Investigation of non-work incident permitted

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Investigation of non-work incident permitted

The common law and WA legislation allowed the management of a WA public sector agency to investigate allegations of sexual assault against a particular public servant.

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The common law and WA legislation allowed the management of a WA public sector agency to investigate allegations of sexual assault against a particular public servant. This was permitted despite the fact that criminal proceedings against the public servant had been dropped. The public servant had sought a court order to block the investigation by the employer. He initially won this point, but lost on appeal to the full bench of the IRC (WA). He appealed to the WA Industrial Appeal court and again lost.

The question in issue focused on the relevant connection between the manager's alleged misconduct outside work and his employment. This is always a difficult question and the courts and tribunal would have to be satisfied that an employer has a right to investigate because the 'outside' conduct could arguably have a genuine impact on the employee's responsibilities and duties at work. In this case, the involvement of a relatively junior female employee as the alleged victim was an important factor in the court's decision.

Background

Following the dropping of charges of sexual assault, the manager's executive director advised him that the allegations of sexual misconduct would be investigated by an independent consultant.

The terms of reference of the investigation included the substance of the officer's allegations; whether the alleged conduct occurred within a social or work context; and whether it constituted misconduct under the WA Public Sector Code of Ethics, the State Public Sector Management Act and FCS Code of Conduct.

When positive findings were returned to the director, he notified the manager and asked him to submit a written response explaining his alleged conduct.

However, he applied to the Public Service Arbitrator for a stay of the department's proceedings, claiming his employer had no right to investigate an incident that occurred after work hours.

He said the incident constituted a private matter and not a breach of discipline under the Public Service Management Act, considering that his 'official duties' ended when he left the training course venue to return to his motel.

The Arbitrator accepted his application, ordering the department's disciplinary proceedings against the manager to be dropped and for the findings of the investigations to be discarded.

It found that the alleged conduct 'did not touch' his employment in a way that warranted the employer's inquiry.

On appeal, a full bench of the Industrial Relations Commission (WA) found for the employer. The employee appealed to the WA Industrial Appeal Court.

Facts

The employer argued that the conduct of the employee was a legitimate matter for further investigation.

Mr H was 53 years of age and was employed as a level 6 manager in the Community Skills Training Centre which was a branch of the department. His duties included training officers employed in the Family and Children's Service branch of the Department in community skills. Ms S was 24 years of age and was a level 2 welfare officer employed in Family and Children's Services.

Mr H had been involved in an alleged sexual assault of a fellow-employee (MS S) following a training session. The incident took place many hours after the training session. Consumption of a large amount of alcohol had taken place. Ms S had agreed to a full-body massage and then she alleged that Mr H had 'gone too far'.

Conduct relevant to employment

The employer/department claimed that there was a relevant connection between the manager's alleged conduct and his employment.

In the court ruling, the bench applied a common law test to find the relevance of the employment relationship to the alleged misconduct.

It found conduct that undermined an employee's capacity to perform their duties was a breach of discipline under the Act:

'Discreditable behaviour on [the manager's] part towards any member of the group might tend to diminish his status, authority and influence within the department in the eyes of those junior to him and might affect his fitness to carry out his duties.'

It also ruled that the Public Sector Code of Ethics imposed on the manager principles of conduct that required him to be 'courteous, considerate and sensitive' to other employees.

Incident sufficiently related to work

The presiding judge, Justice Anderson, handed down the leading judgment:

'The common law test has been expressed as being that the misconduct must be "relevant to the employment" or have a "relevant connection to the employment": Hussein v Westpac Banking Corporation (1995) 59 IR 103.

'In McCullum, Pittard and Smith "Labour Law: Cases and Materials" (2nd) 1990 at page 140 the test is said to be whether the misconduct "touches the employment". In Hospital Employees Federation of Australia v Western Hospital (1991) 4 VIR 310 at 324 Lawrence DP thought that the discreditable conduct "should be considered in terms of whether or not the employee has breached an express or implied term of his or her contract of employment".

'The implied term which Lawrence DP had in mind is not formulated, but perhaps he had in mind a term to the effect that an employee is not to conduct himself in a manner that tends to undermine his capacity to perform his duties or diminish his or her status and authority to the extent that it affects fitness to discharge the duties of his or her office.

'That conduct of such a kind in private life may be misconduct against his or her employer is well accepted. …

'Misconduct in his private life by a person discharging public or professional duties may be destructive of his authority and influence and thus unfit him to continue in his office or profession.

'In my opinion, the discreditable conduct alleged in this case could amount to misconduct within the meaning of s 80 and, therefore, could amount to a breach of discipline.

'I think the full bench was perfectly correct so to conclude. ... Mr H was the most senior and very considerably senior to Ms S. Discreditable behaviour on his part towards any member of the [training] group might tend to diminish his status, authority and influence within the Department in the eyes of those junior to him and thus might affect his fitness to carry out his duties.

...

All that need be said about this is that there is no reason in principle why and no authority that I know of to the effect that a public official against whom criminal conduct is alleged but not proved may not be found guilty of misconduct in office in respect of that same conduct.'

The other two members of the court agreed with Justice Anderson.

See: Civil Service Association of Western Australia Inc v Director General of Department of Community Development [2002] WASCA241 (3 September 2002) - Anderson, Parker and Hasluck JJ.

 
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