Twenty years at Hakea Prison, ended by a piece of cannabis cookie

What happened

Mr Byers started with the Department of Justice in April 2000. By December 2020 he was 64 and a chef instructor in the kitchen at Hakea Prison, where he had worked for his whole career. He had no history of warnings or disciplinary action.

On 9 December 2020, after work, he visited a friend in his late sixties who had bladder cancer. Mr Byers was worried about his wife's health, and his friend gave him a piece of a cannabis cookie, saying it would calm him down. He took it home and ate it before bed. He described the piece as smaller than a 20-cent coin.

Two days later he was randomly drug tested at Hakea and returned a positive result for cannabis. The laboratory report said he was not expected to have been impaired at work. Once the test came back positive, he readily admitted what he had done.

The removal

Prison officers in Western Australia can be removed under Part X of the Prisons Act 1981 (WA) if the head of the department loses confidence in their suitability to continue, having regard to their integrity, honesty, competence, performance or conduct. This is called removal action, and it is separate from ordinary dismissal.

The drug testing regulations say that if an officer tests positive to a drug like cannabis, the department head may accept the officer's resignation or take removal action. Mr Byers was stood down on full pay and given notice of three grounds: the positive test, his admission that he had used cannabis two days before, and his admission that he socialised with people who possessed, used and supplied him with cannabis.

He responded with an apology, character references from colleagues, and letters from his psychologist and his GP. His removal took effect on 27 July 2021.

The legal test in the Commission

Mr Byers appealed to the Western Australian Industrial Relations Commission. Under s 106 of the Prisons Act, the appeal is heard by at least three commissioners, and the officer must show the removal decision was harsh, oppressive or unfair. The burden stays on the officer throughout (s 107(2)).

The Commission must also weigh the officer's interests against the public interest, which includes public confidence in the integrity and conduct of prison officers (s 107(4)). Because this is a loss of confidence removal rather than a dismissal, the question is not whether the penalty was too severe, but whether the conduct can fairly lead to the conclusion that the person is no longer suitable to be a prison officer.

A split decision

On 6 May 2022 the Commission dismissed the appeal by a majority. Chief Commissioner Kenner found the positive test and the admitted use were enough on their own to support the loss of confidence. He noted that eating the cookie 'was not a spur of the moment decision': Mr Byers had carried it home before eating it. He also found that Mr Byers had not self-reported, had used cannabis once before while a prison officer, and had given inconsistent accounts of his history.

On long service, the Chief Commissioner said the Director General 'should not be required to retain a prison officer in whom he has properly lost confidence, only because of a lengthy period of service.' Commissioner Emmanuel agreed.

Senior Commissioner Cosentino disagreed. She found the third ground was not soundly based: the evidence did not show Mr Byers was involved in drugs simply by visiting his sick friend, and expecting him to cut off the friendship was unrealistic. Weighing his good record, remorse and the low risk of it happening again, she found the removal harsh, oppressive and unfair, and would have ordered that it be treated as having always been of no effect.

The appeal that could not be heard

Representing himself, Mr Byers appealed to the Industrial Appeal Court, arguing that the majority had misread the drug testing regulations and the Prisons Act. The court dismissed the appeal at the hearing, without needing to hear from the Director General’s counsel.

Its reason was jurisdiction, meaning its legal power to hear the case at all. As applied to prison officers, an appeal to the court lies only from a Commission decision that the removal was harsh, oppressive or unfair. The court said the decision is the order that disposes of the appeal, not the reasons. Senior Commissioner Cosentino's dissent was 'simply reasons' and not a decision, so there was nothing he could appeal from. Earlier cases had reached the same result for removed police officers, whose removal scheme is substantially the same.

What this means for you

If you are a WA prison officer, a positive test for an illicit drug can lead to removal even after decades of good service, and even when you were not impaired at work. The policy expects officers to avoid illegal drugs off duty, and it treats self-reporting differently from a positive random test.

If you face a notice of loss of confidence, your written response and your appeal to the Commission matter a great deal, because there is usually no second chance if the Commission rules against you. It is worth getting advice early, before you respond to the notice, and acting quickly because the time limits for an appeal are short.