Donnelly, Dawn Marilyn v Australian Telecommunications Commission

Re: DAWN MARILYN DONNELLY
And: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G.316 of 1983
Administrative Law
6 ALD 134
30 IR 26

COURT

IN THE FEDERAL C0URT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Administrative Law - judicial review - employee - compensable injury - award of compensation - employee required to return to work - application for order of review of decision - "decision" - rules of natural justice - failure to consider a relevant consideration - order of review granted

HEARING

SYDNEY

#DATE 20:7:1984

ORDER

The applicant is entitled to an order of review.
The respondent is to pay the applicant's costs.
The matter stood over for the making of formal orders.

JUDGE1

The applicant seeks an order of review under the

Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") in respect of a decision and conduct of officers of the respondent ("Telecom") affecting her employment as a telephonist. The applicant commenced employment with Telecom in November 1975 as an accounting machinist. She continued in that position until October 1981 when, because of tendovaginitis in the right shoulder and arm, she was transferred to duties as a telephonist.

In or about November or December 1981 she made an application for compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 ("the Compensation Act") in respect of the tendovaginitis from which she was suffering. On 31 May 1983 the Delegate of the Commissioner for Employees' Compensation ("the Delegate") determined that the applicant had contracted a disease, namely tendovaginitis of the right arm, and that her employment was a contributing factor to that disease. He further determined that total incapacity for work resulted from the disease on 23 June 1981 and that it was deemed to be a personal injury to the applicant arising out of her employment. He also determined in accordance with the provisions of s. 27 of the Compensation Act that Telecom was liable to pay compensation to her. In a further determination made on 21 July 1983 the Delegate determined pursuant to s.45 of the Act that the applicant was entitled to payment of compensation at varying amounts during a number of specified periods, and that she was entitled to be paid compensation from 1 May 1983 to a date to be determined by the Commissioner or his Delegate.
Telecom has not taken any steps to have terminated the applicant's entitlement to weekly compensation payments. Nor has it sought to exercise rights given to it in the Compensation Act to challenge the Delegate's determination. Thus the determination remains in force and the applicant has a continuing right to receive payments of compensation upon the basis that she is totally incapacitated for work.
Prior to the Delegate's determination on 21 July 1983 the applicant had been examined by a number of medical specialists, as well as her own doctor. These specialists had expressed differing views as to her fitness for work. Dr Hedberg, a consultant orthopaedic surgeon, saw her on behalf of Telecom in March 1983 and advised that she should be reviewed by a physician or a rheumatologist. Accordingly, she was asked by her employer to see Dr Peter Thorpe, a specialist rheumatologist. On 30 March he furnished Telecom with a report in which he expressed the opinions that "on the basis of probabilities (her) condition is due to her work as an accounting machine operator" and that "She appears at the moment unfit for work". On 28 June 1983, 12 July 1983 and 23 August 1983, Dr D.M. Cunningham, the applicant's own doctor, furnished certificates that the applicant remained unfit for work.
She was again referred to Dr Hedberg on 28 June 1983 who furnished a report to Telecom in which he said that he would still regard her unfit except for very limited duties. He suggested that she be reviewed by another consultant, Dr Bloch.
Dr Bloch examined the applicant on behalf of Telecom on 2 August 1983. He expressed the opinion that the applicant did not have any occupationally related condition and that "She is fit for all duties as a telephonist forthwith". The applicant was not shown a copy of Dr Bloch's report. However on 1 September 1983 Telecom wrote to her in the following terms:

"As you are aware a review of your fitness for continued duty has been undertaken by the Common wealth Medical Officer. As a result of the review, the Department of Health has advised that you are fit to resume normal duty.

Accordingly you are directed to resume duty and report to Mr Reg Walker, Administration Manager, 6 Floor, 309 Kent Street, Sydney 2000 at 8.30 a.m. on 12.9.83. Failure to obey this directive will result in any absence being regarded as unauthorised.

(Sgd) B. Butler

B. Butler

for CHIEF MANAGER

PERSONNEL AND INDUSTRIAL RELATIONS DEPARTMENT

1.9.83"

The applicant did not resume duty on 12 September 1983. Prior to that date she submitted to Telecom a medical report from her own doctor certifying that, in his opinion, she was unable to carry on her work. Notwithstanding this certifi cate Telecom advised the applicant that the Department of Health's opinion remained unchanged that she was fit for full duty, and her attention was again drawn to the direction to resume duty on 12 September.
On 5 October the applicant's solicitors advised Telecom that she proposed to apply to the court for an order of review of its decision of 1 September to direct her to resume duty. The solicitors requested Telecom to furnish a statement pursuant to s. 13(1) of the Judicial Review Act. In response to the request a statement was furnished in which it was said that the decision had been made "having regard to advice of Ms Donnelly's fitness for duty as assessed by the Department of Health" and reference was made to the fact that the Department had had access to reports on the applicant submitted by a number of doctors. No mention was made in the statement of the Delegate's determination or of the applicant's entitlement to receive continuing compensation under that determination. Certainly nothing was said in the letter to convey to the applicant, if it were the fact, that Telecom had taken into acount the Delegate's determination and the applicant's rights under it. However, it is clear from evidence filed in the case at a late stage that Mr Butler, who wrote the letter of 1 September on behalf of the Chief Manager of Telecom's Personnel and Industrial Relations Department, was aware of the existence of the Delegate's determination and that Telecom was making weekly compensation payments to the applicant pursuant to the terms of the determination.
It appears from Mr Butler's oral evidence that his knowledge of the Delegate's determination did not lead him to place any weight upon it when he wrote to the applicant. It was his view that the only affect of the determination was that Telecom was obliged to make continuing weekly payments of compensation to the applicant. He did not regard the deter mination as a finding that the applicant was unfit for work. This appears from the following passages in his evidence:

"Would not you see that question of fitness to be one to be determined by the tribunal?---I saw it as one to be determined by the Department of Health as our adviser on someone's fitness for duty.

You thought- - -?---As distinct from a determination for liability on Telecom in respect of a condition arising out of employment." ....

"You do not accept the award as containing a finding that on a continuous basis she is not fit for duty?---I see that on a continuous basis she was receiving payment for that absence. I do not see that as a restriction on her actually resuming duty, and I would like further to say that if she in fact resumed duty there is no payment of compensation.

All you accepted the award as being was an order that a continuing payment be made?---That is correct.

And not a finding that she was continuously unfit?---Exactly, your Honour.

That is how you interpreted the effect of the award?---Yes, that is correct."

On 11 October 1983 the applicant applied to the court for an order of review of Telecom's decision that she be directed to resume duty on 12 September 1983 and that her absence from duty after that date would be regarded as unauthorised.
Apparently the applicant returned to work for a short time on 12 October 1983 but thereafter she has been absent from work. She was advised by Telecom that her continued absence was regarded as unauthorised. On 1 December 1983 the Chief Manager of the Personnel and Industrial Relations Department wrote to her in the following terms:

"I refer to the medical certificate dated 15 November 1983 from Dr D Cunningham, which you submitted to this office on 29 November 1983.

In accordance with Section 65(3)(b) of the Tele communications Act I wish to advise that on the basis of medical advice from the Department of Health, this Commission is not willing to grant a leave of absence. Accordingly, you are required to return to duty and, unless you return to duty within a period of two weeks from and including the date on which this notice is sent, you will be deemed to have resigned upon the expiration of this two week period."

It was conceded that the applicant is an officer of Telecom within the meaning of sub-s.39(1) of the Telecommunications Act 1975 and was not a temporary employee.
Subsection 56(1) of the Telecommunications Act provides, inter alia, that if an officer appears to the Commission to be unable to discharge or incapable of discharging the duties of his position, the Commission may retire him from the Australian Telecommunication Commission's service. No action has been taken by Telecom pursuant to s.56.
Section 65 of the Telecommunications Act provides, in part, as follows:

"65. (1) Where an officer is absent from duty without permission, and has been so absent for a continuous period of not less than 4 weeks, the Commission may send to him, by prepaid registered post addressed to him at the address of the officer last known to the Commission, a notice informing him that unless, within a period of 2 weeks from and including the date on which the notice was sent -

(a) he returns to duty; or

(b) he explains his absence and seeks the permission of the Commission for any further period of absence that may be necessary having regard to that explanation,

he will be deemed to have resigned upon the expiration of that period of 2 weeks.

(2) Where an officer to whom a notice under sub-section (1) has been sent does not, within a period of 2 weeks from and including the date on which the notice was so sent -

(a) return to duty; or

(b) explain his absence and seek the permission of the Commission for a further period of absence,

and the notice has not been revoked under sub-section (11), he shall be deemed to have resigned on the day following the expiration of that period of 2 weeks.

(3) Where a notice has been sent to an officer under sub-section (1) and, within the period of 2 weeks after that notice was so sent, the officer explains his absence and seeks the permission of the Commission for a further period of absence, the Commission shall, as soon as practicable, consider the matter and may, by notice in writing sent to him by pre-paid registered post addressed to him at his address last known to the Commission, inform him -

(a) that he has been granted leave of absence for such period and on such conditions as are specified in the notice; or

(b) that he is required to return to duty and, unless he returns to duty within a period of 2 weeks from and including the date on which the notice is sent, he will be deemed to have resigned upon the expiration of that last-mentioned period.

(4) Where an officer who is required by a notice sent to him under sub-section (3) to return to duty does not return to duty within the period referred to in the notice, and the notice has not been revoked under sub-section (11), he shall be deemed to have resigned on the day following the expiration of that period."

The applicant contended that the letter of 1 September was either a decision to which the Judicial Review Act applied (s.5(1)) or, alternatively, constituted conduct engaged in by officers of Telecom for the purpose of making a decision to which the Act applied (s.6(1)). This latter decision was identified as being the decision, made pursuant to s.65(1) of the Telecommunications Act, to send a notice to the applicant in accordance with the terms of that section.
Counsel for the respondent submitted that the letter of 1 September 1983 was not a decision to which the Judicial Review Act applied. He contended that it was only a letter giving notice to the applicant that she was directed to resume duty and that failure to obey the notice would result in her continued absence being regarded as unauthorised. The sending of the letter, so it was argued, was no more than action taken by Telecom pursuant to the applicant's contract of service and was not properly identified as a decision taken under the Tele communications Act or the by-laws made under the Act. He further contended that the writing of the letter could not be seen as being necessarily connected with any action which the Commission thereafter took under s.65 of the Telecommunications Act and that therefore it was not conduct engaged in for the purpose of making a decision under that section.
Counsel for the applicant argued that although the direction to her to resume duty was made in the course of and as a consequence of the employment relationship between the applicant and Telecom it was nevertheless given under the Act and by-laws. Reliance was placed upon the circumstance that the applicant's terms of employment were not contained in a document separate from the Act and the by-laws. The terms of her employment were only to be ascertained from the Act itself and the by-laws made thereunder. Reference was made particularly to by-law 8 made under s. 111 of the Telecommunications Act which provides as follows:

"8. An officer or employee -

(a) who records, as time of his arrival on duty or his departure from duty, a time other than the actual time of his arrival on duty or his departure from duty, as the case may be;

(b) who, having arrived on duty later than 10 minutes after the time at which he is required to commence duty, fails to report to the officer in charge or, having so reported, fails to give an explanation for his late arrival;

(c) who commences duty after the time at which he is required to commence duty on any day or after the time at which he is required to commence duty after a meal break;

(d) who ceases duty before the time until which he is required to perform duty on any day or until which he is required to perform duty before the commencement of a meal break;

(e) who is frequently late in attending for duty;

(f) who is, during his hours of duty, absent from duty without the express permission of the Commission or the officer in charge; or

(g) who, being prevented by illness or other emergency from attending for duty, does not, as soon as he may do so, report the fact to the officer in charge,

commits a breach of these By-laws."

I do not think that the direction to resume duty contained in the letter of 1 September can be related to any of the paragraphs of by-law 8. It was also submitted that the facts of the present case were quite different from those in Australian National University v Burns (1982) 43 A.L.R. 25 where there was a separate contract of employment enshrined in correspondence. I agree that this is so, but this does not answer the question whether it can be said that the direction was given under the Act or in pursuance of the applicant's contract of service as an employee of Telecom.
I think there is substance in the respondent's argument that the letter of 1 September 1983 does not constitute a decision to which the Judicial Review Act applies. If the letter of 1 September is looked at in isolation from the events that followed it, it should properly be regarded as communicating a decision made, not under the Act or by-law 8, but in pursuance of the applicant's contract of service.
But, in my opinion, the writing of the letter, seen in the context of the events that followed it, did constitute engagement in conduct for the purpose of making a decision under sub-s. 65(1) of the Telecommunications Act. The events that transpired after the writing of the letter clearly demonstrate that it was written for the purpose of making it possible for action to be taken under s.65 should the applicant not comply with the direction contained in it. So much appears plainly from the last sentence of the letter, in which the applicant was advised that - "failure to obey this directive will result in any absence being regarded as unauthorised". There can be no doubt that the purpose of this sentence was to advise the applicant that if she were absent from duty on and after 12 September 1983 she would be regarded as "absent from duty without permission" in terms of sub-s.65(1). At no stage did the respondent or its officers have any other course in mind. Mr Butler's evidence included the following:

"In the last sentence of your letter of 1 September you say, failure to observe this directive will result in any absence being regarded as unauthorised. In terms of the applicant's employment what consequences flowed from failure on her part to obey the directive in your letter?---Her absence beyond 12 September was regarded as being unauthorised.

And what flowed from that?---In effect that means she does not receive any payment of sick leave, any sick leave credits available. Beyond that once Mrs Donnelly was absent for a continuous period of four weeks action was taken to advise her in accordance with section 65(1) of the Telecommunications Act."

On the whole of the evidence I think that the proper conclusion is that the writing of the letter constituted conduct for the purposes of making a decision under sub-s.65(1) of the Telecommunications Act. The application for the order of review in this case was filed in court before Telecom sent to the applicant the letter of 1 December 1983 to which I have already referred.
Had I not been of the opinion that the sending of the letter of 1 September 1983 was conduct for the purpose of making the decision referred to in the letter of 1 December 1983 I would have permitted an amendment so as to permit the applicant to seek an order of review in respect of the decision referred to in the latter letter. In my opinion that letter plainly refers to a decision made under s.65 of the Telecommunications Act. However, I do not think such amendment is necessary because of my view that the writing of the letter of 1 September amounted to conduct for the purposes of s.6.
Even if the action taken by Telecom was taken under the applicant's contract of service it does not necessarily follow that the action was not also conduct for the purpose of making a decision under sub-s. 65(1) of the Telecommunications Act. In Burns Case (supra) at p. 33 Bowen C.J. and Lockhart J. pointed out that if the making of a contract is authorized by an enactment, and such a contract, when made, provides for the making of certain decisions, it does not necessarily follow that the making of those decisions are not made under the enactment. The same observation can be made in respect of conduct engaged in pursuant to a contract of service the making of which is authorized by an enactment. In the present case the writing of the letter of 1 September was so clearly related to the prospective and intended action under sub-s.65(1) that it should be treated as conduct for the purpose of making a decision under that section.
The applicant claims that a breach of the rules of natural justice occurred in connection with the writing of the letter of 1 September. She also claims that the letter was written without regard to a relevant consideration, i.e. the Delegate's determination in her favour (s.6(1)(e) of the Judicial Review Act as expanded by s.6(2)). Other provisions of s.6 were also relied upon, particularly ss. 6(1)(c) and 6(1)(f).

There is an initial difficulty in the applicant's way on the first of these arguments. The letter of 1 September did not, of itself, affect the applicant's rights. In particular, it did not bring about any termination of her employment. There are three ways in which the applicant's services could have been terminated by Telecom. It could have retired her (s.56), dismissed her for misconduct (s.58) or taken action under s.65 to bring about a situation where she would be deemed to have resigned. But before deemed resignation could occur under s.65 Telecom was required to send a notice to her giving her an opportunity to explain her absence from duty. In other words, sub-s.65(1) has a built-in provision which ensured that the applicant was given an opportunity of explaining her absence before she would be deemed to have resigned.
In these circumstances I do not think that, even if (as was conceded) the rules of natural justice applied, there was any requirement that Telecom give notice to the applicant that it was intending to write to her in terms of the letter of 1 September. It may well be that the letter ought not to have taken the form that it did. Its failure to explain why Telecom was proposing to ignore the Delegate's finding was most unfortunate. But bearing in mind that any subsequent action under s.65 necessarily required the applicant to be given an opportunity to explain her absence from duty, I do not think that the rules of natural justice required Telecom to give notice that it was proposing to send the letter of 1 September, or to consider any representations from the applicant before sending it.
In National Companies and Securities Commission v The News Corporation Limited & Ors. (High Court of Australia, 15 May 1984 - as yet unreported), Gibbs C.J. said:

"In Russell v The Duke of Norfolk (1949) 1 All E.R. 109 Tucker L.J. said, at p. 118: 'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.' The passage has frequently been approved - for example, by this Court in Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J. said in Salemi v MacKellar (No. 2) (1977) 137 C.L.R. 396, at p.444, the rules of natural justice 'may also vary from case to case although each be conducted before one and the same tribunal or person'."

Applying this dictum to the facts of the present case, it seems to me that fairness to a person against whom action is taken under s.65 is preserved by the requirements in the section itself that Telecom give the requisite notice to the officer concerned and afford him the opportunity of explaining his absence. Accordingly the applicant's first argument fails.
The next attack on the letter of 1 September founds upon the submission that it failed to take a relevant consider ation into account in putting in train action against the applicant under s.65. The applicant submitted that it sufficiently appeared from the letter that the making of the proposed decision under s.65 would be an improper exercise of the power under that section because the decision was proposed to be taken without having regard to the existence of the Delegate's determination. It was argued that the absence of any reference in the letter to the Delegate's determination sufficiently showed that it had been improperly left out of account.
I think there is considerable force in this submission. It was stated in the letter that as a result of a review of the applicant's fitness for duty undertaken by the Commonwealth Medical Officer, Telecom had been advised that she was fit to resume normal duty, and that "accordingly you are directed to resume duty ...". A letter written in such terms could only have led the applicant to believe that the existence of the recent determination in her favour had not been taken into account. Certainly it was ignored in the letter. If Telecom had taken it into account and decided, for reasons best known to itself, to ignore it, common fairness dictated that those reasons should have been disclosed to the applicant. Yet they were not. In those circumstances I think that the applicant was justified in assuming that Telecom was proposing to make a decision against her under s.65 without regard to the existence of the determination. This assumption could only have been reinforced by the absence of any mention of the Delegate's determination in the statement of reasons furnished by Telecom under s.13 of the Judicial Review Act. I should observe that counsel for Telecom informed the court that, because of the form of the correspondence that was sent to the applicant, no order for costs would be sought against the applicant in the event that she did not succeed in her application.
However, after counsel for the applicant had concluded her address I permitted Telecom to file additional evidence. That evidence makes it clear that Mr Butler knew of the Delegate's determination and of the applicant's entitlement to continuing payments of compensation thereunder. In the light of this evidence I think the court should not assume that either Mr Butler or the Chief Manager of the Personnel and Industrial Relations Department was unaware of the Delegate's determination. But to say this is not to say that they correctly assessed the relevance of it, nor that the decision to give it no weight did not involve an error of law.
In my opinion, Mr Butler's evidence makes it plain that he failed to appreciate the full significance of the determin ation. I have already referred to his evidence that he did not accept it as amounting to a finding that the applicant was continuously unfit. However the Delegate's determination did amount to such a finding. It was his function, as the Delegate of the Commissioner, to determine all matters and questions arising under the Compensation (Commonwealth Government Employees) Act - vide ss.20(1) and 24(1) of that Act. The question of the applicant's entitlement to compensation was a question which arose under the Act. The answer to that question depended upon whether the Delegate was satisfied that the applicant was totally or partially incapacitated for work as a result of the disease from which she suffered and whether that disease amounted to a personal injury arising out of her employment (s.29(2)(e)). The Delegate's determination was expressed to be made under s.45 of the Act. That section only applies "where an injury to an employee results in the employee being totally incapacitated for work ..."(emphasis added). The effect of these statutory provisions, when applied to the facts of the present case, is that the Delegate determined, inter alia, that the applicant was totally incapacitated for work as at 21 July 1983. His determination was expressed in the following words:

"In pursuance of the provisions of Section 45(2) of the said Act, (the applicant) is ... entitled to the payment of compensation ... from 1.5.83 to a date to be determined by the Commissioner or his Delegate."

In my opinion it was erroneous of Mr Butler to treat this determination as being no more than an order that a continuing payment of compensation be made to the applicant. To treat the determination in that fashion is to ignore the statutory basis upon which it was made. That basis was that the applicant was totally incapacitated for work, and on a continuing basis. However Mr Butler did not regard this as a finding that the applicant was continuously unfit. In the context of the facts of the present case, the Delegate's determination can only be regarded as a finding that she was continuously unfit. Indeed, Telecom's continued acceptance of its liability to pay compensation to the applicant upon the basis that she continues to be totally incapacitated for work seems to me to be a tacit acceptance of her continued unfitness for work.
It was submitted that it was for Telecom and its officers to decide what, if any, importance was to be attached to the Delegate's determination and that any failure to give it any weight did not justify the making of an order of review. Reliance was placed upon Sean Investments Pty Ltd v Mackellar (1981) 38 A.L.R. 363 at 375 where Deane J. said:

"In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

I do not think this argument answers this part of the applicant's case. Whatever view be taken of the ambit of the matters which were relevant for consideration, it is impossible to say that the Delegate's finding that the applicant was totally incapacitated for work was irrelevant. Further, this is not a case in which the decision-maker merely failed to take into account a particular consideration or to give it particlar weight. Mr Butler's failure to appreciate that the Delegate had made a finding that the applicant was unfit for her duties was a misapprehension which, in itself, was an error of law or the kind referred to in s.6(1)(f) of the Judicial Review Act.
Counsel for Telecom also submitted that the Delegate's determination did not give rise to any issue estoppel between it and the applicant because it was an administrative, not judicial, decision and did not finally decide any question. Blair v Curran (1939) 62 C.L.R. 464 at 531 and Administration of Papua and New Guinea v Daera Guba (1973) 130 C.L.R. 353 at 453 were relied upon. Even if this argument is correct, it does not answer the applicant's case that Telecom and its officers misapprehended the effect of the Delegate's determination. It matters not for the purposes of the applicant's argument whether the determination was final, or liable to subsequent revocation, or whether it was strictly judicial in character. What matters is that Telecom misunder stood the effect of the determination which was binding upon it.
It was submitted that the power in s.20(4) of the Compensation Act to revoke a determination included a power to revoke a determination ab initio. Thus, so it was argued, it would be open at any time in the future for the Delegate to revoke his determination and, if and when that occurred, the finding that the applicant was totally incapacitated for work from 21 July 1983 onwards would be retrospectively reversed. Even if this were to happen, it would not lead to the result that Telecom or its officers placed the right interpretation upon the Delegate's determination as at the time the decisions were taken affecting the applicant's employment. The letter of 1 September was written to the applicant under the mistaken belief that, at that time, there was not a finding that she was unfit. If the Delegate's determination is ever revoked ab initio that would not lead to the result that the proper interpretation was placed upon the determination when Telecom and its officers took the decisions which adversely affected the applicant. I should add that, notwithstanding that more than twelve months have passed since Dr Bloch furnished his report, there is not the slightest suggestion in the evidence that Telecom has any intention of seeking a revocation of the determination ab initio. On the facts of the present case, I think it is unreal to think that the Delegate could be persuaded to make an order retrospectively depriving the applicant of payments of compensation made to her by Telecom with full knowledge of all the relevant facts affecting her entitlement to compensation.
In the result, I am of the opinion that Mr Butler's misapprehension of the true nature of the Delegate's determin ation entitles the applicant to an order of review on the grounds referred to in s.6(1)(e) as expanded by s. 6(2)(h) and s.6(1)(f) of the Judicial Review Act. Being of this view, I find it unnecessary to determine whether she is also entitled to succeed on the ground referred to in s.6(1)(e) as expanded by s. 6(2)(g). There is much to be said for the view that having regard to the currency of the Delegate's determination, to the fact that it had been made only a few weeks before the letter of 1 September was sent to the applicant, and to Telecom's failure to request the Delegate to vary or revoke his determination, the decision to require the applicant to return to work was so unreasonable that no reasonable person could have reached it. Bearing in mind the serious adverse consequences to which the applicant was exposed if she did not comply with the terms of the letter there is a strong argument that no reasonable person could have engaged in conduct for the purpose of making a decision to send a notice to the applicant under sub-s. 65(1) of the Telecommunications Act.
There were two courses of action open to Telecom when it received Dr Bloch's report and decided to act upon it. One was to refer the question of the applicant's fitness for work to an impartial arbiter, i.e. the Delegate. The other was to make a unilateral decision, on that question, adverse to the applicant. In these circumstances it is difficult to accept that a reasonable employer could elect to take the latter course, thus ignoring the obvious and traditional mechanism for resolving a dispute as to an employee's fitness for work.
On the facts of the present case the provisions of sub-s.65(8) of the Telecommunications Act were a poor substitute for a re-appraisal of the applicant's fitness for work by the Delegate. It is unsatisfactory and unfair that an employee who has obtained a determination in her favour should have to invoke the appellate proceedings of a Disciplinary Appeal Board. It seems to me to be singularly inappropriate that an employee who has been found to be totally incapacitated for work should be required, in effect, to defend that finding before a Disciplinary Appeal Board. I doubt whether sub-s.65(8) was ever intended to apply to a case where an employee has not merely been absent from duty, but has also obtained a determination in her favour by the Delegate.
It was argued on behalf of the applicant that, whether the letter of 1 September was regarded as a decision for the purposes of sub-s. 5(1) of the Judicial Review Act, or engaging in conduct for the purpose of making a decision within the meaning of sub-s. 6(1) of the Act, the author of the letter, Mr Butler, did not have jurisdiction to make the decision or engage in the conduct (see s.5(1)(c) and s.6(1)(c)). Mr Butler is the officer in charge of the Staffing Unit of Telecom's General Personnel Services Branch. His duties involve, inter alia, the oversight of daily activities concerning staff movements and appointments. By sub-s. 33(1) of the Telecommunications Act the Commission is given power, by instrument under its seal to delegate to, inter alia, an officer or employee any of its powers under the Act. It was submitted that, in the absence of a specific delegation, Mr Butler did not have power to give the direction contained in the letter of 1 September. This submission overlooks the fact that the letter was sent for and on behalf of the Chief Manager of Telecom's Personnel and Industrial Relations Department. There is no suggestion that the Chief Manager did not approve and adopt the contents of the letter. In my opinion, it was within his competence to direct the applicant to resume duty. I do not think that sub-s.33(1) required that Telecom should execute a formal instrument of delegation to the Chief Manager before he could give a direction to an employee to resume duty. I think the powers referred to in sub-s. 33(1) are powers specifically referred to elsewhere in the Act e.g. s.11 and do not extend to action taken by an officer of Telecom in the discharge of duties within the scope of the authority attaching to his position. This argument therefore fails.
During the course of argument I was advised by counsel that, unless some relief is granted to the applicant, she will be left in the position where she will be deemed to have resigned from her employment by virtue of the provisions of s.65. This would be a manifestly unfair result, notwithstand ing her right to receive continuing payments of compensation until the Delegate varies or revokes his determination. If she were to seek other employment she would be obliged, if asked, to inform her prospective employer that she had lost her job with Telecom because she was absent from duty without its permission. This could well adversely affect her prospects of obtaining future employment.
Telecom is not, of course, obliged to retain her as an employee. If she is incapacitated for work, then it is open to Telecom to retire her under s.56. If she is not incapicitated for work, then it is open to it to request the Delegate to vary or revoke his determination. What has happened in the present case is that Telecom has by-passed both these avenues and has placed the applicant in a position where she has been treated as absent from duty without permission and, against her will, is deemed to have resigned. This result has been brought about by Telecom's inexplicable refusal to request the Delegate to vary or revoke his determination. I am left with the impression that Telecom does not think that, in a fair contest before the Delegate, it would succeed in persuading him that the applicant was fit for duty.
It is plain that no proceedings in this court can determine the real question at issue between the parties to this litigation. Telecom takes the view that the applicant is fit to resume her normal duties. Whether that view is justified or not cannot be determined by this court. Only the Delegate can determine that matter and then only if Telecom elects to raise the question before him on an application to vary or revoke his determination. Indeed, it was conceded that even if, as a result of the operation of sub-s. 65(1), the applicant should be deemed to have resigned, her entitlement to receive payments of compensation under the Delegate's determination would continue. Thus the present case has not determined the only real issue between the parties. That issue should be determined as soon as possible in the proper place.
For the above reasons, the applicant is entitled to an order of review. Telecom must pay the applicant's costs. The matter will stand over for the making of formal orders.

[1984] FCA 212

20 JULY 1984