100316679

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES GEOFFREY JOHNSTON

APPLICANT

 -v-

 MR RON MANCE, ACTING DIRECTOR GENERAL DEPARTMENT OF EDUCATION

RESPONDENT

CORAM COMMISSIONER S J KENNER

DATE WEDNESDAY, 14 MAY 2003

FILE NO/S APPLICATION 2302 OF 2001

CITATION NO. 2003 WAIRC 08318

_______________________________________________________________________________

Catchwords         Unfair and unlawful transfer – Penalty imposed on teacher – Allegations of                  conduct in breach of statutory obligations – Statutory scheme in relation to discipline for teachers in government schools – Principles of natural justice and procedural fairness – Whether denied and whether statutory scheme complied with 

Result Application upheld.  Order issued

Representation

Applicant Mr M Cox of counsel 

Respondent Mr D Newman

_______________________________________________________________________________

Reasons for Decision

1          In reasons for decision dated 6 August 2002, the Commission dealt with a number of preliminary issues in relation to the Commission's jurisdiction to entertain the present claim.  In those reasons for decision, the Commission concluded that the present proceedings were validly brought and the Commission can enquire into and deal with the subject matter of the applicant's claim under the terms of the Industrial Relations Act 1979 (“the Act”).

2          The background to the present claim, was set out in the Commission's earlier reasons for decision at para 3 as follows:

“The applicant is a school teacher and by letter dated 7 December 2001, he was found guilty of a serious breach of discipline.  As a consequence of this, the applicant was reprimanded and transferred from the school where he was a teacher, Cowaramup Primary School.  The applicant, represented by the State School Teaches Union of WA (“the Union”), challenges that decision and maintains that throughout the process, the applicant was denied natural justice.  Furthermore, it is alleged that “charges” against the applicant were invalid and the respondent's decision to impose the penalty it did was wrong.”

3          The applicant, represented by Mr Cox of counsel, attacked the respondent's decision- making essentially on the basis that it had not complied with the relevant provisions of the Public Sector Management Act 1994 (“the PSM Act”), they being in particular ss 81, 83 and 86 dealing with discipline for public sector employees.  It was also submitted that the respondent denied the applicant natural justice for a number of reasons, dealt with below.  The respondent, represented by its industrial officer Mr Newman, denied that the applicant had been treated unfairly or inappropriately under the PSM Act. 

4          The present proceedings are brought pursuant to s 78(2) of the PSM Act, following the decision of the respondent to impose penalties on the applicant flowing from the terms of s 239 of the School Education Act 1999 (“the SE Act”), which incorporate the relevant provisions of Part 5 of the PSM Act in relation to discipline for government officers.

The Evidence

5          Mr Johnston is a teacher employed by the Department of Education and has been a teacher for about 24 years.  At the material times he was appointed to the Cowaramup Primary School (“the School”).  He is classified as a senior teacher and holds a Bachelor of Education degree and a Teachers Certificate.  The relevant history of this matter commenced when the applicant received a letter from the respondent dated 12 March 2001 in relation to alleged breaches of discipline committed by the applicant in October 2000.  Given the importance of the particular matters raised, and subsequent events, formal parts omitted, and omitting the full names of those involved, I set out the terms of this letter in full as follows:

“From information that has been brought to my attention, I suspect that you may have acted in a manner which could constitute a breach of discipline pursuant to the Public Sector Management Act 1994 (“the Act”).

Specifically it is suspected that:

• On 25 October 2000, being a school day, you did hit without just or reasonable cause, during school hours and in your classroom at the Cowaramup Primary School, a student of that school, J L, in the back with heavy force;
• On 26 October 2000, at Cowaramup Primary School and during a discussion held after school hours with Mrs J L, mother of J, you admitted that you had hit the child;
• On 26 October 2000, at Cowaramup Primary School and during a discussion held after school hours with Mrs J L, you also admitted that you had previously hit students;
• In the latter half of the 2000 school year at the Cowaramup Primary School following a lunch break at which you were on yard duty and in the vicinity of the school oval, you did forcibly push C K a student at the school in the back without just or reasonable cause in order to make him move quicker while he had an injured foot;
• In the latter half of the 2000 school year at Cowaramup Primary School following a lunch break at which you were on yard duty and in the vicinity of the school oval, you did threaten and intimidate C K by stating to him “if you don’t move along I will give you the biggest kick forward of your life” at the same time or shortly after you had pushed him.

Should these allegations be found to be true, they may constitute a breach in discipline in your employment as a teacher as per section 80(b)(i), and section 80(c) or section 80(d) of the Act.

In accordance with section 81(1) of the Act, I am providing you with an opportunity of furnishing a written explanation in relation to the above matters.  Please ensure your submission is received by close of business Friday 23 March 2001.  You are to address your submission, marked “Private and Confidential” to Mr John Ryan, A/Director, Workplace Relations, 151 Royal Street, East Perth, WA, 6004.  In the event that no submission is received by this date, I may decide to take further action in the absence of that explanation.

It is noted that you have already responded to similar allegations made through an informal inquiry in accordance with section 7C(4) of the now repealed Education Act 1928. As an inquirer had not been appointed in writing by the commencement of the new Schools Education Act 1999, that process has now been stopped.  You may wish to affirm, amend, or adjust your earlier response.  You may also decide to submit a fresh response to the allegations.  However you choose to respond to these matters, that advice must be received by the above date.

Should it be deemed necessary, following your explanation or otherwise, and pursuant to section 81(2) of the Act, I may request and authorise an investigation into the allegations.  I would further advise that, and should it be required, if by the conclusion of the disciplinary process prescribed by the Act the allegations are substantiated, one or more of the penalties outlined in section 83(1), or following a formal charge of serious misconduct as per section 86(3) of the Act, may be imposed. Please find enclosed a copy of the relevant sections of the Act and a copy of the Department’s Discipline Policy, Procedure and Guidelines for your information.”

6          The applicant responded to these allegations by letter dated 26 March 2001 and denied them.

7          Subsequently, by letter dated 3 April 2001, the respondent wrote to the applicant advising that it had taken note of the applicant's explanation to the matters raised in the respondent's letter of 12 March 2001 and notified the applicant that pursuant to s 81(2) of the PSM Act, an independent inquiry would be undertaken in relation to the alleged breaches of discipline.  Again, formal parts omitted, this letter is reproduced as follows:

“Thankyou for your letter dated 26 March 2001 responding to allegations of a suspected breach of discipline raised against you.

I note your explanation in these matters.

In accordance with section 81(2) of the Public Sector Management Act (“the Act”), I shall be authorizing an independent inquirer to undertake an investigation into the alleged breaches of discipline.  Specifically it is alleged that;

• On 25 October 2000, being a school day, you did hit without just or reasonable cause, during school hours and in your classroom at the Cowaramup Primary School, a student of that school, J L, in the back with heavy force;
• On 26 October 2000, at Cowaramup Primary School and during a discussion held after school hours with Mrs J L, mother of J, you admitted that you had hit the child;
• On 26 October 2000, at Cowaramup Primary School and during a discussion held after school hours with Mrs J L, you also admitted that you had previously hit students;
• In the latter half of the 2000 school year at the Cowaramup Primary School following a lunch break at which you were on yard duty and in the vicinity of the school oval, you did forcibly push C K a student at the school in the back without just or reasonable cause in order to make him move quicker while he had an injured foot;
• In the latter half of the 2000 school year at Cowaramup Primary School following a lunch break at which you were on yard duty and in the vicinity of the school oval, you did threaten and intimidate C K by stating to him “if you don’t move along I will give you the biggest kick forward of your life” at the same time or shortly after you had pushed him.

You will be provided an opportunity to furnish an explanation in relation to these matters in the course of the investigation.

Should the above allegations be found, on the balance of probability to be true, you may be charged with a breach of discipline pursuant to section 80(b)(i) arising from section 9(b) and section 80(c) of the Act.  I would further advise, and should it be required, by the conclusion of the disciplinary process prescribed by the Act, if the allegations are substantiated one or more of the penalties outlined in section 83(1) or following a formal charge of serious misconduct, as per section 86(3) of the Act may be imposed.  Enclosed, please find a copy of the relevant sections of the Act and a copy of the Department’s Discipline Policy, Procedures and Guidelines for your information.”

8          The appointed inquirer, Mr Dodd, notified the applicant by letter dated 2 May 2001, that he had been appointed by the respondent to conduct the investigation.  In that letter, Mr Dodd particularised the possible breaches of discipline that he was to investigate as follows:

1. On 25 October 2000 you hit J L, a student at Cowaramup Primary School, in the back.

2. On 26 October 2000 you admitted to Mrs L that you had previously hit a student; and

3. During the 2000 school year, you forcibly pushed C K, a student at Cowaramup Primary School, in the back in order to make him move quicker while he had an injured foot, and stated “if you do not move along I will give you the biggest kick forward of your life”.

9          The applicant testified that on or about 5 May 2001, he was telephoned by Mr Dodd to arrange an appointment to interview him in relation to the investigation.  Mr Dodd informed the applicant that he was instructed by the respondent to also investigate parent concerns from parents Ws, W, Rs and Wy.  The applicant advised Mr Dodd that he had no knowledge of these matters and he only wished to discuss the subject matter of the investigation.  The applicant was concerned that he had no inkling of these parental concerns, nor any opportunity to respond to them, at the time they were raised with Mr Dodd by the respondent.  Mr Dodd, in his evidence, also referred to these matters and that the applicant declined to comment upon them.

10       On 14 May 2001, the applicant was interviewed by Mr Dodd.  Mr Dodd informed the applicant that the only issues to be explored were those relevant to JL, as the parent of the other child the subject of the complaint, Mrs K, had withdrawn her complaint.

11       On this same day, Mr Dodd testified that he also interviewed several other teachers in connection with his investigation.  Furthermore, previously, on 7 May, Mr Dodd had visited the School and interviewed other teachers, students and parents, in connection with his investigation. On 30 May 2002, Mr Dodd presented his report to the respondent.  A copy of Mr Dodd’s report was annexed to his witness statement, which was tendered as exhibit R1.

12       The content of the report prepared by Mr Dodd (“the Dodd Report”) is important.  In it, he sets out the allegations and complaints, the conduct of the inquiry; “evidence” before the investigation; witness credibility; general comment and his conclusions and findings.

13       In the “allegations and complaints” section of the Dodd Report, the three broad allegations, set out in Mr Dodd’s letter of 2 May 2001 are set out.  Mr Dodd goes on to refer to the withdrawal of the complaint by Mrs K.  Mr Dodd refers to this and his advice to an officer of the respondent that he would not be pursuing this matter.  Furthermore, Mr Dodd refers two copies of various file notes prepared by the principal of the School and several letters from “other concerned parents” relating to the applicant.  Mr Dodd refers to these parents as having been interviewed during the course of his investigation and that “the information gathered was useful in gaining some understanding of broader concerns in respect of Mr Johnston’s teaching practices.”  Mr Dodd stated that in respect of these matters, they could not be formally included in the terms of his investigation, as they had not been put to the applicant and the respondent should pursue these matters by way of a separate investigation, if it wished to.

14       Reference is also made to documents comprising file notes and letters from parents, provided to Mr Dodd by the School principal.  A copy of this file was attached and marked appendix B to the Dodd Report.  It was noted by Mr Dodd, that few if any of the allegations contained in appendix B, had been put to the applicant.

15       The next section of the Dodd Report then goes on to refer to “evidence”.  Despite noting in the previous section of the report that materials provided by the respondent and Mr Fahey, the principal, were outside the terms of the investigation, Mr Dodd then proceeded to set out in some detail, observations by persons he interviewed, that clearly did not directly relate to the allegations concerning JL and Mrs L, referred to as the “basis of his investigation” at the outset of the Dodd Report.  This material, includes references made by Mr Fahey, as to “a history of complaints or expressions of concern by parents in respect to Mr Johnston and his teaching practices” (p 4 Dodd Report).  Reference is made to an interview with Ms Dente a teacher at the school (pp 7 - 8 Dodd Report).  Reference is made to comments by Ms Dente about her opinion of the applicant unrelated to the L incident.  Reference was also made to an interview with Mr Morris and “other witnesses” (pp 11 - 12 Dodd Report) that were generally quite critical of the applicant.

16       In the section headed “General Comment” (pp 13 - 14 Dodd Report) it is relevantly observed as follows:

“There appears from the information gathered to date, to be a broad level of concern amongst parents in respect to Mr Johnston’s behaviour in the classroom.  This is supported by the comments made by various witnesses to the effect Mr Johnston treat children unfairly, intimidates and humiliates some and favours better students.  There are allegations that he has bullied children.

Other allegations have been made against him to the effect (sic) that there has been inappropriate physical contact between Mr Johnston and students.  Mrs L mentioned she had heard that B K and C K (no relation) had both been hit.  J L states he had seen another child struck my Mr Johnston.  Mr Morris makes mention of a possible incident involving S A.

Many of the letters forwarded to the school or District Office and contained in Appendix C, provide numerous allegations of improper conduct.  Mrs C’s letter dated December 12, 2000 (folios 4-5 Appendix C) describe an incident in 1996 where Mr Johnston allegedly manhandled her son.

These matters all fall outside the terms of reference of this investigation.

It is unclear what action if any has been taken to date in relation to these matters.  I understand Mr Johnston has not been confronted with these allegations.  This may be due in part to the practice adopted by Principal in directing parents to discuss their concerns with the teacher in the first instance.  It is highly likely, based on the first hand accounts provided to this investigation, many parents chose not to adopt this course of action due to a fear (real or otherwise) that their children might be the subject of further harassment or intimidation.”

17       In the “Conclusions and Findings” (pp 14 - 17 Dodd Report) it is stated as follows:

“The information provided by the various witnesses together with that contained in the letters of complaint from other parents (see Appendix C) leads to a conclusion, based on the balance of probabilities, that Mr Johnston did hit J L on the back on the material date.

I also accept Mrs L’s recollection that Mr Johnston apologised to her for his actions.

His act is a serious contravention of departmental policy relating to physical contact with students.  It also breaches the duty of care imposed upon him as a teacher in respect to students under his supervision and control.”   (My emphasis)

18       In cross-examination, Mr Dodd conceded that none of the materials referring to “non-L incidents”, referred to in the Dodd Report, were ever put to the applicant.  He also accepted that it would have been a reasonable assumption for the applicant to have, that he did not need to respond or deal with these other matters as they would not be relied on by the respondent, which assumption was proved not to be correct.

19       Following the Dodd Report, on or about 5 July 2001 the applicant received a letter dated 4 July 2001 from the respondent, setting out various charges of breach of discipline under it seems, both the SE Act and the PSM Act.  Those charges, as contained in the respondent's letter of 4 July 2001, were set out in the letter as follows:

“Further to the letter dated 3 April 2001, in which you were advised that an inquiry into a number of alleged issues of misconduct had been authorized.  I have now received and considered the report following the investigation.

Arising from the findings of the investigation and in accordance with section 83(1)(b) of the Public Sector Management Act 1994 (“the Act”), I find that you have committed a serious act of misconduct.  Specifically you are charged with a serious breach of discipline in that:

1. By your actions on the 25 October 2000, in attempting to cause J L to focus on his work and placing your hand in his back and moving him forward, you failed to foster and facilitate learning as required by section 64(1)(a) of the School Education Act 1999.  This being contrary to section 80(b)(i) of the Act.

2. By your actions on the 25 October 2000, in attempting to cause J L to focus on his work and placing your hand in his back and moving him forward, you failed to demonstrate ethical values and behaviours associated with lawful obedience, respect of persons, integrity and leadership.  This being contrary to section 80(b)(i) of the Act.

3. By your actions on the 25 October 2000, in attempting to cause J L to focus on his work and placing your hand in his back and moving him forward, you failed to obey a lawful directive relating to the discipline or restraint of a student.  This being contrary to section 80(b)(i) of the Act.

With regard to the matters associated with C K, I am aware that Mrs K wished these matters to be withdrawn.  I also note that the investigator did not pursue these matters with you.  However, I am of the view that the information presented in your original response to all the allegations, provides sufficient evidence that would allow me to form a view on these events.

As a consequence on the matters put to regarding C K, I also find you have committed a serious act of misconduct.  Specifically you are charged with a serious breach of discipline in that:

4. By your actions in the latter half of the 2000 school year, in attempting to cause C K to move more quickly back to class following a lunch break, by placing your hand in his back and moving him forward and by the uttering of an inappropriate statement, you failed to foster and facilitate learning as required by section 64(1)(a) of the School Education Act 1999.  This being contrary to section 80(b)(i) of the Act.

5. By your actions in the latter half of the 2000 school year, in attempting to cause C K and others, to move more quickly back to class following a lunch break, in stating “if you don’t move along I will give you the biggest kick forward of your life”, you failed to demonstrate ethical behaviours associated with respect of persons, integrity and leadership.  This being contrary to section 80(b)(i) of the Act.

Pursuant to section 86(1)(c) of the Act you are only required to admit or deny the charge(s) within 10 working days from the receipt of this letter.

Following your formal admission or denial of the charge, I shall consider all relevant information and the necessary action required of this process by section 86 of the Act.  I would advise that should you admit the charge, I am obliged to consider an appropriate penalty to be applied against you and inform you of that penalty.  However, should you deny the charge, I may direct in accordance with section 86(4) of the Act that a disciplinary inquiry be held into these matters.”   (My emphasis.)

20       It is to be noted, that the charges contained in this letter, restored the allegations in relation to JK, into which there had not been an investigation, for reasons set out above.

21       There followed correspondence between the State School Teachers Union (“the union”) and the respondent, raising concerns by the union as to the particularisation of the charges and requests for documents.

22       By letter dated 31 July 2001 from the respondent to the applicant, the applicant was notified that pursuant to s 86(4) of the PSM Act, an independent inquirer was to be appointed to undertake a disciplinary inquiry into the charges against the applicant, which charges had been denied by the applicant.

23       Subsequently, by letter dated 25 September 2001, the inquirer, Ms Archibald, wrote to the applicant, confirming an earlier telephone conversation that she wished to interview him in relation to the charges against him.  In this letter, Ms Archibald refers to being informed that the union was seeking information on behalf of the applicant but advised that it was her intention to complete her report to the respondent, without delay, whether or not she had been able to interview the applicant.  The applicant responded by letter dated 28 September, and informed Ms Archibald, that he was willing to meet with her but because of other personal commitments advised he would be unavailable for an interview over the two week school holiday break.  He also requested that Ms Archibald contact Mr Farrell at the union, who was acting on his behalf, for any further inquiries. 

24       Ms Archibald responded by letter of 5 October 2001 to the applicant, advising that she was available on either 17 or 18 October 2001 to interview the applicant.  She further advised that if she was unable to interview the applicant on either of these days, she would not be able to incorporate any of the applicant's comments into her report to the respondent.  Next it seems, on 12 October 2001, the union wrote to the manager industrial relations of the respondent, referring to its earlier letter of 25 September 2001, questioning the validity of the charges against the applicant, and stating that the union did not consider it appropriate for any interview to proceed until those matters had been resolved.  Furthermore, reference was made by the union in that letter of 12 October 2001, to a request for documents under the Freedom of Information Act 1992.

25       I pause to note that there was a point of contention as to whether the respondent's reply to the union's letter of 25 September 2001, dated 27 September 2001, was received by the union.  Evidence was called from Mr Lampard, the document management / system support officer of the union.  He testified that he oversees the management of all correspondence received by the union, reference to which is recorded in a database.  He said that he checked all the document records and the respondent's letter of 27 September 2001 had not been received by the union and recorded.  Mr Farrell also gave evidence.  He testified that the first occasion when he saw the respondent's letter of 27 September 2001, advising that the inquiry would proceed with or without the applicant's input, was on or about 3 September 2002.  He further testified that he had a telephone discussion with Ms Archibald in October 2001 and he informed her that the union was awaiting a response to a request for production of documents from the respondent and further clarification of some issues.  Mr Farrell said he informed Ms Archibald that it would be a denial of natural justice if the inquiry proceeded whilst these matters remained outstanding.  Mr Farrell also testified that on or about 31 October 2001 he spoke with Mr Newman of the respondent about a response to the union letter dated 25 September 2001 and was informed that a draft had been prepared but not yet signed and he would have his manager sign it.

26       The applicant testified that the next he heard of this matter, was receipt of a letter dated 7 December 2001 from the respondent to himself, advising that the inquiry into the charges had concluded and the inquirer had found the charges proven.  A penalty of a reprimand and transfer was imposed.  Formal parts omitted, this letter provides as follows:

“In my letter to you dated 31 July 2001, you were advised that a disciplinary inquiry into a charge of serious misconduct had been authorized.  I have now received and considered the report following the inquiry.

The findings and recommendations of the inquirer are that the misconduct has been proven and, that you be reprimanded and transferred as a consequence.  The inquirer has also recommended that at the new school you shall be closely supervised and provided counselling to assist you resolve your apparent behavioural issues.  Specifically you were charged with a serious breach of discipline in that:

1. By your actions on the 25 October 2000, in attempting to cause J L to focus on his work and placing your hand in his back and moving him forward, you failed to foster and facilitate learning as required by section 64(1)(a) of the School Education Act 1999.  This being contrary to section 80(b)(i) of the Act.

2. By your actions on the 25 October 2000, in attempting to cause J L to focus on his work and placing your hand in his back and moving him forward, you failed to demonstrate ethical values and behaviours associated with lawful obedience, respect of persons, integrity and leadership.  This being contrary to section 80(b)(i) of the Act.

3. By your actions on the 25 October 2000, in attempting to cause J L to focus on his work and placing your hand in his back and moving him forward, you failed to obey a lawful directive relating to the discipline or restraint of a student.  This being contrary to section 80(b)(i) of the Act.

4. By your actions in the latter half of the 2000 school year, in attempting to cause C K to move more quickly back to class following a lunch break, by placing your hand in his back and moving him forward and by uttering an inappropriate statement, you failed to foster and facilitate learning as required by section 64(1)(a) of the School Education Act 1999.  This being contrary to section 80(b)(i) of the Act.

5. By your actions in the latter half of the 2000 school year, in attempting to cause C K and others, to move more quickly back to class following a lunch break, in stating “if you don’t move along I will give you the biggest kick forward of your life”, you failed to demonstrate ethical behaviours associated with respect of persons, integrity and leadership.  This being contrary to section 80(b)(i) of the Act.

 In determining the appropriateness of those recommendations, I have considered your good and loyal employment record and as raised by you, the issue of health.

 I have also given consideration to the characteristics and nature of the position held by you, together with your knowledge and experience as a senior teacher.  I believe that the trust, integrity and demonstration of respect for others, incumbent in your role must be seen by all as a fundamental and essential requirement when dealing with young impressionable children.

 Therefore, in relation to the above issues and in accordance with section 86(3)(b) of the Act, I accept the recommendations of the inquirer and impose the following penalties:

  You are reprimanded.

  That you be transferred from Cowaramup Primary School.

 You should understand there are positions in the community for which a higher than normal standard of personal conduct is required.  The office of teacher is such a position.  The position requires that a person must be of good character and display honesty and integrity at all times.  Children need someone who can act as a role model and not merely someone to teach them reading, writing and arithmetic.

 I cannot impress upon you strongly enough the significance of these charges.  However, I trust and expect that you will learn from this regrettable episode, and continue your career with the Department with a greater understanding and diligence. 

 This letter shall be maintained on file.  Should there be any future issues of misconduct this information will be considered for the purposes of any appropriate penalty to be issued against that issue.  In the meantime I consider these matters closed.”

Archibald Inquiry

27       As noted, the respondent appointed Ms Archibald to undertake the inquiry following on from The Dodd Report.  This inquiry was conducted pursuant to s 86(4) of the PSM Act.

28       Ms Archibald testified that for the purposes of her inquiry, she was provided a number of documents by the respondent, including the Dodd Report.  Ms Archibald testified that on or about 13 August 2001 she contacted the applicant and advised him of her appointment as an inquirer, and asked about his availability for an interview.  At this point, the applicant told Ms Archibald that the union was acting on his behalf and it would contact her.  Later that day it seems, Mr Farrell from the union telephoned Ms Archibald to advise that the applicant did not wish to be interviewed by her until the union had received additional information from the respondent.  That same day, Ms Archibald interviewed Mrs K, in relation to the complaint concerning C.  Over the ensuing days, Ms Archibald had further telephone discussions with Mr Farrell of the union, and made arrangements to meet with and did meet with and interview various staff and parents of children at the School.  The details of these interviews and other documents relied upon by Ms Archibald, were set out in full in her report to the respondent, annexed to her witness statement tendered as exhibit R2.

29       Ms Archibald referred to correspondence between her and the applicant, referred to by the applicant in his evidence.  Importantly, on 11 and 12 October, Ms Archibald had telephone contact with Mr Farrell, and a letter from Mr Farrell, advising that the applicant should not be interviewed until the union received the information it was seeking.  Subsequently, on 29 October 2001, Ms Archibald submitted her report to the respondent.

30       In evidence, Ms Archibald said that although she did not interview the applicant, her findings were based upon information from parents and staff interviews, a review of the applicant's personnel and investigation files held by the respondent, and documents from the Dodd Report.  She testified that her recommendations in her report were founded upon the interviews with parents and staff from the School.  It was her evidence that her view from this process was that the school community in the majority, was clearly against the applicant.  Furthermore, Ms Archibald testified that whilst the applicant's actions may have been said to not be that far from the ordinary, in the circumstances his conduct caused the children distress and was inappropriate.  Furthermore, Ms Archibald said that of greater relevancy to her, were statements by various persons that the applicant would create fear in that he would admonish and intimidate both children and adults by invading their “personal space.”

31       In cross-examination, Ms Archibald conceded that she was aware the union was acting on behalf of the applicant and that the union had requested that the interview with the applicant not proceed until issues raised by it with the respondent had been resolved.  Furthermore, Ms Archibald conceded that other materials provided by the respondent for the purposes of her inquiry, were never put to the applicant and additionally, she was aware that the content of the Dodd Report was also never put to the applicant and that she had read these materials and taken them into account.  Ms Archibald also conceded that various observations made in her report, as to broader community concerns and the general climate at the School, had not been put to the applicant and he had no opportunity to respond to such matters.

32       In terms of Ms Archibald's conclusions at pp 18 to 19 of her report, she accepted that her broad conclusion as to the climate of fear etc. created by the applicant, referred to at the top of p 19, was her finding and conclusion in relation to all of the five charges against the applicant.

33       Mr Ayling, the respondent's manager of industrial relations, also gave evidence.  His witness statement was tendered as exhibit R3. Mr Ayling testified that on reviewing the Dodd Report, he formed the view that issues raised in relation to C K were capable on the evidence of being dealt with further despite Mrs K's request that they not be.  It was Mr Ayling's evidence also, that neither the matters raised in the bundle of documents or further issues raised by Mr Dodd, formed any part of the decision making process about the applicant.  Mr Ayling subsequently received the Archibald Report, and based upon the findings and recommendations, endorsed those findings and recommendations to the Director General of the respondent.  It was also Mr Ayling's evidence in cross-examination, that once having received the Archibald Report, he did not seek a response from the applicant on the penalty to be imposed.  Mr Ayling also said that he read the Dodd Report and the Archibald Report and saw the materials that were not put to the applicant.  He further testified that materials in the Dodd Report, dated as far back as 1996, and matters referred to at p 14 of the Dodd Report, were relied upon by the respondent to determine the next stage of the inquiry process.

Consideration

34       As the Commission noted at the outset of these reasons, the primary attack of the applicant on the decision of the respondent, arising from both the Dodd Report and the Archibald Report, was that the applicant was fundamentally denied natural justice and moreover, the respondent failed to substantively comply with the statutory scheme under the PSM Act, in relation to disciplinary matters, during the course of the process involving the applicant.  It was also submitted by counsel for the applicant that the principle of double jeopardy, as applying to the crown in criminal proceedings, also applied to disciplinary proceedings taken by the crown against its employees.  In this connection, it was also submitted that the respondent laid three charges in relation to the one JL incident and therefore those charges were bad for duplicity.  Furthermore, Ms Archibald's conclusions were invalid in that she only made one finding in relation to charges 1, 2 and 3 and one finding in relation to charges 4 and 5.  For all of these reasons, counsel for the applicant submitted that the respondent's decision should be quashed.

35       Those parts of the PSM Act relevant for the purposes of these proceedings are ss 80, 81, 83 and 86 as contained in Division 3 of Part 5 of the PSM Act.  For convenience, I set these provisions out as follows:

 “80. Breaches of discipline

  An employee who — 

 (a) disobeys or disregards a lawful order;

 (b) contravenes — 

 (i) any provision of this Act applicable to that employee; or

 (ii) any public sector standard or code of ethics;

 (c) commits an act of misconduct; or

 (d) is negligent or careless in the performance of his or her functions,

  commits a breach of discipline.

 81. Procedure when breach of discipline suspected

  (1) An employing authority may, when it suspects that a person has committed a breach of discipline whilst serving as an employee in its public sector body and has given the person such notice in writing of the nature of the suspected breach of discipline as is prescribed, give the person a reasonable opportunity to submit an explanation to the employing authority.

  (2) After having given the respondent the reasonable opportunity referred to in subsection (1), the employing authority may — 

  (a) if it is not the Minister, investigate or direct another person to investigate; or

  (b) if it is the Minister, direct another person to investigate,

   the suspected breach of discipline in accordance with prescribed procedures.

  (3) A person to whom a direction is given under subsection (2) shall comply with that direction.

  (4) A direction shall not be given under subsection (2) to the Commissioner…

 83. Powers of employing authority other than Minister after investigation of alleged breach of discipline

  (1) If, following the investigation of an alleged breach of discipline under section 81, an employing authority which is not the Minister finds, whether as a result of its own investigation or that of a person directed under section 81(2)(a), that — 

  (a) a minor breach of discipline was committed by the respondent, that employing authority may in accordance with prescribed procedures — 

  (i) reprimand the respondent;

  (ii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the last day during which he or she was at work as an employee before the day on which that finding was made; or

  (iii) both reprimand, and impose the fine referred to in subparagraph (ii) on, the respondent;

  (b) a serious breach of discipline appears to have been committed by the respondent, that employing authority shall cause the respondent to be charged in accordance with prescribed procedures with having committed that alleged breach of discipline; or

  (c) no breach of discipline was committed by the respondent, notify the respondent of that finding and that no further action will be taken in the matter.

  (2) For the purposes of this section, a breach of discipline committed as a result of disobedience to, or disregard of, a lawful order referred to in section 94(4) is a serious breach of discipline…

86. Procedure when charge of breach of discipline brought

  (1) A charge under section 83(1)(b), 84(2)(b)(ii) or 85 shall — 

  (a) be in writing;

  (b) contain the prescribed details of the alleged breach of discipline; and

  (c) require the respondent to indicate within such period of not less than 7 days as is specified in the charge whether or not he or she admits or denies the charge.

  (2) A respondent charged under section 83(1)(b), 84(2)(b)(ii) or 85 shall admit or deny the charge within the relevant period referred to in subsection (1)(c).

  (3) Subject to section 89, if a respondent admits a charge under subsection (2) and the employing authority finds the charge to be proved, the employing authority — 

  (a) shall, if the charge is a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent; or

  (b) may — 

  (i) reprimand the respondent;

  (ii) transfer the respondent to another public sector body with the consent of the employing authority of that public sector body or, if the respondent is an employee other than a chief executive officer or chief employee, transfer him or her to another office, post or position in the public sector body in which he or she is currently employed;

  (iii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the period of 5 days during which he or she was at work as an employee immediately before the day on which the finding of a breach of discipline was made;

  (iv) reduce the monetary remuneration of the respondent;

  (v) reduce the level of classification of the respondent; or

  (vi) dismiss the respondent,

   or, except when the respondent is dismissed under subparagraph (vi), take action under any 2 or more of the subparagraphs of this paragraph.

  (4) If a respondent denies a charge under subsection (2) and the employing authority is not the Minister, the employing authority may — 

  (a) hold, or direct a person to hold, a disciplinary inquiry into the charge in accordance with prescribed procedures; or

  (b) if it considers that a special disciplinary inquiry should be held into the charge, request the Minister to direct that a special disciplinary inquiry be held into the charge by a person named in that direction.

  (5) A directed person shall, subject to subsections (6) and (7), comply with the relevant direction given under subsection (4)(a).

  (6) If, at any time after the commencement of a disciplinary inquiry held under subsection (4)(a), the employing authority or directed person considers that a special disciplinary inquiry should be held into the charge, the employing authority may request the Minister to direct that — 

  (a) a special disciplinary inquiry be held into the charge by a person named in that direction; or

  (b) the disciplinary inquiry be converted into a special disciplinary inquiry and that the person holding the disciplinary inquiry hold the resulting special disciplinary inquiry.

  (7) If the Minister complies with a request made under subsection (4)(b) or (6) and makes a direction referred to in — 

  (a) subsection (4)(b), the person named in that direction shall comply with that direction;

  (b) subsection (6)(a), the person named in that direction shall comply with that direction and the relevant disciplinary inquiry being held under subsection (4)(a) is terminated; or

  (c) subsection (6)(b), the disciplinary inquiry concerned is converted into a special disciplinary inquiry and the person holding that disciplinary inquiry shall hold the resulting special disciplinary inquiry.

  (8) If a directed person finds at the conclusion of a disciplinary inquiry that — 

  (a) a breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it act in relation to the respondent under subsection (3) as if the respondent had admitted the charge under subsection (2); or

  (b) no breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it notify the respondent of that finding and that no further action will be taken in the matter.

  (9) On receiving a finding and recommendation under subsection (8), the employing authority shall — 

  (a) accept the finding; and

  (b) in the case of a recommendation made under — 

  (i) subsection (8)(a) in relation to a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent;

  (ii) subsection (8)(a) in relation to a charge other than a charge referred to in subparagraph (i), accept that recommendation and act accordingly in relation to the respondent, or decline to accept that recommendation and take such other action in relation to the respondent as could have been recommended under that subsection; or

  (iii) subsection (8)(b), accept that recommendation and act accordingly in relation to the respondent.

  (10) If an employing authority finds at the conclusion of a disciplinary inquiry held by itself that — 

  (a) a breach of discipline was committed by the respondent, the employing authority shall act under subsection (3) as if the respondent had admitted the charge under subsection (2); or

  (b) no breach of discipline was committed by the respondent, the employing authority shall notify the respondent of that finding and that no further action will be taken in the matter.

  (11) If a respondent denies a charge under subsection (2) and the employing authority is the Minister, the Minister shall direct a person to hold a special disciplinary inquiry into the charge and the person shall comply with that direction.

  (12) A direction shall not be given under this section to the Commissioner.

  (13) In this section — 

 “directed person” means person directed under subsection (4)(a) to hold a disciplinary inquiry into the charge concerned;

 “disciplinary inquiry” means disciplinary inquiry held or directed to be held under subsection (4)(a).”

36       Furthermore, rights, duties and obligations between employers and employees in the public sector, where that relationship is governed by statute, is quite different from such a relationship in the private sector, generally governed by the common law.  In circumstances where it is established that mandatory statutory requirements have not been met, steps taken and decisions arrived at may well be held to be ultra vires and invalid.  This proposition has recently been affirmed by the Full Court of the Supreme Court of Western Australia in Re Kenner; Ex-Parte Minister for Education (2003) WASCA 37 at para 24 per Olsson AUJ (Parker and Templeman JJ agreeing).  These propositions were also dealt with at some length in Re- Railway Appeal Board; Ex parte the Western Australian Government Railway's Commission v Railway Appeal Board (1999) 21 WAR 1 where Malcolm CJ said at 11:

“The present case is not concerned with a simple master and servant relationship the subject of a contract governed by the common law.  It is one subject to a statutory regime under the Act which deals, inter alia, with disciplinary matters.  In these circumstances, different considerations arise where the contract is governed by statutory provisions. In Byrne (at 420) Brennan CJ, Dawson and Toohey JJ said:

“No doubt there are terms which are incorporated by statute in contracts of a particular kind so that the ordinary remedies for breach of contract are available in relation to them [eg, the Sale of Goods Act 1923 (NSW)].  And apart from statute, a term may be implied by law as an incident of a particular class of contract [see Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555 at 576; Liverpool City Authority v Irwin [1977] AC 239; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 345-346], but we do not understand the appellants to be submitting that any such implication arises here. They rely upon the statutory force given to the award and say that, because the relationship between the parties is contractual, the provisions of the award – or at least some of them including cl 11(a) in this case – become terms of the contract enforceable by the use of contractual remedies as well as the remedies provided by statute.

A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported as a statutory right imposing a statutory obligation to pay them.  The importation of the statutory right into the employment relationship does not change the character of the right.  As Latham CJ points out in his judgement in Amalgamated Collieries of WA Ltd v True [(1938) 59 CLR 417 at 423], the legal relations between the parties are in that situation determined in part by the contract and in part by the award.  And as the judgement of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement”

As will be seen, the differentiating feature in Byrne from the present case is that the employer in Byrne was not a statutory body.

A decision made or an action taken by a statutory body in breach of essential requirements of due process or in absence of jurisdiction is invalid and void.  In Balmain Association Inc v Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615 at 637, Kirby P, Priestley and Handley JJA said:

“The High Court has said repeatedly that a statutory power to affect rights, privileges and legitimate expectations must be exercised in accordance with the common law requirements of natural justice and procedural fairness unless Parliament has clearly indicated to the contrary: see, eg, Haoucher v Minister of State for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 651-652, 678-679 . . . Something more than the repeal of earlier provisions for notice and a hearing is necessary to exclude  the ordinary requirements of procedural fairness.”

The principle to be extracted from the cases is that where, as here, a body or an employer is vested by statute with a jurisdiction of disciplinary action, a quasi-judicial function is vested which must be exercised in accordance with the statutory procedures and in compliance with the principles of natural justice.  Obviously the former often embody the latter. To the extent that these requirements precondition the jurisdiction and are not complied with, the action is ultra vires and thus invalid or void ab initio: Ridge v Baldwin, per Lord Reid (at 66, 68, 72-73, 79-80); per Lord Morris of Borth-y-Gest (at 113-114, 117, 121, 122-123); Lord Hodson (at 132, 135-136); Lord Devlin (at 139); cf Lord Evershed (at 86, 91-92) and Lord Devlin (at 138, 140).”

37       It is also the case that where the repository of a statutory power proposes to exercise it and in doing so may affect the rights and interests of the person the subject of the proposed exercise of the power, the principles of natural justice apply.  In F.A.I. Insurances Ltd v Winneke (1982) 151 CLR 342 Mason J said at 360:

“The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power (Twist v. Randwick Municipal Council ((1976)136 CLR 106, at p 109); Heatley v. Tasmanian Racing and Gaming Commission ((1977) 137 CLR 487, at p 499)).  The application of the rules is not limited to cases where the exercise of the power affects rights in the strict sense.  It extends to the exercise of a power which affects an interest or a privilege (Banks v. Transport Regulation Board (Vict.) ((1968) 119 CLR 222)) or which deprives a person of a legitimate expectation', to borrow the expression of Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs ((1969) 2 Ch 149, at p 170), in circumstances where it would not be fair to deprive him of that expectation without a hearing (Salemi v. MacKellar (No. 2) ((1977) 137 CLR 396, at p 419)).”

38       These principles were restated and affirmed in Kioa v West (1985) 159 CLR 550 and in  Annetts v McCann (1990) 170 CLR 596.  In Kioa, when dealing with this issue, Mason J said at 584:

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”

The Statutory Scheme

39       It seems that by s 80 of the PSM Act, the parameters of a “breach of discipline”, for the purposes of Division 3 are set out.  It is to be noted however, that pursuant to s 239(3) of the SE Act, a contravention of that Act, for a member of the teaching staff of a school, is taken to be a breach of discipline for the purposes of s 80 of the PSM Act.

40       By s 81(1) of the PSM Act an employing authority may, on a suspicion of a breach of discipline, give notice to a person in the form prescribed by regs 15 and 16 of the Public Sector Management (General) Regulations 1994 (“the Regulations”) of the suspected breach of discipline and provide that person with an opportunity to explain by way of a response.  If the relevant employing authority determines it to be appropriate, s 81(2) empowers it, if not the responsible Minister, to either investigate the suspected breach of discipline or direct another person to so investigate.  It seems clear that the investigation undertaken is into the suspected breach of discipline, in relation to which notice has been given to the relevant person, pursuant to s 81(1).

41       By s 83(1) if after such an investigation, the employing authority considers that a serious breach of discipline may have been committed by the person, the employing authority is required to charge the person in accordance with the Regulations, with having committed that alleged breach of discipline.  From the relationship between ss 81 and 83, it appears that the breach of discipline that must be the subject of a charge pursuant to s 83(1)(b) is the alleged breach of discipline that was the subject of the investigation pursuant to s 81(2) that has been the subject of notification to the person concerned, pursuant to s 81(1) and in relation to which, a “finding” pursuant to s 83(1) has been made.  This must be so because it is the investigation that is the basis upon which the decision to lay disciplinary charges is based.

42       In my opinion, from this statutory scheme, it is not open for an employer to lay charges purportedly pursuant to s 83(1)(b), unrelated to the alleged breach or breaches of discipline in relation to which an investigation has been conducted pursuant to s 81(2) and to which the relevant person has been given an opportunity to respond.  In my opinion, there is a linkage, as part of the disciplinary scheme contained in Division 3 of the PSM Act, between ss 81, 83 and 86.

43       By s 86(1), a charge under s 83(1)(b) must be put to the relevant person and they must either admit or deny the charges as “laid”: s 86(2).  Once denied by the relevant person, the employer may hold a disciplinary inquiry: s 86(4)(a).  This is a separate and distinct process to an investigation and must proceed in accordance with the requirements of the PSM Act, the Regulations and the common law requirements of natural justice.  There is nothing express or implied, contained within Division 3, to suggest that the requirement to afford natural justice is in some way excluded.  On the contrary, the respondent's own discipline policy, a copy of which was annexed to the applicant's witness statement, at para 3.2.3 clearly recognises and affirms the requirement for employees to be dealt with equitably, “in accordance with the principles of natural justice and that any sanctions imposed are appropriate”.  These principles are further explained at para 3.2.4 of these same policy guidelines.

44       In my view, from all of the evidence before the Commission, and in light of the relevant principles and the statutory scheme outlined above, the respondent has a number of difficulties in respect of this matter. 

45       The first difficulty the respondent faces is that the allegations against the applicant that were initially made against him, were quite different to the charges he subsequently faced, and in relation to which the inquiry was held and the penalty imposed.  The letter to the applicant from the respondent dated 12 March 2001 set out a number of alleged breaches of discipline.  Again, by letter dated 3 April 2001, set out above, the respondent notified the applicant following his response to the allegations, that it intended authorising an independent inquirer to investigate the alleged breaches of discipline, which were then set out and were consistent with the alleged breaches of discipline contained in the respondent's letter of 12 March 2001. It seems thereafter, that matters went somewhat awry.

46       Following the Dodd Report, in relation to which I say further about below, the applicant was then charged with alleged serious breaches of discipline.  Those are set out above in the letter from the respondent to the applicant dated 4 July 2001.  It is clear when one compares the allegations initially raised with the applicant pursuant to s 81 of the PSM Act, and his response, and the subsequent charges laid pursuant to s 86 of the PSM Act, that they are materially different.  Furthermore, and notably, despite being informed by Mr Dodd, that the allegations in relation to C K, were not to be pursued in his investigation, and in relation to which the applicant made no further comment, and in relation to which no findings were made in the Dodd Report, for the purposes of s 83(1), those matters were then the subject of charges against the applicant. 

47       In my opinion, for the purposes of s 83(1), the reference to “the investigation” (whether as a result of its own investigation or that of a person directed under s 81(2)(a)) is a reference to the matters the subject of investigation prescribed by s 81(2).  That is, if an employing authority has issued a direction pursuant to s 81(2)(a) to a person other than itself to investigate alleged suspected breaches of discipline, it is that process and findings from that process, which must be the basis of any subsequent charges.  That this is so, is plain from the basic proposition that if an employing authority was free to simply lay charges as it considered fit, of its own volition notwithstanding the findings of an investigator, then plainly, by the process contemplated by the scheme of Division 3, those matters would not have been adequately ventilated with the person the subject of the investigation as they would not have been the subject of the investigator’s inquiries, including of course, a full opportunity for the relevant person to respond.

48       The terms of the Regulations, in particular those contained in regulations 15 to 20, only serve to confirm the requirement for there to be not only particularity of the allegations at each stage of the process, but also that the relevant person is to be clearly afforded an opportunity of answering the allegations at each stage of the process.  This was clearly not done in this case.

49       I am therefore satisfied and I find that there has not been strict compliance with the statutory scheme as his required in such matters: Re Railways Appeal Board at pp 20 - 21 per Malcolm CJ.

50       Furthermore, in my opinion, consistent with the principles discussed in Re Railways Appeal Board in particular at paras 39 and 40, and in F.A.I., Kioa and Annetts, the process undertaken by the respondent, as reflected in the Dodd Report and the Archibald Report, constituted a denial of natural justice to the applicant.  I have already referred to various parts of the Dodd Report, containing highly prejudicial material to the applicant, which it was common ground, was never put to the applicant and indeed, it is open to infer in part at least, of which the applicant was not even aware.  In particular, I refer to the “conclusion and findings” section of the Dodd Report, in particular at page 14 that I have set out above.  It is quite plain, from this passage in the report, that Mr Dodd had regard to the materials contained in appendix C, and other information provided by various witnesses, never raised with the applicant, in reaching his conclusions in relation to the J L allegations.  In my opinion, this approach was fundamentally unfair to the applicant and fundamentally tainted the process thereafter.

51       In my opinion, similar criticisms may be levelled against the Archibald Report, as clearly, and on her evidence, Ms Archibald had regard to the content of the Dodd Report, as a part of the materials provided to her for the purposes of her own investigation.  I also note, that somewhat startlingly, at pages 4, 7, 14 and 17 of the Archibald Report, there appears extremely prejudicial material about the applicant, including an alleged history of informal complaints and a range of other matters, that the applicant clearly had no knowledge would be contained in the report to be submitted to the respondent.  It is quite plain from the conclusions reached by Ms Archibald, and indeed comments commencing on page 17 and her conclusions at pages 18 to 19 of the report, that she had regard to this other material in making her findings and recommendations.  That all this material was included, and formed a basis for Ms Archibald’s findings and recommendations, without any regard to the interests of the applicant, was in my opinion, a denial of natural justice.

52       Whilst I accept on the evidence, that Ms Archibald made contact with the applicant and told him she wished to interview him for the purposes of her inquiry, it is important to observe that at all material times, she was aware that the union was representing the applicant, as it was entitled to do, consistent with the respondent's disciplinary policy.  Furthermore, Ms Archibald was also aware, through telephone discussions with Mr Farrell and correspondence from him, that there were outstanding issues regarded by the union as important, in terms of the allegations against the applicant.  I am also satisfied that at no stage did the applicant refuse to co-operate with the inquiry but wished to be interviewed once these matters were resolved.  Whilst it may be said on the one hand, that merely affording Mr Johnston the opportunity of being interviewed would be sufficient to satisfy the requirement that he be heard, in the context of the circumstances of this case, in my opinion, it was unreasonable for Ms Archibald to complete and submit her report according to her own timetable, in light of all of the circumstances.  Whilst it is appreciated that these matters must proceed with all reasonable expedition, in my opinion, it is quite wrong for the principles of natural justice to be sacrificed on the altar of expediency.

53       Moreover, even if it could be said that the offer of an interview with the applicant was sufficient and reasonable in the circumstances, then because of all of the extensively prejudicial material contained in both the Dodd Report and the Archibald Report, the applicant should have been given a copy of those reports in order for him to comment before they were submitted to the respondent for its final decision making.

54       Whilst it is not necessary for me to make any findings as to the merits and they were not substantively argued or the subject of any evidence before the Commission, I pause to note the submission of Mr Cox that he had instructions from the applicant contesting much of the material outside of the specific complaints made against him, and contained in the Dodd and Archibald Reports.

55       Additionally, I do not accept on all of the evidence, that the respondent took no account of the highly prejudicial materials contained in both the Dodd Report and the Archibald Report, in coming to its conclusions.  At least on the evidence of Mr Ayling, regard was clearly had to this sort of material, when he testified that it was taken into account for the purposes of “mitigation”.  In my view, such material should not have been taken into account to any extent whatsoever.   Most importantly however, the material should have been put to the applicant so he could be given the opportunity to answer it.  He was not given such an opportunity.

56       Furthermore, the failure by the respondent to afford the applicant an opportunity of being heard on the issue of penalty, following its findings of guilt in relation to the charges, is also a denial of natural justice: Hall v New South Wales Trotting Club Ltd (1977) 1 NSWLR 378; (1977) 2 NSWLR 308 at 337; Re Railway Appeal Board at 21.  It is to be observed that this failure of itself however, would ordinarily not vitiate the whole disciplinary process and would require the matter of penalty to be put to the person concerned.

57       It would also appear that at least to a large extent, as set out in the letter from the respondent to the applicant dated 4 July 2001, and in the second paragraph, that the respondent had pre-judged the applicant's conduct when the Acting Director-General, made a “finding” that the applicant had committed a serious act of misconduct.  This was of course, even before the inquiry by Ms Archibald had taken place: Re Railway Appeal Board per Malcolm CJ at para 85.

Duplicity and Double Jeopardy

58       Mr Cox also submitted that the principles of duplicity and double jeopardy have application to matters such as these and in the present circumstances the respondent fell foul of them.  In light of the conclusions I have reached in relation to the primary issues raised, it is unnecessary for me to conclusively determine these matters. There is however, something to be said for the proposition that Ms Archibald, in making one finding only in relation to each of charges one, two and three, and four and five respectively, did not comply with the statutory scheme, in that there were not findings in relation to each of the charges against the applicant.  It is by no means clear, which of the “offences” the applicant had been found “guilty” of.

59       As to the principle of duplicity, as it is known to the criminal law, doubts have been expressed as to its application to disciplinary proceedings of the present kind: R v White Ex parte Byrnes (1963) 109 CLR 665 at 670; Hardcastle v Commissioner of Police  (1984) 53 ALR 593 at 602.  I say nothing further about the matter on this occasion.

Conclusions

60       For all of the above reasons, and without making any observations as to the merits of the matter, I am of the view that the respondent's decision to impose the penalty on the applicant ought to be quashed.  It is ordered accordingly.