A ruling by the Western Australian Industrial Relations Commission in February deeming unfair the 2016 dismissal of a public transport employee for using capsicum spay on a 12-year-old has been suspended and remitted for a later hearing, after an appeal against the decision was made by the Public Transport Authority of Western Australia (PTA).
The basis of the dispute took place at Perth Train Station at approximately 12.50am on Saturday, 7 November 2015, when transit officers Mr Stefano Merlo and Ms Warr were called to attend a disturbance by two intoxicated male youths at the upper concourse.
It is alleged that on arriving on the scene, the two officers were confronted by threatening behaviour (including verbal abuse and aggressive physical movements) by one of the youths, who Mr Merlo considered to be aged around 16-17 years (but who later turned out to be only 12 years old). Both youths were standing outside of PTA property, near the fare gates.
Ms Warr allegedly told the youths to leave. When they did not, she walked away from the scene, as she did not feel herself to be threatened and that, given the circumstances, it was the most appropriate way of de-escalating the situation.
Mr Merlo, however, remained; it is alleged he told the aggressive individual to leave and gave several warnings that, if he did not do so, he (Mr Merlo) would be forced to use capsicum spray.
The youth then allegedly told Mr Merlo that he would “spit at” him, and proceeded to cock his head back while producing noises in his throat to indicate he was about to do just that. Mr Merlo then made the split-second decision to use his capsicum spray, believing the youth was in the process of spitting. He realised shortly afterwards that that the individual had not in fact spat at all.
Ms Warr then went off PTA property to administer aftercare assistance to the youth, who allegedly refused it. The boy was later taken into protective custody and assessed by an ambulance officer, but was found not to have an imminent health risk and was taken home to his mother by transit officers.
Mr Merlo was later dismissed from his job by his employer the PTA in June 2016, who claimed that his actions on that night – particularly his use of capsicum spray – were a breach of discipline and a display of excessive force.
The Australian Rail, Tram and Bus Industry Union of Employees took the case to the Industrial Relations Commission in February this year. After hearing evidence from witnesses on behalf of the union and the PTA, the Acting Senior Commissioner declared that the dismissal of Mr Merlo was harsh, oppressive and unfair, and ordered the PTA to reinstate Mr Merlo as a Transit Officer Level 3 (a demotion), along with remuneration for missed pay.
The Commissioner stated that, with regard to all of the circumstances of the case, Mr Merlo appeared to have deployed his OC spray in self-defence and not in any way to provoke or inflame the situation.
Indeed, the Commissioner stated that Mr Merlo’s decision to use the spray was “a judgment made in a split second where Mr Merlo was confronted with appalling conduct by an intoxicated individual, making threats to both him and others in circumstances where Mr Merlo had every reason to believe the threat to spit would be carried out”.
The PTA appealed the Commission’s decision earlier this month.
Only one ground of appeal was satisfactorily upheld: the PTA’s claim that when making the decision over the dismissal, the Commissioner ought to have considered the evidence provided of Mr Merlo’s previous disciplinary history.
The Commission thus concluded that the prior decision made regarding the unfairness of the dismissal would be “suspended and the matter remitted for further hearing and determination” on grounds that the Commission was not “in a position to properly weigh and assess all of the evidence of relevant matters to draw its own inferences and a conclusion whether in all of the circumstances the dismissal of Mr Merlo was a proportionate and appropriate penalty for Mr Merlo’s conduct”.