Bullard v Tasmanian Industrial Commission
[2022] TASSC 39
•16 June 2022
[2022] TASSC 39
COURT: SUPREME COURT OF TASMANIA
CITATION: Bullard v Tasmanian Industrial Commission [2022] TASSC 39
PARTIES: BULLARD, Tim
v
TASMANIAN INDUSTRIAL COMMISSION
FILE NO: 1013/2021
DELIVERED ON: 16 June 2022
DELIVERED AT: Hobart
HEARING DATE: 17 September 2021
JUDGMENT OF: Blow CJ
CATCHWORDS:
Industrial Law – Tasmania – Industrial Commission – Jurisdiction and Powers – Tasmanian State Service – Power to direct Head of Agency to take such action as the Commission considers appropriate – Whether power to direct retrospective reinstatement of teacher's suspension on full pay.
State Service Act 2000 (Tas), s 51(6)(c).
Aust Dig Industrial Law [3380]
Industrial Law – Tasmania – Conditions of Employment – Remuneration – Generally – Teacher without current registration – Salary not to be paid except in circumstances beyond employee's control.
Teaching Service (Tasmanian Public Sector) Award, Part II, cl 7.
Aust Dig Industrial Law [3392]
REPRESENTATION:
Counsel:
Applicant: P Turner SC, M Jehne
Respondent: No appearance
M P Crocker: A Cohen, Z Lieutier
Solicitors:
Applicant: Solicitor-General
Respondent: Crown Solicitor
M P Crocker: Rae & Partners
Judgment Number: [2022] TASSC 39
Number of paragraphs: 48
Serial No 39/2022
File No 1013/2021
TIM BULLARD v TASMANIAN INDUSTRIAL COMMISSION
REASONS FOR JUDGMENT BLOW CJ
16 June 2022
This is an application under the Judicial Review Act 2000. The applicant, Tim Bullard, is the Secretary of the Department of Education ("the Secretary"). He has applied for judicial review of a decision of Deputy President N M Ellis of the Tasmanian Industrial Commission relating to the remuneration of a teacher named Mark Philip Crocker.
In September 2020 the teacher was notified that a complaint had been made to the Department of Education alleging that in 1989 he had commenced a sexual relationship with a student. For a short time he was suspended from teaching on full pay. On 28 September 2020, the Teachers Registration Board suspended his registration as a teacher pursuant to s 24B of the Teachers Registration Act 2000 on the ground that he posed a risk of harm to students. On 2 October 2020, the Secretary advised the teacher that, because his registration as a teacher was suspended and he was therefore unable to teach, he would no longer be paid a salary as a teacher. The teacher applied to the Commission under s 50(1)(b) of the State Service Act 2000 seeking a review of that decision. On 29 April 2021, Deputy President Ellis made a decision directing the Secretary to reinstate the teacher on suspension with full pay as from 2 October 2020. The Secretary has sought judicial review of her decision.
The sequence of events
It is necessary to go into more detail as to the events leading up to the decision of the Deputy President.
The Teachers Registration Act provides for a system for the registration of teachers. By virtue of s 11(1) of that Act, it is an offence for a person to teach at a school unless the person is registered under that Act, or is the "holder of a limited authority", or is under the direct supervision of a registered teacher. The provisions as to limited authorities and supervision are of no relevance in this case.
By virtue of s 13(2)(ca) of the Teachers Registration Act, a person is not entitled to full registration as a teacher unless he or she is registered under the Registration to Work with Vulnerable People Act 2013 "in respect of a regulated activity, within the meaning of that Act, that primarily relates to children".
On 16 September 2020, the Secretary suspended the teacher on full pay. Under reg 34(1)(a) of the State Service Regulations 2011 he had the power to do that if he believed on reasonable grounds that the teacher had, or may have, breached the State Service Code of Conduct – a Code that is set out in s 9 of the State Service Act. As a "Head of Agency", he had the power to suspend an employee with salary, but did not have the power to suspend an employee without pay. That power was conferred only on the "Head of the State Service", by cl 6.2 of Employment Direction No 4 ("ED4"), an instrument issued pursuant to s 17 of the State Service Act. Clause 6.l of ED4 gave a Head of Agency the power to suspend an employee with pay, apparently duplicating the power conferred by reg 34(1)(a).
Until 16 September 2020, the teacher had been registered pursuant to the Registration to Work with Vulnerable People Act. On that day his registration under that Act was suspended pursuant to s 49(2) thereof. That subsection empowers "the Registrar" – an official appointed under that Act – to suspend a person's registration while an "additional risk assessment" of a person is conducted under that Act.
By virtue of s 24B of the Teachers Registration Act, the Teachers Registration Board has the power to suspend a teacher's registration if it "believes on reasonable grounds that a registered teacher … may pose a risk of harm to a student". On 28 September 2020 that Board suspended the teacher's registration pursuant to s 24B, basing its decision on the suspension of his registration under the Registration to Work with Vulnerable People Act.
This development was the basis of the Secretary's decision of 2 October 2020 which was the subject of the Commission proceedings. On that day the Secretary sent the teacher a letter in which he said the following:
"I now determine that you are no longer suspended on full pay. The suspension that I imposed under ED 4 is now ended. However, as your teacher registration is suspended, you are prohibited from teaching and I direct that you must not enter any DoE school. Accordingly, you will no longer be paid salary, as a teacher, from the date of this letter."
At all material times the terms and conditions of the teacher's employment were governed by the Teaching Service (Tasmanian Public Sector) Award ("the award"). His employment ended on 6 June 2021, when he resigned. The award contains a provision, in Part II, cl 7, making current registration as a teacher a prerequisite for the payment of a salary, except when there are circumstances beyond a teacher's control. I infer that the Secretary did not believe that that exception applied.
The Commission proceedings
In the Commission proceedings, the teacher contended that the suspension of his registration was beyond his control and that he was therefore entitled to be paid a salary. However a departmental representative submitted that the circumstances were not beyond the teacher's control, relying on the following arguments:
· That the teacher had been charged with persistent sexual abuse of a child or young person, and the allegations were so serious that it was "a brazen position" for the teacher to take that it was beyond his control to have current registration issued by the Teachers Registration Board.
· That the teacher could apply to the Magistrates Court (Administrative Appeals Division) for a review of the Board's decision pursuant to s 29(1) of the Teachers Registration Act.
· That the teacher could have applied under the Judicial Review Act for the review of the decision to suspend his registration under the Registration to Work with Vulnerable People Act.
The Deputy President provided detailed reasons for her decision. Her reasoning can be summarised as follows:
· At [53] she took the view that a review pursuant to s 50(1)(b) of the State Service Act was neither a review in the form of a hearing de novo nor a "full merit review based on the material before the decision maker", but that such a review was "a limited review to review the process was appropriate with an eye to correction if the process miscarried".
· At [56] she identified the decision under review as the decision of 2 October 2020 to cease the teacher's "suspension from work on full pay", and to cease the payment of his salary on the basis of Part II, cl 7 of the award.
· At [71], she concluded that there has been a lack of procedural fairness. She did so on the basis that the teacher had not been offered an opportunity to "provide submissions on the possible outcome of the decision making process". She referred in particular to the issue of whether the circumstances relating to the maintaining of the teacher's registration were or were not beyond his control.
· At [74] and [75], she made it clear that she had not taken into account anything other than the materials that were before the decision-maker at the time of his decision on 2 October 2020 because of her view as to the nature of a s 50(1)(b) review.
· At [77], she granted the teacher's application for review and directed the Secretary to "recommence the determination of the application of the relevant Award clause and the status of the … suspension with pay".
· At [78], she directed the Head of Agency (the Secretary) to reinstate the teacher on suspension with full pay with effect from 2 October 2020. Although she did not say so, it is clear that she had concluded that, because the decision of 2 October 2020 had been made without affording the teacher procedural fairness, that decision should in effect be quashed, and the parties returned to the position that they were in before it was made, which involved the teacher being suspended on full pay, pending the making of a fresh decision as to whether the suspension on full pay was to end.
Grounds of judicial review
The Secretary has applied for judicial review of the Deputy President's decision on seven grounds. His contentions can be summarised as follows:
· He contends that the nature of the s 50(1)(b) review was such that the Commission should have considered all the materials available to it, and not just those that were available to the Secretary as at 2 October 2020 (Grounds 1, 2 and 3).
· He contends that the teacher's failure to maintain the relevant registrations meant that he was no longer entitled to the payment of a salary (Grounds 4 and 5).
· He contends that the decision to reinstate the payment of the teacher's salary was beyond the power of the Commission (Grounds 6 and 7).
The grounds of review do not challenge the assumption that the Secretary owed the teacher a duty of procedural fairness in relation to the decision of 2 October 2020, nor the conclusion that he denied the teacher procedural fairness by making that decision without first inviting submissions from him in relation to the payment of a salary.
The salary entitlement issue (Grounds 4 and 5)
It is convenient to deal with this issue first. The Secretary contends that once the teacher's registration was suspended and he was unable to teach, he ceased to be entitled to payment of his salary. The written submissions of counsel for the Secretary included the following:
"It is well established by the common law that there is no liability for the payment of wages or salary unless earned by service. Any right of an employee to receive remuneration is abrogated by a failure of consideration if there is no performance of service.
…
Unless the employer waives the usual requirements of a contract of employment that the employee perform the assigned duties, or unless the relevant award makes contrary provision, payment will be conditional upon the performance of the work assigned or, depending upon the circumstances, at least the employee being ready and willing to do so. As a matter of general principle, a statute or award will not be taken to have withdrawn an employer's right to refuse to pay wages for non-performance of duties unless it compels that conclusion. As such, an employer has a general right not to pay an employee who is not able to and does not work." (Footnotes omitted.)
Counsel relied on Automatic Fire Sprinklers v Watson (1946) 72 CLR 435; Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83, 185 FCR 383 at [38]-[43]; Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587; and United Firefighters' Union of Australia v Metropolitan Fire Brigades Board (1998) 86 IR 340.
I accept that an employee who does not perform any work duties is not entitled to the payment of a salary unless he or she has some right to payment as a result of a provision in a contract or an industrial award, waiver of an employer's rights, or some other entitling circumstance. However in this case I have concluded that the teacher was entitled to payment because of the provision in the award as to circumstances beyond his control.
The relevant provision in the award, Part II cl 7, provided as follows:
"7 TEACHER REGISTRATION
The responsibility to maintain a current registration with the Teachers Registration Board rests with the individual teacher employee.
In accordance with the Teachers Registration Act 2000, a teacher employee must have a current registration issued by the Teachers Registration Board.
Except in circumstances beyond the employee's control, where a teacher employee is not currently registered as detailed above, the employee will not be paid salary until a current registration certificate is issued."
As I have said, I infer from the Secretary's decision of 2 October 2020 that he took the view that the exception relating to "circumstances beyond the employee's control" did not apply, and that the teacher was therefore not to be paid a salary while he was not registered under the Teachers Registration Act.
It is necessary to consider the meaning of the words "Except in circumstances beyond the employee's control" in cl 7. When interpreting the words of any written instrument, it is appropriate to take into account the text, context and purpose of the provision in question. In their ordinary literal meaning, the words in question clearly refer to the circumstances existing at the time when the question of payment of a salary to an unregistered teacher arises for determination. The words cannot reasonably be interpreted as referring to circumstances that were within the employee's control at some past time, but are no longer within the employee's control. The structure of the final sentence of cl 7 indicates that the exception in relation to circumstances beyond a teacher employee's control relates to the situation at a time when the teacher employee is not currently registered under the Teachers Registration Act, and the issue of payment of salary arises.
Counsel for the Secretary argued that the exception was intended to apply only to the sort of situation where a teacher was unable to secure registration because of some sort of administrative oversight or error, such as a delay in processing a payment, resulting in a teacher being unregistered due to circumstances beyond his or her control. No doubt the exception would apply in that sort of situation. However there is no reason to give the words of the exception such a restricted interpretation. The range of possible circumstances beyond a teacher's control is no doubt very wide, and the words of the exception should be construed accordingly.
I accept that the teacher could have attempted to change the relevant circumstances in various ways. He could have applied to the Magistrates Court for a review of the decision of the Teachers Registration Board. He could have sought judicial review of the decision of the Registrar. He could have tried to persuade the Board or the Registrar to reverse their decisions. However he was not in a position to exert control in relation to the outcome of an application to the Magistrates Court, the outcome of a judicial review proceeding, the possibility of any decision being reversed, the willingness of the complainant to maintain her allegations as to his conduct, or anything else.
The question whether there were "circumstances beyond the employee's control" is a question of fact. However the evidence of those circumstances was uncontroversial. The only finding of fact reasonably open to the Secretary or the Commission was that on 2 October 2020, and at all material times thereafter, the circumstances relating to the teacher's registration were beyond his control. Because only one possible finding as to the factual issue was open, any other finding involved an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355-356.
If it was true that the teacher had engaged in a sexual relationship with a student in 1989, it would possibly follow that he had no moral justification to pursue a claim for full pay during the period when his registration was suspended. However, as at 2 October 2020 no court or tribunal had made any finding as to the truth or otherwise of the allegations of sexual misconduct, and it was not part of the Secretary's role to make any finding as to their truth or falsity or to assess their credibility. The wording of cl 7 required him only to determine whether there were circumstance preventing the teacher's registration that were then beyond the teacher's control. A finding that there were no such circumstances was not reasonably open to him.
Clause 7 does not expressly state that a teacher will be entitled to be paid a salary when he or she is not currently registered in accordance with the Teachers Registration Act due to circumstances beyond his or her control. However I consider that the clause should be interpreted as having that meaning. It could not possibly have been intended to mean anything else. It certainly could not have been intended to mean that the State would have the right to choose whether or not to pay a salary to an unregistered teacher in such circumstances.
Grounds 4 and 5 make assertions as to the decision of the Deputy President as follows:
"4The making of the decision(s) was (were) an improper exercise of power conferred by s51(6)(c) of the SSA because the Deputy President failed to take into account a relevant consideration being the fact that the respondent's Working With Vulnerable People Registration had been suspended, and that, in consequence, the respondent was unable to lawfully perform. his duties as a teacher and was thereby not entitled to payment of any salary (s17(2)(e) and s20(b) of the JRA).
5The making of the decision(s) involved an error of law in that the Deputy President failed to take into account the fact that the respondent's Working With Vulnerable People Registration had been suspended, and that in consequence, the respondent was unable to lawfully perform. his duties as a teacher and was thereby not entitled to payment of any salary (s17(2)(f) of the JRA)."
It is true that, as these grounds assert, the teacher's Working with Vulnerable People Registration had been suspended, and that in consequence he was unable to lawfully perform his duties as a teacher. However, for the reasons stated, it does not follow that he was therefore not entitled to the payment of any salary. Grounds 4 and 5 must therefore fail.
Nature of a s 50(1)(b) review (Grounds 1, 2 and 3)
Both the Secretary and the teacher accept that the Deputy President was correct in taking the view that a review pursuant to s 50(1)(b) of the State Service Act is neither a review in the form of a hearing de novo nor a "full merit review based on the material before the decision maker", and that such a review is "a limited review to review the process was appropriate with an eye to correction if the process miscarried". However the Secretary contends that the Deputy President erred in failing to take into account materials that were not before him when he made his decision on 2 October 2020, but which were before her when she made her decision.
I have some doubt as to whether the Deputy President was correct in her view as to the nature of a s 50(1)(b) review. Her view was based on comments made by Porter J about that provision in Pervan v Frawley [2011] TASSC 27, 20 Tas R 185 at [64]. However those comments were obiter, and the nature of such a review has never been authoritatively determined by this Court.
Section 50(1) of the State Service Act provides as follows:
"(1) Subject to subsections (2) and (3) , an employee is entitled to make application to the Tasmanian Industrial Commission for a review –
(a) of the selection of a person or an employee to perform duties other than duties to be performed for a specified term or for the duration of a specified task; or
(b) of any other State Service action that relates to his or her employment in the State Service."
Section 51 of the State Service Act contains provisions as to the determination of a s 50(1) review. The significant provisions in s 51 read as follows:
"(1) Subject to subsection (1A) , the procedure for a review under section 50(1) is to be determined by the President of the Tasmanian Industrial Commission.
(1A) Timeframes for an employee to apply for a review under section 50(1) are as prescribed by the regulations.
…
(6) In the determination of an application for a review, the Tasmanian Industrial Commission may –
(a) refuse to grant the application for a review and, if appropriate, direct the Head of Agency to take such action as the Tasmanian Industrial Commission considers appropriate; or
…
(c) in the case of an application for a review under section 50(1)(b) , grant the application and recommend or direct the Employer or the Head of Agency or any person to whom the powers of the Employer or the Head of Agency have been delegated, to take such action as the Tasmanian Industrial Commission considers appropriate.
…".
Because of the wording of s 51(6)(c), the Commission does not have the power to stand in the shoes of a primary decision-maker and make its own decision in substitution for the decision under review. Instead it has the power to "recommend or direct" the primary decision-maker to "take such action" as it considers appropriate. For the purpose of determining this application, I do not need to decide whether or not the Commission has the power to undertake a full merits review and then direct the primary decision-maker to make a particular decision in substitution for the decision under review. I do not need to determine the nature of a s 50(1)(b) review because, whatever the nature of such a review, none of the materials that became available after the Secretary's decision and before the Deputy President's decision could properly have made any difference to the outcome of the Commission proceedings.
Grounds 1, 2 and 3 of the originating application read as follows:
"1 The making of the decision(s) was (were) an improper exercise of power conferred by s51(6)(c) of the SSA because Deputy President Ellis failed to take into account relevant considerations being materials that were not before the applicant at the time of him making the state service action(s) on the 2nd October 2020 (paragraph [74] of her reasons – s17(2)(e) and s20(b) of the JRA).
2 The making of the decision(s) involved error of law in that Deputy President Ellis erroneously directed herself that her 'role is to review the decision based on the materials before the decision maker at the time of the determination' when, upon the proper construction of s51 of the SSA, she was required to review the 'decision' based upon all relevant martials before her, to determine the correctness of that decision, namely whether it was one which the applicant could not properly have made (paragraph [74] of her reasons – s17(2) of the JRA).
3 The making of the decision(s) involved an error of law in that the Deputy President erroneously directed herself that she was not to review 'the merit of the decision' (of the applicant) when, upon the proper construction of s51 of the SSA she was to review the merit of the decision, to determine, on the basis of all relevant materials before her, the correctness of that decision, namely whether it was one which the applicant could not properly have made (paragraph [71] of the reasons – s17(2)(f) of the JRA)."
In the submissions relating to these three grounds the Secretary relies on information contained in a letter from him to the teacher's solicitors dated 3 December 2020 – a document that was before the Deputy President – to the effect that the teacher had by then been charged by Tasmania Police with persistent sexual abuse of a child or young person. Counsel for the Secretary argued to the effect that the information that the police had completed an investigation and decided to charge the teacher added strength to the complainant's allegations and to the arguments that the teacher was not entitled to the payment of a salary.
I disagree. I accept that between 2 October 2020 and 3 December 2020 material became available that established that the police had decided that the evidence supporting the complainant's allegations was strong enough for the teacher to be charged, and had charged him. It does not follow that those developments placed him in a better position to influence or control the circumstances relating to his registration as a teacher. In the proceedings before me, counsel for the Secretary did not rely on any other information or material that was available at the time of the Deputy President's decision but not at the time of the Secretary's decision.
It may well be that the Deputy President erred in law by proceeding on the basis that she was to take into account only the materials that were before the Secretary at the time of his decision. I need not consider whether that is the case since counsel for the Secretary has not identified any information or materials that subsequently became available and which might have made any difference to the strengths and weaknesses of the parties' cases on the question whether the teacher was entitled to be paid a salary.
Grounds 1, 2 and 3 must fail.
Extent of the Commission's powers (Grounds 6 and 7)
These grounds concern the scope of the power conferred by s 51(6)(c) of the State Service Act for the Commission to "direct … the Head of Agency … to take such action as the Tasmanian Industrial Commission considers appropriate".
Counsel for the teacher submitted that it was appropriate and within power for the Deputy President to direct the Secretary to re-open his consideration as to the applicability of the relevant award clause, and in the meantime to reinstate the suspension on full pay. Reliance was placed on the full text of reg 34(1) of the State Service Regulations 2011, which applied at all material times. That sub-regulation read as follows:
"(1) A Head of Agency may, if he or she considers it to be in the public interest or the Agency’s interest, suspend, with salary, from duties an employee employed in the Agency if the Head of Agency believes on reasonable grounds that –
(a) the employee has, or may have, breached the Code of Conduct in such a manner that the employee should not continue in the performance of his or her duties; or
(b) the employee has been charged in Tasmania with an offence punishable by imprisonment for a term exceeding 6 months or has been charged outside Tasmania with an offence which would, if committed in Tasmania, be an offence punishable by imprisonment for a term exceeding 6 months; or
(c) the employee is, or may be, unable to efficiently and effectively perform the duties assigned to the employee."
Certainly it would have been within power for the Secretary to have reinstated the teacher's suspension on full pay pursuant to reg 34(1).
Counsel for the Secretary argued that the Deputy President erred in law by requiring the Secretary to re-exercise the power to suspend on full pay without any consideration being given to the evidence concerning the teacher being charged with a sexual crime. For the reasons stated above, that evidence was irrelevant. That submission must therefore be rejected.
Counsel for the Secretary relied on s 34(1)(a) of the State Service Act, which requires a Head of Agency "to ensure that the Agency is operated as effectively, efficiently and economically as is practicable". Reliance was also placed on s 34 of the Financial Management Act 2016, which makes the Secretary "responsible for the financial management of the Agency in an efficient, effective and economical manner, including … ensuring that expenditure by the Agency is in accordance with the law". However those provisions are of no significance in relation to the interpretation of s 51(6)(c) of the State Service Act. The scope of the Commission's power to direct a Head of Agency to take such action as the Commission considers appropriate has to be determined by reference to the text, context and purpose of the relevant provision.
Counsel for the Secretary argued that the Deputy President's direction to the Secretary to reinstate the teacher on suspension with full pay was beyond the power of the Commission because it amounted to a direction to the Secretary to form a particular belief. Regulation 34(1), quoted above, empowered the Secretary to suspend an employee with salary only if the Secretary believed certain things on reasonable grounds. Similarly, Employment Direction ED4, referred to above, empowered the Secretary to suspend a teacher on full pay only if he believed certain things.
The power conferred by s 51(6)(c) to "recommend or direct the Employer or the Head of Agency … to take such action as the Tasmanian Industrial Commission considers appropriate" is very widely worded. I accept that the powers conferred by that provision must have some limits. For example, it could not be interpreted as authorising the Commission to direct a decision-maker to take an action that was so unreasonable that no reasonable decision-maker would have decided to take that action: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Since it is concerned with disputes relating to employment, it is appropriate to interpret the provision as conferring a power to give directions that operate retrospectively in respect of any period covered by the decision being reviewed by the Commission. It could not reasonably be construed as empowering the Commission to direct a decision-maker to do anything unlawful.
For present purposes, I do not need to determine the limits of the powers conferred by s 51(6)(c). I need only determine whether the directions given by the Deputy President were within power. In substance she quashed a decision that was impeachable because of a denial of procedural fairness, and restored the parties to the position that they had previously been in. The Secretary did not afford procedural fairness to the teacher either in relation to the cancellation of his suspension on full pay or in relation to the decision not to pay him after his suspension ended. In such circumstances, there is no reason why the Commission should not have a power to set aside a decision under review, remit the matter for reconsideration, and restore the status quo ante.
I do not accept that the power of the Commission to direct a decision-maker "to take such action as the Tasmanian Industrial Commission considers appropriate" should be construed as subject to any sort of implied qualification when the decision-maker's ordinary power to take the directed action is contingent upon him or her forming a particular belief. Such a construction would be inconsistent with the clear words of s 51(6)(c) empowering the Commission to direct a decision-maker to take the action that it considers appropriate. The Commission has the power to direct a decision-maker to take action that would ordinarily require a particular belief, and the decision-maker is then obliged to take that action, whether or not he or she holds the particular belief that would ordinarily be required. The decision of the Deputy President did not impliedly require the Secretary to hold a particular belief. It required him to restore the teacher's suspension on full pay retrospectively, regardless of any belief that he held or did not hold.
Grounds 6 and 7 of the originating application read as follows:
"6The decision to direct the applicant 'to reinstate the Applicant on suspension with full pay pursuant to clause 6.1 of the ED4 from 2 October 2020, being the date the decision was made to suspend the ED4 by the Respondent' involved an error of law in that upon its proper construction s51(6)(c) of the SSA did not permit such direction to be made (s17(2)(f) of the JRA).
7The decision to direct the applicant 'to reinstate the Applicant on suspension with full pay pursuant to clause 6.1 of the ED4 from 2 October 2020, being the date the decision was made to suspend the ED4 by the Respondent' was not authorised by s51(6)(c) of the SSA (s17(2)(d) of the JRA)."
For the reasons stated above, it is clear that s 51(6)(c) of the State Service Act was wide enough to empower the Deputy President to give the direction that she gave. These grounds must therefore also fail.
Conclusion
For these reasons, the originating application is dismissed.
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