BETWEEN : CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INC

DIRECTOR GENERAL OF DEPARTMENT FOR COMMUNITY DEVELOPMENT

Industrial relations - Allegation of misconduct against public sector employee - Conduct outside workplace and work hours - Whether "misconduct" - Test to be applied

Public Sector Code of Ethics - Whether Code applies to conduct of employee outside workplace

Appointment of independent party to conduct investigation - Whether denial of procedural fairness

Whether employer entitled to commence disciplinary proceedings where criminal proceedings against employee withdrawn

Industrial Relations Act 1979, s 80E, s 90

Public Sector Management Act 1994, s 9, s 80, s 81

Blyth Chemicals v Bushnell [1933] HCA 8; (1933) 49 CLR 66

Drabsch v Buckley & Anor [1999] NSWSC 122

McManus v Scott-Charleton (1996) 140 ALR 625

Parker & Ors v Miller QC & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998

R v BBC; ex parte Lavelle [1983] 1 All ER 241

Rose v Telstra Corp Ltd; unreported; AIRC Q9292; 4 December 1998

1 ANDERSON J (Presiding Judge): This is an appeal pursuant to s 90 of the Industrial Relations Act from a decision of the Full Bench handed down on 5 March 2002 in which the Full Bench upheld an appeal against an order made by the Public Service Arbitrator permanently staying disciplinary proceedings commenced by the respondent against a public service officer employed in the Department for Community Services.

2 The matter began in June 2001 when the respondent received a complaint from a female public service officer employed in the Department that she had been sexually assaulted by a more senior public service officer who was also employed in the Department. The disciplinary proceedings were started as a result of this complaint.

3 Mr H is of the age of 53 years and is currently employed as a level 6 manager in the Community Skills Training Centre which is a branch of the Department. His duties include training officers employed in the Family and Children's Service branch of the Department in community skills. Ms S is of the age of 24 years and is a level 2 welfare officer employed in Family and Children's Services. At the material time Ms S was stationed in Kalgoorlie and Mr H was stationed in Perth. They had met on previous occasions, including during September of 2000 in Carnarvon where Mr H conducted a training course in which Ms S was one of the trainees. On 21 February 2001 Mr H and a Ms Day, who was employed as a trainer in the Community Skills Training Centre in Perth, travelled to Kalgoorlie to conduct a training course on the subject of critical incident stress debriefing. Ms S was not a participant in the course.

4 After the training course finished Mr H, Ms S and several other officers employed in the Department met for drinks and later for dinner. How this was arranged is in dispute. The facts that are about to be stated are taken from the statement which was made by Ms S to police in about March 2000 and which was provided by her to the respondent in support of her complaint against Mr H. This statement has not yet been tested. After dinner several members of the group, including Ms S and Mr H, continued socialising, first at one hotel and then at another, until about midnight. Ms S then invited the group back to her house in Kalgoorlie and a number of people, including Mr H, accepted that invitation. More alcohol was consumed. After an hour or so the group began to break up and by about 2 am the only persons present in the house were Mr H and Ms S. According to Ms S she was under the influence of alcohol. During the evening Mr H had spoken of his skills and experience as a masseuse and from time to time during the evening he had practised his skills on one or two female members of the group by manipulating their shoulders.

5 After everyone else had left the house Mr H offered to give Ms S a full body massage and she accepted that offer which involved taking off all her clothes and lying face down on a couch, having oil poured on her body and having her body rubbed by Mr H. This continued for some time. According to Ms S, as she was lying face down on the couch, Mr H pushed her legs apart and penetrated her vagina and then her anus with a finger. Ms S said she responded to this by remonstrating with Mr H, telling him that he had "gone way too far" and that it was "time that you went home". In her statement she said that she called him a taxi and walked him to the front door and that after he left she "went straight to my bathroom and I vomited".

6 According to Ms S, she confided to a fellow officer in her Department and later reported the matter to one of the psychologists in the Family and Children's Services division. Other people became involved, including representatives of the appellant which was Ms S's union. There was uncertainty whether the matter should or could be dealt with under the Public Sector Management Act as a disciplinary matter. Ultimately on 7 March 2001 Ms S made a formal report to police.

7 Mr H was asked to attend at the police station in Perth on 23 March 2001, which he did with a solicitor. He was advised by his solicitor to exercise his right of silence, which he did, whereupon he was charged with the offence of sexual penetration without consent contrary to s 325 of the Criminal Code. A complaint of that very serious offence was laid in the Court of Petty Sessions. The matter was then referred to the Director of Public Prosecutions and the Director came to the conclusion that there was no reasonable prospect of obtaining a conviction and did not present an indictment. Mr H was discharged from the complaint on 6 June 2001.

8 On 11 June 2001 Ms S made a complaint against Mr H to Mr Lex McCulloch, the Executive Director, Metropolitan Service Delivery, Family and Children's Services in consequence of which Mr McCulloch wrote to Mr H as follows:

"Dear ...[Mr H's given name]

Allegations of Misconduct

I refer to your letter of 12 June 2001 in which you advised me of the Director of Public Prosecutions' decision to discontinue prosecution of a charge against you.

On 11 June 2001 I received a complaint from ... [Ms S] detailing serious allegations arising from your conduct towards her following a training exercise in Kalgoorlie on 20 February 2001.

I am presently investigating the nature and extent of these allegations and will advise you of my intended action in due course. You are hereby directed not to contact or in any way communicate with ... [Ms S] until this matter is resolved.

Yours sincerely

Lex McCulloch

Executive Director

Metropolitan Service Delivery"

9 Section 81 of the Public Sector Management Act is in the following terms:

"81 Procedure when breach of discipline suspected

(1) An employing authority may, when it suspects that a person has committed a breach of discipline whilst serving as an employee in its public sector body and has given the person such notice in writing of the nature of the suspected breach of discipline as is prescribed, give the person a reasonable opportunity to submit an explanation to the employing authority.

(2) After having given the respondent the reasonable opportunity referred to in subsection (1), the employing authority may -

(a) if it is not the Minister, investigate or direct another person to investigate; or

(b) if it is the Minister, direct another person to investigate,

the suspected breach of discipline in accordance with prescribed procedures.

..."

10 On 6 July 2001 Mr McCulloch wrote again to Mr H confirming his intention to investigate the "nature and extent of serious allegations relating to your behaviour towards" Ms S and advising him that he had appointed Dr Maureen Smith "to conduct a formal and independent investigation into these matters and determine whether there is any substance to matters raised within ... [Ms S's] complaint". The letter also advised Mr H that he was entitled to have a colleague or representative capable of providing advice to him present during any interview or meeting with Dr Smith and that upon completion of her investigation, Dr Smith would compile a report of her findings "inclusive of recommendations". Mr H responded to this letter maintaining his innocence and denying "any offence had taken place". He accused Ms S of being "mischievous".

11 Dr Maureen Smith is in private practice in Applecross as a management consultant. She is a fellow of the Australian Institute of Management and a member of the Australian Institute of Company Directors. Her terms of reference were:

"Using the balance of probabilities as your test, I seek your determination on the following matters:

(1) Whether ... [Ms S's] allegations regarding to ... [Mr H's] conduct towards her are found to have substance;

(2) If so, whether ... [Mr H's] alleged conduct towards ... [Ms S] occurred within a social or work related context given that ... [Mr H] was in Kalgoorlie on departmental business;

(3) Whether ... [Mr H's] alleged conduct towards ... [Ms S] was inappropriate;

(4) Whether ... [Mr H's] alleged conduct towards ... [Ms S] constituted misconduct given the requirement that whilst acting as an authorised representative of the department he must at all times adhere to:

• Public Sector Management Act of 1994, in particular section 9, General Principles of Official Conduct

12 Dr Smith commenced her investigation on 6 July and personally interviewed nine people and interviewed a further four by telephone. She attempted to interview Mr H, but he declined to be interviewed.

13 Dr Smith reported to Mr McCulloch on 3 August 2001 purporting to make positive findings against Mr H under each of the four terms of reference. On 31 August 2001 Mr McCulloch sent to Mr H a letter described as a "Notice of Suspected Breaches of Disciplines" in which he said:

"On 9 August 2001 I received a report from Dr Smith. I have considered the contents of the report and have made some preliminary inquiries into matters raised in it and by it. I now give you notice that, pursuant to section 81(1) of the Public Sector Management Act 1994 I suspect you have committed the following breaches of discipline:

(1) On 22 February 2001 you sexually penetrated ... [Ms S] without her consent and thereby committed an act of misconduct;

(2) On 22 February 2001 you sexually penetrated ... [Ms S] without her consent and thereby contravened the WA Public Sector Code of Ethics, specifically the Key Principles of Justice, Respect for Persons and Responsible Care;

(3) On 22 February 2001 you sexually penetrated ... [Ms S] without her consent and thereby contravened a provision of the PSMA 1994 applicable to you, namely, section 9(b), in that you failed to act with integrity in the performance of official duties;

(4) On 22 February 2001 you sexually penetrated ... [Ms S] without her consent and thereby contravened a provision of the PSMA 1994 applicable to you, namely, section 9(c), in that you failed to exercise the proper courtesy, consideration and sensitivity expected of you in your dealings towards a fellow employee.

In accordance with section 81(1) I am giving you the opportunity to submit an explanation to me in relation to the allegations. You have until close of business Friday, 7 September 2001 to submit your written response to these allegations.

Copies of Dr Smith's report and relevant provisions of the Public Sector Management Act 1994 and the Western Australian Public Sector Code of Ethics are attached.

Yours sincerely"

14 The disciplinary proceedings went no further. On 5 September 2001 the appellant filed a notice of application in the Commission applying to the Public Service Arbitrator under s 80E and s 80F of the Industrial Relations Act seeking to have the respondent's "actions and/or decisions, and/or any related matter or thing of the respondent specifically in relation to the respondent's actions in relation to ... [Mr H] to be reviewed, nullified, modified or varied as the Public Service Arbitrator in his/her jurisdiction determines upon the hearing of the matter".

15 Twenty one grounds were put forward as grounds on which the application was made and a total of 22 particulars of the grounds as a whole were also included. It is not necessary to comment on the way in which the grounds and particulars are pleaded, save to say that they appear to be unduly prolix and argumentative and to descend into narrative.

16 The sections of the Industrial Relations Act pursuant to which these proceedings were brought are in the following terms:

"80E Jurisdiction of Arbitrator

(1) ... An arbitrator has exclusive jurisdiction to inquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally.

...

(5) Nothing in subsections (1) or (2) shall affect or interfere with the exercise by an employer in relation to any Government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.

80F By whom matters may be referred to Arbitrator

(1) ... an industrial matter may be referred to an Arbitrator under section 80E by an ... organisation or association ..."

17 The Arbitrator, Commissioner P E Scott, heard the matter on 11 October 2001 and reserved her decision until 22 October 2001 when reasons were delivered together with a set of minutes of proposed orders. Final orders were made on 30 October 2001 as follows:

"(1) That the respondent shall cease any and all disciplinary action against ... [Mr H] in relation to allegations made by ... [Ms S] and is prohibited from reinstigating any such action in relation to those allegations;

(2) That the investigation and report by Dr Maureen Smith for and on behalf of the respondent in relation to allegations of misconduct against ... [Mr H] is hereby void ab initio;

(3) That within seven days of the date of this order the respondent shall remove from ... [Mr H's] personal file all documentation connected with or flowing from the investigation and report by Dr Maureen Smith."

18 There is a rather curious feature of the proceedings before the Arbitrator. The appellant's main contention was that the respondent had no right to conduct an investigation into the conduct of Mr H because that conduct did not "occur in the workplace or in the course of an employee discharging authorised duties ... in the employment relationship", to use the words of the application. The appellant's case was that it was a private matter and not a breach of discipline "whilst serving as an employee" within the meaning of s 81(1) of the Public Sector Management Act. In short, it was the appellant's case that the conduct alleged could not be misconduct.

19 In examining this contention, the Arbitrator might have been expected to confine herself to those facts which were alleged by Ms S in support of her complaint. The Arbitrator might have been expected to simply ask herself the question whether if all of the factual material put forward by Ms S in support of her complaint was true, did that factual material disclose grounds on which the Director could suspect that Mr H had committed a breach of discipline whilst serving as an employee. I think that would have been the proper and better approach. Instead the Arbitrator heard evidence from Mr H, and only from him. Mr H was allowed to give evidence to the Arbitrator to the effect that his "official duties" ceased when he left the training venue to return to his motel. He was allowed to give his version of the circumstances under which he, Ms S and the other members of the group came to be socialising. He gave his version of his behaviour and of the behaviour of Ms S and as to how events unfolded during the course of the evening and early morning; and he was allowed to give evidence contradicting the account given by Ms S of the sexual assault upon her.

20 I do not consider that this was appropriate. If an employing authority suspects that there may have been an actionable breach of discipline, and there are reasonable grounds for that suspicion, the authority ought to be allowed to carry out its statutory duty to conduct an investigation to see whether there was in truth an actionable breach of discipline. Prima facie it would not seem to be a proper exercise of jurisdiction by the Public Service Arbitrator to stop the employing authority from doing so on the basis of the Public Service Arbitrator's own investigation of the facts. No doubt it is perfectly proper for the Public Service Arbitrator to stop baseless disciplinary proceedings. However, I think the judgment as to whether the proceedings are or are not baseless should be made by reference only to the matters alleged in the complaint.

21 As it happens, I think that in the end this is exactly what the Arbitrator did in fact do in this case. Although the Arbitrator summarised Mr H's evidence, it appears from her reasons for decision that she looked only at the conduct that was "alleged in respect of ... [Mr H] ...", as she put it, in order to determine whether she should put a stop to the investigations, which she did. There is little or no indication in her reasons that her decision to do so was based on the evidence given by Mr H. It would have been better if at the outset the Arbitrator had declined to hear that evidence.

"26. The role of the Department, its purpose, vision and responsibility in respect of protection of children, and the Training Centre's role in the provision of training does not sufficiently relate to or touch upon the alleged conduct such as to create the necessary connection to bring the alleged conduct within the purview of an employer.

27. In those circumstances, I find that the alleged conduct did not touch the employment in circumstances which would mean that the employer is entitled to inquire into that conduct. There is not a relevant connection between the conduct and the employment. If the test were that referred to by the applicant, then I am not satisfied that the conduct alleged has, in the words of the applicant, related to ... [Mr H's] performance of his duty or his working relationships."

23 The respondent appealed from this decision to the Full Bench on a single ground expressed in the following terms:

"1. The Commissioner erred in law in finding that the respondent's alleged conduct did not touch the respondent's employment with the appellant in circumstances which would mean that the employer is entitled to inquire into that conduct.

PARTICULARS

1.1 There was a relevant connection between the respondent's alleged conduct and his employment with the appellant.

1.2 In any event, it could not be said that the connection between the respondent's alleged conduct and his employment with the appellant was so tenuous as to disentitle the appellant from conducting an investigation into it under section 81 Public Sector Management Act 1994, which investigation would have led to a full consideration of the extent of the connection between the respondent's alleged conduct and his employment with the appellant."

24 Whether this ground of appeal really does involve an error of law, as it is said to do, need not be debated. The Full Bench (President Sharkey, Chief Commissioner Coleman and Commissioner Wood) unanimously upheld the appeal, concluding that the alleged conduct did have, as they put it, a "sufficient relevant connection" to Mr H's employment to justify the proposed investigation.

25 There are five grounds of appeal to this Court. Although they occupy some seven pages, they seem to me to raise only the following questions of law:

• With respect to the misconduct alleged in item (1) of the Director's notice of suspected breaches of discipline, as the alleged misconduct did not occur in the hours of duty and did not occur in the workplace, could it amount to an act of misconduct within the meaning of s 80(c) of the Public Sector Management Act and, if so, what is the test?

• With respect to the misconduct alleged in item (2) of the Director's notice of suspected breaches of discipline, does the Public Sector Code of Ethics extend to behaviour occurring outside the hours of duty and outside the workplace?

• With respect to the misconduct alleged in items (3) and (4) of the Director's notice of suspected breaches of discipline, do the requirements of s 9(b) and s 9(c) of the Public Sector Management Act apply to the conduct of public sector employees outside their hours of duty and outside their workplace?

• Did the report of Dr Smith so taint the proceedings as to require that the proceedings be permanently stayed?

• Should the Full Bench have permitted the appellant (respondent before them) to rely on a notice of contention?

• Are the disciplinary proceedings barred in point of law having regard for the withdrawal of the criminal proceedings against Mr H?

26 Other matters are pleaded in the grounds of appeal, but they seem to me to raise only questions of fact.

27 I have already set out the relevant parts of s 81. The concept of "breach of discipline" referred to in that section is to be understood in the light of the preceding section which is in the following terms:

"80. Breaches of discipline

An employee who -

(a) disobeys or disregards a lawful order;

(b) contravenes -

(i) any provision of this Act applicable to that employee; or

(ii) any public sector standard or code of ethics;

(c) commits an act of misconduct; or

(d) is negligent or careless in the performance of his or functions,

commits a breach of discipline."

28 Section 80(b)(i) means that conduct which is not in accordance with s 9 may be a breach of discipline, s 9 being a provision of the Act applicable to public sector bodies and employees. Section 9 is in the follow terms:

"9. General principles of official conduct

The principles of conduct that are to be observed by all public sector bodies and employees are that they -

(a) are to comply with the provisions of -

(i) this Act and any other Act governing their conduct;

(ii) public sector standards and codes of ethics; and

(iii) any code of conduct applicable to the public sector body or employee concerned;

(b) are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and

(c) are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees."

29 Section 80(b)(ii) means that conduct not in accordance with the Public Sector Code of Ethics may be a breach of discipline.

30 I shall now try to deal with each of the questions of law in the order in which they are set out above.

• With respect to the misconduct alleged in item (1) of the Director's notice of suspected breaches of discipline, as the alleged misconduct did not occur in the hours of duty and did not occur in the workplace, could it amount to an act of misconduct within the meaning of s 80(c) of the Public Sector Management Act and, if so, what is the test?

31 The acts of Mr H which are said to constitute misconduct could be judged by ordinary standards to be misconduct. Ms In de Braekt submitted that this is beside the point. She submitted that for the purposes of the Public Sector Management Act misconduct is a defined term and the definition is contained in s 9 and the conduct of Mr H, as related by Ms S, is not within the definition.

32 The first part of this submission cannot be accepted. The phrase "act of misconduct" in s 80 is not to be construed as if it read "non-compliance with section 9". If that had been intended, that is how it would have been expressed. Alternatively, if the word "misconduct" was to have a special or limited meaning for the purposes of the Act, provision would have been made in the definition section. In my opinion, nothing in the Act indicates that parliament intended the word "misconduct" to have any special meaning in s 80. It is to be given its ordinary meaning which is simply conduct which is improper or immoral by the standards of ordinary people. Therefore, a public service officer who conducts himself or herself in such a manner is prima facie guilty of misconduct within the meaning of s 80. The conduct alleged against Mr H is conduct which could be considered improper or immoral by ordinary standards.

33 It may be accepted that parliament did not intend that misconduct wherever or whenever occurring should be regarded as a breach of discipline calling for disciplinary action on the part of the public sector employer. Off-duty misconduct may be so unrelated to the public sector employment as to be incapable of amounting to a breach of discipline. It may be conduct which is irrelevant to the office itself, to the standing of the officer within that office and to his perceived capacity to discharge the functions of the office. It may be accepted for the purposes of this case that if this was shown, there will not have been "misconduct" within the meaning of s 80. The act of misconduct, as to whether it is a breach of discipline, is to be evaluated by reference to the objects of the Public Sector Management Act. Speaking very broadly, those objects are the administration and management of the public service. The objects of the Act are not achieved by requiring public sector officers to conduct all aspects of their lives as if there was no distinction at all between their public sector responsibilities and their private activities.

34 Where is the line to be drawn? 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. It is necessary to refer only to the well-known case of Henry v Ryan [1963] Tas SR 90, a judgment of Burbury CJ. I wish it was still possible to write such succinct judgments. Burbury CJ said, at 91:

"'Discipline' in this sense involves more than mere obedience to lawful orders. It is a wide concept and I have no doubt extends to conduct of a police officer when off duty so far as that conduct may affect his fitness to discharge his duties as a police officer ... Discreditable conduct in his private life may ... clearly affect his status and authority as a police officer in the discharge of his public duties and in his relations with the public.

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."

35 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. Whilst the circumstances remain to be fully investigated, there is, on the face of it, a connection between the conduct and the employment. Mr H had met and apparently befriended Ms S at a training course which he had conducted and in which she was a participant. She was a junior officer and he was a level 6 manager 30 years her senior. The renewal of the acquaintanceship came about in a workplace context in that he was to go to Kalgoorlie to conduct a training session and she was stationed in Kalgoorlie in her employment with the Department. This appears to be all that they had in common. The group which met to socialise after the training session were all (or most of them were) public sector employees employed in the Department. They were, in a broad sense, fellow workers and Mr H was the most senior and very considerably senior to Ms S. Discreditable behaviour on his 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 thus might affect his fitness to carry out his duties. These are matters which are proper for investigation in the proposed disciplinary proceedings.

• With respect to the misconduct alleged in item (2) of the Director's notice of suspected breaches of discipline, does the Public Sector Code of Ethics extend to behaviour occurring outside the hours of duty and outside the workplace?

36 Ms In de Braekt, on behalf of the appellant, submitted that it could not be found that Mr H had contravened the Public Sector Code of Ethics, as intimated in par (2) of the Director's notice to Mr H, because no part of the Code regulated what she called "the private lives of officers", nor was it directed at conduct other than conduct within the performance of official duties.

37 I am not persuaded that the Code of Ethics is so confined. On page 5 of the Code under the heading "What is the Code of Ethics" there is the following statement:

"The Code articulates the way in which public sector employees interact with each other and their stakeholders."

38 The Code is said to be based on certain fundamental principles, one of which is "Respect For Persons" (see page 10 of the Code). That principle is said to involve, inter alia, "promoting the physical, mental and social wellbeing of others" and "respecting the rights of individuals ...".

39 I think that what this means is that in their interaction with each other there must be respect for each other and each other's rights and physical and mental wellbeing. It would be going too far, perhaps, to hold that the Code is intended to impose ethical standards of that description on public sector employees whenever and wherever they may "interact". The interaction might take place in circumstances that have no relevance at all to the status or position within the public sector of the employees, in which case it would be easy to see that misbehaviour of one towards the other could not be regarded as a breach of discipline. I think that whether a particular case is on one side of the line or the other will always depend on all of the circumstances and will be a matter of judgment. Suffice it to say that the line is not necessarily to be drawn in every case by reference to the workplace itself or the hours of duty.

• With respect to the misconduct alleged in items (3) and (4) of the Director's notice of suspected breaches of discipline, do the requirements of s 9(b) and s 9(c) of the Public Sector Management Act apply to the conduct of public sector employees outside their hours of duty and outside their workplace?

40 Ms In de Braekt submitted that it could not be found that Mr H had failed to act with integrity in the performance of official duties contrary to s 9(b), which is the breach of discipline alleged in item (3) of the notice, because the alleged misconduct was not in the performance of official duties. She submitted that the Full Bench acknowledged this and their acknowledgment of it should have led them to uphold the Arbitrator's stay of the investigation at least into that suspected breach of discipline.

41 I think this submission must be accepted. The members of the Full Bench did acknowledge that the conduct itself occurred out of hours when neither Ms S nor Mr H were actually performing official duties. That is the only conclusion that was open on the facts set out in Ms S's statement. On that statement of facts Mr H could not be held to have failed "to act with integrity in the performance of official duties" within the meaning of s 9(b) in that in no relevant sense was it Mr H's official duty to socialise with Ms S.

42 Ms In de Braekt also submitted that it could not be found that Mr H had failed to comply with the requirements of s 9(c) which is the breach of discipline alleged in item (4) of the notice. As I understood her argument, she submitted that the requirement in s 9(c) to exercise proper courtesy, consideration and sensitivity in dealings with employees is a requirement imposed on public sector bodies in dealings between public sector bodies and their employees. It could not, therefore, refer to Mr H's dealings with Ms S. According to the argument, the requirement to exercise proper courtesy, consideration and sensitivity in dealings with members of the public did not apply in this case either because Mr H was not dealing with a member of the public in socialising with Ms S. It is difficult to reconcile this submission with s 9 as both "public sector bodies" and "employees" are referred to in the introductory passage of s 9. The intention to bind employees, as well as public sector bodies, appears clear. Further, as s 9(c) concludes with reference to both the "public" and "employees", the dealings of employees with other employees appears necessarily to be within the operation of s 9(c). In other words, s 9(c) imposes principles of conduct on both public sector bodies and public sector employees and identifies the beneficiaries of those principles of conduct as being both the public and public sector employees. Relevantly to this case, therefore, the subsection means that in their dealings with each other public sector employees are to be courteous, considerate and sensitive.

43 Given the context and purpose of the Act, the regulation of the dealings of one public sector employee with another would appear to be both appropriate and sensible. In any event, that is the effect of the statutory language.

44 The question, therefore, arises what "dealings" are within the intended operation of s 9(c)? Given the objects of the Act, the discussion of misconduct, in the context of s 80 and s 9, earlier in the reasons, is of general relevance to this question. For the purposes of s 9(c), if the dealing in question is not in the course of public sector employment, at the least it would need to be "relevant" to that employment, or have a "relevant connection" to that employment, for it to be within the intended scope of s 9(c).

45 It is neither necessary nor practicable to examine this aspect further at this stage as the relevant facts are yet to be determined by investigation. What is presently known offers a sufficient prospect that the dealing was relevantly connected to the public sector employment of both Mr H and Ms S that it would be proper for the proposed investigation pursuant to s 81(2) to be conducted. Of course, on investigation, the relevant dealings may be revealed to be entirely personal and private and outside the scope of s 9(c).

• Did the report of Dr Smith so taint the proceedings as to require that the proceedings be permanently stayed?

46 In the notice of application to the Public Service Arbitrator it was pleaded by ground 16 that:

"Formal conclusions reached in an unlawful investigation by the respondent (and its agents) about the alleged misconduct of an employee, prior to the undertaking of a lawful investigation pursuant to section 81 of the Public Sector Management Act, denies the employee natural justice and procedural fairness.

47 The complaint underlying this ground of application was that whilst it might have been permissible for the Director-General to enlist the aid of others to see if there were grounds to suspect a breach of discipline which ought to be investigated, this is not what the Director-General did. Instead he engaged Dr Smith on terms of reference which really required her to conduct the investigation itself, with the result that the Smith report amounted to a determination in the nature of a final determination against Mr H in respect of the complaint being investigated. The appellant's criticism of this aspect of the proceedings would appear to be justified. How the report might have been ultimately used in the further investigations is another matter, but it is easy to see why Mr H would wish to obtain an order under s 80E(5) of the Industrial Relations Act reviewing the decision to obtain the Smith report, and to have that report removed from all further consideration. This is the effect of Commissioner Scott's orders in relation to Dr Smith's report and there was no challenge to those orders before the Full Bench, nor before this Court.

48 What remains, however, is the submission that the report of Dr Smith must have made an indelible impression upon the Director so as to lead him to a state of prejudgment. This submission is not without substance. When an officer receives a notice to the effect that he is suspected of committing a breach of discipline and that there is to be an investigation in which he will be given an opportunity to be heard, he would not expect to receive with the notice a detailed report of a consultant following upon a comprehensive investigation by that consultant and containing the conclusion that the officer had in fact committed a breach of discipline. The officer might reasonably apprehend that the judgment had been made and all that remained was empty formality. If the inquiry was then to proceed and was determined, or apparently determined, on the strength of the findings made in the report, I think the determination could not stand. There would have been a denial of procedural fairness. The officer would be in the unfair situation of taking part in an investigation which was nothing more than, or which appeared to be nothing more than, the rubber stamping of the results of an antecedent investigation and plainly that is not what is contemplated by the provisions of Div 3 of Pt V.

49 In this case, however, there is no real danger that this might happen. The Public Service Arbitrator has made directions, the effect of which are that no further reference may be made to Dr Smith's report. There is no reason to suppose that any further use will be made of it should the disciplinary proceedings continue. I do not accept that the Director could not now proceed to conduct an investigation in a manner which is fair to Mr H. He having been directed, in effect, to put Dr Smith's report out of his mind, there is no good reason to suppose that he will not do so.

50 I should add that what I have said above is not to be taken as a criticism of Dr Smith. There is no ground whatever for criticising Dr Smith. She did exactly what she was commissioned to do, and very promptly too.

• Should the Full Bench have permitted the appellant (respondent before them) to rely on a notice of contention?

51 There is no provision in the Industrial Relations Act or the regulations made under that Act for the filing of notices of contention. This does not mean that a respondent to an appeal to the Full Bench who wishes to contend that the decision below should be affirmed on grounds other than those relied on below may not advance such arguments. There is a distinction between, on the one hand, seeking to have the decision below varied or set aside, in which case there must be a notice of appeal, and, on the other hand, seeking to support the decision below by pointing out that it is sustainable on grounds other than those relied on by the tribunal whose decision is appealed from. There is no reason in principle why a respondent should be precluded from advancing arguments in support of the decision below in addition to the matters upon which the decision is expressly based. As I understand the judgment of the Full Bench in this case, they did not shut out the respondent's arguments which were set out in the notice of contention. They simply declined to recognise the notice of contention as a substantive proceeding. I think it was correct of the Full Bench to point out to counsel for the respondent that there is no provision for a notice of contention to be lodged in an appeal to the Full Bench and to decline to treat the notice of contention as a formal proceeding. Anyway, there can be no ground for complaint. The Full Bench heard and considered the arguments and I am not persuaded that they erred in the approach they took to the respondent's case on this procedural point.

• Are the disciplinary proceedings barred in point of law having regard for the withdrawal of the criminal proceedings against Mr H?

52 This is a double-jeopardy argument and is entirely misconceived. There is no double jeopardy in this case. Mr H did not stand trial in the criminal court. But even if he had, and had been acquitted, there is no rule of law which would have operated as a bar to subsequent disciplinary proceedings. Ms In de Braekt presented what I must say, with all due respect, was a rather obscure argument to the effect that the "Crown" may not have two bites at the cherry. 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.

53 Whilst I would uphold the appeal to the very limited extent that the Full Bench should have upheld the stay order in respect of the proposed investigation into the allegations of misconduct contained in item (3) of the Director's notice of 31 August 2001, the appeal should otherwise be dismissed. The investigation should be allowed to proceed in respect of items (1), (2) and (4) in the Director's notice.

54 PARKER J: I agree with the orders proposed by Anderson J for the reasons given by his Honour.

55 HASLUCK J: I have had the advantage of reading in draft the reasons for judgment of the Presiding Judge. I entirely agree with that judgment and with the orders proposed.