Published 17 August 2017
In a recent case, Public Transport Authority of Western Australia v Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch 2017 WAIRC 00452 , the Full Bench of the Western Australian Industrial Relations Commission (WAIRC) disagreed with a tribunal member who reinstated a transit officer sacked for spraying a 12-year-old with capsicum spray, as they did not properly consider past behaviour.
Mr Merlo was employed by the Public Transport Authority of Western Australia (PTA) as a transit officer and was dismissed on 9 June 2016 based partly on an incident that occurred in November 2015.
Mr Merlo and his partner were called to a disturbance while working at night at the Perth train station due to an aggressive adolescent boy, who appeared to be under the influence of drugs or alcohol. He was 12 years old but appeared between 15 to 17 years old. When Mr Merlo and his partner approached, the boy started to make verbal threats, spat on the ground and began shadowboxing.
Mr Merlo’s partner disengaged from the situation and left Mr Merlo. Mr Merlo told the boy to leave and that he would use oleoresin capsicum spray on him if he attempted to assault him.
The boy made a motion as if he were going to spit on Mr Merlo. Mr Merlo deployed his capsicum spray on the boy to prevent this, however it appeared the boy was just posturing and did not intend to actually spit on him.
Following this incident, Mr Merlo apologised for his reaction and sought guidance on how he could have handled the situation better.
A formal investigation was conducted into the incident, and the PTA determined Mr Merlo had used excessive force in using the capsicum spray, especially given the adolescent was not on PTA property and he could have disengaged and walked away. PTA said that in the circumstances, where Mr Merlo had not followed protocol by disengaging and had failed to follow protocol in the past, they were not confident in his ability to follow proper procedures and he was unpredictable. As a result, they dismissed him.
Mr Merlo claimed he used the capsicum spray in self-defence and not to keep the adolescent off PTA property, as PTA claimed.
Decision at first instance
A tribunal member of the WAIRC found the dismissal was unfair and reinstated Mr Merlo to Transit Officer Level 3, a demotion from his prior rank of Level 5.
The PTA raised 5 grounds of appeal, including that the power to reinstate Mr Merlo with a demotion was outside the authority of the WAIRC and the tribunal did not consider Mr Merlo’s past conduct when ordering the reinstatement.
Decision of the Full Bench
The Full Bench found the tribunal member did not properly consider the employer’s views about the potential of a continuing working relationship after the employee was reinstated or the past conduct of Mr Merlo and the effect this had on PTA’s ability to trust him. Furthermore, by ordering reinstatement, the tribunal member had failed to consider whether the officer had the appropriate temperament for the duties required for the role.
The Full Bench rejected the other 4 grounds, however ordered the matter to be reheard and the earlier decision be suspended.
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