APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 23 MARCH 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00365

DELIVERED : Tuesday, 25 June 2024

FILE NO. : PSAB 28 OF 2022

Appellant

AND

The Director General, Department of Justice

Respondent

CatchWords : Industrial Relations Law (WA) – appeal against decision of respondent to terminate employment – serious offence – criminal conviction – incarceration - reinstatement is not practicable.

Legislation : IndustrialRelations Act 1979 (WA)

  Public Sector Management Act 1992 (WA)

  Road Traffic Act 1974 (WA)

Result : Appeal Dismissed

Representation:

Appellant : Mr S Tan

Respondent : Ms S Power

Case(s) referred to in reasons:

Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306

Reasons for Decision

1         On 23 March 2022, the appellant was dismissed by the respondent, following his appearance at the Perth Magistrates Court on 14 February 2022 in which he pleaded guilty to:

a) Dangerous driving in circumstances which subsequently resulted in death under s 59(1)(b) of the Road Traffic Act 1974 (WA); and

b) Exceeding 0.08g alcohol per 100ml of blood under s 64(1) of the Road Traffic Act 1974 (WA).

2         On 7 April 2022, the appellant appealed the decision to dismiss to the Public Service Appeal Board (the Board) seeking the following remedies:

a) that the Board adjust the respondent’s decision to dismiss the appellant by reversing it;

b) that the respondent reinstate the appellant to his former position;

c) that the respondent pay the appellant his full employment entitlements; and

d) that the respondent recognise continuity of the appellant’s employment.

3         The appellant contends that the decision to dismiss him from his employment was harsh, oppressive and unfair as the decision to dismiss was made after his conviction, but without waiting for the conclusion of the criminal proceedings.

4         On 23 August 2022, the appellant was sentenced to imprisonment for 4 years.

5         On 29 May 2023, the respondent applied for the Board to order the appeal be dismissed under s, 27(1)(a)(iv) of the Industrial Relations Act 1979 (WA) (the IR Act) because:

a) reinstatement of the applicant is impactable; and/or

b) the remedy of reinstatement sought be the appellant is practically a claim to remuneration which was lost prior to his incarceration because of the dismissal; and/or

c) want of prosecution.

6         It is not disputed that the appellant pleaded guilty to the offences of dangerous driving in circumstances which subsequently resulted in death and exceeding 0.08g alcohol per 100ml of blood and was convicted of these offences

7         Section 92 of the Public Sector Management Act 1992 (WA) (the PSM Act) provides that the Department may take disciplinary action or improvement action if an employee is convicted or found guilty a serious offence:

92. Employee convicted of serious offence, powers as to

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

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

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

Section 80A of the PSM Act defines ‘serious offence’ as:

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

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

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

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

8         On 15 February 2022, the Director General wrote to the appellant and informed him that he was suspended from duty on full pay and that the Director General was considering dismissing the appellant from employment and invited the appellant to make a submission in response to the proposed dismissal. On 28 February 2022, the appellant’s union made a written submission on behalf of the appellant.  By letter dated 21 March 2022, the Director General dismissed the appellant.

9         The Board finds that the offences for which the appellant was convicted were ‘serious offences’ as defined by the PSM Act and the Department’s decision to dismiss was lawfully and validly made consistent with s 92 of the PSM Act.

10      In unfair dismissal claims, as established by the Supreme Court of Western Australia in Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306, the Board is limited to quashing decisions to effect reinstatement and cannot otherwise adjust the decision.

11      The appellant is incarcerated and consequentially is not able to be reinstated as a matter of practicality.  Given the remedy the Board may order is limited to reinstatement and such an order is not practical, the Board considers it appropriate to dismiss the appeal.