Forge, Joanne v Redeployment & Retirement Appeal Committee
[1995] FCA 1172
•3 OCTOBER 1995
CATCHWORDS
ADMINISTRATIVE LAW - judicial review of decision of Redeployment and Retirement Appeal Committee - appeal from decision of Secretary to issue notice of retirement under s76W Pubic Service Act 1922 - whether appellant "unable to perform duties" because of "incapacity" - whether retirement of appellant unreasonable.
Public Service Act 1922 (Cth) s76W, s76WA, s76Z.
NO. VG 184 OF 1995
JOANNE FORGE v REDEPLOYMENT AND RETIREMENT APPEAL COMMITTEE AND COMMONWEALTH OF AUSTRALIA.
BLACK C.J., DAVIES and SPENDER JJ.
MELBOURNE
3 OCTOBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 184 of 1995
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N:
JOANNE FORGE
Appellant
- and -
REDEPLOYMENT AND RETIREMENT APPEAL COMMITTEE and COMMONWEALTH OF AUSTRALIA
Respondent
MINUTES OF ORDER
CORAM: BLACK CJ, DAVIES and SPENDER JJ.
PLACE: MELBOURNE
DATE: 3 OCTOBER 1995
THE COURT ORDERS THAT:
The appeal is dismissed.
The costs of the appeal of the second respondent be paid by the appellant.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 184 of 1995
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N:
JOANNE FORGE
Appellant
- and -
REDEPLOYMENT AND RETIREMENT APPEAL COMMITTEE and COMMONWEALTH OF AUSTRALIA
Respondent
CORAM: BLACK CJ, DAVIES and SPENDER JJ.
PLACE: MELBOURNE
DATE: 3 OCTOBER 1995
REASONS FOR JUDGMENT
THE COURT: This is an appeal from a judgment of Jenkinson J, dismissing an application for judicial review of a decision of the respondent, the Redeployment and Retirement Appeal Committee constituted under the Merit Protection (Australian Government Employees) Act 1984. The respondent Committee decided that the appellant Ms Forge was totally and permanently incapacitated, and more particularly, that the decision of the delegate of the Secretary of the Department of Veterans' Affairs to issue a notice of retirement under s76W of the Public Service Act 1922 was not unreasonable.
The relevant subsections of s76W of the Public Service Act are set out below:
"76W (1) Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the relevant Secretary may, having considered whether it would be in the interests of the efficient administration of the Secretary's Department to transfer the officer under section 50, subject to subsection (2), by notice in writing given to the officer, reduce the officer's classification or retire the officer from the Service.
...
(6)In this section, 'relevant matter', in relation to an officer, means any of the following matters:
(a)that an officer is unable to perform his or her duties, or other duties appropriate to the officer's classification, because of physical or mental incapacity;
(b)that an officer is inefficient;
(c)that an officer is not qualified to perform his or her duties;
(d)that an officer is an excess officer."
In the exercise of his discretion under the Public Service Act the Secretary followed personnel management guidelines entitled: "Fitness for Continued Duty", issued on 4 December 1990. As provided under s76X of the Public Service Act the instructions set out in this circular have been notified in the Gazette, and are binding on secretaries and heads of agencies. The guidelines contained a definition of "totally and permanently incapacitated".
Section 76WA provides:
"76WA (1)In spite of anything contained in section 76W, an officer who:
(a)is an eligible employee for the purposes of the Superannuation Act 1976; and
(b)has not reached his or her maximum retiring age within the meaning of that Act;
is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.
(2)In spite of anything contained in section 76W, an officer who:
(a)is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and
(b)is under 60 years of age;
is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act."
Subsection (1) provides that in spite of anything contained in s76W an officer who is an eligible employee for the purposes of the Superannuation Act 1976, and has not reached his or her maximum retiring age within the meaning of that Act, is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act, unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under s54C of that Act. That section provides for a certificate in circumstances where the person is, because of mental or physical condition, unable to perform his or her duties.
It is to be noted that s54B of the Superannuation Act contains a definition of "totally and permanently incapacitated" which is in slightly different terms to the definition in the guidelines. This definition is set out below:
"54B. For the purposes of this Part a person is totally and permanently
incapacitated if, because of a mental or physical condition, it is unlikely that the person will ever be able to work in any employment or hold any office for which the person:
(a)is reasonably qualified by education, training or experience; or
(b)could become reasonably qualified after retraining."
Section 76Z(1) of the Public Service Act provides that an officer to whom notice under s76W has been given may, within the prescribed period after receiving the notice, appeal to an Appeal Committee against the giving of the notice on the ground that the reduction in the officer's classification, or the retirement of that officer, as the case requires, would be unreasonable. The majority of the Committee expressed its conclusions relevant to the present appeal in paragraphs 14, 15, 17, 18 and 19 of its reasons, which are as follows:
"14. Dr Rose in a report to the Department on 21 March 1994 states as follows: 'I agree that Miss Forge presents as an intelligent and reasonable person. Her psychotic illness has interfered little if any with her rational and logical powers. She is therefore able to present herself in the most reasonable manner and to give the impression that she would cope adequately in her professional capacity as a pharmacist... (however) Dr Yewers may not have had access to reports from others who have worked with Miss Forge'. He concluded that the 'problem is that repeated psychotically derived behaviour on the part of Miss Forge creates a work situation which is impossible for fellow employees. If she were not psychiatrically ill, her employers might be tempted to use disciplinary measures against her.'
15. Evidence was given by six staff members from the Pharmacy Department as to the difficulties of working with Miss Forge and particularly in endeavouring to supervise her. This evidence did adduce a consistent line of argument that, despite the best efforts of staff to work with Ms Forge, her presence in the workplace had produced an undue level of tension and discomfort for her colleagues. Particular mention was made of efforts to supervise her work in 1991 and the reluctance of staff to engage in supervision of her again.
...
CONCLUSIONS
17.Factors influencing the majority of the Committee were:
(i) Medical evidence was conflicting but the weight of evidence from different medical sources inclined us to the views put by Dr Rose and the Australian Government Medical Officer, Dr Harries;
(ii) The difficult staff interactions referred to by Ms McMahon were consistently referred to in evidence given by staff members from the Pharmacy Department. All staff members referred to disruption to work routine and stress from working with Ms Forge and to the close supervision needed;
(iii) We were concerned at the extent to which the Hospital tried to transfer Ms Forge to a less critical area of work. While these efforts appeared perfunctory, equally the Hospital does appear to be undergoing, or potentially undergoing, a significant reduction of clerical staff as amalgamation with another hospital proceeds;
(iv) Despite adequate supervision, Ms Forge's standard of work was not to a standard appropriate to a Pharmacist in her position;
(v) Her manner of relating to staff in the Pharmacy Department and the wider Hospital was not adequate and at times was intimidating and rude;
(vi)Although Ms Forge recognises that she has had a psychological illness, she does not accept that her illness is on-going and needs treatment and that, if there were no compulsion to continue treatment, she would not be likely to do so;
(vii) While, as stated at the commencement of these reasons, Ms Forge presents in a rational fashion, it is possible that this favourable impression arises from her current medication;
(viii)Ms Forge is insightless to her failings as pointed out by various supervisors and she has not used constructive criticism from them to improve her performance. We do have a concern that it is impossible to give a clear prognosis for a psychological illness. However, lack of insight is used as one prognostic indicator.
18. The Committee considered the definition of 'Totally and Permanently incapacitated' as contained in the 'Fitness For Continued
Duty' guidelines issued by the Public Service Commission which reads as follows:
'"Totally and Permanently incapacitated" in relation to an officer means that the officer is unlikely ever to be able to work again in a job for which the officer is reasonably qualified by education, training or experience or for which the officer could reasonably be qualified after retraining.'
19. The considerations raised in these reasons and, more particularly, in Paragraph 17 lead the majority of the Committee to conclude that Ms Forge is totally and permanently incapacitated in terms of the above definition and that the decision of the Delegate to issue a Notice of Retirement under Section 76W of the Public Service Act was not unreasonable."
The gravamen of the appellant's complaint before us, as it was before the learned primary judge, was that the Appeal Committee was in error in considering whether the appellant was totally and permanently incapacitated. This, it was argued, was the wrong question, and it was said that by considering it the Committee took into account an irrelevant matter, and also failed to take into account a vitally relevant matter, namely whether the officer was unable to perform her duties: see s76W(6)(a).
Mr T Hurley of counsel, who appeared for the appellant, submitted that the vital question became lost because the Committee directed itself to an issue which was raised in the personnel guidelines, namely incapacity, and moreover, he said, raised in a way that obscured the question further by diverting attention from the necessary link between the inability to perform duties and a mental incapacity.
The learned primary judge was careful to confine his observations to the particular facts of this case. Whilst it overstates the matter to say that the Appeal Committee was obliged to consider the question of total and permanent incapacity in the present case, we are of the opinion that it was not in error in the present case in doing so.
The term "unreasonable" as used in s76Z is obviously of broad scope, and it permits the Committee to consider whether, having regard to the circumstances of the case and the future prognosis of an officer's mental and physical condition, an imposed retirement would be unreasonable. We agree with the conclusion of the learned primary judge that in the factual circumstances of the present case, no conclusion that the applicant is totally and permanently incapacitated could be reached unless it had been concluded that she was presently unable to work; that is to say, unable to perform his or her duties or other duties appropriate to her classification because of, in this case, mental incapacity.
Mr Hurley also submitted that the Committee failed to distinguish between the term "condition" and the term "incapacity". But on the facts of this case we do not consider that any such failure has been demonstrated. Indeed, we think it plain that the Committee did in fact consider that the question raised by s76W(6)(a) in its consideration of the ultimate question it had to decide, namely, whether the retirement of the appellant would be unreasonable: see s76Z.
Mr Hurley did not press his submission that the Committee's preference for the evidence of Dr Norman Rose was unreasonable in the Wednesbury sense: see Associated
Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. That submission cannot, in our view, be sustained since it was clearly open to the Committee to accept Dr Rose's evidence.
In these circumstances the appeal must be dismissed.
I certify that this and the 7 preceding pages are a true copy of the reasons for judgment of the Honourable Court herein.
Associate
Dated:
Counsel for the Appellant : T V Hurley
Solicitors for the Appellant : Baker & Armstrong
Counsel for the Respondent : A B McMahon
Solicitors for the Respondent : Australian Government Solicitor
Date of Hearing : 3 October 1995
Where Heard : Melbourne
Date of Judgement : 3 October 1995
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