Fay Louise Sconce v Commissioner of Corrective Services & Ors; Evelyn Lloyd v Commissioner of Corrective Services & Ors

[2008] NSWCA 94

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Fay Louise Sconce v Commissioner of Corrective Services & Ors; Evelyn Lloyd v Commissioner of Corrective Services & Ors [2008] NSWCA 94

FILE NUMBER(S):
40692/07
40693/07

HEARING DATE(S):
7 May 2008

JUDGMENT DATE:
15 May 2008

PARTIES:
Fay Louise Sconce (Appellant)
Commissioner of Corrective Serivces & Ors (Respondents)
Evelyn Lloyd (Appellant)
Commissioner of Corrective Services & Ors (Respondents)

JUDGMENT OF:
McColl JA Handley AJA Gzell J   

LOWER COURT JURISDICTION:
Government and Related Employees Tribunal

LOWER COURT FILE NUMBER(S):
GREAT NO PSP/117, 120, 123, 127-133 & 288-292/07
GREAT NO  PSP/188/07

LOWER COURT JUDICIAL OFFICER:
Senior Chairperson Lynch

LOWER COURT DATE OF DECISION:
19 September 2007

COUNSEL:
M Gibian (Appellants)
S I J Prince (Respondents)

SOLICITORS:
W G McNally Jones Staff (Appellants)
Commissioner of Corrective Services (Respondents)

CATCHWORDS:
PUBLIC SERVICE - Promotion appeals to GREAT - Applicants required to nominate location of positions applied for - Positions not identified in advertisement - Applicants entitled to appeal from promotions to locations not applied for

LEGISLATION CITED:
Government and Related Employees Appeal Tribunal Act 1980

CATEGORY:
Principal judgment

CASES CITED:
Wijesuriya v Director-General of the Department of Conservation (1994) 54 IR 384

TEXTS CITED:

DECISION:
1.  Appeals allowed with costs.
2.  Decision of the Government and Related Employees Appeal Tribunal, ordering that the appeals to that Tribunal by Ms Sconce and Ms Lloyd be struck out for want of jurisdiction, set aside.
3.  Order that both matters be remitted to the Tribunal to be heard and determined according to law.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40692/07
GREAT NO PSP/117, 120, 123, 127-133 & 288-292 OF 2007
CA 40693/07
GREAT NO PSP/188 OF 2007

MCCOLL JA
HANDLEY AJA
GZELL J

15 May 2008

FAY LOUISE SCONCE v COMMISSIONER OF CORRECTIVE SERVICES & ORS
EVELYN LLOYD v COMMISSIONER OF CORRECTIVE SERIVCES & ORS

PUBLIC SERVICE – Promotion appeals to GREAT – Applicants required to nominate location of positions applied for – Positions not identified in advertisement – Applicants entitled to appeal from promotions to locations not applied for

HEADNOTE

The appellants applied for promotion to the position of Assistant Superintendent. The advertisement and application forms required them to nominate the location of the positions for which they applied, but the locations available were not identified in the advertisement, the application form, or in any incorporated document or source.  The applicants were not successful in obtaining appointments to the locations they had nominated, but appealed to GREAT from appointments to other positions.  The Tribunal struck out their appeal on the ground that appellants were barred by s 21(1)(g) from appealing from appointments for which they had not duly made application.  The appellants appealed to the Court of Appeal.  HELD:  The Tribunal had jurisdiction to entertain the appeals because the vacant offices and their location were not identified in the advertisement and were not identifiable from any incorporated document or source.  Accordingly the appeals were not barred by s 21(1)(g) and were expressly permitted by s 22(b).

ORDERS

1. Appeals allowed with costs.

2. Decision of the Government and Related Employees Appeal Tribunal, ordering that the appeals to that Tribunal by Ms Sconce and Ms Lloyd be struck out for want of jurisdiction, set aside.

3. Order that both matters be remitted to the Tribunal to be heard and determined according to law.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40692/07
GREAT NO PSP/117, 120, 123, 127-133 & 288-292 OF 2007
CA 40693/07
GREAT NO PSP/188 OF 2007

MCCOLL JA
HANDLEY AJA
GZELL J

15 May 2008

FAY LOUISE SCONCE v COMMISSIONER OF CORRECTIVE SERVICES & ORS
EVELYN LLOYD v COMMISSIONER OF CORRECTIVE SERIVCES & ORS

Judgment

1. MCCOLL JA:  I agree with Handley AJA.

2. HANDLEY AJA:  These are consolidated appeals from the decision of the Government and Related Employees Appeal Tribunal (the Tribunal) that it had no jurisdiction to entertain the appellants’ appeals under s 20 of the Government and Related Employees Appeal Tribunal Act (the Act).  Their prima facie standing to appeal from the decisions to promote others to the office of Assistant Superintendent was not in dispute, but the Tribunal held that the appeals were barred by s 21(1)(g).  This provides:

   “(1) An employee is not entitled to appeal under section 20 in respect of the decision of an employer relating to a vacant office:

   …

   (g) unless, where an invitation to apply for appointment to the vacant office was published in a notice given by the employer to its employees or in a newspaper, the employee duly made application for appointment to the vacant office, …”

3. The appellants’ applications for appointment as Assistant Superintendent were in evidence (blue 1/128, 2/296).  The printed forms required applicants to nominate the positions they were applying for.  Faye Sconce nominated 12 positions, 7 in Correction Centres and 5 in Courts; while Evelyn Lloyd nominated 3 in Correction Centres.  Neither were successful.  Others were appointed to some of those positions (blue 1/25), and in other cases no appointments were made. This may have been because the positions did not exist, or were not vacant, or because no applicant was judged to be suitable.  The appellants did not challenge the appointments to positions they had nominated, but some appointments to other positions.  Prima facie therefore their appeals were barred by s 21(1)(g).

4. The appellants however submit that s 21(1)(g) did not apply because the Department failed to comply with the statutory condition that “an invitation to apply for appointment to the vacant office was published in a notice given by the employer to its employees or in a newspaper”.  The appellants submit that the advertisement did not identify “the vacant position” or “the vacant positions”, that s 21(1)(g) was therefore not engaged, and the appeals were competent under s 22.

5. The advertisement, so far as material, was in the following terms (blue 1/8):

   “ASSISTANT SUPERINTENDENT – Permanent and temporary positions at locations State-wide.

   Vacancy No: 06358 …

   Selection Criteria …

   Note:  Applicants must read the information package before applying and submit a signed plagiarism “Applicants Declaration” form with their application.
   Applicants will only be considered for locations they specify in their application, and will be ranked in order of merit for each location specified…

   Inquiries:  David Huskins Phone …
   E-mail  …
   Application Information:  Available from the DCS Intranet at …”

6. The advertisement did not identify the “permanent and temporary positions” or their locations.  There was no evidence of the meaning of the expression “Vacancy No: 06358”, or how a would-be applicant could obtain information about that item.

7. The “information package” referred to was not in evidence. There was no evidence about the content of the Application Information on the Department’s Intranet, and there was no evidence which identified the relevant positions and how would-be applicants could have obtained that information.

8. The application forms of the appellants and of other applicants were before the Tribunal (blue 1/6, 14, 22, 29, 36, 60, 85, 119, 154, 175, 192, 239, 2/272, 330).  The form relevantly stated:

   “This form is to be completed to specify the locations that an applicant wishes to be considered for in State-wide Assistant Superintendent recruitment.  Applicants will be ranked in order of merit at each of these locations. Successful applicants are expected to accept an offer at the location(s) they specify.  Offers will be made in accordance with the order of merit at each location … Both permanent and temporary appointments will be offered, and applicants accepting a temporary appointment will continue to be meritorious for permanent appointment.”

9. The forms contained four boxes described “Correctional Centre”, “Court Escort/Security Unit”, “Periodic Detention Centre”, and “Court” and space for identification of their location.  There were eight lines for “Correctional Centres”, six for “Court Escort/Security Unit”, four for “Periodic Detention Centre”, and seven for “Court”.

10. Notification of the successful applicants was published, as required by s 19, on 25 April 2007, giving rise to the relevant appeals to the Tribunal on 30 April and 15 May.  Twenty appointments were made to Correction Centres, none appear from the notice to have been temporary and no appointments were then made in any of the other categories. (blue 1/25).

11. On the face of it, applicants who sought appointments in the three categories other than “Correctional Centre” were wasting their time.  It appears from the applications referred to and the notice that many applicants sought appointment to Correctional Centres where there was no vacancy, or perhaps to Correctional Centres which did not exist.

12. Where an invitation to apply for the appointment is not published, as required by s 21(1)(g), s 22(b) permits “employees employed in the same Division … of which the vacant office forms part” to appeal to the Tribunal. The appellants are employees in the same Division as the applicants whose appointments are challenged.

13. An advertisement published to comply with s 21(1)(g) could incorporate another document by reference, provided this is clear, and the other document is readily accessible to interested parties.  On the present state of the evidence the vacant offices were not identified in any incorporated document, or on the Intranet site.

14. In my judgment the advertisement did not identify the vacant offices for which applications were invited and s 21(1)(g) did not bar the relevant appeals to the Tribunal.  I reach this conclusion on the text of the advertisement considered as a matter of substance, and not as a matter of form.

15. Would-be applicants were left to guess at the identity of the vacant positions, and were misled into believing that there were vacant positions in all four categories identified in the application form.  The first appellant applied for appointment to 5 Correctional Centres and 5 Court positions which did not exist, or where there were no vacancies (blue 1/6). The second appellant applied for appointment to 3 Correctional Centres when there were vacancies at only 2 (blue 1/22).

16. If the appellants had received accurate information about the actual positions at Correctional Centres that were vacant they could have applied for appointment at other Centres, including those covered by their appeals to the Tribunal.  In these circumstances the objection to the jurisdiction of the Tribunal, based on the failure of the appellants to apply for the positions covered by their appeals, is entirely without merit.

17. The construction of a written document, intended to have legal consequences, such as the advertisement, is a question of law.  The Tribunal said in its decision para [11], [12],:

    “The Department, by specifying the rank and using the words ‘at locations State-wide’ was inviting applications for all Assistant Superintendent positions on a permanent and/or temporary basis throughout NSW … The advertisement for the positions of Assistant Superintendent clearly outlined that positions were available State-wide … The requirement to list locations was an integral part of the advertisement …”

18. With respect the advertisement entirely failed to identify “all” or indeed “any” of the positions available State-wide.  While the requirement to list locations was “an integral part of the advertisement”, beyond describing them as “State-wide”, it entirely failed to identify them.

19. We were referred by counsel for the respondent to the decision of this Court in Wijesuriya v Director-General of the Department of Conservation (1994) 54 IR 384 but the judgments dealt with an entirely different question under s 21(1)(g) and are of no assistance in this case.

20. In my judgment the appeals succeed and the following orders should be made:

    1.   Appeals allowed with costs.

    2.Decision of the Government and Related Employees Appeal Tribunal, ordering that the appeals to that Tribunal by Ms Sconce and Ms Lloyd be struck out for want of jurisdiction, set aside.

    3.Order that both matters be remitted to the Tribunal to be heard and determined according to law.

21. GZELL J:  I agree with Handley AJA.

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LAST UPDATED:
15 May 2008