved in a marriage you instead, on this occasion, assaulted her in the serious way that I have described.

Disciplinary action – Show cause letter

43      Following his conviction and sentence, the respondent in a letter dated 9 October 2024, informed the appellant that she was considering taking disciplinary action by way of dismissal (show cause letter).

44      The show cause letter was referred to the Bundle of Agreed Documents as Agreed Document 3, the contents of which are extracted below:

Dear Adrian

PROPOSED DISCIPLINARY ACTION

I write with reference to your recent conviction by the District Court of aggravated common assault.

I have obtained a copy of your sentencing transcript from the Court (attached). Having reviewed the transcript from his Honour, Judge Ritter's sentencing remarks I am giving consideration to taking disciplinary action in accordance with s.92(1) of the Public Sector Management Act 1994 (PSM Act).

Specifically, I am considering taking disciplinary action by way of dismissal. My reason for this proposal is my present concern that the nature and objective seriousness of the offence for which you have been convicted renders you unsuitable for employment in an integrity related position in the Public Sector Commission.

In proposing this action, I have given careful consideration to:

•        your conviction for aggravated common assault.

•        the suspended sentence of 12 months imprisonment you have received in relation to that conviction; and

•        the Judge's sentencing remarks.

Prior to taking disciplinary action, in accordance with s.92(2) of the PSM Act, I invite you to make a submission in relation to the action I am considering taking. Your submission should be provided to First Last, Executive Director Integrity and Risk at first.last@psc.wa.gov.au by close of business Wednesday 23 October 2024.

In proposing this outcome, I acknowledge it may impact your psychological health. I would encourage you to maintain contact with your own treating medical practitioners and use the Commission's EAP providers if required. Their details are below

•        Benestar tel 1300 360 364

•        People Sense tel 93889000

Yours sincerely

SHARYN O'NEILL PSM

PUBLIC SECTOR COMMISSIONER

Appellant’s response

45      On 5 November 2024 the appellant provided his written response to the show cause letter. This was referred to in the Bundle of Agreed Documents as Agreed Document 4 (appellant’s response).

46      The appellant’s response is a three-page letter, to which he attached copies of his curriculum vitae (CV), a letter from Dr Dylan Galloghly – Senior Clinical and Forensic Psychologist dated 5 August 2024 (psychologist’s report) and some of the character references the appellant provided to Ritter J for the sentencing hearing (character references).

47      The appellant also included a copy of a letter he provided to Ritter J dated 1 September 2024, in which he stated:

My employment may also be jeopardised by this conviction which is another challenge I must overcome.

The appellant’s dismissal

48      After he submitted his response to the show cause letter, the respondent by way of a letter dated 2 December 2024 dismissed the appellant from his employment (dismissal letter).

49      The dismissal letter was referred to in the Bundle of Agreed Documents as Agreed Document 5, a copy of which is extracted below:

Dear Adrian

NOTICE OF DISMISSAL

I have received your submission in response to the proposed discipline action of dismissal detailed to you in my letter of 9 October 2024.

I have carefully reviewed your submission. I am pleased to hear you are seeking support and assistance from medical professionals and undertaking various volunteering opportunities, which is contributing to your rehabilitation. However, having considered all the factors outlined in your submission, I remain of the view that dismissal is commensurate with the seriousness of the offence of which you have been convicted and is the appropriate sanction in this matter.

While I considered your request for consideration of alternative forms of disciplinary action outlined in section 80A of the Public Sector Management Act 1992, I consider that your continued employment in an integrity related agency such as the Public Sector Commission is not tenable. As you will be aware, the highest standards of integrity and public sector values are essential requirements for all positions in the Commission. The nature and seriousness of your offence, as reflected in the suspended sentence you received, are not compatible with these requirements.

Your termination pursuant to section 92(1) of the PSM Act is effective as of today's date. Arrangements will be made for you to receive a payment in lieu of notice and payments for accrued annual leave and pro rata long service leave.

To support you with your continuing rehabilitation and personal development, I am willing to provide you with 6 sessions of free confidential counselling through one of our Employee Assistance Providers, Telus Health, 1800 835 871 or PeopleSense, 9388 9000.

I understand this is not the outcome you were hoping for, but I do genuinely wish you well for your future endeavours.

50      Having now described the factual context in which the dismissal occurred, it is necessary to provide a summary of the parties’ submissions in the appeal.

Appellant’s submissions

51      The appellant contended his dismissal was a disproportionate response to his conviction for the offence.

52      While the appellant in his submissions acknowledged the fact of his conviction, like he did in his response to the show cause letter, the appellant continued to profess his innocence.

53      The appellant submitted his conviction for the offence was not related to the inherent requirements of his job and that it would not preclude him from fulfilling the requirements of his role: (transcript p 4).

54      The appellant submitted the penalty of dismissal was excessive, because he had no prior history of workplace conduct that warranted disciplinary action and he was not sentenced to ‘an immediate term of imprisonment.’

55      The Board understood the second part of this submission to mean that because the appellant’s term of imprisonment was suspended and he was not required to spend any actual time in prison, the offence was less serious than what was suggested by the respondent in the show cause and dismissal letters.

56      The appellant submitted the respondent, in reaching her decision to dismiss him, had failed to properly consider or have regard to, relevant mitigating factors including:

(i) The appellant’s long and unblemished service within the public sector.

(ii) The fact the offence occurred in a personal and domestic setting, unrelated to his employment.

(iii) The substantial support the appellant has from colleagues and in professional references, which indicate his capability to continue serving effectively in his role.

57      The appellant contended the respondent had failed to consider alternative sanctions. He submitted the respondent, instead of his dismissal, should have explored or implemented lesser disciplinary measures, such as demotion, suspension without pay, training, counselling or a formal warning, which could have been more appropriate and rehabilitative in nature.

58      On the issue of procedural fairness, the appellant contended he was not given a fair opportunity to present his case before the decision was made to terminate his employment. The appellant said he was not adequately informed of, the full scope of considerations, the respondent relied upon to make her decision.

59      During the hearing and in his outline of submissions, the appellant referred to the decision in Picks v WA Country Health Service Board [2020] WAIRC 806 (Picks).

60      The appellant relied upon Picks to suggest that his case was comparable. On this basis, the appellant submitted the Board should also make an order that would allow the appellant to return to his employment with the respondent.

Respondent’s submissions

61      The respondent argued the appellant’s dismissal was, in all the circumstances, a fair response to the conviction. It was submitted there was no basis for the Board to interfere with the respondent’s decision to dismiss the appellant.

62      The respondent submitted that where a public sector employee (as in this case) is covered by Part 5 of the PSM Act and is convicted or found guilty of a ‘serious offence,’ an employing authority is permitted to take disciplinary action that may result in the employee’s dismissal.

63      Referring to the definitions of a ‘serious offence’ as they appear in ss 80A and s 92 of the PSM Act, the respondent submitted the offence, for which the appellant faced disciplinary action, was serious.

64      The respondent accepted that where an employee is convicted of a ‘serious offence,’ an employing authority may decide that it does not have to take disciplinary action by way of dismissal.

65      However, it was submitted that as is the case with employment discipline more generally, all the facts and circumstances need to be considered when determining appropriate disciplinary action, following a conviction for a ‘serious offence.’

66      Notwithstanding this, the respondent submitted the appellant’s dismissal was fair in all the circumstances, taking into account all of the circumstances. These were described at paragraph 21 of the respondent’s outline in the following terms:

(a) The very serious nature of the offending which is set out above. That a term of imprisonment was imposed, which is a sentence of last resort, is itself indicative of the very serious nature of the offending. As the sentencing judge explained, this type of offending is a scourge on society, and this type of offending involving strangulation is particularly serious.

(b) The nature of the position held by the appellant which is an integrity-based position. Duties of the position include conducting reviews and investigations to support the Public Sector Commissioner’s legislative functions in assessing performance and compliance with relevant legislation, standards, instructions and ethical codes across the WA Public Sector.

(c) The agency in which the appellant was employed is an agency which has a central role in establishing and monitoring ethical standards and integrity within the WA Public Sector. For example, the Public Sector Commissioner’s functions include:

(i) prevention of, and education in respect of, misconduct: Corruption Crime and Misconduct Act 2003 (WA) (CCM Act), ss 7B(6) , 45A;

(ii) ensuring that allegations about minor misconduct are dealt with in an appropriate way within the public sector: CCM Act s 45B;

(iii) setting the minimum standards of conduct and integrity within the public sector and monitoring compliance with those standards: PSM Act s 21; and

(iv) issuing guidance regarding public sector supports available for staff affected by family and domestic violence: see Respondent’s Bundle of Documents.

67      The respondent argued the fact that public service officers can be disciplined or even dismissed for engaging in criminal conduct, with no direct connection to their employment, is indicative of the fact that such officers require a level of integrity and moral fibre, to uphold the values of the public service.

68      It was submitted that serious criminal wrongdoing, even where it may not be directly connected to an employee’s employment, can impact upon the officer’s continued suitability for employment in the public sector.

69      The respondent submitted that given the functions of the respondent, the respondent and her agency can reasonably be expected to lead by example and to set the standards for the whole of the public sector.

70      It was submitted that in this context, it is reasonable for the respondent, to expect even higher standards of integrity and moral fibre from her employees, than what other public sector agencies may require – including in respect of conduct engaged in outside of work.

71      It was further submitted that the nature of the appellant’s particular role within the PSC, was such that the respondent could reasonably expect, higher standards of integrity and moral fibre from the appellant than what might be expected of employees employed in a different agency and who are, not involved in, functions relating to ethics and integrity.

72      The respondent submitted that given the PSC’s functions, the appellant’s duties when he was employed and the sector leading role the PSC has in matters of integrity, including in respect of family and domestic violence and providing support to employees suffering from such violence, that it was obvious the continued engagement of the appellant following his conviction for such a serious offence could bring the PSC into disrepute and cause reputational damage.

73      The respondent submitted that in the context outlined and in light of the appellant’s very serious offending, it was reasonable for her to have formed the view, that disciplinary action by way of dismissal, was justified.

74      In reply to the appellant’s submission, that Picks provided support for the arguments against his dismissal, the respondent submitted the decision was distinguishable and confined to its own facts.

Consideration

75      In deciding whether to adjust a decision to take disciplinary action that results in a public sector employee’s dismissal, it is open to the Board to apply the well settled principles the Commission follows in unfair dismissal cases.

76      The test as to whether a dismissal is harsh, oppressive or unfair is a broad one of industrial fairness. To this end the Chief Commissioner in Scott v Consolidated Paper Industries (WA) Pty Ltd (1998) 78 WAIG 4940 at 4943 relevantly said the following:

The law in this jurisdiction is well settled in relation unfair dismissal. It must be demonstrated that there has been an abuse of the employer’s right to dismiss an employee, such that the dismissal is rendered harsh or oppressive: Miles v The Federated Miscellaneous Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1985) 65 WAIG 385. It is also established that it is not for the Commission to assume the role of the manager in considering whether the dismissal is or is not unfair. The test is an objective one in accordance with the Commission’s duty pursuant to s 26(1)(a) and (c) of the Act. Moreover, contemporary standards of industrial fairness require in my view, that before an employee is dismissed, the employee be given some fair warning that his or her employment is at risk if his or her performance or conduct does not improve as required by the employer. This requires more than a mere exhortation to improve and should place the employee in the position of being in no doubt that their employment may be terminated unless they take appropriate remedial steps: Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635. It should be emphasised that whether an employee is afforded procedural fairness is but one factor for the Commission to consider, however it may be a most important factor, depending upon the circumstances of the particular case: Shire of Esperance v Mouritz (1991) 71 WAIG 891. It follows however, that a dismissal will not necessarily be unfair in the event of procedural unfairness alone, as all the circumstances need to be considered.

Valid reason

77      In applying the test as to whether the exercise of the respondent’s right to dismiss the appellant, was unfair, it is relevant for the Board to first consider if there was a ‘valid reason’ for the appellant’s dismissal.

78      A valid reason for dismissal, regardless of whether it is in the context of private or public sector or employment, must be ‘sound, defensible or well founded’ and is not ‘capricious, fanciful, spiteful or prejudiced:’ Selvahandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvahandran) at (373).

79      In considering whether a reason is valid, it must be remembered that this requirement applies in the practical sphere of the relationship between an employer and an employee, where each has rights and privileges and duties and obligations, conferred, and imposed, on them: Selvahandran at (373).

80      For this reason, the assessment of whether a valid reason exists, must be applied in a practical and common-sense way, to ensure ‘the employer and employee are each treated fairly’: Selvahandran at (373).

81      It is trite that a conviction for a criminal offence (particularly those involving serious unethical actions or offences involving a significant breach of trust) may, following an examination of the circumstances in which the offence was committed, give rise to a valid reason for dismissal: Williams v Commissioner of Police, Western Australia [2018] WAIRC 00720 (Williams).

82      It is accepted that convictions for criminal offences that happen outside of work hours, can give rise to a valid reason for dismissal: Gaudet v Commissioner Ian Johnson Department of Corrective Services [2013] WAIRC 00032.

83      The approach that was taken by Ross VP in Rose v Telstra [1998] AIRC 1592 (Rose v Telstra), is relevant to deciding whether an employee’s involvement in criminal conduct that occurs outside of working hours, may give rise to a valid reason for dismissal. This involves a consideration of the following:

i. Whether the conduct has damaged or undermined the employer/employee relationship;

ii. The effect of the conduct on an employer’s interests and reputation; and

iii. Whether the conduct is incompatible with an employee’s duty as an employee.

84      In context of public sector employment, particularly having regard to the provisions of the PSM Act, this principle is even more clear: Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241.

85      That is because s 92 of the PSM Act expressly provides that an employing authority may take disciplinary action (including dismissal) where a public sector employee is convicted of a ‘serious offence.’

86      It is worth noting that s 92 of the PSM Act applies, regardless of whether a serious offence is committed at work or outside of working hours.

Serious criminal offence

87      There is little doubt the offence the appellant committed is a ‘serious offence’ within the meaning prescribed in s 80A of the PSM Act.

88      The definition of ‘serious offence’ that appears in s 80A includes an ‘offence or an offence of a class’ prescribed in s 108, which is the regulation making power under the PSM Act.

89      Regulation 15 of the Public Sector Management (General) Regulations 1994 (WA) includes in its description of ‘serious offences:’ offences which are punishable on conviction by imprisonment for two years or more.

90      The offence of ‘Aggravated common assault” under s 313(1)(a) of the Criminal Code for which the appellant was convicted, attracts a maximum penalty of 3 years’ imprisonment and a fine of $36,000.

91      The Board accepts that because the ‘offence’ reached the applicable penalty threshold, the respondent was following the appellant’s conviction, within her rights under s 92 of the PSM Act to commence disciplinary action against the appellant.

92      We do not regard the fact the appellant received a suspended sentence, in any way detracts from or diminishes, the seriousness of the offence for which he was convicted.

Effect of the conviction

93      Although the appellant says he did not commit the offence, there is no dispute the appellant was found guilty. As a result, and despite the appellant’s submissions about his innocence, the Board is not permitted to look behind the conviction: Williams [12]-[16].

94      This means the Board is required to respect the verdict the jury reached in the District Court and is bound by the findings Ritter J made, regarding the circumstances in which the offence was committed and its seriousness.

95      In other words, the Board must proceed on the basis the appellant committed the offence and the conviction stands.

Relevance to the appellant’s employment

96      The Board does not accept the appellant’s submission that he should not have been dismissed because the offence was not relevant to or unconnected to his employment.

97      On the contrary, we consider that although the offence happened outside of work, there was still a sound and defensible reason for the disciplinary action that followed.

98      We consider that our conclusion on this matter is supported by an analysis of the following:

i. the nature and functions of the appellant’s employing authority, the PSC; and

ii. what the appellant did for a job.

Nature and function of the PSC

99      Regarding its nature and function; the PSC website states:

The Public Sector Commission is a central agency responsible for setting ethical standards, promoting integrity and helping to prevent misconduct across the WA government sector.

We observe the highest standards of integrity at all times and expect those doing business with us do the same to help us deliver public value. 

100   In carrying out this function, the PSC is involved in the following:

i. prevention of, and education in respect of misconduct:

ii. ensuring that allegations about minor misconduct are dealt with in an appropriate way within the public sector:

iii. setting the minimum standards of conduct and integrity within the public sector and monitoring compliance with those standards: and

iv. issuing guidance regarding public sector supports available for staff affected by family and domestic violence.

101   The functions described, must be viewed alongside the provisions in the PSM Act, by which public service employees may be disciplined or dismissed for engaging in criminal behaviour, even where such conduct has no direct connection to their employment.

102   In our view, there is little scope to argue the PSC is anything other than an ‘integrity-based’ employing authority. It follows that we accept it is reasonable for the respondent to expect a higher standard of integrity and conduct from her employees, which extends to their conduct outside of work.

The appellant’s job

103   The Board has, following an analysis of the appellant’s job description that we earlier extracted at paragraph 32, reached the conclusion the appellant was employed in an ‘integrity-based role.’

104   Relevantly, the appellant’s stated responsibilities included the following:

• Assists key stakeholders to understand their responsibilities and obligations under various Acts including the Public Sector Management Act 1994, Public Interest Disclosure Act 2003, Corruption, Crime and Misconduct Act 2003, Commissioner's Instructions and other requirements and subsidiary legislation relevant to the scope of the Division.

…

• Provides advice to the Commission’s Executive, senior management and employees in relation to reviews, investigations and matters relating to performance and compliance and strategic streamlining opportunities.

…

• Demonstrates the highest standards of honesty and integrity, and operates within public sector values, code of ethics and conduct, organisational processes, and legislative and policy parameters.

105   In addition, we have also reviewed the description of the employment history that is contained in the appellant’s CV and considered the nature of the work that he said he was involved in at the PSC.

106   From our analysis of the appellant’s CV, it cannot be said he was involved in low level administrative or inconsequential work at the PSC, for which a higher standard of behaviour might not have been as crucial to determining whether the appellant’s offending conduct should give rise to a valid reason for his dismissal.  

107   Rather we consider the appellant was involved in work for which it was critical for him to have conducted himself with a high level of integrity.

108   Furthermore, the appellant, in his 1 September 2024 letter to Ritter J, acknowledged the seriousness of the offence and that because of his conviction, his employment was in jeopardy.

Integrity offence

109   In sentencing, Ritter J noted that an essential feature of the offence the appellant committed was that it involved a serious breach of trust.

110   In our view, this categorisation of the offence by Ritter J is significant. It means the respondent was entitled to consider the appellant’s conviction for a domestic violence offence in the same light as or equivalent to, other offences involving a serious breaches of trust. 

111   While convictions for integrity offences in the past may have been seen as only involving acts of fraud or dishonesty, due to the shift in judicial thought and community sentiment, (which Ritter J referred to in his sentencing remarks), it is reasonable for domestic violence offences to be viewed in a similar light.

112   Put simply, we accept that in context of an employee, who works for a public sector employer, in an integrity-based role, the appellant’s conviction for a serious offence that occurs outside of work, that involves domestic violence, could give rise to a valid reason for dismissal.

113   It is on this basis, the Board considers that it was not unreasonable for the respondent to have viewed the appellant’s conviction for the offence, as incompatible with the continuation of his employment.

Other grounds

114   In applying the test to determine if the appellant’s dismissal was unfair, the Board, notwithstanding its finding there was a valid reason for his termination, is required to consider if it was harsh or oppressive.

115   The matters to be considered include whether the penalty of dismissal was in all the circumstances overly harsh, whether the appellant was afforded procedural fairness and if there were alternative disciplinary outcomes that could have been imposed instead.

Procedural fairness

116   The Board does not accept the appellant’s submission that he was not given a fair opportunity to present his case before the decision was made to terminate his employment.

117   It is our view the appellant was given an opportunity, (as required by s 92(2) of the PSM Act) to respond to the show cause letter, which not only made clear the respondent was proposing to terminate his services, but the reason why.

118   It is our view the 14-day timeframe within which the appellant was expected to provide a response to the show clause letter, was in the circumstances of this matter, reasonable, particularly where the appellant was not at work and suspended on full pay: see appellant’s response at page 2.

119   The appellant’s response was not light on detail. He laid out the arguments as to why he believed the respondent should take a different view of his conduct and the disciplinary action that should follow.

120   The fact the appellant was able to provide a fulsome response to the show cause letter is suggestive of him being afforded a reasonable opportunity to be heard.

Relevant considerations

121   The Board does not accept the respondent failed to properly consider or have regard to, relevant mitigating factors.

122   We have noted the respondent in the dismissal letter indicated that she had carefully reviewed the appellant’s response, which included his reference to:

i.  his previous service within the public sector;

ii. the fact the offence occurred in a personal and domestic setting, which the appellant submitted was unrelated to his employment; and

iii. the character references from his friends and colleagues.

123   Ultimately, the respondent reached a different view about these matters. That she concluded the appellant’s dismissal was commensurate with the seriousness of the offence and it was the appropriate sanction, does not mean she did not consider the appellant’s arguments.

Board’s consideration of the appellant’s response and submissions

124   We have reviewed the same materials the respondent considered before making her decision to dismiss the appellant and which the appellant referred to in his submissions. On the material before us, we do not consider that the Board should deal with the matter any differently.

125   There is no doubt the appellant has a good employment record. That is to his credit and should help him secure future employment. It is however but one of the factors that need to be weighed against the seriousness of the conduct for which the appellant was dismissed.

126   As we have already explained in the preceding paragraphs [96]-[112] we consider there was a relevant connection between the offence and the appellant’s employment.

127   While we have reviewed the psychologist’s report and each of the appellant’s character references, we do note they were all prepared for a wholly different purpose, the appellant’s sentencing.

128   It is our view the psychologist’s report and the character references do not directly address the appellant’s suitability to continue in the role he was employed in at the PSC, prior to his dismissal. For this reason, there was a limit on the weight the respondent could attach to this material.

129    In addition, we consider that it was entirely reasonable for the respondent to conclude the seriousness of the offence, when weighed against the appellant’s work history, the contents of the psychologist’s report and the character references, justified her decision to dismiss the appellant.

Alternative sanctions

130   Noting the serious nature of the offence and the circumstances in which it was committed, the Board accepts that this is not a case in which the respondent ought to have implemented lesser disciplinary measures.

131   It is our view that in the context of his role as a Senior Consultant, the imposition of penalties such as demotion, suspension without pay, training, counselling or a formal warning, while available, would have sent the wrong message to the appellant and other PSC employees, regarding its attitude towards the perpetrators of domestic violence, who are employed in integrity-based roles. 

132   There are two reasons for this, both of which are closely related. Firstly, there is little point in imposing lesser disciplinary outcomes that may be ‘rehabilitative in nature,’ if the employee who committed the offence, is not remorseful for his conduct.

133   During sentencing, Ritter J noted the appellant had not demonstrated remorse: (sentencing transcript p 26). In our view, this is problematic for the respondent because it suggests the appellant has not gained an insight into his offending conduct, in respect of which he is required to lead by example.

134   Second, the continuation of the appellant’s employment presents an obvious reputational risk for the PSC, which we accept has the potential to bring the agency’s reputation into disrepute.

135   The optics of retaining a senior employee who has been convicted of a serious offence involving domestic violence, for which he is not remorseful, who works at an integrity-based agency, in an integrity-based role, where the PSC is also involved in the development of public sector policy to provide support to employees who are the victims of domestic violence, would be poor.

136   We therefore do not accept the respondent acted harshly or oppressively, by refusing to impose a lesser penalty.

Picks decision

137   The Board has reviewed and considered the Picks decision, alongside the circumstances at issue in this appeal.

138   It is our view the appellant’s situation is not comparable with the decision in Picks. Rather, Picks was decided on its own facts and in very different circumstances.

139   The case in Picks centred on a security officer who worked for a health service provider. Mr Picks was convicted of an ‘assault occasioning bodily harm’ following an incident involving a male member of his extended family and in the context of complex cultural tensions.

140   The assault in Picks occurred in a bar (a public place) where the first punch was thrown by the complainant. Mr Picks retaliated by punching the complainant. While provocation may well have loomed large as a defence, Mr Pick’s pleaded guilty to the assault. He also expressed remorse for his actions.

141   Following his conviction, Mr Pick’s was dismissed from his employment. The employing authority’s rationale for his dismissal was based upon a concern that Mr Picks’ offending behaviour, posed a potential risk to patients, staff or the public. The employing authority was concerned he might react in a similar way to an aggressive situation in the hospital where he worked.

142   At [74] of its decision, the Board in Picks, following the principles in Rose v Telstra, rejected submissions from the employing authority that Mr Picks’ conduct was likely to cause serious damage to the employment relationship, damage the employer’s interests or was incompatible with Mr Pick’s duty as an employee.

143   After considering the circumstances of his offending, the Board at [75]-[76] also determined there was no reasonable basis to conclude that Mr Picks presented as a risk in the workplace.

144   As indicated, the facts and circumstances in both matters are very different:

i.  the case in Picks did not involve an incident of domestic violence or a breach of trust;

ii.  the circumstances of the offending in the present case, when compared with Picks are objectively, far more serious;

iii.  the respondent in the present case is not relying upon the risk of a recurrence of similar offending behaviour in the workplace as the reason for the appellant’s dismissal;

iv.  the appellant in the present case has not expressed remorse for his offending conduct;

v.  the nature of the employing authority’s functions and the employee’s role in Picks was such that there was no risk of damage to the employer’s interests or its reputation because of Mr Pick’s conduct.

145   The Board therefore does not accept the appellant’s argument that the decision in Picks provides a basis to adjust the respondent’s decision.

Other matters

146   It is worth highlighting the other measures that were adopted by the respondent in dealing with this matter, which have allowed us to conclude the appellant’s dismissal was handled fairly.

147   In this regard, we have noted the following:

i.  After the appellant was charged with the offence, he was suspended on full pay and was not required to attend for work until the matter was determined in the District Court: (Transcript page 3);

ii. Despite his misconduct, the appellant was paid in lieu of notice, along with any accumulated annual and long service leave entitlements; and

iii. The respondent offered to fund six sessions with counselling services to assist the appellant with his ‘continuing rehabilitation and personal development:’ (for ii and iii, see the dismissal letter).

148   By providing these benefits to the appellant, it can hardly be said the respondent has, either in the lead up to or following his dismissal, disregarded his needs or personal circumstances.

Conclusion

149   For all the reasons set out in the preceding paragraphs, we have decided to dismiss the appeal.

150   An order giving effect to this decision will now issue.