UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00118

DELIVERED : tuesday, 25 February 2025

FILE NO. : U 17 OF 2024

Applicant

AND

Director General, Department of Biodiversity, Conservation, and Attractions

Respondent

CatchWords : Application to dismiss application due to misconduct – contact between appellant and respondent's witness ­– Conduct not found to be improper – No attempt to influence, intimidate or harass potential witness found

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(a)(iii),(iv)

Result : Application to Dismiss Application Refused

Representation:

Applicant : Mr Sieg Maré (of counsel)

Respondent : Mr John Carroll (of counsel)

Case(s) referred to in reasons:

Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714;

Ida Palaloi v Director General, Department of Education 2024 WAIRC 00991

Librizzi v Western Australia [2006] WASCA 237; (2006) 33 WAR 104

Reasons for Decision

1         Mr Carl Anthony House (the applicant) was employed by the Director General, Department of Biodiversity, Conservation and Attractions (the respondent) from 1999 as an Overseer/Crew Leader in the Wellington district. On 1 February 2024, the applicant’s employment was terminated by the respondent after being investigated for disciplinary breaches. The applicant has made an unfair dismissal application, requesting reinstatement, compensation for loss of income, and an order maintaining continuity of his employment.

2         The respondent opposes the application and says the dismissal was a fair and reasonable response to the applicant’s disciplinary breaches.

3         The respondent has applied for an order to dismiss the application because the respondent submits that the applicant has acted improperly in communications with a witness in these proceedings.

Background

4         On 5 July 2023 the respondent notified the applicant of the commencement of an investigation into claims that the applicant had breached disciplinary standards. On 1 February 2024 the respondent terminated the applicant’s employment.

5         On 29 February 2024 the applicant applied to the Commission for reinstatement and compensation.

6         The employer responded to the applicant’s claim on 18 March 2024. It submitted that its findings in regards to the applicant were reasonable and fair in light of the evidence obtained, a fair process was provided and the applicant’s dismissal was a fair and reasonable response to the findings of wrongdoing in light of all the circumstances.

7         An unsuccessful attempt to conciliate the dispute was held on 22 April 2024 and subsequently directions were issued on the same day to list the matter for hearing.

8         In the course of preparations for that hearing, the respondent objected to certain evidence being filed because it was being filed to embarrass and harass a particular witness, and unreasonable delays with filing of the applicant’s witness outlines. Subsequently, an interlocutory hearing was listed.

9         In the course of preparations for that interlocutory hearing, the respondent filed an objection to the applicant’s claim as outlined below, and a further interlocutory hearing was listed for 16 September 2024 to decide whether the application should be dismissed or not.

Grounds of the Respondent’s Objection

10      On 9 July 2024 the respondent applied for an order that the applicant's unfair dismissal claim be dismissed under s 27(1)(a)(ii) and/or (iv) of the Industrial Relations Act 1979 (WA) (the IR Act), on the following bases:

(a) the applicant's conduct in sending the text messages to Mr Porter and Mr Porter's wife was subjectively intended to be a threat to embarrass Mr Porter unless he recanted evidence he gave to the respondent; and/or

(b) in his text messages to Mr Porter and Mr Porter's wife, the applicant acted in a way which was improper in that, objectively speaking, the conduct was a threat to embarrass a potential witness to the proceedings, namely Mr Porter.

11      The respondent relied on a series of text messages sent by the applicant to Mr Porter:

26 August 2023, 9:09 am : I’m told me and Peter are not to be listened to don’t talk behind my back it could be confused for bullying ring me I doubt you will.

26 August 2023, 8:57 am: You know people who come from your crew to mine tell me they learn more from me in a week than you in a year yet you don’t think they should listen to me.

12      Mr Porter’s response to this message, on the same day, was:

Hi Carl. I am not sure what is going on or what people are saying. But I will say this. I am trying my best to stay out of the work drama. I have nothing but respect for you. This whole situation is really hard on me as well. I just want to go to work do a good job have some fun and a few laughs. I in no way shit talk you to anyone. I just can’t engage in the drama or I go in a hole that is hard to get out from.

13      The applicant responded:

You need to talk to me your name is plastered all over the letter h r gave me they are trying to sac me over statements made by you about bullying you.

14      Mr Porter’s response to this was:

What the fuck! I don’t know about any letter or any formal complaint put by me. Fuck this job.

15      Mr House responded:

Yeah I’m happy to show you the letter you have accused me of bullying you it’s what they are trying to get rid of me over.

16      Mr Porter responded with:

Fuck this!

17      Mr House then said:

You give me a time I’ll show you. By the way it’s all over Pete’s to [sic].

18      Then on 30 August 2023, Mr House sent a ‘message2Text’ to Mr Porter, saying:

Yeah Roge it’s Carl really like to talk to you if I can. Yeah sorry you got dragged up and all this it’s not something I wanted to do.

19      On 5 September 2023, Mr House sent another text after having no response from Mr Porter:

Look I know you don’t want to be involved in the crap but they included you weather. [sic] You like it or not I need to talk to you please ring me.

20      On 8 September 2023, Mr House sent another message:

What’s the problem don’t you want to talk to me anymore.

21      On 9 March 2024, Mr House unsuccessfully attempted to call Mr Porter’s wife, and did not leave a message.

22      On 14 March 2024 at 9:46 am, Mr House again tried to call Mrs Porter, then left her this message:

Sorry for getting in touch with you I don’t have Rogers number I need to talk to him as I am taking this to court and he is a witness weather [sic] he likes it or not so he can talk to me now or in court where will have to answer some embarrassing questions get him to ring me.

23      The respondent submits that the 2023 text messages provide the context of the final text message on 14 March 2024 to the wife of a work colleague of the applicant. The respondent submits that it does not rely on the earlier messages in and of themselves or in isolation to establish improper conduct.

24      The respondent contends that the text messages show that the applicant believed his work colleague was a witness against him and that the work colleague had accused him of bullying. The respondent says the applicant made several attempts to try to speak with the work colleague despite the applicant recognising that the work colleague did not want to be involved. When it was clear the work colleague would not respond, the applicant went further and contacted the wife of his work colleague, making a threat that if the work colleague did not speak with him ‘he will have to answer some embarrassing questions in court’.

25      The respondent says the applicant’s conduct was improper and had the tendency or capacity to interfere in the administration of justice. The respondent submits the Commission ought to dismiss the proceedings.

26      At the hearing the applicant gave evidence about the context of the text messages. The applicant contends that the text messages exchanged with his work colleague were done so in the context of a long-standing close friendship of about ten years’ duration. The text messages in August and September 2023 were sent before the applicant was dismissed. The applicant’s texts were sent to clarify and/or confirm whether the respondent’s assertions that Mr Porter had complained about the applicant’s behaviour were correct.

27      The text message sent Mr Porter’s wife on 14 March 2024 was sent after the application for unfair dismissal had been made on 29 February 2024, and prior to the first proceeding before the Commission, being a conciliation conference held on 22 April 2024.

28      The applicant says that he did not seek to coerce or influence a witness to these proceedings to tell anything but the truth.

29      The applicant refers the Commission to Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714; (2017) WAIG 1393, (Brown) and submits that the Commission ought not dismiss the application under s 27(1)(a) of the Act because the power to dismiss:

Is exceptional and should be exercised sparingly and with extreme caution … (see Brown at [81]);

Without the matter being fully heard and all evidence being led, would be harsh and extreme, and it would be an exceptional result for improper conduct to deny a person their ‘day in court’ (see Brown at [83]);

Should not be used to ‘punish’ the applicant, and it is relevant to consider the applicant's intentions and the effect of his conduct (Brown at [83]).

Improper Conduct

30      In Brown, the Public Sector Appeal Board (Board) adopting the reasoning in Librizzi v Western Australia [2006] WASCA 237; (2006) 33 WAR 104 (Librizzi), considered the statements made by an appellant concerning the imminent proceedings. They gave a number of examples, some of which are shown below, along with the Board’s analysis of Mr Brown’s comments and conduct in light of Librizzi:

The Board said at [61]:

We find that what the appellant did in the recorded conversation was use fear and intimidatory tactics and the promise of benefits to persuade Ms McCloy.

…

[5] Mr Brown: But that is entirely up to you Leilani, to be quite honest there is going to be a real ugly thing and it will go off to court.

This is intimidation and the offering of an inducement and is, in our view, an outrageous thing to say to a witness. Such a description of the contemplated proceedings before the Public Service Appeal Board could only intimidate and pressurise a witness. The inherent offer of a “real ugly thing” being avoided is a clear inducement. That the Public Service Appeal Board would allow the proceedings to be “ugly” shows a lack of respect for it unless, of course, the Appellant was talking about things that might happen at the proceedings, or related to the proceedings, that were unknown to, and out of the control, of the Public Service Appeal Board. If so the comment is all the worse for it.

(6) Mr Brown: …it will go off to court, if it goes that far, it will go off to court and I will sit in court and they will call witnesses… and I'll have to go to court and myself and my wife will be there and then obviously you are going to get all the witnesses from Banksia. There's people that I want to call up for witnesses for my character reference, they will all be there and then it will be the department sat on the other side. Now the problem is for you and this is what is not going to help you, is you are going to turn up in court, because you will be summonsed to appear and then who do you sit with Leilani? Do you sit with Sean Kelly as a witness if it goes to court?

This is also intimidation and the offering of an inducement and, again, completely outrageous. It is a clear attempt to isolate and intimidate Ms McCloy. The appellant says he will be present for proceedings, his wife will be there and his character witnesses will all be there. Ms McCloy on the other hand, the appellant says, will have a “problem” because she will have no one to “sit with”, except maybe Sean Kelly who the appellant perceives to be unpopular. This is an outrageous attempt to paint a picture for Ms McCloy of the proceedings being a lonely and stressful situation for her (quite apart from the stress of actually giving evidence). The appellant is effectively telling Ms McCloy that she must pick a side and if she does not pick his side she will end up on the wrong side, a side lacking both quality and quantity. The appellant was quite wrong about how proceedings might be regulated by the Public Service Appeal Board to ensure that such pressure as he threatens is not brought to bear, and his cavalier attitude indicates a lack of respect for the Public Service Appeal Board, but in any event the comments are reprehensible.

31      The Full Bench of the Commission in Ida Palaloi v Director General, Department of Education 2024 WAIRC 00991 (Palaloi), in reasons issued after the hearing of this matter, considered the provisions of s. 27(1)(a) of the IR Act and a party’s misconduct:

[25] Given that a person who brings proceedings before the Commission is entitled to have the jurisdiction invoked, the statutory power to dismiss a matter under s 27(1)(a) of the Act is to be exercised sparingly. Whilst the PTA case concerned a dismissal application in the public interest under s 27(1)(a)(ii), the same broad approach should be adopted to the other bases of the exercise of the power in s 27(1)(a)(i), (iii) and (iv), in that the power should only be exercised in a clear case. 

[26] A finding that a party to proceedings in a matter before the Commission has engaged in misconduct, having the capacity or tendency to interfere with the administration of justice, is a circumstance that falls within the broad power to dismiss or refrain from hearing a matter, ‘for any other reason’ under s 27(1)(a)(iv) of the Act.

[27] Whilst the power of the Commission to dismiss a matter is a broad one, in the circumstances of the present case, some guidance can be obtained as to the approach to be taken, from cases dealing with the criminal offence of attempts to pervert the course of justice, both under the Criminal Code and at common law and in the law of contempt. Some of these cases were referred to and relied on by the learned Commissioner, when determining the s 27(1)(a) application.

[28] Section 143 of the Criminal Code deals with the offence of attempting to pervert etc the course of justice. This section was considered by the Court of Appeal in Librizzi v Western Australia [2006] WASCA 237; (2006) 33 WAR 104. In this case, after a review of the authorities, Roberts-Smith JA summarised the relevant principles at [80] as follows:

So far as the present case is concerned, the principles established by the authorities may relevantly be summarised as follows:

(1) The offence will be committed where the conduct or statements of the accused have the tendency to pervert the course of justice and the accused engaged in the conduct or made the statements with that intent (R v Vreones (supra) at 369; R v Rogerson (supra) at 279 and Meissner (supra) at 140-142).

(2) It is not necessary to prove that the accused's intention was in terms an intent to pervert the course of justice – it is sufficient if the accused intended to engage in conduct which had that tendency for the purpose of giving effect to it; namely that it was an intent to do something which, if achieved, would pervert the course of justice (Meissner (supra), 143 - 146).

(3) Any attempt to persuade a witness to give false or perjured evidence or to refrain from telling the truth would clearly be an attempt to pervert the course of justice (Kellett).

(4) It is lawful to try to dissuade a witness from giving false or perjured evidence (or evidence the accused honestly believes would be false or perjured) by reasoned arguments, which may be supported by material facts and documents (Kellett (supra) 388; R v Taff [1991] 1 NZLR 69, 72; Meissner (supra), 142 - 143).

(5) The use of any improper or unlawful means to persuade a witness not to give, or to change, their intended evidence, will constitute an attempt to pervert the course of justice even if the accused honestly believes the intended evidence is false (Kellett, ibid).

(6) It follows that a belief that the intended evidence is false and that the accused is intending the witness should tell the truth, will be a defence only where no improper or unlawful means are used.

(7) Conduct which is no more than a threat to do what the accused might lawfully do in order to secure a legitimate end is not conduct which has a tendency to pervert the course of justice (Meissner (supra) at 142 - 143).

(8) Whether a threat goes beyond one to do that which the accused might lawfully do, or was not made to secure a legitimate end, are questions for the jury (Kellett, 392 - 393).

[29] In the same case, Buss JA, as to the applicable principles, said at [139]:

A person is guilty of attempting to pervert the course of justice when he or she engages in conduct which has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. See R v Vreones [1891] 1 QB 360 at 369; R v Murphy (1985) 158 CLR 596 at 609; R v Rogerson (1992) 174 CLR 268 at 275 - 276, 279, 297; Meissner v The Queen (1995) 184 CLR 132 at 140 - 141, 148, 156. Section 143 creates a substantive offence. See Rogerson at 279, 297; Meissner at 141. It is irrelevant whether or not the conduct in question succeeds in perverting the course of justice. It is the tendency of that conduct which is decisive. See Rogerson at 277, 280, 298; Meissner at 141. The notion of "perverting" the course of justice involves nothing more than adversely interfering with its proper administration. See Meissner at 148.

[30] Additionally, his Honour continued at [143] as follows:

[143] The means by which the course of justice may be perverted have not been comprehensively defined. See Meissner per Dawson J at 157. It is established, however, that the course of justice may be perverted when a court is denied knowledge of the true circumstances of the case. See Rogerson at 280; Meissner per Dawson J at 157. An attempt to induce a plea of guilty by improper means is an attempt to deny to the court knowledge of the true circumstances of the case in that the court must assume, absent any contrary indication, that a plea has been made freely and voluntarily. See Meissner per Dawson J at 158. There is a close analogy between cases where attempts have been made to induce a plea of guilty by improper means and cases where attempts have been made by improper means to induce witnesses to withdraw or alter their evidence. See Meissner per Dawson J at 158.

[31] Having regard to the fact that proceedings before the Commission are civil proceedings, a party who engages in misconduct in matters before the Commission, by the use of threats, intimidation or harassing behaviour towards a witness or a potential witness, in an attempt to interfere with the evidence that person may give, should be regarded as an attempt to pervert the course of the administration of justice by the interference with the proper processes and proceedings of the Commission. This interference is constituted by an attempt to bring illegitimate pressure to bear on a witness or a prospective witness, by the use of such threats, intimidation or harassing conduct. It has the potential to interfere with the Commission determining a matter justly, and in accordance with equity, good conscience and the substantial merits of the case, as s 26(1)(a) of the Act requires.

[32] In the context of proceedings before the Commission, a similar approach to the matters set out above was adopted by the Public Service Appeal Board (Board) in Brown. In that case, the Board found that the appellant had sought to improperly influence a witness due to give evidence for the respondent. The Board applied the broad principles set out in Librizzi and in R v McLachlan [1998] 2 VR 46 and exercised its powers under s 27(1)(a) of the Act to dismiss the appeal. This was on the basis that the appellant’s conduct had the capacity or tendency to interfere with the proper processes of the Board and the capacity of the Board to do proper justice between the parties: see [54], [61] and [66] to [69].

32      In the current proceedings, the applicant gave evidence that that his intention was to confirm the availability of a witness and in no way was meant to intimidate, harass or interfere with the witness.

33      The respondent asserts that the objective implication for the text messages is that the applicant wanted to speak to Mr Porter to get Mr Porter to change what the applicant believed Mr Porter’s evidence to be. It asserts that the applicant did so by threatening to embarrass Mr Porter in court. The respondent contends that the fact that the threat was made through Mr Porter’s wife raises the level of pressure above that of a direct threat made to Mr Porter.

34      In this matter the applicant’s statement, sent as a text message after trying to unsuccessfully to call the wife of the witness, was:

I need to talk to him as I am taking this to court and he is a witness weather (sic) he likes it or not so he can talk to me now or in court where he will have to answer some embarrassing questions get him to ring me

35      I do not accept the applicant’s explanation that he intended to confirm Mr Porter’s availability as a witness, particularly in relation to the case management considerations. I find that the applicant was bluntly informing Mr Porter that he would be a witness, possibly because the applicant would be calling him to give evidence, and that he wished to speak with him, and that if he did not speak with him, he may need to answer questions in that court that may be embarrassing for him.

36      Even so, in my view it cannot be said that the applicant’s statement is the same as the picture of proceedings painted by the appellant in the matter before the Board in Brown. The appellant in Brown described the court proceedings that the witness would be involved in as ‘a real ugly thing’ and ‘it will go off in court’. In this matter the applicant stated that Mr Porter may need to answer some embarrassing questions. In Brown the Board detailed a number of statements by the appellant observing:

[64] However, what did clearly occur is that the appellant acted in an opportunistic way. Being presented with the opportunity to talk at length, and prompted perhaps by things he was asked or told by Ms McCloy, the appellant took the several opportunities offered to exert pressure upon and to offer inducements to Ms McCloy as set out above.

[65] We accept the appellant did not have an intention to pressure Ms McCloy when he called her, or took her return call, but he evidently developed such an intention and acted upon it during the course of the recorded conversation.

37      In this matter the communication said to be improper during these proceedings is a single text message. Despite no response to his request, the applicant did not pursue the matter further.

38      The Board’s decision to dismiss the appellant’s appeal in Brown also had regard for the limited power of the Board to only dismiss the appeal or uphold it and return the appellant to his former position in a position working with young and vulnerable people as a Youth Custodial Officer. The Commission’s powers are not restricted in the same way in this matter. 

39      The respondent says the message on 14 March 2024, considered in the context of earlier text messages that the applicant sent to Mr Porter in 2023, amount to improper conduct and intimidation or inducement. I find that the earlier messages are the applicant attempting to confirm whether Mr Porter had complained about the applicant’s behaviour as asserted by the respondent. In their text message exchange both the applicant and Mr Porter are frank and blunt. The text message on 14 March 2024 repeats a strongly put request by the applicant for Mr Porter to have a conversation with him. In my view the earlier text messages do not change how the text message in March is to be viewed.

40      Applying the principles set out in Librizzi and adopted by the Full Bench in Palaloi, and those adopted by the Board in Brown, I am of the view the message sent on 14 March 2024 was not an attempt to have the witness change their evidence by coercion or intimidation.

41      Balancing the considerations set out in [25] in Palaloi, requiring a clear case to exercise the powers available under s 27(1)(a) of the IR Act, I am not of the view that the text message is such that it brought illegitimate pressure to bear on the witness and had the tendency to interfere in the Commission determining a matter justly.

42      For the reasons set out above, I dismiss the respondent’s application to dismiss the application.