Bell v Commonwealth of Australia

[1996] IRCA 213

DECISION NO:  213/96

CATCHWORDS

INDUSTRIAL LAW - claim of UNLAWFUL TERMINATION OF EMPLOYMENT - review of Judicial Registrar’s decision - applicant employed as an Administrative Service Officer Class 1 - notice provisions relating to an “efficiency proceeding” pursuant to Public Service Act 1922 - whether termination was for a VALID REASON - whether termination was HARSH, UNJUST OR UNREASONABLE

Industrial Relations Act 1988 s 170EA
Public Service Act 1922 ss 76W(1), (6)(b), 76S(2), (3)
Merit Protection Act 1984

Improving Productivity, Jobs and Pay in the Australian Public Service 1992-1994

Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 131 ALR 422
Thomas Fischer v Commonwealth of Australia and Department of Social Security, Industrial Relations Court of Australia, NI 367 of 1994, Wilcox CJ, 1 September 1995, as yet unreported
Thomas Fischer v Commonwealth of Australia & Anor, Industrial Relations Court of Australia, NI 3630 of 1995, Moore, Beazley and Marshall JJ, 16 April 1996, as yet unreported

No. SI 1129 of 1995

ALAN DOUGLAS BELL v COMMONWEALTH OF AUSTRALIA

Judge:            Marshall J
Place:            Hobart (heard in Adelaide)
Date:              23 May 1996

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )

SOUTH AUSTRALIA DISTRICT REGISTRY       )           No. SI 1129 of 1995

BETWEEN:   ALAN DOUGLAS BELL

Applicant

AND:       COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE:         Marshall J
PLACE:         Hobart (heard in Adelaide)
DATE:           23 May 1996

ORDER

The Court orders that:

1.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court of Australia Rules.

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )

SOUTH AUSTRALIA DISTRICT REGISTRY       )           No. SI 1129 of 1995

BETWEEN:   ALAN DOUGLAS BELL

Applicant

AND:       COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE:         Marshall J
PLACE:         Hobart (heard in Adelaide)
DATE:           23 May 1996

REASONS FOR JUDGMENT

BACKGROUND - THE PROCEEDING

On 10 May 1995, the applicant, Mr Bell, filed in the South Australia District Registry of the Court an application pursuant to s170EA Industrial Relations Act 1988 (“the Act”).  Mr Bell sought the remedy of compensation in respect of what he alleged was the unlawful termination of his employment by the respondent.  On 25 June 1995, a mediation conference was held before District Registrar Carey in an attempt to resolve the matter.  It was not successful.  Following a directions hearing held on 27 July 1995, the matter was heard by Judicial Registrar L. Farrell on 4 and 5 September 1995.  On 14 September 1995, the Judicial Registrar delivered her reasons for judgment in which she dismissed the application.

The review of the order of the Judicial Registrar was heard on 22 and 23 April 1996 in Adelaide.  Mr Bell represented himself.  The respondent was represented by Ms J Bonsey, of counsel. The review was conducted as a complete re-hearing of the application.

BACKGROUND - THE FACTS

On 16 May 1990, Mr Bell was appointed to the Australian Public Service.  He commenced work as an Administrative Service Officer Class 1 (“ASO 1”), in the Control, Review and Recovery Section, Area North Office of the Department of Social Security (“DSS”) in Adelaide.

On 23 August 1990, Mr Bell’s then supervisor prepared a probationer report in respect of Mr Bell’s work performance.  The report referred to Mr Bell’s “very satisfactory progress” and other positive matters, but also mentioned that Mr Bell had “an attitude problem”.  Reference was additionally made to his “aggressive remarks” and to the fact that “certain tasks get a little bit behind at times”.

In April 1991, the Manager of the Section in DSS where Mr Bell then worked, provided a very favourable assessment of Mr Bell’s work performance in an annual assessment report.  However, on 7 February 1992, (after Mr Bell’s appointment had been made permanent) Mr Bell was required to attend a counselling interview at which the concerns of his then supervisor, Ms Venning, were discussed.  A major issue in the discussions concerned Mr Bell’s “timeliness to complete tasks”.  As a result of that counselling session, Ms Venning decided that Mr Bell’s performance would be monitored for a two month period, commencing on 12 February 1992.

On 10 March 1992, Ms Venning prepared a progress report on Mr Bell’s work performance after a meeting with him on that day.  The report expressed general satisfaction with his work performance but suggested some improvement in the “timely” completion of work.

At the end of the monitoring period, an “assessment report” was prepared by Ms Venning.  The report (dated 13 April 1992) stated that Mr Bell’s “time management skills” required improvement, but also stated that his approach to his work “is often very meticulous and thorough”.  Ms Venning’s conclusion was that Mr Bell’s work performance did not match the standards she set for him prior to the commencement of the monitoring period, in particular she stated that, “tasks were not completed in the time set down in the standards”.  The report also referred to Mr Bell’s failure to listen to criticism and his hostility to criticism which hampered effective supervision of him.  Ms Venning prepared a further assessment report on Mr Bell’s work performance.  The report stated that most of his work was within standard but some lingering concerns were expressed.

In October 1993, Mr Bell sought a meeting with the manager of the part of DSS where he was then working, Ms Twigg.  Mr Bell complained to Ms Twigg about “the treatment” he had allegedly received from his then supervisor, Mr Heeson.  An issue had arisen between Mr Bell and Mr Heeson as to whether Mr Bell had been “wasting time talking to other staff”.  Mr Heeson testified before me that he had difficulties in effective supervision of Mr Bell and that he had concerns about Mr Bell’s absences from his work station.

In a supervisor’s report prepared on 2 November 1993 by a panel including Ms Venning and Mr Heeson attention was drawn to the difficulties experienced by Mr Bell in organising his workload in order to meet deadlines.  Concern was expressed at Mr Bell’s inability “to adequately complete the duties of (his) position”.  Further concern was raised “regarding the time he spends talking to staff around the office as this affects his output for the day”.  The report went on to refer to Mr Bell’s unwillingness to accept criticism and refusal to accept that his performance required improvement.

Despite concerns being expressed about Mr Bell’s work performance by supervisors, Mr Bell had short periods of work as an acting ASO 2 and ASO 3.  A “supervisor report - order of merit” dated 10 November 1993 effectively recommended against such further “acting-up” assignments.

A further report dated 17 December 1993, referred again to problems with Mr Bell’s “absence from his work area” and failure to “meet stipulated deadlines in the processing of his work”.  It concluded by saying that:-

“Communicating with Alan with regard to the abovementioned issues has become extremely difficult due to Alan’s uncooperativeness.”

On 13 January 1994, Ms Twigg issued a warning to Mr Bell and informed him of the existence of a formal process of “inefficiency proceedings” which DSS was empowered to invoke.  Two aspects of Mr Bell’s work were identified in the written warning of 13 January 1994, they were:-

“.The continuing and lengthy absences from your work area.  The continuous and prolonged occurrences of talking to staff on the floor in other areas.

.The continuing failure to notify this office of your leave absences.”

A counselling session occurred on 14 January 1994.  Mr Bell was informed at that session by Ms Twigg and another manager, Mr Neylon, that he was to be transferred to the Modbury Regional Office of DSS, from 24 January 1994.  He was told that he would receive training at Modbury and would be further assessed there in relation to the ASO 1 duties he was to perform.

At Modbury, Mr Bell worked in the Prosecutions Section of DSS.  On 26 April 1994, he was the subject of a “discipline counselling interview” and was advised that his performance at the office was under continuing assessment.  Also, on 26 April 1994, Ms Sando, (Mr Bell’s then supervisor) reported that Mr Bell “has a very arrogant attitude and had problems with supervision”.

The Section Manager at Modbury, Mr Watson, reported adversely on Mr Bell’s attitude and work performance on 26 April and 10 May 1994.  On 26 May 1994, the Personnel Manager, Mr Trenorden, reported adversely upon Mr Bell’s absences without approval from his work location.

On 5 July 1994, Mr Bell was transferred to the Elizabeth Regional Office of DSS.  Problems regarding Mr Bell’s unauthorised absences from his work location continued at Elizabeth.  They were the subject of an adverse report by Mr Cameron, Section Manager Pensions, on 12 September 1994.  This report followed a counselling session on 31 August 1994 between Mr Bell and Mr Cameron and Mr Reyes-Smith, who was Mr Bell’s then “team-leader”.  The day before (30 August 1994), Mr Bell complained to the Area Deputy Manager (North) of DSS concerning his treatment at the Elizabeth office by supervisors and managers.  He travelled to the City office of that officer on an unauthorised absence to make the complaint in person.

On 21 September 1994, Mr Davoli, the Manager of the Elizabeth office, issued a formal warning to Mr Bell which constituted the commencement of what is known in the Commonwealth Public Service as an “efficiency proceeding”. See ss 76W(1), (6)(b) and 76S(2), (3) Public Service Act 1922 (“PS Act”). Those provisions are as follows:-

“76W   (1)      Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the relevant Secretary may, having considered whether it would be in the interests of the efficient administration of the Secretary’s Department to transfer the officer under section 50, subject to subsection (2), by notice in writing given to the officer, reduce the officer’s classification or retire the officer from the Service.

....

(6)In this section, ‘relevant matter’, in relation to an officer, means any of the following matters:

(a)...

(b)that an officer is inefficient”

“76S    (1)      ....

(2)      For the purposes of this Division, an officer is inefficient if and only if the officer fails, in the performance of the duties that he or she is required to perform, to attain or sustain a standard of efficiency that a person may reasonably be expected to attain or sustain in the performance of those duties.

(3)      Without limiting the generality of the matters to which regard may be had for the purpose of determining whether an officer has failed, in the performance of the duties that he or she is required to perform, to attain or sustain the standard of efficiency referred to in subsection (2):

(a)regard shall be had to:

(i)any written selection criteria or job specifications applicable to those duties;

(ii)any duty statement describing those duties; and

(iii)any written work standards or instructions relating to the manner of performance of those duties; and

(b)regard may be had to:

(i)any written selection criteria or job specifications applicable to similar duties;

(ii)any duty statements describing similar duties; and

(iii)any written work standards or instructions relating to the manner of performance of similar duties.”

The test for “inefficiency” referred to in the PS Act requires an identification of the standards that the individual is required to meet in her or his job and an assessment as to whether those standards have been met over a trial period. The actual procedures for the inefficiency proceeding are set out in a registered industrial agreement between the relevant industrial organisations and the Commonwealth. See Improving Productivity, Jobs and Pay in the Australian Public Service 1992-1994 (“the agreement”).  Attachment B to the agreement provides, at pp 15-16.

“Improved Handling of Inefficiency in the APS

The parties agree to streamline the inefficiency process.  After normal counselling, the following procedures apply.  The procedures are not to be used for disciplinary or invalidity reasons.

Step 1

.Where an officer has not achieved an acceptable standard of work performance, the supervisor is to give a formal written warning to the officer.  The warning will detail the required standard and outline how the officer’s performance does not meet the standard.

Step 2

.The Secretary (or delegate) then appoints a person to formally assess the officer’s performance for a specified period of 3 months.  The person must be an officer from outside the immediate work area of the officer whose performance is to be assessed.

.At the completion of the assessment period, the assessing officer advises the Secretary (or delegate) on whether the officer sustained (or, where appropriate, attained and sustained) an acceptable standard of work performance during the assessment period.

(An officer may be retired with consent after a formal warning has been issued by the supervisor.)

Step 3

.If the officer’s work performance improves to the required standard, no further action is taken.

.If the officer did not achieve an acceptable standard of work performance the assessor informs the delegate who issues a notice of “Intention to Retire” to the officer unless the officer can show cause why the action should not proceed.

.The officer has 7 days in which to respond.

Step 4

.The delegate then decides whether to:

-issue a section 76W notice of retirement; or

-take some other action (including transfer).

.If an officer is, without consent, retired or reduced in classification, the officer may appeal to the MPRA within 14 days of the issue of the notice of retirement or reduction on the ground that the action was unreasonable in that he or she met the required standard or that there was a serious defect in the application of the formal procedures outlined above.

.A notice of retirement takes effect after 14 days unless the officer lodges an appeal.  In the event of an appeal the officer will remain attached to his/her position on full pay.

.It is the intention of the parties that appeals will be finalised within a period of four (4) weeks from the date of lodgement.

.An officer who appeals must submit any statement in support of the appeal to the MPRA within 21 days of the issue of the notice of retirement or reduction.  Where the officer, without due cause, fails to submit a statement within the time allowed or fails to appear at a scheduled hearing of the appeal, the MPRA may dismiss the appeal.

.The Appeal Committee will have the power to confirm or revoke the notice.

.If the Appeal is successful the notice of retirement is revoked without detriment to the officer.

.The above process will not be delayed by the lodgement of a grievance and any grievance of the officer in relation to the procedures adopted for the purpose of inefficiency action will be considered and determined by the Appeal Committee.”

Similar provision is made in administrative instructions (“the instructions”) made under the PS Act on 12 March 1993 by the Public Service Commissioner. The procedures referred to in the instructions are said to:-

“implement the arrangements for the Improved Handling of Efficiency in the APS contained in the Agreement ... and are based on the requirements of the Agreement, the Public Service Act 1922 ... and the Public Service Regulations.”.

There is a slight discrepancy between the agreement and the instructions.  The agreement provides for the appointment of a person to assess the officer concerned for a specified period of 3 months.  The instructions provide that:-

“The assessment period is 3 calender months from the date the Secretary advises the officer of the appointment of an assessing officer.”

The requirement in the instructions referred to above was complied with in this case.  The actual period of assessment was just short of 3 months and arguably not within the letter of the agreement.  However nothing material turns on this minor procedural discrepancy.  In reaching this conclusion I am guided by the comments of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 131 ALR 422, at 463 where their Honours state:-

“The propositions we have set out support the submission for the respondent that it was necessary for the Full Court to look at the whole of the relevant circumstances which were taken into account by the primary judge in determining that there had been no breach of the award; and, in particular, that it was an error to reverse that ultimate holding purely for reasons associated with what are identified as procedural defects in the steps taken by the respondent to dismiss the appellants.”  (emphasis added).

Moreover, no issue was taken on this point by Mr Bell.  The only issue conceded by Mr Bell to be before the Court was the question as to whether or not the respondent had a valid reason to terminate his employment. (see transcript p.15)

After the issuing of a formal notice to Mr Bell on 21 September 1994, Mr Bell wrote to the Area Manager North of DSS to inform him that he “will not tolerate the continuing victimisation to which I have been subjected by your department for far too long.”.  Mr Bell then set out a series of complaints, including a complaint about being subject to “inefficiency procedures”.  The letter concluded with the following request:-

“... I demand an immediate transfer to a position in another government department acceptable to myself and an independent inquiry into this disgraceful saga.”

On 28 September 1994, Mr Klaucke was appointed as the assessment officer to assess Mr Bell’s performance.  On 6 October 1994 Mr Klaucke met Mr Bell to discuss assessment procedures and performance standards.  On 10 October 1994, Mr Reyes-Smith commenced to keep daily statistics and other records of Mr Bell’s performance.  On 11 October 1994, two meetings occurred between Mr Bell and Mr Klaucke to discuss Mr Bell’s progress.  Mr Bell complained about harassment from Mr Reyes-Smith and said that he had been the subject of a false allegation about misfiling files.  Other meetings between Mr Klaucke and Mr Bell to discuss Mr Bell’s progress occurred on 24 October, 4, 18 and 29 November and 2, 16 and 21 December, 1994.  Mr Reyes-Smith provided reports to Mr Klaucke over this period of time.  His last report was given on 21 December 1994.  This report referred to the “excessive time” Mr Bell took to complete tasks.  The report concluded in the following way:-

“I do not have any further comments to make regarding Alan’s performance other than to say that Alan has shown no improvement in his performance or behaviour over the total assessment period of the ‘Inefficiency Proceedings’.  In my opinion there has been a gradual deterioration of his performance.  He continues to take far longer than is necessary to perform the duties required of his position.  He has been provided with relevant feedback from several different supervisors throughout this time.  Training has been provided to him to deal with change and any issues that have been detected requiring such assistance.”

On 3 January 1995, Mr Klaucke provided his assessment report to Mr Farnham, the delegate of the Secretary of DSS.

Mr Klaucke provided the following useful summary of his assessment:-

“It will be apparent from the above that the main area in which Mr Bell has failed to meet the minimum standard is in the timeliness of certain tasks.  The only rebuttal he has offered to this is that he is doing a fair days work and that there are things that I am not taking into account.  When pressed (see Attachment D6) to identify these things he produced a list of familiar time wasters such as taking phone messages, retrieving stationery, toilet breaks, and photocopying.  My suggestions for minimising these time wasters were rejected by him.  Another issue of repairs to files was raised.  Having observed him doing this I am unable to accept that the standards should be stretched because of it since the time occupied by this activity is no more than a few seconds.  He pointed out that raising queries with his supervisor also took time but I find that allowance for this has been made in the records kept.

Mr Bell’s comments to me during our meetings suggest two things.  One is an over-emphasis on trivia which suggests an inability to determine priorities or to consider situations in an objective manner.  Another was his belief that he is being persecuted on orders ‘from above’.  I could find no evidence of a desire to persecute Alan in any supervisor to whom I spoke at Elizabeth - on the contrary the desire was that he should be treated fairly and given as much chance as possible to get through this process.  Even where a change of supervisor did occur, the findings were much the same - that he has been unable to meet timeliness standards that are quite reasonable due to his inefficient manner of working.

I made several attempts to persuade Mr Bell to address the issues involved in the gap between his perceptions and his supervisors’ but he was totally resistant to this.  He displayed a highly inflexible approach, wishing to pursue the agenda noted above rather than address the substantive issues of work performance.  He flatly rejected the suggestion that he deliberately estimated the time a task should take and work in such a manner as to meet that standard.

He has been unable to attain the required degree of efficiency in any task save the mail duties.  Indeed, there has been little improvement in his work performance or conduct since the commencement of these proceedings.

I do not consider that there is any factor unique to Elizabeth office in causing him to fail to meet these standards as the work practices and expectations all appear quite standard.  The central problem appears to be Mr Bell’s refusal to accept that his supervisors have the right to set standards for him or ask that he be accountable to any authority outside himself.  This approach would obviously create difficulties in any workplace in which he was located at the ASO 1 level, where officers are expected to work under close supervision and direction.”

On 4 January 1995, Mr Farnham issued a notice of intention to retire Mr Bell from the public service on the ground of inefficiency.  Mr Bell was asked for a response within 7 days.  On 10 January 1995, Mr Bell responded to the notice.  He described the allegations that his work performance had been unacceptable as “totally false and without foundation”.  He alleged that he had been victimised by DSS, had been subject to “harassment by more than two dozen officers” and “character assassination”.  He claimed that the report of Mr Klaucke of 3 January 1995 was based on “inaccurate statistics”, contained “many false allegations”, denigration of him “for no reason whatsoever” and was “based largely on false adverse reports”.

On 18 January 1995, Mr Farnham issued a notice of retirement to Mr Bell under s76W of the PS Act. The notice concluded in the following way:-

“I am satisfied that you have not been victimised by officers of this Department, but have been given ample opportunity and assistance to meet the required standards.  You were given the opportunity to discuss these standards, the tasks performed, the contents of all reports and anything that may be affecting your performance.  Taking all evidence into account I have reached the conclusion that you are not efficient as an Administrative Service Officer Class 1 in the Elizabeth Regional Office.  Other positions at this level have similar requirements so I do not consider a transfer to another position to be appropriate.  I have therefore issued a notice of retirement.”

On 29 January 1995, Mr Bell appealed pursuant to s76Z of the PS Act to the Redeployment and Retirement Appeal Committee (“RRAC”) established under the Merit Protection Act 1984.  On 22 March 1995, the RRAC heard Mr Bell’s appeal.  It dismissed the appeal on that day.  Its reasons for so doing were provided on 10 April 1995.  The termination of Mr Bell’s employment became effective on 22 March 1995, the appeal to RRAC having operated to stay the notice of retirement issued on 18 January 1995.

VALID REASON

The respondent bears the onus of proof to establish that it terminated Mr Bell’s employment for a valid reason.  See Thomas Fischer v Commonwealth of Australia & Anor, Industrial Relations Court of Australia, Moore, Beazley and Marshall JJ, 16 April 1996, as yet unreported, at 19.

The evidence demonstrates that Mr Bell was unacceptably slow in performing his work.  He asserted that this evidence was based on false statistics kept by Mr Reyes-Smith.  Mr Reyes-Smith gave evidence before me and impressed me as a truthful witness and a dedicated public servant.  I accept as accurate Mr Reyes-Smith’s following account of Mr Bell’s behaviour during the inefficiency proceedings:-

“Mr Bell did not respond well to directions that I made.  At times he became aggressive and rude.  He got up and walked out of counselling sessions on various occasions, and reporting sessions.  There were times where he destroyed some of the statistics that I’d kept and passed on to him as a result of the daily records keeping.  I was using those as feedback on a daily basis.  I recall at least two occasions on which I passed those to Mr Bell at the end of the day and he actually destroyed them.” (transcript pp 50-51)

Mr Bell’s “timeliness” problems extend back to his probation period.  His “attitude” problem also extend back to his early days in the public service.  “Attitude” difficulties included his failure to accept that supervisors should direct him in the performance of his work and his arrogant and rude manner to anyone who dared to challenge or direct him.  This attitude was not only apparent in the evidence he gave but manifested itself in the way Mr Bell conducted his case in the Court.

I agree, with respect, with the observations of the Chief Justice in Thomas Fischer v Commonwealth of Australia and Department of Social Security (at first instance), Industrial Relations Court of Australia, NI 367 of 1994, Wilcox CJ, 1 September 1995, as yet unreported, at 28, where his Honour said:-

“Managers in the public sector act on behalf of the whole community.  They must be fair, and take care to ascertain the true facts.  But once it is clear that a public sector employee is unwilling to do the job to which he or she was appointed, their duty is clear.  The community needs - and, I think, expects - a high quality Public Service composed of people who are competent, efficient and diligent.  There is no room for drones; particularly drones who create difficulties for their workmates and superiors.”

Apart from the evidence of Mr Reyes-Smith and Mr Heeson referred to above, the Court also had the benefit of the evidence of Mr Farnham, Mr Klaucke, Mr Davoli and Ms R.J. Brooke (a former supervisor of Mr Bell).  Their evidence supported the submission of Ms Bonsey that Mr Bell was inefficient to the extent that the respondent was justified in terminating his employment.  The evidence of Ms Brooke confirmed that Mr Bell was extremely difficult to supervise, very slow in the performance of his duties and frequently went around the office wasting time talking to other officers.  I also accept the evidence that she found Mr Bell “very intimidating”.  Mr Davoli also gave evidence of Mr Bell at times being intimidating and aggressive towards him as the Manager of the office at Elizabeth.

The evidence in this case demonstrates that Mr Bell was effectively unwilling to perform the job he was employed to do.  He was reluctant to accept direction in his work and perform his duties in a timely fashion.  Whilst occasionally competent, he was extremely inefficient and rarely diligent.  He was excessively rude, aggressive and arrogant to fellow workers, especially supervisors and occasionally those at managerial level.

Mr Bell’s duties at ASO 1 level were simple, very routine and basic, such as putting away files, attaching correspondence to files, processing very simple transactions, recording returns of form to DSS and doing mail duties.

That he was unable to perform those duties in a timely manner whilst extending due courtesy to superiors, demonstrates clearly to me that the respondent had a valid reason to terminate his employment.  This is especially so when one considers the great lengths his superiors went to in order to help him achieve an appropriate standard of work output.

I reject Mr Bell’s submission that the public service “waged against” him a “most vicious victimisation campaign”.  I also reject his evidence that 24 officers conspired to victimise him.  That evidence is consistent with Mr Bell’s inability to tolerate any criticism of his shortcomings.

HARSH, UNJUST, UNREASONABLE

Despite his earlier concession that the only issue before the Court was the question of whether or not the respondent had a valid reason to terminate his employment, Mr Bell submitted in his final address that the termination of his employment was harsh, unjust and unreasonable.  He bears the onus of proof on this issue.  He has failed to discharge that onus.  DSS went to great pains in its attempts to assist Mr Bell to overcome the issues which were putting his continued employment at risk throughout his period of employment with DSS.

All matters raised against Mr Bell concerning shortcomings in his work performance were clearly put to him and he had a real opportunity to respond to such matters. DSS was extremely patient with Mr Bell. Mr Bell put no submissions to support his contention that s170DE(2) of the Act had been breached in respect of him other than that he had been the victim of a massive conspiracy and that Mr Reyes-Smith had falsified statistics during the inefficiency proceedings. I have already rejected these contentions in dealing with the issue as to whether or not the respondent had a valid reason to dismiss him. There is no basis whatsoever for Mr Bell’s contention that he was harshly, unjustly or unfairly dismissed. On the contrary, the termination of his employment was appropriate, just and fair in the circumstances.

ORDER

The order of the Court is that the application be dismissed.

I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment of his Honour Justice Marshall

Associate:  

Date:  23 May 1996

The applicant appeared in person                

Counsel for the respondent:  Ms J Bonsey
Solicitor for the respondent  Australian Government Solicitor

Date of hearing:  22, 23 April 1996
Date of judgment  23 May 1996