APPEAL AGAINST THE DECISION TO TAKE DISCIPLINARY ACTION ON 29 MARCH 2022 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2023 WAIRC 00660 CORAM :PUBLIC SERVICE APPEAL BOARD COMMISSIONER T B WALKINGTON - CHAIR MR G BROWN - BOARD MEMBER MR N CINQUINA - BOARD MEMBER HEARD : TUESDAY, 25 JULY 2023 DELIVERED : TUESday, 8 August 2023 FILE NO. : PSAB 54 OF 2022 BETWEEN : Margaret Meo Appellant AND Department of Communities Respondent CatchWords : Public Service Appeal Board - Matter dismissed under s 27(1)(a) of the Industrial Relations Act 1979 (WA) – Applicant bound by agreement made in application before the Commission – Finding it would not be in accordance with equity and good conscience for the matter to proceed Legislation : Industrial Relations Act 1979 (WA) Public Sector Management Act 1994 (WA) Result : Appeal dismissed Representation: Appellant : Ms M Meo (in person) Respondent : Mr D Anderson (of counsel) Case(s) referred to in reasons: Foseberry v Mt Newman Mining Co Pty Limited [1988] WAIRC 11882; (1988) 68 WAIG 1882 Jade Smith v Minister for Corrective Services [2022] WAIRC 00848; (2022) 103 WAIG 51 Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595 Meo v Department of Communities & Ors [2023] WAIRC 00224; (2023) 103 WAIG 465 Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689 === REASONS FOR DECISION === These are the unanimous reasons of the Public Service Appeal Board (Board). Ms Margaret Meo is employed by the Director General, Department of Communities (the Department) as an Executive Officer, Level 5. Ms Meo has worked for the Department since 27 January 2019. On 9 February 2022 the Acting Assistant Director General wrote to the appellant notifying her that he suspected her of breaching the Department’s Code of Conduct by not complying with the standards which govern personal and professional conduct. The letter set out six allegations concerning the provision of misleading information as an applicant in recruitment and selection processes and breaches of the Code of Conduct related to inappropriate access and use of emails sent to another person. The Acting Assistant Director General notified the appellant he had commenced a disciplinary investigation pursuant to s 81(1)(a) of the Public Sector Management Act 1994 (WA) (PSM Act) to determine whether the suspected breaches of discipline had been committed by the appellant. On 29 March 2022 the now Assistant Director General wrote to the appellant notifying her that he had substantiated 5 of the 6 allegations and outlined the proposed sanctions in accordance with the PSM Act and intended to impose disciplinary action, as follows: a. A formal letter of reprimand with a copy placed on the appellant's Human Resources file. b. A fine equal to one day’s remuneration. c. Transfer to another work location within the Department at her substantive level. On 6 April 2022, the Assistant Director General wrote to the appellant confirming that the appellant’s legal representative had advised that the appellant had accepted the proposed disciplinary actions and the following disciplinary action would be imposed (the Department’s Decision): a. A formal letter of reprimand with a copy placed on the appellant’s Human Resources file. b. A fine equal to one day’s remuneration. c. Transfer to another work location within the Department at her substantive level. On 3 July 2022, the appellant appealed the Department’s Decision to impose disciplinary action to the Board. In her notice of appeal, the appellant sought orders that the written reprimand be removed from her personnel file, the fine be reversed and refunded, and the Department be directed to transfer her to a Level 5 position outside of the Integrity Unit. The appellant claimed that the Department had not properly and fully implemented the disciplinary action set out in the letter dated 6 April 2022 because the position she had been transferred to is a position with a lesser classification level and her skills were not suitable for the position. On 14 November 2022 the respondent applied to the Board to refrain from further hearing or determining the matter on the basis that the parties had reached agreement in respect of the Department’s Decision. The respondent submits that: a. Further proceedings are not necessary because the Decision was agreed by the parties; b. Further proceedings are not desirable in the public interest in circumstances where the parties have agreed a form of disciplinary action through a disciplinary process, notwithstanding any dispute about the agreement; and/or c. The agreement reached between the parties is "any other reason" why the hearing of this matter should not continue. The appellant contended that the respondent had failed to execute the agreement because it had not transferred her to a Level 5 position. The respondent acknowledged that there had been a delay in finding a transfer to a Level 5 position, however maintained that it intended to finalise the transfer of the appellant prior to the hearing of the appeal. After lodging the appeal, the appellant applied to the Commission under s 51BM of the Industrial Relations Act 1979 (WA) (IR Act) for orders to stop bullying conduct she alleged to be experiencing from the respondent and staff of the respondent. On 20 April 2023 the Commission issued an order [2023] WAIRC 00224 dismissing the appellant’s application for stop bullying orders. The orders stated that the parties had reached a settlement of the stop bullying application at [16]: ¶1 AND WHEREAS the settlement, was on the following terms: (a) The Department will find the applicant an Executive Officer – Level 5 position, preferably within the Boorloo (Perth) Campus, within 14 calendar days; (b) The Department will as soon as possible, refund the fine to applicant; (c) The Department and applicant agree the reprimand will remain on the applicant’s personnel file; and (d) Upon the completion of agreed outcomes 1, 2, and 3: (i) The bullying application will be dismissed by consent; and (ii) The PSAB application will be dismissed by consent; The order also stated that the respondent had completed the following at [17]: ¶2 AND WHEREAS the Department has confirmed that pursuant to the settlement it has completed the following: (a) On Friday 24 February 2023 the Department appointed the applicant to a Level 5 Executive Officer position within the Legal Services Directorate of the Department (EO position); and (b) On or around 17 March 2023 the Department refunded the fine to the applicant; On 21 June 2023 the Board convened a hearing to hear from the parties on the status of this appeal because the appellant had not applied to discontinue her appeal. At the hearing the appellant sought to continue her appeal before the Board and sought orders that the Board adjust the decision to reprimand her and remove the reprimand from her human resources file. In addition, Ms Meo contended that the Department had placed her in position which was not suitable. Ms Meo submitted that she had been on personal leave for a few months, however despite her medical practitioner clearing her to return to work she had not been allowed to return to work and was on leave without pay. Ms Meo submitted that she had a statement from an independent medical examiner, that stated she should not return to the area in the Department that she regards as a toxic environment. At this hearing the respondent submitted that Ms Meo’s appeal should be dismissed because Ms Meo and the Department had made an agreement to settle issues related to the disciplinary proceedings in other proceedings pursuant to s 51BM of the IR Act (the Stop Bullying Application). The Department says that the agreement to settle included Ms Meo agreeing to discontinue this appeal. The respondent contends that the Commission’s order [2023] WAIRC 00224 found that the Department had complied with the terms of the Settlement Agreement. In these circumstances the respondent argues that it would not be consistent with the principal objects of the IR Act for Ms Meo to be permitted to pursue this application. The respondent invited the Board to dismiss the appeal. At the hearing the appellant submitted that she wished to have the appeal heard and determined because the respondent has not complied with the Settlement Agreement because the Department did not find ‘an Executive Officer – Level 5 position, preferably within the Boorloo (Perth) Campus’ but created an additional Executive Officer Level 5 position in the Legal Services Unit which is within the same Directorate as that of the Integrity Unit. The Board determined that the appellant ought to show cause why her appeal ought not be dismissed, and a Show Cause Hearing was set down for 25 July 2023. [Question to be Decided] The Board must decide whether to dismiss application PSAB 54 of 2022 because it is not in the public interest or for any other reason Ms Meo’s appeal ought not be allowed to proceed. [Should the Appeal be Dismissed?] The Commission has previously considered the issue of when an agreement has been reached by parties and whether the matter ought to be permitted to proceed (Jade Smith v Minister for Corrective Services [2022] WAIRC 00848; (2022) 103 WAIG 51 (Jade Smith): ‘A party is entitled to invoke the Commission’s jurisdiction and prima facie expect it to be exercised: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 per Deane J at 399. However, it is beyond doubt that the Commission has the power under s 27(1)(a) of the IR Act to dismiss or refrain from further hearing a matter at any stage of proceedings if it is satisfied that the requirements set out in s 27(1)(a) of the IR Act are met. That power is broad and should be exercised with caution: Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595 [13]-[15], applying the reasoning in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689 at [137]-[139].’ The Board adopts the approach set out in these matters. The Board finds that the appellant’s application for stop bullying orders was settled between the parties as a result of conciliation proceedings (the Settlement Agreement). The Board notes that the appellant did not discontinue her application for stop bullying orders, S 4 of 2022 and following a hearing, the Commission dismissed the application because it was not in the public interest for it to proceed. At the Show Cause Hearing before the Board, Ms Meo said that the Commission’s order contained inaccuracies that were significant and her request for amendments was refused. Despite this Ms Meo did not appeal the decision of the Commission. The order [2023] WAIRC 00224 and the findings within that order stand. The Board notes the terms of the Settlement Agreement are set out in the order at [16]: ¶3 AND WHEREAS the settlement, was on the following terms: (a) The Department will find the applicant an Executive Officer – Level 5 position, preferably within the Boorloo (Perth) Campus, within 14 calendar days; (b) The Department will as soon as possible, refund the fine to applicant; (c) The Department and applicant agree the reprimand will remain on the applicant’s personnel file; and (d) Upon the completion of agreed outcomes 1, 2, and 3: (i) The bullying application will be dismissed by consent; and (ii) The PSAB application will be dismissed by consent; Ms Meo contends that the Department has not complied with a term of the Settlement Agreement that ‘[t]he Department will find the applicant an Executive Officer – Level 5 position, preferably within the Boorloo (Perth) Campus, within 14 calendar days’. The Department appointed Ms Meo to a Level 5 Executive Officer position with the Legal Services Directorate of the Department on 24 February 2023. Ms Meo says that this position was a created position and effectively a ‘dummy’ position. Ms Meo asserts that the Executive Officer role to which she has been appointed is a ‘rebadging’ of the unsuitable Project Officer role and is not required because there is an established Executive Officer role already in the unit. Ms Meo submits that the discussion during settlement negotiations concerned an established role with established duties not a created role. Ms Meo says the purpose of the transfer to a new area was so that she could have a fresh start. The terms of the Settlement Agreement clearly state that the Department will find the applicant an Executive Officer Level 5 position. The terms of the agreement do not state that the role has to have been established prior to the settlement. Ms Meo did not submit any authorities on the meaning of ‘find’ in support of her case that this precluded the Department creating an Executive Officer Level 5 position. There may have been discussions in which Ms Meo outlined her desired outcomes however the relevant issue is the final terms of the Settlement Agreement and not the journey to that destination. The Board finds, as the Commission previously found in [2023] WAIRC 00224, the Department complied with the terms of the Settlement Agreement. The Board finds that it is beyond doubt that the terms of the Settlement Agreement included that the reprimand would remain on the appellant’s personnel file. The appellant agreed with the terms of settlement. In effect, the appellant accepted the findings and penalty. The appellant agreed that she did not dispute the allegations that had resulted in the imposition of disciplinary action. The terms of the Settlement Agreement included that the parties would agree that this matter be dismissed by consent. The effect of, and intrinsic to, the term that the findings of breach of discipline and reprimand remain in place, is that further actions seeking to overturn the findings or penalty are precluded. The Board notes that the Commission’s order finds that the Department has complied with the terms of the Settlement Agreement ([2023] WAIRC 00224 at [26]). In Jade Smith, Emmanuel C set out the principles to be considered: In Foseberry v Mt Newman Mining Co Pty Limited [1988] WAIRC 11882; (1988) 68 WAIG 1882 (Foseberry) an employee’s union brought an application under s 44 of the IR Act against its member’s former employer contending that the employee’s dismissal was unfair. The matter resolved by agreement following the s 44 conference. The employee then brought an unfair dismissal claim against his former employer. Fielding C (as he then was) held that the application should be dismissed under s 27(1) of the IR Act. He said: It seems to me to make a mockery of the Act and its stated objects to ascertain a claim by an individual in respect of an alleged unfair dismissal after a union on behalf of the employee, has taken steps in the Commission to resolve the matter by conciliation…. [A]nd after that process had produced a result considered satisfactory by both the union and the employer I would have thought that the Commission was entitled to expect that in this instance the Union was acting consistently with its duty under the Act and in so doing represented the Applicant’s interests properly, albeit not to his liking. In these circumstances the Commission would normally be justified in exercising its discretion under section 27(1) of the Act to either dismiss or refrain from hearing the matter. Still more importantly the Commission is enjoined by section 26 of the Act to act according to equity as well as the substantial merits of the matter when determining any industrial matter before it. The cases suggest that is to be interpreted as requiring the Commission to adopt a broad approach of common sense and fairness without regard to legal technicalities. It hardly seems sensible to allow an employee to first air his grievance before the Commission in respect of the same matter. Still less does it seem fair to submit his employer to two actions in respect of the same matter in the one tribunal. …In any event it seems to me that there is a great element of unfairness in a process which enables an employee through his union to have access to the Commission in order to settle an industrial grievance affecting him directly and when an agreement in respect of that matter is reached which the union deems acceptable but he does not, and later enables the employee to have the matter aired again by another route. Such a process places the Respondent in double jeopardy in respect of the same matter and contrary to the spirit of the legislation, affords no encouragement to settle the dispute by conciliation processes of the Commission. Foseberry concerned the jurisdiction of the Commission and not the Board, however the Board is guided by the reasoning in this decision. Section 80L of the IR Act clearly requires the Board to act in accordance with s 26(1) of the IR Act and consider equity and good conscience. In the Board’s view, seeking to continue application PSAB 54 of 2022 is inconsistent with agreeing that the disciplinary findings and the reprimand remain in place. The Board considers the continuation of the appeal is inconsistent with s 26 of the IR Act. The Board considers as in Jade Smith, that in all the circumstances, it would not be in accordance with equity and good conscience for this matter to proceed. The subject matter of this dispute was settled by agreement. The appellant does not point to any exceptional reason that would justify her being able to continue to seek a review of the employer’s decision when this decision has subsequently been modified, with the agreement of the appellant, because of proceedings brought by the appellant. Further, the Board considers as in Jade Smith, that allowing continuation of this appeal following a settled resolution to the Stop Bullying Application, would have a complete chilling effect on employers engaging in any form of settlement discussions at a conciliation conference. The Board considers as in Jade Smith, that it would be inconsistent with equity and good conscience to allow the appellant to pursue application PSAB 54 of 2022 in circumstances where she: a. Agreed to discontinue the appeal PSAB 54 of 2022 on the terms set out at [11] and [23] above, which included agreeing that the findings of breach of discipline and reprimand remain in place; and b. It would not encourage, and provide means for, conciliation with a view to amicable agreement and preventing and settling industrial disputes: Section 6(b) of the IR Act. [Conclusion] For these reasons, the Board is satisfied that PSAB 54 of 2022 should be dismissed pursuant to s 27(1)(a) of the IR Act. NOTE: Case citation number 2 of Case(s) referred to in reasons and paragraphs [19], [29], [32], [33], [34], amended by Corrigendum issued 18 August 2023 ([2023] WAIRC 00712.