Director General, Department of Biodiversity, Conservation and Attractions v Cosentino
[2022] WASC 306
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DIRECTOR GENERAL, DEPARTMENT OF BIODIVERSITY, CONSERVATION AND ATTRACTIONS -v- COSENTINO [2022] WASC 306
CORAM: ALLANSON J
HEARD: 18 AUGUST 2022
DELIVERED : 14 SEPTEMBER 2022
FILE NO/S: CIV 1451 of 2022
BETWEEN: DIRECTOR GENERAL, DEPARTMENT OF BIODIVERSITY, CONSERVATION AND ATTRACTIONS
Applicant
AND
RACHEL COSENTINO
First Respondent
JOHN LAMB
Second Respondent
KAREN ROBERTS
Third Respondent
TREVOR WALLEY
Other Party
Catchwords:
Judicial review - Industrial law - Where public sector employee appealed against decision of employing authority to take disciplinary action of dismissal - Where employing authority gave five weeks salary in lieu of notice - Where Public Service Appeal Board found no breach of discipline and increased the period of notice but did not reinstate the employee - Whether Board has power to adjust period of notice - Whether order adjusting period of notice can be severed and separately quashed - Whether court has discretion to decline remedy of certiorari
Legislation:
Public Sector Management Act 1994 (WA)
Industrial Relations Act 1979 (WA)
Result:
Certiorari issued to quash decision
Category: B
Representation:
Counsel:
| Applicant | : | DJ Anderson |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Other Party | : | GMG McIntyre SC |
Solicitors:
| Applicant | : | State Solicitor's Office |
| First Respondent | : | In Person |
| Second Respondent | : | In Person |
| Third Respondent | : | In Person |
| Other Party | : | Rebus Legal |
Case(s) referred to in decision(s):
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Re Public Service Appeal Board; Ex parte Public Service Commissioner (Unreported, Full Court of the Supreme Court of Western Australia, 24 May 1994)
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Titelius v Public Service Appeal Board [1999] WASCA 19
Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569
ALLANSON J:
Introduction
In January 2020, the other party, Trevor Walley, was dismissed from his employment with the Department of Biodiversity, Conservation and Attractions, with five weeks salary payable in lieu of notice. The dismissal followed findings that Mr Walley had breached discipline by disobeying lawful orders.
Mr Walley appealed to the Public Service Appeal Board. On 9 October 2021, the Board upheld the appeal and adjusted the decision to dismiss him by:
(1)quashing the finding of breach of discipline; and
(2)adjusting the period of notice from 5 weeks to 13 weeks.
The applicant, the Director General of the Department of Biodiversity, Conservation and Attractions, applied for certiorari to quash that decision on the grounds:
(1)The Public Service Appeal Board made a jurisdictional error in purporting to vary the period of notice of dismissal given to Mr Walley when the Public Service Appeal Board only had power to adjust the decision taken to dismiss Mr Walley by way of disciplinary action under subsection 82A(3)(b)(i) of the Public Sector Management Act 1994 and the period of notice was not part of that decision.
(2)Further and in the alternative, the Public Service Appeal Board made a jurisdictional error in purporting to adjust the period of notice of dismissal given to Mr Walley when in substance the Public Service Appeal Board made an award of compensation to Mr Walley and the Public Service Appeal Board cannot make an award of compensation.
The Director General sought a writ of certiorari confined to quashing Order 2(b) of the decision.
The application was supported by two affidavits of John Matthew Carroll, legal practitioner, affirmed 22 June 2022 and 3 August 2022. Mr Walley did not adduce evidence.
The members of the Public Service Appeal Board were named as respondents to the application. They filed submitting appearances.
Mr Walley was named as 'other party' and opposed the application.
Background
Mr Walley was dismissed from his employment with the Department of Biodiversity, Conservation and Attractions for breaches of discipline. The Department alleged that he failed to comply with lawful orders by failing to attend an appointment with a medical specialist, and by later failing to sign a consent form which the medical specialist requested he complete. Mr Walley was notified of the finding and proposed disciplinary action on 18 November 2019.
On 6 January 2020, the Director General of the Department wrote to Mr Walley, advising him:
In respect to the breaches of discipline that occurred when you disobeyed or disregarded a lawful order, and in accordance with section 1.7 of Commissioner's Instruction No. 3: Discipline ‑ General, I advise that disciplinary action will be taken.
The sanction of dismissal is deemed to be the appropriate disciplinary action and the termination of your employment with Department of Biodiversity, Conservation and Attractions is effective from the date of this letter. You will receive five weeks ordinary salary paid in lieu of notice and any leave accruals in accordance with the provisions of the Public Service Award 1992.
Mr Walley appealed from the decision pursuant to s 80I(1) of the Industrial Relations Act 1979 (WA). He disputed both the findings of breach of discipline and the decision to impose the sanction of dismissal. He sought an order for re‑employment with consequential orders for the payment of lost benefits.[1]
[1] Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569 [98].
The appeal was brought out of time. On 20 July 2020, the Board granted Mr Walley an extension of time to appeal.
On 1 July 2021, Mr Walley was advised that his entitlements to compensation under the Workers' Compensation and Injury Management Act 1981 (WA) were exhausted, and his payments of weekly compensation would cease from 29 June 2021.
The appeal was heard on 11 October 2021.
The decision of the Board
The allegations against Mr Walley were that:
(1)he was directed to attend medical appointments, as a fitness for work assessment, on 4 July 2019 and failed to attend;
(2)he was directed to attend medical appointments, as a fitness for work assessment, on 8 August 2019 and while he attended the appointment he did not participate in the medical assessment because he refused to sign the consent form.[2]
[2] Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569 [10].
On 9 November 2021, following a hearing, the Board found that the allegation of breach of discipline was not proved. First, the Board found that the requirement for Mr Walley to be assessed was unreasonable. It followed that his failure to attend the appointment on 4 July 2019 did not constitute misconduct by disobeying a lawful order and could not be grounds for dismissal.[3] Second, the Board found the Department had not established that provision of a particular consent form was a requirement for the medical assessment to proceed, nor that Mr Walley refused to give consent.[4]
[3] Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569 [80] ‑ [81].
[4] Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569 [94].
The Board then considered, having found that Mr Walley did not commit a breach of discipline or engage in misconduct, what relief it should grant.
The Board made the further findings:
(1)It could not say whether Mr Walley is or was fit to perform the inherent requirements of his position.
(2)It had reservations about Mr Walley's bona fides or willingness to cooperate with the Department.
(3)A written reprimand had been issued to Mr Walley for breach of discipline on 20 December 2018, and separate disciplinary proceedings had been commenced on 14 September 2018 but not pursued due to Mr Walley commencing a period of extended leave, and had discontinued on his employment ending.
(4)To make an order for reinstatement would not be to exercise the Board's power to 'adjust' the decision or finding in accordance with equity, good conscience and the substantial merits of the case.[5]
[5] Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569 [112] ‑ [115].
The Board held that it was open to it to 'adjust' the decision to dismiss by adjusting the period of notice. It quashed the finding of breach of discipline, but adjusted the period of notice from five weeks to 13 weeks. The period was chosen as that 'consistent with the time that it may have taken for any necessary further investigation of return to work options, and a fair medical retirement process to have occurred'.[6]
[6] Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569 [116].
In substance, there are three elements to the Board's decision: first, Mr Walley did not commit the alleged breaches of discipline, resulting in the order quashing the finding of breach of discipline; second, an order for reinstatement would not be made; and third, the decision of the Director General would be adjusted by adjusting the period of notice to a period consistent with the time for a fair medical retirement process to have occurred.
The legislative scheme
Public Sector Management Act 1994 (WA)
Disciplinary action is defined in s 80A of the Public Sector Management Act and includes any one or more of a reprimand, a fine, transfer, reduction in remuneration, reduction in the level of classification and dismissal.
If an employing authority of an employee is made aware or becomes aware that the employee may have committed a breach of discipline, which includes disobeying or disregarding a lawful order, the employing authority may decide to deal with the matter as a disciplinary matter under pt 5 div 3; or it may decide that it is appropriate to take improvement action with respect to the employee, or to take no action.[7]
[7] Section 81.
Section 82A provides for how disciplinary matters are to be dealt with. Relevantly, by s 82A(3)(b):
… after dealing with a matter as a disciplinary matter under this Division —
(b)if the employing authority finds that the employee has committed a breach of discipline that is not a section 94 breach of discipline, the employing authority must decide —
(i)to take disciplinary action, or both disciplinary action and improvement action, with respect to the employee; or
(ii)to take improvement action with respect to the employee; or
(iii)that no further action is to be taken.
Section 78(1)(b) provides, relevantly, that an employee or former employee who is aggrieved by the decision to take disciplinary action under s 82A(3)(b) may appeal against that decision to the Industrial Commission constituted by a Public Service Appeal Board, and the Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to div 2 of pt IIA of the Industrial Relations Act.
Industrial Relations Act
Under s 80I(1) of the Industrial Relations Act:
(1)Subject to the Public Sector Management Act 1994 section 52, … a Board has jurisdiction to hear and determine —
(a)an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;
(b)an appeal by a government officer under the Public Sector Management Act 1994 section 78 against a decision or finding referred to in subsection (1)(b) of that section;
(c)an appeal by a government officer under the Health Services Act 2016 section 172 against a decision or finding referred to in subsection (1) of that section;
(d)an appeal, other than an appeal under the Public Sector Management Act 1994 section 78(1) or the Health Services Act 2016 section 172(2), by a government officer that the government officer be dismissed,
and to adjust all such matters as are referred to in paragraphs (a), (b), (c) and (d).[8]
[8] Paragraph (d) has apparently suffered in amendment. It was inserted in its present form by s 295(6) of the Health Services Act 2016 (WA). Before that amendment, the section provided for an appeal 'from a decision, determination or recommendation of the employer of that Government officer that the Government officer be dismissed'. There is now no reference to what the appeal is against.
By s 26(1) of the Industrial Relations Act:
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;[9]
[9] Section 80L applies s 26(1) to the Board.
As counsel for the Director General submitted, s 26 is not a source of jurisdiction but provides for the manner in which that jurisdiction shall be exercised.
The application for review
Does review lie
No appeal lies from the decision of the Board. Section 34(3) and (4) of the Industrial Relations Act purport to exclude challenge or review of any order, declaration, finding, or proceeding of the Industrial Relations Commission. Despite that section, certiorari has issued against the Board on other occasions.[10]
[10] See Re Public Service Appeal Board; Ex parte Public Service Commissioner (Unreported, Full Court of the Supreme Court of Western Australia, 24 May 1994); and Titelius v Public Service Appeal Board [1999] WASCA 19.
The Director General contended that, in adjusting the period of notice, the Board made an order that lies outside the limits of the functions or powers conferred on the Board by the Industrial Relations Act. Should the court find error of that kind, the error would be jurisdictional error, and the privative provisions in s 34 cannot operate to deprive the Supreme Court of its supervisory jurisdiction: 'Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power'.[11]
[11] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531, 581 [100].
Mr Walley did not dispute that review for jurisdictional error cannot be excluded by s 34 of the Industrial Relations Act. He submitted that there was no jurisdictional error. To the extent the Director General might identify an error within jurisdiction, that error is not subject to judicial review.
Is notice part of the 'matter' referred to in s 80I(1)(b)
The Director General submitted that nothing in the Public Sector Management Act provides for notice of termination of employment or payment in lieu of notice. The obligation to give a government officer notice or pay in lieu of notice comes from the Public Service Award 1992 or the Fair Work Act 2009 (Cth).
(1)Under the Award, where an officer's services are terminated for a reason other than dismissal the employer is required to provide the officer with one month's notice of termination or payment of salary for that period in lieu of notice. The entitlement to notice or payment in lieu can be enforced by way of action in the Industrial Magistrates Court.
(2)Section 117 of the Fair Work Act provides for notice to be given upon terminating an employee's employment (or payment in lieu thereof). Under s 117, the minimum required notice for an employee who was employed for more than five years, and who was over 45 years old at the end of the day the notice is given, is five weeks.[12]
[12] Section 117 of the Fair Work Act does not apply where an employee's employment is terminated because of serious misconduct, which includes the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment: Fair Work Act s 123; Fair Work Regulations 2009 (Cth) reg 1.07.
The Director General submitted that the subject matter of the appeal to the Board was the decision to take disciplinary action by way of dismissal. Under s 80I(1) of the Industrial Relations Act, the Board only had power to adjust the decision to take disciplinary action. It did not have power to adjust the decision to confer upon Mr Walley his statutory entitlement to payment in lieu, because that entitlement was not part of the decision to take disciplinary action.
Accordingly, the Director General submitted that the error was jurisdictional because the Board purported to exercise a power that it did not have.
Alternatively, by the second ground of review, the Director General contended that the power of the Board does not include the power to award compensation. The decision to adjust the decision of the Director general by awarding 13 weeks' pay in lieu of notice was, in substance, an award of compensation and lay outside the powers conferred on the board by the Industrial Relations Act and the Public Sector Management Act.
Mr Walley submitted that the relevant decision was to dismiss him with immediate effect, and to pay him five weeks' salary in lieu of notice. The power to adjust matters included the power to adjust the period of notice, which was a condition forming part of the decision to dismiss him.
Mr Walley submitted that the period of notice prescribed by the Fair Work Act is a minimum period and that it lay within the discretion of the Board, standing in the shoes of the employer, to exceed the minimum in order to make a just determination of the matter.
Mr Walley further submitted that pay in lieu of notice is not a form of compensation, but an entitlement related to the process of termination.
Determination
On an appeal before the Board, it has the power to hear and determine the appeal and adjust 'all such matters' referred to s 80I(1)(b); that is, any decision of finding referred to in s 78(1)(b) of the Public Sector Management Act.
The ultimate question, therefore, is whether the giving of notice, or the period of notice, is part of the decision or finding referred to in s 78(1)(b) of the Public Sector Management Act.
Section 78(1)(b)(i) refers to a decision under provisions relating to substandard performance, and s 78(1)(b)(ii) to (iv) refer to decisions or findings under provisions relating to disciplinary matters, including a decision to take disciplinary action under s 82A(3)(b).[13]
[13] Section 78(1)(b)(ii)-(iv).
The decision under s 82A(3)(b) is whether to take disciplinary action, or improvement action, or both, or to take no further action. Disciplinary action may be a reprimand, a fine, transfer, reduction in remuneration, reduction in classification, or dismissal.[14]
[14] Public Sector Management Act s 80A.
I can see nothing in the other provisions of either Act, or in their context, to support a construction of s 78 or s 80I(1)(b) that goes beyond the ordinary meaning of the words used.
The period of notice to be given to a person dismissed as a disciplinary action is not part of the disciplinary process, and no decision is made under s 78 and s 82A about the period of notice. It is not a matter referred to in s 78(1)(b) of the Public Sector Management Act, and not a matter referred to in s 80I(1)(b) of the Industrial Relations Act.
The purported adjustment of the period of notice was, accordingly, not the adjustment of a matter referred to in s 80I(1)(b). The Board acted without power. The error was jurisdictional.
In my opinion, the first ground raised is correct.
It is unnecessary to decide the second or alternative ground that, in purporting to adjust the period of notice of dismissal given to Mr Walley, the Board made an award of compensation. It is not in dispute that the powers of the Board do not include the power to award compensation. The Board itself recognised that s 80I did not allow for an award of compensation.[15]
[15] Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569 [98].
The relief
The submissions of the Director General sought a writ of certiorari quashing only order 2(b) of the Board.
Following the hearing, the parties provided further submissions on the question of relief, and in particular whether the remedy should be granted in the exercise of the court's discretion and whether it should be confined to part only of the decision of the Board.
My concern in this case is that one part only of the Board's decision is challenged. The power to dismiss in s 82A of the Public Sector Management Act is conditioned by a finding that the employee has committed a breach of discipline. To maintain the decision to dismiss and quash only the adjustment of the period of notice seems inherently unfair when the Board found that there was no breach of discipline.
The prerogative remedies, including certiorari are subject to the discretion of the court.[16] Various factors have been identified as relevant to the exercise of the discretion, including the availability of an alternative remedy, utility, delay, bad faith, and acquiescence.[17] There is no question that any of those factors applies in this case. While those factors may not be exhaustive, I am not aware of any authority for a general discretion that is not related to either the utility of the remedy or the conduct of the applicant for relief.
[16] See Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372.
[17] See Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 [55] ‑ [58].
The apparent unfairness directs attention to the second issue: can order 2(b) be separately quashed.
The Board expressed its reservations about an order for reinstatement, for reasons I have earlier set out. It dealt with the question of reinstatement by reference to its inability to reach a conclusion about Mr Walley's fitness and capacity for work, the practicality of reinstatement, and its reservations about his good faith and willingness to cooperate with the Department. The 'adjustment' to the decision to dismiss Mr Walley, by extending the period of notice, was then determined by reference to the time it may have taken for further investigation of return to work options and a fair medical retirement process.
If that adjustment only is set aside, the practical effect of the decision of the Director General is unchanged, and Mr Walley's employment is terminated on five weeks' notice. That result follows even though the Board found no breach of discipline, and sought to adjust the period of notice by reference to other factors.
The invalid adjustment of the notice period cannot, in my opinion, be separated from the decision that Mr Walley should not be reinstated.
A writ of certiorari should issue to quash the whole of the order of the Board.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
14 SEPTEMBER 2022
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