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Removal from office

In the public sector, certain types of employees can make appeals to the Commission in relation to their removal from employment by using a Form 8C – Notice of Appeal or Referral (Other Matters). These employees consist of police officers, prison officers and youth custodial officers.

If a police officer, a prison officer or a youth custodial officer seeks to appeal against decisions about their employment other than their removal from office, they should make an appeal to the Public Service Appeal Board. More information can be found here.

Please visit our Fact Sheets page for more information about proceedings at the Commission.

 

Identifying the relevant claim type

Who can make an application?

An officer of the Western Australian Police Force can appeal against a decision of the Commissioner of Police:

  • to take removal action against the police officer under s 33P of the Police Act 1892 (WA); or
  • to retire the police officer on medical grounds under s 33ZI of the Police Act 1892 (WA)

on the ground that the decision was harsh, oppressive or unfair.

Submitting an appeal

To submit an appeal, you must fill in a Form 8C – Notice of Appeal or Referral (Other Matters), and lodge three copies in the Registry of the Commission in person, by online lodgement, email or by post.

The appeal must be filed within 28 days of the date of the decision of the Commissioner of Police.

You are not required to have a representative and can represent yourself in your appeal. For information on representation and representing yourself, please click here.

Process

After you have lodged three copies of your Form 8C, the Commission's Registry will: 

  • Check the form to make sure it contains all the required information;
  • If the form is complete, send a copy with the appeal number and the stamp of the Commission to you for your records; and
  • Serve a copy of it on the Commissioner of Police.

What happens next? 

The Commissioner of Police is to respond to the notice of appeal by filing a Form 4 - Response (General) within 28 days of receiving the Form 8C.

The Commission may list the appeal for a brief hearing (called 'for mention') to decide on some preliminary issues, including: 

  • Whether the parties try to resolve the matter in a conciliation; and 
  • What date the parties are to file three copies of documents it will be relying on in the appeal. Regulation 94E of the Industrial Relations Commission Regulations 2005 (WA) requires the documents to be filed within 28 days after service on the appellant of the response of the Commissioner of Police, except as otherwise directed by the Commission. 

If the matter is not listed for a conciliation or remains unresolved after a conciliation, the Commission may then list the appeal for hearing.

Providing evidence

After the Commissioner of Police files a response, both parties have 28 days to file three copies of every document that was relied upon or utilised during the removal action.

Note that the appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair. The Commissioner of Police does not need to establish that the decision to take removal action was not harsh, oppressive or unfair.

Tendering new evidence

Appellants should note that, generally, the appeal is heard and determined on the basis of the material that was examined and taken into account by the Commissioner of Police at the time they decided to remove the police officer. These will be identified in the Commissioner of Police’s response.

If an appellant wants the Commission to take into account any document or evidence which was not examined and taken into account by the Commissioner of Police, they will need to ask the Commission for permission (called ‘seeking leave’) to tender new evidence. The Police Act 1892, in s 33R, imposes a number of restrictions limiting the ability of the Commission to accept new evidence in an appeal and an appellant will need to know them.

The appellant can seek leave to tender new evidence by completing a Form 1C - Application (no other specified form) and attaching to it a copy of the new evidence which the appellant is seeking leave to tender. 

The Commission is able to decide whether leave should be given only if it is aware of the substance of the new evidence. If the new evidence comes in the form of a document, the Commission is able to assess its content. In case the evidence that is sought to be tendered is the oral evidence of a witness, the Commission needs to be informed of the substance of the new evidence, which can be done by a written statement or affidavit by the witness. Then:

  • The Commissioner of Police is given time to reply to the application.
  • The application will then be listed for hearing and the Commission will hear the application and decide whether it will be granted.
  • If it is granted, the Commission is obliged to then give the Commissioner of Police a reasonable opportunity to consider the new evidence and respond to it. The Commissioner of Police may decide to revoke the removal action or reformulate their reasons for not having confidence in the appellant, and tender new evidence without leave of the Commission.

Possible outcomes

The Commission may uphold the decision of the Commissioner of Police, or, if the Commission decides the decision to take removal action/retire on medical grounds was harsh, oppressive or unfair, order that the removal from office/retirement on medical grounds is to be taken to have always been of no effect and reinstate you.

In circumstances where reinstatement is impracticable, the Commission may order you be compensated, however, that compensation must not exceed the equivalent of 12 months’ of your salary.

Who can make an application?

A WA prison officer can make an appeal to the Commission under section 106 of the Prisons Act 1981 (WA) against the decision of the Chief Executive Officer of the Department of Justice to take removal action against them.

Submitting an appeal

To submit an appeal, you must fill in a Form 8C – Notice of Appeal or Referral (Other Matters), and lodge three copies in the Registry of the Commission in person, by online lodgement, email or by post.

The appeal must be filed within 28 days of the date of the decision of the Chief Executive Officer of the Department of Justice.

Process

A copy of the filed Form 8C with the appeal number and the stamp of the Commission will be returned to the appellant for their records. The Registry will send a copy of the Form 8C to the Chief Executive Officer. Then:

  • The Chief Executive Officer is to file a Form 4 - Response (General) within 28 days of receiving the Form. 
  • The Commission may recommend the parties endeavour to resolve the matter in a conciliation.
  • If the matter is not listed for a conciliation or remains unresolved after a conciliation, the Commission may then list the appeal for hearing.

Providing evidence

If there is no request for conciliation, then within 14 days of the response being served, the Chief Executive Officer is to file three copies of every document relied upon by the Chief Executive Officer in the appellant’s case. Within 14 days of receiving these documents, the appellant is to file three copies of every document relied upon by the appellant.

Tendering new evidence

Section 108 of the Prisons Act 1981 (WA) means that the appeal is to be heard and determined on the basis of the following documents —
(a) a document or other material that was examined and taken into account by the chief executive officer in making the removal decision;
(b) the notice given under section 102(1);
(c) a written submission made to the chief executive officer by the prison officer under section 102(2);
(d) a decision notice;
(e) a notification of the removal.

If an appellant or the Chief Executive Officer wants the Commission to take into account any other document or evidence, they will need to ask the Commission for permission (called ‘seeking leave’) to tender new evidence.

The appellant can seek leave to tender new evidence by completing a Form 1C - Application (no other specified form) and attaching to it a copy of the new evidence which the appellant is seeking leave to tender.

The Commission is able to decide whether leave should be given only if it is aware of the substance of the new evidence. If the new evidence comes in the form of a document, the Commission is able to assess its content. In case the evidence that is sought to be tendered is the oral evidence of a witness, the Commission needs to be informed of the substance of the new evidence, which can be done by a written statement or affidavit by the witness.

Note that section 108 of the Prisons Act 1981 (WA) imposes conditions on granting leave to tender new evidence.

Possible outcomes

The Commission can uphold the decision of the Chief Executive Officer, or order that the removal from office is to be taken to have always been of no effect and reinstate the officer.

In circumstances where reinstatement is not practical, the Commission may order that the officer be compensated. However, that compensation must not exceed the equivalent of 12 months of the officer’s salary.

Who can make an application

A youth custodial officer can appeal to the Commission under section 11CH of the Young Offenders Act 1994 (WA) against a decision of the Chief Executive Officer of the Department of Justice to take removal action against them.

Submitting an appeal

  • To submit an appeal, you must fill in a Form 8C – Notice of Appeal or Referral (Other Matters), and lodge three copies in the Registry of the Commission in person, by online lodgement, email or by post.

  • The appeal must be filed within 28 days of the date of the decision of the Chief Executive Officer.

Process

A copy of the filed Form 8C with the appeal number and the stamp of the Commission will be returned to the appellant for their records. The Registry will send a copy of the Form 8C to the Chief Executive Officer. Then: 

  • The Chief Executive Officer is to file a Form 4 - Response (General) within 28 days of receiving the Form.
  • The Commission may recommend the parties endeavour to resolve the matter in a conciliation.
  • If the matter is not listed for a conciliation or remains unresolved after a conciliation, the Commission may then list the appeal for hearing.

Providing evidence

If there is no request for conciliation, then within 14 days of the response being served, the Chief Executive Officer is to file three copies of every document relied upon by the Chief Executive Officer in the appellant’s case. Within 14 days of receiving these documents, the appellant is to file three copies of every document relied upon by the appellant.

Tendering new evidence

Section 11CJ(1) of the Young Offenders Act 1994 (WA) means that the appeal is to be heard and determined on the basis of the following documents —
(a) a document or other material that was examined and taken into account by the Chief Executive Officer in making the removal decision;
(b) the notice given under section 11CD(1);
(c) a written submission made to the Chief Executive Officer by the prison officer under section 11CD(2);
(d) a decision notice;
(e) a notification of the removal;

If an appellant or the Chief Executive Officer wants the Commission to take into account any other document or evidence, they will need to ask the Commission for permission (called ‘seeking leave’) to tender new evidence.

The appellant can seek leave to tender new evidence by completing a Form 1C - Application (no other specified form) and attaching to it a copy of the new evidence which the appellant is seeking leave to tender.

The WAIRC is able to decide whether leave should be given only if it is aware of the substance of the new evidence. If the new evidence comes in the form of a document, WAIRC is able to assess its content. In case the evidence that is sought to be tendered is the oral evidence of a witness, the WAIRC needs to be informed of the substance of the new evidence, which can be done by a written statement or affidavit by the witness.

Note that section 11CJ(1) of the Young Offenders Act 1994 (WA) imposes conditions on granting leave to tender new evidence.

Possible outcomes

The Commission can uphold the decision of the Chief Executive Officer, or order that the removal from office is to be taken to have always been of no effect and reinstate the officer.

In circumstances where reinstatement is not practical, the Commission may order that the officer be compensated. However, that compensation must not exceed the equivalent of 12 months of the officer’s salary.

Frequently asked questions

The employee and the employer may be represented by another person or they may represent themselves. Parties can be represented by an industrial agent, union or employer association, lawyer, or a relative or friend. Except where the representative is a lawyer, the party being represented must file a Form 11 – Notification of Representative Commencing or Ceasing to Act to confirm that another person is representing them.

Please refer to the legislation that enables you to lodge an appeal (being the Police Act 1892 (WA), Prisons Act 1981 (WA) and Young Offenders Act 1994 (WA), Vocational Education and Training Act 1996 (WA) or the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) as applicable) to confirm if you have the right to make an appeal against the decision of the Commission in relation to your matter.

There are generally no other costs associated with your application unless you purchase transcript of the proceedings or summons a witness for hearing. Each party pays their own costs in relation to preparation of their case. This includes legal costs if you decide to engage a lawyer or paid agent to represent you.

You can contact the Commission's Registry by email, phone or in-person. We also have helpful Fact Sheets which may assist in answering your questions.

The Commission is committed to ensuring its information, facilities and services are accessible to all members of the Western Australian community. For more information on accessibility, please visit our Access and inclusion page.

An employee can discontinue a claim by filing a Form 1A – Multipurpose Form. If the parties reach agreement, it is generally a requirement that the employee discontinue their claim before the Commission.