CITATION : 2014 WAIRC 00090 CORAM : COMMISSIONER J L HARRISON HEARD : TUESDAY, 17 DECEMBER 2013 DELIVERED : MONDAY, 10 FEBRUARY 2014 FILE NO. : APPL 52 OF 2013 BETWEEN : STEVEN LOCKWOOD Applicant AND DIRECTOR GENERAL, DEPARTMENT OF EDUCATION Respondent Catchwords : Industrial law - Breaches of discipline - Appeal against findings and penalties imposed on a Principal - Claim that decision harsh, oppressive or unfair - Preliminary issues - Whether appeal should be heard as a hearing de novo - If hearing de novo, whether harsher sanction may be applied - Application to be heard as hearing de novo - Commission has power to apply different penalty Legislation : Industrial Relations Act 1979 s 26(1)(c) and s 29(1)(b) Public Sector Management Act 1994 s 78(2) and s 80 Result : Declaration issued Representation: Counsel: Applicant : Mr S Kemp Respondent : Mr D Matthews Solicitors: Applicant : Jackson McDonald Respondent : State Solicitor’s Office Case(s) referred to in reasons: Anca Flynn v Paul Albert, Director General Department of Education and Training (2005) 85 WAIG 770 Geoffrey Johnston v Mr Ron Mance, Acting Director General Department of Education (2002) 83 WAIG 1553 Minister for Health v Denise Drake-Brockman (2012) 92 WAIG 203 Sangwin v Imogen Pty Ltd (1996) IRCA 100 Reasons for Decision 1 This application has been lodged by Steven Lockwood (the applicant). The Director General, Department of Education (the respondent) found the applicant guilty of committing four breaches of discipline under s 80 of the Public Sector Management Act 1994 (PSM Act) in August 2013. The respondent disciplined the applicant by transferring him to another primary school, he was reprimanded and fined four days’ pay and he was required to be performance managed and undertake training. He is aggrieved by the respondent’s sanctions and he appeals this decision pursuant to s 78(2) of the PSM Act and s 29(1)(b) of the Industrial Relations Act 1979 (the Act). 2 Two preliminary issues were raised by the respondent with respect to how this application is to be dealt with. These issues are whether this application should be heard as an appeal de novo and if this is to occur whether the Commission can impose a harsher sanction than that imposed by the respondent. Submissions Respondent 3 The respondent concedes that an applicant aggrieved by a decision referred to the Commission under s 78(2) of the PSM Act can have his or her application dealt with as a hearing de novo. However, there are exceptions to this and this case falls within 156 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. such an exception (see Minister for Health v Denise Drake-Brockman (2012) 92 WAIG 203). In the alternative if a hearing de novo is held there is no need to consider any challenge to the procedure followed by the respondent. 4 The respondent argues that a hearing de novo should not be held because the respondent had reasonable grounds to believe on the information available to it at the time that the applicant was guilty of the misconduct alleged (see Minister for Health v Denise Drake-Brockman; Sangwin v Imogen Pty Ltd (1996) IRCA 100). If the respondent had a belief and reasonable grounds for deciding that the applicant had gone too far in the use of force on students on the information available to it at the time, this is sufficient for the respondent to take action with respect to the applicant’s conduct. The use of force on a school child is the kind of case where it is sufficient that a belief of misconduct is reasonably held by the respondent to take action and it is therefore not appropriate for the Commission to conduct a hearing de novo and decide for itself at a much later time and on fresh evidence whether the applicant’s misconduct occurred. 5 The respondent relies on s 26(1)(c) of the Act which requires the Commission to have regard to the interests of the persons immediately concerned as well as the community when deciding how to deal with this application. The respondent argues that it is not in the interests of children to be involved in a hearing de novo and that child witnesses should not be required to give evidence a long time after the event has occurred. The respondent claims that the applicant’s interests are sufficiently met by the respondent having held an inquiry and the applicant being involved in that inquiry and as the applicant can challenge the procedure the respondent used to form the view that he misconducted himself this can be the appropriate process to review the respondent’s decision and this does not involve children having to give evidence. In the alternative, if the Commission does not accept the respondent’s submission that as a matter of general principle these kinds of cases should not be held as hearings de novo then the respondent submits that the Commission should exercise its discretion not to hold a hearing de novo in this particular case as the applicant has not been dismissed and he remains at the same classification level. 6 If a hearing de novo is held the Commission will hear all of the evidence and form its own assessment about the applicant’s conduct. The respondent therefore argues that if a hearing de novo is held the only issues that should be dealt with are those relating to merit because any alleged procedural flaws will be cured on a hearing of all of the evidence. The respondent submits that if the Commission is going to hear the evidence afresh and stand in the shoes of the employer it is not consistent with the objects and role of the Commission to spend time hearing and determining whether the respondent’s procedure was a sufficiently good one in this case. 7 As the Commission will stand in the shoes of the employer there is no reason why it should not be in a position to determine an appropriate penalty which could be a more serious penalty than that already imposed on the applicant (see Anca Flynn v Paul Albert, Director General Department of Education and Training (2005) 85 WAIG 770). Applicant 8 The Commission can rehear an application afresh and review the employer’s decision de novo (see Geoffrey Johnston v Mr Ron Mance, Acting Director General Department of Education (2002) 83 WAIG 1553 where Kenner C determined that the Commission is not limited to determining the reasonableness of the employer’s decision). 9 The nature of the challenge to the decision in this matter relates not only to the procedure but whether the applicant misconducted himself, as well as the harshness of the sanction applied. Given this the applicant seeks that the matter be heard de novo with evidence to be led by the parties and a decision given on the evidence presented at the hearing and if the Commission does not hear all of the evidence relevant to the allegations made against the applicant it will be unable to determine whether the respondent acted upon a correct factual basis. 10 The Commission does not have the power to impose a harsher sanction than that imposed on the applicant by the respondent. The possibility of harsher sanctions could only arise if the respondent imposed a lenient sanction in the first instance and the investigation report was flawed and omitted evidence that was available that would justify a harsher sanction or new allegations are raised at the hearing. The applicant submits that none of these matters have been proposed in the respondent’s Notice of Answer and Counter Proposal and any new allegations relating to the applicant should be dealt with under the processes contained in the PSM Act. The Commission should therefore find that it does not have the power to impose a harsher sanction. Consideration 11 When taking into account the nature of the matters and issues raised in the appeal, I find that it is appropriate in this instance to hear this application as a hearing de novo. It is not in contest that the Commission has the power to hear this application as a hearing de novo and I am not persuaded that in this instance it is inappropriate for this to occur. In my view the Commission should review the facts relevant to this matter to determine if the applicant misconducted himself with respect to the conduct which was alleged to have occurred. All but one of the allegations against the applicant relate to his alleged behaviour towards children which are very serious matters, the conclusions about which may have significant consequences for the applicant, the respondent and the children. In the circumstances I find that the applicant should not be denied the opportunity to have the facts relevant to the allegations made against him reviewed by the Commission notwithstanding that the respondent had a genuine belief on the information before it that the applicant had committed the misconduct alleged against him and the applicant remains employed by the respondent. Even though children may be required to give evidence if a hearing de novo is held, in my view this issue can be dealt with in an appropriate manner. 12 As the Commission can substitute its own decision to that of an employer when a hearing de novo takes place I find that the Commission has the power to determine the nature of any penalty which may apply arising out of the conclusions reached by the Commission. It follows that the Commission may reach a different penalty than that determined by the respondent in the first instance. 13 I declare accordingly. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 157 2014 WAIRC 00097 APPEAL AGAINST DECISION OF EMPLOYER WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES STEVEN LOCKWOOD APPLICANT -v- DIRECTOR GENERAL, DEPARTMENT OF EDUCATION RESPONDENT CORAM COMMISSIONER J L HARRISON DATE THURSDAY, 13 FEBRUARY 2014 FILE NO. APPL 52 OF 2013 CITATION NO. 2014 WAIRC 00097 Result Declaration issued Representation Applicant Mr S Kemp (of counsel) Respondent Mr D Matthews (of counsel) Declaration HAVING HEARD Mr S Kemp of counsel on behalf of the applicant and Mr D Matthews of counsel on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby declares – 1. THAT it is appropriate to hear this application as a hearing de novo. 2. THAT when the hearing de novo takes place the Commission can determine any penalty which may be appropriate to apply to the applicant. (Sgd.) J L HARRISON, [L.S.] Commissioner. OCCUPATIONAL SAFETY AND HEALTH ACT—Matters Dealt With— 2014 WAIRC 00022 DISPUTE RE DUTIES AND EMPLOYMENT THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL PARTIES ROBERT KIETH FRASER APPLICANT -v- PATRICK PROJECTS PTY LTD RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE TUESDAY, 21 JANUARY 2014 FILE NO/S OSHT 3 OF 2013 CITATION NO. 2014 WAIRC 00022 Result Application discontinued Representation Applicant Ms L Morich and Mr R K Fraser Respondent Ms L Cordone (of counsel) and Ms M Storey Order WHEREAS this is an application pursuant to the Occupational Safety and Health Act 1984; AND WHEREAS this matter was listed for hearing on 30 October 2013; AND WHEREAS on 14 January 2014 the applicant file a Notice of Discontinuance; 158 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. NOW THEREFORE, I the undersigned, pursuant to the powers conferred under the Occupational Safety and Health Act 1984, hereby order – THAT this application be, and is hereby, discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2014 WAIRC 00070 REFERRAL OF DISPUTE THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL PARTIES MARGARET MORRISON APPLICANT -v- PATHWEST - KING EDWARD MEMORIAL HOSPITAL RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE TUESDAY, 4 FEBRUARY 2014 FILE NO/S OSHT 4 OF 2013 CITATION NO. 2014 WAIRC 00070 Result Application discontinued Representation Applicant Ms M Morrison Respondent Mr D Leigh (of counsel) Order WHEREAS this is an application pursuant to the Occupational Safety and Health Act 1984; AND WHEREAS on 11 and 28 November 2013 conferences between the parties were convened; AND WHEREAS at the conclusion of the conference held on 28 November 2013 no agreement was reached between the parties; AND WHEREAS on 29 January 2014 the applicant filed a Notice of Discontinuance; NOW THEREFORE, I the undersigned, pursuant to the powers conferred under the Occupational Safety and Health Act 1984, hereby order – THAT this application be, and is hereby, discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL—Matters Dealt With— 2014 WAIRC 00103 REFERRAL OF DISPUTE IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL PARTIES DAMIEN COLE PTY LTD APPLICANT -v- SHACAM TRANSPORT PTY LTD RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 14 FEBRUARY 2014 FILE NO/S RFT 3 OF 2013 CITATION NO. 2014 WAIRC 00103 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 159 Result Application dismissed Order HAVING heard Mr J Uphill as agent for the applicant and Mr A Dzieciol of counsel for the respondent, the Commission, sitting as the Road Freight Transport Industry Tribunal, pursuant to the powers conferred on it under the Owner-Drivers (Contracts and Disputes) Act 2007 hereby orders: THAT this application be and is hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2014 WAIRC 00039 IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL PARTIES TRANSPORT WORKERS' UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH APPLICANT -v- T & G ELDER TRANSPORT RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 28 JANUARY 2014 FILE NO/S RFT 5 OF 2013 CITATION NO. 2014 WAIRC 00039 Result Application discontinued Representation Applicant Mr A Dzieciol Respondent Ms C Ebell Order WHEREAS the applicant sought and was granted leave to discontinue the application, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby discontinued by leave. (Sgd.) S J KENNER, [L.S.] Commissioner.