Easling v Promotion and Grievance Appeals Tribunal

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
EASLING v PROMOTION AND GRIEVANCE APPEALS TRIBUNAL & ANOR
[2006] SASC 265
Judgment of The Honourable Justice White
18 August 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW
Judicial review of a decision of the Promotion and Grievance Appeals Tribunal affirming a decision of the Chief Executive, Department of Families and Communities, to suspend the plaintiff from duties without remuneration pursuant to s 59(1) of the Public Sector Management Act 1995 - plaintiff was suspended following criminal charges being laid against him - whether the Tribunal failed to hear and determine the appeal as an appeal de novo - whether the Tribunal erred in taking into account irrelevant considerations and failing to take into account relevant considerations - whether the Tribunal misconstrued the scope of its powers under s 64 in holding that s 64(4)(b) did not allow it to make the decision which it considered the Chief Executive should have made - Held: the Tribunal erred in failing to take into account relevant considerations, in particular, the presumption of the plaintiff's innocence in the criminal proceedings - application for judicial review upheld - decision of the Tribunal quashed - matter remitted to the Tribunal for reconsideration.
Public Sector Management Act 1995 (SA) s 57, s 58, s 59, s 60, s 61, s 64, Sch 3; Family and Community Services Act 1972 (SA) Pt 4 Div 2; Road Traffic Act 1961 (SA) s 45; Summary Offences Act 1953 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 134, referred to.
Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; Calman v Commissioner of Police (1999) 73 ALJR 1609; Aldrich v Ross (2001) 2 Qd R 235; R v His Honour Judge Rendit; Ex parte the Health Commission of Victoria (1982) VR 279; Hosemans v Commissioner of Police (2004) 138 IR 159; NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; R v The Clerk's Appeal Board; Ex parte District Council of West Torrens (1941) SASR 54; Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234; House v The King (1936) 55 CLR 499; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87, considered.

EASLING v PROMOTION AND GRIEVANCE APPEALS TRIBUNAL & ANOR
[2006] SASC 265
Judicial Review

WHITE J: The plaintiff seeks judicial review of a decision by the first respondent (“the Tribunal”) by which it affirmed a decision by the second defendant (“the Chief Executive”) that his suspension from duties pending the determination of criminal charges laid against him should be without remuneration.
The application raises issues about the nature of an appeal to the Tribunal, and the scope of its powers in the event that it upholds an appeal. There are also issues as to whether the Tribunal took into account irrelevant considerations, and whether it failed to have regard to relevant matters.
Background Circumstances
The plaintiff is a public sector employee. His employment is governed by the Public Sector Management Act 1995 (SA) (“PSM Act”). Until May 2004, he was employed in a senior managerial position in the Department of Families and Communities.
The first respondent is a Tribunal established by Schedule 3 to the PSM Act. Although it does not have any separate legal existence, no point was taken about that at the hearing. It took no part in the hearing. Although the Commissioner of Public Employment was entitled to be a party to the proceedings,[1] he indicated that he did not wish to be heard in the proceedings other than to support the submissions of the Chief Executive with respect to the construction of s 64(4) of the PSM Act.
[1] PSM Act Sch 3, cl 9 (2).
[TEXT SUPPRESSED]
[TEXT SUPPRESSED]
Since 31 July 2004, various actions have been taken affecting the plaintiff’s employment, culminating in a decision on 28 June 2005 by the Chief Executive that he be suspended from duty without remuneration. This was an exercise of power pursuant to s 59(1)(c) of the PSM Act.
The plaintiff appealed to the Tribunal against the decision that his suspension be without remuneration. He was not able to appeal against the suspension itself as s 59(9) of the PSM Act precludes an appeal against a decision to suspend. On 20 September 2005, the Tribunal gave its decision and affirmed the decision of the Chief Executive.
The plaintiff seeks orders quashing the decision of the Tribunal and remitting the matter to it for further consideration.
The Evidence
The evidence on the judicial review was wholly written. The plaintiff relied on his own affidavit sworn on 21 November 2005. The defendant relied on an affidavit of Peter John Bull sworn 21 December 2005. There was no application for either deponent to be cross-examined.
Suspension of a Public Sector Employee
Division 8 of Part 8 of the PSM Act contains provisions concerning the conduct and discipline of public sector employees. Section 57 prescribes the circumstances in which an employee may become liable to “disciplinary action”. Section 58 provides for the procedures to be adopted when the Chief Executive of an administrative unit suspects that an employee may be liable to disciplinary action. By sub-ss (5) and (10) of s 58, disciplinary action may comprise a reprimand, a reduction in salary or leave entitlements, suspension from duty, transfer to a position which is less well paid, or termination of services.
By s 59(1), if an employee is charged with an offence punishable by imprisonment, or given notice of a disciplinary inquiry under s 58, the Chief Executive of his/her administrative unit may (relevantly for present purposes) suspend the employee from duty in the Public Service, with or without remuneration, and with or without accumulation of rights in respect of recreation leave or long service leave. Section 59 provides:
(1)     If an employee—
(a)     is charged with an offence punishable by imprisonment; or
(b    is given notice of a disciplinary inquiry under this Division,
the Chief Executive of the administrative unit in which the employee is employed may—
(c)     suspend the employee from duty in the Public Service (with or without remuneration and, as the Chief Executive thinks fit, with or without accrual of rights in respect of recreation leave and long service leave); or
(d)     transfer the employee from his or her position to some other position in the administrative unit with the same remuneration level; or
(e)     recommend to the Commissioner that the employee be transferred to a position in another administrative unit with the same remuneration level.
(2)An employee who is charged with an offence punishable by imprisonment must, as soon as practicable, notify the Chief Executive of the administrative unit in which he or she is employed of that fact.
(3)The Commissioner may, on the recommendation of the Chief Executive under this section, transfer an employee to a position in another administrative unit with the same remuneration level.
4)A suspension or transfer imposed under this section is revocable at any time and must be revoked by the Chief Executive—
(a)     where the employee has been both charged with an offence (whether or not punishable by imprisonment) and given notice of a disciplinary inquiry under this Division relating to a matter to which the charge relates—if the employee is both acquitted of the charge and found not liable to disciplinary action on the inquiry; or
(b)     in any other case—if the employee is acquitted of the charge, or found not liable to disciplinary action on the inquiry, in relation to which the suspension or transfer was imposed.
(5)For the purposes of subsection (4), if a charge against an employee is dismissed, lapses or is withdrawn, the employee will be taken to have been acquitted of the charge.
(6)If a suspension imposed under this section is revoked, the employee is, subject to subsection (7), entitled to any remuneration and accrual of leave rights withheld in consequence of the suspension and any additional payment approved by the Commissioner.
(7)If a suspension imposed under this section is revoked on the employee being convicted of an offence punishable by imprisonment or being found liable to disciplinary action, the employee will not, unless the Chief Executive so determines, be entitled to any remuneration or accrual of leave rights withheld in consequence of the suspension.
(8)If a transfer imposed under this section is revoked, the employee must be transferred back to the employee's former position or, if that position is no longer available, to a position with the same remuneration level as the employee's former position.
(9)Subject to subsection (10), a decision to suspend or transfer an employee under this section is not subject to appeal or review under this Act or any other law.
(10)A decision that remuneration be withheld from a person suspended under this section may be the subject of an appeal under this Act.
It can be seen that when a suspension is imposed following an employee being charged with an offence, the suspension must be revoked if the employee is acquitted of the charge (s 59(4)), and in that event, the employee is entitled to any remuneration and accrual of leave rights withheld in consequence of the suspension (s 59(6)). In addition, the employee may be entitled to an additional payment approved by the Commissioner.
If the employee is found guilty of an offence punishable by imprisonment, the employee may either be transferred to another administrative unit, or have his/her employment terminated (s 60(1)). If a suspension is revoked on the employee being convicted of an offence punishable by imprisonment, the employee will not, unless the Chief Executive of the administrative unit involved determines otherwise, be entitled to any remuneration or accrual of leave rights withheld in consequence of the suspension (s 59(7)).
In short, a suspension with remuneration when an employee is charged with an offence results in the employee continuing to receive pay, but without providing any services in return. A suspension without remuneration means that the employee has no entitlement to pay during the period of the suspension, but will be entitled to the remuneration foregone if acquitted of the criminal charge or charges. In addition, the employee may be entitled to some additional payment.
An employee who is suspended has no right of appeal against the suspension itself (s 59(9)), but may appeal against a decision that the suspension be without remuneration (s 59(10)).
Grievance Appeals
An employee affected by disciplinary action (or foreshadowed disciplinary action) may appeal to a Disciplinary Appeals Tribunal (s 61(1)). On the other hand, so-called grievance appeals lie to the Promotions and Grievance Appeals Tribunal (s 64). Section 64 provides:
(1)An employee who is aggrieved by an administrative decision that directly affects the employee may appeal to the Promotion and Grievance Appeals Tribunal against the decision.
(2)Nothing in this section prevents a Chief Executive or the Commissioner from attempting to resolve by conciliation a matter the subject of an appeal under this section prior to the commencement of the hearing of the appeal.
(3)     The Tribunal may, if of the opinion—
(a)     that an appeal is frivolous or vexatious; or
(b)     that an appellant has not fully explored avenues for review or redress available within the administrative unit in which the appellant is employed,
decline to entertain the appeal.
(4)     The Tribunal may, on an appeal under this section—
(a)     affirm the decision subject to the appeal; or
(b)     give any directions that are, in the opinion of the Tribunal, necessary or desirable to redress the grievance.
(5)An employee does not have a right of appeal under this section against a decision—
(a)     that is appealable under some other provision of this Act; or
(b)     that is of a class excluded by regulation from appeal under this section.
It can be seen that the entitlement to appeal to the Tribunal arises when an employee is “aggrieved” by an “administrative decision” which directly affects the employee (s 64(1)).
The powers of the Tribunal after hearing an appeal were in issue in this case. It will be noted that s 64(4) empowers the Tribunal either to affirm the decision which is subject to the appeal or, alternatively, to give any directions which are, in the opinion of the Tribunal, necessary or desirable to redress the grievance.
Schedule 3 to the PSM Act provides that the Tribunal is to comprise three persons, a presiding officer, one person selected from a panel nominated by the Chief Executive of the administrative unit involved, and one person selected from a panel nominated by registered associations of employees.
The Tribunal is enjoined to act according to equity, good conscience and the substantial merits of the case (Sch 3, cl 8) and is required to give each party a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses, and to make submissions to the Tribunal (Sch 3, cl 9). It can compel persons to give evidence and to make an oath or affirmation for that purpose.
Critique of the Approach of the Tribunal
The plaintiff submits that the Tribunal failed to discharge its statutory function in two respects. First, it failed to hear and determine his appeal as an appeal de novo. Secondly, the plaintiff submits that the Tribunal discharged its task in an unduly restricted way as it believed (wrongly in his submission) that all it could do, in the event that it upheld his grievance, was to give a direction, either as to procedure or substance, to the Chief Executive, rather than directing that action favourable to him should be taken.
The plaintiff’s first submission faced the difficulty that the Tribunal had said expressly that its function was to hear the matter afresh. The Tribunal said:
There is no question that an appeal to the Tribunal is an appeal de novo.
However, the plaintiff submitted that despite the Tribunal saying this, an examination of its reasons showed that it had approached the matter by looking backwards to the decision of the Chief Executive and by considering whether or not it had been made in error. The submission, put slightly differently, was that the Tribunal had reviewed the correctness of the decision made by the Chief Executive, rather than considering afresh whether or not his suspension should be without remuneration.
An Appeal De Novo
At the hearing, both parties submitted that an appeal to the Tribunal is an appeal de novo.
The submissions of the parties in this respect, when considered both as a matter of general principle, and as a matter of statutory construction, are, in my opinion, correct. It is the latter which is the most important consideration, as the following passage from Re Coldham; Ex parte Brideson (No 2) indicates:
[I]t is well settled that, when the legislature gives a court the power to review or hear an “appeal” against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings… Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right.[2]
[2] (1990) 170 CLR 267 at 273-4. See also Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47 at [11]-[12]; (2000) 203 CLR 194 at 202-3.
In Calman v Commission of Police[3] the High Court held that a proceeding before the Tribunal established by the Government and Related Employees Appeal Tribunal Act (NSW) was “a fresh exercise of administrative power”.[4] Regard was had, amongst other things, to the power of the Tribunal to take evidence on oath, to compel the production of evidence, and to conduct a full hearing.[5]
[3] [1999] HCA 60; (1999) 73 ALJR 1609.
[4] Ibid at [30]; 1615.
[5] Ibid at [28]-[30]; 1615.
Decisions in other statutory and regulatory contexts also support the conclusion that the plaintiff’s appeal to the Tribunal was an appeal de novo. See for example, the decision of the Court of Appeal in Queensland in Aldrich v Ross;[6] the decision of the Full Court of Victoria in R v His Honour Judge Rendit; Ex parte the Health Commission of Victoria;[7] and the decision of the Full Bench of the Industrial Commission of New South Wales in Hosemans v Commissioner of Police.[8] See also the discussion by Hodgson JA in NSW Thoroughbred Racing Board v Waterhouse[9] in which it was held that an appeal to the Tribunal established under the Racing Appeals Tribunal Act 1983 (NSW) was not an appeal de novo.
[6] [2000] QCA 501 at [37]-[41]; (2001) 2 Qd R 235 at 254-7.
[7] (1982) VR 279.
[8] [2004] NSWIRComm 253 at [140]-[144]; (2004) 138 IR 159 at 201.
[9] [2003] NSWCA 55 at [91]-[105]; (2003) 56 NSWLR 691 at 715-8.
In this State, the decision in R v The Clerk’s Appeal Board; Ex parte District Council of West Torrens[10] supports the view that the present appeal is an appeal de novo. So also do the authorities cited by Associate Professor McCarry in Aspects of Public Sector Employment Law.[11]
[10] (1941) SASR 54.
[11] Law Book Company Limited, Sydney, 1988 at 159-60.
It is true that in Strange-Muir v Corrective Services Commission of New South Wales,[12] McHugh J said:
[I]n the absence of a contrary legislative indication, the conferring of a right of appeal to an administrative tribunal against an administrative decision is not a grant of jurisdiction to make a fresh or original decision. … [T]here is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made. The hearing is not de novo. This is so whether or not the tribunal is empowered to hear additional evidence.[13]
However, in the light of the authorities mentioned above, I do not consider that that approach should be applied in this case.
[12] (1986) 5 NSWLR 234.
[13] Ibid at 250.
The features of Sch 3, to which reference has already been made, suggest that the Tribunal is to make a fresh administrative decision. The requirement that the Tribunal is to act according to equity and good conscience and “the substantial merits of the case” is an additional indication that a fresh and independent consideration of the subject matter of the grievance is contemplated.
What this means is that the Tribunal was not to proceed as though reviewing a discretionary decision and applying House v The King[14] principles. It was required to consider the matter afresh having regard to the materials and submissions put before it. It was not to approach the grievance by enquiring whether the Chief Executive had made an error, but rather by considering, in the circumstances relating to the plaintiff, whether the suspension which had been ordered should be with, or without, remuneration.
[14] (1936) 55 CLR 499.
The Approach of the Tribunal

I turn to the submission that the Tribunal did not hear the matter de novo, despite its direction to itself that it should do so.
The appeal to the Tribunal was initiated by a notice of grievance appeal lodged by the plaintiff on 12 July 2005. The plaintiff made use of a pro forma document apparently provided to him by the Tribunal itself. He listed 14 grounds of dissatisfaction with the decision of the Chief Executive. They were:
1 No reasons for the decision were provided;
2The decision is entirely contrary to principles of natural justice as espoused in various OCPE guidelines;
3The decision was not made by an independent, unbiased person as per OCPE guidelines and principles of natural justice;
4The decision is entirely contrary to the UN’s Universal Declaration on Human Rights;
5The decision appears to be wrongfully premised on a principle of “guilty until proven innocent”;
6DFC’s ongoing refusal to provide any details about whether the investigation it initiated on 11 May 2004 (which has ultimately led to erroneous criminal charges) was part of a disciplinary process relating to my role as a public servant or if it related to my role as a foster carer even though they had just formally completed one such lengthy investigation. In other words, is the Department’s response against me as a deregistered foster carer or is it a disciplinary measure relating to my performance as an employee? If I was provided with this information I could initiate appropriate legal remedies given the DFC investigation process does not appear to have followed legislative due process in either case.
7The decision leaves me with substantial accruing debts and no income source (not even eligible for Centrelink benefits or Health Care Card concessions);
8The decision is contrary to an employer’s duty of care to all of its employees;
9The decision is punitive despite apparently being for a non-disciplinary measure and before a Court outcome is known. Legal proceedings are so slow that even after 11 months I have yet to “answer the charges” to ascertain whether a committal hearing is required. Only on Friday 8 July 2005 has DFC been able to supply information subpoenaed from them in November 2004.
10The decision brings the Public Service into disrepute;
11Timeliness – DFC has only just made this decision even though I have been without income since February.
12If supported by the Tribunal, the decision sets an unhealthy precedent in condoning this style of corporate behaviour and the associated jettisoning of natural justice and workers’ rights at a time of forecast major industrial reform;
13The DFC offer to now consider favourably any application to work outside of the Public Service is somewhat belated after waiting 11 months. It is not a legitimate excuse for suspending me without pay.
14The decision is considered a way by DFC to prevent me from accessing the necessary legal assistance to defend myself.
These grounds of grievance contained a mix of complaints. Some complained of a want of procedural fairness and bias (grounds 2 and 3); some complained of a lack of reasons (grounds 1 and 6); some complained of the effect of the denial of remuneration on the plaintiff’s personal circumstances (grounds 7 and 13); and some arguably raised complaints of bad faith by the Chief Executive (ground 14). What can be said is that the plaintiff’s complaints fell, generally, into two broad categories: first a complaint about procedural fairness, and secondly, a complaint relating to the merits of the decision.
The Allegation of Bias
The plaintiff relied on two principal features of the Tribunal’s decision for his submission that the Tribunal had failed to consider the matter afresh. Mr Heywood-Smith QC, who appeared for the plaintiff, directed attention in the first instance to the consideration by the Tribunal of whether the decision of the Chief Executive was affected by bias. The word “bias” was used in the sense in which it is used in the principles relating to procedural fairness in administrative law. The plaintiff referred particularly to a finding by the Tribunal accepting the “veracity” of the submissions of the Chief Executive with respect to the allegation of bias. The plaintiff’s submission was that this was an issue which need not have concerned the Tribunal at all. If the Tribunal had accepted that it was to consider the matter afresh, then the question of bias, or otherwise, by the Chief Executive in her decision-making was an irrelevant consideration. The fact that the Tribunal had thought it necessary to address the issue indicated, the plaintiff submitted, that the Tribunal had, despite the direction to itself that it was to consider the matter de novo, approached the matter by considering whether there was error affecting the Chief Executive’s decision.
It is true that some 16 of the 41 paragraphs comprising the Tribunal’s decision concern the alleged bias of the Chief Executive. The Tribunal referred extensively to the plaintiff’s submissions, to relevant legal principle, to the submissions of the Chief Executive, and concluded that her decision was not affected by bias. It is not necessary to detail the Tribunal’s reasoning with any particularity. The reason for that is that the plaintiff does not complain of the reasoning or conclusion of the Tribunal with respect to the alleged bias, but of the fact that the Tribunal thought it necessary to address the issue at all.
It is plain that the Tribunal addressed the issue of alleged bias because it was a significant part of the plaintiff’s submissions on the appeal to it. It was raised expressly as the plaintiff’s third ground of complaint, and underpinned the second, 13^th and 14^th grounds. In his written submissions to the Tribunal, the plaintiff identified eight separate bases for his suspicion of bias. Unsurprisingly, the allegations of bias were also addressed by the Chief Executive in her submissions to the Tribunal.
These circumstances make the plaintiff’s present contentions rather incongruous. His submission is, in effect, that the Tribunal need not, and should not, have addressed an important aspect of his grievance. Mr Heywood-Smith QC submitted that the Tribunal should have informed the plaintiff that, as it was to hear the matter afresh, it was not necessary for it to hear and determine his allegations of bias. The fact that it had not done so indicated, it was said, the misapprehension by the Tribunal of its function.
This submission cannot be accepted. The fact of the matter is that the plaintiff himself had made the alleged bias of the Chief Executive a significant aspect of his complaint about her decision. Part of his grievance was that a decision affecting him in a very direct way had been made by a person lacking the requisite degree of impartiality. It was part of the subject matter of the grievance which the Tribunal had to address in “hearing and determining”[15] the appeal. The Tribunal was entitled to think that it was bound, in the discharge of its statutory function, to address the issue. Further, and in any event, it was desirable that it do so. A finding that the Chief Executive’s decision was a product of bias, or was tainted by bias, might have made it easier to conclude that the suspension should be with remuneration. It would also be relevant to the form of the order which the Tribunal might make in the event that it upheld the appeal. There would be little point, for example, in giving a direction that the matter be reconsidered by a decision-maker whom the Tribunal considered to be biased. Further still, the plaintiff, as a senior public servant, had made a serious allegation against a person occupying a chief executive position within the public service. The Tribunal would have been well justified in concluding that that serious allegation should be addressed and determined.
[15] PSM Act Sch 3, cl 4(1).
Accordingly, I reject the submission that the Tribunal’s consideration of the plaintiff’s complaint of bias indicates a failure on the Tribunal’s part to consider the matter afresh.
Matters Considered by the Chief Executive
The second feature of the Tribunal’s decision which, in the plaintiff’s submission, indicated a failure by it to carry out its required task was its identification of the matters which the Chief Executive had taken into account in her decision. This was unnecessary in the plaintiff’s submission. The Tribunal should, it was submitted, have been considering the matters put to it as to whether the suspension should be with, or without, remuneration, rather than being concerned at all by the matters which had been considered by the Chief Executive. The Tribunal allowed itself to be distracted by a consideration of the adequacy, or otherwise, of the factors considered by the Chief Executive in reaching her decision. It thereby failed, it was submitted, to consider the matter afresh and in particular to consider the equity, good conscience and substantial merits of the case.
There are features of the Tribunal’s reasons which provide a reasonable basis for the plaintiff’s submission in this respect.
Having rejected the plaintiff’s submissions concerning a denial of procedural fairness and bias, the Tribunal commenced its consideration of the substantive merits of the plaintiff’s appeal by saying:
These findings did not necessarily mean that the decision to withhold remuneration from the appellant was a reasonable or appropriate one in all the circumstances.
Although possibly equivocal, this sentence may indicate that the Tribunal saw its task as being to consider whether the decision of the Chief Executive was reasonable.
After noting that it was not concerned with the decision to suspend itself, but rather with the decision that the suspension should be without remuneration, and that the submissions of the parties had not always observed the distinction between those two matters, the Tribunal then summarised the factors said to have been taken into account by the Chief Executive in reaching her decision. Paragraph 30 of the Tribunal’s decision is as follows:
The DFC/Chief Executive’s written submissions outlined, inter alia, factors said to have been taken into account by the Chief Executive when she exercised her discretion to suspend the appellant without remuneration. However, as mentioned there was little separation therein of those which went to the matter of suspension and those that underpinned the decision to withhold remuneration. Briefly stated the full range of the reasons given was as follows:
(a)the number and serious nature of the offences with which the appellant had been charged;
(b)the relevance of the offences to the appellant’s role in the DFC and in particular the nature of the programs for which he was responsible and the groups and other government agencies with which he had contact or was likely to have contact;
(c)the overall risk to the reputation of the DFC, the Public Service in general and the Government and loss of confidence in same from the community and other employees if the Chief Executive failed to act;
(d)the possible loss of faith in the Chief Executive if she had not acted as she did;
(e)the substance of the appellant’s submissions to the Chief Executive, including the financial hardship and loss of psychological wellbeing he would likely experience if suspended without remuneration; and
(f)that if the appellant were to be convicted of the charges and/or found liable to disciplinary action in relation to the allegations in question then it was highly likely that his employment with the Public Service would be terminated.
The submission also indicated that in applying her discretion the Chief Executive had regard to, inter alia, the circular on conduct and discipline issued by the Commissioner for Public Employment, her responsibilities under Part 2 Division 1 “Aims and Standards” of the Act and legislation that significantly impacts on DFC. (Emphasis added.)
Later, the Tribunal referred to other matters in the submission of the Chief Executive indicating matters which had been taken into account by her. These included the plaintiff’s employment record, the financial hardship to the plaintiff which suspension without remuneration would entail, as well as the impact on the plaintiff’s psychological wellbeing. The plaintiff emphasised that in these passages the Tribunal was directing its attention to the matters which had been considered by the Chief Executive.
The Tribunal then summarised the plaintiff’s response and critique of the Chief Executive’s reasons. That critique included a submission that the Chief Executive had failed to consider various issues, including his employment record, the financial hardship that suspension without remuneration would entail, and the impact on his psychological wellbeing. In this regard, the Tribunal referred to correspondence from the Chief Executive and to the oral submissions made on behalf of the Chief Executive to the effect that those matters had been considered by her, and concluded that “there was nothing before the Tribunal to indicate that this was not the case”. In my opinion, this passage of the Tribunal’s reasons also supports the submission of the plaintiff that the Tribunal was reviewing the decision reached by the Chief Executive by reference to the matters considered by her, rather than considering the matter afresh.
The Tribunal then referred to the administrative guidelines available to a chief executive considering the question of whether a suspension be with, or without remuneration. It noted a guideline which indicated:
Suspension without remuneration should normally only occur in circumstances where the penalty likely to be invoked if the employee is found liable to disciplinary action is termination.
The Tribunal then identified four matters which it considered to be the primary factors to be considered on the question of whether the suspension should be without remuneration. These were:
·the seriousness of the alleged offence(s);
·the personal hardship arising from the loss of remuneration;
·the employee’s employment record; and
·the likelihood of the employee being dismissed from the Public Service if found guilty of the alleged offence(s).
It can be seen that the Tribunal considered the matters listed in subparagraphs (a), (e) and (f) in paragraph 30 of the Tribunal’s reasons and the plaintiff’s employment record to be the relevant considerations. It said that it regarded the remaining matters as more relevant to the question of suspension itself. The plaintiff did not contend that the matters identified by the Tribunal were inappropriate, although, as will be seen later, he did submit that there were additional relevant matters. What is important for present purposes is that the Tribunal expressed itself in terms of what was relevant for the Chief Executive to have considered, rather than what was relevant for it to consider. This is evident in the following passages:
In light of all the afore-going, the Tribunal considered that the reasons listed at 30(a) to (d) inclusive were matters appropriately directed to the decision to suspend the employee and with the exception of (a) were not matters necessarily relevant to the decision to withhold remuneration. It believed that the number and seriousness of the charges were a legitimate consideration in both regards, particularly as they relate to public perception and confidence…
Finally, consistent with the information paper “Managing Conduct and Discipline” but contrary to the view expressed by the appellant on the subject, the Tribunal viewed the potential for termination if found guilty of charges as a matter the Chief Executive was entitled to take into account in her deliberations. (Emphasis added.)
The reference to the matters which the Chief Executive was entitled to take into account rather suggests that the Tribunal was looking back to the Chief Executive’s decision, rather than making its own. Similarly, the use of the past tense by the Tribunal in identifying the relevant matters to be considered also suggests that the Tribunal was looking backwards to the Chief Executive’s decision. The Tribunal said that the four primary matters to be considered “were” the matters identified above in paragraph 49 rather than saying that they “are” the matters to be considered.
The Tribunal engaged in a discussion of the four matters in terms which are consistent with it considering the matter afresh as well as being consistent with a review of the Chief Executive’s reasons. The Tribunal then concluded:
It seemed to the Tribunal that of the four factors described … above two tended to favour the withholding the appellant’s remuneration while he was suspended, while the other two suggested otherwise. While sympathetic to the appellant’s present predicament, the Tribunal, having carefully weighed up these competing factors, was not persuaded to give directions to the Chief Executive pursuant to s 64(4)(b) of the Act that would require her to reconsider her decision to withhold remuneration from the appellant.
The manner of expression of the Tribunal in the passage just quoted is a little curious. The Tribunal appears to have left out an intermediate step, eg, a finding that the plaintiff’s grievance should not be upheld, or has not been made out, and hence that it was inappropriate for it to give a direction to the Chief Executive pursuant to s 64(4)(b). Mr Jacobi, who appeared for the defendant, acknowledged that the expression used by the Tribunal was a peculiar way of expressing a conclusion to the effect that the Tribunal was not satisfied that the suspension should be with remuneration.
In addition to these aspects of the Tribunal’s reasons, the plaintiff drew attention to two questions which the Tribunal asked of the Chief Executive in the course of its hearing on 22 August 2005, and to which the Chief Executive had later given written answers. The two questions were:
1.What part did the notion of presumption of innocence play in the decision by the Chief Executive to suspend without remuneration?
2.What part did the knowledge of further allegations/charges have on the decision to suspend without remuneration?
The fact that the Tribunal thought it necessary to ask these questions was an indication, the plaintiff submitted, that the Tribunal was looking backwards to a review of the Chief Executive’s decision rather than considering the merits of the matter afresh.
As I noted earlier, I consider that there are indications in the Tribunal’s reasons, and in the questions which it asked, which provide a reasonable basis for the plaintiff’s submission in this respect. My view about the point has wavered, but in the end, despite these matters, I have decided that the Tribunal did discharge its function of considering the matter de novo. The considerations which have led me to that conclusion are these. First, the Tribunal did identify for itself the matters which it regarded as pertinent. It disregarded those relied on by the Chief Executive which it considered to be irrelevant.
Secondly, having identified the four primary considerations, it then considered them itself and assessed them. It formed the view that two favoured the suspension being without remuneration and two pointed in the opposite direction. It engaged in its own “weighing” process of those considerations in a manner which suggests that it was forming its own judgment.
Thirdly, I do not consider that it is readily to be concluded that the Tribunal, having directed itself that it was considering the matter de novo, did not do so.
Fourthly, the manner in which the Tribunal expressed itself in the passages upon which the plaintiff relies for his present submission may be attributable to the way in which the appeal was presented to the Tribunal. It does not appear as though the Tribunal was presented with any “new” evidentiary material. The plaintiff’s grievance was with the Chief Executive’s decision. To some extent therefore it was natural for that decision, and the reasons for it, to be the focus of the appeal. It was, in any event, natural for the Tribunal to consider the matters which the Chief Executive had identified as being relevant to her own consideration. This may explain why the Tribunal, in identifying relevant matters for itself, recorded matters in the past tense.

In short, although I consider that there was a reasonable basis for the plaintiff’s submissions in this respect, I reject this ground of the application for judicial review.
Irrelevant Matters
Mr Heywood-Smith QC submitted that the Tribunal had erred in taking into account two matters which, in his submission, were irrelevant. The first of these was the prospect that further charges may be laid against the plaintiff. Mr Heywood-Smith QC was unable to point to any passage in the Tribunal’s reasons indicating that the prospect of further charges had been taken into account by it.
[TEXT SUPPRESSED]
Next, Mr Heywood-Smith QC submitted that the Tribunal had erred by having regard to the financial detriment which the State would suffer by paying the plaintiff his remuneration during a period when it was not, by reason of the suspension, receiving his services in return. Mr Heywood-Smith QC submitted that this “hardship to the State” was an irrelevant factor.
Again, I am unable to accept this submission. Mr Heywood-Smith QC seemed to accept that if the plaintiff was found guilty of the charges, termination of his services was inevitable. This would mean that the State would have paid him his salary for a long period without receiving any services in return. There is a public interest in public monies being expended prudently. The prospect of there being a substantial expenditure by the State for no return could not be said to be an irrelevant consideration for the Tribunal.
Of course, having regard to the respective financial positions of the plaintiff and the State, the hardship to the plaintiff if denied remuneration during the suspension was likely to be greater than the hardship to the State in the converse situation, but that is a matter of weight, ie, for the Tribunal to have assessed. It cannot be said however that the financial detriment to the State was a wholly irrelevant consideration. Accordingly I reject this ground of the application for judicial review also.
Failure to have Regard to Relevant Considerations
Mr Heywood-Smith QC submitted that the Tribunal had failed to have regard to matters which were relevant to its decision. As finally presented, the matters to which the Tribunal should have had regard, but did not, were said to be the presumption of the plaintiff’s innocence of the charges, the circumstances of the charges (including, as the plaintiff submitted, their apparent weakness), and the long period of time which will elapse before the plaintiff comes to trial.
There is no substance in the third complaint. The Tribunal referred expressly to the time which was likely to elapse before the charges were heard.
[TEXT SUPPRESSED]
[TEXT SUPPRESSED]
The Tribunal did not regard the Kaufman report, or the other material, as relevant to its consideration. It said:
While the overseas reports and other material made disturbing reading, and may well have relevance to the appellant’s legal challenge against the criminal charges he is currently facing, the Tribunal did not view them as germane to the matter on which it had to decide in this appeal.
The Tribunal also considered that it was not required to have regard to the presumption of innocence. This issue arose in the Tribunal’s consideration of the plaintiff’s allegations of bias against the Chief Executive, as the plaintiff had submitted that the Chief Executive’s disregard of the presumption of innocence was a strong indicator of the bias against him. In this context, the Tribunal said:
18.The Tribunal had no argument with the appellant concerning the significance of the said principle in the context of the criminal justice system. However, it did not share his view as to its relevance to s 59 of the Act. Having regard to the wording and structure of this section, the Tribunal did not believe that a chief executive was required to make any judgment as to the innocence or otherwise of a person charged with an offence punishable by imprisonment [59(1)(a)], or who is given notice of a disciplinary inquiry under s 58 of Division 8 [59(1)(b)], when exercising his or her discretion under s 59(1)(c). It seemed to the Tribunal that if the presumption of innocence was applicable in these circumstances it would more likely than not render the options under s 59(1)(c) useless or of no value.
19.The Tribunal saw the provisions of sections 59(4), (5) and (6) as lending support to the view that it was not necessary or appropriate for a chief executive exercising his/her discretion under s 59(1)(c) to concern themselves with the innocence or guilt of an employee falling within the scope of s 59(1)(a) or (b). In this regard, the Tribunal agreed with the appellant’s statement, as made in at least one of his submissions, that adjudication of the charges facing him was rightly a matter for a properly constituted court wherein the presumption of innocence is paramount, and not for the Chief Executive to determine.
20.In all the circumstances, the Tribunal determined that the presumption of innocence was not a relevant consideration for the Chief Executive when she exercised her discretion pursuant to s 59(1)(c), consequent upon the appellant satisfying the requirement of s 59(1)(a), to withhold remuneration from him in concert with her decision to suspend him from duty.
Given these reasons with respect to the Chief Executive’s decision-making, and the fact that the Tribunal did not identify the presumption of innocence and the circumstances relating to the charges as relevant matters to be considered by it, it is appropriate to conclude that these were not matters considered by the Tribunal.
Should the Tribunal have considered these matters? I mention one matter so that it can be put to one side. The submissions of the plaintiff before the Tribunal were to the effect that if the presumption of innocence was applied, it would follow that his suspension should be with remuneration. Mr Heywood‑Smith QC did not advance this submission before me. It is clearly not sustainable. The presumption of innocence applies in all criminal trials and yet s 59(1)(c) contemplates that suspension following the laying of a criminal charge may be with, or without, remuneration. That is to say, the PSM Act itself contemplates that a suspension may be without remuneration despite the employee having the advantage of the presumption of innocence in the criminal trial. The presumption of innocence cannot therefore be a decisive consideration.
Mr Jacobi, for the defendant, submitted that the Tribunal was not required to have regard to the presumption of innocence at all, nor was it required to make any assessment of the prospects of the charges against the plaintiff being proved. His submission was that the fact of a criminal charge provides the foundation for the exercise of powers under s 59, but that the strength (or otherwise) of the prosecution case was an immaterial consideration. Mr Jacobi’s submission rested essentially on practical matters. It would not be possible, he submitted, for the administrative decision-maker to determine the matters which would be decided ultimately by a criminal court. The administrative decision-maker would not have the material available to the police or prosecuting authorities. Further, the decision-maker should not intrude into the province of the criminal courts. Finally, the administrative decision-maker should be sensitive to the employee’s right to silence in relation to the criminal proceedings and should not, by its inquiry or examination, compromise that right.
These are important considerations, but they do not, in my opinion, warrant the conclusion that the presumption of innocence and the circumstances of the offending are irrelevant considerations in every case in which suspension is imposed. In the first place, one would ordinarily think that the nature of the charges which an employee faces would be a relevant consideration. By reason of s 59(1)(c), suspension is a possible outcome whenever an employee is charged with an offence punishable by imprisonment. The offences which are punishable by imprisonment vary considerably in moral culpability. The range includes murder, driving without due care,[16] offensive language,[17] and shop-lifting (theft).[18] It would be relevant for the decision-maker to have regard to the particular charge facing the employee if only because it is likely to bear on the question of whether the employee’s services will probably be terminated if found guilty.
[16]       Road Traffic Act1961 (SA) s 45(2).
[17]       Summary Offences Act 1953 (SA) s 7(1).
[18]       Criminal Law Consolidation Act 1935 (SA) s 134.
Secondly, if Mr Jacobi’s submission be correct, it would mean that the decision-maker could not have regard, where applicable, to the consideration that the employee had foreshadowed that a plea of guilty would be entered, or to the consideration that the employee had already pleaded guilty but had not yet been sentenced, or to the consideration that a witness who was critical to the success of the prosecution case had died, or become invalid, or had revised substantially the evidence which he/she would give. Each of those matters would bear on the administrative decision-maker’s assessment of the time which it would take the criminal matters to be disposed of, and of whether the resolution of the charges was likely to be followed by a termination of the employment. The presumption of innocence would be particularly relevant to the second and third of those considerations.
In my opinion, these considerations indicate that Mr Jacobi’s submissions stated the position too absolutely and should not be accepted.
I agree that there are likely to be cases, perhaps the majority of cases, in which it will in practice be difficult, if not impossible, for the administrative decision-maker to come to any conclusion as to the probable outcome of a prosecution. Much will depend upon the material which the employee chooses to put before the decision-maker. Usually, it will be the employee, rather than the decision-maker, who has access to the relevant material, and who can be expected to place that material before the decision-maker. It would not be appropriate for the employees to be selective in that respect. But the fact that there may be difficulties in some cases should not lead to the conclusion that the nature and circumstances of the charges, and the presumption of innocence, may never be relevant considerations in a particular case.
The conclusion of the Tribunal that these matters were not relevant in this case does not appear to have rested on a consideration of the particular material presented by the plaintiff, nor upon the submissions pertinent to his own case which were made by the plaintiff. The reasoning of the Tribunal in the passages quoted above indicates, in my opinion, that the Tribunal was reasoning from what it saw as matters of principle. In my opinion it was mistaken.
Given the limited nature of material concerning the circumstances of the charges which the plaintiff chose to place before the Tribunal, I have considered whether, despite my conclusion on this topic, the decision of the Tribunal should not be set aside. As was said by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited:
[N]ot every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision…[19]
However, I do not consider that the failure to have regard to the presumption of innocence should be regarded as insignificant. Regard should, in any event, be had to the limited role of the court in judicial review. It is not the function of the court to substitute its own decision for that of the decision-maker.[20] It is instead a matter for the Tribunal having regard to all the materials which are put before it.
[19] (1986) 162 CLR 24 at 40.
[20] Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J.
Accordingly, I uphold the application for judicial review on this aspect of the matter.
The Tribunal’s Power to give Directions
As previously noted, s 64 of the PSM Act provides that the Tribunal may either affirm the decision subject to the appeal or “give any directions that are, in the opinion of the Tribunal, necessary or desirable to address the grievance”.
The Tribunal took the view that the terms of s 64(4)(b) meant that it could not make the decision which it considered the decision-maker should have made. That is, the Tribunal considered that it could not give a direction that the plaintiff’s suspension should be with remuneration. All it could do, the Tribunal considered, was to give directions requiring the reconsideration of the decision giving rise to the grievance.
Mr Heywood-Smith QC submitted that this was a self-imposed restriction by the Tribunal and not one required by the PSM Act. Strictly speaking, it is not necessary to decide this question. I agree with the submission of Mr Jacobi that the Tribunal’s views about its powers in the event that it upheld the grievance did not affect its consideration of the grievance itself. However, because the matter is to be remitted to the Tribunal, it may be of assistance to the Tribunal to have my present views on the point.
In supporting the view taken by the Tribunal, Mr Jacobi contrasted s 64(4) with s 61(2) of the PSM Act which, in relation to the Disciplinary Appeals Tribunal, provides:
(2)     The Tribunal may, on an appeal under this section—
(a)     affirm the decision subject to the appeal;
(b)     set aside the decision subject to the appeal and substitute a decision that should have been made in the first instance;
(c)     make any consequential or ancillary orders.
Mr Jacobi submitted that the absence of a power in s 64(4) to set aside the original decision and to substitute a decision in its place, when such a power had been bestowed in s 61, was significant. He also submitted that there are likely to be policy considerations touching upon the subject matter of a grievance of which the Tribunal could not be fully appraised, which made it inappropriate for the Tribunal to be able to substitute its own decision.
I regard Mr Jacobi’s first point as more persuasive than the second, but doubt that it settles the matter in the defendant’s favour. The different language in s 61(2) and s 64(4) may be explicable by reference to the different statutory history of those two provisions. Furthermore, Mr Jacobi’s submission, does not, in my opinion, allow full effect to be given to the words of s 64(4)(b). The Tribunal may give any directions necessary or desirable to redress the grievance. Mr Jacobi would hold that despite those apparently general words, the Tribunal cannot give any direction because it cannot direct that the action which the Tribunal thinks should be taken to redress the grievance be taken. Furthermore, a direction that the matter be remitted to the decision-maker may not , in many cases, “redress” the grievance. The notion of redressing a grievance involves the setting right of a grievance. Section 64(4)(b) contemplates the Tribunal making a direction which will set right the grievance. In the present case, the plaintiff’s primary grievance was that his suspension was ordered to be without remuneration. A direction that the Chief Executive reconsider the matter would not redress that grievance. On the other hand, an order that the suspension be with remuneration would have that effect.
Finally, the submission of Mr Jacobi is inconsistent, in my opinion, with the proceedings before the Tribunal being a de novo hearing. It seems incongruous that the Tribunal, although required to hear the matter afresh, could not give effect to its own decision and could do no more than require the original decision-maker to reconsider the matter.
There may of course be many circumstances in which it would be appropriate for the Tribunal to direct the original decision-maker to reconsider the matter. There may well be issues of policy, or practice, or implementation which are better addressed by the original decision-maker. But the existence of matters of that kind should not lead to the conclusion that the Tribunal may never “redress” the grievance by its own direction after hearing the appeal.
Accordingly, I consider that there is merit in the submission of Mr Heywood-Smith QC that the Tribunal did misdirect itself by holding that all it could do in the event that it upheld the appeal was to give directions requiring the reconsideration of the original decision. However, as already indicated, it is not necessary for me to decide the point finally, and I refrain from doing so.
Summary
For the reasons outlined above, I dismiss the application for judicial review insofar as it rests on the claim that the Tribunal misdirected itself by not considering the plaintiff’s claim afresh and on the claim that the Tribunal had regard to irrelevant matters.
I uphold the application for judicial review on the ground that the Tribunal failed to have regard to relevant matters, namely, the circumstances of the charges and the presumption of innocence.
The order of the Court is:
1. the application for judicial review is allowed;
2.the decision of the Promotion and Grievance Appeals Tribunal dated 20 September 2005 is quashed;
3.the matter is remitted to the Promotion and Grievance Appeals Tribunal for reconsideration. The Tribunal should be reconstituted for this purpose.
I will hear the parties as to costs.

[2006] SASC 265

18 August 2006

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Grounds of Review

Presumption of Innocence

Failure to Consider Relevant Factors