WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES OTTO WEINBRECHT, APPLICANT v. LASERLINE AUSTRALIA PTY LTD, RESPONDENT CORAM COMMISSIONER A R BEECH DELIVERED TUESDAY, 12 FEBRUARY 2002 FILE NO. APPLICATION 1545 OF 2001 CITATION NO. 2002 WAIRC 04786 _________________________________________________________________________________________________________ Result Order for discovery made. Representation Applicant Mr G. Hocking (of counsel) Respondent Mr J. Weekly _________________________________________________________________________________________________________ Order WHEREAS an application was lodged in the Commission pursuant to regulation 80 of the Industrial Relations Commission Regulations 1985; AND WHEREAS the parties were heard in chambers on 12 February 2002; AND HAVING HEARD Mr G. Hocking (of counsel) on behalf of the applicant and Mr J. Weekly on behalf of the respondent; 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 377 NOW THEREFORE, I the undersigned, pursuant to the powers conferred on me under the Industrial Relations Act 1979, hereby order — THAT by Tuesday, 26 February 2002 the respondent Laserline Australia Pty Ltd provide to the applicant Otto Weinbrecht— (1) A list of those documents which detail— (a) the amounts accrued for the benefit of the Wayco Trust; and (b) the payments made against those amounts; or (2) A written statement declaring that there are no such documents in its possession, custody or power. (Sgd.) A. R. BEECH, [L.S.] Commissioner. PUBLIC SERVICE APPEAL BOARD— 2002 WAIRC 04736 PARTIES TRUDY RUTH CULL, APPELLANT v. COMMISSIONER, STATE REVENUE DEPARTMENT, RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER P E SCOTT - CHAIRPERSON MS D ROBERTSON – BOARD MEMBER MR S YOUNG – BOARD MEMBER DELIVERED MONDAY, 4 FEBRUARY 2002 FILE NO. PSAB 3 OF 2001 _________________________________________________________________________________________________________ Result Appeal against findings of s.86(4) Inquiry Upheld Representation Appellant Mr J Ross Respondent Mr R Andretich (of Counsel) _________________________________________________________________________________________________________ Reasons for Decision 1 The appellant is a government officer and she appeals against a decision of the respondent in which she was found to have committed misconduct under s.80(c) of the Public Sector Management Act 1994 (“the PSM Act”) and against the penalties imposed upon her being a reprimand and a fine of $155.10. 2 The breaches of discipline alleged to have been committed by the appellant are that she— “1. Committ(ed) an act of misconduct under Section 80(c) of the Act, in that on or about November or December 1999, during the course of a disagreement with Mr Alan and Mrs Karyn Lacey, of 42 A Williams Road Coolbellup, at their premises (she) made the following remarks: “I can get anyone investigated at anytime as I work for the Internal Revenue Service (sic)”. 2. Committ(ed) an act of misconduct under Section 80(c) of the Act, in that on 6 October 2000 (she) made similar remarks to Mrs Lacey during the course of a disagreement stating “I can get anyone investigated and can find out anything about anyone”. Later in the conversation (she) said, “I will be seeing Social Security”, directing that remark to Mrs Lacey who was visiting Mrs Marie Weeks at 39 Williams Road, Coolbellup. Mrs Marie Weeks and Ms Jannine Jennings were present when these remarks were made.” 3 Amongst other things the appellant says that the alleged misconduct, which is denied, was not undertaken in the course of performance of her duties nor was it in any way related to her employment with the respondent. Secondly, and in the alternative, the appellant says that there were a number of flaws within the process, undertaken by and for the respondent, which resulted in the findings made and the penalty imposed. Amongst those flaws are breaches in the process to be applied to the instigation of the investigation, a denial of natural justice in the conduct of the inquiry by Mr Barker on the basis of his conduct during interviews with the appellant and her witness, a denial of procedural fairness in the failure to provide her with appropriate documentation and full disclosure of the details of the allegations, and that the inquiry and report of Mr Barker were incompetent. 4 The respondent denies that there have been the flaws in procedure identified by the appellant and says that the appellant’s views of her rights to certain information and in the process are erroneous. The respondent also says that the appellant complains of certain alleged denials of procedural fairness or natural justice, yet under cross examination she has indicated that she was provided with a full opportunity to put her case and to state whatever she wished to during the course of an interview with Mr Barker. The respondent said the same is so of her witness, Mr MacMahon. 5 The respondent also says that although the conduct of which the appellant has been found guilty and for which she has been penalised did not occur during the time the appellant was undertaking duties, nor was she at her workplace or undertaking any particular work related role, the appellant’s conduct involved a breach of her contract of employment in that it constituted a breach of an express or implied term of the contract of employment in that she threatened to use her position to obtain personal advantage. While that personal advantage did not constitute personal gain, the respondent says that the conduct was aimed at gaining an advantage in a personal dispute with a neighbour. Therefore, it is conduct which the employer is entitled to deal with. 378 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 6 We do not intend to deal with all of the grounds upon which the appellant has raised complaint as to the investigation, the inquiry process or the outcome. In respect of the allegations of a denial of natural justice, it is not required that an employer provide an employee with each and every document that it may have obtained during the course of an investigation, although the provision of appropriate documents is desirable and, in some cases, necessary. Nor is there an obligation on an employer, inquirer or investigator to allow the person the subject of the investigation or inquiry to participate in interviews with other persons or witnesses, including cross examining those persons. The processes of investigation and inquiry do not require such a level of involvement or formality. The employee, the subject of the investigation and/or inquiry, is entitled to know the nature of the complaints or the allegations made against him or her and to be aware of those in particular detail. He or she is required to have an appropriate opportunity to state his or her case and respond to those allegations. 7 However, there are a number of concerns as to the processes of investigation and inquiry undertaken in this case which warrant serious consideration. 8 The appellant argues that the instigation of the investigation was lacking in proper process and natural justice, partly on account of the informal or preliminary investigation undertaken by Mr MacGregor merging with the formal investigation undertaken pursuant to the PSM Act. 9 By letter dated 13 October 2000, the Acting Commissioner of State Revenue wrote to Mr Phillip MacGregor engaging him to conduct “an independent inquiry”. The heading on this letter is “Notice of Engagement – Inquiry Suspected Breach of Discipline.” The terms of the letter, formal parts omitted, are— “Dear Mr. MacGregor NOTICE OF ENGAGEMENT – INQUIRY SUSPECTED BREACH OF DISCIPLINE This is to confirm your terms of your engagement to conduct an independent inquiry into a telephone complaint lodged by Mr. Alan Lacey of 42A Williams Road Coolbellup. The complainant has alleged that an officer/s from this Department used threatening remarks to the complainant which has led the complainant to believe that the officer/s has or intends to misuse their position as an officer/s in the Department. The scope of your inquiry is to— 1. Interview the complainant and other witnesses. 2. Obtain records of interview or witness statements. 3. Provide a preliminary report of your findings and appropriate recommendation prior to interviewing the officer/s from this Department. 4. If there is any substance in the allegation made by Mr. Lacey, proceed with interviewing any Departmental staff involved in the incident obtaining the necessary statements. 5. Prepare a report of your findings reporting any suspected breach of the Public Sector Management Act and recommendation for follow up action. Mr Peter Dessent, Senior Human Resources Officer from this Department, has been appointed to assist you with the inquiry. The agreed fee for your services will be as established in the panel contract with the Office of the Public Sector Standards Commissioner (sic)” 10 By letter dated 17 October 2000, the appellant was advised of the allegations against her, but not that the investigation had commenced. It is noted that this letter was not received by the appellant until 18 October in a meeting with the Acting Commissioner. This letter, formal parts omitted, reads— “NOTICE OF ALLEGED BREACH OF DISCIPLINE The Department has received a formal complaint from Mr. Alan Lacey of 42A Williams Road Coolbellup regarding a number of incidents which allegedly involve yourself and Mr. and Mrs.Lacey (sic). It has been alleged that on or about November or December 1999, during the course of a disagreement with Mr. and Mrs.Lacey (sic), you made the following remarks; “I can get any one investigated at any time as I work for the Internal Revenue Service (sic)”. It was further alleged that on 6 October 2000, you again made similar remarks to Mrs. Lacey during the course of a disagreement stating: “I can get anyone investigated and can find out anything about any one”. Later in the conversation it was alleged you said, “I will be seeing Social Security”, directing that remark to Mrs. Lacey. As you would be aware, no officer of the public sector may use their position that they hold in any way that may cause the loss of public confidence in the integrity of the public sector, and trust inherent in the office that the employee holds in the public sector. In order for me to fully consider all the issues relating to this complaint I require you to provide me with a written explanation of your dealings with Mr. and Mrs. Lacey on or about the dates specified above, and your responses to the allegations which have been made. Once I have considered your explanation I will decide what action, if any will follow. I require this explanation to be provided to me personally on or before the close of business 26 October 2000.” 11 Mr MacGregor’s report refers to it being a report on the independent investigation for State Revenue Department into alleged breach of discipline by Trudy Cull of Revenue Services, State Revenue Department. In his report headed “Investigation Conducted By: Mr P G MacGregor assisted by Mr P Dessent October/2000” Mr MacGregor notes that he was appointed on 13 October 2000 to conduct an independent inquiry into a telephone complaint lodged by Mr Alan Lacey. It is noted that the details of the allegations were set out in the notice to the appellant dated 17 October 2000. 12 The PSM Act prescribes a detailed procedure in respect of an allegation of a breach of discipline. Although we have omitted sections of the procedure which do not apply in this case, the following provisions in respect of an employee of an employing authority are relevant— 1. The employing authority must have a suspicion that a breach of discipline has occurred (s.81(1)); 2. When such a suspicion arises, the employing authority is to give the employee notice in writing of the nature of the suspected breach and give the employee a reasonable opportunity to submit an explanation (s.81(1)); 3. After that opportunity for explanation has been given, the employing authority may direct another person to investigate the suspected breach (s.81(2)); 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 379 4. If, following the investigation a minor breach of discipline has been found, the employing authority may impose a reprimand and/or a fine of a prescribed amount (s.83(1)(a)). If the breach found is serious, then the employee is charged (s.83(1)(b)); 5. If the employee objects to the finding or the penalty, “the finding or action is cancelled” by virtue of s.85 and the employee is charged. 6. If the employee admits a charge the employing authority may impose certain penalties (s.86(3)); 7. If the employee denies the charge, a disciplinary inquiry into the charge is held by a person directed by the employing authority to conduct such an inquiry (s.86(4)); 8. If the disciplinary inquiry finds that the breach of discipline was committed, the inquirer is to submit that finding to the employing authority, and is to recommend to the employing authority that it act as if the employee had admitted the charge – ie to impose the penalties referred in s.86(3), (s.86(8)(a)); and 9. The employing authority is required to accept the inquirer’s findings and may act according to the recommendations (s.86(9)). 13 There are procedures set out in the Regulations which detail matters to be complied with in respect of the investigation and inquiry process. 14 Neither the PSM Act nor the Regulations set out the basis on which the employing authority is entitled to have a suspicion that a breach of discipline has occurred. It is, however, clear that the requirement is that before the employing authority undertakes any of the procedures set out in the PSM Act and the Regulations, that a suspicion is to have arisen and the employee is to have had a reasonable opportunity to respond. 15 We note that in this case, by the letter to Mr MacGregor dated 13 October 2000, the employing authority gave direction to the investigator to do a number of things, which appear to fall into two parts. The first part was to interview the complainant and other witnesses and provide a preliminary report of findings and recommendations “prior to interviewing the officer/s (ie the appellant) from this Department.” The second part was that “if there (was) any substance in the allegation” to “proceed with interviewing any Departmental staff involved in the incident”, then to “prepare a report of (his) findings reporting any suspected breach … and recommendation for follow up action.” 16 This letter seems to confuse the process. It appears that based on this letter, it is Mr MacGregor, not the employing authority, who will decide if there is “any substance” to the allegation before proceeding further. This is after he has already undertaken some investigative work. It would appear that the employing authority has abrogated its responsibility, set out in s.81(1) of the PSM Act, for deciding whether it suspects that the employee has committed a breach of discipline. At point 4 of Mr MacGregor’s letter of engagement he was instructed to proceed if there was any substance to the allegation. There is no suggestion in the letter that he was to await the employing authority’s direction once the employing authority has suspected the breach. 17 The confusion is compounded in that prior to commencing a formal investigation, the respondent engaged Mr MacGregor to undertake what has been described as a preliminary investigation. However, we conclude from the evidence of George Lenyk, the Human Resources Manager for the respondent, and from the letters to Mr MacGregor and to the appellant that what happened was that Mr MacGregor commenced the investigation which ought not have occurred until after the appellant had provided her response. Upon the statements being received from Mr and Mrs Lacey, with the authorisation of the Commissioner, Mr MacGregor was then verbally instructed to “finish” the investigation. The appellant was not advised that the formal investigation had commenced until 1 November 2000. 18 It is quite clear that the investigation which Mr MacGregor finished was commenced prior to the respondent deciding that there was a reasonable suspicion on which to commence such an investigation, and that the process which he commenced simply flowed through from that initial informal investigation through to the formal investigation. This process meant that prior to the appellant being notified of the investigation of the allegations against her, the formal investigation had, in reality, already commenced. By the time she had replied, it had gone a substantial way. 19 There must be some distinction between an informal gathering of an allegation and the investigation process. An employing authority would be entitled, upon receiving a complaint on which a reasonable suspicion could arise, to commence the investigation process under s.81 of the Act. Prior to that point there is no authorisation to undertake informal investigations, to gather evidence or to undertake any function which might be contemplated in an investigation process. Nothing more would be necessary than for the employer to advise any complainant, as in the case of Mr and Mrs Lacey, to formally put any complaint in writing before he would act upon it. It may be that assistance is necessary for a complainant to articulate the complaint. This can be provided. Upon a complaint being provided in writing or in some other form which would enable the employer to examine and consider it, the next step would be the formal investigation. Of course, if the complaint did not raise a genuine issue, or if the employing authority on a reasonable examination of the complaint thought it utterly trivial or highly improbable, it is arguable that the employing authority might conclude that there is no reasonable basis to suspect that a breach of discipline has occurred. Not every complaint, on even a cursory examination requires such an investigation. Where the employing authority does suspect a breach then the process commences by the employee being notified and given a reasonable opportunity to explain. 20 In this case, the process of the investigation has been tainted from the outset by the overlap between the informal or preliminary investigation undertaken by Mr MacGregor, and the formal one which he went on to finish as part of the s.81(2) investigation. 21 Further, but more serious, is the approach taken by Mr Barker in his inquiry. Following Mr MacGregor’s findings and report, and the appellant’s objection to the findings and the penalties, the respondent directed Mr Barker to formally inquire into the matter. 22 The report provided by Mr MacGregor following the investigation undertaken by him was thorough and detailed. It provided a clear and transparent process of inquiry, assessed the evidence collected and noted the methodology used in that process. Findings were made and reasons for those findings given. 23 However, it is clear from Mr Barker’s report and his evidence that he did not make a thorough or independent inquiry. From his evidence and from his report, Mr Barker has made assumptions based on his belief that Mr McGregor carried out a thorough investigation and apart from interviewing the appellant and Mr MacMahon, her witness, and reading the documents they provided to him, he simply adopted the work of Mr McGregor. The scheme of the PSM Act provides for there to be an investigation by the employing authority and this investigation may be conducted by the employing authority or a person directed to undertake that investigation. If the conclusion from that investigation is that there has been a breach of discipline the employing authority is then required to put that to the officer concerned and invite a response. If that response is a denial of the breach then the employing authority is obliged by the legislation to charge the officer and to hold, or direct to be held, a 380 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. disciplinary inquiry. That inquiry is not intended to simply be an examination of the investigator’s report and an adoption of those views with a perfunctory interview with the officer concerned and any witnesses he or she may wish to bring. Section 85 of the PSM Act says that if the officer objects to the findings or penalties arising out of the investigation, “that finding or action is cancelled by virtue of this section” and the officer may then be charged and a process exists for dealing with that charge. Section 85 makes clear that the two processes, the investigation and the inquiry resulting from the charge, are not simply meant to reinforce or supplement each other. There is to be no assumption in the inquiry process that what went before is a prelude to the inquiry and is simply to be reviewed and adopted. Because s.85 actually cancels the finding or action, and an inquiry is to proceed - it is to be a new process, separate from the investigation. 24 In the circumstances which have arisen in this matter, it is reasonable to assume that instead of the proper inquiry process occurring, the employing authority has been provided with little more than an adoption of someone else’s work. This does not meet the requirements of the PSM Act. Albeit that it might technically meet the letter of the law, it certainly does not provide the process intended by the legislation. 25 Further, Mr Barker has not contemplated important considerations in his assessment of the evidence such as whether Mr and Mrs Lacey, in making their complaints, might have been motivated to manufacture complaints in response to the appellant’s complaint about their anti-social conduct. He seems to have dismissed this as irrelevant. 26 There are also issues within the statement of one of the witnesses who provided support to Mr Lacey’s allegation, Mr Robert McIntyre. On 28 November 2001, Mr McIntyre amended his statement in a significant way, with Mr Barker and Mr Dessent who was appointed to assist Mr Barker in his inquiry, acting as witnesses to that amendment. Both the gathering of this further evidence well after the respondent had made his decision and Mr Barker’s and Mr Dessent’s involvement in gathering that further evidence is curious if not questionable. In the second paragraph of his original statement dated 27 November 2000 provided to Mr McGregor, Mr McIntyre stated that “Alan and I were sitting in his garage, which was then just a semi enclosed carport.” The amendment which he has made to that statement was that “I was behind the wall at the end of the garage and I could not have been seen at that time.” There is quite clearly a conflict between his original statement and the amendment which does not simply clarify the original statement. His statement and the evidence of the appellant conflict in that Mr McIntyre says that he was sitting in the garage with Mr Lacey whereas the appellant’s evidence is quite clear that when she walked towards the garage she could see Mr Lacey standing at a bench inside the carport at the rear of the carport. It would be very difficult to describe accurately that Mr McIntyre was sitting with Mr Lacey in his garage given the layout of the garage or carport and the attached room. Had Mr Barker examined the issue raised in the new evidence at the time of undertaking his inquiry, he might have come to a different conclusion about Mr McIntyre’s evidence. 27 In those circumstances, we conclude that in reaching the decision that the appellant has committed a breach of discipline that the conclusions reached and recommendations made by Mr Barker were unreliable and ought not to have been relied upon by the employing authority. 28 Another matter of concern is the involvement in the process of Mr Peter John Dessent, the Senior Human Resource Officer of the Department of Treasury and Finance. During the course of his inquiry, Mr McGregor was assisted by Mr Dessent. Mr Barker was also assisted by Mr Dessent. 29 In his evidence Mr MacGregor described Mr Dessent’s role as to provide him with support, a verifier, a clarifier. He says that Mr Dessent did not participate in the interviews with the appellant and Mr McMahon, her witness, although he did appear to have some involvement in those interviews in respect of the discussion as to Mr McIntyre’s presence or otherwise in the garage of the Lacey’s house. 30 In his witness statement, Mr Dessent indicated that he was appointed to act as a witness to the investigations carried out in respect of the allegations and was present during the interviews of all witnesses except the telephone interview with Mr McIntyre by Mr MacGregor. He says that when Mr Barker was appointed he was present during all interviews between Mr Barker and the appellant with Mr Cusack, and with Mr McMahon. It was he who arranged the meeting for those interviews and Mr Barker had asked him to be present as his witness during the interviews. However, it is clear from his evidence and from other evidence that Mr Dessent did not restrict himself to that role of being a witness. In his own statement he notes that he sought clarification from Mr McMahon on at least one occasion. 31 Mr Dessent says that his role throughout had been as a witness for the inquirer and the investigator but he says that both the investigator and the inquirer had invited him to participate in the process and that it was with that licence that he sought clarification on certain points during the interviews. He says that he and Mr Barker “were well prepared with questions for the interviews”. We take this to mean that not only was Mr Barker prepared with questions, but Mr Dessent also prepared in anticipation of being a participant, not merely a witness. 32 Although, we make no criticism of Mr Dessent for his participation, it would be difficult to conclude that Mr Barker had undertaken a thorough and independent inquiry when he was assisted in that inquiry by Mr Dessent who assisted in the investigation by Mr McGregor. This was not merely administrative assistance, but assistance in inquiring. Mr Dessent’s involvement in what ought to have been separate and independent processes has so tainted the whole of that process such as to mean that they cannot be considered to be sound. 33 For the reasons set out above, we conclude that there were a number of significant and substantive flaws in the disciplinary process. They are not merely technical and minor breaches, but are so significant as to bring the whole process into question. In the circumstances, and as findings coming from that process are unsustainable, the appeal ought to be upheld, and the finding of the disciplinary process ought to be quashed, as should the penalty. _________ 2002 WAIRC 04735 AGAINST THE FINDINGS OF THE INQUIRY RELATING TO BREACHES OF DISCIPLINE