Evans v Frawley - [2009] TASSC 92

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] TASSC 92
Decision Date: 13 October 2009

CaseChat Overview and Summary

Evans, an employee of the Tasmanian Government, was dismissed by the State Service Commissioner after a disciplinary process. Frawley, another employee, sought a review of the Commissioner's decision under the relevant Tasmanian legislation. The dispute centred around the legality and fairness of the Commissioner's decision to dismiss Evans and the process by which the decision was made. The Supreme Court of Tasmania was tasked with determining the legal issues arising from the dismissal.

The primary legal issue before the court was whether the State Service Commissioner had the power to review the conduct that led to a finding that Evans was unable to perform his duties. A secondary issue was whether the Commissioner's decision to dismiss Evans was procedurally fair and whether the evidence supported such a decision. The court had to examine the statutory provisions and the principles of natural justice to determine the validity of the Commissioner's actions.

The court held that the State Service Commissioner did indeed have the authority to review the conduct leading to the conclusion that Evans was unable to perform his duties. The court found that the statutory provisions explicitly granted the Commissioner the power to review such conduct and that the Commissioner's decision was within the scope of that authority. Regarding the fairness of the process, the court concluded that the Commissioner had followed the necessary procedural steps and that the evidence presented was sufficient to justify the dismissal. The court found no procedural unfairness or legal errors in the Commissioner's decision.

The court dismissed Frawley's application, affirming the decision of the State Service Commissioner to dismiss Evans. The Commissioner's decision was upheld as both legally valid and procedurally sound.

Orders