Fischer v Commonwealth of Australia

[1996] IRCA 139

DECISION NO:  139/96

CATCHWORDS

INDUSTRIAL LAW  - termination of employment - Commonwealth public service employee - whether termination governed by Industrial Relations Act 1988 (Cth) or Public Service Act 1922 (Cth) - whether employee afforded procedural fairness - whether valid reason for termination - whether termination harsh, unjust or unreasonable.

LEGISLATION - implied repeal - whether delegated legislation can effect an implied repeal of an earlier Act - whether reg 30B(1)(c) Industrial Relations Regulations impliedly repealed s 47 Public Service Act 1922 (Cth) - whether implied repeal expressly authorised - whether both acts should operate together.

STATUTORY INTERPRETATION - effect of an international convention to which Australia is a party - whether international convention incorporated into domestic law under one act is incorporated into domestic law for all purposes - whether Public Service Act 1922 (Cth) should be interpreted in light of ILO Recommendation Concerning Termination of Employment at the Initiative of the Employer where the terms of the Act are clear and unambiguous.

Industrial Relations Act 1988 (Cth): s 170CA, s 170DC, s 170DE, s 170EDA
Industrial Relations Regulations 1988 (Cth): reg 30B(1)(c)
Public Service Act, 1922 (Cth): s 42, s 47,
ILO Convention Concerning Termination of Employment at the Initiative of the Employer
ILO Recommendation Concerning Termination of Employment at the Initiative of the Employer

South Australia v O'Shea (1987) 163 CLR 378
Butler v Attorney-General (Vic) (1961) 106 CLR 268
South Australia v Tanner (1989) 166 CLR 161
Minister for Immigration v Teoh (1995) 183 CLR 273
Nicolson v Heaven & Earth Gallery Pty Limited (1994) 1 IRCR 199
Austereo Limited v Trade Practices Commission (1993) 41 FCR 1
Hall v Manahan [1919] StRQd 217
Hotel Esplanade Pty Ltd & Plowman v City of Perth [1964] WAR 51
Pearce and Geddes Statutory Interpretation in Australia (4th ed 1996) para [7.16]

THOMAS FISCHER v COMMONWEALTH OF AUSTRALIA & ANOR
No. NI 3630 of 1995
Moore, Beazley and Marshall JJ
16 April 1996
Sydney

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA                    )
  )    No. NI 3630 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
  )

BETWEEN:THOMAS FISCHER

Appellant

AND:COMMONWEALTH OF AUSTRALIA

First Respondent

DEPARTMENT OF SOCIAL SECURITY

Second Respondent

CORAM:MOORE, BEAZLEY and MARSHALL JJ

PLACE:SYDNEY

DATE OF ORDER: 11 March 1996
DATE REASONS FOR JUDGMENT PUBLISHED:  16 April 1996

SHORT MINUTES OF ORDER

The Court orders that:

1. The appeal be dismissed.

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 3630 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
  )

BETWEEN:THOMAS FISCHER

Appellant

AND:COMMONWEALTH OF AUSTRALIA

First Respondent

DEPARTMENT OF SOCIAL SECURITY

Second Respondent

CORAM:MOORE, BEAZLEY and MARSHALL JJ

PLACE:SYDNEY

DATE OF ORDER: 11 March 1996
DATE REASONS FOR JUDGMENT PUBLISHED:  16 April 1996

REASONS FOR JUDGMENT

This is an appeal from a decision of the Chief Justice in which his Honour held that the termination of the appellant's employment did not contravene Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth) (the Act) and was not otherwise unlawful. At the hearing of the appeal, the Court dismissed the appeal, without hearing from counsel for the respondents. We now publish our reasons for judgment.

Issues on Appeal
Several issues were raised on the appeal. They were: first, whether the appellant was excluded from the operation of Subdivisions B and C of Division 3 of Part VIA of the Act by reg 30B(1)(c) of the Industrial Relations Regulations 1988 (Cth). Regulation 30B(1)(c) deals with probationary employees. Secondly, whether reg 30B(1)(c) effected an implied repeal of s 47 of the Public Service Act, 1922 (Cth), and if so, whether the appellant's termination was ultra vires the Public Service Act with the consequence that he had been denied procedural fairness in contravention of s 170DC of the Act. Thirdly, whether s 47 of the Public Service Act should be read down so that a 12 month period of probation was the maximum reasonable period of probation. Fourthly, whether the termination was otherwise contrary to s 170DC of the Act. Fifthly, whether the appellant's termination was harsh, unjust or unreasonable in contravention of s 170DE of the Act.

Background Facts
The appellant was employed by the first respondent, as an Administrative Services Officer, Class 1, within the second respondent, the Department of Social Security, pursuant to s 42 of the Public Service Act. His employment was terminated on 15 June 1994, under s 47 of the Public Service Act when the second respondent annulled what it said was a probationary appointment. 

The appellant's appointment to his position was made by an instrument of appointment executed on 8 February 1993. The instrument provided that the appointment was to take effect from the date of the instrument or the date of commencing duty, whichever was the later. As events turned out, the appellant commenced work on the same date, that is, 8 February 1993. The instrument made no mention of appointment on probation, or the length of any probation. However, as a result of the combined operation of ss 42 and 47 of the Public Service Act, though subject to an exception which appears not to be relevant, appointment as an officer to the public service is on a probationary basis. Section 47 specifies the circumstances in which an appointee may be confirmed as a permanent officer of the public service or alternatively, whereby the appointment may be terminated. The minimum period of probation under the Public Service Act is 6 months. In this case, although the appellant was not advised of the provisions of s 47, there was undisputed evidence that when the appellant was interviewed for the position, he was told that appointments were made on a probationary basis, that the probationary period would be a minimum of 6 months and that the appellant would be subject to probation reports. He was also told that if his conduct, diligence and efficiency were satisfactory, and he passed the medical examination, his appointment might be confirmed. On 19 March 1993, the second respondent wrote to the appellant, stating:

"Confirmation of your appointment is subject to a 6 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 6 months service, the probationary period may be extended up to a total period of 2 years.  If your conduct or work performance was considered unsatisfactory...your appointment may be annulled."

In addition, on the date of his appointment, the appellant, signed a "temporary employment acknowledgment pending permanent appointment form" in which he acknowledged the temporary nature of his employment.  The document stated that the employment would cease, amongst other reasons, upon permanent appointment or should his service be unsatisfactory.

The appellant was the subject of a number of unsatisfactory assessments by his supervisors.  At the end of the initial period of 6 months probation, the appellant's manager decided that the appellant was to remain on probation.  The appellant was then subject of a combined assessment for the 9 month and 11 month periods of his employment, although the report was prepared some time after the relevant periods.  His supervisors recommended that, as at the end of the 9 month period, the appellant's probation continue.  However, in respect of the 11 month period, it was recommended that his appointment be terminated.  This recommendation was eventually accepted. 

The combined assessment report for the 9 and 11 month periods was challenged by counsel for the appellant on the basis that it evidenced a deliberate pre-judgement of the appellant's performance for the purposes of terminating his employment.  The ground for this criticism was that the report was the second report done for these two periods.  The first report was considered to be unsatisfactory for a number of reasons and the appellant's supervisors were directed to redo it.  The second report was then prepared.  We do not consider that the evidence supports any inference that the second report was biased or unfair.  The same basic concerns with the appellant's work performance and conduct were raised in the first and second report and the recommendations made in each report were the same.  Even if there was some validity in the criticism, the officer who directed that the report be redone and the supervisors who prepared the report were not the persons charged with making a decision as to the appellant's continuation or termination of employment.

On 28 April 1994, a meeting took place between the appellant, the personnel manager, Mr Anderson, and a union delegate.  The union delegate advised that the appellant was unclear why his appointment had been recommended for annulment.  There followed a lengthy discussion about various issues relating to the appellant's medical condition, work performance and conduct.  On the same day, Mr Anderson wrote to the appellant, inviting him to provide any additional material or comment he wished to make in respect of the recommendation that this appointment be annulled.  As there is an issue as to the proper construction of this letter, it is appropriate to set it out in full:

"I refer to your probationary appointment as an officer of the Australian Public Service as an Administrative Service Officer Class 1.  Confirmation of your appointment is dependent, among other things, upon your conduct, work performance, health and physical fitness being satisfactory.

The Commonwealth Medical Officer (CMO), has now advised me, you do not meet the medical fitness requirements for appointment should the restrictions imposed by the CMO be unreasonable to be accommodated by the Department.  The Disability Contact Officer and Regional Manager have assessed the accommodation of the restriction within the workplace and have advised it would be unreasonable to accommodate these as filing is an integral part of Administrative Service Officer duties.   In addition, your Regional Office has provided information that due to aspects of your conduct and work performance your appointment should be annulled.

Before a decision is made on whether your appointment should be terminated, you have the opportunity of providing written comments and additional medical information in respect of the CMO's recommendation.

The report from the Commonwealth Medical Officer and specialist report from Dr Roarty will be released to your treating doctor, Dr Ellen Campion of 33 Ocean Street, Bondi 2026.

Any comments or additional information you wish to be considered should be forwarded within two weeks of the date of this letter otherwise a decision will be taken on information currently available.

You should note that the Public Service Act does not provide a right of appeal against a decision to terminate a probationary appointment. If you do not wish to contest the CMO's findings please advise me as soon as possible."

On 12 May 1994, the Branch Organiser of the Public Service Union wrote to Mr Anderson, expressing concern about the recommendation to annul the appellant's appointment and addressing comments in respect of each area of concern raised in the 11 month assessment report.

On 30 May 1994, Mr Anderson decided to terminate the appellant's employment.  In coming to this decision, Mr Anderson considered the appellant's fitness on medical grounds.  He concluded that this issue was unresolved and therefore not a basis for termination of his employment.  He also considered the appellant's work performance and conduct.  He prepared a file note specifying his consideration of these issues.  The file note states:

"Work Performance:

Mr Fischer had 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 months of employment it would be reasonable for Mr Fischer to have achieved a level of performance achieving minimum standards 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 supervisor's efforts to get Mr Fischer to perform normal office tasks would in my opinion be sufficient cause to warrant termination of appointment.

I have also grave concern about the privacy implication of Mr Fischer's comments to his supervisor Mr Laurie 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."

Mr Anderson concluded:

"For the above reasons - mainly conduct and secondarily work performance I consider Mr Fischer's appointment should be terminated."

On 1 June 1994, Mr Anderson wrote to Mr Fischer advising him that his employment was terminated as he was not satisfied that his "conduct and work performance meets the minimum performance standard required for confirmation".

The respondents' case on appeal
The respondents submitted that Regulation 30B(1)(c) applied to the appellant's employment so that he was excluded from the operation of sub-division B and C of Division 3 of Part VIA of the Act. Having regard to the conclusion we have reached in respect of the other issues raised on the appeal, it is unnecessary to deal with that matter. It is convenient therefore to move immediately to the other issues raised by the appellant.

Did regulation 30B(1)(c) impliedly repeal s 47 of the Public Service Act?

Counsel for the appellant submitted that regulation 30B(1)(c) was inconsistent with s 47 of the Public Service Act as reg 30B(1)(c) referred to a probationary period of employment which was "reasonable". Section 47, which refers to a maximum probationary period of 2 years was, according to the submission, unreasonable. It was submitted that the maximum period of probation which could be said to be reasonable in the circumstances was 12 months. Regulation 30B(1)(c) therefore impliedly repealed s 47.

It was submitted that under the Public Service Act, there are only two kinds of employee, permanent employees and probationary employees.  Strictly, this is not correct, as the Public Service Act makes provision for both officers and employees. However, it is not necessary for us to distinguish between the two for present purposes. At the time the appellant's employment was terminated, he had been on probation for 16 months, that is for a period which was longer than was reasonable. As there had been an implied repeal of s 47 to the extent that it provided for a probationary period longer than 12 months, the appellant was, at the time of his dismissal, a permanent employee. Consequently, the termination was ultra vires the provisions of the Public Service Act, as the appellant was dismissed under provisions of the Act which had no application to him, by a person who had no authority to effect the dismissal.  Nor was he accorded a hearing as required under the Public Service Act for permanent employees.  It was submitted that he was thereby denied natural justice so that the termination of his employment contravened s 170DC of the Act.

We do not agree with this submission, which in our view is untenable.  It overlooks the fundamental principle that delegated legislation cannot effect the repeal of an earlier Act except where the repeal is expressly authorised: Hall v Manahan [1919] StRQd 217;  Hotel Esplanade Pty Ltd & Plowman v City of Perth [1964] WAR 51; Pearce and Geddes Statutory Interpretation in Australia (4th ed 1996) para [7.16].  There is no such express authorisation in this case.

Should s 47 of the Public Service Act be read down so that a 12 month period of probation was the maximum reasonable period of probation?

It was also submitted that as the ILO Recommendation Concerning Termination of Employment at the Initiative of the Employer (the Recommendation) had been incorporated into the Act, and thereby into Australian domestic law, s 47 should be "read down", so as only to permit appointment for a period which was reasonable within reg 30B(1)(c). Counsel for the appellant conceded that 12 months was a reasonable period for the purposes of the regulation, but submitted that 2 years was unreasonable. As, at the date of termination the appellant had been employed for a period in excess of 12 months, his employment should no longer be treated as probationary and thus the appellant was not excluded from the unlawful termination provisions of the Act. In Minister for Immigration v Teoh (1995) 183 CLR 273, the High Court considered the status of an international treaty to which Australia is a party. Mason CJ and Deane J stated at 286-287:

"It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute...

...

But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law.  Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument.  That is because parliament, prima facie, intends to give effect to Australia's obligations under international law."

Section 170CA(1) of the Act provides that the object of Division 3 of Part VIA is to give effect to the Termination of Employment Convention and the Termination of Employment Recommendation. The provisions of reg 30B(1)(c) give effect to clause 2(2)(b) of the Recommendation. That does not mean however, that the Recommendation has been incorporated into Australian domestic law for all purposes. An international treaty only becomes incorporated into domestic law by express enactment and only to the extent of that enactment. Certain provisions of both the Convention and the Recommendation find express enactment in the Act and Regulations, such as clause 2(2)(b) of the Recommendation does in reg 30B(1)(c). Neither the Convention nor Recommendation has been incorporated into the Public Service Act. 

Nor is there any basis for construing s 47 so as to accord with clause 2(2)(b) of the Recommendation. In the first place, the Public Service Act was enacted prior to Australia's entry into the Convention. More significantly, ss 42 and 47 do not exhibit any ambiguity which might otherwise invite consideration of the Convention provisions as an aid to their construction. Section 42 provides that all employment under the Public Service Act will initially be on probation. Section 47 provides for a minimum period of probation, that is, 6 months. Within that period of time, the Commissioner may only confirm the appointment. There is no right to terminate during the probationary period. Termination may only be effected after the period of probation has expired and before the appointment has been confirmed (s 47(1)(4)). At the end of a period of 12 months, if the appointment has been neither confirmed nor terminated, the Secretary must, as soon as practicable, confirm or terminate the appointment: s 47(6). If at the end of 2 years, an appointment has been neither confirmed nor terminated, the appointment shall be deemed to have been affirmed: s 47(7). The undoubted purpose of subs (7) is to ensure that a probationary period will not be overlooked.

As we have said, these terms are clear and unambiguous.  The sections must be applied according to their clear terms.  They cannot, by application of the Convention, be read down so as to provide for a probationary period which is "reasonable".  One final point should be made.  It was implicit in this submission, consistently with the appellant's overall submissions on this issue, that a 2 year probationary period was unreasonable, although it was conceded that a one year period was reasonable.  It is not necessary to enter this debate as the Convention cannot have the effect for which counsel for the appellant contended.

Whether termination was otherwise procedurally unfair
Section 170DC provides:

"An 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 the appellant submitted that the appellant had been denied procedural fairness as he was not given a proper opportunity to respond to the respondents' concerns about his conduct and work performance.  This submission depends, in part, upon the construction of the 28 April 1994 letter.  Counsel for the appellant submitted that the letter dealt with the appellant's medical condition and not with his conduct and work performance.  However, the basis of his termination was conduct and work performance, not his medical condition.

Counsel relied, in particular, on the second and fourth paragraphs of the letter in support of this construction.  He submitted that the second paragraph was directed, in the main, to the appellant's medical condition.  Conduct and work performance rated only a brief mention at the end of the paragraph.  The fourth paragraph was directed solely to the appellant's medical condition.  He said no other paragraph in the letter referred to conduct and work performance nor was there any express invitation to the appellant to comment on conduct and work performance.  He submitted that a reasonable person would read the letter as only calling for a response to the medical condition.  We do not agree.  The first, fifth and sixth paragraphs clearly refer to conduct and work performance.  There is no reason why those paragraphs should be read as inconsequential.

Further, the letter came after the meeting of 28 April 1994 when conduct and work performance were extensively discussed.  It cannot be said, in that context, that the issues of conduct and work performance could, on a proper construction of the letter, be relegated to such minimal importance.  In addition, although this factor may not have been sufficient of itself, the appellant had had an opportunity to submit detailed responses to the criticisms of his conduct and work performance made by his supervisors in his work assessments.  Further, on 12 May 1994 the union wrote to Mr Anderson arguing against the annulment of his appointment.

It was further submitted that the appellant was denied procedural fairness in that, having, on 30 May 1994, made the decision to terminate the appellant on the basis of conduct and work performance, Mr Anderson should have then afforded the appellant an opportunity to address these specific matters.  We do not agree.  On that day Mr Anderson decided to terminate the appellant's appointment having regard to all the matters relating to the appellant's conduct and work performance, matters which had been the subject of his work assessments, the appellant's response to those assessments, counselling sessions, the meeting of 28 April 1994 and the letter of 12 May 1993.  At the meeting on 28 April 1994, the appellant was well aware that consideration was being given to the annulment of his employment.  The letter of 28 April 1994 expressly referred to the recommendation that the appellant's employment be annulled.  The appellant was given the opportunity to respond, not only in respect of any medical issue, but to any matter which related to his work performance and conduct as the termination of his employment was under active consideration.  The appellant, as at that time, was aware of the matters in contention between him and his employer.  The letter of 28 April clearly and sufficiently afforded him the opportunity to respond to these matters.

No new matter was taken into account at the time Mr Anderson made his decision on 30 May 1994.  In these circumstances, there was no requirement of procedural fairness that the appellant be afforded another opportunity to address a decision that his services be terminated: see South Australia v O'Shea (1987) 163 CLR 378 at 389; Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199.

Was the termination harsh, unjust or unreasonable
Section 170DE provides:

"(1)An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employees capacity or conduct...

(2)A reason is not valid if, having regard to the employee's capacity and conduct...the termination is harsh, unjust or unreasonable."

The employer bears the onus of proving that there was a valid reason or reasons of the kind referred to in s 170DE(1) for the termination: s 170EDA. If the employer satisfies that onus, the onus is upon the employee to prove that the reason or reasons were not valid.

In the present case, the appellant had a history, almost from the commencement of his employment, of poor conduct and unsatisfactory work performance.  This included inappropriate conduct towards female staff, his attitude to the integrity of senior departmental officers and the difficulty which his supervisors had encountered in having him perform his duties. In our opinion, these were valid reasons for his termination. 
It was also submitted that the respondents were not entitled to rely upon any conduct or work performance prior to 7 January 1994.  The relevance of that date is that at that point, the appellant was advised that having regard to his 6 monthly probation report, his probationary period was to continue.  Mr Anderson noted, however, that the supervisor had reported an improvement in work performance and greater flexibility and responsiveness and the appellant was encouraged to continue that improvement.

We do not agree with this submission.  When considering whether to terminate the appellant's employment, the respondents were entitled to take into account the whole of the appellant's employment history, notwithstanding that at one stage it had acknowledged that the appellant's performance had improved.  Indeed, it would be relevant for an employer to consider whether any improvement in performance was sustained or sufficient to warrant the continuation of employment. Accordingly, the appellant has not demonstrated that the termination was harsh, unjust or unreasonable on this basis.

In written submissions prepared by the appellant before he was represented by Mr Newall, the appellant submitted that the termination of his employment was unlawful having regard to the fact that he received no written warnings that he was about to be dismissed. Nor was he given a warning that if he did not perform his duties satisfactorily for a reasonable period of time, he would lose his job after that time elapsed.

We take this to be a submission to the effect that if his employment was terminated for a valid reason, the termination of the applicant's employment was nonetheless harsh, unjust or unreasonable.

The appellant, for the reasons we discussed in the context of s 170DC of the Act, was sufficiently appraised of the allegations he had to meet.  The 28 April 1994 letter confirmed in writing that his employment was in jeopardy.  We have already expressed our view that there was no requirement on the second respondent to give the applicant further notice of the intended termination, whether in writing or otherwise. There is nothing additional in the consideration of this matter under s 170DE(2) which causes us to reach any different conclusion. 

Accordingly, we reject the submission that the appellant's employment was terminated harshly, unjustly or unreasonably.

Conclusion
Having regard to the conclusion we have reached, it is not necessary to determine whether the applicant was excluded from the operation of Div 3 of Part VIA by reg 30B(1)(c).

I certify that this and the preceding 17 pages
are a true copy of the Reasons for Judgment
of the Honourable Justices Moore, Beazley and Marshall.

Associate:

Dated:     16 April 1996

APPEARANCES

Counsel for the Appellant:          Mr P Newall

Counsel for the Respondents:              Ms P Sharp

Solicitors for the Respondents:     Australian Government Solicitor

Date of hearing:  11 March 1996