Appeal against decision to take removal action on 6 March 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00751

DELIVERED : THURSday, 8 AUGUST 2024

FILE NO. : APPL 92 OF 2024

Appellant

AND

Chief Executive Officer (DoJ)

Respondent

CatchWords : Industrial Law (WA) – Appeal against decision to terminate employment as youth custodial officer – Whether appellant has the right of appeal to the Commission – Whether the dismissal was removal action – No right to appeal – Appeal dismissed for want of jurisdiction

Legislation : Police Act 1892 (WA)

Public Sector Management Act 1994 (WA)

Young Offenders Act 1994 (WA)

Young Offenders Regulations 1995 (WA)    

Result : Appeal dismissed

Representation:  (on the papers)

Applicant : Mr J A Nottle, on his own behalf

Respondent : Mr J Carroll, of counsel

Case(s) referred to in reasons:

McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006

The Honourable Minister of Police Commissioner of Police v Western Australia Police Union of Workers [2000] WAIRC 01174; (2000) 81 WAIG 356

Reasons for Decision

1         The appellant, Mr Jorg Arno Nottle, was employed as a youth custodial officer under the Young Offenders Act 1994 (WA).  He commenced in that role in January 2023 and was dismissed on 6 March 2024.

2         In her letter notifying Mr Nottle of the dismissal, the then Acting Director General stated as reasons for the dismissal:

The probationary period provides me with an opportunity to assess a youth custodial officer’s suitability prior to the Department committing to your permanent status.  Suitability includes an assessment of that person’s awareness of the integrity and accountability expected of them, both when on duty and in their associations in the community.

This opportunity to assess suitability during the probationary period is critical to maintaining public confidence in employees of the Department, who in their roles are given significant powers over vulnerable populations, in an environment where officers are potentially exposed to significant risks of corruption.

3         The letter stated that the Acting Director General had come to the view that Mr Nottle should be discharged from his office of youth custodial officer pursuant to reg 52A(2) of the Young Offenders Regulations 1995 (WA).

4         Mr Nottle challenged the decision to dismiss him by appealing the dismissal to the Commission under s 11CH of the Young Offenders Act.

5         In her response to the appeal, the respondent says that Mr Nottle was discharged from office pursuant to reg 52A(2) of the Young Offenders Regulations and was not removed as a result of removal action under s 11CC of the Young Offenders Act. She says that it therefore follows that the appeal under s 11CH of the Young Offenders Act is incompetent and must be dismissed.

6         The Commission made directions that the issue of whether it has jurisdiction to deal with Mr Nottle’s appeal be determined as a preliminary issue on the papers. Mr Nottle and the respondent each filed documentary evidence and written submissions relevant to the question of whether the initial decision is removal action from which an appeal under s 11CH lies.

7         The Commission is not dealing with the merits of Mr Nottle’s arguments about the fairness of the dismissal decision. The Commission is only concerned with whether Mr Nottle has the right of appeal to the Commission under s 11CH or not. For the reasons that follow, we conclude that he does not and so we would dismiss his appeal.

Mr Nottle’s Submissions

8         There is no dispute that the respondent expressly relied upon reg 52A(2) of the Young Offenders Regulations as the source of its authority to terminate Mr Nottle’s employment as a youth custodial officer.

9         Regulation 52A(2) says:

Where the chief executive officer is of the opinion during, or at the end of, the period of probation of a juvenile custodial officer or miscellaneous employee that the juvenile custodial officer or miscellaneous employee is unsatisfactory in the performance of his or her duties, or unsuitable to be a juvenile custodial officer or miscellaneous employee, the chief executive officer may remove that juvenile custodial officer or miscellaneous employee.

10      Regulation 52A(2) can therefore only apply if Mr Nottle was within the period of probation.

11      Mr Nottle argues that he was not in a period of probation. He says, and it is not otherwise contested, his written employment contract provided for a probationary period of 12 months which ended on 19 February 2024.

12      The respondent contends that she extended Mr Nottle’s probationary period, but Mr Nottle denies that he received any notification or communication that had the effect of extending his probationary period. He says his probationary period was not validly extended and did end, in accordance with his contract of employment on 19 February 2024.

13      Accordingly, Mr Nottle says that he was not a probationary employee, so the respondent could not validly terminate his employment under reg 52(A).

14      Mr Nottle submits that in these circumstances, it is open to the Commission to infer that the dismissal was removal action under s 11CD of the Young Offenders Act. He says that if there was no valid extension of the probationary period, then termination under reg 52A(2) was not available and could not be validly taken. The termination must therefore be treated in substance as removal action under s 11CD. He says that the respondent’s conduct was consistent with there having been, in substance, removal action under that section.

15      Mr Nottle also argued that the term ‘discharge’ as used in the termination letter of 6 March 2024 equates to removal from office.

16      Mr Nottle says:

The procedural irregularities surrounding the apparent extension of the appellant’s probationary period and the improper classification of the appellant’s dismissal as a discharge rather than a removal highlight that Regulation 52A is not the correct jurisdiction for this matter. The appellant’s removal was both procedurally flawed and harsh, warranting a review under section 11CH of the Act.

17      It is worth restating that the Commission is not considering the merits of whether the removal or discharge or termination was harsh. The merits of the decision to terminate the employment cannot inform whether s 11CH is enlivened. Even if the merits of the termination decision warrant review of it, that does not give the Commission the ability to review it. The Commission’s ability to review the decision is simply question of whether there was removal action under section 11CH of the Young Offenders Act.

The decision to dismiss Mr Nottle

18      On 1 February 2024, the then Acting Executor Director for the Department of Justice wrote to Mr Nottle putting him on notice that he was considering Mr Nottle’s suitability to continue as a youth custodial officer and inviting Mr Nottle to address and respond to proposed removal pursuant to s 11(1a) of the Young Offenders Act.

19      The letter to Mr Nottle stated:

I am writing to you about a matter that has come to the attention of the Department of Justice (Department) regarding your suitability to continue as a youth custodial officer.

A person who is unsuitable to be a youth custodial officer is grounds for removal in accordance with regulation 52A(2) of the Young Offenders Regulations 1995.

There are concerns about your suitability based on allegations of ….

I have observed that you have received counselling on multiple occasions regarding your argumentative, aggressive, and confrontational behaviour towards your female colleagues since commencing your employment at the Corrective Service Academy and currently at Banksia Hill Detention Centre. It is a matter of significant concern for me that despite the repeated instances of counselling, there appears to be no noticeable change in your behaviour.

Based on the relevant information available to me, I can advise that you are not required for duty while this matter is being dealt with in accordance with this correspondence and you should not attend the workplace until further notice.

Before deciding whether to recommend to the Director General that he consider your removal as a youth custodial officer, pursuant to section 11(1a) of Young Offenders Act 1994, I am prepared to provide you with an opportunity to respond as to why this action should not be taken against you.

20      At the time this letter was sent to Mr Nottle, he was within the probationary period specified in his contract of employment.

21      The respondent produced to the Commission a form headed ‘Probationary Officer Milestone Recommendation’ dated 12 January 2024. It is unclear who completed the Probationary Officer Milestone Recommendation. It records that Mr Nottle’s current probationary period was from 26 May 2023 to 19 February 2024. It also contains a probation recommendation for an extension of probation for 4 months ‘to enable this Probationary Officer to continue to meet the requirements of their probation’.

22      The form bears an initial or signature above the title ‘Superintendent Chris Rule.’ However, under the heading ‘Delegated Authority’, neither box indicating acceptance or rejection of the recommendation is ticked.

23      In his affidavit dated 2 July 2024, Mr Nottle stated that he was never notified that his probation was being extended and says, ‘I never had a conversation with anyone, nor was this communicated to me in any form’.

24      The respondent did not seek to establish that Mr Nottle was notified of recommendation made in the Probationary Officer Milestone Recommendation.

25      The respondent also produced a letter addressed to Mr Nottle which said:

It is a condition of your employment that during your probationary period you complete both the Evidence and Task Guide (ETG) and the Knowledge and Assessment Workbook (KAW) in order to attain the CERT III. I have extended your probation as you have not yet attained the Cert.III as required, as you have not successfully completed your ETG and KAW.

In accordance with clause 15.2 of the Department of Justice (Youth Custodial Officers) CSA Agreement 2022, your probationary period has been extended to allow you to additional time to successfully complete all requirements of training, including your CERT III qualification. Your probationary period has been extended from 20 February 2024 to 19 June 2024.

26      The letter is addressed to Mr Nottle at his work address and is signed by the Superintendent with an illegible date in January 2024, possibly 23 or 25 January. The respondent did not seek to establish that Mr Nottle was provided with a copy of the letter or in any other way given notice of the extension of his probationary period. Mr Nottle’s affidavit evidence, which was unchallenged, was that 23 January 2024 was his rostered day off. According to a roster he supplied, he attended work on 24 January 2024 and 25 January 2024 which was a public holiday. He was stood down on 1 February 2024.

27      On 6 March 2024, Mr Nottle was given notice of the termination of his employment in the terms discussed at the beginning of these reasons.

Was the dismissal removal action?

28      The Commission, as a creature of statute, only has jurisdiction and powers given to it by statute. Relevantly, s 11CH of the Young Offenders Act gives the Commission jurisdiction to determine appeals brought by custodial officers against their removal under Division 3 of Part 3 due to loss of confidence.

29      Section 11CH(1) says:

(1) If a custodial officer is removed as a result of removal action, the custodial officer may appeal to the WAIRC against the removal decision on the ground that it was harsh, oppressive or unfair.

30      ‘Removal action’ is defined in s 11CA to mean removal of a custodial officer under s 11CC. ‘Removal decision’ means a decision of the chief executive officer to take removal action.

31      Section 11CC says:

(1) If the chief executive officer does not have confidence in a custodial officer’s suitability to continue as a custodial officer, the chief executive officer may remove the custodial officer.

(2) Subsection (1) applies in addition to, and does not limit the operation of, the Public Sector Management Act 1994.

(3) The chief executive officer may conduct any necessary investigation to determine a custodial officer’s suitability to continue as a custodial officer.

(4)  For the purpose of the investigation the chief executive officer may require the custodial officer to do all or any of the following —

(a) provide the chief executive officer with any information or answer any question that the chief executive officer requires;

(b) produce to the chief executive officer any document in the custody or under the control of the custodial officer.

(5) ….

32      Section 11CD sets out a procedure whereby the chief executive officer can given written notice to a custodial officer of the grounds on which the chief executive officer does not have confidence in the custodial officer’s suitability to continue as a custodial officer. The section gives the custodial officer the right to make written submissions in relation to the notice within a specified period of time and obliges the chief executive officer to take into account the officer’s written submissions before deciding to take removal action.

33      Subsection 11CD(6) requires, except as provided in the Young Offenders Regulations, the chief executive officer to give the custodial officer a copy of any documents that were considered by the chief executive officer in making the decision and make available to the custodial officer for inspection any other materials that were considered by the chief executive officer in making the decision within seven days after giving the decision notice. This did not occur in Mr Nottle’s case.

34      Section 11CE also requires an officer to be paid in maintenance payment for a period of 28 days after the day on which the custodial officer is removed as a result of removal action. Again, there is no evidence that this occurred in Mr Nottle’s case.

35      Notably, removal action is not the only mechanism by which a custodial officer’s employment may be terminated. Section 11CC(2) expressly provides that the chief executive officer’s power to remove a custodial officer does not limit the operation of the Public Sector Management Act 1994 (WA). The Public Sector Management Act contains additional provisions for the discipline of public sector officers including termination of employment of custodial officers: see Part 5 of Public Sector Management Act.

36      In the context of a similar scheme under the Police Act 1892 (WA)), the Commission has previously observed that removal for the purpose of Part IIB of the Police Act and dismissal are distinct concepts, even if the ultimate consequence is the same for the police officer concerned: Wayne Russell McGrath v Commissioner of Police [2005] WAIRC 01989; (2005) 85 WAIG 2006 at [21]; The Honourable Minister of Police, Commissioner of Police v Western Australian Police Union of Workers [2000]  WAIRC  01174;  (2000)  81 WAIG  356 at [111].

37      It is only when a custodial officer is removed as a result of removal action under s 11CC that a custodial officer may appeal to the Commission against the removal decision under s 11CH.

38      In order for the Commission to find that it has jurisdiction in circumstances where the respondent’s termination letter makes no reference to removal action or s 11CC, the Commission must draw an inference that the termination was in fact pursuant to s 11CC. Such an inference can only be made if it is either the only available inference or more probable than any other inferences that are open on the evidence.

39      For the sake of this analysis, we accept that Mr Nottle was not notified that his probationary employment had been extended. We also accept that there is an at least arguable case that the failure to notify Mr Nottle that his probationary employment was extended means that it was not validly extended, that he was therefore a permanent employee at the relevant time, and the power to dismiss under reg 52A was not available to the Chief Executive Officer.

40      Whether the extension of the probationary period and dismissal under reg 52A were valid exercises of power are matters of statutory construction. It is not necessary for the Commission to undertake the construction task.

41      That is because, even accepting all of these matters, does not mean that the only or most probable inference available is that the employment came to an end as a result of removal action. Indeed, the inference Mr Nottle wants the Commission to draw is not available in light of the express terms of the termination letter which refers to reg 52A(2).

42      Mr Nottle may have grounds to challenge or appeal the dismissal through other avenues but any flaw in the decision-making process (or probation extension process) does not transform the decision into removal action.

43      Mr Nottle therefore does not have an appeal right under s 11CH.

44      The appeal will be dismissed.