A v Minister for Corrective Services [No 2] - [2023] WASCA 51

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION:   A -v- MINISTER FOR CORRECTIVE SERVICES [No 2] [2023] WASCA 51
CORAM:   BUSS J
MURPHY J
SMITH J

HEARD:   22 FEBRUARY 2023
DELIVERED          :   30 MARCH 2023
FILE NO/S:   IAC 3 of 2022
BETWEEN:   A
Appellant
AND
MINISTER FOR CORRECTIVE SERVICES
Respondent

ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram: S J KENNER, CHIEF COMMISSIONER
R COSENTINO, SENIOR COMMISSIONER
T B WALKINGTON, COMMISSIONER

Citation: 2022 WAIRC 00327
File Number : FBA 3 OF 2022

Catchwords:

Industrial law - Appeal from Full Bench of Western Australian Industrial Relations Commission - Where employer failed to provide procedural fairness to employee in deciding to suspend employee without pay - Referral of industrial matter to Commission - Where Full Bench found Commissioner failed to assess whether, on balance of probabilities, a different outcome was realistically possible and that an assessment of that consideration was required in determining the industrial matter referred to Commission - Where Full Bench found that had Commissioner addressed that question, Commissioner would have found no evidentiary basis on which to conclude employee had established, on balance of probabilities, that a different outcome was realistically possible - Where appeal from Full Bench decision alleged errors of statutory construction by Full Bench and denial of procedural fairness by Full Bench - Whether Full Bench erred in statutory construction - Whether Full Bench denied employee procedural fairness on issue of statutory construction - No error demonstrated in appeal as alleged

Legislation:

Industrial Relations Act 1979 (WA), s 7, s 23(1), s 26(1)(a) ‑ (c), s 26(2), s 29(1), s 90
Public Sector Management Act 1994 (WA), s 78(2), s 78(5), s 81(1)(a), s 82

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms P Giles SC & Mr C K Fordham
Respondent	:	Mr C Bydder SC & Mr J Carroll

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 Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Corrective Services v A [2022] WAIRC 00327
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Re Loty v Australian Workers' Union [1971] AR (NSW) 95
Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Table of Contents

Buss & Murphy JJ

Introduction

Background - overview

The Commissioner's decision

The Full Bench decision

Statutory provisions

The Industrial Relations Act

PSM Act

Appeals provisions

A's grounds of appeal

Parties' submissions

A's submissions

The employer's submissions and notice of contention

Disposition

The issues before the Commission

The issues before the Full Bench

Analysis

Ground 1

Ground…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASCA 51
Decision Date: 30 MARCH 2023

CaseChat Overview and Summary

In the case of A v Minister for Corrective Services [No 2], the Full Bench of the Western Australian Industrial Relations Commission reviewed the decision of Commissioner Emmanuel who had set aside a decision by the employer to suspend the employee, A, without pay. The employer had appealed the Commissioner's decision, arguing that it had provided procedural fairness to A when deciding to suspend her without pay. The Full Bench was required to determine whether the Commissioner had erred in concluding that the employer had failed to provide procedural fairness to A.

The key issue before the Full Bench was whether the Commissioner had correctly assessed whether a different outcome was realistically possible in the suspension decision and whether this assessment was necessary for the determination of the industrial matter. The Full Bench found that the Commissioner had failed to properly assess this issue and that had the Commissioner addressed it, they would have found no evidentiary basis for concluding that a different outcome was realistically possible. The Full Bench also considered whether they had erred in their statutory construction and whether they had denied procedural fairness to A in doing so. The Full Bench found no error in their decision or in their statutory construction.

The Full Bench upheld the appeal, quashed the decision of the Commission at first instance, and set aside the suspension without pay. The Full Bench concluded that there had been no denial of procedural fairness by the employer and that the Commissioner had erred in setting aside the suspension decision. The Full Bench's decision was based on their assessment that the Commissioner had failed to properly consider whether a different outcome was realistically possible in the suspension decision and that this consideration was not necessary for the determination of the industrial matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 filed an application on behalf of A in the Western Australian Industrial Relations Commission (Commission) challenging the 19 November 2021 decision and seeking a conference under s 44 of the Industrial Relations Act (CR 36 of 2021). The industrial matter was not settled at the conference, and the Commissioner referred the dispute to a hearing. The union and the employer agreed the relevant facts set out in a 'Memorandum of Matters Referred for Hearing and Determination' (Memorandum). Following a jurisdictional issue raised by the Commission, CR 36 of 2021 was subsequently discontinued. On 3 March 2022, A commenced proceedings in her own right (APPL 8 of 2022) under s 29(1)(a) of the Industrial Relations Act and s 78(2) of the PSM Act to set aside the 19 November 2021 decision. In APPL 8 of 2022, A sought to rely on the grounds and materials in CR 36 of 2021, including the Memorandum. The proceedings in APPL 8 of 2022 were heard by Commissioner Emmanuel. Commissioner Emmanuel upheld A's application and set aside the 19 November 2021 decision. The employer appealed the orders of Commissioner Emmanuel. There were two grounds of appeal, only one of which is relevant for present purposes: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. The other ground, not material for present purposes, was to the effect that Commissioner Emmanuel had not afforded procedural fairness to the employer in relation to a finding as to the effect of the denial of procedural fairness. The Full Bench upheld ground 1 and thereby overturned the Commissioner's decision. Ground 2 was dismissed. The Full Bench ordered:(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. On 28 March 2022, Commissioner Emmanuel heard APPL 8 of 2022. Reasons were delivered on 8 April 2022. The Commissioner said that:[3][A] referred this application to the Commission pursuant to s 29(1)(b) of the [Industrial Relations Act] in accordance with s 78(2)(b)(iii) of the PSM Act. [3] Commissioner's decision [11]. The Commissioner noted that the parties had agreed that the application would be heard and determined on the basis of the agreed facts set out in the Memorandum, documents and submissions filed in application CR 36 of 2021, and that the employer had subsequently confirmed that one agreed fact set out in the Memorandum was included in error and was not agreed.[4][4] Commissioner's decision [12]. The Commissioner said:[5][5] 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 PSM Act to suspend [A] without pay:a)in breach of procedural fairness;b)without having regard to a relevant consideration; orc)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)

Ratio Decidendi

Legal Principle Established

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