A v Minister for Corrective Services [No 2]
[2023] WASCA 51
•30 MARCH 2023
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 2
Ground 3
Other observations
Conclusion
Smith J
Summary
Background
A's employment was suspended in 2020 pursuant to s 82 of the PSM Act
The applications before the Commission at first instance
The procedure and questions for determination agreed by the parties in the hearing at first instance of the matter referred pursuant to s 78(2)(b)(iii) of the PSM Act
The relevant agreed facts relating to the decision in November 2021 to vary the terms of A's suspension, to suspension without pay
A's submissions at first instance
The Commissioner's decision at first instance
The Full Bench appeal by the respondent
The grounds of appeal to the Court and the notice of contention
Grounds 1 and 2
Ground 3
Conclusion
BUSS & MURPHY JJ:
Introduction
This is an appeal by the appellant (A) against the respondent (employer) in relation to orders made by the Full Bench of the Western Australian Industrial Relations Commission (Full Bench) on 3 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). 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 this appeal, A contends that the Full Bench erred by misconstruing certain provisions of the Industrial Relations Act 1979 (WA) and the Public Sector Management Act 1994 (WA), and, in the former case, erred by denying her procedural fairness by not hearing from A on the question of construction. For the reasons which follow, the Full Bench did not address, and thereby did not misconstrue, the particular provisions referred to by A, and, consequently, there was no denial of procedural fairness on the topic of the proper construction of these particular provisions. Accordingly, the appeal should be dismissed.
Background - overview
In general terms, A is, and at all material times was, engaged as a senior prison officer under s 13(2) of the Prisons Act 1981 (WA). There was a work‑place incident in 2018. On 13 August 2020, A was notified that the employer had decided to deal with a suspected breach of discipline in relation to the incident. Pursuant to s 82 of the Public Sector Management Act 1994 (WA) (PSM Act) A was suspended from duty immediately on full pay, with an opportunity to provide a submission as to whether the suspension should continue.
In November 2020, A was charged with a criminal offence relating to making a false record as a public officer. On or about 8 December 2020, A was charged with disclosing a restricted matter, contrary to s 167(3) of the Corruption, Crime and Misconduct Act 2003 (WA).
On 4 December 2020, the employer proposed that A's suspension be without pay. Following certain correspondence with A's union, on 23 December 2020, A was informed that the suspension would continue to be with pay for the immediate future.
The following year, in November 2021, the employer again proposed that the suspension be on terms of suspension on partial pay or without pay. A replied, including to the effect that she could not respond substantively 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 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.
The Commissioner's decision
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; 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)
The relevant considerations which A alleged were disregarded were her claim of financial hardship and that she could not address the related criminal proceedings.[6]
[6] Commissioner's decision [58].
The Commissioner rejected the claim that the employer had failed to take into account hardship as a relevant consideration.[7]
[7] Commissioner's decision [87].
However, the Commissioner found a denial of procedural fairness, in that there were three matters that were not put to A in connection with the proposal to stop her pay:[8]
1the criminal matters were ongoing and [A] had yet to enter a plea;
2.[A] had already received 15 months of pay; and
3.the seriousness of the allegations meant that a serious outcome was warranted if [A] was convicted or if the allegations were found to be made out on the balance of probabilities[.]
[8] Commissioner's decision [81].
Commissioner Emmanuel said that A seemed to argue that her right to silence meant that she could not respond to points 1 and 3 above. The Commissioner found, in effect, that whilst that may be true of point 3, it was not necessarily true of points 1 and 2. The Commissioner said:[9]
[H]ad point 1 been put to [A], perhaps she could have responded in some way. That [A] had yet to enter a plea could well have been for reasons that had nothing to do with [A], her case or the legal advice she had received. [A] could have also responded to the inference that 15 months was a sufficient period to be paid while on suspension in the circumstances. (emphasis added)
[9] Commissioner's decision [82].
The Commissioner concluded, relevantly:[10]
[73]My decision in this case is finely balanced. It turns on its own facts. Ultimately, I consider that the decision to suspend [A] without pay was exercised in a way that means a fair go all round requires that the decision be set aside[.]
…
[83]By failing to properly put to [A] the reasons why it proposed to change her suspension to be without pay, [the employer] failed to afford [A] procedural fairness. I do not consider that breach of procedural fairness to have been minor or without impact.
[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 PSM 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 around requires that the decision be set aside.
[10] Commissioner's decision [73], [83] - [85].
On the question of relief, the Commissioner said:[11]
[90]The decision should be set aside. Accordingly, [A's] suspension should return to being on full pay.
[91]I will order that the decision to change [A's] suspension from being on full pay to being without pay be set aside. [A] will return to being suspended on full pay. (emphasis added)
[11] Commissioner's decision [90] - [91].
Commissioner Emmanuel made orders on 11 April 2022 as follows:
(1)THAT the [19 November 2021 decision] 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 Full Bench decision
In the appeal to the Full Bench, the employer did not seek to disturb the Commissioner's finding that there was a failure to provide A with adequate notice of certain factors identified as reasons for its decision to stop paying A during the period of suspension. Rather, the appeal grounds were directed to whether the employer's failure to provide procedural fairness in respect of those matters warranted the Commission's intervention in the decision.[12]
[12] Full Bench decision [7].
The reasons of decision of the Full Bench were given by Cosentino SC (Kenner CC & Walkington C agreeing). The Senior Commissioner said at the outset:[13]
[2]This appeal concerns how the Commission is to approach the resolution of an industrial dispute in accordance with industrial fairness arising from a denial of procedural fairness.
[3]The employer's decision to change [A's] suspension with pay, to suspension without pay, was referred to the Commission as an industrial matter pursuant to s 78(2)(b)(iii) of the [PSM Act] and s 29(1)(b) of the [Industrial Relations Act][.]
[13] Full Bench decision [2], [3].
The Senior Commissioner noted that no evidence was led or tendered at the hearing at first instance, and that, at first instance, the matter proceeded on the basis of agreed facts embodied in the Memorandum, and documents and submissions filed in the related proceedings CR 36 of 2021.[14]
[14] Full Bench decision [8].
The Senior Commissioner, apparently principally in connection with the employer's second ground of appeal that it had been denied procedural fairness by Commissioner Emmanuel, found, in effect, that:[15]
1.The consequences of the failure to provide A with adequate notice of the factors on which the employer relied to suspend without pay was raised by the employer at first instance, albeit not given great attention in submissions.
2.A's case was that there was no need to address the consequences of a failure to give notice, and that the failure of procedural fairness was itself sufficient to render the decision a nullity.
3.A did not concede that she would not have responded in some way, had notice been given.
4.A did not advance any positive case that the provision of adequate notice of the factors which were considered relevant to the decision to suspend without pay would have created the possibility of a different resulting decision about the conditions of A's suspension.
[15] Full Bench decision [32].
In relation to ground 1 of the appeal, the Senior Commissioner observed that it concerned the 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.[16] The Senior Commissioner observed:[17]
[58]… The focus of the parties' respective cases led the Commission[er] to place prominence on the question of whether there was a denial of procedural fairness, and to place less significance on the practical consequences of the failure in the assessment of industrial fairness.
[59]… 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][T]he 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[18] … 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.
[16] Full Bench decision [57].
[17] Full Bench decision [58] - [60].
[18] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 [60].
The Senior Commissioner further observed:[19]
1.The matter before the Commissioner was not an application for judicial review of a decision for jurisdictional error, but, rather, the determination of an industrial matter, in accordance with the Memorandum. The Commissioner was required to 'deal with' an industrial matter, not review a decision for illegality or consider ordering a retrial.[20]
2.A finding that there is a denial of procedural fairness is not an end in itself, but one step in determining how the industrial matter is to be dealt with.[21]
3.Nevertheless, general law principles as to the content of the duty to afford procedural fairness, and the legal consequences of a failure in that duty, in the determination of remedies, were matters binding on the Commissioner.
4.Accordingly, whilst the Commissioner could not ignore the substantive common law, the Commissioner was bound to consider how to deal with the industrial matter within the constraints of the law, the Memorandum, and how the hearing was conducted by the parties.[22]
5.The Commissioner was required to consider what a fair go all round required. This referred to the principle of industrial fairness as enunciated in the case law in this area[23] - whether the employer exercised its lawful right (in this case, to cease pay during suspension) so harshly or oppressively as to amount to an abuse of that right. This question involved assessing the industrial fairness of the decision.
[19] Full Bench decision [61] - [67].
[20] The Senior Commissioner referred in this regard to Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543 (Moodie) [176].
[21] Referring to Moodie [177].
[22] Referring to Moodie [177] - [178].
[23] 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.
The Senior Commissioner also referred to the reasoning of the majority in MZAPC.[24]
[24] Full Bench decision [72] - [74].
The Senior Commissioner referred to A's arguments on the appeal, and said that A had not addressed 'what evidence there was before the Commission at first instance as to what she would have done with the opportunity had it been given to her, or how the agreed facts would have enabled the learned Commissioner to be satisfied on the balance of probabilities of a realistic possibility that a different decision could have been made had [A] been given proper notice of the relevant factors which ultimately informed the decision'.[25]
[25] Full Bench decision [55].
The Senior Commissioner, in upholding the employer's appeal, said:[26]
[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 [A] 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 [A] 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 [A] 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 [A] 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 [A] 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 [A] bore the onus. (emphasis added)
[26] Full Bench decision [75] - [76], [78] - [79].
In substance, although the language used by the Full Bench to express the point was not always consistent, ultimately it appeared that the Full Bench concluded that:
1.the Commissioner had failed to assess whether, on the balance of probabilities, a different outcome was realistically possible;
2.an assessment of that consideration was required in the determination of the industrial matter referred to the Commission, in order to determine whether A had received a 'fair go all round' in having her suspension changed to one without pay; and
3.had the Commissioner addressed that question, she would have found an absence of an evidentiary basis upon which to conclude that A had established, on the balance of probabilities, that a different outcome was realistically possible.
Statutory provisions
For present purposes, the most relevant statutory provisions are those outlined below.
The Industrial Relations Act
Section 23(1) of the Industrial Relations Act provides:
Subject to this Act, the Commission has cognisance of and authority to enquire into and deal with any industrial matter.
The term 'industrial matter' is defined by s 7 to include 'any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee in the industry …'.
Section 26(1)(a), (b), (c) and (2) provide:
(1)In the exercise of its jurisdiction under this Act the Commission -
(a)must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and
(b)must not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and
(c)must have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole[.]
…
(2)In granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim.
Section 29(1)(b) provides:
(1)An industrial matter may be referred to the Commission -
…
(b)except as provided in section 51Q(2), in the case of an equal remuneration order - by an application made by any of the following -
(i)an employee to be covered by the order;
(ii)an organisation in which employees to be covered by the order are eligible to be enrolled as members;
(iii)an organisation in which employers of employees to be covered by the order are eligible to be enrolled as members;
(iv)UnionsWA[.]
The relevant appeals provisions of the Industrial Relations Act are referred to in [50] ‑ [51] below.
PSM Act
Part 5 of the PSM Act is headed 'Substandard performance and disciplinary matters', and comprises s 76 ‑ s 93A. Division 1 of pt 5 contains s 76 ‑ s 78 and is headed 'General'. Division 2 of pt 5 is headed 'Substandard performance' and contains s 79. Division 3 of pt 5 is headed 'Disciplinary matters' and includes s 80A ‑ s 92.
It was common ground in this appeal that s 78(2) of the PSM Act applied as A was not a 'Government officer' for the purposes of s 78 of the PSM Act. Section 78(2) of the PSM Act provides:
(2)Despite section 29 of the [Industrial Relations Act], but subject to subsection (3), an employee or former employee who -
(a)is not a Government officer within the meaning of section 80C of that Act; and
(b)is aggrieved by -
(i)a decision made in respect of the employee under section 79(3)(b) or (c) or (4); or
(ii)a finding made in the exercise of a power under section 87(3)(a)(ii); or
(iii)a decision made under section 82 to suspend the employee on partial pay or without pay; or
(iv)a decision to take disciplinary action made under section 82A(3)(b), 88(b) or 92(1),
may refer the decision or finding mentioned in paragraph (b) to the Industrial Commission as if that decision or finding were an industrial matter mentioned in section 29(b)[27] of that Act, and that Act applies to and in relation to that decision accordingly. (emphasis added)
[27] sic - s 29(1)(b) of the Industrial Relations Act.
In s 78(2)(b)(i), the reference to a decision under s 79(3)(b) or (c) or (4) is, relevantly in effect, a reference to decisions by the employing authority to reduce the level of classification of the employee or to terminate the employment of the employee where the employing authority is of the opinion that the employee's performance is substandard.
In s 78(2)(b)(ii), the reference to s 87(3)(a)(ii) is to a finding made at the conclusion of a 'special disciplinary inquiry' that the employee has committed a breach of discipline other than a 'section 94 breach of discipline'. Section 87 of the PSM Act provides that the Commissioner may, in specified circumstances, direct that a 'special disciplinary inquiry' be held into the suspected breach of discipline. Under such an inquiry certain powers are conferred on the person or body holding the inquiry in accordance with s 24I and s 24J of the PSM Act.
Section 82, to which s 78(2)(b)(iii) refers, includes a reference to s 81(1)(a) of the PSM Act. Section 81(1)(a) and s 82 of the PSM Act provide:
81.Suspected breach of discipline, employing authority's options as to
(1)If an employing authority of an employee is made aware, or becomes aware, by any means that the employee may have committed a breach of discipline, the employing authority may -
(a)decide to deal with the matter as a disciplinary matter under this Division in accordance with the Commissioner's instructions[.]
…
82.Suspending employee pending decision on breach of discipline or criminal charge
(1)If -
(a)an employing authority has decided to act under section 81(1)(a) in relation to an employee; or
(b)an employee is charged with having committed a serious offence,
the employing authority may, in accordance with the Commissioner's instructions, suspend the employee on full pay, partial pay or without pay.
(2)Subject to subsection (3) -
(a)a suspension arising from a decision referred to in subsection (1)(a) has effect until a decision is made under section 82A(2) or (3) or 88 in respect of the suspected breach; or
(b)a suspension arising from a charge referred to in subsection (1)(b) has effect until the criminal charge or any action that the employing authority is considering taking under section 92 has been finalised.
(3)The employing authority may at any time remove, or vary the terms of, the suspension.
Section 78(2)(b)(iv) refers to 'a decision to take disciplinary action'[28] made under s 82A(3)(b), s 88(b) or s 92(1). A decision to take disciplinary action under s 82A(3)(b) may be made, relevantly in effect, where the employing authority finds, after dealing with a matter as a disciplinary matter, that the employee has committed a breach of discipline that is not a section 94 breach of discipline. Under s 88(b), the employing authority may decide to take disciplinary action where, on receiving a report under s 87(3), the person holding a special disciplinary inquiry finds that the employee has committed a breach of discipline other than a section 94 breach of discipline. Section 92(1) provides that if an employee is convicted or found guilty of a serious offence, the employing authority may take disciplinary action.
[28] The term 'disciplinary action' is defined in s 80A of the PSM Act to mean, in general terms, a reprimand, the imposition of a fine, transferring the employee to another public sector body, transferring the employee to another office position or post in which the employee is employed, a reduction in the monetary remuneration of the employee, a reduction in the employee's level of classification, and dismissal.
Section 78(5) of the PSM Act was introduced by the enactment of s 95 of the Public Sector Reform Act 2010 (WA). Section 78(5) provides:
(5)If it appears to the Industrial Commission or the Public Service Appeal Board that the employing authority failed to comply with a Commissioner's instruction or the rules of procedural fairness in making the decision or finding the subject of a referral or appealed against, the Industrial Commission or Public Service Appeal Board -
(a)is not required to determine the reference or allow the appeal solely on that basis and may proceed to decide the reference or appeal on its merits; or
(b)may quash the decision or finding and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process. (emphasis added)
The Explanatory Memorandum in relation to the Bill for the Public Sector Reform Act stated:
Section 78 amended
Provides for employees as well as former employees to appeal against a decision or finding as defined in the new subsection (1)(b).
Replaces 'decision' with 'direction' in subsection 78(4), to more accurately reflect the employing authority's requirement to dismiss an employee if he or she is found to have committed a section 94(4) breach of discipline.
Subsection (5) clarifies that an employer's technical non‑compliance with the statute, or principles of natural justice, of itself would not render the decision or finding invalid but that the Industrial Relations Commission may either:
•decide the matter on its merits, or
•quash the agency's decision/finding and direct the agency to re‑commence at the point directed by the [Industrial Relations Commission], should the agency choose to continue with the disciplinary matter.
Appeals provisions
Section 49 of the Industrial Relations Act provides for an appeal from the Commission to the Full Bench.
Section 90 provides for an appeal from the Full Bench to this court. Section 90(1)(b) and (c) of the Industrial Relations Act provides, relevantly for present purposes:
(1)Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the Full Bench … -
…
(b)on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c)on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
A's grounds of appeal
A's grounds of appeal to this court were as follows:
1.The Full Bench erred in law in finding that the terms of s 26(2) of the [Industrial Relations 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 [Industrial Relations 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 [the Memorandum] had been prepared for related proceeding, CR 36 of 2021.
c) In the subsequent proceeding commenced under s 78(2) of the PSM 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 PSM Act as ousting or limiting the discretionary power of the Commission provided by s 26(2) of the [Industrial Relations Act].
h) It was not open on any reasonable construction of s 26(2) of the [Industrial Relations Act] or of section 78(2) of the PSM 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 [19 November 2021 decision].
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 PSM 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 [Industrial Relations 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 PSM 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 PSM Act to the facts of this case is that it was open to the Commission to set aside the [19 November 2021 decision] 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 [19 November 2021 decision].
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 [19 November 2021 decision] 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 PSM 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)
Parties' submissions
A's submissions
A's submissions, with respect, lacked clarity and their nature and effect are not easily distilled. They are set out verbatim below.
Ground 1 - construction of [Industrial Relations Act] s 26(2)
2.Ground 1 contends that there is only one answer reasonably open on the application of s 26(2) of the [Industrial Relations Act] to [A's] case, namely, that it was allowable for the Commission at first instance to determine [A's] referral with regard to the circumstances and power referred to by s 78(5)(b) of the PSM Act and not strictly by the particulars referred to in [A's] initiating claim.
3.By finding that the Commission was duty-bound to follow a specific process and to address particular questions that were put in [A's] initiating claim ([Memorandum]), the inescapable inference arises that the Full Bench incorrectly construed the discretion given by s 26(2) of the [Industrial Relations Act] as being subject to those matters.
4.During the hearing at first instance, [A] raised with the Commission that [A] sought the outcome referred to at 78(5)(b) of the PSM Act.
5.The hearing of FBA 3 of 2022 was also conducted on the basis that it was open to the Commission to rely on the terms and discretion conferred by s 78(5) in dealing with [A's] referral.
6.At all material times, [A's] position was based on prior authorities concerning s 26(2) of the [Industrial Relations Act], the effect of which propose that the Commission is not restricted to the terms or to the particulars of the claim as initially framed in granting relief or redress under the Act.
7.By incorrectly finding that the Commission was bound to follow the questions put in the [Memorandum], the Full Bench further held that the Commission was obligated to adopt the principles of judicial review, and ultimately Full Bench applied the principles of judicial review in such a way as to make an error of law as identified in Nathanson.[29]
[29] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 [2], [46] ‑ [47], [59], [77].
Ground 2 - No hearing on the nature and effect of the Memorandum
8.Ground 2 of this appeal relies upon the principle articulated by Mason CJ in Pantorno v The Queen (1989) CLR 466 that an agreement of the parties regarding the conduct of a matter does not bind the trial judge; And that in the event that a decision‑maker determines the law to be different from the manner in which the parties have conducted their respective cases, the trial judge must inform the parties of the view that has been formed.
9.The principle in Pantorno is supported by s 26(3) of the [Industrial Relations Act] which provides -
'3)Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission must, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.'
10.Ground 2 relates to the Full Bench determination that the Commission at first instance was bound to follow the terms of a [Memorandum] which had been prepared for a closely-related but separate proceeding.
11.The [Memorandum] was prepared for referral CR36 of 2021 pursuant to regulation 31 of the [Regulations].
12.The parties to APPL 8 of 2022 subsequently agreed that [A's] claim would be heard and determined on the basis of the facts that were agreed in the [Memorandum].
13.During the hearing at first instance Counsel for [A] asked the Commission to hear and determine APPL 8 of 2022 in the manner contemplated by s 78(5) of the PSM Act.
14.Relevantly, a fact that was considered significant by [A] recorded at paragraph 23(d) of the [Memorandum] was then withdrawn by the [employer] during the hearing of APPL 8 of 2022.
15.Counsel for the [employer] at first instance also appeared to accept that [A's] claim was not governed by the terms of the [Memorandum] as would ordinarily be the case for an application under s 44 of the [Industrial Relations Act].
16.At the hearing at first instance, and upon learning that a significant fact contained in the [Memorandum] had been withdrawn by the [employer], [A] notified the Commission of the fact that the case of [A] had been formulated based on a set of facts that were no longer agreed.
17.The position that had ostensibly been accepted by the parties during the hearing at first instance was that the [Memorandum] no longer reflected an agreed document, and in any event was not binding upon the Commission in the way that would ordinarily be the case for a referral made under s 44 of the [Industrial Relations Act].
18.Contrary to that position, the Senior Commissioner proceeded to deal with the appeal to the Full Bench on the basis that the terms of the [Memorandum] were in fact binding upon the Commission, and that the terms of the [Memorandum] set out very particular steps that needed to be followed to resolve the claim.
19.The findings that the [Memorandum] was in the nature of a document that was binding upon the Commission was an assumption made by the Senior Commissioner. The substance of those assumptions were fundamental to the Senior Commissioner's ultimate finding that the first ground of FBA 3 of 2022 had been made out.
20.[A] contends that the essential proposition that the [Memorandum] was binding and instructed the necessary approach to the determination of APPL 8 of 2022 was not raised squarely with the parties.
21.The Senior Commissioner's findings with respect to the nature and effect of the [Memorandum] materially affected her decision with respect to the first ground of appeal in FBA 3 of 2022.
Ground 3 - construction of PSM Act s 78(5)
22.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 PSM 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.
23.At [61] to [63] of the [Full Bench decision], the Full Bench adopted the principles articulated in Moodie which distinguish a merits-based enquiry under the [Industrial Relations Act] from the strict principles of a judicial review.
24.In accepting that [A's] claim could not be determined solely on the fact of denied procedural fairness, it was held by the Full Bench that the Commission was bound to act within the constraints of law, the [Memorandum] and how the hearing was conducted by the parties.
25.The relevant provisions of law in this case included s 78(5) of the PSM Act.
26.On the plain words of s 78(5)(a) of the PSM Act, the Act provides an option for the Commission to hear and determine an industrial matter on the merits of the particular case at hand even where a failure of procedural fairness has been identified.
27.The second option evident on the plain words of s 78(5)(b) of the PSM Act strongly imply that a merits-based enquiry is not required for the Commission to make a determination to quash the impugned decision or finding and remit a disciplinary process back to the relevant employing authority.
28.On a proper construction of s 78(5)(b) of the PSM Act, and contrary to the finding of the Full Bench, the Commission at first instance was not strictly required to carry out a particular type of merit-based assessment to identify whether the principle of industrial fairness warranted a determination to set aside the decision to cease the payment of [A's] wages.
29.Having regard to s 78(5)(b) of the PSM Act and s 26(1) of the [Industrial Relations Act], the Commission was required to act according to equity, good conscience, and the substantial merits of the case, and also having regard to the interests of [A].
30.In the circumstances, [A] contends that the Commission at first instance was reasonable to find that the breach of procedural fairness was not minor or without impact.
31.[A] further contends that the [employer's] late change of position with respect to facts that had been initially agreed by the parties provided further basis for the Commission to exercise the discretion provided by s 78(5)(b) of the PSM Act, and without the need for the Commission to address the specific issue of industrial fairness.
The employer's submissions and notice of contention
The employer contended, in effect, that having regard to the terms of the Full Bench decision and the history of the matter, the Full Bench did not make the errors alleged in the grounds of appeal. The employer also raised two further matters.
First, the employer submitted that s 78(5)(b) is only engaged when the decision the subject of appeal or referral is made following the conclusion of a 'disciplinary process', rather than being engaged by any decision that could be the subject of appeal or referral under s 78. The employer submitted that a decision to suspend on partial pay or no pay does not cause a disciplinary process to come to an end, and that, to the contrary, a suspension under s 82(1) remains in place whilst a disciplinary process remains on foot: s 82(2).[30] In that regard, the employer:
1.referred to the wording of s 78(5), with its reference to 'recommenced' in the context of directions upon remitter;
2.referred to s 81(1)(a), where the 'matter' referred to in that provision is evidently a disciplinary matter; and
3.submitted that it is doubtful that any directions would need to be made under s 78(5)(b) if it applied to a decision to suspend on partial pay or without pay, thereby indicating that it has no application to a decision to suspend on partial pay or without pay.
[30] Employer's written submissions 17 October 2022, pars 51 - 56.
Secondly, the employer 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.
Disposition
Ultimately, grounds 1 and 3 turn upon the proper construction of the Full Bench's reasons for decision. That is because each of those grounds alleges, in effect, that it is apparent from the Full Bench decision that it misconstrued a statute. In the case of ground 1, the alleged misconstruction is said to be of s 26(2) of the Industrial Relations Act, and in the case of ground 3, the alleged misconstruction is said to be of s 78(5)(b) of the PSM Act.
These grounds and their submissions invite attention to what was decided by the Full Bench having regard to the issues that were in dispute before the Full Bench, including in the context of the issues for determination by Commissioner Emmanuel. These matters are addressed in [59] ‑ [70] below.
The issues before the Commission
There was no reference to s 26(2) of the Industrial Relations Act in the parties' submissions to the Commissioner.
In CR 36 of 2021, the parties' provided written submissions in response to the jurisdictional issue raised by the Commission. In addition to addressing the jurisdictional issue, those submissions also included submissions on the substantive dispute between the parties.
In her written submissions dated 7 February 2022, A submitted:[31]
[31] A's submissions, 7 February 2022, pars 1 - 3, 26, 28, 32 - 33, 36, 39.
1.[A] seeks an order to quash the [19 November 2021 decision] by the [employer] … to cease pay to [A].
2.[A] contends that the nullification of the [19 November 2021 decision] will result in [A] being returned to the position that she was in immediately before the decision was made, being on suspension with full pay.
3.A fundamental point that is contended by [A] is that [she] was unable to speak to all the relevant factors that were considered in the [employer's] assessment of the proposal to cease pay. In particular, [A] was not able to address the key factors that apparently weighed most heavily against her in the final decision.
…
What have the parties asked the Commission to 'deal with'?
26.[A] contends that [she] was denied procedural fairness in the decision to change the terms of the suspension to cease pay.
…
28.The consequences of an administrative decision made absent the required standard of procedural fairness is that the decision is to be treated as a nullity.
…
32.In relation to a challenge against a decision to suspend without pay, the consequences of a failure to afford procedural fairness were considered in depth by the [Full Bench] in a 2008 appeal judgement [sic] relating to an application under s 44 of the [Industrial Relations Act] (Moodie).
33.In Moodie, support was given to the proposition that an administrative decision that was affected by a denial of procedural fairness was 'void' and was to be treated as if it was of no effect.
…
36.The effect of the decision in Moodie and the substance of the parties' agreement are reflected in the question and the remedy sought in the Memorandum wherein the Commission is asked to decide the terms on which [A's] suspension should continue as from the date of any order.
…
39.[A] does not seek any order that otherwise would have the effect of preventing the [employer] from dealing with [A's] suspension in the ordinary fashion going forward. (emphasis added)
There were two brief references to s 78(5)(b) in the parties' oral submissions at the hearing before Commissioner Emmanuel on 28 March 2022. In oral submissions, counsel for A first referred to s 29(1)(b) of the Industrial Relations Act and s 78(2) of the PSM Act, and said that the decision being 'appealed against' was the decision to suspend without pay made under s 82. Counsel said as to this 'appeal':[32]
I use the word 'appeal', but it is not a rehearing, we're not hearing the decision on the merits, we're seeking an outcome, more or less, that's referred to in s 38(5) [sic - s 78(5)] of the [PSM Act], which is to quash the decision and revert the disciplinary process back to the [employer].
And I think s 78(5)(b) answers the questions about the powers of the Commission to deal with this matter. (emphasis added)
[32] Hearing 28 March 2022, ts 3.
Counsel for A did not contend that s 78(5) of the PSM Act operated on the basis that it was not necessary for A to establish industrial unfairness, or that A was seeking to depart from the matters in the Memorandum. On the question of relief, counsel for A submitted:[33]
[A] doesn't ask for this matter to be dealt with on the merits, so we haven't changed our stance in that regard. We say it's not a merit-based case, it's being dealt with purely on the basis of denying procedural fairness. [Moodie] is authority for the fact that procedural fairness is enough on its own to justify the quashing of the decision. It's going to be open to [the employer] to revisit the process again straight away, after a - in the event an order is made. So if [A] is simply returning to a position of being on suspension with pay, [the employer] can simply issue her with another letter and reinstitute a process, if that's what it wants to do, so there's no prejudice to [the employer] from that point of view.
[33] Hearing 28 March 2022, ts 31.
Counsel for the employer also briefly referred to s 78(5) of the PSM Act, when he submitted, in effect, that if an applicant challenged a decision only on a procedural fairness ground and lost, it would not be open to the Commission 'to decide the matter based on its view of the substantive fairness'.[34]
[34] Hearing 28 March 2022, ts 16.
The agreed issues for determination by the Commissioner Emmanuel were agreed by the parties and are those referred to in [18] above. In substance, the issues were (1) whether there was a failure to provide procedural fairness (or take into account relevant considerations) in relation to the 19 November 2021 decision, (2) if so, whether a 'fair go all round' required the decision to be set aside and a new decision to be made in its place, and (3) if so, on what terms A's suspension should continue.
No reference was made by Commissioner Emmanuel in her reasons for decision to s 26(2) of the Industrial Relations Act, or to s 78(5) of the PSM Act.
The issues before the Full Bench
The parties filed written submissions before the hearing by the Full Bench. Neither the employer's written submissions (dated 26 May 2022) nor A's written submissions (dated 1 June 2022) referred to s 26(2) of the Industrial Relations Act or s 78(5) of the PSM Act.
A's written submissions dated 1 June 2022 included:
33.From [73] to [85] of the [Commissioner's decision], the Commissioner considered the material issues that she identified as necessary to deal with the industrial matter.
34.After noting that procedural fairness was a requirement for a decision to cease pay to a suspended employee, the Commissioner held that procedural fairness could still be afforded even where circumstances are complicated by a related criminal proceeding.
…
36.The Commissioner … identified that the notice that was actually given to [A] had failed to provide any real grounds for the proposal to cease pay, noting that there were 'at least' three reasons that were obviously omitted from the notice.
37.Of those three reasons … the Commissioner considered that [A] could reasonably have provided a fulsome or partial response to two of the reasons if they had been properly put.
38.Accordingly the Commissioner held that the failure to provide adequate notice in this particular case was not minor and without impact and was enough of a factor on its own to warrant an order that the decision to cease pay be set aside.
…
55.APPL 8 of 2022 was determined in favour of [A] on the basis that [the employer] failed to provide adequate notice, and that the breach of procedural fairness was not minor or without impact.
In oral submissions on 8 June 2022, counsel for A made the following references to s 78(5) of the PSM Act:[35]
[35] Hearing 8 June 2022, ts 11 - 14.
In relation to the first ground of the appeal, on the generous reading, we think it's asserting a mixed error of fact and law … That's how we read the reference to practical injustice, and we think there's an assertion of an error of fact in the finding that there was practical injustice. That's how we read ground 1.
… [W]e agree that the principles of judicial review are relevant and they have application, but they're not strictly determinative, particularly in a case of a claim application under section 78 of the [PSM Act], and I'm referring to section 78(5).
… We say section 78(5) is a direct amendment, if you like, to the law that could otherwise be applied for judicial review. On our reading of section 78(5), the Commission has the power to simply intervene in the - in a decision - a disciplinary decision purely on the basis of identifying procedural defect or a defect in procedural fairness.
The Commission's not required to go that extra step to identify whether or not there's been practical injustice … in the appeal … so I'm referring to the High Court decision in [MZAPC].
…
[T]he majority in that case refer to the need to have materiality in the deciding of a judicial review. …
That's how we read the majority judgment. And we say that section 78(5) specifically addresses that, and it allows the Commission to look at the entirety of a case and if it's satisfied that there's procedural defect, then it doesn't need to go any further if it doesn't wish to, or it may consider other circumstances. [W]e agree that the strict processes of judicial review don't apply in this case, particularly, to an application under section 78, because of section 78(5). It's gone out of their way to amend the law, if you like, under judicial review, on that point.
KENNER CC: And of course, regardless of what is in [s] 78(5), given that section 78 enables a referral of a matter as if it were an industrial matter, … the terms of section 26 of the Industrial Relations Act apply to that matter.
FORDHAM, MR: Yes.
KENNER CC: And that is the equity and good conscience provision as to how the Commission should deal with it, and hence my question to you and your friend about the nature of the approach overall, and whether it might've been overly restrictive in strictly applying, on the fact of it at least, those administrative review - judicial review[-]type principles and whether a more - generous is not the right word, but an assessment of the industrial fairness of the overall decision‑making - - -
FORDHAM, MR: It's a different question - - -
- - - I - we agree. The - it's a different question to a judicial review under the context of the [Industrial Relations Act] and the [PSM Act].
…
So we say there's no error of law. we say that the judgment is - the determination was open to the Commission based on section 78(5) alone, she didn't even need to, in our view, to have determined whether or not it was minor or whether it was - had impact or not. We say that's not necessary under section 78(5). It's open for the Commissioner simply to say, 'Well, look, it's not good enough for a public sector body of this type to go through this kind of process. It needs to go back and be re‑determined'. We say that that's what section 78(5) is intended to do to empower the Commission to make that kind of determination and whether or not there's been any material impact on the outcome based on the procedural defect.
COSENTINO SC: So are you saying that the finding that the Commissioner made, that the breach of procedural fairness was not minor or without impact, you were saying that that was unnecessary of her to have made that finding at all?
[FORDHAM], MR:[36] Yes, that the decision would hold, even without that finding. It's sufficient, in our view, under section 78(5), that there be a significant defect or a significant failing in the process, in that, in the Commissioner's view, it's enough to warrant it being sent back and done again.
COSENTINO SC: So the referral - the [Memorandum] required the Commissioner to consider whether there had been a breach of the regulatory framework - the requirements of procedural fairness, but it then went on to refer to a fair go all round, what do you say the Commissioner was required to [decide in] respect of the fair go all round?
FORDHAM, MR: Well, whether there's been fairness between the parties. So I think that does broaden the question. So arguably, the insertion of that in the memorandum would have an effect and would be guiding for the Commission under an application under section 44, but things changed in February and then March, when a new application was made.
Now, the way the parties proceeded was to use the agreed facts and the submissions and the materials that had been submitted already in CR 36 of 2021, but … an application under section 78 is not the same as an application under section 44. And to the extent that the parties may have agreed a question, the Commission's not bound by that question, and that doesn't overrule the ability of the Commission under section 78(5) to simply say, 'Well, I've identified a serious procedural defect, it's enough for me to set this decision aside and send it back to the employer'.
[36] The transcript refers to 'Mr Anderson' for the employer at this point, but it appears that this is a typographic error and that counsel addressing was Mr Fordham for A.
By these submissions, although there was no notice of contention,[37] A appeared to contend that even if ground 1 before the Full Bench were established, Commissioner Emmanuel's decision should be upheld on the alternative ground that, on the proper construction of s 78(5) of the PSM Act, the (unchallenged) finding of the failure to provide procedural fairness was itself sufficient to justify Commissioner Emmanuel's orders, and that it was unnecessary to consider whether the failure involved any failure to provide A with a 'fair go all round'.
Analysis
Ground 1
[37] Regulation 102(12) of the Regulations provides:
If a person who is a party to the proceedings before the Commission proposes to argue at the hearing of the appeal that the decision of the Commission should be upheld on grounds other than those relied on by the Commission in that decision, the person must, within 14 days after service of a copy of the appeal book, file a notice of contention in the approved form that sets out those grounds.
The Full Bench, in its reasons, does not appear to have addressed A's alternative submission referred to in preceding paragraph. Whether it should have, absent a notice of contention, is not a matter which arises in this appeal. Nevertheless, the omission does not, in our opinion, imply anything about the Full Bench's view as to the proper construction of s 26(2) of the Industrial Relations Act.
The Full Bench determined the issues in the appeal on the basis of the grounds of appeal, and in the context of the evidence and the issues agreed by the parties for determination by Commissioner Emmanuel. At no stage in the appeal to the Full Bench (or, indeed, before Commissioner Emmanuel) was there a mention of, let alone an issue as to, the proper construction of s 26(2) of the Industrial Relations Act.
Insofar as the Full Bench referred to the Memorandum, it was in the context of referring to the history and conduct of the matter at first instance.[38] In this context, the Full Bench observed that the Commission was 'bound to consider how to deal with the industrial matter within the constraints of the law, the [Memorandum] and how the hearing was conducted by the parties'.[39]
[38] See, for example, Full Bench decision [4], [8], [9], [19].
[39] Full Bench decision [65].
In our view, on the proper construction of the Full Bench decision, the Full Bench did not (contrary to the allegation in ground 1) find that s 26(2) of the Industrial Relations Act 'did not permit the Commission to deviate from addressing each of the specific terms of the [Memorandum] … in granting relief or redress under the [Industrial Relations Act]'.
Accordingly, we would dismiss ground 1.
Whilst the reference in ground 1 to the misconstruction of s 26(2) of the Industrial Relations Act may not be a contrivance, it appears at least to involve a strained attempt to find some statutory peg, in accordance with s 90(1)(b) of the Industrial Relations Act, on which to hang what is in substance a complaint that the Full Bench erred in finding that A had not established that she had been denied a 'fair go all round'.
Ground 2
Ground 2 alleges, in substance, that A was not given the opportunity to make submissions on whether the Commission at first instance was restricted to dealing with A's referral in terms of the Memorandum. This ground should be dismissed on the basis that the Full Bench did not make that finding. As noted in [73] above, the Full Bench found in terms that the matter was to be determined in accordance with (1) the constraints of the law, (2) the Memorandum, and (3) how the hearing was conducted by the parties.
Ground 3
In our view, ground 3 has not been established for the following reasons.
First, ground 3 misstates the finding of the Full Bench. The Full Bench did not (as alleged in ground 3) find that s 78(5)(b) of the PSM 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'. That is so for the reasons below.
On the proper construction of the reasons for decision of the Full Bench, the Full Bench was not directing its attention in the appeal to the operation of s 78(5)(b) of the PSM Act. Rather, in our view, the Full Bench was directing its attention to the combined operation of s 78(2)(b)(ii) of the PSM Act and s 29(1)(b) of the Industrial Relations Act, in the context of s 23 and s 26(1) of the Industrial Relations Act, in concluding that in order to set aside the 19 November 2021 decision, A was required to show not only a breach of procedural fairness, but that the failure to provide procedural fairness meant that there was a failure to provide A with a 'fair go all round'. That appears, in our view, from:
1.The fact that Commissioner Emmanuel, in granting relief to A, did not refer to s 78(5)(b) or use the statutory language of s 78(5)(b) of the PSM Act. The learned Commissioner did not 'quash the decision … and remit the matter back to [the employer] …'. The predicate for the appeal was not the grant of relief under s 78(5)(b) of the PSM Act.
2.The absence of any reference to s 78(5)(b) of the PSM Act in the Full Bench decision.
3.The Full Bench's reference to the application having been referred to the Commission as an industrial matter pursuant to s 78(2)(b)(iii) of the PSM Act and s 29(1)(b) of the Industrial Relations Act.[40]
4.The Full Bench's reference to the Commissioner having outlined the relevant statutory provisions, which included the observation that A had referred the application to the Commission pursuant to s 29(1)(b) of the Industrial Relations Act and s 78(2)(b)(iii) of the PSM Act.[41]
5.The Full Bench's discussion of the principles as to whether the employer had provided to A a 'fair go all round' in changing the terms of her suspension to suspension without pay, in the context of dealing with the 'industrial matter' referred to it under s 78(2)(b)(iii) of the PSM Act and s 29(1)(b) of the Industrial Relations Act.[42]
[40] Full Bench decision [3].
[41] Full Bench decision [34] read with Commissioner's decision [11].
[42] Full Bench decision [61] - [66].
Secondly, in this appeal senior counsel for A accepted that (1) Commissioner Emmanuel had not proceeded under s 78(5)(b) of the PSM Act,[43] and (2) the Commissioner's powers under s 78(5) '[sat] alongside' the powers given to the Commission 'to determine industrial matters pursuant to s 29 of the Industrial Relations Act'.[44] Acceptance of these matters seems to us to undermine A's contention that the Full Bench, by necessary implication, misconstrued s 78(5)(b) of the PSM Act.
[43] Appeal ts 8 - 9.
[44] Appeal ts 12.
Thirdly, if we were wrong in concluding that the Full Bench was not construing s 78(5)(b) of the PSM Act in the Full Bench decision, then we would still dismiss ground 3. That is because, on the proper construction of the Full Bench's decision, the most that could be inferred is that the Commission found that insofar as there was a discretion under s 78(5)(b) to quash the 19 November 2021 decision, the question of whether A had established that, on the balance of probabilities, a different outcome was realistically possible, was a relevant consideration.[45]
Other observations
[45] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40.
The matters referred to above are sufficient to dispose of the appeal, and the appeal should be dismissed for those reasons. However, we would make the following additional observations.
A submitted under ground 1 that the Full Bench further held that the Commission was 'obligated to adopt the principles of judicial review, and ultimately [it] applied the principles of judicial review in such a way as to make an error of law as identified in Nathanson'. However, that submission sought to add an alleged error outside of the compass of ground 1. It did not provide an argument in support of the error alleged in ground 1. Insofar as A, via this argument, sought to contend that the Full Bench misapplied the reasoning of MZAPC having regard to the more recent decision of the High Court in Nathanson, we are not persuaded, in any event, that, on the proper construction of the Full Bench's decision, any material error has been demonstrated.[46]
[46] See Nathanson [1] - [2], [31], [33] (Kiefel CJ, Keane & Gleeson JJ), [45] ‑ [46] (Gageler J).
In relation to ground 2, A appears to contend, in her submissions, that the facts were in dispute before the Commissioner. These arguments do not fall within ground 2 and, in any event, the premise for these arguments was not established.
In relation to ground 3, as noted earlier, A submitted in her written submissions:
27.The second option evident on the plain words of s 78(5)(b) of the PSM Act strongly imply that a merits-based enquiry is not required for the Commission to make a determination to quash the impugned decision or finding and remit a disciplinary process back to the relevant employing authority.
28.On a proper construction of s 78(5)(b) of the PSM Act, and contrary to the finding of the Full Bench, the Commission at first instance was not strictly required to carry out a particular type of merit-based assessment to identify whether the principle of industrial fairness warranted a determination to set aside the decision to cease the payment of [A's] wages.
Although not entirely clear, arguably, by these submissions, A sought to repeat the alternative argument referred to in [70] above. The argument appeared to be more by way of assertion than a process of legal reasoning as to the proper construction of s 78(5) of the PSM Act. Moreover, in oral submissions, senior counsel for A said:[47]
It is a difficult argument to progress, and I acknowledge that, but there are two ways of reading [s 78(5)(b)] and what Commissioner Emmanuel has done is simply quash the decision, which we say, on her interpretation of [s 78(5)(b)] may, in fact, have been open to her, because there are two ways of reading it. … It's a matter of statutory construction. It has not been argued. (emphasis added)
[47] Appeal ts 59.
Accordingly, as best as we understood it, A was not contending that this court should determine that s 78(5)(b) has the operation referred to in [70] above.
Whilst, accordingly, it is not necessary to determine the proper construction of s 78(5)(b) for the disposition of this appeal, we would add that, in our view s 78(5)(b) does not have the meaning referred to in [70] above. Nor, however, do we accept that it has no operation to a decision to suspend on partial or no pay as contended for by the employer.
The language of s 78(5) in its ordinary meaning, and read in the context of s 78 as a whole, prima facie applies to each of the references to the Commission under s 78(2)(b)(i) ‑ (iv) where it appears to the Commission that the employing authority failed to comply with the rules of procedural fairness. Whilst it may be accepted that a decision to suspend on partial pay or without pay would, at least not ordinarily, be associated with a pause in the disciplinary process, the reference in s 78(5)(b) to directions in relation to the 'recommencement' of the disciplinary process does not, in our view, govern the intended operation of s 78(5)(b). Properly construed, the power to give directions is an additional power capable of exercise in appropriate circumstances where the power to remit is exercisable, but it does not determine the scope of the power to quash and remit.
In our view, the effect of s 78(5) read with s 78(2) of the PSM Act is that on a referral of a decision or finding under s 78(2)(b)(i) ‑ (iv), if in dealing with the referral as an industrial matter the Commission concludes that the employing authority denied the employee procedural fairness sufficient to warrant the decision or finding being set aside, then the Commission may:
(a)under s 78(5)(a), proceed to decide the matter the subject of the reference on its merits; or
(b)under s 78(5)(b), quash the decision or finding affected by the denial of procedural fairness and remit the matter the subject of the reference back for determination by the employing authority with such directions, if any, as may be appropriate for any recommencement of the disciplinary process by the employing authority.
More particularly, and relevantly for present purposes, the effect of s 78(5) read with s 78(2) of the PSM Act, in our opinion, is that on a referral of a decision under s 78(2)(b)(iii) to suspend the employee on partial pay or without pay, if in dealing with the referral as an industrial matter the Commission concludes that the employing authority denied the employee procedural fairness sufficient to warrant the decision being set aside, then the Commission may:
(a)under s 78(5)(a), proceed to determine on its merits the decision to suspend on partial pay or without pay; or
(b)under s 78(5)(b), quash the decision to suspend on partial pay or without pay and remit the decision to suspend on partial pay or without pay back for determination by the employing authority, with such directions, if any, as may be appropriate for any recommencement of the disciplinary process.
Further, the powers under s 78(5) are, in our view, additional to the jurisdiction of the Commission to set aside the decision to suspend
on partial pay or without pay in dealing with such a reference as an industrial matter, in accordance with s 78(2) of the PSM Act and s 29(1)(b) of the Industrial Relations Act.
It is not necessary to consider the notice of contention.
Conclusion
The appeal should be dismissed.
SMITH J:
Summary
For the reasons that follow, I agree that A has not made out any of the grounds of appeal, and that the appeal should be dismissed.
Background
A's employment was suspended in 2020 pursuant to s 82 of the PSM Act
A is employed by the respondent as a senior prison officer, under s 13(2) of the Prisons Act.
In November 2018, there was an incident involving another officer against a prisoner, resulting in injury to the prisoner. It appears that this incident led to disciplinary action being taken against a number of officers, including notifying A that she was suspected of a breach of discipline. The alleged breach of discipline arose out of an investigation conducted by the Corruption and Crime Commission (CCC).
Section 81(1)(a) of the PSM Act provides that if an employing authority of an employee is made aware, or becomes aware, by any means that 'the employee may have committed a breach of discipline', the employing authority may 'decide to deal with the matter as a disciplinary matter under this Division in accordance with the Commissioner's instructions'.
Section 82(1) provides that if an employing authority has decided to act under s 81(1)(a) in relation to an employee, or an employee is charged with having committed a serious offence, 'the employing authority may, in accordance with the Commissioner's instructions, suspend the employee on full pay, partial pay or without pay'. Section 82(3) provides that the employing authority 'may at any time remove, or vary the terms of, the suspension'.
By letter dated 13 August 2020, A was suspended with pay while the respondent began a disciplinary investigation under the PSM Act.
In August 2020, the investigation for the breach of discipline was put on hold because CCC proceedings prevented A from responding to any allegations.
In November 2020, A was charged with a criminal offence for making a false record as a public officer in November 2018 and later, in December 2020, she was charged with disclosing a restricted matter contrary to s 167(3) and s 167(2)(a) of the Corruption, Crime and Misconduct Act.[48]
[48] Commissioner's decision [3].
In November 2021, the respondent altered the suspension decision by suspending A without pay.
The applications before the Commission at first instance
As a result of the decision by the respondent to alter the suspension decision, an application was filed by A's union under s 44 of the Industrial Relations Act (for a compulsory conference). The application was not resolved at conciliation and it was referred for hearing. Pursuant to s 44(9), the Commission referred the questions in dispute for hearing in a 'Memorandum of Matters Referred for Hearing and Determination under Section 44' (Memorandum). The Memorandum contained a number of facts set out in pars [2] ‑ [31] which the parties had agreed were agreed facts. The s 44 hearing did not proceed. It was discontinued following an issue of jurisdiction being raised.
A then referred an application to the Commission pursuant to s 78(2)(b)(iii) of the PSM Act.
Section 78(2)(b)(iii) provides that, despite s 29 of the Industrial Relations Act, but subject to s 78(3), an employee who is aggrieved by a decision made under s 82 to suspend the employee on partial pay or without pay 'may refer the decision … to the Industrial Commission as if that decision … were an industrial matter mentioned in section 29(b) [sic: s 29(1)(b)] of that Act, and that Act applies to and in relation to that decision accordingly'.
Section 78(5) is to the effect that if it appears to the Commission that an employer has failed to comply with the rules of procedural fairness in making the decision (referred to the Commission), the Commission is not required to determine the reference solely on that basis and may proceed to decide the reference on its merits, or may quash the decision and remit the matter to the employer with directions as to the stage at which the disciplinary process is to recommence if the disciplinary process is continued by the employer.
The procedure and questions for determination agreed by the parties in the hearing at first instance of the matter referred pursuant to s 78(2)(b)(iii) of the PSM Act
Of importance in the disposition of the appeal to the Full Bench is that at the hearing before the Commission at first instance, the parties agreed not to adduce any evidence.[49]
[49] Commissioner's decision [12] ‑ [13].
The parties agreed that the application would be heard and determined on the basis that the agreed facts set out in pars [2] ‑ [31] of the Memorandum and the documents and submissions filed in the s 44 application be taken to have been filed in relation to the s 78(2)(b)(iii) of the PSM Act referral.[50] One paragraph of the Memorandum, par 23(d), was subsequently withdrawn by the respondent on the basis that it was included in error and was not agreed.[51]
[50] Commissioner's decision [12].
[51] Commissioner's decision [12].
The parties also agreed the questions that the Commissioner was to decide in determining the matter referred. These were the same questions which were in the Memorandum, and were as follows:[52]
[52] Commissioner's decision [8].
1.Did the respondent exercise its lawful right under s 82(1) of the PSM Act to suspend the applicant 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 the applicant's suspension continue?
From these questions, it was clear that the dispute between the parties was whether A had been denied procedural fairness by the respondent when the decision was made to vary the terms of A's suspension, and whether that decision was fair.
The relevant agreed facts relating to the decision in November 2021 to vary the terms of A's suspension, to suspension without pay
The respondent wrote to A by letter dated 11 November 2021 informing her that altering her suspension from duty from suspension on full pay to suspension on partial pay or without pay was being considered and a decision would be made within seven days from receipt by her of the letter. The letter invited A to submit a written submission in respect of the terms of her suspension.
In the letter dated 11 November 2021, the respondent stated that:[53]
[53] Memorandum par 23.
a)[A] had been charged with a criminal offence which the respondent regards as serious;
b)the ongoing criminal proceeding has caused the disciplinary process to be stayed;
c)[A] had remained on suspension with pay for 15 months, during which the criminal proceeding has been ongoing for some 12 months, and the proceeding remains ongoing;
d)[withdrawn];
e)the procedural history of the criminal matter as referred to in paragraph 21 above [that the criminal charges were listed for mention on approximately a monthly basis and A was yet to enter a plea to the charges]; and
f)other matters that are referred to in the letter of 4 December 2020.[54]
[54] Commissioner's decision [37].
A sent two undated responses in writing to the respondent in which she had said she should remain suspended with pay and also said that:[55]
[55] Commissioner's decision [40].
1.she still could not respond to the allegations because of the criminal proceedings;
2.she has not been found guilty;
3.suspension without pay would cause considerable hardship for her family;
4.the impact on her mental health of waiting for the criminal matters to be finalised is debilitating and she has had minimal support with this; and
5.the last time she appeared in court it was delayed 'due to the DPP not having full disclosure'.
On 19 November 2021, the respondent sent A a letter in which she was informed that her suspension would be varied to suspension without pay and gave the following reasons:[56]
[56] Commissioner's decision [41].
1.it considered the applicant's responses and understood her objections to be that she remains unable to respond to the allegation [S] and that suspension without pay would cause her financial hardship;
2.the criminal proceedings have been ongoing since she was charged on 17 November 2020 and she has not yet entered a plea;
3.the criminal charges are serious (and there are consequences under the PSM Act if she is found guilty);
4.if proven, her conduct would amount to a serious breach of discipline; and
5.in circumstances where the applicant 'has already received full pay for 15 months' the respondent determined the suspension would be altered to be a suspension without pay.
A's submissions at first instance
At the hearing before the Commission at first instance, A argued that there was a breach of procedural fairness because the respondent failed to give her sufficient notice of the factors the respondent would consider in making the decision whether to vary the terms of her suspension to suspension without pay.
A claimed that the factors that she did not have an opportunity to respond to were the length of time that the criminal proceedings were taking, the outcomes of the criminal proceedings relating to the other prison officers involved in the incident, and the fact that at the time the suspension with pay was being reviewed in 2021, she had not yet entered a plea in the criminal proceedings. A also claimed that it should have been put to her that in responding to the proposal to stop her pay that she would need to provide the respondent with a preliminary explanation of her defence along with any reasons as to why her case may differ from others that have gone before her.[57]
[57] Commissioner's decision [42] ‑ [43].
A also submitted that the respondent had failed to comply with the relevant legislative regulatory framework because contrary to the Public Sector Commission Commissioner's Instruction No 3: Discipline ‑ General (Instruction No 3) she was not given sufficiently detailed notice of the important factors that she needed to address, and a reasonable opportunity to respond to the proposal.[58]
[58] Commissioner's decision [61].
The Commissioner's decision at first instance
Commissioner Emmanuel found that Instruction No 3 sets out the minimum procedural requirements that employing authorities must follow when dealing with discipline which procedural requirements include the requirement to comply with the rules of procedural fairness. However, Instruction No 3 does not set out what considerations an employer should take into account when deciding the terms of a suspension.[59]
[59] Commissioner's decision [22] ‑ [27].
The parties also referred to another Public Sector Commission policy. The policy was titled 'Guide to the disciplinary provisions contained in Part 5 of the Public Sector Management Act 1994'. This document was also an agreed document. It contains specific guidelines for an employing authority to follow when determining which form of suspension to impose.
Commissioner Emmanuel did not consider these guidelines to be part of the regulatory framework for the purposes of making her decision on the basis that: (a) the guide notes stated it was not part of the disciplinary framework for disciplinary processes conducted under pt 5 of the PSM Act; and (b) it was suggested practice only and was not binding on agencies.[60]
[60] Commissioner's decision [28].
Commissioner Emmanuel found that there were three matters that were not put to A as part of the proposal for stopping her pay which were at least among the reasons why the respondent decided to alter the suspension to be without pay. These three matters were:[61]
[61] Commissioner's decision [81].
1the criminal matters were ongoing and the applicant had yet to enter a plea;
2.the applicant had already received 15 months of pay; and
3.the seriousness of the allegations meant that a serious outcome was warranted if the applicant was convicted or if the allegations were found to be made out on the balance of probabilities,
Commissioner Emmanuel observed that A seemed to argue that because of maintaining her right to silence and the CCC suppression order, she could not respond to points 1 and 3. The Commissioner found that that may be true of point 3, however, had point 1 been put to A, perhaps she could have responded in some way. The Commissioner went on to observe that the fact that A had yet to enter a plea could well have been for reasons that had nothing to do with her, her case or the legal advice she had received and she could have responded also to the inference that 15 months was a sufficient period to be paid while on suspension in the circumstances.[62]
[62] Commissioner's decision [82].
Commissioner Emmanuel found that the respondent failed to afford A procedural fairness by not properly putting to A the reasons why the respondent proposed to change her suspension to be without pay and the breach was not minor or without impact.[63]
[63] Commissioner's decision [83].
Commissioner Emmanuel also found that although the respondent had exercised its lawful right under s 82(1) of the PSM Act to suspend A without pay, the respondent had done so in breach of procedural fairness, and contrary to the legislative and regulatory framework that applies to a decision to suspend an employee without pay, such that a 'fair go all‑round' required that the decision be set aside.[64]
[64] Commissioner's decision [85].
The Full Bench appeal by the respondent
In the appeal to the Full Bench, the respondent did not challenge the finding by the Commissioner that it had denied A procedural fairness, instead its grounds were that:
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 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 [Commission] which was not minor or without impact'.
The point at the heart of the respondent's appeal to the Full Bench in ground 1 was that the Commission at first instance erred in finding that the denial of procedural fairness merited the decision being set aside because no different decision would have resulted, such that no practical injustice had occurred. In such circumstances, the respondent argued it was an error to find that a fair go all‑round required the decision to be set aside.[65]
[65] Full Bench decision [45(a)].
The particulars of ground 2 of the appeal were to the effect that the Commission at first instance had disregarded concessions by A that if the factors which she alleged she was not given notice of had been put to her, she would not have responded to those factors, and the respondent was not given notice of, or an opportunity be heard, of the intention to disregard those concessions.
Ground 1 of the appeal was upheld, and the appeal was allowed. Ground 2 was dismissed. The Senior Commissioner delivered the reasons of the Full Bench, with both the Chief Commissioner and Walkington C agreeing.
The reasons why ground 1 of the appeal was upheld by the Full Bench were as follows.
The Senior Commissioner had regard to how the case unfolded at first instance, by regard to the following issues:[66]
[66] Full Bench decision [12].
(a)To what extent was the issue of the consequence of the failure to provide the officer with adequate notice of the factors which the employer relied upon for its decision 'in play' at first instance?
(b)What were the parties' respective cases as to the consequence of such failure?
(c)What concessions, if any, were made in this regard?
(d)If concessions were made, how far did those concessions go?
The Senior Commissioner observed that there were two limbs to A's case: first, she claimed that was she was denied procedural fairness because not all of the material factors relevant to the respondent's decision were made clear to her in advance of the decision, and second, she claimed she was denied procedural fairness because the respondent did not have regard, or proper regard to the fact that she could not speak to any of the facts of her case in the criminal matter.[67] As to the consequences of the breach, A had submitted that the required standard of procedural fairness was such that the decision was to be treated as a nullity.[68]
[67] Full Bench decision [13].
[68] Full Bench decision [14].
The Senior Commissioner observed that A's written submissions did not squarely address the question of whether the procedural fairness was such that a fair go all‑round required that decision be set aside and a new decision be made in its place.
The Senior Commissioner found that less attention was given in A's case to the precise content of the duty to accord procedural fairness, or the impacts of a failure to provide notice of factors in the efficacy of the opportunity A had to respond to the proposed alteration in the terms of the suspension. Further, that nothing was really said that was directed at the questions posed by the Memorandum about the industrial fairness of the decision to cease pay.[69]
[69] Full Bench decision [18] ‑ [19].
In respect of the respondent's case, the Senior Commissioner observed that the respondent also conducted its case on a narrow basis describing the decision‑making process as the primary issue.
The Senior Commissioner also observed that during the hearing at first instance, counsel for the respondent discouraged the Commission from embarking on an enquiry into the merits of the suspension decision, but that counsel for the respondent did submit the merits may still be relevant if procedural unfairness was found, but not if there was no procedural unfairness.[70]
[70] Full Bench decision [22] ‑ [23].
The Senior Commissioner then went on to find that this point was not addressed by A in reply submissions and at no time did A seek to positively suggest that she could have or would have said anything further had she been given the notice which was ultimately found to be lacking. Nor did the evidence before the Commission in the form of the agreed facts and documents, shed any light on what outcome could have resulted, had proper notice been given.[71]
[71] Full Bench decision [25].
Importantly, the Senior Commissioner observed that at the hearing at first instance the Commissioner had properly raised with the parties the question of whether she ought to be confined to considering the matter on the basis of procedural fairness only, or whether the matter should be determined on its substantive merits. A's response was that A could not speak to or address the merits of the decision to suspend her (at least while she was maintaining her right to silence).[72]
[72] Full Bench decision [27] ‑ [28].
A's counsel also made a submission that the cases of the other officers who had been charged was relevant because all of their cases had been dealt with, but the fact that her case was ongoing and seemed to be moving very slowly and why that was the case was a question she could not answer at this point.[73]
[73] Full Bench decision [26] ‑ [28].
The Senior Commissioner summarised the conduct of the hearing by the parties at first instance as follows:[74]
[74] Full Bench decision [32].
(a)The consequences of the failure to provide the officer with adequate notice of the factors which the employer relied upon for its decision was an issue that the employer raised at first instance, although it was not given a great deal of attention in submissions by the employer.
(b)The officer's case was that there was a need to address the consequences of the failure to give notice, and that the failure of procedural fairness was enough on its own to render the decision a nullity.
(c)The officer did not concede that she would not have responded in some way had she been given notice that the duration of the suspension and the uncertainty of the duration of the criminal proceedings were factors that were considered relevant to the decision.
(d)The officer did not advance any positive case that the provision of adequate notice of the factors which were considered relevant to the decision would have created the possibility of a different resulting decision about the conditions of the officer's suspension.
After summarising the submissions that were made on behalf A in the appeal, the Senior Commissioner observed that A did not address what evidence there was before the Commission at first instance as to what she would have done with the opportunity had it been given to her, or how the agreed facts would have enabled the Commission at first instance to be satisfied on the balance of probabilities of a realistic possibility that a different decision could have been made had A been given proper notice of the relevant factors which ultimately informed the decision.[75]
[75] Full Bench decision [55].
The Senior Commissioner then turned to consideration of ground 1 of the appeal and observed that the Memorandum required the Commission to undertake a two‑step process. The first 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 the decision be set aside.[76] The Senior Commissioner observed that the appeal before the Full Bench only concerned the second stage.[77]
[76] Full Bench decision [56].
[77] Full Bench decision [57].
The Senior Commissioner then went on to observe that the focus of the parties' respective cases led the Commission to place prominence on the question of whether there was a denial of procedural fairness, and to place less significance on the practical consequences of the failure in the assessment of industrial fairness and that this narrow focus erroneously drew the Commissioner into error.[78]
[78] Full Bench decision [58] ‑ [59].
Of importance to the disposition of this appeal before this Court, the Senior Commissioner went on to find that:
(a)the authorities establish that 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;[79]
[79] Full Bench decision [61] ‑ [63]; applying the principles considered by the Full Bench in Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543 (Moodie).
(b)to the extent that judicial review questions turn on points of general principle as to the content of the duty to afford procedural fairness, the legal consequences of a failure in that duty, and the determination of any remedy, the Commission is bound by those same principles;[80]
[80] Full Bench decision [63] ‑ [64].
(c)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, and how the hearing was conducted by the parties;[81]
[81] Full Bench decision [65].
(d)the Commission was required to consider what a fair go all‑round required. A 'fair go all‑round' refers to the principle of industrial fairness as enunciated in Re Loty v Australian Workers' Union,[82] and Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch.[83] That is, whether the employer has exercised its lawful right (in this case to cease pay during suspension) so harshly or oppressively against the employee so as to amount to an abuse of that right. The question posed is one of assessing the industrial fairness of the decision;[84] and
[82] Re Loty v Australian Workers' Union [1971] AR (NSW) 95.
[83] Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.
[84] Full Bench decision [66].
(e)the general principles variously referencing materiality [in judicial review proceedings], 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 so as to merit the decision being set aside.[85]
[85] Full Bench decision [67].
In light of these principles, the Senior Commissioner said the question is, how should the Commission determine whether there is futility, and whether it should step in?[86]
[86] Full Bench decision [68].
After considering observations made in the decision of the Full Bench in Moodie, and where the onus lies to establish that overturning a decision to suspend a person without pay would or would not be futile, the Senior Commissioner found:[87]
[87] Full Bench decision [75] ‑ [79].
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.
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.
To the extent that the learned Commissioner disregarded what the employer describes as the officer's repeated concessions to the effect that she would not have responded, the learned Commissioner was correct to do so. I agree with the officer that in their proper context, the statements by counsel during the hearing at first instance should not be viewed as concessions that the officer would not have responded to those factors which the learned Commissioner ultimately found were reasons that were not put to her. There really was no evidence before the Commission at all as to what if anything the officer would have said had she been given notice.
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.
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 central point that emerges from these reasons is that the decision of the Commission at first instance was set aside by the Full Bench because it was found the Commissioner erred in failing to consider the industrial fairness of the decision to cease pay, including whether A had established on the balance of probabilities that a different outcome was realistically possible if the failure to accord procedural fairness had not occurred.
The grounds of appeal to the Court and the notice of contention
The grounds of appeal to the Court, excluding the particulars to grounds 1 and 3 are as follows:
1.The Full Bench erred in law in finding that the terms of s 26(2) of the [Industrial Relations 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.
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 to the Commission by section 78(5)(b) of the [PSM 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.
Lengthy particulars to grounds 1 and 3 are set out in the notice of appeal. Unfortunately, the particulars are in the main either not relevant to the issues raised in grounds 1 or 3, or are in the nature of submissions.
The respondent 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.
Grounds 1 and 2
A's written submissions in respect of ground 1 are difficult to understand. However, what can be distilled from the written submissions appears to be as follows.
A makes a submission that ground 1 contends there is only one answer reasonably open on the application of s 26(2) of the Industrial Relations Act to A's case, namely, that the Commission at first instance was entitled to determine A's referral with regard to the circumstances and power referred to by s 78(5)(b) of the PSM Act, and not strictly by the particulars referred to in A's initiating claim, which claim included a schedule containing the Memorandum. Implicit in this submission appears to be a submission that the Full Bench incorrectly found that the Commission at first instance was bound to determine A's referral solely by addressing the questions or issues raised by the Memorandum.
Section 26(2) of the Industrial Relations Act provides:
In granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim.
Ground 1 of the appeal must fail because not only did the Full Bench make no reference to s 26(2) of the Industrial Relations Act, it did not find that the Commission was not permitted to deviate from addressing the questions or issues raised in the Memorandum. In any event, it was not suggested by counsel for A in the appeal before the Full Bench that A was seeking relief that was different from the questions or issues raised by the Memorandum.
In addition, A made no mention in the hearing before the Commission at first instance that she did not seek that the Commissioner answer the agreed questions in the Memorandum.
The Senior Commissioner's findings were 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 Management Sector Act: (1) within the constraints of the law (which required the Commission to consider the industrial fairness of the decision); (2) having regard to the evidentiary materials in the Memorandum; and (3) with regard to how the hearing was conducted by the parties.
Contrary to the point put in ground 1 of the appeal, the Senior Commissioner made it clear that the Commission was required to determine: (1) first, whether the respondent's decision to vary A's suspension to suspension without pay was made without observing the rules of procedural fairness; and (2) if so, then to decide what should be done about that decision on the basis that the matter had been referred to the Commission as if it were an 'industrial matter' pursuant to s 78(2)(b)(iii) of the PSM Act and s 29(1)(b) of the Industrial Relations Act.
The Senior Commissioner made it clear in her reasons that a finding of a breach of procedural fairness was not of itself sufficient to properly deal with the decision that had been referred to the Commission as if it were an 'industrial matter'.
A finding that it was necessary for the Commission to move to the second stage of the enquiry and determine what was an appropriate outcome, including any remedy, for the failure to provide procedural fairness, cannot be construed as a finding by the Full Bench that the Commission at first instance was not permitted to deviate from addressing the questions or issues raised by the Memorandum.
For these reasons, it cannot be found that the Full Bench's approach to the construction of the statutory task of hearing and determining a referral made pursuant to s 78(2)(b)(iii) of the Public Management Sector Act was in error.
A in her written submissions also contends that, by incorrectly finding that the Commission was bound to determine A's referral solely by addressing the questions or issues raised by the Memorandum, the Full Bench further held that the Commission was obligated to adopt the principles of judicial review, and ultimately the Full Bench applied the principles of judicial review in such a way as to make an error of law as identified in Nathanson v Minister for Home Affairs.[88] However, as ground 1 is framed, this submission is not open to be made. In any event, this submission has no foundation. The principles enunciated in Nathanson v Minister for Home Affairs[89] are considered below.
[88] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737.
[89] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737.
For these reasons, ground 1 is not made out. For these reasons also, ground 2 is not made out because it cannot be found that A was denied the right to be heard on the question of whether the Commission at first instance was not permitted to deviate from addressing the questions or issues raised by the Memorandum, in circumstances where:
(a)the Full Bench did not make such a finding; and
(b)A did not seek to depart from the matters and issues set out in the Memorandum in the hearing before the Commission at first instance.
Ground 3
Ground 3 is expressed in terms that the Full Bench erred in law in finding, in effect, that the discretionary power provided to the Commission by s 78(5)(b) of the PSM 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 provision.
However, the Full Bench made no finding that the power to quash a decision and remit under s 78(5)(b) is conditioned by the referring party establishing the nature of the additional evidence or argument that he or she would seek to rely upon.
In addition, it appears that Commissioner Emmanuel did not act under s 78(5)(b), because she simply set aside the decision and did not quash and remit.
A relies on ground 3, in addition to, or in the alternative to ground 1. In respect of ground 3, A contends that the only answer that is reasonably open on the application of s 78(5)(b) of the PSM Act to the facts of this case is that a finding of a denial of procedural fairness was all that was necessary for the decision of the respondent to be quashed.
Inherent in this contention may be a submission that such a finding of itself was a circumstance in respect of which it was properly open to the Commission at first instance to find A had been denied a 'fair go all‑round'.
A says that it follows on the proper construction of s 78(5)(b), and contrary to the findings of the Full Bench, that the Commission at first instance was not required to carry out a particular type of merit‑based assessment or any assessment at all to identify whether the principles of industrial fairness warranted setting aside the decision to vary A's suspension to suspension without pay.
The statement in s 78(2) of the PSM Act that the Industrial Relations Act applies to and in relation to a decision as if that decision were an 'industrial matter' includes a decision made under s 82 of the PSM Act to suspend an employee on partial pay or without pay.
An 'industrial matter' is defined in s 7(1) of the Industrial Relations Act to mean 'any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry … and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to – (a) the wages, salaries, allowances, or other remuneration of employees …'. Pursuant to s 23(1) of the Industrial Relations Act, the Commission is provided with the jurisdiction to have cognizance of and authority to enquire into and deal with any industrial matter.
Section 78(5) of the PSM Act provides:
If it appears to the Industrial Commission … that the employing authority failed to comply with a Commissioner's instruction or the rules of procedural fairness in making the decision … the subject of a referral …, the Industrial Commission …-
(a)is not required to determine the reference … solely on that basis and may proceed to decide the reference … on its merits; or
(b)may quash the decision … and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process.
Section 78(5) applies if, relevantly, it appears to the Commission that the employing authority failed to comply with the rules of procedural fairness in making the decision the subject of a referral. In those circumstances, the Commission is not required (that is, the Commission is not obliged) to determine the reference 'solely' on that basis. The Commission is empowered, in addition, to decide the reference on its merits. The power to decide the reference on its merits is discretionary. The Commission is not bound to decide the reference on its merits. The Commission has a discretion. Alternatively, the Commission may quash the decision and remit the matter back to the employing authority with the directions specified in s 78(5)(b).
This construction is confirmed by the explanatory memorandum to the Public Sector Reform Bill 2009 when s 78(5) was introduced to Parliament. Section 78(5) was enacted by s 95 of the Public Sector Reform Act 2010. The explanatory memorandum states in relation to s 78(5) that the provision clarifies that an employer's technical non‑compliance with the principles of natural justice of itself would not render the decision invalid, but that the Commission may either:
(a)decide the matter on its merits; or
(b)quash the agency's decision and direct the agency to recommence at the point directed by the Commission, should the agency choose to continue with the disciplinary matter.
The respondent makes a submission that s 78(5)(b), properly construed, has no application to the present proceedings. The respondent argues that the reference in s 78(5)(b) to a disciplinary process being 'recommenced' indicates that the provision is only engaged when the decision the subject of an appeal referral is made following the conclusion of a 'disciplinary process' rather than being engaged by any decision that could be the subject of an appeal referral under s 78.
I do not agree. The power to suspend an employee with or without pay pursuant to s 82 of the PSM Act only arises when a disciplinary process has been commenced, by an employing authority deciding to act under s 81(1)(a) after an employer is made aware, or becomes aware, by any means that the employee may have committed a breach of discipline. Alternatively, pursuant to s 81(1)(b) an employer may suspend an employee with or without pay if an employee is charged with having committed a 'serious offence' (as defined in s 80A). If an employee is convicted of a serious offence the employer may take disciplinary action and dismiss the employee.[90]
[90] PSM Act 1994 (WA) s 92.
Despite the fact that counsel for A in the hearing at first instance raised s 78(5)(b), counsel for A did not seek the outcome in s 78(5)(b) of the PSM Act. While the outcome sought by A was to quash the decision made by the respondent to vary her suspension to suspension without pay, A did not seek to have the matter remitted back to the respondent with directions as contemplated by s 78(5)(b).
This position of A was made clear from the following submission her counsel put to Commissioner Emmanuel:[91]
[91] ts of proceedings at first instance, 28 March 2022, 31; It should be noted that the decision in [Moodie], Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543 was decided prior to the enactment of s 82 of the PSM Act which provision expressly empowers an employer to suspend an employee with or without pay.
But going back to what Mr Pack had to say at the start, the Applicant doesn't ask for this matter to be dealt with on the merits, so we haven't changed our stance in that regard. We say it's not a merit-based case, it's being dealt with purely on the basis of denying procedural fairness. The case involving Mr Moody [Moodie] is authority for the fact that procedural fairness is enough on its own to justify the quashing of the decision. It's going to be open to the respondent to revisit the process again straight away, after a - in the event an order is made. So if the applicant is simply returning to a position of being on suspension with pay, the respondent can simply issue her with another letter and reinstitute a process, if that's what it wants to do, so there's no prejudice to the respondent from that point of view. (my emphasis)
It is clear from this submission that what A sought was that the decision made by the respondent to vary the terms of her suspension be quashed. The effect of what A was seeking was that the earlier decision that her suspension was with pay continue. A did not seek that the matter be remitted to the respondent with directions. What was put to the Commissioner on behalf of A was only that it would be open for the respondent to reconsider whether the terms of A's suspension should be varied, not that the matter was to be remitted to the respondent and the respondent should be given directions as to the stage at which that process was to be recommenced if the respondent chose to reconsider the matter afresh.
A also attempts to argue in support of this ground that the Full Bench erred in holding that the Commission was obligated to adopt the principles of judicial review, and ultimately the Full Bench applied the principles of judicial review in such a way as to make an error of law as identified in Nathanson v Minister for Home Affairs.[92] This contention is not correct.
[92] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737.
In Nathanson v Minister for Home Affairs, the plurality held that:[93]
[93] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 [1].
(a)the Administrative Appeals Tribunal's error in failing to afford A procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal's decision;
(b)materiality is established if the error deprived A of a realistic possibility of a different outcome; and
(c)A bore the onus of demonstrating that the denial of procedural fairness was material in this sense.
Their Honours in Nathanson v Minister for Home Affairs also held that a realistic possibility of a different outcome was demonstrable from the record of the Tribunal's decision. A was not required to articulate a specific course of action which could realistically have changed the result.[94]
[94] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 [2].
Similarly, Gageler J held that, in order to meet the threshold of materiality, an applicant for relief does not have to establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded.[95] Establishing that threshold of materiality is not onerous.[96]
[95] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 [46].
[96] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 [47].
In the present case, the Full Bench referred to the notion of a 'fair go all round'. The Full Bench said that a 'fair go all round' refers to the principle of industrial fairness as enunciated in a number of decisions. That is, whether the employer has exercised its lawful right (in the present case to cease pay during suspension) so harshly or oppressively against the employee as to amount to an abuse of that right. The question requires assessing the industrial fairness of the decision, which the Full Bench found the Commission at first instance did not do.[97]
[97] Full Bench decision [66].
The Senior Commissioner found that the failure to consider whether the result could realistically have been different had A been given a relevant opportunity to respond meant that the Commission at first instance failed to determine whether a fair go all round required the Commission's intervention in the decision to vary the terms of A's suspension.
By asking the question of whether the result could realistically have been different is not inconsistent with the principles enunciated by the majority in Nathanson v Minister for Home Affairs.
As I have mentioned, ground 3 alleges, in essence, that the Full Bench erred in law in finding, in effect, that the discretionary power provided to the Commission by s 78(5)(b) 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 provision.
Commissioner Emmanuel did not proceed under s 78(5)(b) or, for that matter, s 78(5)(a). The Commissioner made the quashing order in relation to the respondent's decision pursuant to her finding that the rules of procedural fairness had been breached. The Commissioner did not make a finding as to whether the respondent's error in failing to afford A procedural fairness deprived A of a realistic possibility of a different outcome.
In any event, the Full Bench did not err in law in finding, in effect, that the discretionary power conferred by s 78(5)(b) does not override the common law principle that ordinarily a decision made in breach of the rules of procedural fairness will not be quashed unless the error in failing to afford procedural fairness was material to the decision; in particular, the error deprived the person aggrieved of a realistic possibility of a different outcome.
It is an incident of that common law principle that the person aggrieved bears the onus of demonstrating that the denial of procedural fairness was material in that sense.
For these reasons, ground 3 is not made out.
Conclusion
Having found that A has not made out any of her grounds of appeal, it is not necessary to consider the respondent's notice of contention.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.
JL
Associate to the Honourable Justice Murphy
30 MARCH 2023
0
2
2