CITATION : 2013 WAIRC 00830 CORAM : PUBLIC SERVICE APPEAL BOARD COMMISSIONER S J KENNER- CHAIRMAN MR G BROWN - BOARD MEMBER MR A LYON - BOARD MEMBER HEARD : THURSDAY, 7 MARCH 2013, MONDAY, 16 SEPTEMBER 2013, TUESDAY, 17 SEPTEMBER 2013 DELIVERED : WEDNESDAY, 2 OCTOBER 2013 FILE NO. : PSAB 3 OF 2013 BETWEEN : MARIA ELIZABETH RE Appellant AND THE INSPECTOR OF CUSTODIAL SERVICES Respondent 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1777 Catchwords : Industrial law (WA) – Termination of employment – Appeal against the decision of the respondent to terminate employment – Misconduct – Appellant sought a remedy not open to the Public Service Appeal Board – Application made under s 27(1)(a) of the Industrial Relations Act 1979 – Power of the Public Service Appeal Board to grant a remedy – Meaning of “adjust” in s 80I of the Industrial Relations Act 1979 – Breach of duty of good faith and fidelity – Appeal had no reasonable prospect of success – Appeal dismissed Legislation : Health Act 1911 (WA) s 31; Industrial Relations Act 1979 (WA) ss 26, 27(1)(a), 80E(1), 80I, 80I(e); Inspector of Custodial Services Act 2003 (WA) s 47, Pt 4 Div 2, Pt 7; Prisons Act 1981 (WA) s 40; Public Sector Management Act 1994 (WA) ss 80A, 80A(c) Result : Appeal dismissed Representation: Counsel: Appellant : Mr D F Beere Respondent : Mr D Matthews Solicitors: Appellant : Lane Buck & Higgins Respondent : State Solicitor’s Office Case(s) referred to in reasons: Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Concut Pty Ltd v Worrell (2000) 75 ALJR 312 Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266 State Government Insurance Commission v Johnson (1997) 77 WAIG 2169 Reasons for Decision 1 This is the unanimous decision of the Appeal Board. 2 The appellant Ms Re was employed in the public service in Western Australia in various government departments since 1982. She spent the majority of her employment in the Department of Health, between 1994 and 2007. Towards the end of her period of employment in that organisation, Ms Re was responsible for environmental health matters and was appointed as an environmental health officer under s 31 of the Health Act 1911. As an environmental health officer, Ms Re was involved in undertaking environmental health duties in relation to prisons throughout the State. 3 Under s 40 of the Prisons Act 1981, up until 2007, inspections of prisons in relation to environmental health compliance were undertaken by the Department of Health. In 2006, as a consequence of some apparent overlap and confusion of responsibilities between the Department of Health and the respondent, the Inspector of Custodial Services, in relation to such inspections, responsibility for this work was transferred to the Inspector. To facilitate this transfer of responsibility, Ms Re was transferred in her employment from the Department of Health to the Inspector in October 2007. Thereafter, Ms Re carried out these responsibilities as an officer of the Inspector. Office of the Inspector 4 The Inspector is established under the Inspector of Custodial Services Act 2003. The Inspector is constituted as an independent agency to carry out inspections of prisons, detention centres and other places where persons in custody are held. Apart from the Inspector, who is a statutory office holder appointed by the Governor, other staff necessary for the performance of the functions of the Inspector, are appointed under, and subject to, the Public Sector Management Act 1994. The Inspector was established, from Parliamentary materials as: “an autonomous organisation, outside the executive arm of government … The inspector will have the capacity to research world best practice with regard to custody services and will develop programs of announced and unannounced inspections and will also conduct thematic reviews on any aspect of custody deemed to be appropriate. This will provide Parliament with independent, informed advice about the treatment and conditions of prisoners and the extent to which the objectives of imprisonment are being achieved.” (Hansard 15 September 1999 p 1183) 5 The powers of the Inspector to discharge his functions under the ICS Act are broad and are set out in Part 4 Division 2. The Inspector and his staff have unfettered access to all prisons, detention centres and other places where persons in custody are located. Given the nature of the work undertaken by the Inspector, and its obligation to report on its work directly to the Parliament, confidentiality in the day to day operations of the office is obviously important. This is dealt with in Part 7 of the ICS Act. Under s 47 of the ICS Act, it is an offence for a person to disclose information obtained by the Inspector or his staff in relation to a function to be performed under the legislation. 6 As the work of the Inspector involves the oversight of prisons run by the Department of Corrective Services, obviously, an appropriate and professional relationship between the two organisations must be maintained at all times. 1778 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. Dismissal – the conduct and the appeal 7 It is against this background that the present appeal proceedings come before the Appeal Board. Ms Re was dismissed from her level 6 position with the Inspector on 21 December 2012. Ms Re was dismissed following the discovery of a large number of emails between herself and principally, Ms Rozlyn Marshall, an officer of the DCS. The emails, sent between August 2009 and January 2012, fall, in the main, into four broad categories, they being: (a) Inappropriately revealing the internal deliberation process of the Office of the Inspector; (b) Inappropriately criticising fellow staff of the Inspector and the Inspector himself; (c) Revealing the contents of and sending copies of confidential documents to persons outside of the Office of the Inspector; and (d) Inappropriately criticising the Office of the Inspector. 8 There were also four other allegations made against Ms Re, which are not necessary to deal with for the purposes of these proceedings. All of the allegations against Ms Re, including a copy of the relevant email communications, were sent to her for the purposes of giving her an opportunity to be heard. 9 The Inspector maintained that the conduct of Ms Re was a fundamental breach of the term of fidelity and good faith implied into her contract of employment with the Inspector. On the other hand, Ms Re maintained that the communications she had, principally with Ms Marshall, were as a result of a situation she found herself in at the Inspector. Ms Re says that the position and duties she formerly held at the Department of Health were subsequently downgraded by the Inspector, and this resulted in her dissatisfaction with her work arrangements. 10 It is important to observe at this juncture, that the conduct complained of by the Inspector is not contested. The Inspector filed a detailed notice of answer to the appeal and attached a copy of the communications complained of, which documents are quite voluminous. The existence of the documents and that they were sent by Ms Re is admitted. What was said by Ms Re however, is that taken in context, the conduct did not warrant dismissal. A lesser penalty, such as a reprimand or a fine, should have been imposed instead. Ms Re therefore seeks to overturn the penalty of dismissal. The course of the proceedings 11 The appeal was listed for three days commencing on Monday 16 September 2013. The first day of the proceedings involved hearing evidence from Ms Marshall and also some evidence in chief from Ms Re. On the second day of the appeal, at the conclusion of her evidence in chief, Ms Re was asked some questions by her counsel in relation to what she was seeking by way of relief, if she was successful on her appeal. The following exchange took place between counsel and Ms Re: “Now, if the Board is persuaded to reinstate you, do you see it as - given your correspondence, do you see it as a feasible situation that you should recommence employment with OICS or somewhere else? --- I think a lot of the staff that actually were working in OICS were fantastic and I still see a lot of the staff socially, so personally - but with the new staffing and the culture, no, I don't ever want to go back there and work again, unfortunately, because it was a really good job and it was really a nice lot of people, as I said that I still see, but, no, I don't want to go to work in OICS again. So if you were reinstated, what - how do you seek to address that problem? --- Under the - which I've done in my position over the years, we have the unattached list in the public service. We used to be called “Supernumeraries” and in situations similar to this, we'd put people on the unattached list, the supernumerary list and that gives them - I think it's a two-year opportunity to find another job. So that's where you think - you think that would be the appropriate course of action if you were reinstated? --- Yes, yes. But you accept that going back to OICS is untenable because of the emails you've sent, particularly those criticising Professor Morgan? --- Yes. And I would be fearful considering how - with the procedural fairness - unfairness that went on, I felt I was targeted when I was there and now I'm not there and I feel more targeted, so - - - But that's not the question I asked you? --- No. In the context of your emails which commented on a number of staff members, but including Professor Morgan, would you accept that it would not be tenable for you to go back and work at OICS?--- Yes, I do - - - From his perspective? --- Yes. I totally agree. From both sides, yes, I agree.” 12 This prompted an immediate response by counsel for the Inspector. The Inspector contended that it was clear from the testimony of Ms Re, that she was not genuinely seeking to overturn the decision of the Inspector to dismiss her, and to be reinstated. She was seeking in effect, a remedy, by an order of the Appeal Board, to be placed on the “unattached list” in the public service. In any event, the Inspector contended that Ms Re did not seek to go back into her employment with the Inspector, and accepted on her evidence, that to do so would be untenable in the circumstances. The Inspector’s counsel then made an application that the appeal be dismissed under s 27(1)(a) of the Act on two bases: (a) That the remedy sought by Ms Re was not one open to the Appeal Board under s 80E(1) of the Act and that Ms Re was not genuinely seeking to adjust the decision to dismiss her by being reinstated; and (b) In any event, taking the evidence led on behalf of Ms Re at its highest, Ms Re’s appeal was bound to fail. 13 The Inspector contended that the application under s 27(1)(a) should be granted. As to (a) above, the Inspector submitted that it was clear from Ms Re’s testimony, that she did not genuinely wish to return to the employment of the Inspector. It was submitted that what Ms Re was in reality really seeking, was an order from the Appeal Board, as a first step only in her larger plan to exit the organisation of the Inspector. The submission was that the relief sought by Ms Re was not an order capable of being made by the Appeal Board and that Ms Re did not want to pursue the only remedy the Appeal Board can order in these 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1779 proceedings, that being an order of reinstatement. Thus, on this submission of the Inspector, the Appeal Board should not entertain this intention. 14 Further, even if, which was denied, the Appeal Board did have jurisdiction to grant the relief sought by Ms Re, to either “transfer” her to some other employer in the public sector, or grant some other remedy, the Inspector contended that there was no basis for such an order before the Appeal Board. No such third party was a party to these proceedings, and no evidence or other material was before the Appeal Board, to provide the basis for any such order being given effect. 15 For Ms Re, counsel submitted that the evidence of Ms Re was given in order to paint a picture that she recognised the problem in the working relationship between her and the Inspector. Furthermore, in relation to the powers of the Appeal Board, in reliance on s 80A of the PSM Act, counsel contended that it was open to the Appeal Board to reinstate Ms Re and to then, by directions or otherwise, leave the appropriate disciplinary response to the Inspector. In this case, Ms Re obviously had in mind a transfer under s 80A(c) of the PSM Act. As the proceedings before the Appeal Board are in the nature of a hearing de novo, it was open for the Appeal Board to make a decision that the Inspector should have made in the first place. 16 As to the second limb of the s 27(1)(a) application, counsel for Ms Re contended that there was no basis for the Inspector to dismiss Ms Re, given her twenty years of tenure as a public servant. The conduct of Ms Re, which was admittedly unprofessional, resulted from the changes to her position, on Ms Re’s submission in that the environmental health concerns that Ms Re raised with the Inspector, were not adequately addressed. Consideration 17 After adjourning for a short period to consider the s 27(1)(a) application, the Appeal Board announced its decision to uphold the application and to dismiss the appeal. These are our reasons for so concluding. Statutory framework 18 This appeal comes before the Appeal Board under s 80I of the Act which is in the following terms: 80I. Board’s jurisdiction (1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine — (a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers; (b) an appeal by a government officer, who is the holder of an office included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975, under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section; (c) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary not lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed; (d) an appeal by a government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section; (e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed, and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e). (2) In subsection (1) prescribed salary means the lowest salary for the time being payable in respect of a position included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975. (3) A Board does not have jurisdiction to hear and determine an appeal by a government officer from a decision made under regulations referred to in section 94 of the Public Sector Management Act 1994. 19 In this case, the appeal is against the decision of the Inspector to dismiss her under s 80I(e). It is the “decision or determination” to dismiss, that is the subject of the appeal. No other decision or finding, is or indeed could be, challenged in the present circumstances. 20 The powers of the Appeal Board as to remedy are limited. On the determination of an appeal, other than in dismissing it, the Appeal Board has the power to “adjust” the decision to dismiss. The meaning of the power to “adjust” was considered by the Industrial Appeal Court in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169. In this case, the appellant before the Appeal Board sought an order by way of a declaration that he had been unfairly dismissed and an order of compensation. The issue of the jurisdiction of the Appeal Board to make such an order was raised. This question of law was referred to the Full Bench of the Commission, which answered the question in the affirmative, that the Appeal Board did have jurisdiction to make such an order. On appeal to the Industrial Appeal Court, the appeal was allowed and the decision of the 1780 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. Full Bench was set aside. The leading judgement of Anderson J considered the meaning of “adjust” in s 80I of the Act and his Honour said at 2170: “The word “adjust” has various applications in common parlance and in any given case it obtains its precise meaning or sense from the context in which it is used. In this legislation, the context is provided by each of the paragraphs (a) to (e) of s 80I(1) and in the case under consideration the context is provided by para (e). The only “matter” which is referred to in that paragraph is “a decision, determination or recommendation ... that the Government officer be dismissed”. It is that, and only that, which may be “adjusted” in the exercise of this particular aspect of the Board’s jurisdiction. The power to “adjust” a decision or determination can only be a power to reform the decision in some way. In the case of a decision or determination by an employer to dismiss an employee with one month’s pay in lieu of notice, the most obvious way to do that would be to reverse it. Whether there may be other ways of adjusting such a decision is perhaps an open question. It may be arguable that the power to adjust a decision of dismissal includes a power to adjust the period of notice. The issue does not arise in this case because no such adjustment was sought by the respondent. He made no claim to reform the decision in that way, that is, by altering the period of notice. He made only a claim for monetary compensation on the ground that the decision of dismissal itself was unfair. Hence, the Board was not asked to change the decision in any way. To give compensation to a dismissed employee is perhaps to change and thus to adjust the rights and obligations flowing from the decision to dismiss, or to super-add a consequence to the decision to dismiss, but it is not to adjust the decision to dismiss.” 21 In the context of the present matter, the Appeal Board only has the jurisdiction to adjust the decision to dismiss Ms Re. There is no power to substitute for the decision to dismiss Ms Re, another and entirely different decision to, for example, transfer Ms Re to another government department. The remedy open in this case is one of reversing the decision to dismiss Ms Re and reinstating her to her former employment with the Inspector. Ms Re did not seek for example, an adjustment to the period of notice of her dismissal. Reinstatement is a course that plainly, on the testimony of Ms Re, she does not genuinely seek. Ms Re sought a remedy not open to the Appeal Board. 22 Counsel for Ms Re referred to the hearing before the Appeal Board as a hearing de novo. Whilst the proceedings are described as de novo, in the context of Appeal Board proceedings, the concept is used in the sense that the Appeal Board, in an appeal, is placed in the position of assessing the evidence and deciding for itself, whether the conduct complained of actually occurred. This is opposed to the approach of the Commission in an unfair dismissal case for example, where the Commission is required to objectively assess whether the employer’s decision was reasonably open to it, without sitting in the managerial chair itself. This distinction, which is an important one, was referred to in Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266, where it was observed: “The nature of an appeal made under section 80I(1)(e) is somewhat different from the authority ordinarily given to the Commission to enquire into whether a dismissal is fair or not. The decided cases make it clear that in claims of unfair dismissal per se the Commission is not to act as an appellate court and substitute its own view as if it were the employer, but rather determine whether the employer's conduct was in all the circumstances reasonable. Hence in cases of misconduct the test is not whether to the satisfaction of the Commission the misconduct occurred, but whether the employer had a reasonable suspicion amounting to a belief that the misconduct had in fact occurred (see Mavromatidis v. TNT Pty Ltd (1987) 67 WAIG 1650). However, these proceedings are expressly an appeal, with the Appeal Board being given the power "to adjust" a decision to dismiss an employee. The onus is of course on the Appellant to show that the Board should interfere with and adjust the decision. However, as with promotion appeals the decision is to be reviewed de novo on the basis of the evidence before the Board, not merely on the basis of whether the decision maker made the right decision on the evidence available to it at the time (cf: Colpitts v. Australian Telecommunications Commission (1986) 20 IR 184). The process afforded by section 80I is such that the Commission, constituted by an Appeal Board, is given a greater license to substitute its own view. Although as Mr Burns so rightly said the dismissal was lawful, the matter does not end there. Where as here the dismissal was based on a particular act of misconduct, albeit that there are parts to it, the Board, as part of the appellate process, is required to enquire into that allegation, if as is the case, the Appellant denies the [C]ommission of such misconduct. If on appeal the act of misconduct is not shown to have occurred, then the very basis for the decision under appeal, in this case the decision to dismiss, is lost.” 23 These proceedings are an appeal from a decision to dismiss. As in Johnson, the obvious and appropriate way of adjusting the decision in this case is to overturn it. 24 There is, however, another important issue in this case. That is a question of discretion. Ms Re at the conclusion of her testimony, made it plain that she does not wish to restore her working relationship with the Inspector. Whilst her counsel valiantly attempted to describe the basis for that testimony, the import of it was very clear. Any order of reinstatement, even if it were to be made, would only be, as counsel for the Inspector put it, part of a tactical approach to find a way to leave the Inspector’s employment. To proceed to hear the rest of the appeal, and if Ms Re was to be successful, make an order of reinstatement, in the view of Ms Re’s testimony, would be contrary to equity and good conscience under s 26 of the Act. The Appeal Board’s jurisdiction would have been invoked, ultimately to achieve an ulterior purpose. We turn now to consider the second limb of the Inspector’s application. The merits 25 The second basis for the Inspector’s application was that, taken at its highest, on the evidence led in Ms Re’s case, her appeal had no real prospect of success. For reasons to follow, we agree with that submission. The conduct of Ms Re, without question, constituted a flagrant disregard for her obligations as an employee, and as a fiduciary, and was a clear breach of her duty of good faith and fidelity to her employer: Concut Pty Ltd v Worrell (2000) 75 ALJR 312; Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 . 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1781 26 As we have already mentioned, the fact of the emails, and the fact that they constituted misconduct, is not disputed. We have considered all of the emails sent by Ms Re to Ms Marshall and the responses from Ms Marshall. We have also considered the documents attached to and referred to in those communications. There is no question from their content, and we do not need to refer to them all, that allegation one as set out in the Inspector’s first letter setting out the allegations, as to a serious breach of discipline, is made out. The documents, taken individually, and as a course of dealing over approximately two and a half years, speak for themselves. The fact that Ms Re was a senior and experienced officer, who also holds responsible positions in the community, makes the course of conduct she engaged in all the more startling. This is not a case of a junior and naïve employee, “letting off steam” with a person outside of their employer’s organisation, on one or two occasions. That sort of conduct may be excusable and be appropriately dealt with by a reprimand and counselling, as to appropriate standards of professional behaviour. 27 Perhaps the “high water mark” of the misconduct engaged in by Ms Re, is revealed in a series of email exchanges with Ms Marshall on 6 and 7 October 2011. The trigger for the exchange appears to be the sending by the Inspector, of an extract of Hansard to all staff of the Inspector, in relation to a Bill to amend the ICS Act in the Parliament. One purpose of the email from the Inspector to his staff, was to draw attention to positive comments made by the then Minister for Corrective Services, as to the work of the Inspector. The Inspector’s email to his staff, attaching the Hansard extract, was forwarded by Ms Re to Ms Marshall. The email string is as follows: From: Neil Morgan Sent: Thursday, 6 October 2011 3:32 PM To: OICS Subject: New Bill FYI, I have pasted below a copy of the second reading speech from 28 September 2011. It includes some positive comments about the standard of work coming from the Office over the years (emphasis added!). I have also attached (i) a copy of the government's response to the Ward inquest (from 2009) where Minister Porter outlines the aims of the government in giving us new powers; (ii) a copy of the Bill itself; and (iii) a copy of the Explanatory memorandum. Regards Neil [Extract from second reading speech omitted] From: Elizabeth Re [mailto:elizabeth.re@custodialinspector.wa.gov.au] Sent: Thursday, 6 October 2011 3:34PM To: Marshall, Rozlyn Subject: FW: New Bill Who side is terry on ? From: Marshall, Rozlyn [mailto:Rozlyn.Marshall@correctiveservices.wa.gov.au] Sent: Thursday, 6 October 2011 3:39 PM To: Elizabeth Re Subject: RE: New Bill This speech was written by DotAG! From: Elizabeth Re [mailto:elizebeth.re@custodialinspector.wa.gov.au] Sent: Thursday, 6 October 2011 3:45 PM To: Marshall, Rozlyn Subject: RE: New Bill We have to do something? thoughts From: Marshall, Rozlyn [mailto:Rozlyn.Marshall@correctiveservices.wa.gov.au] Sent: Thursday, 6 October 2011 3:47 PM To: Elizabeth Re Subject: RE: New Bill there needs to be a well crafted parliamentary question written up that will make the press take notice. They are the ones who will ask the hard questions about wasting tax payer funds. 1782 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. From: Elizabeth Re [mailto:elizebeth.re@custodialinspector.wa.gov.au] Sent: Thursday, 6 October 2011 3:48 PM To: Marshall, Rozlyn Subject: RE: New Bill If you can think of a good one that will make DCS look good and OICS not then let me know and I will see who I can give it to From: Marshall, Rozlyn [mailto:Rozlyn.Marshall@correctiveservices.wa.gov.au] Sent: Thursday, 6 October 2011 3:51 PM To: Elizabeth Re Subject: RE: New Bill The issues paper written about the YAF was taken word for word from a briefing made by Heather Harker to OICS. How come so many recommendations are now being supported as Departmental initiatives? Because they're nothing we didn't already know. How come everyone involved in the Ward death was fined except OICS - who got more money - what is their role in protecting prisoners and providing a safe and just corrections system?? What did they do to prevent Ward's death? Nothing! From: Elizabeth Re [mailto:elizebeth.re@custodialinspector.wa.gov.au] Sent: Thursday, 6 October 2011 5:12 PM To: Marshall, Rozlyn Cc: lizre(h) Subject: RE: New Bill Ok I will see if some one can ask the questions From: Marshall, Rozlyn [mailto:Rozlyn.Marshall@correctiveservices.wa.gov.au] Sent: Friday, 7 October 2011 8:09 AM To: Elizabeth Re Cc: lizre(h) Subject: RE: New Bill [] y 'report to Parliament' so why do they only ever send all their recommendations directly at us? Why aren't they recommending directly to Government that 'issues' or 'risks' need to be fixed? Because then Government might have to do something or really take them seriously. From: Elizabeth Re Sent: Friday, 7 October 2011 10:00 AM To: 'Marshall, Rozlyn' Cc: lizre(h) Subject: RE: New Bill Ok I sent an email to Lisa Harvey last night from home and I will send one to southlands tonight 28 In many respects, this is a remarkable exchange. The exchange has nothing to do with the environmental health aspects of Ms Re’s job with the Inspector. The exchange evidences both Ms Marshall and Ms Re conspiring to cause damage to and embarrass the Inspector, both in the Parliament and in the media. This is the organisation that was paying Ms Re’s substantial salary. It is difficult to imagine a more serious breach of the implied obligation of fidelity and good faith that Ms Re owed to her employer. It also raises serious questions as to Ms Marshall’s conduct as a public servant. Her disdain for the Office of the Inspector was quite plain from her testimony. This exchange must also be viewed in the context of the obvious necessity for there to be a professional and “arms’ length” relationship between the two organisations. 29 This conduct alone, in our view, taken in isolation from all of the other acts of misconduct, would warrant in itself, the employer summarily dismissing Ms Re for serious misconduct. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1783 30 Whilst there was evidence that Ms Re was under some stress over the period of her employment with the Inspector, we do not accept that as a justification for her conduct. There was also evidence before the Appeal Board, of other legal proceedings that Ms Re was engaged in over a similar period in connection with her position as a local government councillor. As a matter of public record, Ms Re, in a newspaper article, referred to the stress that these proceedings were causing her and her family. 31 Ms Re plainly had a range of options to deal with the situation that she found herself in. If she was unable to resolve her dissatisfaction with the nature of her duties within the Inspector, she could have sought a transfer under the PSM Act, to another organisation. Furthermore, she also could have sought employment outside the public sector. What she should not have done, was to attack her employer’s organisation as she did. In our view, it is difficult to see what other response than dismissal the Inspector could have had under s 80A of the PSM Act, given the gravity of the misconduct. 32 For all of those reasons, we are fortified in our view that the appeal, on the strength of the evidence of Ms Re’s case, had no reasonable prospect of success and also supported the dismissal of the appeal under s 27(1)(a) of the Act. RECLASSIFICATION APPEALS— 2013 WAIRC 00963 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPLICANT -v- DIRECTOR GENERAL DEPARTMENT FOR CHILD PROTECTION RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE MONDAY, 11 NOVEMBER 2013 FILE NO PSA 20 OF 2011 CITATION NO. 2013 WAIRC 00963 Result Application dismissed Order WHEREAS this is a reclassification appeal made pursuant to the Industrial Relations Act 1979; and WHEREAS on the 8th day of November 2013 the applicant advised by telephone that it no longer required the file to remain open; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] Public Service Arbitrator. 2013 WAIRC 00964 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPLICANT -v- DIRECTOR GENERAL DEPARTMENT FOR CHILD PROTECTION RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE MONDAY, 11 NOVEMBER 2013 FILE NO PSA 21 OF 2011 CITATION NO. 2013 WAIRC 00964 1784 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. Result Application dismissed Order WHEREAS this is a reclassification appeal made pursuant to the Industrial Relations Act 1979; and WHEREAS on the 8th day of November 2013 the applicant advised by telephone that it no longer required the file to remain open; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] Public Service Arbitrator. 2013 WAIRC 00965 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPLICANT -v- DIRECTOR GENERAL DEPARTMENT FOR CHILD PROTECTION RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE MONDAY, 11 NOVEMBER 2013 FILE NO PSA 23 OF 2011 CITATION NO. 2013 WAIRC 00965 Result Application dismissed Order WHEREAS this is a reclassification appeal made pursuant to the Industrial Relations Act 1979; and WHEREAS on the 8th day of November 2013 the applicant advised by telephone that it no longer required the file to remain open; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] Public Service Arbitrator. EMPLOYMENT DISPUTE RESOLUTION MATTERS—Notation of— The following were matters before the Commission under the Employment Dispute Resolution Act 2008 that concluded without an order issuing. Application Number Matter Commissioner Dates Result APPL 40/2013 Dispute re issues between employees Harrison C 29/08/2013 Concluded APPL 55/2013 Request for mediation re termination of employment Harrison C 1/10/2013 Concluded 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1785 OCCUPATIONAL SAFETY AND HEALTH ACT—Matters Dealt With— 2013 WAIRC 00932 DISPUTE RE DUTIES AND EMPLOYMENT THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL PARTIES ROBERT KIETH FRASER APPLICANT -v- PATRICK PROJECTS AUSTRALIA MARINE COMPLEX, HENDERSON RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE WEDNESDAY, 30 OCTOBER 2013 FILE NO/S OSHT 3 OF 2013 CITATION NO. 2013 WAIRC 00932 Result Order issued Representation Applicant Ms L Morich and Mr RK 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 the matter was listed for hearing on 30 October 2013; AND WHEREAS at the hearing it became clear that the respondent had been incorrectly named; AND WHEREAS the Commission formed the view that is was appropriate to amend the respondent’s name; AND WHEREAS the parties agreed to amend the respondent’s name; NOW THEREFORE, I the undersigned, pursuant to the powers conferred on me under the Industrial Relations Act 1979, hereby order – THAT the name Patrick Projects Australia Marine Complex, Henderson be deleted and Patrick Projects Pty Ltd inserted in lieu thereof. (Sgd.) S M MAYMAN, [L.S.] Commissioner. VOCATIONAL EDUCATION AND TRAINING ACT 1996—Appeals dealt with— 2013 WAIRC 00922 APPEAL RE TERMINATION OF TRAINING CONTRACT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PAUL BATE APPLICANT -v- EXECUTIVE OFFICER, DEPARTMENT OF TRAINING AND WORKFORCE DEVELOPMENT RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 28 OCTOBER 2013 FILE NO/S APA 1 OF 2013 CITATION NO. 2013 WAIRC 00922 Result Appeal discontinued Representation Applicant No appearance Respondent No appearance 1786 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. Order WHEREAS the applicant filed a notice of discontinuance, the Western Australian Industrial Relations Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT the application be and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2013 WAIRC 00923 APPEAL RE TERMINATION OF TRAINING CONTRACT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JOVAN NIKOLOV APPLICANT -v- EXECUTIVE OFFICER, DEPARTMENT OF TRAINING AND WORKFORCE DEVELOPMENT RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 28 OCTOBER 2013 FILE NO/S APA 2 OF 2013 CITATION NO. 2013 WAIRC 00923 Result Appeal discontinued Representation Applicant No appearance Respondent No appearance Order WHEREAS the applicant filed a notice of discontinuance, the Western Australian Industrial Relations Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT the application be and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL—Matters Dealt With— 2013 WAIRC 00841 REFERRAL OF DISPUTE RE RATE OF PAY IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL PARTIES MARK WILLIAM TISCHLER APPLICANT -v- COCKBURN TRANSPORT RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 7 OCTOBER 2013 FILE NO/S RFT 6 OF 2012 CITATION NO. 2013 WAIRC 00841 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1787 Result Application discontinued Representation Applicant Mr H Boghossian of counsel Respondent Mr P Patterson of counsel Order HAVING heard Mr H Boghossian of counsel on behalf of the applicant and Mr P Patterson of counsel on behalf of the respondent 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. (Sgd.) S J KENNER, [L.S.] Commissioner. ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL—Notation of— The following were matters before the Commission sitting as the Road Freight Transport Industry Tribunal pursuant to s 38 of the Owner-Drivers (Contracts and Disputes) Act 2007 that settled prior to an order issuing. Parties Commissioner Application Number Dates Matter Result David Whitehead Star Track Express Pty Limited, T/as Star Track Express Kenner C RFT 8/2013 N/A Referral of dispute Discontinued