Impractical? Incarcerated employee seeks reinstatement
The Western Australian Industrial Relations Commission (WAIRC) recently dealt with a case involving the dismissal of a worker following a criminal conviction.
The decision highlights important considerations for employers when managing employees who have been convicted of serious offences.
The case centres around a worker who was dismissed after pleading guilty to dangerous driving resulting in death and exceeding the legal blood alcohol limit. The worker challenged their dismissal, arguing that it was harsh, oppressive, and unfair.
Their main contention was that the employer acted prematurely by dismissing them after the conviction but before the conclusion of the criminal proceedings.
Dismissed following dangerous driving conviction
On 23 March 2022, a public sector worker was dismissed by their employer after pleading guilty to two offences in the Perth Magistrates Court on 14 February 2022. These offences were:
- Dangerous driving in circumstances which subsequently resulted in death under s 59(1)(b) of the Road Traffic Act 1974 (WA)
- Exceeding 0.08g alcohol per 100ml of blood under s 64(1) of the Road Traffic Act 1974 (WA)
Following the dismissal, the worker appealed to the Public Service Appeal Board on 7 April 2022. They sought several remedies, including reversal of the dismissal decision, reinstatement to their former position, payment of full employment entitlements, and recognition of continuity of employment.
The worker argued that the dismissal was harsh, oppressive, and unfair because it occurred after the conviction but before the conclusion of the criminal proceedings.
Employer’s arguments against worker’s appeal
On 29 May 2023, the employer applied to have the appeal dismissed on several grounds, including:
- The impracticality of reinstatement
- The remedy sought was practically a claim for lost remuneration prior to incarceration
- Want of prosecution
It's important to note that on 23 August 2022, the worker was sentenced to imprisonment for 4 years, which occurred after the initial dismissal but before the employer's application to dismiss the appeal.
Central to this case is Section 92 of the Public Sector Management Act 1992 (WA), which states:
"Despite the Sentencing Act 1995 section 11, if an employee is convicted or found guilty of a serious offence, the employing authority may take disciplinary action or improvement action, or both disciplinary action and improvement action, with respect to the employee."
‘Serious offences’ and employment continuity
The Public Service Appeal Board found that the offences for which the worker was convicted met the definition of 'serious offences' under the Public Sector Management Act. Consequently, they determined that the employer's decision to dismiss was lawful and valid.
The decision provides insight into the process leading to the dismissal:
"On 15 February 2022, [the employer] wrote to [the worker] and informed him that he was suspended from duty on full pay and that [the employer] was considering dismissing [the worker] from employment and invited [the worker] to make a submission in response to the proposed dismissal. On 28 February 2022, [the worker's] union made a written submission on behalf of [the worker]. By letter dated 21 March 2022, [the employer] dismissed [the worker]."
Limitations in unfair dismissal claims
A crucial aspect of the Board's decision was the limitation of its powers in unfair dismissal claims. As explained in the decision:
"In unfair dismissal claims, as established by the Supreme Court of Western Australia in Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306, the Board is limited to quashing decisions to effect reinstatement and cannot otherwise adjust the decision."
This limitation significantly impacted the potential outcomes of the appeal.
The Board ultimately decided to dismiss the appeal, citing the impracticality of reinstatement due to the worker's incarceration. They stated:
"[The worker] is incarcerated and consequentially is not able to be reinstated as a matter of practicality. Given the remedy the Board may order is limited to reinstatement and such an order is not practical, the Board considers it appropriate to dismiss the appeal…
"The Board finds that the offences for which [the worker] was convicted were 'serious offences' as defined by the PSM Act and [the employer's] decision to dismiss was lawfully and validly made consistent with s 92 of the PSM Act."
