A v Minister for Corrective Services - [2022] WASCA 146

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION:   A -v- MINISTER FOR CORRECTIVE SERVICES [2022] WASCA 146
CORAM:   MURPHY J
HEARD:   1 NOVEMBER 2022
DELIVERED          :   4 NOVEMBER 2022
FILE NO/S:   IAC 3 of 2022
BETWEEN:   A
Appellant
AND
MINISTER FOR CORRECTIVE SERVICES
Respondent

Catchwords:

Industrial relations - Interim order - Application for stay pending appeal - Whether appeal has reasonable prospects of success - Balance of convenience

Legislation:

Industrial Relations Act 1979 (WA), s 23, s 26(2), s 29(1), s 44, s 82, s 87(3), s 90(1)
Public Sector Management Act 1994 (WA), s 78(2), s 78(5)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	P Giles SC
Respondent	:	F B Seaward SC

Solicitors:

Appellant	:	Slater & Gordon
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Applicant v Minister for Corrective Services [2022] WAIRC 00143
Health Services Union of WA (Union of Workers) v Director General of Health in Right of the Minister for Health [2008] WAIRC 00215; (2008) 88 WAIG 543
Minister for Corrective Services v A (2022) WAIRC 00327
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398
State School Teachers' Union of WA (Incorporated) v Director General, Department of Education [2015] WAIRComm 875
The Commissioner of Police v Ferguson [2019] WASCA 14; (2019) 54 WAR 177
The Shop, Distributive and Allied Employees' Association of Western Australia v Samuel Gance T/A Chemist Warehouse Perth [2020] WASCA 36

MURPHY J:

Introduction

This matter came on for hearing on Tuesday, 1 November 2022 to consider an application by the appellant (A) that the orders of the Full Bench of the Western Australian Industrial Relations Commission dated 4 August 2022 be stayed pursuant to the power in s 87(3) of the Industrial Relations Act 1979 (WA) (IR Act).
The application for a stay was an interlocutory application in an appeal by A against the respondent (employer) in relation to orders made by the Full Bench of the Western Australian Industrial Relations Commission (Full Bench) on 4 August 2022. The orders were made by the Full Bench pursuant to a decision in Minister for Corrective Services v A[1] (Full Bench Decision). In that regard, the Full Bench set aside an earlier decision of Commissioner Emmanuel in Applicant v Minister for Corrective Services[2] (Commissioner's Decision).
[1] Minister for Corrective Services v A (2022) WAIRC 00327.
[2] Applicant v Minister for Corrective Services [2022] WAIRC 00143.
In broad terms, at all material times, A was employed by the employer. There was a work‑place incident in 2018. On 13 August 2020, A was notified that the employer had determined to deal with a suspected breach of discipline in relation to the incident, and that she was suspended from duty immediately on full pay, with an opportunity to provide a submission as to whether the suspension should continue.
On 21 August 2020, A asked the employer not to proceed any further with the disciplinary process but she accepted that her suspension should continue while an investigation was conducted.
A was charged in November 2020 with a criminal offence in relation to the incident.
On 4 December 2020, the employer proposed that A be suspended without pay. Following certain correspondence with A's union, on 23 December 2020, A was told by email that the suspension would continue to be with pay for the immediate future, and that the employer would await the outcome of certain court proceedings.
The following year, in November 2021, the employer again proposed that the suspension be on terms of suspension without pay. A replied, including to the effect that she could not respond because of the criminal proceedings.
On 19 November 2021, the employer decided and implemented the decision that A's suspension would continue without pay with effect from 3 December 2021 (19 November 2021 decision).
On 29 November 2021, A's Union commenced proceedings on behalf of A (CR 36 of 2021) under s 44 of the IR Act to challenge the 19 November 2021 decision to cease her pay. As part of CR 36 of 2021, the Union and the employer agreed to a 'Memorandum of Matters Referred for Hearing and Determination' (the Memorandum).
CR 36 of 2021 was subsequently discontinued due to a jurisdictional issue.
On 3 March 2022, A commenced proceedings in her own right (APPL 8 of 2022) under s 78(2) of the Public Sector Management Act 1994 (WA) (Public Sector Act). In APPL 8 of 2022, A sought, by ground 11, to rely on the grounds and materials filed in referral CR 36 of 2021 (including the Memorandum).
On 28 March 2022, Commissioner Emmanuel heard APPL 8 of 2022. The Commissioner said:[3]
[3] Commissioner's Decision [8] - [9].
[8]The parties say that to resolve this matter I must decide:
1.Did the [employer] exercise its lawful right under s 82(1) of the [Public Sector Act] to suspend [A] without pay:
a)in breach of procedural fairness;
b)without having regard to a relevant consideration; or
c)contrary to the legislative and regulatory framework which applies to a decision to suspend an employee without pay,
such that a fair go all round requires that the decision be set aside and a new decision be made in its place?
2.If so, on what terms should [A's] suspension continue?
[9]It is not in dispute that [A's] suspension should continue. Even if the decision to suspend without pay is set aside, the question for the Commission is on what terms that suspension should continue. Accordingly, this decision does not deal with the merits of the decision to suspend [A]. Further, [A] submitted: 'The Commission in this case is not asked to consider or deal with an issue of backpay for [A]'. (emphasis added)
On 8 April 2022, Commissioner Emmanuel, in her reasons for decision, found, in effect, that the employer had breached its duty of procedural fairness by not putting to A that it proposed stopping her pay by reason of three specified matters.[4] Commissioner Emmanuel continued:[5]
[84]In my view, it follows that the [employer] did not comply with a legislative and regulatory framework that clearly requires procedural fairness to be afforded.
[85]I consider that the [employer] exercised its lawful right under s 82(1) of the [Public Sector Act] to suspend [A] without pay, in breach of procedural fairness and contrary to the legislative and regulatory framework which applies to a decision to suspend an employee without pay, such that a fair go all round requires that the decision be set aside. (emphasis added)
[4] Commissioner's Decision [81].
[5] Commissioner's Decision [84] - [85].
Commissioner Emmanuel made orders on 11 April 2022 as follows:
(1)THAT the [employer's] decision dated 19 November 2021 to change [A's] suspension from being on full pay to being without pay be set aside; and
(2)THAT order (1) above is to come into effect at 4 pm on Friday 29 April 2022.
The employer appealed the orders of Commissioner Emmanuel (FBA 3 of 2022). There were two grounds of appeal:[6]
1.The Commissioner erred in deciding there had been a denial of procedural fairness which merited the setting aside of the employer's decision to vary the terms of the suspension from with pay to suspension without pay.
2.In the alternative, the Commissioner erred in failing to 'afford the [employer] procedural fairness in determining that there was a denial of procedural fairness by the [employer] which was not minor or without impact'.
[6] Full Bench Decision [44].
On appeal, the Full Bench noted that the 19 November 2021 decision 'was referred to the Commission as an industrial matter pursuant to s 78(2)(b)(iii) of the [Public Sector Act] and s 29(1)(b) of the [IR Act]'.[7] The Full Bench also noted that no evidence was led or tendered at the hearing at first instance, and that the first instance hearing proceeded on the basis of agreed facts embodied in the Memorandum, and documents and submissions in CR 36 of 2021.[8] The Full Bench upheld ground 1 and thereby overturned the Commissioner's Decision. Ground 2 was dismissed.
[7] Full Bench Decision [3].
[8] Full Bench Decision [8].
The Full Bench observed that the employer did not challenge the finding by Commissioner Emmanuel that it had denied A procedural fairness.[9] The Full Bench said:[10]
[9] Full Bench Decision [7].
[10] Full Bench Decision [56] - [61], [63], [65], [67], [75] - [76], [78] - [79].
[56]The Memorandum of Referral required the Commission to undertake a two-step, process. The first step was to determine whether the employer complied with the requirements of procedural fairness and/or the regulatory framework that applied in making the decision. If these procedural requirements had not been complied with, the Commission was additionally required to embark on a second step, in determining whether the failure was such that a fair go all round required that the decision be set aside.
[57]The grounds of appeal only concern the second stage. Ground one concerns the learned Commissioner's reasoning to her conclusion that the failure to provide procedural fairness had consequences which, as a matter of industrial fairness, required the decision be set aside.
[58]The parties' conduct of the matter at first instance made the Commissioner's task very difficult. …
[59]Ultimately, for the reasons that follow, I consider the learned Commissioner was erroneously drawn into this invitation to focus narrowly such that the conclusion that there was industrial unfairness warranting the decision being set aside was in error.
[60]By invoking the notion of 'no practical injustice,' the employer relies upon principles that apply in applications for judicial review of decisions on the grounds of jurisdictional error. The principle is that, for a decision to be set aside on judicial review, the party challenging the decision must prove on the balance of probabilities such historical facts as to satisfy the court that the decision could realistically have been different had the breach of a condition of the conferral of statutory decision-making authority not occurred: MZAPC per Kiefel CJ, Gageler, Keane, Gleeson JJ at [60]. In other words, there is a requirement for a breach of procedural fairness to be material in its ultimate effect, in order to result in a decision being remitted for redetermination or retrial.
[61]The matter before the learned Commissioner was not an application for judicial review of a decision for jurisdictional error. It was, rather, the determination of an industrial matter, in accordance with the Memorandum of Referral. As Ritter AP observed in [Moodie[11]] at [176], the nature of the Commission's enquiry is not the same as judicial review. The Commission was required to 'deal with' an industrial matter, not review a decision for illegality, nor consider ordering a retrial.
[11] Health Services Union of WA (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, The South West Health Board and The WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543.
…
[63][In Moodie the] Full Bench upheld the appeal against the Public Service Arbitrator's decision. Beech CC observed at [290] ‑ [291] citing Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 149 IR 160, that the judicial review jurisdiction is of a kind quite different from the merits-based enquiry, involved in enquiring into and dealing with an industrial matter under the IR Act. So, a finding that there is a denial of procedural fairness is not an end in itself, but is one step in determining how the industrial matter is to be dealt with: ie, one relevant circumstance in dealing with an industrial matter: see also Moodie per Ritter AP at [177].
…
[65]Accordingly, while the Commission could not ignore the substantive common law as to whether or not a decision was void for lack of procedural fairness, that enquiry was not determinative of the application of whether the orders sought should be made, as the Commission remains bound to consider how to deal with the industrial matter within the constraints of the law, the Memorandum of Referral and how the hearing was conducted by the parties: Moodie per Ritter AP at [177] ‑ [178].
…
[67]In the present context, the general principles variously referencing materiality, futility, and practical injustice, properly inform the assessment of industrial fairness and whether the breach of procedural fairness deprived the decision of a fair go all round such as to merit the decision being set aside. As Ritter AP stated in Moodie at [200]:
'… Futility can step in at the point of deciding whether a remedy will be granted for a breach of procedural fairness …'
…
[75]It is implicit in the learned Commissioner's reasons at first instance at [83] that she considered the impact of the procedural flaw was relevant to determining whether there had been a fair go all round. However, in assessing the impact, the learned Commissioner considered only the question of whether the officer could, had she been given proper notice, responded to the relevant factors. The learned Commissioner did not apparently further consider what if any different outcome might have resulted, had the opportunity to respond been taken up. Nor does the reasoning disclose any assessment of whether the possibility of a different outcome was realistic.
[76]The learned Commissioner's reasons do not disclose a determination of whether the result could realistically have been different had the officer been given the relevant opportunity to respond. Accordingly, the learned Commissioner failed to determine whether a fair go all round required the Commission's intervention in the suspension adjustment decision.
…
[78]The conclusion that the officer could have responded 'in some way' to the relevant factors is obvious and virtually goes without saying. However, that some response might have been given remains some distance away from any destination in terms of an ultimate impact. If all the learned Commissioner did was to determine that the absence of the ability to utilise an opportunity to respond is the impact, then the learned Commissioner has, in effect, not considered the matter beyond its procedural elements. The industrial fairness destination has not been reached.
[79]The learned Commissioner did not consider whether, had the officer been given notice of the relevant factors, it would have produced the same or a different resulting decision. The learned Commissioner's conclusion as to the impact of the procedural failure was not directed at the outcome: the industrial fairness of the decision to cease pay. It was inconsistent therefore with the general principles laid down by the majority of the High Court in MZAPC as set out above. Had the learned Commissioner assessed whether the officer had established on the balance of probabilities that a different outcome was realistically possible, the learned Commissioner must necessarily have found an absence of an evidentiary basis to find it was, bearing in mind the officer bore the onus.
The Full Bench ordered (Full Bench Orders):
(1)THAT the appeal be and is hereby upheld
(2)THAT the decision of the Commission at first instance in matter APPL 8 of 2022 given on 11 April 2022 is quashed.

The appeal to this court

The grounds of appeal to the Industrial Appeal Court appear in Form 1, filed 23 August 2022. They are as follows:
1.The Full Bench erred in law in finding that the terms of s 26(2) of the [IR Act] did not permit the Commission to deviate from addressing each of the specific terms of a memorandum prepared in separate proceedings pursuant to regulation 31 of the Industrial Relations Commission Regulations 2005 (Regulations) in granting relief or redress under the IR Act.
Particulars
a)The unanimous reasons of the Full Bench are articulated in the reasons of the Senior Commissioner at [2] to [94] of the [Full Bench Decision] that was delivered on 3 August 2022 ...
b) At [4] of the [Full Bench Decision], the Senior Commissioner noted that a Memorandum of Matters Referred for Hearing and Determination … had been prepared for related proceeding, CR 36 of 2021.
c) In the subsequent proceeding commenced under s 78(2) of the [Public Sector Act] (APPL 8 of 2022), the parties relied upon certain facts that had already been agreed … and set out within the memorandum.
d) At [40] of the [Full Bench Decision], the Senior Commissioner held that the Commission was required to undertake a specific process as dictated by the memorandum in order to deal with APPL 8 of 2022.
e) At [61] of the [Full Bench Decision], the Senior Commissioner repeated her finding that the referral made in APPL 8 of 2022 must be made in accordance with the memorandum which was prepared for CR 36 of 2021.
f) At [65] of the [Full Bench Decision], the Senior Commissioner further held that the Commission was 'bound' to consider how to deal with APPL 8 of 2022 within the constraints of the memorandum.
g) The effect of the findings of the Senior Commissioner is to construe the referral provision in section 78(2) of the [Public Sector Act] as ousting or limiting the discretionary power of the Commission provided by s 26(2) of the IR Act.
h) It was not open on any reasonable construction of s 26(2) of the IR Act or of section 78(2) of the [Public Sector Act] for the Senior Commissioner to find that a referral made by reference to section 78(2) … was strictly subject to mandatory constrains associated with the subject matter of the claim made by [A].
i) Having erred in finding that the Commission at first instance was strictly bound to the terms of the memorandum, the Senior Commissioner then erred in holding that it was incumbent upon [A] to produce specific evidence or otherwise articulate a particular course of action that would or could realistically have changed the [employer's] decision of 19 November 2021.
2.[A] was denied the right to be heard on the question of whether the Commission at first instance was restricted to dealing with [A's] referral with strict regard to the terms set out in the memorandum.
3.The Full Bench erred in law in finding, in effect, that the discretionary power provided by the Commission by section 78(5)(b) of the [Public Sector Act] is subject to an implied condition for [A] to establish the nature of additional evidence or argument that may have been presented in support of her case before the Commission can act in accordance with that subsection.
Particulars
a)At [61] to [65] of the [Full Bench Decision], the Senior Commissioner adopted the approach of the Full Bench in the matter of Moodie in relation to the application of judicial review principles to the process of enquiring into and dealing with an industrial matter under the IR Act.
b)At [64] of the [Full Bench Decision] the Senior Commissioner held that the Commission was bound by specific requirements when dealing with a matter referred under section 78(2) of the [Public Sector Act].
c)At [77] of the [Full Bench Decision], the Senior Commissioner noted the failure of [A] to produce evidence as to what she would have said in support of her case had procedural fairness been provided to her.
d)At [78] of the [Full Bench Decision], the Senior Commissioner incorrectly inferred that the failure of the Commission at first instance to identify or make a determination as to a specific course of action for [A] to achieve a different outcome evidenced a failure to consider the issue of materiality.
e)The only answer reasonably open on the proper application of section 78(5)(b) of the [Public Sector Act] to the facts of this case is that it was open to the Commission to set aside the [employer's] decision of 19 November 2021 given the failure to comply with the rules of procedural fairness and given other factors such as -
i.The [employer] had misled [A], or had allowed [A] to be misled up to the date of the hearing at first instance as to the [employer's] actual reasons behind the decision of 19 November 2021.
ii.Only during the close of oral argument did the [employer] notify [A] that a critical factor going to the disputed decision of the [employer] was no longer agreed.
iii.The [employer's] conduct influenced the manner in which [A] conducted her case when it was before the [employer], and also when her case was conducted at the Commission.
iv.The conduct of the [employer] and the unclear reasons behind the decision of 19 November 2021 gave rise to reasonable conjecture that, if given a fair opportunity, [A] may have achieved a favourable outcome.
f)It was not open for the Senior Commissioner to find that the true meaning of section 78(5)(b) of the [Public Sector Act] implied an unwritten requirement for the Commission to apply specific requirements of evidence and argument to establish a basis to set the impugned decision aside. (footnotes omitted)

The employer has also filed a notice of contention in the following terms:
[T]he decision of the Full Bench should be confirmed for reasons other than those decided by the Full Bench, namely [A] failed to establish that she was denied a fair go all round because:
i.contrary to the finding of the Full Bench at [77], the Full Bench should have found that [A] would not have responded to the factors of which she was not given notice if those factors had in fact been put to her by the [employer], and
ii.No practical injustice arose because [A] would not have so responded.

The stay application and the evidence

By her Notice of Motion dated 12 September 2022, A sought an order that the Full Bench Orders be stayed pending the hearing and determination of IAC 3 of 2022 or until further order. A emphasised that:[12]
In practical terms and given the particular sequence of events in this case, [A] contends that the grant of a stay would only have an effect as from 4 August 2022.
[12] Appellant's written submissions, 6 October 2022, par 9.
At the hearing of the application, it was agreed that if a stay order were made, it should be in the following terms:
The orders of the Full Bench dated 4 August 2022, insofar as they would otherwise operate to entitle the [employer] to continue A's suspension without pay with effect from 4 August 2022, are not to be acted upon or relied on by the [employer] until the determination of this appeal, or earlier further order.
A's application was supported by an affidavit sworn by A's solicitor, Mr Fordham, on 8 September 2022. Mr Fordham's affidavit in support in essence outlined the procedural history of the dispute.
A also sought to rely on an affidavit sworn by her and filed 31 October 2022. Although the affidavit was late and provided outside of earlier programming directions made by the court, there was no objection to its receipt and it was ordered that it be received for the purposes of the application. The employer also sought to rely on a responsive affidavit of Mr Carroll, dated 31 October 2022. Again, there was no objection and the employer was given leave to file and rely upon that affidavit for the purposes of the application.
Amongst other things, in her affidavit of 31 October 2022, A annexed a copy of an email outlining the procedural history of the criminal proceedings, which indicated that the criminal matter would be heard in June 2023 and that the timing for the criminal proceedings had been completely out of A's control. This email was later provided to the employer.
A also swore to the truth of the matters contained in a letter which she sent to the employer on or about 18 October 2022. In oral submissions, senior counsel for A drew particular attention to the matters referred to in the letter concerning A's financial position. The letter relevantly stated:
Aside from other ordinary living expenses, I also have a mortgage of just under $300,000. My household only has one income and the costs of living are quickly moving well beyond my ability to pay, especially as interest rates have risen and the amount of mortgage repayments has increased along with many other costs. I am not sure how I will be able to manage financially between now [and] the hearing of the criminal matters in mid 2023.

Parties' submissions on the stay application

A's submissions - strength of appellant's case

A submitted that she had a very strong case on the basis that the Full Bench erred having regard to the High Court's decision in Nathanson v Minister for Home Affairs.[13] Nathanson was handed down two weeks after the Full Bench Decision. A submitted, in effect, that:[14]
1.In Nathanson, the High Court held the Full Court of the Federal Court had misapplied the principles of judicial review in finding that the appellant was required to show how the denial of procedural fairness also denied the appellant from taking a specific course of action which had the realistic possibility of resulting in a different outcome. The reasons of the Full Bench indicate that the Full Bench Decision is attended by the same misapplication of principle.
2.Pursuant to s 90(1)(b) of the IR Act, A has made an application alleging the Full Bench Decision is also erroneous in law in that there was a denial of a right to be heard and two errors of construction of the IR Act and or the Public Sector Act.
3.In light of Nathanson, the Full Bench erred in (1) misapplying the principles of judicial review, and (2) 'effectively [implying] those incorrect principles [into] the operation of the [Public Sector Act] and/or the IR Act'.
[13] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398.
[14] Notice of Motion, pars 8 - 10.
In oral submissions, A contended that the error in ground 1 was evident from [56] and [65] of the Full Bench Decision.[15] In her written submissions filed on 6 October 2022, A addressed grounds 1 and 3 together, and submitted that:[16]
1.Grounds 1 and 3 assert, respectively, that an inferences arises that s 26(2) of the IR Act, and/or s 78(5) of the Public Sector Act have been 'misunderstood or misconstrued by the Full Bench'. This inference is said to arise because the Full Bench made findings which are not permissible on the proper construction of the IR Act or the Public Sector Act. See The Commissioner of Police v Ferguson.[17]
2.It appears the Full Bench has approached this matter as if APPL 8 of 2022 was a referral made under s 44 of the IR Act when it was not.
3.The initiating claim for APPL 8 of 2022 did seek to rely upon the grounds and materials that had already been filed in referral CR 36 of 2021 given the circumstances of urgency.
4.However, during the hearing of APPL 8 of 2022, it was revealed that the Memorandum 'was no longer an agreed document'.[18]
5.In any event, A asked the Commission to consider dealing with the referral under s 78(5) of the Public Sector Act.
6.Given the parties' conduct at the hearing of APPL 8 of 2022, the first ground contends the only conclusion open on the application of s 26(2) of the IR Act was that the Commission was not strictly bound to follow the process prescribed be the Memorandum as referred to in the initiating claim.[19]
7.Further, given APPL 8 of 2022 was a referral under s 78(2)(b)(iii) of the Public Sector Act, ground three asserts the Commission was empowered by s 78(5) with a discretion to allow the referral on the basis of the failure to comply with the rules of procedural fairness and without any further need to satisfy common law principles applicable to judicial review.
[15] Application ts 17.
[16] Appellant's written submissions, 6 October 2022, pars 25 - 30.
[17] The Commissioner of Police v Ferguson [2019] WASCA 14; (2019) 54 WAR 177 [179] (Le Miere J).
[18] Reference was made to the Commissioner's Decision [12], in which the Commissioner noted that the agreed fact at par 23(d) of the Memorandum was included in error and was not agreed.
[19] See initiating claim, page 100 of Fordham affidavit.
In relation to ground 2, A submitted:[20]
1.The Full Bench Decision proceeded on the basis that the terms of the Memorandum prepared for CR 36 of 2021 were binding upon the Commission. See Full Bench Decision [56], [61] ‑ [65].
2.A fair reading of the Full Bench Decision is that the Full Bench found the terms of the Memorandum did not allow for the referral to be resolved in the manner contemplated by s 78(5)(b) of the Public Sector Act, whereas the appeal to the Full Bench was not conducted on that basis.

A's submissions on the balance of convenience

[20] Appellant's written submissions, 6 October 2022, pars 31 - 33.

A submitted that the balance of convenience favoured granting a stay for the following reasons:[21]
[21] Notice of Motion, par 11.
1.It was and still is open for the employer to re-evaluate the terms of A's suspension to reconsider whether A's pay ought to be ceased and to do so in a procedurally fair manner.
2.The strength of A's case.
3.If a stay were not granted, A would likely be 'unjustly deprived of an income in circumstances where there is no guarantee … she will recoup her unpaid wages'.
4.A cooperated with the employer at first instance and during the appeal proceeding. That cooperation has now put A in a vulnerable position as she has exhausted all of her accrued leave entitlements.
5.A has 'foreshadowed' that 'significant hardship' will result from the stoppage of her pay.
6.A has 'expressed a willingness to cooperate in the allocation of meaningful alternative duties'.
7.A is 56 years of age and unlikely to find suitable alternative employment given the competitive market and her particular circumstances.
8.The decision to cease A's pay was significant.
9.The procedural fairness deficiency afforded to A was significant.
A also submitted that:[22]
[22] Appellant's written submissions, 6 October 2022, par 22.
1.First, even in light of Nathanson, A seems likely to be prevented from re‑agitating the same issues arising from the same set of facts and the denial of procedural fairness in the variation decision by the doctrine of res judicata.[23]
[23] State School Teachers' Union of WA (Incorporated) v Director General, Department of Education [2015] WAIRComm 875 [46].
2.A seems unable to address the injustice caused by the wrong application of judicial review principles other than by this appeal.
3.By contrast, the employer has an express power under s 82(3) of the Public Sector Act to remove or vary the terms of A's suspension 'at any time'. Accordingly, the employer can immediately 're-approach the issue of whether to cease pay to [A] while she is suspended'.
4.The relative position of the employer is that the employer is empowered to mitigate the financial consequences of these proceedings.
5.Secondly, contrary to the employer's submissions, A has submitted evidence as to the financial stress and hardship that cessation of wages would cause.
6.A's claim as to the financial impact of being without pay has not been denied at any previous point.[24]
7.There is no evidence that any hardship will result to the employer if a stay is granted.
8.Thirdly, there is still no definitive timeframe in relation to the term of the suspension and no certainty that A will recover withheld wages.
9.Once the related criminal proceedings are resolved, A will need to answer the alleged breach of discipline and may receive disciplinary action ranging from reprimand up to dismissal from employment.
10.By s 82(4) of the Public Sector Act, there are two conditions under which pay withheld during a suspension will be forfeited. A's withheld pay is surrendered if either (1) A is ultimately convicted, or (2) the employer chooses to take any form of disciplinary action.
11.Fourthly, A has contended she has been placed in a vulnerable position by reason of the fact that she has effectively agreed to exhaust all her accrued leave. This is a vulnerability in the sense that A has already been caused to deplete the most obvious source from which she could withstand a prolonged cessation of her ordinary wages.
[24] See, for instance, the comment in respondent's letter of 19 November 2021, page 6 of Fordham
A's senior counsel also placed emphasis on the matters in A's affidavit of 31 October 2022 referred to in [25] ‑ [26] above.

The employer's submissions - strength of the appellant's case

The employer noted that A's Form 3 application for a stay alleged that the first issue raised by the grounds is:[25]
In light of the decision in Nathanson, did the Full Bench fall into error in deciding that the Appellant failed to demonstrate that the denial of procedural fairness deprived her of a realistic possibility of a different outcome?
[25] Respondent's written submissions, 28 September 2022, par 20.
The employer submitted that this issue does not arise on the grounds as currently framed because:[26]
1.grounds 1 and 3 allege an error in construction of the IR Act and Public Sector Act; and
2.ground 2 alleges A was denied the right to be heard.
[26] Respondent's written submissions, 28 September 2022, pars 21 - 24.
The employer submitted that ground 1 is without merit for the following reasons:[27]
1.The Full Bench Decision made no reference to s 26(2) of the IR Act.
2.In substance, A's underlying complaint is that the Full Bench Decision said the Commission was 'strictly bound' or 'constrained' by the terms of the Memorandum and that this is at odds with the terms of s 26(2) of the IR Act.
3.However, the Full Bench Decision included no such finding. The basis for ground 1 therefore falls away.
4.Rather, the Full Bench Decision said the Commission is bound to consider the industrial matter within the constraints of the law, the Memorandum and how the hearing was conducted by the parties. This meant considering whether A was afforded a 'fair go all round'. The Full Bench held it was necessary for A to establish, on the balance of probabilities, whether a different outcome was realistically possible.
[27] Respondent's written submissions, 28 September 2022, pars 25 - 30.
The employer submitted that ground 2 is without merit essentially for the reasons in the preceding paragraph.[28]
[28] Respondent's written submissions, 28 September 2022, pars 31 - 32.
In relation to ground 3, the employer submitted that it lacked merit because the Full Bench Decision made no reference to s 78(5)(b) of the Public Sector Act. Also, s 78(5)(b), on its proper construction, has no application to the referral of a decision to suspend an employee without pay. Even if s 78(5)(b) could apply to an appeal or referral against a decision to suspend without pay, the Full Bench Decision does not suggest that the Full Bench construed s 78(5)(b) in the way alleged or at all.[29]

The employer's submissions - balance of convenience

[29] Respondent's written submissions, 28 September 2022, pars 33 - 37.

The employer addressed each of A's submissions set out in [30] above:[30]
1.In relation to [30.1] - [30.3], the employer submitted that it is not clear what is alleged by way of this submission or how it relates to the balance of convenience. Further, the employer submitted that if A succeeds in the appeal, then the employer will be obliged to pay A as though she was always suspended with pay and will re-credit A's leave in accordance with the agreements between the parties.
2.In relation to [30.4], the employer submitted that it is unclear how A's cooperation has put her in a vulnerable position, given that the agreements for A to access her leave entitlements were made when each party was represented.
3.In relation to [30.5], the employer submitted that there was no evidence in support of this submission in Mr Fordham's affidavit, and the evidence in A's affidavit of 31 October 2022 was insufficient in detail and cogency.
4.In relation to [30.6], the employer submitted that it is irrelevant. If the stay is granted, A will remain suspended and not performing other duties.
5.In relation to [30.7], the employer submitted that there is no evidence that A has sought alternative employment, or that her circumstances suggest she is unlikely to obtain such employment.
6.In relation to [30.8] - [30.9], the employer 'accepts that the decision to cease [A's] pay was significant and that there was a failure to accord procedural fairness'. However, the employer submitted that this is not sufficient to shift the balance of convenience in A's favour.
[30] Respondent's written submissions, 28 September 2022, pars 38 - 48.
The employer also submitted that the matters referred to in [31] above were of no assistance to A on the question of the balance of convenience.
In relation to the matters referred to in [32] above, the employer contended, in effect, that the fact that the criminal proceedings were out of A's control was not germane to the question of the balance of the convenience in relation to whether there should be a stay of the Full Bench Orders, and that A's evidence in relation to her financial position was lacking any detail or cogency.

Disposition

It was accepted by both A and the employer that an applicant for a stay in this context is required to demonstrate special or exceptional circumstances, and that the power should be exercised sparingly and with caution. Those principles ordinarily require close attention to the strength of the appellant's case on appeal and the balance of convenience.[31]
[31] The Shop, Distributive and Allied Employees' Association of Western Australia v Samuel Gance T/A Chemist Warehouse Perth [2020] WASCA 36 [29] ‑ [35].
Albeit, of course, on a necessarily preliminary basis and without the benefit of full argument, I have not been persuaded by A of the proposition advanced in this application that the merits of A's appeal are 'very strong'.[32] It is inappropriate in the circumstances for me to address that conclusion in detail. It is sufficient for present purposes to make the following brief observations.
[32] Application ts 11.
In relation to ground 1 of the appeal, the Full Bench Decision made no reference to s 26(2) of the IR Act. The Full Bench referred to the referral of the 19 November 2021 decision as an industrial matter pursuant to s 78(2)(b)(iii) of the Public Sector Act and s 29(1)(b) of the IR Act. Section 78(2)(b)(iii) of the Public Sector Act provided, relevantly in effect, that the referral of the decision operated 'as if that decision … were an industrial matter mentioned in s 29(b) of [the IR Act] and that [the IR Act] applies to and in relation to that decision accordingly'. In this context, the Full Bench appears to have decided the appeal by reference to the question for determination that was raised before, and decided by, Commissioner Emmanuel, namely whether the employer exercised its lawful right under s 82(1) of the Public Sector Act to suspend without pay in breach of procedural fairness 'such that a fair go all round requires that the decision be set aside and a new decision be made in its place'.[33] The Full Bench appears to have considered the appeal on the basis of what 'a fair go all round' required, and, in that context, considered the question of the effect of the denial of procedural fairness.[34] In that connection, the Full Bench concluded that the learned Commissioner had failed to assess whether A had established, on the balance of probabilities, that a different outcome was 'realistically possible', and further found that, on the materials, she had not established that.[35] The Full Bench's reasons do not appear, prima facie, to demonstrate that it found, erroneously, that, on its proper construction, s 26(2) of the IR Act 'did not permit the Commission to deviate from addressing each of the specific terms' of the Memorandum.
[33] Full Bench Decision [4]. See also Commissioner's Decision [8], [73], [85].
[34] Full Bench Decision [7], [36], [42], [56] - [59], [61], [63], [65] ‑ [67], [75], [78] ‑ [79]
[35] Full Bench Decision [79].
The Full Bench's observations at [65] appear to be to the effect that the Commission was bound to consider how to deal with the 'industrial matter' the subject of the referral under s 78(2)(b)(iii) of the Public Sector Act (1) within the constraints of the law, (2) having regard to the evidentiary materials in the Memorandum, and (3) with regard to how the hearing was conducted by the parties. At least the first and third of those observations appear prima facie inconsistent with ground 1, and the second is prima facie unremarkable given that the parties tendered no evidence at first instance and relied on the agreed facts in the Memorandum.

Insofar as A contended that the error in ground 1 was illustrated by the fact that the Memorandum was itself not accurate or complete because it included, in par 23(d), a fact which was later withdrawn, the contention appears to be not without its difficulties. That is because the Full Bench expressly referred to the fact of its withdrawal in its recitation of par 23(d) at [9] of the Full Bench Decision.
In Nathanson, Kiefel CJ, Keane and Gleeson JJ (Gageler J agreeing) held that jurisdictional error had been established in that case because the denial of procedural fairness was material to the decision‑maker's decision. The applicant in that case had discharged the onus of demonstrating that the decision‑maker's denial of procedural fairness deprived the applicant of a 'realistic possibility of a different outcome'. That realistic possibility was demonstrable from the record of the decision‑maker's decision, and the applicant 'was not required to articulate a specific course of action which could realistically have changed the result'.[36] In the present matter, A appears, at least implicitly, to seek to contend that the Full Bench (1) erred in principle in failing to apply the correct test of materiality under the common law with respect to jurisdictional error, and (2) thereby erred in fact in finding that A had not established that a different outcome was realistically possible. Neither contention is itself a ground of appeal (perhaps because it might be difficult to fit either within s 90(1) of the IR Act). Nor was it reasonably clear, on this application, how either error could yield the conclusion that the Full Bench misconstrued s 26(2) of the IR Act as alleged in ground 1.
[36] Nathanson [1] - [2], [59].
In light of the above matters and when the Full Bench Decision is read as a whole, my necessarily preliminary impression is that A may have difficulty in establishing the error alleged in ground 1.
In relation to ground 2, that appeared effectively to depend, or at least largely to depend, upon an acceptance of the contention in ground 1.
Ground 3 appears to allege, in effect, that the Full Bench erred in construing s 78(5)(b) of the Public Sector Act as containing 'an unwritten requirement … to apply specific requirements of evidence and argument to establish a basis to set the impugned decision aside'. In her written submissions in the appeal, A explained ground 3 as follows:[37]
In addition or in the alternative to ground 1, the third ground of this appeal contends that the only answer that is reasonably open on the application of s 78(5)(b) of the [Public Sector] Act to the facts of this case is that it was allowable for the Commission at first instance to determine [A's] referral based on the findings that were made and the case presented at hearing.
[37] Appellant's submissions, par 22.
The explanation appears to be directed to the proposition that Commissioner Emmanuel's finding of fact that the denial of procedural fairness was such that 'a fair go all round require[d] that the decision be set aside'[38] was the only finding of fact open on the evidence. To that extent, it appears to assume no error of principle in considering what 'a fair go all round' required. Also in the course of oral submissions, A appeared to contend that Commissioner Emmanuel, and the Full Bench, were required to deal with the referred industrial matter by reference to what a 'fair go all round' required.[39] However, at least on one view of A's written submissions in the appeal,[40] and in other oral submissions on the stay application,[41] A appeared to contend that in dealing with the referral of the decision under s 78(2)(b)(iii) of the Public Sector Act, in accordance with the IR Act, the Commission, and the Full Bench, are precluded, by s 78(5)(b), from giving any consideration to whether there had been 'a fair go all round'. If that be the contention (and prima facie it may be doubted that either Commissioner Emmanuel or the Full Bench understood that to be the contention), it would seem to require a detailed consideration of (at least) the true scope of s 78(5)(b) read in the context of s 78(5)(a) and the concluding words of s 78(2) of the Public Sector Act, and the interaction of those provisions with s 23 and s 26 of the IR Act. On one view of it, A's submissions in the appeal do not, at least in any real detail, explore and explain those issues.
[38] Commissioner's Decision [85].
[39] Application ts 11 - 12, 28.
[40] Appellant's written submissions, 21 September 2022, pars 26 - 29.
[41] Application ts 12 - 13.
Again, my preliminary impression is that on ground 3 as formulated, A may have difficulty in establishing its merits. It is unnecessary, for present purposes, to consider the strength of the notice of contention.
On the question of the balance of convenience, the issue seems to me to ultimately turn on whether it is just in all the circumstances to make an order the effect of which would be to require the employer to resume pay in the period from 4 August 2022 to the determination of the appeal. On one hand, if such an order were made and A failed in her appeal, the employer may well have difficulty in recovering the moneys from A if, as A contended, her financial resources were limited. On the other hand, if the order were not made, and A succeeded on the appeal, appropriate restorative orders could be made against the employer, and the employer would no doubt be good for the money. In this context, the question is ultimately whether and to what extent A would suffer financial hardship if a stay order were not made pending the determination of the appeal.
A provided no evidence of her financial position prior to A's affidavit of 31 October 2022. The relevant evidence in her affidavit of 31 October 2022 has been referred to in [26] above. The evidence, objectively speaking, lacked detail other than the reference to the existence of the mortgage, and was essentially conclusory in nature. Ordinarily, in a matter requiring the applicant to demonstrate special or exceptional circumstances, there would be some direct evidence in this context of the applicant's financial position in relation to assets, liabilities, income and expenses from which the court could form its own conclusion as to the existence and degree of any hardship to the applicant if the stay were not granted. The evidence in this case, however, effectively invited the court to accept A's own conclusions on those matters. That might have been less significant in the overall assessment if the appeal were shown to have strong prospects of success. I have not been persuaded of that in this application, although, of course, I accept that with the fullness of argument, the position might be otherwise on a substantive hearing of the appeal. Having regard to the limited nature of the evidence and the observations on prospects in [42] ‑ [51] above, my overall assessment at this stage is that A has not demonstrated special or exceptional circumstances to justify the grant of a stay order having the mandatory effect of requiring the employer to pay A pending the determination of the appeal.
The other matters referred to by A do not, in my view, assist her. I accept, of course, the fundamental importance of the presumption of innocence and the right to silence afforded to an accused, and I also accept, for present purposes, that A has not caused or contributed to the delays in the criminal proceedings. But those matters do not seem to me to have any material bearing on whether the balance of convenience favours the grant of a stay. I also accept the employer's submissions referred to in [38] above.
In relation to the matters in [31] above, the matters in [31.1] ‑ [31.2] indicate that A's scope for redress from what she contends to be error in the Full Bench Decision depends upon the success of this appeal. That may be accepted but it does not, in my view, contribute to a balancing of the scales one way or another in an assessment of the balance of convenience. I also accept that the employer's power referred to in [31.3] exists, but it is not clear to me how that assists A in this application, given that the employer already has the benefit of the judgment of the Full Bench. The matters referred to in [31.4] ‑ [31.6] and [31.11] essentially relate to the question of A's financial position, which has been discussed earlier. As to the matter in [31.7], if A has the resources to meet any restorative orders in favour of the employer if the appeal failed, her case for a stay is undermined. If she does not, as she contends, albeit on slight affidavit evidence, the effectiveness of any restorative orders in favour of the employer would be compromised. In relation to the matters referred to in [31.8] ‑ [31.10], the question for present purposes is only whether there should be a stay pending the determination of the appeal. The disciplinary process will presumably take its course whatever order is made on the question of a stay.

Conclusion

For the above reasons, I would dismiss A's stay application. Nothing in these reasons would, of course, preclude A from seeking an order for expedition of the hearing of the appeal if she were so advised.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.
RW
Associate to the Honourable Justice Murphy
4 NOVEMBER 2022

affidavit.