Gutwein v Tasmanian Industrial Commission
[2020] TASSC 59
•4 December 2020
[2020] TASSC 59
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Gutwein v Tasmanian Industrial Commission [2020] TASSC 59 |
| PARTIES: | GUTWEIN, Peter (The Honourable) as Minister Administering the State Service Act 2000 |
| v | |
| TASMANIAN INDUSTRIAL COMMISSION | |
| FILE NO: | 1103/2020 |
| DELIVERED ON: | 4 December 2020 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 18 November 2020 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Administrative Law – Judicial review – Grounds of review – Jurisdictional matters – Jurisdiction of Tasmanian Industrial Commission under State Service Act 2000 (Tas) – Jurisdiction dependent on finding of employment within statutory meaning – Fact of employment not established.
State Service Act 2000 (Tas), s 50.
Aust Dig Administrative Law [1029]
Public Service – Appointment under Public Service and similar Acts – Whether appointed permanently or temporarily – Other States or Territories – Tasmania – Fixed-term employment under State Service Act 2000 (Tas) – Effect of expiry of fixed-term.
State Service Act 2000 (Tas), ss 39, 50.
Aust Dig Public Service [1019]
REPRESENTATION:
Counsel:
Appellant: P Turner SC Respondent: Not represented Dr Woods E Skalidis
Solicitors:
Appellant: Solicitor-General Dr Woods Dobson Mitchell Allport
| Judgment Number: | [2020] TASSC 59 |
| Number of paragraphs: | 52 |
Serial No 59/2020 File No 1103/2020
THE HONOURABLE PETER GUTWEIN, AS MINISTER
ADMINISTERING THE STATE SERVICE ACT 2000
v TASMANIAN INDUSTRIAL COMMISSION
| REASONS FOR JUDGMENT | PEARCE J 4 December 2020 |
1 The applicant is the Minister administering the State Service Act 2000 (the Act). He applies under the Judicial Review Act 2000 for an order of review of the conduct of the Tasmanian Industrial Commission, constituted by Deputy President Ellis, on 7 May 2020. The conduct in question concerns an application made to the Commission on 14 August 2019 under the Act, s 50(1)(b), by Dr David Woods for review of action which related to his employment within the Tasmanian Health Service (THS).
2 Before the Commission, the Minister raised, as a preliminary issue, the contention that the Commission had no jurisdiction to determine Dr Woods' application because he was not, when the application was made, an "employee" of the State Service. By a written decision dated 7 May 2020 the Commissioner determined that Dr Woods was an employee, that the Commission did have jurisdiction and that "[d]irections would be issued to progress the review application." In this application for judicial review, the Minister contends that the Commission, by proposing to proceed to a determination on the merits of the review application, is engaging in reviewable conduct because:
(a) by ground 1, the Commission does not have jurisdiction to make the proposed decision, and the Act does not authorise the making of the proposed decision: Judicial Review Act, s 18(2)(c) and (d); and (b) by ground 2, an error of law was committed in the course of the Commission's consideration of the application because there was no evidence, or no sufficient evidence, which permitted a finding that Dr Woods was an employee within the meaning of that term in the Act: Judicial Review Act, s 18(2)(f)(i). 3 The Minister seeks an order under the Judicial Review Act, s 27(2)(a), declaring that the Commission does not have jurisdiction to hear and determine Dr Woods' review application. The Commission did not appear to the application and submits to the jurisdiction of this Court. Dr Woods, as the person whose interests are, or may be, affected by the Commission's conduct and this application, appeared and made submissions to contradict the Minister's contentions.
The circumstances of the State Service review application
4 The evidence before the Commission was almost entirely uncontentious. By an instrument of appointment dated 4 August 2016, Dr Woods was appointed as a fixed-term employee for the purpose of providing care and treatment to patients of the THS. He was to perform the duties of a specialist medical practitioner in palliative care. His employment was expressed to be for the period commencing 1 August 2016 and terminating on 31 July 2019. The appointment was made by a representative of the THS "as a delegate of the Head of the State Service".
5 Dr Woods had, by a series of consecutive appointments, been providing palliative care services for the THS in its various forms since 2002. Before the 2016 appointment, appointments were made in 2002 for three years, in 2005 for three years, in 2008 for five years and in 2013 for three years. In two cases the formal instrument of appointment was not issued until about five weeks after the expiry date of the instrument it replaced. The 2016 instrument was issued on 4 August 2016, a few days after the
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2013 instrument expired on 31 July 2016. The instruments issued in 2002, 2005 and 2008 appointed Dr Woods as an officer under the Act, s 31. Thereafter, the appointments were as a fixed-term employee under s 37(3)(b). Those provisions, and the distinction in the Act between an officer and an employee, will be explained later in these reasons.
6 At 4.50 pm on 31 July 2019, the day his latest fixed-term appointment was due to expire, a letter was sent to Dr Woods by email from Eric Daniels. Mr Daniels was the Executive Director of Operations for the North and North West of the Tasmanian Health Service. The letter enclosed an instrument of appointment which was expressed to "outline your terms and conditions of employment." Dr Woods was invited to accept the instrument by signing and returning it to departmental representatives "within seven days of receiving this letter." The terms of the proposed instrument were to appoint Dr Woods as a fixed-term employee for the term of six months commencing 1 August 2019 and expiring 1 February 2020 "for the purpose of fulfilling the duties on a fixed-term basis whilst the Tasmanian Health Service determines the on-going staffing requirements of the Specialist Palliative Care Service ...". The appointment was to be made by a representative of the THS, not Mr Daniels, as a delegate of the Head of the State Service under s 21 of the Act.
7 Mr Daniels' letter was accompanied by a covering email from him which stated:
"Dear David,
Please find enclosed an Instrument of Appointment for your consideration. As you will
note in the Appointment letter, the period of appointment is six months. I wish to meet
with you to discuss the reasons for the same and my office will forward you a meeting
invitation next week.
Should you have any questions in the interim please do not hesitate to contact me."
8 Dr Woods did not sign the instrument he was presented with. He took pre-approved annual leave on Thursday 1 and Friday 2 August 2019. He attended work as normal on Monday 5 August and Tuesday 6 August 2019. On 6 August Dr Woods attended a meeting with Mr Daniels. He was accompanied by Dr Stanislaw Gauden. James Bellinger, Human Resources Manager for THS, was also present. Dr Woods questioned the term of his proposed appointment and was further informed by Mr Daniels that there would be no further appointment beyond that six month period. Dr Gauden said nothing except that, according to his witness statement tendered to the Commission, he "asked for an extension on behalf of Dr Woods given that he had not been given sufficient time to respond to the new contract of employment and sought an extension of three weeks". Mr Daniels agreed that Dr Woods would be permitted a "three week extension" of the time allowed for consideration of the offer of appointment.
9 On Wednesday 7 August 2019 Dr Woods attended work as normal. On Thursday 8 August 2019 Dr Woods took a period of personal leave for which he provided a medical certificate covering the period 8 August 2019 to 16 August 2019. The application for review under the Act was lodged on 14 August 2019 while Dr Woods was on personal leave. In the application Dr Woods sought an order from the Commission that:
"… the Tasmanian Health Commission is precluded from issuing a 6 month fixed term
contract as the Applicant is a permanent employee with reasonable expectation of
ongoing employment."
10 On 16 August 2019, after making his application to the Commission, Dr Woods advised the THS that he would be taking additional personal leave from 19 August 2019 to 23 August 2019. His advice was responded to on behalf of THS by Dr Peter Renshaw by email stating "Thank you David. Noted. See you on the 26th. Peter."
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11 On Friday 23 August 2019 Mr Daniels wrote to Dr Woods by email stating that by reason of his non-acceptance of the offer of appointment made on 31 July 2019 "he was no longer an employee as defined in the State Service Act 2000. Your employment as a fixed term employee is concluded effective 31 July 2019." Dr Woods was given a pay advice slip for the period 28 July 2019 to 10 August 2019. He was paid salary and benefits until 23 August 2019.
12 The position of Staff Specialist – Palliative Care for the THS Northern Region was subsequently
advertised as a permanent full time position with applications to close on 16 February 2020. Dr Woods
did not apply.
The Commission decision
13 The Commission determined that Dr Woods was a fixed-term employee and was thus an employee under the Act. The Commission found that it thereby had jurisdiction to determine the application of review and would proceed to do so.
14 The Commission concluded that although the instrument of appointment submitted on 31 July 2019 was not agreed to by Dr Woods, there was to be implied, from the words spoken at the meeting of 6 August 2019 and conduct of the parties, a "variation to the period of fixed-term employment under the 2016 IOA". The Commission determined that the terms of the variation were that Dr Woods continued to be employed under that appointment for a further three weeks. Some issue arose as to when the three week extension was to commence. That issue is irrelevant for present purposes because the application to the Commission was made within the three week period regardless of which of the alternative commencement dates is correct. The Commission reasoned that because the extension went beyond the date on which the application for review was lodged, Dr Woods was an employee when the application was made, and the Commission thus had jurisdiction to determine it.
The jurisdictional issue
15 Section 50 of the Act is in these terms:
"50 Review of actions Subject to subsections (2) and (3), an employee is entitled to make application to the Tasmanian Industrial Commission for a review –
(1)
(a) of the selection of a person or an employee to perform duties other than duties to be performed for a specified term or for the duration of a specified task; or (b) of any other State Service action that relates to his or her employment in the State Service.
(2) An employee is not entitled to make an application for a review under subsection (1)(a) if that employee was not an applicant for the duties to which the appointment or promotion relates.
(3) An employee is not entitled to make an application for a review under subsection (1)(b) in respect of the termination of the employee's employment.
(4) Notwithstanding anything contained in subsection (1), (2) or (3), disputes in relation to the decision to terminate employment are to be dealt with by the appropriate industrial tribunal in accordance with the legislation under which that tribunal is established." [Emphasis added.]
16 The Commission is constituted by the Industrial Relations Act 1984, s 5(1). The jurisdiction, functions and powers of the Commission are stated in Part 7 of that Act. The provision of the Industrial Relations Act which empowers and requires the Commission to determine an application for review under the State Service Act, s 50(1), is s 19AA which provides:
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"19AA(1) The Commission is to review a matter in respect of which an application for review has been made to it under section 50(1) of the State Service Act 2000.
(2) The Commission may refer any matter in respect of which an application for review has been made to it under section 50(1) of the State Service Act 2000 to the Ombudsman, the Integrity Commission or the Anti-Discrimination Commissioner or any other person or body that may be prescribed in the regulations.
(3) A person is not entitled to make application to the Full Bench of the Commission in respect of a matter referred to in section 50(1) of the State Service Act 2000."
17 By the Act, s 51(7), the determination of the Commission in respect of an application for review
is final.
18 As will be further explained, Dr Woods' complaint did not concern selection of a person to perform duties other than for a specified term. His application could therefore only have been under s 50(1)(b) of the Act. That provision is expressed in very broad terms. It permits an employee to apply for review of "State Service action" relating to his employment in the State Service. State Service action is a term defined in s 49 to mean action by an officer or an employee but not including an action to make an appointment to an office under s 31. Dr Woods was not appointed to an "office", and so he was, if he was an employee, entitled to apply for a review of the action of whichever officer or employee, be it the Head of the State Service, the Head of the Agency or a delegate of one or the other, decided the terms of the offer of appointment made on 31 July 2019.
19 For the purposes of this Judicial Review Act application, the applicant did not submit that the matters sought to be raised by Dr Woods did not relate to his employment in the State Service. The powers of the Commission in determining an application of review are stated in s 51(6). They relevantly provide that the Commission may either refuse to grant the application of review, or to:
"… (c) grant the application and recommend or direct the Employer or the Head of
Agency or any person to whom the powers of the Employer or the Head of Agency have been delegated, to take such action as the Tasmanian Industrial Commission considers appropriate."
20 Counsel for the applicant accepted that it may have been possible for the Commission, in determining a valid application for a review of action, to direct or recommend to the Employer to grant the relief sought by Dr Woods, that is to, under s 37(4), change Dr Woods' employment status from a fixed-term employee to a permanent employee.
21 Before me, some debate arose about whether s 20 of the Industrial Relations Act applied to the Commission's determination of a notice of review under the Act. Section 20(1)(a) provides that in the exercise of its jurisdiction under the Industrial Relations Act, the Commission "shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms." I do not think that whether s 20 applies or not is of any consequence. It was common ground that Dr Woods was only entitled to make application of review if, at the time of the application, he was an employee within the meaning of that term in s 50. That can only be determined on the proper interpretation of the Act and consideration of the evidence.
22 It follows from the foregoing that, in my view, the question of whether Dr Woods was, at the time he made the application to the Commission, an employee under s 50 of the Act is properly to be considered as a jurisdictional fact. In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, 199 CLR 135, in the joint judgment of Gleeson CJ and Gummow, Kirby and Hayne JJ at [28], their Honours stated:
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"The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion."
23 In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, 204 CLR 82, Hayne J stated at
[163]:
"There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."
24 Whether legislation creates a jurisdictional fact of the kind to be objectively ascertained by the Court is a question of statutory construction: Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281 at [53]. A jurisdictional fact may be distinguished from a fact which the legislation suggests may be better determined as part of the inquiry.
25 I accept the submission of the applicant that, on the proper construction of the Act, the Commission had no power to determine the application for review unless, at the time it was made, Dr Woods was an "employee" in the relevant sense. It was properly the subject of a preliminary determination of the Commission's jurisdiction. To avoid the difficulties described by Crawford J (as he then was) in Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97, 15 Tas R 158 at [32], the application for judicial review is directed to the Commission's conduct in, having rejected the jurisdictional argument, then proposing to proceed with the review application with a view to making a decision on its merits. Dr Woods does not submit that the conduct is not a reviewable matter under the Judicial Review Act.
26 This Court should determine, for itself, the jurisdictional fact. The evidence before me is essentially the same as the evidence before the Commission. In Corporation of the City of Enfield v Development Assessment Commission the High Court was considering prerogative writs. However, at [22], the plurality stated:
"…where the question is whether the decision-maker has erred as to the jurisdictional
facts, as in this case, that question has to be answered by the court in which it is litigated upon the evidence before that court. In this respect, where the issue requires determination of whether jurisdictional facts existed, the task of the court to determine that question is essentially the same whether the relief sought be equitable or, for example, prohibition."
The legislation
27 Assigning legal meaning to the words of a provision begins with consideration of the ordinary and grammatical meaning of the words, taking into account both context and legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ; Australian Education Union v Department of Education and Children's Services [2012] HCA 3, 248 CLR 1 at [26]; Roadshow Films Pty Ltd v iiNet Ltd [No 2] [2012] HCA 16, 248 CLR 42; R v A2; R v Magennis; R v Vaziri [2019] HCA 35, 373 ALR 214 at [124]. Here, regard must be had to the words used, and the meaning expressly ascribed to the words, by the Act.
28 The Act is, by its long title, an Act "to provide for the establishment and management of the State Service." It provides that the State Service consists of "Heads of Agencies, holders of prescribed
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offices, senior executives and employees": s 6. By operation of s 5, and subject to its terms, the Act applies to "officers" and "employees". Some explanation is necessary of the meaning of those and other terms used in the legislation and the structure of the various relationships created by the Act.
29 In the Act, s 3, the term "the Employer" is defined to mean the Minister administering the Act. The "Head of the State Service" is the person appointed by the Premier to perform and exercise the functions and powers of the Employer under the Act and as specified in the Act: s 20. The Head of the State Service may delegate functions and powers: s 21. The Act also provides that the person holding the office of Secretary of the various Government departments is appointed to be a Head of Agency: s 29(1) and Schedule 1. One such Head of Agency is the Secretary of the Department of Health, which department administers the THS. The functions of a Head of Agency are specified in s 34(1), and include, by par (a), to ensure that the Agency is operated as effectively, efficiently and economically as is practicable, by par (b), to determine duties to be performed by employees in that Agency and, by par (e), to assign duties to each employee within that Agency.
30 Although the Head of Agency operates the Agency and determines and assigns the duties of employees within the Agency, it is not the employer of those employees. In the case of the THS, so much is made even clearer by the Tasmanian Health Service Act 2018, which, by s 19(1)(b), excludes the power for the THS to enter into contracts of employment. Rather, by s 23, the THS may make arrangements, with the Secretary, for State Service officers, or State Service employees of the Department to be made available to the THS for the purposes of the THS. Under the Act, it is the Minister administering the Act, through the Head of the State Service, who is the Employer. One of the functions of the Employer is to determine the requirements for the employment of employees in the State Service: s 15(1)(e). The Employer has power to do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of the Employer's functions under the Act: s 16(1).
31 By s 8, Heads of Agency must uphold, promote and comply with the State Service Principles established by s 7, which include that:
"(a) the State Service is apolitical, performing its functions in an impartial, ethical
and professional manner;(b) the State Service is a public service in which employment decisions are based on merit; … (m) the State Service provides a fair system of review of decisions taken in respect of employees."
32 The Act also provides, in s 17, for the Employer to issue Employment Directions which relate to administration of the State Service and employment matters relevant to the Act and have effect unless inconsistent with or repugnant to other provisions of the Act. By operation of s 3(3), a reference in the Act to "this Act", includes Employment Directions. They are thus given legislative force.
33 The Act provides for appointment of both officers and employees. An officer means a person appointed as a Head of Agency, to a prescribed office or as a senior executive under s 31. Part 6 of the Act deals with appointment of officers and is not of direct relevance to this application. Dr Woods' appointment was not as an "officer".
34 Part 7 of the Act provides for State Service employees. What is meant by the term "employee" in the Act is of fundamental importance to the result of this application. It should first be noted that s 3(3) provides that a "reference in this Act to employment, in relation to an employee, is a reference to employment in the State Service." By s 37(3):
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"The appointment of a person as an employee is to be –
(a) as a permanent employee; or (b) for a specified term or for the duration of a specified task."
35 The terms "employee", "fixed-term employee" and "permanent employee" are defined in s 3 to
mean:
"employee means a permanent employee or a fixed-term employee, but does not include a person appointed to an office under section 25 or 31 or a person in respect of whom an arrangement under section 46(1)(a) is in force;
…
fixed-term employee means a person appointed for a specified term or for the duration
of a specified task as referred to in section 37(3)(b);
…
permanent employee means a person appointed as a permanent employee as referred
to in section 37(3)(a)."
36 Other provisions of Part 7 are relevant:
the appointment of a person as an employee is to be based on merit and made in accordance with
Employment Directions: s 37(1); the appointment of a person as an employee is made by the Employer on behalf of the Crown:
s 37(1)(b); the Employer may change the employment status of an employee from a fixed-term employee to a
permanent employee: s 37(4); the terms and conditions of employment are subject to any applicable award: s 38(1); the employment of a permanent employee may be terminated by the Minister but only on the
grounds listed in s 44(3); the Employer may terminate the employment of a fixed-term employee "in accordance with the
terms and conditions under which the employee is appointed": s45(1).37 The procedure for appointments and promotions is contained in s 39. Appointments to perform duties required by a Head of Agency are to be advertised, and then made in accordance with the State Service Principles. It is useful to set out the terms of that provision in full:
"39(1) If a Head of Agency requires duties to be performed in an Agency by the appointment of a person or the promotion of a permanent employee under section 37 to perform those duties, the Head of Agency is to advertise those duties in accordance with Employment Directions unless the Employer otherwise determines.
(2) If the classification assigned to duties is varied in accordance with section 34(1)(d), those duties are taken not to be assigned to an employee and are to be dealt with in accordance with subsection (1).
(3) The Head of Agency is to select, in accordance with the State Service Principles,
a person or employee to perform the duties referred to in subsection (1) or (2). under section 51 that the selection be undertaken again, no appointment is to be made under subsection (4) until that direction is complied with."
(4) The Employer, subject to the outcome of an application for a review under
section 50(1)(a), is to appoint or promote under section 37(1) the person or employee
selected by the Head of Agency to perform the duties.
(5) If an employee has made application for a review to the Tasmanian Industrial8 No 59/2020
38 There was evidence before the Commission of two Employment Directions made by the Minister. Both are expressed to apply to the employment of all State Service employees. The first was made on 1 May 2001 and the second on 17 March 2016. The latter is the most relevant. It repeats and expands upon many of the provisions of the Act. Clauses 7 and 8 respectively concern fixed-term employment, and advertising and selecting a person to undertake fixed-term duties. Clause 7.1 provides that "Permanent employment is the usual form of employment in the State Service. However, where necessary to meet the operational needs of an Agency, fixed-term employees may be appointed for a specified term or for the duration of a specified task." Fixed-term duties for more than 12 months must be advertised: clause 8.4. Clause 8.1 provides that fixed-term duties for up to 12 months are to be advertised, performed by a person who may be selected from a fixed-term register, or the subject of expressions of interest. However, for fixed-term duties up to and including 6 months, the Head of Agency may make a selection from employees in their own Agency without advertising.
39 By clause 13 of the 2016 Employment Direction, a fixed-term employee who has completed 24 months' continuous service in the same duties may "apply to their Head of Agency as the delegate of the Head of the State Service to have the fixed-term duties they are performing advertised for filling on a permanent basis." By clause 14, the Head of Agency may transfer the status of a fixed-term employee to a permanent employee under the circumstances described in that clause. Decisions under the clause may be evaluated by the Head of the State Service where necessary.
Was Dr Woods an employee at the time of his application?
40 Dr Woods was an employee of the State Service until 31 July 2019 because he was, at that time, a fixed-term employee. Senior counsel for the applicant concedes that for the period between 1 August 2019 and 23 August 2019, Dr Woods was an employee of the State. With respect, the concession is properly made. The situation could hardly be otherwise and the evidence which forms the basis of that conclusion is not in contention. Between 1 August 2019 and 23 August 2019 Dr Woods variously attended his place of employment, saw patients, prescribed medication, was paid salary and benefits, took paid leave, and in all respects was treated by others within the THS, Dr Renshaw for example, as an employee. That contract of employment arose from the mutual course of conduct of the parties. Had the proposition been tested, I have no doubt that the terms of the employment which continued until 23 August 2019 were in accordance with the terms of his appointment which applied prior to 31 July 2019, apart from the term, together with all of the normal incidents of the relationship of employer and employee, in the ordinary sense.
41 However, counsel for the applicant submits that the existence of an employment relationship between the State and Dr Woods, so described, for the period from 1 August 2019 until it was terminated on 23 August 2019, does not constitute Dr Woods as an employee as that term is to be interpreted in s 50. Counsel for the applicant submits that, in light of the terms of s 37 of the Act, Dr Woods cannot be an employee under the Act unless he is either a permanent employee, s 37(1)(a), or employed for a specified term, or for the duration of a specified task, and thus a fixed-term employee, s 37(1)(b).
42 I accept that Dr Woods was not a permanent employee at the time of his application. The submission of his counsel to the contrary must be rejected. Dr Woods was not appointed as a permanent employee. It may be that, in light of the long period of his continuous employment, the State Service Principles, and the Employment Directions, there were grounds to argue that he should be given the status of permanent employee. However that was a question for the Employer, or possibly the Commission, to be determined in accordance with the Act. The Act contains detailed provisions for advertisement, selection and appointment of permanent employees. The contention that Dr Woods should have been a permanent employee, however strong that argument may or may not be, did not make him a permanent employee so as to give him status to apply to the Commission for a determination that he be made a permanent employee.
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43 The real issue for determination is whether Dr Woods was, at the time of the application to the Commission, a fixed-term employee.
44 Two observations may immediately be made:
(a) Had Dr Woods accepted and signed the six month appointment offered to him, even if his acceptance was after 1 August 2019, he would have been a fixed-term employee from 1 August 2019 according to the express terms of that appointment. He would therefore have been an employee under the Act. I see no reason to conclude that he would not, in those circumstances, have been able to validly apply to the Commission for the same relief sought by his application made 14 August 2019. (b) However, if the applicant's contentions are correct, and absent acceptance of the offer of appointment while that offer remained open, notification only ten minutes before close of business on the day the 2016 appointment was due to expire on 31 July 2019, effectively excluded Dr Woods from the opportunity to validly apply to the Commission under s 50 for review of the decision to offer him only a six month term. The interpretation contended for by the applicant would, if correct, mean that a person ceases to be an employee immediately upon expiry of a fixed-term appointment, thus precluding that person from any application to the Commission for review under s 50, regardless of the merits of the application. Counsel for the applicant referred to the situation as a "guillotine". 45 It is not difficult to imagine how apparent unfairness may result if the applicant's contentions are correct. One example is not far removed from the circumstances of this case. A Head of Agency may propose to permanently appoint a person to perform duties previously performed by a fixed-term employee. The position is advertised and the incumbent applies, but is notified only after expiry of the fixed-term appointment that he or she was not successful. Regardless of the merit principle, although the situation seems to fall clearly within the terms of s 50(1)(a), and despite the State Service principle to provide a fair system for review of decisions taken in respect of employees, if the unsuccessful applicant is no longer an employee under the Act, he or she is without a remedy under s 50. That is so regardless of whether, as here, the person continues to be an employee of the State in the usual sense. Adoption of the meaning of employee contended by the applicant would also mean that after expiry of a fixed-term appointment, the person appointed would have no right to apply under s 50 for redress arising from a claimed breach of the terms of the appointment while it was in force.
46 However, s 50 makes clear that the right to apply under s 50 is confined to employees. A person applying for State Service employment from outside the State Service has no right of review under s 50, regardless of merit. So much is clear from the terms of s 39, which contemplate selection and appointment of either an employee or a person (who is not an employee) to perform duties advertised in accordance with s 39(1) or (2), while only an employee may apply to the Commission for a review of the selection: ss 39(5) and 50(1). Counsel for the applicant addresses the potential for injustice by pointing out that the person affected, Dr Woods in this case, is not kept out of any other potential remedy or means of redress.
47 A determination that Dr Woods was not an employee under s 50 leads to results which may be regarded as somewhat incongruous. To me, there is an obvious tension in the conclusion that Dr Woods, in the circumstances, is an employee of the State but not an employee of the State Service. However, the terms of the Act compel me to the conclusion that, at the time of his application to the Commission, he had not been appointed for a specified term or for the duration of a specified task, and was therefore not a fixed-term employee. I respectfully disagree with the contrary conclusion reached by the learned Commissioner.
| 48 | It was not contended by Dr Woods that his arguments are assisted by the terms of his 2016 appointment, or the Salaried Medical Practitioners (AMA Tasmania/DHHS) Agreement 2009 and the |
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Salaried Medical Practitioners Interim Agreement 2015, which were incorporated into that appointment. The only basis on which it could be claimed that Dr Woods was a fixed-term employee is Mr Daniels' agreement on 6 August 2019 to a three week extension of the period within which Dr Woods was to respond to the offer of appointment, and the conduct of THS in continuing to treat Dr Woods as an employee. However, in my opinion, even the combined force of those acts and conduct could not properly be regarded as appointment as a fixed-term employee, when the words, context and purpose of the Act are taken into account. Before the Commission, and before me, counsel for the applicant accepted that Mr Daniels was authorised to, and did, agree to an extension of the time for response. However I accept the applicant's submission that such an agreement is to be distinguished from agreement, whether express or implied, to an extension of the expired term for a fixed-term. Appointment of a person as an employee is to be made by the Minister as Employer: s 37(1)(b). The functions and powers of the Employer are to be performed by the Head of the State Service: s 20(2). The powers of the Head of the State Service may be delegated under s 21. However there was no evidence that Mr Daniels, or anyone else in the THS, had authority or delegated power to agree to the creation or extension of a fixed-term appointment in such an informal way. The scheme of the Act for appointment of employees suggests to the contrary.
49 Proposed appointments were to be advertised in accordance with Employment Directions: s 39(1). The 2016 Employment Direction, particularly clauses 7, 8 and 9 of the Direction, contain detailed requirements for advertising for, and selection of, persons for fixed-term employment. Those clauses impose requirements for, and limitations on, continuation of fixed-terms. Clause 8.3 provides that, for fixed-term duties up to six months, "the Head of Agency may make a selection from employees in their own Agency without advertising". However, Dr Woods had just completed a fixed-term appointment for three years. Clause 9.3 provides that fixed-term appointments that provided continuous employment in excess of 36 months may only be made in special circumstances and with the prior approval of the Head of the State Service. Informal creation of fixed-terms for such a short period, in the manner contended for by Dr Woods, fall outside the operation of the Act.
Conclusion and orders
50 For those reasons both grounds for review are established.
51 I am satisfied that, on 14 August 2019, Dr Woods was not an employee within the correct meaning of that term in the State Service Act, and thus the fact upon which the jurisdiction of the Commission to deal with the application for review under s 50 of the Act filed on that day did not exist. I would declare, pursuant to s 27(2)(a) of the Judicial Review Act, that the Commission does not have jurisdiction to hear and determine Dr Woods' review application.
52 I will hear the parties as to any further or consequential orders.
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