Bewly, Kevin Thomas v Cruikshanks, R. W. & Ors and in the matter of an application made pursuant to Section 5(1) of the Administrative Decisions (Judicial review) Act 1977
[1984] FCA 97
•18 APRIL 1984
Re: KEVIN THOMAS BEWLEY
And: R.W. CRUICKSHANKS; C.J. McAULIFFE and L.McINNIS as persons constituting
The Australian National Railways Commission's Promotions Appeal Board;
AUSTRALIAN NATIONAL RAILWAYS COMMISSION and in the matter of an Application
made pursuant to Section 5(1) of the Administrative Decisions (Judicial
Review) Act 1977
No. G28 of 1983
Administrative Law - Master and Servant
53 ALR 205 / 1 FCR 534
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)
CATCHWORDS
Administrative Law - Judicial Review - Review of decision of Promotions Appeal Board - Improper exercise of power - Grounds of Appeal under Regulations - Limitations on jurisdiction of Board - Efficiency and duties of subject position.
Administrative Decisions (Judicial Review) Act 1977 s.5
Australian National Railways Act 1977 s.53A
Australian National Railways Board of Appeal By-law - clauses 13 and 19.
Master and Servant - Australian Public Servant - Promotion by efficiency - Meaning - Australian National Railways Act 1977 (Cth). s. 53A.
HEADNOTE
The Promotions Appeal Board, in considering efficiency "in relation to the subject position" of an appellant against a provisional promition, is not entitled in the absence of express provisions, to have regard to qualifications and aptitudes for the performance of duties other than those of the subject position as determined by the duty statement.
HEARING
Adelaide ,1984, January 31; February 15; March 20; April 18. #DATE 18:4:1984
APPLICATION.
Application for orders of review of the decision of a Promotions Appeal Board.
A. C. Collett, for the applicant.
P. C. Walsh, for the respondent.
Cur. adv. vult.
Solicitors for the applicant: Johnston Withers McCusker & Co.
Solicitor for the respondent: T. A. Sherman, Acting Commonwealth Crown Solicitor.
G.F.V.
ORDER
The decision of the Australian National Railways Commission's Promotions Appeal Board be quashed.
The matter to which the decision relates be remitted for further consideration by a newly constituted Promotions Appeal Board.
The respondents pay the costs of the application.
Decisions of the Promotions Appeal Board quashed with costs.
JUDGE1
This is an application pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Review Act") for a review of the decision of the persons constituting an Australian National Railways Commission's Promotions Appeal Board ("the Board") allowing an appeal against the provisional promotion of the applicant. He had previously been appointed provisionally to the designation of Clerk Class 1 in the Transport Co-ordinator's Office of th Australian National Railways Commission ("the A.N.R.C.") in Adelaide. The consequence of the allowance of the appeal was that one A.D. O'Connell was granted that designation.
Many grounds for the review were set out in the application, but ultimately counsel for the applicant confined his case to two grounds, namely that the Board took into account irrelevant considerations and did not follow the procedures required of it by law. Reasons for the decision were supplied pursuant to the requirements of s.13 of the Review Act and the relevant portions will be subsequently set out.
The matter arises in the following circumstances. On l8 November 1982 applications were called for promotion to the position of Tonnage Clerk, Class l in the Transport Co-ordinator's office of the A.N.R.C. at Adelaide. Shortly after making an application, the applicant was interviewed by the Acting Head Rosterman and Assistant Transport Co-ordinator and was shown a statement of the duties of the position. The fact that these were the duties of the position is not in dispute and it is necessary to reproduce this statement in full. It is as follows:
"BRANCH : Operations (Transport Co-Ordinator Section)
DESIGNATION : Tonnage Clerk
LOCATION : Adelaide Roster Office
RESPONSIBILITIES
Timesheets: Correct checking of 250 Class Rail Car Drivers and Adelaide Yard Shunt Staff timesheets.
Rostering: Required to roster forty (40) staff at the Adelaide Car Sheds. Assist the Port Adelaide and Dry Creek Roster Clerk with the preparation of daily and fortnightly rosters.
Guard Journals: File in date order and liaise with Movements Officer as required.
Awards: A knowledge of awards appertaining to staff rostered by this section would be an advantage.
Relief: Will be required to relieve higher positions (rostering) within the Roster Office.
Diesel Electrical Locomotive Working Allowance:
To collect time sheets, check finer details of operations necessary to eliminate over payment of tonnage allowance. By checking time sheets against Train Control graphs. Thus reducing amount claimed and saving money.
Hours of Duty: 0845 hrs to l706 hours Monday to Friday. (Lunch l200 hours to 1300 hours). An early start is required on Monday and Tuesday of "A" week to have time sheets into Staff Records and Paysheets by early Tuesday morning.
Other Duties: Will be required to perform other duties as directed by the Rosterman."
On 10 March 1983 the applicant was notified that he was provisionally promoted to this position of Tonnage Clerk. However he was advised on 25 March 1983 that a Mr.A.D. O'Connell, who was Station Assistant Class 3 at Kalangadoo, South Australia, had appealed against his appointment on the ground of equal efficiency and seniority. This appeal was made pursuant to the provisions of s.53A of the Australian National Railways Act 1977 as amended ("the A.N.R. Act"). To the extent relevant this section is in the following terms:
"53A(1) An employee who considers that -
(a) he should have been promoted to a vacant position in the Railway Service in preference to an employee promoted to that position, or
(b) ...
may appeal against the promotion or direction, as the case may be.
(2)...
(3) Upon an appeal or appeals being made against a promotion to a vacant position..., a Promotions Appeal Board shall make a full enquiry into the claims of the appellant or appellants... and determine the appeal or appeals.
(4)The by-laws may make provision for and in relation to the grounds upon which, the manner in which, and the time within which, an appeal may be made under this section and for and in relation to the conduct of enquiries by Promotions Appeal Boards..."
The Australian National Railways Boards of Appeal By-Law deals with the matter of grounds of appeal in clause 13 as follows:
"13(1) For the purposes of section 53A of the Act the grounds of appeal against a provisional promotion to a position are -
(a) superior efficiency; or
(b) equal efficiency and seniority.
(2) For the purposes of sub-clause (1) -
(a) 'efficiency' means special qualifications and aptitude for the performance of the duties of the subject position, together with merit, diligence and good conduct; and
(b) an employee is senior to another employee if the first-mentioned employee occupies a position of higher qualification than the other employee, and, ..."
I have added emphasis to the words which are of particular importance in this application.
The By-law also makes provision in relation to the conduct of enquiries as follows:
"19. Except as otherwise provided by this By-law, a Promotions Appeal Board may regulate its own procedure and may by notice in writing require any employee to attend the hearing of an appeal and an employee so notified shall be granted such leave of absence on full pay as may be necessary to enable him to attend in pursuance of such notice."
Prior to the hearing of the appeal the Senior Personnel Superintendent supplied on 9 June 1983 to the Secretary of the Board a memorandum in the following terms:
"Secretary SAA 392 Promotions Appeal Board
Adelaide 9 June 1983 EI:IRM
Appeal lodged by Mr. A.D. O'Connell against the provisional promotion of Mr K.T. Bewley to the position of Clerk, Class 1, Transport Co-Ordinator's Section, Operations and Marketing Branch, Adelaide.
Duties of Position:
Copy of duty statement for the above position is enclosed.
Summary:
The appellant Mr A.D. O'Connell is senior to the provisional promotee Mr K.T. Bewley.
Enclosed for your information and necessary action is appeal submission prepared by the Transport Co-Ordinator.
It is recommended that the appeal be dismissed on the grounds of Mr Bewley's superior efficiency.
(Signed (signature illegible))
for Senior Personnel Superintendent Adelaide.
(Encl). "
Accompanying the memorandum was a copy of the duty statement set out earlier in these reasons and the following submission prepared by the Transport Co-ordinator at Adelaide and dated 19 April 1983.
" Internal Memo Date 19 April 1983 Reference SAA. 392
To Senior Personnel Superintendent, Adelaide From Transport Co-Ordinator
Subject Position of Clerk Class 1 Transport Co-Ordinator's Section Operations and Marketing Branch Adelaide - vide Staff Notice No. 44/82
The position of Clerk Class 1 in Transport Co-Ordinator's section requires that the appointee possess an understanding of the Transport Co-Ordinator's section which includes rostering, provision for wagons and the requirements for goods trains. Mr. A.D. O'Connell, Station Assistant Penola was contacted by telephone to assess his knowledge of the Transport Co-Ordinator's Office function and he displayed little knowledge.
Mr K.T. Bewley has been employed within the Transport Co-Ordinator's section for several months and has displayed a very excellent record within the Roster Office and was considered to have superior efficiency to Mr A.D. O'Connell.
(Signed M.H. Ind)
Transport Co-Ordinator
MHI:DF "
The discrepancy between, on the one hand the duties of the position of a tonnage clerk as set out in the duty statement and on the other, the matters which the Transport Co-ordinator considered the appointee should understand is readily apparent. There is no reference in the statement of duties to "provision for wagons and the requirements of goods trains".
During the hearing which was conducted on 14 June 1983 by telephone with a three way link-up the Chairman of the Board read out a statement of the duties of the position which included in addition to the duties in the duty statement the matters of provision for wagon and requirements for goods trains. When asked about his knowledge of these latter matters the applicant replied that he had been acting in the particular position for some 18 months prior to the hearing and that these duties were not involved in the discharge of the relevant functions.
On that day the applicant was advised that the appeal had been allowed. By letter dated 20 June 1983 the applicant requested reasons for the decision to allow the appeal, which reasons were supplied by letter dated 28 July 1983 as hereunder:
"Mr K.T. Bewley PP.83/53 28 July 1983 Transport Co-Ordinator's Office SDS/RWC Adelaide
Dear Mr Bewley,
I refer to your letter of 20 June 1983, seeking a statement of reasons for a determination made by a Promotions Appeal Board on 14 June 1983 to allow an appeal by Mr A.D. O'Connell against your provisionasl promotion to a position of Clerk, Class 1, in the Transport Co-Ordinator's Office, Adelaide.
Mr. O'Connell's appeal was lodged on the grounds of equal efficiency and seniority.
In making its enquiries into the claims of the parties to the appeal, the Board had access to the following sources of evidence:
A written statement of its reasons for your selection, provided by Australian National.
Written statements lodged by yourself and Mr. O'Connell at the invitation of the Board.
Information gathered when the Board interviewed yourself and Mr. O'Connell by telephone and discussed your respective claims for the subject position.
On the basis of this evidence the Board found that the ground of the appeal had been sustained. For that reason the Board allowed the appeal. With respect to the reasons for this determination the Board adopted broad criteria relating to the duties of the position, against which parties to the appeal were assessed. These criteria and the Board's assessment of your relative efficiency compared with the appellant are set out hereunder:
Criteria Officer assessed Reasons as superior
1. Knowledge and Mr.O'Connell Experience as experience in Station Assistant, rostering, time- Class 2 and Class sheets, provision 3 from 1974 to for wagons, 1983 at 8 metro- requirements for politan and country goods trains. stations. Qualified in Central Region Rules and Station- master's Duties.
2. Clerical Equal Interview assess- aptitude. ment.
3. Ability to Equal Interview and communicate. written submissions assessment.
In addition to assessing the efficiency of each party to the appeal, the Board allows scope for an overall assessment of relative efficiency for the position in question. This assessment by the Board, together with evidence of Mr O'Connell's studies at certificate level to prepare himself for a clerical career, confirmed that Mr O'Connell was better suited to the position of Clerk, Class 1, Transport Co-Ordinator's Office, than yourself.
Yours faithfully,
(R.W. Cruickshanks)
Chairman
Promotions Appeal Board. "
In answer to an affidavit filed by the applicant in support of his request for a review the three members of the Board filed an affidavit. In addition to setting out in some detail the happenings during the hearing of the appeal, which on matters of procedure are not under challenge, they deposed as follows in paragraph 3 of that affidavit:
"3. Prior to the telephone interviews we read and discussed the documents referred to in the previous paragraph hereof in particular the internal memorandum of the Transport Co-ordinator to the Senior Personnel Superintendent, Adelaide dated 19th day of April 1983 and the duty statement for the designation "Tonnage Clerk" in operations (Transport Co-ordinator Section) Adelaide Poster Office. We discussed what was the relevant criteria for assessing the relative efficiency of O'Connell and the applicant and we agreed that the criteria for this particular job was knowledge of the functions of the position which included rostering, provision for wagons and the requirements for goods trains, clerical aptitude and ability to communicate."
The matters deposed to in this paragraph are confirmatory in my opinion of what the Board in its reasons dated 28 July 1983 saw as the duties of the subject position. In those reasons the Chairman made reference to "criteria relating to duties" and then under the heading of "Criteria" stated the duties as "rostering, time sheets, provision for wagons and requirements for goods trains". In paragraph 3 of the affidavit the functions of the position are said to include rostering, provision for wagons and the requirments for goods trains. These functions or duties go well beyond the duties of the subject position.
The primary contention of counsel for the applicant was that there had been an improper exercise of power in that the Board took into account irrelevant considerations in making its decision, namely knowledge and experience in provision for wagons and requirements for goods trains, which matters are not "duties of the subject position". In my opinion this submission must be upheld.
In addition to the facts which I have set out to date in these reasons, much additional evidence was put before me, both oral and in affidavit form by way of explanation of the relevant happenings and in expansion of the reasoning of the Board. Much of it was doubtless irrelevant for the limited purposes of this hearing, although valuable in explaining how the Board perceived its function. None of this evidence persuaded me that the Board did otherwise than misunderstand its function and in particular the nature of the duties of the position under consideration. The Chairman of the Board for his part filed a supplementary affidavit and also gave oral evidence to the effect that although he did not perceive the additional matters as duties of the position he included them as factors to be used in the selection process and as part of the assessment criteria. His view was that pursuant to clause 19 the Board could "regulate its own procedure and decide upon the assessment criteria including all or some of the selection criteria on which it will hear and determine the appeal".
However in my opinion the function of the Board is more restricted than contemplated by the members and in particular the Chairman. It may well be that the person or persons selecting a candidate for provisional appointment are entitled to take into account a wider range of considerations such as here have been called "criteria". However, in my opinion, the Board is clearly restricted by clause 13 of the By-law. This view compels rejection of the argument of counsel for the Board based on the concept of expanded criteria. Clause 19 is expressly confined to matters of procedure and the criteria by which the competing claims of employees for promotion are to be determined are not matters of procedure. Clause 13 prescribes the only grounds upon which the appeal is to be decided. It expressly provides, in the circumstances of this matter, an appeal only on the ground of equal efficiency and seniority. Efficiency is exhaustively defined as meaning "special qualifications, and aptitude for the performance of the duties of the subject position, together with merit, diligence and good conduct."
In these statutory provisions the legislature has not left to the Board as decision maker the determination of what matters are or are not appropriate to be considered in the exercise of its discretion. It has laid down clearly and unequivocally the only matters relevant here to be considered, namely efficiency as defined and seniority. General considerations of "merit, diligence and conduct" were not called in aid by either party. The task of the Board in assessing relative efficiency is to identify, first the subject position, then the duties of the subject position and finally the special qualifications and aptitude of each contender for the performance of these duties. The Board is not justified as a matter of law in proceeding outside of these parameters. Certainly it is not entitled to consider special qualifications or aptitude for the performance of duties other than those of the subject position. My view in this regard is consistent with the approach of Fitzgerald J. in Dawes v Gesling and Others an unreported decision delivered on 23 August 1982. In that matter his Honour said:
"... the general nature of an appeal under s.50 of the Public Service Act is indicated by the statutory obligation to make 'enquiries into the claims' of the parties: sub.s. 50(8A) and
(8D)(b)... Such claims are, primarily at least, intended to be directed to efficiency and seniority: sub.s. 50(6)'."
Later in his reasons, when considering a contention that insufficient regard had been paid to the applicant's experience outside of the Family Court, a position in which Court was under consideration, he said:
"I propose to say no more of that submission than that it is not material to any question properly in issue in these proceedings."
In Ansell v Wells and Others (1982) 43 A.L.R. 41 (Full Court) Lockhart J. made a number of references to the significant part that "efficiency" plays in the promotion and appeal procedure. He said on page 60 that "Relative efficiency and seniority are the criteria fastened on by the Act to determine the selection of officers to fill vacancies". On page 6l the following passage indicates his view of the role of the Appeal Committee under the Public Service Act 1922:
"The duty to make 'full inquiry into the claims of the parties' in my view supports the notion that the committees are essentially concerned to ascertain the relative efficiency of the parties to the appeals. It is an express and positive statutory duty imposed on the committees which fits ill with the notion that the committees are there to determine the relative efficiency of the parties based only on the material adduced by the parties themselves - a notion which would render the committees merely the judges of the facts placed before them by the parties. It is the committees which must gather the necessary information relating to the relative efficiency of the parties, whether their sources be the parties themselves, their superiors, referees, peers or others."
To the extent that their Honours to not see efficiency as the sole matter for consideration it is important to bear in mind that the statutory provisions require "merit, diligence and good conduct" to be taken into account.
Concern was expressed that my approach unduly restricted the task of the Board in ascertaining the best applicant for the position. It was said that Promotions Appeal Boards were normally not so circumscribed in the performance of their tasks of determining promotion appeals. I was at my request supplied with the appeal provisions under other Acts, namely the Postal Services Act 1975, the Telecommunications Act 1975, the Public Service Act 1922 and the Broadcasting and Television Act 1942. In each of these Acts efficiency is defined in much the same terms as in clause 13. However in each instance provision is specifically made in prescribed circumstances for account to be taken of special qualifications and aptitude for the discharge of duties of a higher position.
The Postal Services Act s.50 after defining efficiency (subject to a succeeding sub-section) in similar terms to clause 13 provides expressly in sub.s.(4) as follows:
"(4) Where by virtue of a determination of the Commission, this sub-section applies in relation to a position, consideration shall also be given, in assessing the efficiency of an officer, to the special qualifications and aptitude of each officer available for promotion for the discharge of the duties of higher positions in the Service." I have added emphasis.
Sub-section 50 (4A) of the Public Service Act is in like terms, as is sub.s.47(4) of the Telecommunication Act and para 48(2)(a)(ii) of the Broadcasting and Television Act. The fact that no such provision is to be found in the A.N.R. Act or By-law points strongly and in my opinion conclusively to the fact that the Board is confined, on the question of efficiency, to considering the duties of the subject position.
It was not disputed, either on the evidence or in argument, that the "duties of the subject position" were set out, and exhaustively set out, in the statement of duties. It must follow that in taking into account special qualifications and aptitude, or "knowledge and experience" as stated in its reasons, for performance of duties other than those of the subject position, the Board misconceived its task and took into account irrelevant considerations. The applicant was entitled to have the appeal determined in accordance with law and upon the grounds prescribed in law. This has not been done and therefore he is entitled to a review by this Court of the decision allowing the appeal. His application for such a review must be granted, the decision quashed and the matter remitted for the appeal to be reheard upon the grounds specified in clause 13. It was agreed that I should direct that it be remitted to a Promotions Appeal Board constituted by members other than those who constituted the Board whose decision has been reviewed.
The Board must pay the costs of this application.
7
0
0