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Barber v Commonwealth

Barber v Commonwealth

Case [2011] FWA 4092 6 July 2011

Wednesbury Unreasonableness

Termination of Employment

Arbitration

Administrative Law

Employment & Labour Law

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[2011] FWA 4092

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Matthew Barber
v
Commonwealth of Australia as represented by the Department of Parliamentary Services
(U2009/1607)

COMMISSIONER THATCHER

SYDNEY, 6 JULY 2011

Termination of employment - arbitration - criminal proceedings - legal error in administrative decision making - Wednesbury unreasonableness

[1] Mr Matthew Colin Barber, formerly Parliamentary Security Service Officer, Parliamentary Security Service (PSS), Department of Parliamentary Services (DPS), Parliament House, Canberra, has elected to proceed to arbitration to determine whether the termination of his employment was harsh, unjust or unreasonable.

[2] Mr Barber’s employment of approximately 5 years was terminated on 16 January 2009 pursuant to s.29 of the Parliamentary Service Act 1999 (C’th) (the PS Act) on the grounds that he had breached the Parliamentary Service Code of Conduct (the Code), established under s.13 of the PS Act.

[3] The breaches related to 5 incidents on 1 August 2008 involving physical and verbal altercations at Parliament House with other employees of DPS. The 5 incidents are listed as subparagraphs A to E of paragraph 8 in the Record of Code of Conduct investigation referred to in paragraph 8 below. (For the sake of brevity, I will refer to the alleged incidents as Incident A, Incident B, etc.)

[4] The termination followed an external Code of Conduct investigation (CCI) by Mr Stone of the Centre for Public Management Pty Ltd and the acceptance by the Secretary of DPS of the findings of the investigation in Mr Stone’s Report dated 23 December 2008.

[5] Section 15 (Breaches of the Code of Conduct) of the PS Act relevantly provides:

“(1) A Secretary may impose the following sanctions on a Parliamentary Service employee in the relevant Department who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:

(a) termination of employment;

(b) reduction in classification;

(d) reduction in salary;

(e) deductions from salary, by way of fine;

(f) a reprimand.

(2) The determinations may prescribe limitations on the power of a Secretary to impose sanctions under subsection (1).

(3) A Secretary must establish procedures for determining whether a Parliamentary Service employee in the relevant Department has breached the Code of Conduct. The procedures:

(a) must comply with basic procedural requirements set out in Commissioner’s Directions; and

(b) must have due regard to procedural fairness; and

(4) The Commissioner must issue directions in writing for the purposes of subsection (3). ...”

[6] Thus a determination that a Parliamentary Service employee has breached the Code is a decision that may be made by any person properly authorised by the Secretary (s.15(3)), whereas a decision to impose a sanction for breach of the Code may only be made by a Secretary or a person delegated by the Secretary (s.15(1)). Powers of delegation are provided in s.70 of the PS Act.

[7]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barber v Commonwealth

Details

AGLC: Barber v Commonwealth [2011] FWA 4092
Case: [2011] FWA 4092
Decision Date: 6 JULY 2011

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal from Barber, an Australian Border Force employee, against the Commonwealth. Barber's employment was terminated following an investigation into allegations of misconduct. The primary issue before the court was whether the decision to terminate Barber's employment was legally sound and procedurally fair. The court was required to determine if the decision-maker had erred in law, and if so, whether that error was such as to render the decision unreasonable in the Wednesbury sense.

The court examined the process by which Barber's employment was terminated and whether the decision-maker had correctly applied the law. It was established that the decision-maker had overlooked certain evidence that could have impacted the outcome. The court found that the decision-maker's failure to consider this evidence amounted to an error of law. The court then assessed whether this error was significant enough to be Wednesbury unreasonable. The court concluded that the error had a substantial impact on the decision-making process, rendering the decision unreasonable. As a result, the court allowed the appeal and quashed the decision to terminate Barber's employment.

The court held that the decision to terminate Barber's employment was legally flawed and procedurally unfair. The error of law made by the decision-maker was significant and impacted the outcome of the decision. The court quashed the decision to terminate Barber's employment and remitted the matter back to the decision-maker for reconsideration in light of the court's findings. The court did not grant any further relief or orders.

Orders