Fischer v Commonwealth
[1995] IRCA 445
•01 September 1995
INDUSTRIAL LAW - Claim of UNLAWFUL TERMINATION OF EMPLOYMENT Review of Judicial Registrar's decision - Applicant employed as probationary public servant - Whether applicant excluded from operation of Division 3 of Part VIA of Industrial Relations Act - Whether duration of probation was reasonable - Conduct and performance of applicant - Whether termination was for valid reasons connected with his capacity or conduct - Whether termination was harsh, unjust or unreasonable - Procedural fairness.
Industrial Relations Act 1988, ss.170CC, 170DC, 170DE and 170EDA.
Industrial Relations Regulations, reg. 30B.
Public Service Act 1922, ss.42, 42A and 47.
THOMAS FISCHER v COMMONWEALTH OF AUSTRALIA and DEPARTMENT OF SOCIAL SECURITY
No. NI.367 of 1994
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 1 SEPTEMBER 1995
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
)No. NI. 367 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN:THOMAS FISCHER
Applicant
AND:COMMONWEALTH OF AUSTRALIA
First Respondent
and
DEPARTMENT OF SOCIAL SECURITY
Second Respondent
CORAM:WILCOX CJ
PLACE: SYDNEY
DATE: 1 SEPTEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application for review of the decision of Judicial Registrar Tomlinson dated 25 October 1994 be dismissed; and
The said decision be confirmed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
)No. NI. 367 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN:THOMAS FISCHER
Applicant
AND:COMMONWEALTH OF AUSTRALIA
First Respondent
and
DEPARTMENT OF SOCIAL SECURITY
Second Respondent
CORAM:WILCOX CJ
PLACE: SYDNEY
DATE: 1 SEPTEMBER 1995
REASONS FOR JUDGMENT
WILCOX CJ: This is an application for review of a Judicial Registrar's decision in an unlawful termination of employment case. The application was brought under Division 3 of Part VIA of the Industrial Relations Act 1988. The Judicial Registrar held these provisions applied to the case but rejected the claim on the merits, holding that there had been no contravention of the Act.
The applicant, Thomas Fischer, was formerly employed by the first respondent, the Commonwealth of Australia, as an Administrative Service Officer Class 1 (ASO1) within the second respondent, the Department of Social Security. He was appointed to the Australian Public Service, pursuant to s.42 of the Public Service Act 1922, on 8 February 1993. His employment was terminated on 15 June 1994, under s.47 of the Act, when the Department annulled what was said to be a probationary appointment to the position.
Application of the Division
The solicitor for the respondents submitted to the Judicial Registrar that Mr Fischer was not entitled to bring an unlawful termination claim because Division 3 of Part VIA of the Act did not apply to him. The argument was that he was caught by regulation 30B(1)(c) of the Industrial Relations Regulations.
Section 170CC of the Act states that the regulations may exclude specified employees from the operation of specified provisions of Division 3 of Part VIA of the Act; but only if the exclusion is permitted by the Termination of Employment Convention. Regulation 30B,which was made pursuant to s.170CC, excludes certain categories of employees from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act. Subdivision B contains provisions making it unlawful for employers to terminate employees' employment under certain circumstances. Subdivision C grants remedies for unlawful termination of employment. These two Subdivisions are critical to an action for unlawful termination. If they are excluded by a regulation, the action must fail.
The type of excluded employee referred to in regulation 30B(1)(c) was described in the paragraph in this way:
"(c)an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires:
(i)is determined in advance; and
(ii)is reasonable, having regard to the nature and circumstances of the employment;"
The instrument of appointment under s.42 of the Public Service Act, under which Mr Fischer was appointed, made no mention of probation. That instrument was executed on 8 February 1993 by Naomi Robinson, a delegate of the Secretary of the Department of Social Security. Its operative words were:
"hereby appoint THOMAS FISCHER as Administrative Service Officer, Class 1 unattached, Department of Social Security, New South Wales with a salary of $20,877 p.a. with effect from the date of this instrument or the date of commencing duty whichever is the later."
However, Ms Robinson gave evidence that she interviewed Mr Fischer and it was her practice to explain that appointments were made on a probationary basis. She said she told Mr Fischer that the probationary period would be a minimum of six months and he would be subject to probation reports. If his conduct, diligence and efficiency were satisfactory, and he passed the medical examination, his appointment might then be confirmed. Mr Fischer did not dispute this evidence.
Mr Fischer commenced work at the Marrickville Regional Office of the Department of Social Security on 8 February 1993. On 19 March 1993 the Assistant Personnel Officer, Area Sydney Central, of the Department wrote Mr Fischer a letter confirming the appointment and stating:
"Confirmation of your appointment is subject to a six months Probationary period during which your conduct, work performance and medical fitness will be assessed. If the required standard has not been met at the completion of the six months service, the probationary period may be extended up to a total period of two years. If your conduct or work performance was considered unsatisfactory or you do not meet the required medical fitness standard, your appointment may be annulled."
The situation outlined in this letter reflects the terms of the Public Service Act. Section 42 does not refer to probation. It simply authorises the appointment of a person to a particular office in the Public Service (other than the office of Secretary) or as an unattached officer in the Service. However, s.42A provides for probationary appointments and s.47 mandates them in most cases. The section relevantly provides:
Subject to subsection (2), the appointment of a person to the service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation.
The Commissioner may appoint a person to the Service without probation, but:
(a)shall not so appoint a person who is not an Australian citizen, except in accordance with arrangements approved by the Prime Minister; and
(b)shall not so appoint a person unless the Commissioner is satisfied:
(i)after the person has undergone a medical examination approved by the Commissioner, as to the officer's health and physical fitness; or
(ii)that in the circumstances it is unnecessary to require the person to undergo a medical examination.
(3)The Commissioner may, at any time within the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.
(4)The relevant Secretary may, at any time after an officer (other than an SES officer) is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment.
(4A)...
(5)The relevant Secretary may, at any time after the end of the period of 6 months after an officer is appointed to the service on probation, confirm the appointment.
(6)Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated:
(a)in the case of an officer other than an SES officer - the relevant Secretary must, as soon as practicable, confirm or terminate the appointment; and
(b)in the case of an SES officer whose appointment the relevant Secretary intends to confirm - the relevant Secretary must, as soon as practicable, confirm the appointment; and
(c)in any other case - the relevant Secretary must, as soon as practicable, give written notice to the Commissioner that he or she does not intend to confirm the appointment.
(6A) ...
(7)Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed.
(8)...
The Commissioner shall not, under subsection (3) or (6A), and the Secretary shall not, under subsection (5) or (6), confirm the appointment to the Service of an officer unless the Commissioner or Secretary, as the case may be, is satisfied, after the officer has undergone a medical examination approved by the Commissioner, as to the officer's health and physical fitness.
...
The Commissioner may, under subsection (4A) or (6A), and the relevant Secretary may, under subsection (4) or paragraph (6)(a), terminate an officer's appointment to the Service on any of the following grounds:
(a)that he or she is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and physical fitness;
(b)that he or she considers, after receiving a report from the officer's supervisor or another appropriate officer, that the manner of the officer's performance of duties has not been satisfactory;
(c)that he or she considers that the officer is not a fit and proper person to remain an officer of the Service;
(d)that he or she is satisfied that the officer is an excess officer;
(e)in the case of an officer who is not an Australian citizen, that he or she is satisfied:
(i)that the person has been refused Australian citizenship; or
(ii)that the person is unlikely to be granted Australian citizenship within a reasonable time; or
(iii)that the person is not seeking a grant of Australian citizenship with appropriate diligence."
The solicitor for the respondents submitted to the Judicial Registrar that the maximum duration of the period of probation (two years) was determined in advance (by s.47) and was reasonable, having regard to the nature and circumstances of the employment. The Judicial Registrar criticised the omission from the instrument of appointment of any reference to its probationary character. She was also critical of the Department's failure to send a copy of the instrument to Mr Fischer; although it was included on his personal file, to which he had access. She thought that, under the circumstances, by the date of the confirmatory letter "the applicant (was) entitled to view his employment as more permanent than probationary". However, on the basis that the appointment was subject to probation, she thought a probationary period of six months, with a possible extension up to two years, "is far too long for any employee to be on probation"; in other words, it was not a reasonable period, so as to satisfy sub-para.(ii) of para.(c) of regulation 30B(1). Notwithstanding this conclusion, the Judicial Registrar dismissed the applicant's claim. She held that the termination did not contravene the Industrial Relations Act and was not unlawful under the Public Service legislation.
Mr Fischer sought review of this decision. The matter became before me at a directions hearing when counsel for the respondents indicated that he wished to renew his clients' argument that the claim was excluded by regulation 30B(1)(c). He said that, if this argument was rejected, he would call several witnesses, in addition to those heard by the Judicial Registrar. As it seemed possible that determination of the issue about the application of the regulation would save hearing time, I agreed to hear argument on that issue in advance of the calling of evidence. At the conclusion of the argument, I held that regulation 30B(1)(c) did not apply. I gave directions for the disposal of the remainder of the case and said I would give reasons for my view about the regulation in my judgment on the merits. I now set out my views about the preliminary point.
I accept counsel's submission that Mr Fischer was appointed on a probationary basis. Although I agree with the Judicial Registrar's criticism of the failure of the appointing officer to indicate its probationary nature in the instrument of appointment and provide a copy of that instrument to Mr Fischer, there is no doubt that she intended the appointment to be probationary in the first instance. Section 47 compelled that course; it being clear from the evidence that s.47(2)(b) does not apply. The Public Service Commissioner was not involved in the appointment and Mr Fischer was not medically examined on behalf of the Commonwealth until after his appointment. It is also clear that Mr Fischer was aware that his appointment was intended to be probationary in the first instance. He acknowledged this both at the time of his appointment and at the hearing. Notwithstanding these findings, I share the Judicial Registrar's view that regulation 30B(1)(c) does not apply. The maximum duration of the probationary period cannot be regarded as reasonable.
In support of his argument that a two year probationary period was reasonable, counsel said it was specified by statute. He submitted that the statute bound the appointor and referred to a comment of Brennan J in Director General of Education v Suttling (1987) 162 CLR 427, a case concerning an appointment under New South Wales legislation. At 437 his Honour said:
"The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute ... However, the contractual nature of the relationship has not been universally accepted ... If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute".
Counsel emphasised the last sentence and contended that it followed that a Commonwealth public servant may not ordinarily be engaged other than on the basis of a probationary period of up to two years; Parliament having considered it reasonable to allow probation for a period of up to two years, this period must be considered reasonable within the meaning of regulation 30B(1)(c).
There were two reasons why I did not accept this argument. First, it seems that Parliament thought 12 months was as long as it was reasonable to keep an appointee on probation. Section 47(6)(a) requires a decision as to confirmation or termination to be made "as soon as practicable" after the end of 12 months. Two years is mentioned, in subs.(7), only by way of a default provision; to cover cases where there has been a failure to comply with subs.(6). Secondly, and more fundamentally, the circumstance that the Public Service Act permits an employee's probationary period to extend for a period of up to two years does not mean that this is a reasonable period for the purposes of regulation 30B(1)(c). Section 47 applies to all Commonwealth public servants. Even if it were reasonable to keep some types of employees on probation for two years, it would not follow that this was reasonable in relation to all types of employees. Regulation 30B(1)(c) refers to a period that is "reasonable, having regard to the nature and circumstances of the employment"; that is, of the particular appointment. Whatever the position concerning senior appointments, I do not think it is possible to justify a probationary period of two years in relation to a base-grade administrative service officer; that is, a clerk.
In Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 242, I ventured the opinion that "(i)n the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two". I was thinking of a person in the private sector, whose employment was not entrenched by statute. On confirmation, public servants obtain statutory rights denied to other employees. Because of that circumstance, there is a special need for appraisal of appointees before confirmation. So it may be reasonable to require or permit a longer period of employment before confirmation than the period that would be reasonable as a probationary term under regulation 30B(1)(c). The two periods need not correspond. There is no difficulty about a person having the benefit of the protections conferred on employees by Division 3 of Part VIA of the Industrial Relations Act although he or she is not a confirmed appointee under the Public Service Act.
Counsel for the respondents pointed out that, at any one time, there are many probationers in the Public Service. He said the number dictates that a long time be allowed to assess probationers, especially in an agency as large as the Department of Social Security. I accept that, in such a Department, there may be many probationers. But there will also be many supervisors. Appraisal is performed on a sectional basis. There is no reason to believe that the task is any more difficult for a government agency than for a large private sector employer.
Whatever period may be reasonable for a confirmation or termination decision under the Public Service Act, two years far exceeds the limits of probation reasonableness for the purposes of regulation 30B(1)(c); at least in relation to a base-grade administrative officer. Accordingly, the sub-regulation does not apply. Mr Fischer is entitled to rely on Division 3 of Part VIA of the Act.
Valid reason for termination: s.170DE(1)
Section 170DE(1) of the Industrial Relations Act states that -
"An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service".
It is for the employer to prove the existence of a valid reason or valid reasons: see s.170EDA(1)(a). If this is done, the employee may nonetheless establish that the termination was unlawful by showing that it was harsh, unjust or unreasonable: see s.170EDA(1)(b), referring to s.170DE(2). In the present case, the employee relies on both subsections of s.170DE. He disputes the respondents' contention that they have made out a case under s.170DE(1) and says that, if a valid reason is proved, the termination was nevertheless harsh, unjust or unreasonable. He also raises an issue under s.170DC, contending he was denied procedural fairness.
The person who terminated Mr Fisher's employment was Kenneth Anderson, the then Manager of Personnel in the Sydney Central Area of the Department of Social Security. Mr Anderson had authority, as a delegate of the Secretary of the Department, to terminate probationary appointments under s.47 of the Public Service Act. Mr Anderson's evidence was that, in making his decision, he took into account the matters that he set out in a handwritten file note:
"I have reviewed all issues raised by the Regional Office and the Commonwealth Medical Officer Reports. I have considered all the information contained on Mr Fischer [sic] personal file, his grievance file, Admins [sic] Personnel Information System, medical reports, submissions from PSU Branch office, Mr Fischer's own submissions.
Medical Information: At this stage I am not sufficiently convinced that Mr Fischer meets the medical standard for appointment, however, at this stage there is insufficient information to proceed with a medical annulment. I do not believe an informed assessment of the capacity of the organisation to accommodate his inability to perform filing duties has been made. I do have concerns that Mr Fischer's frequency of absence has increase [sic] over the past 3 months. This issue remains unresolved at this stage.
Work Performance: Mr Fischer has received an enormous amount of training, his work performance is sporadic at best. Under a male supervisor Mr Russo (for a period of 3-4 weeks) Mr Fischer performed quite well. In every other instance under female supervision Mr Fischer has had difficulties. This is mostly with accepting direction and output. After some 13 mths of employment it would be reasonable for Mr Fischer to have achieved a level of performance achieving minimum standard of performance.
Conduct: Mr Fischer has been given much information and counselling on aspects of his behaviour and conduct. Particularly in relation to his interaction with female staff and accepting direction. Despite this advice Mr Fischer has continued to make inappropriate comments to female staff and in my opinion on the balance of probabilities, these comments have indeed been made.
Accepting Direction: The supervisors efforts to get Mr Fischer to perform normal office tasks would in my opinion be sufficient cause to warrant termination of apptmt.
I have also grave concern about the privacy implications of Mr Fischer's comments to his supervisor Mr Lawrie about "what a good laugh it would be if information contained in pulp bags was found by members of the public and drew adverse attention to the Department".
His conduct in his relationships between female staff and comments such as the above are inappropriate for an officer within a professional work environment.
For the above reasons - mainly conduct and secondary work performance I consider Mr Fischer's appointment should be terminated.
I have considered the issues of Mr Fischer's latest grievance and Reg 84 appeal, however, their contents are of insufficient weight, I my [sic] opinion, to delay the issue of the termination notice."
Mr Anderson expanded these reasons in his evidence:
"In reviewing Mr Fischer's probationary appointment I firstly considered the issue of medical fitness. The Commonwealth Medical Officer considered Mr Fischer was unfit for confirmation of permanent appointment if the Department could not reasonably accommodate his inability to do filing duties. In reviewing this I considered further information was needed before an educated assessment could be made of the Department's capacity to employ Mr Fischer given these restrictions. Therefore medical fitness was not an issue, at this stage, which influenced my decision to annul Mr Fischer's appointment.
In regard to the issue of work performance, despite an enormous amount of training, Mr Fischer's work performance was sporadic at best. There were at times during his probationary period where his performance for a number of weeks was considered satisfactory. However, this performance according to his many supervisors was not sustained. These difficulties mainly lay with Mr Fischer's inability to accept directions which impacted on his and the section's output. After some 13 months of employment, given the training and support provided to Mr Fischer in my opinion, it would be reasonable for Mr Fischer to have achieved a level of performance achieving the minimum standards of performance at the Administrative Service Officer Class 1 level. Mr Fischer's work performance difficulties, his inability to accept reasonable directions, had severe impact on the output and dynamics of the team of employees. These aspects influenced my decision to proceed with Mr Fischer's annulment. There was nothing in Mr Fischer's response which would allow me to draw a different conclusion.
Mr Fischer's conduct during his period of employment also influenced my decision to annul his appointment. Despite information sessions on appropriate behaviour, counselling and information through various reports, Mr Fischer's inappropriate behaviour recurred. I reviewed Mr Fischer's comments in relation to various incidents involving female staff and on the balance of probabilities considered that the comments were made. I viewed these comments most seriously and deemed them inappropriate for an officer within a professional working environment. Supervisors had difficulties getting Mr Fischer to accept direction to perform normal office tasks and despite warnings, this behaviour continued."
Mr Anderson also said he had considered matters raised in a letter dated 12 May 1994 from the Public Sector Union, of which Mr Fischer was a member, but he "did not feel these matters warranted the continuation of probation or confirmation of appointment when viewed in the perspective of the entire employment history of Mr Fischer with the Department".
On 1 June 1994 Mr Anderson wrote a letter to Mr Fischer advising him that he (Mr Anderson) had determined that his employment should be terminated as from close of business on 15 June. The letter reproduced the substance of Mr Anderson's reasons, as set out above. It will be noted that these reasons involve two discrete elements: work performance and conduct. Both were the subject of extensive evidence in this proceeding. I do not propose to state, or even summarise, all that evidence. Its effect is overwhelming. In relation to both work performance and conduct, Mr Anderson's decision was amply justified.
During the course of his employment with the Department, Mr Fischer was the subject of four probation reports. Each of them was critical of his work performance and conduct.
The first probation report was prepared by Santha Raman, the officer who supervised Mr Fischer immediately after the commencement of his employment with the Department. On commencement, Mr Fischer was assigned to the Newstart section of the Department's Marrickville office. Ms Raman was his immediate supervisor until 7 June 1993 when she moved to different duties. Ms Raman dated her report 15 June 1993 and delivered it to the Section Supervisor, Jacqueline de Brouwer.
It is not necessary to set out all the comments in this report. Ms Raman referred to Mr Fischer's lack of "enthusiasm in acquiring knowledge relating to the legislation regarding his work" and his reluctance to seek assistance from colleagues regarding matters with which he was not familiar. She thought his telephone manner "tends to be abrupt". More significantly, in an attached note, Ms Raman wrote:
"Relations with other officers
Ton's tendency to make personal remarks to his supervisor about her appearance, age, clothes and marital status and his attitude to his job makes him difficult to work with. Tom has ongoing conflict with another ASO1. Tom does not agree with our method of filing correspondence of our filing system. He approached a number of times to ask questions on simple procedures such as filing correspondence and transfer in files recording procedures. Although I am satisfied that he understood the required methods, I feel that he persisted on questing [sic] me about the filing system and transfer in procedures because he did not agree with them.
General Behaviour
Since Tom was informally counselled by the Regional Manager about 4 weeks ago, his general behaviour has improved. However prior to that he did not work well in a team group, as he constantly questioned and argued the need for certain procedures which was frustrating for staff working with him. He has a hearing problem, which his fellow staff members have been advised of, but Tom often needs to ask other staff to repeat themselves, as he does not look at the person who is speaking and sometimes starts to walk away. I have advised him that he must listen to me when I am speaking."
Ms de Brouwer added a comment referring to an informal counselling session on 31 March concerning Mr Fischer's "relations with other officers, making personal remarks to his supervisor about her appearance, age, clothes and marital status and his attitude to his job". She said particular incidents were brought to his attention and explained them in detail. Ms de Brouwer made it plain that the problems were continuing.
The report was shown to Mr Fischer. He submitted a lengthy response in which he disputed most of the criticisms made of him. As subsequent events showed, this was his standard reaction to criticism. Instead of taking the comments on board, and using them to improve his performance and acceptance by his co-workers, he would react defensively, engaging in a detailed point-by-point refutation. He did this again in his evidence; to no avail, so far as I am concerned. Having heard Ms Raman and Ms de Brouwer give evidence, I am satisfied that their criticisms were well-justified.
I need not go into detail about the criticisms Ms Raman and Ms de Brouwer made of Mr Fischer. They included his slowness, with apparent deliberate wasting of time to minimise the amount of work he would be made to do, his argumentativeness, with insistence that his ideas about office procedures were preferable to those currently in place, his tendency to make mistakes and blame this on inadequacy of training and his quarrelsomeness with other staff.
As counsel for Mr Fisher points out, there were some positive comments in the first probation report. Ms Raman said: "I think he can meet deadlines effectively if he concentrates on his work without constantly arguing with other ASO1s and supervisors". Her attachment said that, since the counselling session, "his general behaviour has improved and that his performance had improved with sound training". Counsel emphasises that neither Ms Raman or Ms de Brouwer recommended termination of Mr Fischer's employment. They thought probation should be continued and this was the decision ultimately made by the Secretary's delegate.
After Ms Raman moved to other duties, Mr Fischer came under the immediate supervision of Diane Kennedy. He continued until 18 October to be in the section that Ms de Brouwer led, except during two weeks in late July and early August when she was on leave. During this period, Ms Kennedy compiled the second probation report. She said Mr Fischer "shows indifference to his work and other members of staff. He displays little concern in helping to attain the section goals". She said his rejection rate had improved and he was making fewer errors in his assessments, but he needed to pay more attention to detail and "finds it difficult or unacceptable to work at speed". She went on:
"It would appear that Tom has the potential to work without supervision but he lacks self-motivation and needs to be reminded of office procedure. He paces himself in order to make his assessing work take up the major part of his day.
Tom shows little enthusiasm for his work in Newstart. He has an unwillingness to undertake and complete tasks of a routine nature. He has expressed a dissatisfaction for undertaking tasks that he considers unnecessary, such as the filing away of correspondence."
Ms Kennedy noted an improvement in Mr Fischer's response to requests by herself and other staff members. She said his poor hearing was sometimes an obstacle and occasionally resulted in a misunderstanding. She concluded:
"To date I am unable to recommend Tom's permanency. However, I feel that an extension of probation will give him the opportunity to demonstrate that he has the ability in order to become permanent at the end of this period".
This recommendation was accepted by the Marrickville Regional Manager.
Ms Kennedy also gave evidence before me. She mentioned Mr Fischer's "virtually daily" criticisms of the way the Department was organised. On one occasion she invited him to try out one of his suggestions but he abandoned implementation after two days. She spoke of Mr Fischer's refusal to do some tasks, leading to a formal direction by Ms de Brouwer and counselling by the Regional Manager in the presence of a union representative. There were problems about Mr Fischer's willingness to listen to instructions and his work output.
On 18 October 1993, Mr Fischer was transferred to the Families section at Marrickville. He came under the immediate supervision of a Mr Russo, who did not give evidence. After about four weeks, Mr Russo was replaced by Kathy Manolias, who did. Mr Fischer remained in Families until 8 March 1994. During the whole of that time his Section Supervisor was Zdenka Zrno.
The third probation report was compiled while Mr Fischer was in the Families section. Ms Zrno said in evidence that she wrote the report in the presence of Ms Manolias, each part of it being discussed between them.
The report is dated 16 February 1994. It referred to Mr Fischer having "an uneasy relationship with fellow staff members" who felt "he doesn't pull his weight". There was mention of "inappropriate comments to fellow staff members", such as "comments on people's looks and the nature of his duties". The comment was made that Mr Fischer's quality of work had improved "though [it was] not always accurate" and that he "is very slow, he often takes too long to perform simple tasks and transactions". The comment went on:
"Probationer needs to be prompted to do certain duties such as mail and previously filing. He also needs constant supervision.
Probationer is not interested or happy with his ASO1 duties but would like to do ASO3 work. However he refuses to do any work other than duties that strictly adhere to the ASO1 duty statement."
Ms Zrno commented favourably that Mr Fischer's telephone manner with clients was ("very polite and helpful") and that his written communications were "clear and to the point". However, there were negative remarks about his relationship with other staff, arising out of his disparagement of departmental procedures and his reluctance to accept direction. The report concluded:
"I feel that Tom Fischer overall does not display the qualities necessary for confirmation of appointment. Tom's conduct has been inappropriate and his work output is well below standard. However the overriding factor is his attitude to work and the fact that he does not seem to feel that he needs to improve rather ridicules the Departmental procedures."
Shortly after this report was prepared, it was overtaken by other events. On 28 February 1994, Jacqueline Beale, an ASO1 who had commenced with the Department on the same day as Mr Fischer, made a written complaint about an incident that had occurred a few weeks earlier when Mr Fischer invited her to "sit on my lap". The incident was witnessed by Ms Manolias who commented that he "should not talk to people like that". Apparently Ms Zrno heard about the incident and asked Ms Beale to put a report in writing. After some hesitation, she did so. The report led to a meeting conducted by Grant Whittingham, the acting Marrickville Regional Manager, and attended by Ms Zrno, Mr Fischer and a union representative, Karen Hall. Ms Zrno took notes. She subsequently gave them to Mr Whittingham. He typed them up, with minor amendments, as a probationer report recommending annulment of Mr Fischer's appointment. The report deals with many matters. It criticises aspects of Mr Fischer's general behaviour, including his conduct of personal business during work hours, his ignorance of what were said to be "basic criteria for payment of additional family payments", his failure to consult when he was not sure, his unsatisfactory work output, his need for constant supervision and unwillingness to accept direction, his personal comments to other staff and rudeness to his supervisor, his lack of drive and energy and his unwillingness to do routine tasks within his duty statement.
These criticisms are severe. But there is ample evidence to support them. I do not put much weight on the incident involving Ms Beale. This is not because I regard a remark such as that attributed to Mr Fischer as necessarily acceptable - I do not. The problem is that it is difficult to evaluate it without a context. Both Ms Beale and Ms Manolias gave evidence about the remark. I have no reason to doubt either of them. However, there is some difference in their accounts of the incident and neither gives a context. Mr Fischer said he had no recollection of the incident and did not believe he would have made such a comment "out of the blue". He said that, if such a comment was made, "it has been taken out of context". That may be correct; although it is clear that the comment upset Ms Beale. But it makes no difference what view one takes about this incident. There is plenty of other evidence of abrasive interaction with other staff. There are several examples of inappropriate personal comments, repeated despite counselling on the topic. Moreover, Mr Fischer was insubordinate. Ms Zrno recounted a number of exchanges with him during which he refused to accept directions or answer legitimate questions about his activities. If Ms Zrno is to be believed, and I do believe her, Mr Fischer gave her a hard time. She said in evidence that, by the end of January, she was spending about a third of her day trying to make him perform his duties. Having regard to the range of her duties and the number of people under her control, this was an absurd situation. Ms Zrno said every conversation with Mr Fischer became an argument taking half an hour or more. At the beginning of February, she commenced to keep a diary of incidents. They are in evidence and are consistent with the general tenor of her evidence.
Ms Zrno's evidence is also corroborated by that of Ms Manolias. Mr Fischer's unresponsiveness to instruction is illustrated by this snippet of her evidence;
"Tom would often make duplicate numbers for existing clients. I drew this to Tom's attention and said words to the following effect:
'You are not indexing properly. You should check all combinations of name, date of birth and address of a new client before you create a new number'.
He would say words to the following effect:
'I haven't made a mistake, prove it to me, write down all the new numbers I have supposedly duplicated'.
I then gave him the numbers.
I would draw duplicate numbers problems to Mr Fischer's attention approximately twice a week. Mr Fischer would always respond in the same way."
Ms Manolias said Mr Fischer often refused to do particular duties, so she had to report the position to Ms Zrno. She also said he would spend a lot of time on the telephone, to the point where Ms Zrno would instruct her to direct him to hang up. She said she "became nervous when dealing with Tom because he constantly questioned everything I told him. He made me feel exhausted and fed up".
On 8 March 1994 Mr Fischer was transferred back to the Newstart section of the Department. His Section Supervisor was Trevor Lawrie. Mr Lawrie had relieved Ms Zrno in Families for one week during February and had experienced difficulties with Mr Fischer because of his unwillingness to carry out filing work. Following Ms Zrno's lead, he made a diary note about this and he adopted the same practice when Mr Fischer was transferred to Newstart. It is sufficient to set out the notes he made in respect of 14 and 15 March:
"14/3/94 Tom's supervisors reported to me this morning at 10.00am that he was concerned about Tom's performance in his section as Tom would have to be told how to do something over and over again before he could manager a task by himself. I noted his supervisors concerns and advised him to continue to monitor Tom's progress.
At 11.00am I asked Tom to seal the large number of pulp bags that were next to his section so that the collection could take place on the following day. Tom agreed to do this.
15/3/94At 8.30am I noticed that Tom had a half-hearted attempt to seal the bags using only two or three staples across the top of the bag. I pointed out to Tom that this was inadequate and that the confidential material inside the bags could easily spill out in transit and that such occurences have reflected badly on the department in the past. Tom then expressed the attitude that it [sic] he did not care if this happened and in fact he would think it was [sic] good laugh particularly if the incident were to attract adverse media attention for the department. I explained to Tom about the Department's legal obligations to ensure privacy and then demonstrated how to correctly seal the bags. Tom eventually undertook the task himself."
On 21 March 1994 Mr Whittingham received the probation report prepared by Ms Zrno and Ms Manolias. He drafted an addendum supporting their recommendation for annulment, many points being made. The document concluded:
"Mr Fischer has shown through his actions that his conduct is unsatisfactory. His relations with other staff members have been confrontational and insensitive to their rights and duties. In particular, I am of the opinion that his behaviour towards female members of staff constitutes sexual harassment. He has been warned about this type of behaviour on several occasions but has made no attempt to modify his behaviour. Consequently, I have no alternative but to recommend annulment of appointment."
Shortly after this date, Mr Fischer went on sick leave. He was still on leave when his employment was terminated.
I was favourably impressed with the departmental witnesses in this case. I thought the supervisors who gave evidence were all fair people and reliable in their accounts of his conduct and performance. Not only is there a consistency between their various accounts; there is a consistency between what they said in evidence and what they wrote at the time.
I was particularly impressed with Ms Raman, Ms de Brouwer, Ms Kennedy and Ms Zrno. They all seemed to be capable and helpful people who went out of their way to assist Mr Fischer. But their effort was to no avail. Mr Fischer behaved in an extraordinarily arrogant way. He obviously had a high opinion of his own ability, preferring his ideas about office procedures to those embodied in existing practices and being unwilling to accept direction. His arrogance might, perhaps, have been tolerable if he was unusually efficient. But he was not. He was slow to learn, prone to mistakes and indolent. Whether his indolence sprang from disdain for the Department or was part of his normal personality, I do not know. The effect is the same; he was not worth keeping.
Managers in the public sector act on behalf of the whole community. They must be fair, and take care to ascertain the true facts. But once it is clear that a public sector employee is unwilling to do the job to which he or she was appointed, their duty is clear. The community needs - and, I think, expects - a high quality Public Service composed of people who are competent, efficient and diligent. There is no room for drones; particularly drones who create difficulties for their workmates and superiors. This was clearly the case with Mr Fischer. The decision of Mr Anderson to terminate Mr Fischer's employment was made for valid reasons, connected with his capacity and conduct.
Harsh, unjust or unreasonable: s.170DE(2)
Counsel for Mr Fischer argues that, if a valid reason or reasons is proved, the termination was nonetheless harsh, unjust or unreasonable. He says three circumstances support this contention. First, he asserts that there was "no serious attempt to accommodate Mr Fischer's situation in light of both his hearing impairment and his back condition". I do not agree. All Mr Fischer's supervisors were aware of these problems. They made special efforts to ensure that he understood what they told him, to the point of going to his desk and speaking directly to him and asking him to pay particular attention. Embarrassment about his hearing impairment may have contributed to his unwillingness to admit ignorance and seek help, but there is nothing in the evidence to support the conclusion that any supervisor failed to take adequate account of Mr Fischer's hearing problem. As to his back, the evidence is clear that all his supervisors understood he should not do work that required him to bend or stoop. He was not asked to do so.
Counsel's second point is that, in January 1994, Ms Zrno prepared a draft statement of an ASO1's duties and responsibilities but this was never finalised. Ms Zrno took this step after Mr Fischer engaged her in argument as to whether particular duties were covered by his duty statement. The main reason why the draft was not finalised was the unavailability at the relevant time of the union representative assisting Mr Fischer. I do not think it matters that the draft statement was never finalised. There was never any real doubt as to the propriety of the directions Ms Zrno gave Mr Fischer. I think Ms Zrno correctly summed up the situation in this passage of evidence:
"In my view Mr Fischer's continual request for direction was just a way for him to avoid doing work. His repeated requests were made so that the supervisor eventually would give up and tell him not to perform the particular duty, or, alternatively, so he could spend the whole or most of a day doing a single task."
Finally, counsel complains that -
"the failure of the employer to raise a large number of the allegations that were ultimately relied upon in these proceedings denied Mr Fischer a fair opportunity to deal with particular and specific allegations that were made against him at or about the time that they were said to have arisen, or indeed, at any time prior to termination of his employment".
I do not think this is correct, either. It is true that Mr Fischer did not learn all the details of the Department's evidence until affidavits were filed in this proceeding, but the substance of its complaints was made known to him during the period of his employment. He received each of the probation reports. He had the opportunity to comment, at least in relation to the first two reports, and did so. Other matters were raised at one or more of the several counselling sessions he was accorded. Counsel does not identify any element of conduct or want of performance that was the subject of evidence but not brought to Mr Fischer's attention before he was terminated. I believe there is none.
I do not think the termination was harsh, unjust or unreasonable; on the contrary. If the people within the Department who had to determine whether Mr Fischer's employment should be continued or terminated are to be criticised at all, the criticism should be that they delayed termination too long, thereby putting unnecessary strain on his immediate supervisors.
Procedural fairness: s.170DC
Section 170DC of the Act provides:
"170DCAn employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b)the employer could not reasonably be expected to give the employee that opportunity."
Counsel for Mr Fischer rightly submits that, in order to satisfy the requirements of this section, "an employer is required to give an employee an opportunity to defend himself against any allegations that are made". He goes on, incorrectly in my opinion, to complain that this requirement was left unsatisfied in this case. He complains that the grounds of termination ultimately adopted by Mr Anderson were not mentioned in a letter of 28 April 1994 that was delivered to Mr Fischer when he was at home on sick leave. This is correct. But the letter related primarily to Mr Fischer's medical condition. In passing, as a footnote to a statement about Mr Fischer's apparent inability to meet the medical fitness requirements for appointment, Mr Anderson said "your Regional Office has provided information that due to your conduct and work performance your appointment should be annulled". But he did not go into details or seek a response to this information. This is understandable. The complaints about conduct and work performance had already been thoroughly canvassed, as recently as the counselling session on 8 March.
Counsel does not point to any ground of criticism adopted by Mr Anderson that had not previously been discussed with Mr Fischer, under circumstances where he had a full opportunity to make a defence. There is nothing in the complaint of denial of procedural fairness.
Conclusion
In my opinion, the Judicial Registrar was correct in concluding that the termination of Mr Fischer's employment did not contravene Division 3 of Part VIA of the Industrial Relations Act and was not otherwise unlawful. The application for review should be dismissed and her decision confirmed.
I certify that this and the preceding thirty-one (31) pages are a true copy of the Reasons for Judgment of
Chief Justice Wilcox.
Associate:
Dated: 1 September 1995
APPEARANCES
Counsel for the Applicant: R Reitano
Solicitor for the Applicant: Geoffrey Edwards & Co
Counsel for the Respondent: G Johnson
Solicitor for the Respondent: Australian Government Solicitor
Dates of hearing: 22 February, 1995
3, 4 and 5 July 1995
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