Anne Susanne Bengtsson and Australian Taxation Office
[1994] IRCA 107
•2 Nov 1994
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 924 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
ANNE SUSANNE BENGTSSON
Applicant
A N D
AUSTRALIAN TAXATION OFFICE
Respondent
Reasons for Judgment
2 November 1994 PARKINSON JR
This application is made by motion on notice by the respondent for orders that the application made by the applicant pursuant to S170EA of the Industrial Relations Act 1988 (Cth) (“the Act”) be summarily dismissed pursuant to Order 20 r. 2(1)(a) as disclosing no reasonable cause of action. Counsel for the applicant submitted that this was not a matter which ought be determined summarily, and relied upon various authorities to the effect that in circumstances where the issue is open to argument it is not appropriate to summarily dismiss.
I was referred to the decision of Barwick C.J. in General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 wherein his Honour the Chief Justice gave detailed consideration to the circumstances in which it is appropriate to deal summarily with an action.
In that case an application was made that the proceedings had been initiated frivolously, vexatiously and without reasonable cause. The Chief Justice said (at pages 128-129):
“ The plaintiff rightly points out that the jurisdiction summarily to
terminate an action is to be sparingly employed and is not to be
used except in a clear case where the Court is satisfied that it has
the requisite material and the necessary assistance from the parties
to reach a definite and certain conclusion.”
In the present case there is no dispute between the parties as to the factual situation. There is a substantial argument going to the jurisdiction of this court to hear and determine this matter, and the entitlement of the applicant to bring the proceedings. This is not a case where the outcome of the summary application may be affected or altered by the facts at trial, nor is it a case where there is any other reason why it would be sensible or appropriate to put the applicant or the respondent to the complete cost of trial prior to determining the jurisdiction point. There is nothing in the application before me which would justify a finding that the material before me is incomplete, nor that I have not been given the necessary assistance by the parties to reach a definite and certain conclusion on the matters contained in the application which is before me. I therefore proceed to determine the respondent’s motion on notice.
The termination of the applicant’s employment with the Australian Public Service was effected as a result of a decision of a Disciplinary Appeal Committee to uphold a direction of the delegate of the Secretary of the Australian Taxation Office that she be dismissed. The direction that the applicant be dismissed was made as a result of the applicant’s conviction for various criminal offences under federal taxation and social security legislation, and consideration by the relevant Secretary of those convictions pursuant to S63(1) of the Public Service Act 1922 (Cth).
The respondent submitted that the applicant, having been a member of the Australian Public Service, had available to her an adequate alternative remedy of the nature set out in S170EB of the Industrial Relations Act. The remedy contended for by the respondent was that of the appeal available to the applicant to the Merit Protection Review Agency in respect of a decision made to terminate the applicant’s employment. In this case the applicant had, in fact, already had recourse to that review process prior to the filing of her application pursuant to S170EA of the Act.
The respondent also contends, further and in the alternative, that the processes provided for by legislation in the Public Service Act and the Merit Protection (Australian Government Employees) Act 1984 (Cth), being earlier in time than the Industrial Relations Reform Act 1994 (Cth) which established the proceedings pursuant to S170EA, ought be read as being subject to the maxim generalia speciabilus non derogant. The submission is that, because there is specific provision in the Public Service Act covering the same or similar matters to those provided for in the Act, that the Public Service Act provisions should not be treated as being overridden by the more general provisions of the Act. If this were the case, then the respondent submits that the provisions of Division 3 Part VIA of the Act would not apply to the applicant’s employment in the Australian Public Service.
In considering the above matters, it is appropriate to set out the relevant provisions of the Public Service Act and the Merit Protection (Australian Government Employees) Act. It should be noted that the sections are reproduced in full, and that the numerical sequence which appears below is that contained in the relevant Act.
Public Service Act 1922
S63 (1) provides in so far as presently relevant:
“63. (1) Where :
(a) a court has, after 15 September 1980, convicted an officer of a
criminal offence or found, without recording a conviction, that such an officer has committed such an offence; and
(b) the relevant Secretary, after giving the officer an opportunity to furnish to him, in writing, any statement that he desires to furnish in relation to the offence, is of the opinion that, having regard to the nature and seriousness of the offence, the circumstances in which it was committed and the nature of the duties of the officer, he is justified in so doing in the interests of the Service;
the relevant Secretary may counsel the officer or may:
(c) direct that there be taken, in respect of the officer, action by way of:(i) transferring the officer to a specified office (whether or
not at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him; or(ii) transferring the officer to a specified office (whether or not at the same or a different locality), being an office for which he is qualified and which has a lower classification than the classification of the office held by him and, if there is a salary range applicable to the
office so specified, determining that he be paid a specified salary within that range; or
(d) direct that the officer be dismissed from the Service.
Where the relevant Secretary gives a direction of a kind referred to in paragraph (1) (c) or (d) in respect of an officer, he shall furnish to the officer particulars of his reasons for giving that direction.
A direction under this section in respect of an officer takes effect:
(a) if the officer has no right of appeal against the direction - on the day on which the officer is furnished with particulars of the reasons for the giving of the direction; or
(b) if the officer has a right of appeal against the direction and appeals - on the lapsing or withdrawal of the appeal or on a Disciplinary Appeal Committee confirming the direction, whichever happens first; or
(c) in any other case - at the end of the period within which the officer may appeal against the direction to a Disciplinary Appeal Committee.”
Section 63D provides for appeals against a decision made pursuant to S63 as follows:
“63D. (1) ...
(2) An officer may appeal to a Disciplinary Appeal Committee against a decision made in respect of him:
(a) if the decision relates to a charge of misconduct - on either or both of the following grounds:(i) that the charge should have been dismissed; or
(ii) that the action directed to be taken in relation to the charge is unduly severe; or
(b) in any other case - on the ground that the action directed to be taken in respect of him is unduly severe.
(3) A Disciplinary Appeal Committee shall hear each appeal submitted to it under subsection (2) and may confirm, vary or set aside the decision against which the appeal is made.
(4) Where a decision in respect of an officer is varied by a Disciplinary Appeal Committee in such a manner as to direct the taking of action of a kind referred to in paragraph ... 63 (1) (c), the direction takes effect in respect of the officer immediately it has been given.”
Merit Protection (Australian Government Employees) Act 1984.
Section 16 of this Act provides:
The Agency shall, from time to time, arrange for the establishment, in accordance with section 17, of such Disciplinary Appeal Committees as appear to it to be required for the purposes of Division 6 and 6A of the Public Service Act 1922.”
Section 17 relevantly provides:
(1) A Disciplinary Appeal Committee established for the purpose of an appeal under section 63D, 63F of 63P of the Public Service Act1922...shall be constituted by:
(a) a Convenor nominated by the Agency;
(b) a person nominated by the relevant Secretary in relation to the person who appealed or made the request; and
(c) a person nominated by the organisation that is, as provided by the regulations, the appropriate organisation or, in the absence of such a nomination, nominated in such other manner as the regulations provide.(2) ...
(3) The person first referred to in paragraph (1) (b) and the person referred to in (1) (c) shall be nominated for the purposes of a particular appeal only and a person concerned in the laying of, or in the inquiry held in respect of, a charge under section 61 of the Public ServiceAct 1922, or in the making of a direction under subsection 63 (1) of that Act, shall not be nominated for the purpose of an appeal relating to that charge or for the purpose of an appeal against that direction or against a decision made in pursuance of that direction, as the case may be.”
It is apparent from the above provisions that a detailed scheme has been adopted by the parliament for the regulation of termination of employment in the Australian Public Service. That scheme operates in respect of the period prior to the effective date of implementation of a direction to dismiss an employee from his or her employment. It is the direction to dismiss which is reviewed under the scheme set out in the Public Service Act 1922, rather than any dismissal which has been put into effect. This raises the question of when the actual termination occurred in this case, although no issue was raised in this motion on notice, nor was any argument put, as to the jurisdiction of the court arising out of the actual date of or effective date of the termination of employment. The question also arises as to whether there is actually any mechanism which operates after the termination to provide for any remedy consistent with the requirements of the Act.
I have considered the decision of Wilcox C.J. in Siagian v Sanel Pty. Ltd. (1994)122 ALR 333, and the decision of Gray J. in Association of Professional Engineers, Scientists and Managers Australia and Stephenson v Skilled Engineering Pty. Ltd. (1994) 122 ALR 471, and in my view it is consistent with those decisions, and a reading of the Termination of Employment Convention, to take the approach in this case that the act which is contemplated by the phrase “termination of employment” in S170EA of the Act is the act of the employer which brings about the termination of the employment. In this case, the act of the employer is the direction to dismiss, which direction becomes effective at the time specified in S63(5) of the Public Service Act. This approach is also consistent with the approach of Moore J. in Australian Liquor, Hospitality and Miscellaneous Workers Union v Commonwealth of Australia (unreported, 16 August 1994) where, in considering the operation of the compulsory retirement provisions in the Public Service Act, his Honour said (at pages 3-4):
“ Having regard to the provisions of s170CB of the Act, it is clear that the provisions concerning unfair or unlawful termination are directed to termination by the employer: see Siagian v Sanel Pty Ltd, 27 May 1994, unreported decision of Wilcox CJ and Association of Professional Engineers, Scientists and Managers Australia and Stephenson v Skilled Engineering Pty Ltd, 10 June 1994, unreported decision of Gray J.
In my view, the termination of the employment of Mr Simmons was not termination at the initiative of the employer but rather, as is submitted by the respondent, termination resulting from the operation of an Act of parliament. Accordingly, the application to the Court is one that does not concern termination of the type to which the relevant legislative provisions are directed.”
It is consistent with this approach to view the direction of the relevant Secretary or his or her delegate as being, for the purposes of a consideration of the operation of S170CB, the act of termination of employment at the initiative of the employer, that directive being effective to terminate the employment at a time specified in the relevant statute.
This approach has regard to the mechanism established by S63(5) of the Public Service Act to effect the direction made under S63(1)(d) of that Act. In circumstances where the right of appeal is not exercised by the employee, S63(5)(c) provides that the direction that the officer be dismissed is effected automatically upon the expiration of the appeal period. In circumstances where the employee exercises the right of appeal, S63(5)(b) provides that the direction that the officer be dismissed takes effect on the lapsing or withdrawal of the appeal or on a Disciplinary Appeal Committee confirming the direction, whichever happens first. No further step is taken by the employer to effect the dismissal. The direction to dismiss is, however, put into effect by operation of the statute at the expiration of the periods referred to above.
Were the above construction not correct, it would be sufficient to determine that at the time of the point of implementation of the decision to terminate, there was not available to the applicant any remedy which would fall within the provisions of S170EB of the Act because the appeal process provided for in the Public Service Act would no longer be available. I do not adopt this approach in the construction of S170EB of the Act.
Adequate Alternative Remedy:
It is appropriate, therefore, to first determine whether or not there is provided in the legislation referred to above an adequate alternative remedy of the type contemplated by S170EB of the Act. There are two factors relevant to this consideration in the present case. The first is the mechanism adopted to provide for the exercise of appeal rights against the termination, and the second is whether the remedies provided for are adequate having regard to those which the parliament has legislated for in the Act.
I will therefore consider each of those matters in turn.
The appeal mechanism available to the applicant.
The appeal body is established by the Merit Protection (Australian Government Employees) Act . The appeal body established under that Act for disciplinary appeals is the Disciplinary Appeals Committee (“the DAC”). The DAC is governed by regulations made under the Merit Protection (AGE) Act and the Public Service Act as to the procedure to be adopted, including matters of the receipt of evidence under oath or affirmation, and submissions on behalf of the parties to the appeals (see: sections 58 and 60 of the Merit Protection (AGE) Act and regs. 17 and 20 made thereunder. See also: regs. 149 and 152 of the Public Service Regulations).
The DAC is empowered to issue subpoenas for the attendance of witnesses and provision of documents and, whilst not bound by the rules of evidence, is bound by natural justice considerations. The DAC is constituted by representatives of the employer and employee and is chaired by an independent legally qualified convenor. There is no question that the DAC is an impartial body, having regard to its composition.
I have had regard to the extensive submissions made by counsel for the respondent as to the issue of procedural adequacy of the appeal process available under existing machinery by way of the disciplinary appeals process established pursuant to the Merit Protection (AGE) Act. I am satisfied, having regard to those submissions and in particular the matters as to procedure referred to herein, that the procedural aspects of the disciplinary appeal process meet the requirements of S170EB of the Act, in that they are consistent with the requirements of paragraph 2 (b) of Article 9 of the Termination of Employment Convention . In so far as the aspect of the mechanism established, I am satisfied that the Public Service Act and the Merit Protection (AGE) Act provide the applicant in these proceedings with an adequate mechanism. It is, however, necessary to consider the nature of the remedies available to an appellant in the circumstances of an appeal.
Remedies available pursuant to the DAC.
The function of the Disciplinary Appeal Committee to which the applicant had a right of appeal consequent upon the direction that her employment be terminated, was to confirm or quash or vary a decision to dismiss. The appeal process is by way of review on a hearing de novo. However, in exercising its functions, I am of the view that it is bound by the considerations set out in S63(1)(b) and the matters set out in S63(1)(c) and (d). It is not at large in terms of remedy it may accord. It has no power, in circumstances where it determines not to quash the direction to dismiss, to order the payment of compensation.
It was submitted by the respondent’s counsel that the issue of compensation is of little consequence in this case because the termination is never actually effected until confirmed by the DAC. Having regard to the criteria to which the delegate and the DAC is directed in S63(1)(b) of the Public Service Act, I am not satisfied that the lack of the remedy of compensation is so easily disposed of. In determining the question of whether any action ought be taken against an officer who had been convicted of a criminal offence, the Secretary or his delegate, and ultimately the DAC, is required to determine whether the direction is justified in the “interests of the service” (S63(1)(b)). There is no reference in S63(1) of the Public Service Act to criteria which might be said to be consistent with the criteria in S170DE of the Act that a dismissal not be harsh, unjust or unreasonable. The combination of the existence of that principal criteria of the “interests of the service” in S63 of the Public Service Act, and the fact that there is no power in the DAC to order compensation for what might be a very harsh effect upon an applicant, albeit in the interests of the service, tends to suggest that the remedies available to the DAC are not in the nature of an adequate alternative remedy.
In this regard I have considered the decision of Keely J. in Wylie & Anor v Carbide International Pty. Ltd. (unreported, 13 July, 1994) wherein his Honour, in determining that the Western Australian Industrial Relations Commission did not provide for an adequate alternative remedy, said (at page 7):
“ In my opinion there is not ‘available to the employee...an adequate alternative remedy, in respect of the termination...’ The absence of any power in the W.A. Commission to order, at the conclusion of the hearing of a claim by an employee, the payment of compensation by the employer to the employee is sufficient in
itself to show that the alternative remedy under the W.A. Act is not
an adequate remedy.”
It was submitted that the provisions of S170EB of the Act were intended to operate in respect of the various statutory regimes of the States. In this regard, reliance was placed upon the decision of Spender J. in Australian Municipal Clerical and Services Union & Anor v Gold Coast Community Options Association Incorporated (unreported, 26 August, 1994), in particular the following paragraph in his Honour’s judgment (at page 6):
“ In the view I take of S170EB, the Commonwealth Parliament has expressed an intention that if under the statutory regime of the various states dealing with questions of termination and reinstatement, an adequate alternative remedy in respect of the termination under existing machinery that satisfies the requirements of the Termination of Employment Convention exists, then an applicant is to seek that remedy in preference to having the question be the subject of determination by the Industrial Relations Court. The intention of Parliament, in short, is that if there is an adequate alternative remedy under state legislation, then this Court should not deal with the matter.”
In that case, his Honour was concerned with the question of the operation of specific state legislation. I do not take the above paragraph as deciding that the provisions of S170EB of the Act operate only in respect of legislation of the various States. Such a limitation finds no expression in that section and I therefore find that S170EB manifests no intention to be so confined.
Having regard to the above matters, including the criteria by which the decision to confirm or quash a directive to dismiss is governed, and in particular the absence of any power in the Disciplinary Appeals Committee to order compensation, I find that the Disciplinary Appeals Committee established pursuant to S16 of the Merit Protection (Australian Government Employees) Act is not an adequate alternative remedy in the sense contemplated by S170EB of the Act.
I turn now to consider the alternative contention of the respondent that the general provisions in Division 3 Part VIA of the Industrial Relations Act ought not be read to operate in respect of the more specific provisions legislated to apply in respect of the termination of employment of Australian Public Servants. In the course of her submissions, counsel for the respondent drew my attention to various aspects of this principle as considered in Pearce and Geddes’ text Statutory Interpretation in Australia, (3rd edition, 1988). I found the consideration in that text of great assistance. I have also had regard to Dr Gifford’s text Statutory Interpretation, (1st edition, 1990).
In applying the principle of statutory interpretation contended for by the respondent, it is necessary to first determine whether there is in fact any inconsistency between the operation of the provisions under consideration.
That is, is there any way, when read together, that the specific legislation can operate unaffected by the other more general provisions of the Industrial Relations Act.
Both legislative provisions purport to govern the relationship of the employer and employee in respect of the termination of employment, and both provide for an appeal mechanism to an employee aggrieved by the termination of the employment. I am satisfied that both statutes constitute a code for the provision of a review and remedy in respect of the termination of employment contemplated therein, subject in the case of the Public Service Act to the person being an officer of the Australian Public Service, and in the case of the Industrial Relations Act to there not being in existence an adequate alternative remedy available. In so far as there is an ability for both Acts to operate in respect of the same subject matter, even though it may be by reference to different criteria, in my view there is an irreconcilable conflict between them.
It is therefore necessary to determine whether there is in Division 3 Part VIA of the Industrial Relations Act, a manifest intention by the Commonwealth Parliament that the provisions of the Act should override the provisions of the Public Service Act and the Merit Protection (Australian Government Employees) Act.
This approach, which has been accepted by the High Court of Australia in Bank Officials’ Association (South Australian Branch) v Savings Bank of South Australia (1923) 32 CLR 276, is considered in Pearce & Geddes at page 149, and is usefully set out in the following extract from the decision of Lord Hobhouse (PC) in Barker v Edger [1898] AC 748 at 754 :
“ When the legislature has given its attention to a separate
subject and made provision for it, the presumption is that
a subsequent general enactment is not intended to interfere
with the special provision unless it manifests that intention
very clearly. Each enactment must be construed in that
respect according to its own subject matter and its own
terms”.
Barton ACJ considered the application in Maybury v Plowman (1913) 16 CLR 468. At pages 473-4 his Honour said:
“The judgment under appeal turns upon the application of the
principle involved in the maxim generalia specialibus non
derogant to cases in which the legislature, after having dealt
specially with a particular matter, has afterwards passed an
enactment in general terms wide enough to repeal or
supersede, or qualify the original provision...I wish to
quote a passage from the judgment of Wood V C in
Fitzgerald v Champneys 2 J&H 31 at 54 quoted by Stirling J
in Re Smith’s Estate; Clements v Ward (1887) 35 Ch D 589
at 595. ‘The reason in all these cases is clear. In passing the
special Act, the legislature had their attention directed to the
special case which the Act was meant to meet, and
considered and provided for the circumstances of that special
case; and, having so done, they are not to be considered by a
general enactment passed subsequently, and making no
mention of any such intention, to have intended to derogate
from that which, by their own special Act, they had thus
carefully supervised and regulated.’ ”
Having regard to the authorities in this area, I am satisfied that it is not necessary for there to be express reference to an intention to override, but rather that the intention must in some way be manifest. In considering this question of manifest intention, it is necessary to consider in detail the provisions of the Division 3 Part VIA of the Act.
It is clear that in respect of Division 3 Part VIA of the Act there is no specific reference to any of the legislation already governing the termination of employment of employees in the Australian Public Service. The Industrial Relations Act does, however, contain specific provisions in respect of the purpose for which it was adopted and the categories of persons to whom it is not to apply.
S170CA of the Act provides:
“170CA(1) The object of this Division is to give effect, to or give further
effect, to:
(a) the Termination of Employment Convention; and
(b) the Termination of Employment Recommendation, 1982,
which the General Conference of the International Labour
Organisation adopted on 22 June 1982 and is also known as
Recommendation No. 166, and a copy of the English text of
which is set out in Schedule 11.”
S170CB provides:
“S170CB An expression has the same meaning in this Division as in the Termination of Employment Convention.”
S170CC provides:
“S170CC The regulations may exclude specified employees from the
operation of specified provisions of this Division. An exclusion
only has effect if:
(a) it is permitted by paragraph 2, 4 or 5 of Article 2 of the
Termination of Employment Convention; and
(b) in respect of an exclusion permitted by paragraph 2 of
that Article - it is limited in such a way as to provide
adequate safeguards as mentioned in paragraph 3 of
that Article.”
S170EB provides:
“S170EBThe Court must decline to consider or determine an
application under section 170EA if satisfied that there is available to the
employee by or on whose behalf the application was made an adequate
alternative remedy, in respect of the termination, under existing
machinery which satisfies the requirements of the Termination of
Employment Convention.”
Article 2 of the Convention Concerning Termination of Employment at the Initiative of the Employer (set out at Schedule 10 to the Act) provides:
“Article 2
This convention applies to all branches of economic activity and to all employed persons.
A Member may exclude the following categories of employed persons from all or some of the provisions of this Convention:
(a) workers engaged under a contract of employment for a
specified period of time or a specified task;
(b) workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration;
(c) workers engaged on a casual basis for a short period.”
The express purpose of the legislation as set out in S170CA was to give
effect to the provisions of the Termination of Employment Convention.
Notwithstanding this provision, it is submitted by the respondent that the
parliament intended to preserve exclusively to the operation of the appeal
process in the DAC, the question of any remedy available to an Officer of
the Australian Public Service irrespective of whether that process fell
within the category of an adequate alternative remedy as provided for by
S170EB of the Act. I do not agree that this is so. The inclusion of S170EB
of the Act is the expression of the intention of the parliament as to the
extent to which a person is precluded from seeking a remedy in this court.
The Act contains numerous examples of the provision of exclusions in
respect of specific employees or classes of employees. Some of those are
set out above. Others are contained in S170DF and Regulation 30B of the
Act.
Having regard to the exclusions adopted by the parliament, in my opinion
the statutory scheme of the Act manifests an intention to operate in respect
of employees of the Australian Public Service in so far as the Public
Service Act does not provide to an employee a remedy in respect of the
termination of his or her employment, which remedy is an adequate
alternative to that contained in Division 3 Part VIA of the Industrial
Relations Act.
In my view, for the reasons set out above, the respondent’s motion must
be dismissed.
The order of the Court will be that:
The application the subject of the notice of motion filed on 30th August, 1994 will be dismissed.
The applicant, upon this matter having been dealt with at conciliation by the Australian Industrial Relations Commission, shall if necessary, make application to the Registrar that the matter be set down for further directions.
I certify that this and the preceding eighteen (18) pages
are a true copy of the Reasons for Judgment of
Judicial Registrar Parkinson.
Associate:
Dated: 2 November 1994
Representative of the applicant: Australian Services Union
Counsel appearing for the applicant: Mr. C. O’Grady
Solicitors for the respondent: Australian Government Solicitor
Counsel for the respondent: Ms. H. Symon
Date of hearing: 24 October 1994
Date of judgment: 2 November 1994
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