Evans v Frawley
[2009] TASSC 92
•13 October 2009
[2009] TASSC 92
COURT: SUPREME COURT OF TASMANIA
CITATION: Evans v Frawley [2009] TASSC 92
PARTIES:EVANS, Kim, SECRETARY, DEPARTMENT OF PRIMARY INDUSTRIES AND WATER
v
FRAWLEY, Iain, ACTING STATE SERVICE COMMISSIONER
FILE NO/S: 538/2009
DELIVERED ON: 13 October 2009
DELIVERED AT: Hobart
HEARING DATE: 7 October 2009
JUDGMENT OF: Evans J
CATCHWORDS:
Public Service – Tenure of office – Dismissal, suspension and retirement – Other States and Territories – Tasmania – Power of State Service Commissioner to review conduct leading to a finding that an employee is unable to perform his or her duties.
State Service Act 2000 (Tas), s50(3)
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, Minister Administering the State Service Act 2000 v Leary and Ors [2009] TASSC 24, referred to.
Aust Dig Public Service [1063]
REPRESENTATION:
Counsel:
Applicant: S Gates
Respondent: Submitted to the order of the Court
Interested Party: A Wood
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Office of the Crown Solicitor
Interested Party: Chris Boland Lawyers
Judgment Number: [2009] TASSC 92
Number of paragraphs: 16
Serial No 92/2009`
File No 538/2009
KIM EVANS, SECRETARY, DEPARTMENT OF PRIMARY INDUSTRIES AND WATER v IAIN FRAWLEY, ACTING STATE SERVICE COMMISSIONER
REASONS FOR JUDGMENT EVANS J
13 October 2009
The issue for my determination is whether the State Service Commissioner has the power under the State Service Act 2000 ("the Act"), to review conduct leading to a finding as to an employee's inability to efficiently and effectively perform his or her duties, where that finding has resulted in a decision to terminate the employee's employment.
The following are relevant provisions of the Act:
"44 Termination of employment of permanent employees
(1) The Minister may at any time, by notice in writing, terminate the employment of a permanent employee.
…
(3) The following are the only grounds for termination:
(a)that the permanent employee is found under section 10 to have breached the Code of Conduct;
(b)that the Head of Agency has requested the Minister under section 47(11) to terminate the employment of the permanent employee;
(c)that the permanent employee is found under section 48 to be unable to efficiently and effectively perform the duties assigned to that employee;
(d) any other ground prescribed by the regulations.
(4) The Minister may, by instrument in writing, delegate to a Head of Agency, on such terms and conditions as the Minister may determine, the Minister's power of termination of permanent employees.
…
(6) The power of termination delegated to a Head of Agency when exercised by the Head of Agency is taken to have been exercised by the Minister.
…
48 Inability of employees to perform duties
(1) The Minister may take one or more of the following actions in relation to an employee who is found, under procedures established under subsection (3), to be unable to efficiently and effectively perform the duties assigned to the employee:
(a) direct appropriate counselling;
(b) direct appropriate retraining;
(c) reduce salary within the range of salary applicable to the employee;
(d) reassign duties;
(e) reduce classification;
(f) terminate employment in accordance with section 44 or 45.
…
(3) The Commissioner is to establish procedures for the investigation and determination of whether an employee is able to efficiently and effectively perform the duties assigned to the employee.
…
49 Interpretation of Division 4
In this Division –
"action" includes a refusal or failure to act;
"State Service action" means action by an officer or an employee but does not include an action to make an appointment under section 31(1).
50 Review of actions
(1) Subject to subsections (2) and (3), an employee is entitled to make application to the Commissioner for a review, in accordance with the Commissioner's Directions –
(a)of the selection of a person or an employee to perform duties other than duties to be performed for a specified term or for the duration of a specified task; or
(b)of any other State Service action that relates to his or her employment in the State Service.
(2) An employee is not entitled to make an application for a review under subsection (1)(a) if that employee was not an applicant for the duties to which the appointment or promotion relates.
(3) An employee is not entitled to make an application for a review under subsection (1)(b) in respect of the termination of the employee's employment."
These proceedings relate to Paul Boland, a permanent employee within the meaning of that term as used in the Act, who was the subject of an investigation pursuant to s48(3), which determined that he was not able to efficiently and effectively perform the duties assigned to him. The applicant is the Head of Agency of the department in which Mr Boland is employed. Pursuant to s44(4), the Minister delegated to the applicant the Minister's power to terminate the employment of permanent employees in that department. Consequent upon the determination that Mr Boland was unable to efficiently and effectively perform the duties assigned to him, the applicant, by letter dated 13 March 2009, wrote to Mr Boland advising that:
"Pursuant to s48(1)(f) … I hereby terminate your employment … in accordance with s44(3)(c) … effective on and from the close of business on 27 March 2009."
On 26 March 2009, Mr Boland obtained an order from this Court that until further order the State be restrained from terminating his employment. On the same day Mr Boland lodged an application pursuant to s50(1)(b) requesting a review by the State Service Commissioner:
" … of the conduct leading to the finding of an inability and the decision to terminate in consequence thereof.
Particulars
The [Department of Primary Industry and Water's] wrongful initiation and continuance of its investigation into, and determination of, my ability to efficiently and effectively perform my duties purportedly in compliance with Commissioner's Direction No 6 issued under the State Services Act 2000 (Tas) conducted between September 2007 and March 2009."
The applicant disputed the jurisdiction of a Commissioner to carry out the review applied for on the basis that s50(3) provides that an employee is not entitled to make an application for a review "in respect of the termination of the employee's employment". The respondent, who I will refer to as the Commissioner, heard the parties in relation to this dispute. Mr Wood, who appeared as counsel for Mr Boland on the hearing before the Commissioner, also appeared as his counsel in the proceedings before this Court. The argument advanced by Mr Wood to the Commissioner and this Court involved the following.
· The giving of written notice terminating an employee's employment at a future date is not a "termination of the employee's employment" within the meaning of that phrase in s50(3) until the date when the notice takes effect.
· By reason of the injunction granted in this Court on 26 March 2009, the notice terminating Mr Boland's employment has not come into effect, and his employment remains on foot.
· As Mr Boland continues to be employed, his application to the Commissioner for the review of the State Service action, which is the basis of the notice terminating his employment, is not prohibited by s50(3) because that application is not in respect of the termination of his employment.
At the core of the argument advanced on behalf of Mr Boland is the proposition that the prohibition contained in s50(3) only applies where the termination of an employee's employment has come into effect.
In reasons for decision dated 3 June 2009, the Commissioner concluded that as Mr Boland was a permanent employee when he lodged his application for a review, and as he continued to be a permanent employee, his application was not in respect of the termination of his employment and he, the Commissioner, had jurisdiction to review the conduct that resulted in the finding as to Mr Boland's inability. In so concluding, the Commissioner was influenced by documents to which he referred that accompanied the State Services Bill 2000 when it was passed through Parliament and the transcript of some of that which was said in the course of the second reading speech that introduced that Bill.
I have no hesitation in rejecting the proposition that is central to the argument advanced on behalf of Mr Boland, which is that s50(3) only applies when the termination of the employee's employment has been effected. Section 50(1) confines the entitlement to make an application to the Commissioner for the review of a State Service action to "an employee". A reference in the Act to employment, in relation to an employee, is a reference to employment in the State Service, s3(4). The Act applies to, and in relation to, officers and employees, s5(1). For relevant purposes, an employee means a permanent employee, s3(1). Plainly enough, once a person's employment has been terminated he or she is no longer an employee. That being so, a former employee has no entitlement to make an application to the Commissioner for the review of an action. Accordingly, s50(3) would serve no purpose if the words "in respect of the termination of the employee's employment" were construed as only applying where the termination of the employment had been effected. It is reasonable to conclude that if the legislature had intended s50 to confer an entitlement on former employees to make applications to the Commissioner for the review of actions, it would have said so, and it has not done so. Save for one instance, s54(2), the Act makes no reference to former employees.
The above situation is analogous to one which arose under the Industrial Relations Act 1984. When enacted, it provided that an "industrial matter" was one "pertaining to the relationship of employers and employees". In New Town Timber and Hardware Pty Ltd v Gurr (1995) 5 Tas R 71 at 97, Underwood J (as he then was) pointed out that this meant that a dispute which arose after the employer/employee relationship had been severed was not an industrial matter. The Industrial Relations Amendment Act 1997, amended the definition of an "industrial matter" by specifying that it included matters relating to the termination, re-instatement, compensation of, and severance pay due to "an employee or a former employee".
A further reason why the proposition that s50(3) only applies where the termination of the employee's employment has been effected is unsustainable, is that the Minister is the only person empowered by the Act to terminate the employment of a permanent employee, s44(1). Whilst the Minister may delegate that power pursuant to s44(4), where that delegated power is exercised, it "is taken to have been exercised by the Minister", s44(6). Pursuant to s50, the Commissioner is only empowered to review a State Service action, that is, an action "by an officer or an employee", s49. The Minister is not an officer or an employee. There is accordingly no reason to include a provision in the Act denying an employee an entitlement to apply for the review of the termination of the employee's employment, as the termination itself is not a State Service action so it could not be reviewed under s50. In result, s50(3) would be otiose if it did not prohibit the review of an action by an officer, or an employee, in respect of the termination of an employee's employment prior to that termination being effected. Unless there is good reason to do otherwise, courts should adopt a construction for a provision or phrase in a statute that gives it some effect, rather than a construction that gives it no effect. See Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 and Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12 – 13, and the other authorities cited in Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis 2006, par2.22.
The following is a summary of my reasons for concluding that s50(3) is intended to prohibit an application for the review of a State Service action in respect of the termination of an employee's employment prior to that termination coming into effect.
•The Minister is the only person who can terminate an employee's employment.
•The termination of an employee's employment is not a State Service action that can be reviewed by the Commissioner, as the Minister is not an officer or an employee.
•Only an employee is entitled to make an application to the Commissioner for the review of a State Service action. A former employee has no such entitlement.
•In result, in the absence of s50(3), the only State Service action in respect of the termination of an employee's employment that could be the subject of an application for a review by the Commissioner is one that preceded the termination of the employee's employment. This is a clear indication that s50(3) is intended to prohibit such an application. As on the face of the applicable provisions, s50(3) can readily be construed in a way that does not render it superfluous, it should be so construed, there being no good reason for adopting a construction that would render it otiose.
For the conduct that resulted in the finding that Mr Boland was unable to efficiently and effectively perform the duties assigned to him to be reviewable under s50(1), it must be a State Service action. As to whether a review of that action is prohibited by s50(3) because it is an action "in respect of" the termination of Mr Boland's employment, counsel cited a number of authorities on the meaning of that conjunctive phrase. They include: Minister Administering the State Service Act 2000 v Leary and Ors [2009] TASSC 24, pars10 and 11; Australian Competition and Consumer Commission v Original Mama's Pizza & Ribs Pty Ltd (2008) ATPR ¶42 – 236, pars109 – 118; Woodside Energy Ltd v Cmr of Taxation [2007] FCA 1961, par270; Nye v New South Wales and Ors (2002) 134 A Crim R 245, pars12 – 16; Commissioner of Taxation v Scully (2000) 101 CLR 148, pars36, 39 and 68; O'Grady v Northern Queensland Company Limited (1989) 169 CLR 356 at 364, 367, 374 and 376, Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45 at 47 - 48 and 51, and Workers' Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642 at 653 – 4.
For present purposes, what I take from these authorities is that the phrase "in respect of" calls for a connection between the two subject matters under consideration. The nature and closeness or remoteness of the connection that is sufficient to answer the statutory description depends upon its context. Authorities that have formulated what might be said to be a stringent test for the assessment of the necessary connection have looked for a material connection, or a direct connection. Section 44(3) provides that "the only grounds for [the] termination" of the employment of a permanent employee are the four matters there detailed. Insofar as one of those matters is an essential precondition to the termination of an employee's employment, it is plain that the matter that provides the basis for a particular termination has both a material and a direct connection with that termination. In Mr Boland's case, the pre-condition relied upon for the termination of his employment is that specified in s44(3)(c), a finding that he is unable to efficiently and effectively perform the duties assigned to him. It is beyond question that the conduct involved in the making of that finding is conduct in respect of the termination of Mr Boland's employment. Accordingly, s50(3) denies Mr Boland an entitlement to apply to the Commissioner to review that conduct.
A considerable amount of extrinsic material that relates to the passage of the State Service Bill through Parliament on its way to becoming the Act, was provided to the Commissioner and was put before me. Counsel for Mr Boland submitted that I should have regard to this material in construing the words "in respect of" as those words have authoritatively been described as being words that have a chameleon-like quality in that they commonly reflect the context in which they appear, Technical Products Pty Ltd v State Government Insurance Office (Qld) (supra) at 47. As I have not found those words difficult to apply in this case, have not found the meaning of s50(3) to be ambiguous or obscure, and do not consider that its ordinary meaning is manifestly absurd or unreasonable, there is no justification for me, consistent with the Acts Interpretation Act 1931, s8B, to consider the extrinsic material when interpretation s50(3). This is perhaps fortunate as, on my reading of the portions of the extrinsic material that were relied on, they would have been of little assistance. I refer to the two key portions relied upon by Counsel for Mr Boland. In the course of his second reading speech on the Bill the Minister said:
"The Minister is also responsible for taking action in relation to an employee who is unable to effectively and efficiently perform the duties assigned to that employee. Before the minister takes any action against a permanent employee, the matter must be investigated and determined by the Commissioner."
A similar statement appears in the Fact Sheet that accompanied the Bill. The statement to the effect that before the Minister can terminate an employee who is unable to effectively and efficiently perform the duties assigned to that employee, the matter must be investigated and determined by the Commissioner, is plainly erroneous. There is no provision in the Act to that effect. Section 48(3) does however require the Commissioner to establish procedures for the investigation and determination of whether an employee is able to efficiently and effectively perform the duties assigned to the employee. So, the statement made in the second reading speech by the Minister would have been correct had he said that the Commissioner was required to establish procedures for the investigation and determination of whether an employee was able to efficiently and effectively perform his or her duties, and that before the Minister could terminate an employee, that issue had to be investigated and determined in accordance with the procedures established by the Commissioner. At a later point on the occasion of the second reading of the Bill, the Minister said: "It should be noted that termination only occurs after there has been an independent investigation by the State Service Commissioner, and review by the Industrial Commission after termination." This statement repeats the error referrable to the involvement of the Commissioner and compounds it with the somewhat confusing assertion that the termination only occurs after "a review by the Industrial Commission after termination". Counsel for Mr Boland accepts that this further assertion is plainly wrong. There is no provision in the Act or any other statute that requires that the termination of an employee's employment under the Act must be reviewed by the Industrial Commission, either before or after it is effected. It is, however, open to a former employee to refer a dispute relating to the termination of his or her employment to the Tasmanian Industrial Commission.
I mention one final matter. Unusually for legislation in this State, a note was inserted in the Act immediately below s50(3). It reads: "Note. Disputes in relation to the decision to terminate employment are to be dealt with by the appropriate industrial tribunal". I have paid no regard to that note in construing s50(3). Section 3(2) provides that a note in the text of the Act does not form part of the Act.
Consistent with these reasons, I declare that the respondent does not have jurisdiction pursuant to the Act, s50, to entertain the application made by Mr Boland, dated 26 March 2009 for a review of the conduct leading to the finding of an inability on the part of Mr Boland which resulted in the decision to terminate his employment.
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