Henderson, E v Australian Telecommunication Commission

CATCHWORDS

ADMINISTRATIVE L A W - temporary employee - whether appointment as

an "officer" - repetitive straln injury

-.sick leave - slow

progress on rehabilitation programme

- CH0 report - opportunity

to provlde further information

- whether basis on which

respondent could find applicant unfit for employment as a data

processing operator - whether respondent requlred

in the

circumstances to afford applicant an opportunity to be heard

whether order should be made in the light

of non-compliance wrth

another condltion precedent

to employment.

Administrative Decisions (Judicial Review) Act

1977

s . 5

Telecommunications Regulations

r.35A.

Trigger v. The Australian Telecommunications Commisslon

(Full Court, 17.12.84,

unreported).

KlOa V. West (1986) 60 A.L.J.R. 113.

ELIZABETH HENDERSON V. AUSTRALIAN TELECOMMUNICATIONS COMMISSION

NO. G47 Of 1986

Jackson J .

1st December 1986

Brlsbane

IN THE FEDERAL COURT OF AUSTRALIA

)

QUEENSLAND DISTRICT REGISTRY

1	No. G47 of 1986

GENERAL DIVISION

BETWEEN :

ELIZABETH HENDERSON

Applicant

-	AND: AUSTRALIAN TELECOMMUNICATIONS

COMMISSION

Respondent

CORAM :	JACKSON J.
-	DATE :	1st December 1986
PLACE :	Brisbane

MINUTES OF ORDER

THE COURT ORDERS THAT:

1 .

The application for an order

review be refused.

NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Xules.

IN THE FEDERAL COURT

OF AUSTRALIA

QUEENSLAND	DISTRICT	REGISTRY	,	1	No. G47 of 1986
1

DIVISION

GENERAL

BETWEEN :

ELIZABETH HENDERSON

Appllcant

-	AND: AUSTRALIAN

TELECOMMUNICATIONS

COMMISSION

Respondent

CORAM :

JACKSON

DATE

1st December 1986

PLACE

: Brisbane

REASONS FOR JUDGMENT

These

are proceedings in which the applicant seeks an

rder of rev

iew under

s . 5 of the Administrative Decisions

(Judicial Review) Act

1977 in respect of a decision

communicated to her by the respondent

by a letter dated

20th

March 1986.

I shall refer later to the terms

of the letter

and to the events which followed it,

bltt it is sufficient for

the moment to say that it was intended

to bring to an end as

from 1st April

1986 the applicant's employment

by the

respondent as a data processlng operator and

to communicate tc

her the fact that she was not to be appointed as an "of5icer"

of the respondent.

The applicant's employment

by the respondent to that

time had been as

a member of the Australian Telecommunications

Commission Service which is established

by s.38(1) of the

Telecommunications Act 1975 and consists relevantly

of persons

"appointed as officers" or "employed as temporary employees"

in accordance with Part

V of that Act. See s.38(2).

The

Commission's "officers", for whom quite elaborate provision is

made (see e.g. ss.39, 40, 5 0 , 51, 541, are for practical

purpose* its "permanent" employees and may only be appointed

if they satisfy the criteria in

s.39(2).

Appointment as an

officer is initially an appointment

on probation for a period

of six months (s.40(1)).

Temporary employees may also

engaged by the respondent (s.42(1)) but the Act itself

relatively silent

on the position of employees so engaged.

(See generally the discussion of the relevant provisions of the Act in Trigger v. The Australian Telecommunications

Commission (Full Court, unreported, 17th December

1984)).

The applicant's employment

3 y the respondent commenced

on 16th April 1984. She was

at all times employed by the

respondent as a temporary employee, having been first

interviewed for the purposes

of employment on 9th April 1984

by two of the respondent's officers,

Mrs de Wit and MS

Sheehan. The employment which was discussed

on that occasion

was temporary employment as a data processor

in training and I

am satisfied that during the discussions which occurred the possibility that a permanent position might result from the employment was discussed. In particular I am satisfied that

the applicant was informed that if she had passed the

necessary examinations as a data processor and

if her work

performance were satisfactory then subject to availability

a permanent position and subject

to her passing a medlcal

examination she had good prospects

of permanent employment by

the respondent in the relatively near future.

I do not accept the applicant's evidence that she was

given an assurance

of permanent employment in an earlier

telephone conversation with

Mrs de Wit, nor

do I think that

any such assurance was given during the interview

on 9th April

1384.

At the same time, as I have said, there were

good

prospects of

permanent appointment in the future, and thls

fact was recogniz& in the conversation which occurred during

the interview.

It was the practice

of the respondent when engaging

staff in the position

of the applicant to send

a letter

setting out the terms

of employment and it

is contendea by the

respondent that in accordance with the practice the applicant

was sent the original

of Exhibit D to Mrs de Wit's affidavit

Of lath June 1986 which is relevantly as follows:-

"CONFIRMATION OF FIXED TERM EMPLOYMENT

Position DATA PROCESSING OPERATOR IN TRAINING

Commencing Salary (Gross)

$8462 per annum

Location

REVENUE

BRANCH

Period of Employment from 16/4/84 to 31/1/85

I wish to confirm arrangements made recently in

connection with your employment in the above position. As discussed employment is offered for the above period

only.

However, if adverse reports on your conduct,

diligence or efficiency are received at any time during

this period, your services may be terminated.

"he basic conditions

of service as an employee are

described overleaf.

Commencing Tnstructions

Please report at:

8.30 am

to: 7th Floor

Communications Bouse

131 Barry Pde

FORTITUDE VALLEY "

The applicant denies that she received such a document

and there is no direct evidence

of the posting of it. In the

circumstances I am not prepared to make

a finding that the

letter was sent to or received by the applicant but

I am

satisfied that in

one way or another t%- applicant was aware

at all times that her employment was

of a temporary nature

although, as I have said, there was a significant possibility

that she would become

a permanent employee.

In the latter part

of 1984 it became apparent to Mrs

Wit that a vacancy was likely to arise

for the appointment to

a permanent position of a data processing operator.

The

applicant was spoken to in this regard and she was one	of a
number of persons who were in consideration for the

appointment to the position.

It had not been necessary for the applicant to be

medically examined for the purpose

of her initial appointment

but it was necessary,

no doubt by reason

of s.39(2)(a) of the

Telecommunications Act, for

her to be so examined for the

purpose of a permanent appointment, and in consequence

of this

she was medically examined by a Commonwealth Medical Officer,

Dr Ephraums, on 3rd December 1984.

It was necessary for

M r s de Wit to make a formal

recommendation for permanent appointment in respect

of the

applicant, and she did so on 12th November 1994. When doing

so she had some reservations about her suitability because

her sick leave record and she enclosed the sick leave record with the recommendation. In response the Appointments Officer

in the respondent‘s Personnel

and Industrial Relations

Department by a memorandum dated 10th December 1984	saic! in
relation to the applicant that:-

“As her sick leave has been

excessive, she should not

have been recommended for appointment but

infomed that

recommendation of her appointment would be deferred

for

six months and that meanwhile she should endeavour to

obtain a satisfactory sick leave record.

......

Please take action to warn Yiss Henderson accordingl:~ and inform her that the recommendation for her

appointment will be deferred for

6 months during whlc:?

she should establish a satisfactory sick leave recor?

or her services will

be terminated.“

Mrs de Wit accordingly wrote

to the applicant on 8th

January 1985 stating:-

“I regret to advise that

I am unable to recommend your

permanent appointment	as the amount of sick leave taken
has been excessive.

Your sick leave record will be reviewed in May 1985 and should it still not be satisfactory consideration may

have to be given

to termination of your services. It

is hoped this review will indicate

a satisfactory leave

record so that appointment can proceed.

In view

of the above the period of your fixed term

temporary employment has been extended

to 31 May 1985.“

Although that letter was dated 8th January 1985 it was not in fact received by the applicant until 26th February 1985 when it was handed to her after she had recommenced

employment. She had been on sick leave from 12th December

1984 until late February 1985 as

a result of an accident which

occurred while she was

on her way to work,

a period of sick

leave which I accept was not then or later taken into account

in considering whether she had taken

“excessive“ sick leave.

After the applicant resumed employment

on 26th February

1985 the incidence

of her sick leave, other than the sick

leave taken in consequence of the accident

to which I have

referred, reduced and on

4th June 1985 Mrs de Wit wrote to the

applicant in the following terms:-

“On 8 January 1985 you were sent

a letter asvising that

permanent appointment could not

be recommended because

of your unsatisfactory sick leave record.

Your sick leave record has been reviewed and it has been decided to proceed with permanent appointment. It will be necessary for you to be re-examined by the

Commonwealth Medical Officer before appointment can

take place.

”

I should mention at this point that

it was argued,

albeit faintly, that the letter

of 4th June 1985 was an

appointment of the applicant as an officer under

s.39(1) of

the Act. That provision

is as follows:-

“(1)

The Commission may appoint as officers such number

of persons as it thinks necessary for the purposes	of
this Act“.

The exercise of the power conferred by

s.39(1) is limited,

however, by s.39(2) which provides inter alia that:-

“(2) A person shall not be appointed as

an officer

unless -

(a) the Commission is satisfied, after he has

undergone a medical examination require2

5 y the

Commission, as to his health and physical

fitness;

”

and it is clear that the respondent

has never been so

satisfied. It was argued in t’le alternative that the terms

s.39(2)(a! are not a “condition precedent“ to the exercise of

the power conferred by

s.39(1), but rather a “condition

subsequent“ and that a person might be appointed

sub~ect

to a

later compliance with

s.39(2)(a).

The opening wads of

s.39(2) are clear, however, and militate against the adoption

of such a view.

In the result I am satisfied that the applicant has

never been appointed an "officer".

At the time when Mrs de Wit wrote the letter of 4th

June 1985, and indeed when

had written the letter

of 8th

January 1985, Mrs de Wit had not seen the report from Dr

Ephraums resulting from

his examination of the applicant in

December 1984.

It was not until later in June

1985 that she

did see that report. The report had noted

a Gtatement by the

applicant that at Christmas

1982 the applicant had attended

Princess Alexandra Hospital for examination and X-rays

of her

neck "after diving into shallow

pool", that she was not

admitted into hospital on that occasion but that she had worn

a brace for two weeks and that she still suffered some neck

discomfort if she slept on

a hard pillow. In the report Dr

Ephraums stated his opinion,

as the form required, that the

applicant was not likely

to reach maximum retiring

age if

engaged because of "Late effects of neck injury - Xistory of headaches". That conclusion was agreed in by Dr Schmidt, another Commonwealth Medical Officer at Brisbane. Dr Ephraums

was also of

the view that the applicant should

be re-examined

in 11 months to enable

a decision to be made on her permanent

employment :n the light of her neck condition.

After Mrs de Wit became aware

of the terms of that

report she caused

to be sent to the applicant

a letter dated

26th June 1985 which was as follows:-

"On 4 June 1985 you were sent

a letter advising that

your sick leave record

has been reviewed and it had

been decided to proceed with your permanent appointment take place.

and that you would be required to be re-examined by the

I now further advise, that as

a result of your initial

medical examination of

3 December 1984, the

Commonwealth Medical Officer

has advised that you do

not meet the standard for appointment at this time and

that you will

be required to attend for

re-examination in early November before

a final

decision regarding your medical fitness can be given.

Further details will be forwarded to you

at a later

date.

On 27th June 1985, however, the applicant was absent from work on sick leave, the cause being repetitive strain injury which I accept was caused by her work with the

respondent. She was absent from the same cause the next

day,

and then for

a period from 3rd

July until 17th September

1985.

(Once again

I accept that these periods were

not later taken

into account in considering whether she had taken excessive

sick leave.)

She returned to work on 18th September

1985 and

provided a report from Dr Martin Devereaux,	zi rheumatologist,
who said that:-

"She has now made

a full recovery. 1 would be grateful

if you could slowly introduce her back

to her data

prolonged periods at the keyboard.

processing - with initial variety and avoidance of

Within 5-10 days I would expect she should be capable of all work."

The applicant, on her return to work, was place2 on

programme for rehabilitation arranged by the

respon8ent's

Occupational Health Section. The aim of the programme was to

start with a little data processing and work

up to more and

more until she reached

a stage where she was able to

key in at

data processing for fifty minutes out

of every sixty. By

mid-January 1986, however, the applicant was able to work over

a whole day for about

10 minutes each hour at the

keyboard,

for about 3 5 minutes each hour doing clerical work

and having

a break of about 10 minutes, although on occasions in the mornings she was able to work for about 2 5 minutes at the keyboard. She agreed in evidence that at all times her

performance was not nearly sufficient

to be employed as

a data

processing operator but said that the length

of time involved

in her rehabilitation was due to the fact that she was "snowed

under with clerical

work" which "seemed to

have more

importance than the keyboard work".

I do not believe the

applicant's evidence that the

length of time involved in her rehabilitation was because she

was snowed under with clerical work. I think that the

applicant knew that her progress in rehabilitation was slow

and was seeking to provide an explanation, which was untrue,

for her having performed poorly, in comparative terms, at the

rehabilitation course. The average time taken by repetitive

strain injury sufferers in the rehabilitation course before

being able to resume work as data processing operators was

about one month. Whilst I am not prepared on the evidence to

find that the applicant was told

of that fact,

I yet think

that the applicant

knew that her performance was not as

good

as that of other repetitive strain injury sufferers	in the
course.

As will be apparent from the remarks which

I have just

made Dr Devereaux's prognosis

hac! proved too optimistic and

the applicant was still suffering from repetititive straln

injury on 16th January 1986 when she was re-examined by Dr

Ephraums. Dr Ephraums noted in one of his reports of that

date that in

June 1985 the applicant had had

"RSI both wrists

and forearms" and that "Pain persists in R/forearm	h wrist".
His "recommendation" was expressed as follows:-

"Recommendation - not fit for work as

a DPO Gr 1.

Redeploy to clerical duties."

He stated the position	a little more fully in another report
of the same date.

After receipt of the reports,

Mrs de Wit wrote to the

applicant on 6th February 1986 a letter which stated that:-

"As you are aware permanent appointment as

a Data

Processing Operator was deferred because the

Commonwealth Medical Officer declared you medically

unfit for appointment after your examination in

December 1984.

The results of your re-examination by the

CNO on 16

January 1986 have been received and he has aSvise2 that

you are still are (sic) not medically fit for

appointment as a Data Processing Operator.

In the circumstances

I regret to advise that we are

unable to offer further employment: therefore your services will be terminated from close of Susiness on

Friday 14 February 1986.

Salary owing will be made

available on that day at the Paymasters Office and all

other monies owing to you will be forwarded by cheque

to your home address as soon as possible after that

date.

”

The letter was handed

to the applicant on the same day.

The consequence of the letter of 6th February 1986 was

that industrial action was threatened by the

applicant‘s union

and in the result it was decided to give the applicant

opportunity to put forward any further material which she

wished.

That decision was conveyed on 14th February

1986 when

Mrs de Wit handed to the applicant

a letter in the following

terms :

“I refer to my letter of

6 February 1986 advising

termination of services from close

of business on 14

February 1986.

That decision has been taken in line

with the conditions of Staff By-Law	156 (copy attached)
and based on the following facts:

(a)

Whilst employed on a temporary basis you Segan

to suffer from RSI in June

1985 and since then

you have had long periods

of sick leave for that

reason and have not been able

to perform the

duties for which you were employed.

(b) After lengthy participation

in a rehabilitation

work program your progress toward resumption	of
normal duties has been inadequate.

(C)

Resulting from an examination on

16 January 1956

advice has been received from the Commonwealth

Medical Officer indicating you are not medically

fit for appointment as	a Data Processing
Operator.

Before the decision of

6 February is enacted it 5as

been decided to offer you the opportunity

to provide

any further information which could have

a Searing on

my decision making process.

Any such information must

reach me personally by

4.00 pm on Friday 21 February 1995.

In the light of this decision

it has been decided. to offer

a further fixed term period

of employment from 17 February

1986 to close of business on 28 February 1986."

It will be seen that paragraph

(a) of

the letter

referred only to sick leave related to the repetitive strain

injury

The applicant's response to the invitation was

provide medical reports from Dr

S . G . Coleman, an orthopaedic

surgeon, a further report from

i)r Devereaux and a report from

her general practitioner, Dr

A.B. McKay.

I shall refer below

to the terms

of those reports but

it is sufficient for present

purposes to say that

in consequence of their receipt it was

arranged that the applicant would

see, at the instigation of

the Depar'aent

of Health, Dr David Vickers, an orthopaedlc

surgeon in private practice, in early March

1986.

Xthough the letter

of 14th February had referred to

term of employment ending

on 28th February, the term was

extended to 28th March 1986

because of delays involved in

obtaining the medical reports.

Dr Vickers provided

a report dated 7th March

1986 and

after receiving that report and

i)r Ephraums' comments thereon

of 20th March 1986, Mrs de Wit wrote on 20th March 1986 to the

applicant stating that:-

"I refer to my letter of

14 February 1986 advisina that

your employment would be extended to allow examination

of any evidence which might support the continuation of

your employment. All information has now been examined

and the following has been determined.

(a)

Specialist advice from Dr

D Vickers informs us

that -

......

I did however perform an examination as

a matter

of routine and found no abnormality."

"......If she had a genuine case of upper limb

disability from keyboard operating in the past, chances

are this would happen again."

"......I

don't believe that

a trial of work back at the

keyboard is likely to do her any particular

harm".

(b) On the basis of further consideration of all

medical information the Commonwealth Medical Officer

has determined that the decision of

16 January 1986

that you are medically unfit for appointment as	a Data
Processing Operator remains unchanged.

(c)

Your sick leave record is once

again far in excess

of the level considered acceptable for appointment to take place. Since 1.11.85 you have availed of 13 days 1 hour 6 minutes sick leave and have supported your

absences with approved medical certificates

on only two

occasions totalling 5 days 4 hours 41 minutes.

I refer

to my previous warning

of 8.1.85 which stated - "Your

sick leave record will be reviewed in May

1985 an2

should it still not be satisfactory consideration may

have to

k z given to termination

of your services."

(d)	As you have been declared unfit for permanent

appointment the only employment option would be further

fixed term employment as a Data Processing Operator.

Due to a number of circumstances at present we have a

surplus of four DPO's

(not including yourself) and we

will not need to employ any further staff in the

foreseeable future.

Taking into account all the above factors, there is no

change to our decision to cease your employment.

Therefore I regret to advise that your services will

terminated as of close of business on Tuesday	1 April
1986.

A l l salary owing to you will be available at the

Paymaster's Ofice on 1 April and all other monies owing

will be forwarded to your

home address 3y cheque as

soon as possible after that

date."

Some negotiations occurred between the applicant's

union and the respondent and the applicant was continued in

temporary employment pending the determination

of the dispute

which by 10th April

1986 had come before the Australian

Conciliation and Arbitration Commission. On that date

Commissioner Grimshaw recommended that the applicant

be glven

a three month trial	of work. His recommendation was in the
following terms:-

"The evidence suggests MS Henderson no longer suffers

from R.S.I..

It is the recommendation

of this Commission, having

considered the submissions

of the parties and the

exhibits tendered, particularly the medical evidence

that MS Henderson should be re-employed as a Data

Processing Operator and that she be examined by the

Commonwealth Medical Officer

on a monthly basis.

Copies of those reports to

be sent to me and that this

matter will be relisted for report

in 3 months time.

During this period Telecom should make every effort to ensure that the equipment is ergonomically desiqned to

remove or lesser! the likelihood

of further ~nlury."

The three months trial was to commence

on 14th Aprll

1986 but before that could happen the applicant produced	a
medical certificate from Dr McKay which stated:-

"I hereby certify that

on 2/4/06

.T was consulted by

Elizabeth E. Henderson .. who in my opinion

suffering from work related injury resulting

111 "unfit

to work" category and will be unfit for duty	U? to an?
including 1/4/86 to 1/7/06".

In the light of that report, which was at

3dr?s

,&L+-? the

medical reports which were the basis

of Commissioner

Grimshaw's decision, two events occurred. First the respondent refused to participate in the trial of work contemplated by Commissioner Grimshaw, and secondly

Commissioner Grimshaw revoked

his recommendation. I may say

that Dr McKay has asserted in an affidavit in these

proceedings that at the time when

he gave the certificate his

belief was that the applicant "had totally recovered" from the

repetitive strain injury, despite the terms

of the

certificate. It is unnecessary, however, to deal further with

that curiosity.

The decision to bring

to an end the

applicant's

temporary employment (in which was involved the decision not

to take the steps necessary to engage

her as an officer) was

attacked on a number

of grounds, to which I shall turn in

moment. Before doing

so, however, I should deal with one

argument advanced on behalf of the respondent. That argument

IS that the decision conveyed by the letter

of 20th March 1986

is no longer operative because, as it

was put in argument:-

". . . the decision has already been reviewed

and

reconsidered - and reconsidered in favour

of the

respondent for

a period of 10 days, and then altered

again because

of the production

of the medical

certificate, which	showed that she was incapacitated
as from 3 April."

I do not accept this argument. It seems to me chat

the decision to bring to an

end the applicant's temporary

employment and the concomitant decision not to engage her as

an officer were never changed. It

is true that the <ate on

which those

decisions

were

t o t a k e e f f e c t

was

changed,

and

i t

i s

t r u e

t h a t i f t h e t h r e e

month

t r i a l had

proved

s a t i s f a c t o r y

then the decis ions

would

have

changed,

b u t I

not

t h i n k t h a t

t he re was

ever

change

i n t he

substance of those decisions.

As I have said

the decis ion conveyed by t h e l e t t e r of

20th March 1986 was at tacked on a number of

grounds,

the

f i r s t

which

was

put

i n argument

as be ing tha t

breach of natural

j u s t i c e

had

occurred

i n a r r i v i n g a t

the

dec is ion tha t the

appl icant was

medical ly unfi t

for appointment

a da t a

processing

operator.

Although

the argument

was

charac te r l sed

as b reach of na tura l jus t ice , the bases o f the

argument

were

e s sen t i a l ly t ha t t he med ica l r epor t s t o

which

have referred

showed

t h a t a l l t h e m a t e r i a l a s t o t h e a p p l i c a n t ' s

f i tness

was

"one way",

i . e . i n her favour, and tha t

the

appl icant

was

f i t

for

employment

a s

data processing operator.

t h i n k t h a t t h e

argument

so advance2

is simply not

co r rec t

f ac tua l ly .

As I have sa id D r Ephraums' report

1 6 t h

January

1986

was

t he

e f f ec t t ha t t he app l i can t

s t i l l had

RSI,

t h a t

her prognosis was "uncertain" ,

that

she

was

unf i t

fo r

continued

employment,

that

she

should

redeployed to c le r ica l

du t les

and

that

she

should

avoid

repetitive

tasks

for

prolonged

periods.

On its face,

however, Dr Coleman's report 2oes support the

applicant's case in that while

he was of the view that she had a

fatigue type

RSI, and was experiencing some pain in the extensors

the forearm, front

of the wrist and in the ulna

fingers, he yet

expressed the view that her symptoms were then minimal, that she was still able to work, and that there was no permanent disability. The

conclusion that she was still able to work appears

to have been

based, however,

on the view "that she is

now working quite

satisfactorily", a view which I find as a fact was not the case.

In relation to the other reports, Dr Devereaux

did not give

an unqualified report. He had seen her in the period 16th July

1985

to 17th September 1985 and expressed the

view that:-

"With care, rest breaks and avoidance

of excess overtlme I

would consider

her capable of continuing in

her chosen

occupation.

She has demonstrated past ability

to cope with

data processing when she worked for Westpac."

and Dr McKay said that it would

be necessary for her to maintain

work relief in

her position bu+. that did not preclude her continuing

in her employment capacity as a data processor.

I think that it

is thus impossible to say, as the argument

for the applicant would have it, that the reports to which

I have

referred were entirely

in favour of the applicant being fit for

duty. Rather they recognized that she

would have to be careful

the way in which she went about her affairs.

Nor, I think, does

D r Vickers' report support

the view that

the applicant was fit for appointment as	a data processing operator.
His report was as follows:-

"At your request I have interviewed ELIZABETH

EMILY SENDERSON

regarding the pain in

her upper limbs. The medical component

of my consultation was rather brief as this patient claims

that she has fully recovered from

her reversible fatigue

syndrome, and as you are aware, there are

no signs in this

condition in any

case, so I did not really

have anything to

work on. One can only take her word that she has recovered.

I did however perform an examination as a matter	of routine
and found no abnormality.

I gather that the point

of the consultation was regardin?

her

employability. I asked her whether she was prepared

return to keyboard operating, and she indicated that she was.

If she had a genuine case of upper limb disability from

keyboard operating in the past, chances are this

would happen

again.

I advised her of this possibility, and indicated that

I thought it would only be reasonable that if she was given

another chance to remain as

a keyboard Operator at

Telecom,

she would have to accept dismissal if she then had

recurrence of reversible fatigue syndrome preventing

her from

achieving an adequate

work performance. She seeme2 to accept

this point of view, but of course this was only verSal.

don't believe that a trial of work back at the keyboard is

likely to

do her any particular

harm, but of course the

decision regarding this can only

be taken by the Zmployer

because of the potential legal repercussions."

It is clear, it seems to

me, that this letter can not

regarded as a letter which suggests that the applicant was fit

for

permanent employment as a data processing operator.

3 e

applicant

had, as I accept, a genuine case

of repetitive strain injury

ar?d, as

D r Vickers said in

his report, if this were

so the chances were t:-:It

it would happen again. That would seem

to me to indicate that the

applicant

was -

not fit for appointment.

After D r Ephraums had received

D r Vickers' report he

said in

a further report dated 19th March

1986:-

"Based on my examination of 16 January 1986 I still consider

MS Henderson unfit for appointment as a Data Processing

Operator. I will however defer to Dr Vickers' expert opinion and recommend a trial of full time DPO duties for three

months followed by

a further medical review."

I see no reason whatsoever why Mrs

de Wit was not entitled

rely upon what was said by the Commonwealth Medical Officer, Dr

Ephraums, namely that the applicant was unfit for

appoin*Jnent as a

data processing operator nor

do I see why she was not entitled

rely upon the view

of Dr Vickers that

if she had had a genuine case

of RSI the chances were that it would recur. In these circumstances

I think that the contention that there was

no basis on which it

could be said that she

was unfit for appointment as a data

processing operator is not made out.

It was then argued

in the alternative that none

of the

reports said that the applicant was unfit for appointment. Once

again, however, this is not the case because Dr Ephraurts' report had

specifically so stated.

Thirdly on this aspect,

it was put that the applicant was not

given a proper hearing

on the question

of her medical fitness

because the three medical reports received from her were given

weight in the decision as to

her medical fitness. I am not

satisfied that this is

so.

Mrs de Wit saw and read the three

reports and, in consequence of having done so, caused the applicant

to be examined by Dr Vickers.

In the result I am not satisfied that the sround

to which I

have referred has been made out. I turn then	to consider the
question of sick leave.

As I have said earlier, the applicant was told by letter

dated 8th January 1985 that

her permanent appointment could not be

recommended because of her unsatisfactory sick leave record and

4th June 1985 was told

by letter that her sick leave record had been

reviewed and that

it had been decided to proceed

to make a permanent

appointment, subject

to examination by the Commonwealth Medical

Officer. Sick leave was mentioned in paragraph

(a) of

the letter of

14th February 1986 but the sick leave then referred	to was that
resulting from repetitive strain injury.

The topic of sick leave was not specifically raised with the

applicant until 7th March 1986 when by a letter

of that day Mrs

Wit said to the applicant:-

"With reference

to your fixed tern temporary employment which

expires on 7 Varch 1986 I wish to advise that a further

fixed

term period of one week ending 14 March 1986 has been

granted.

The extra time 1s required for us to fully consider

all

information to hand in relation to your medical fitness and the availability of fixed term and permanent employment.

Permanent employment is dependent

on satisfactory conduct

diligence and efficiency, a satisfactory sick leave record and being certified medically fit for appointment by the Commonwealth Medical Officer. If any one of these cofiditions

cannot be met permanent employment cannot take place."

I am satisfied that at the time when the letter

of 7t3 March

was written Mrs

de Wit had not turned her attention specifically to

the question whether the applicant's sick leave record

in the period

since she returned

to work on 18th September 1985 was satisfactory.

I am also satisfied that in that period her sick leave record was in fact unsatisfactory. No medical certificate was produced to account

for the leave taken

on 15th November 1985 (a Friday), 16th December

1985 (a Monday), 8th January 1986, 17th January 1985

(a Friday), 7th

February 1986 (a Friday), 12th

and 13th February 1986

and 25th and

26th February 1986. After the letter

of 7th March was received sick

leave was taken for a further three days

in the period 12th

- 14th

March and

on this occasion a medical certificate

was produced. The

applicant, I should note in passing, admitted that not all the days

off were genuine, although "most

were".

The argument which

is put on behalf of the applicant is that

the applicant was not informed that

her sick leave record was

regarded as unsatisfactory and that she should have

Seen given an

opportunity to place information before the respondent

to militate

against the view that

her sick leave record was unsatisfactory.

Whilst I regard the matter as very much one

on which

diff-rent minds might take different views,

I am in the end of the

opinion.that the dictates

of fairness would have required that the

fact that the applicant's sick leave was unsatisfactory be brought

specifically to

her attention before a decision adverse

to that

issue was made. I take that view because although the need

for

. '

satisfactory sick leave record was mentioned specifically ln the

letter of 7th March, the letter in its second paragraph suqgestrC at

the same time that the only questions remaining for consideration

were the applicant's medical fitness and the availability	of
positions.

Accordingly I am of the view that (assuming that the case was

one to which the principles

of natural justice would apply) the

applicant should have had the opportunity

of respondin? to the

view

that her sick leave record was unsatisfactory. Compare Kioa

v. West

(1986) 60 A.L.J.R.

113 at 128B-D per Xason J..

The applicant's argument also contended that a separate

reason for the decision contained in the letter

of 20th March 1986

was the applicant's performance in the rehabilitation programme

and

that the applicant should have been given an opportunity	to be heard
on that matter before the decision was made.

It is to be noted, of course, that the letter of 20th Yarch

did not refer to the applicant's perPormance

on the rehabilitation

course as a reason for the decision and the contention that this was

a separate reason derives from a passage in the cross-examination

Mrs de Wit when she said that one

of the reasons why the applicant

was not appointed permanently was that she had proven through her

performance in the rehabilitation group that she was not able to

cope with the type

of work.

I do not think that

on the evidence Mrs

de Wit did other than

treat this matter as

one aspect of the whole of the question of the

applicant's fitness for the position in the future,

and I think that

any obligation to give the applicant the opportunity

to deal with

the issue was satisfied by the invitation given to the applicant in

the letter of 14th February to submit such information as she

desired, the letter having mentioned specifically	her lack of
progress in the rehabilitation programme.

It was next argued that the decision should

be set aside

because the procedure contemplated

by reg. 35A of the

Telecommunications Regulations had not been applied. To understand

what is meant

by this I should refer to reg. 35A. a regulation which

is authorised by s.llZ(a)

of the Act and which provides that:-

"35A. Division 6 of Part V of the Act applies

to and in

relation to an employee who

(a)

has been in continuous employ of the Commlssion for a period of not less than one year: or

(bl

has been engaged by the Commission to serve for a

period of not less than one

year,"

subject to certain modifications and adaptations

of Division 6.

Division 6 of Part V provides for procedures to be followed

when allegations

of misconduct are made against employees

of the

respondent and one

of the results which may follow if the procedures

of that Division are followed

is dismissal. See s.58(11).

2 5

It was argued initially that:-

(a)

because the applicant was a person who had been

in the

continuous employ

of the respondent for

a period in

excess of a year: and

(b)

because abuse of sick leave could amount to misconduct

in terms of s . 5 7 ( 2 )

and s.58(1):

the only procedure which could

be followed where t3e propriety

taking sick leave was an issue was that prescribed by Division

6. In

the course of argument, however,

it was accepted that the

provision

made by Division

6 would not preclude abuse

of sick leave being taken

into account as a factor

in determining whether a person should be

appointed an officer and it is accordingly unnecessary to	deal with
the issue further.

Reliance was then placed upon paragraph D2/1/30

of some

Guidelines issued by the respondent. That part	of the Guldellnes,
Exhibit 3 , was in the following terms:-

“ADVICE TO APPLICANTS - CONDITIONS

D2/1/30

The successful applicant

or person to be employed

must be advised as soon as possible,

in writing, of the

selection. Other applicants should Se advlsed in wrrtlng as

soon as possible

of their non-selection and where appropriate,

of future suitable vacancies for which they nay apply.

The advice to the successful applicant or any person Seine engaged must contain the following inforrnatlon:

a.	Details of the position in which the person is to	be
engaged, including salary.
b.	When, where and to whom to report for duty.

Arrangements for medical examination. Where medical examination is being arranged, the person must be

advised that continued employment is subject to

satisfactory medical report.

Employment is subject

to satisfactory conduct,

diligence and efficiency.

The contract of employment may be terminated by

Telecom

Australia at any time in accordance with Staff By-law

156 for reasons including but not restricted

unsatisfactory conduct or efficiency.

Details of the period of employment, where such

employment is for

a fixed period, specific prolect or

specific event occurs and advice that redundancy

benefits are not available for fixed period employees.

Fixed period means:

a period of employment defined by

a specific

commencement date and a specific cessation date, e.g.,

commencing on 1 December 1977, ceasing on or before 30

June 1980: or

ii. a period of employment defined by

a specific

commencement date and

a maximum period of time, e.g.,

commencing on 1 December 1977 with employment up to	a
maximum period of 3 months.

iii. employment for

a specific project:

iv. employment until a specific event occurs, e.g., closure of an exchange.

Any unqualified person employed in

a position where

qualifications are required

will be require3 to

relinquish the employment if and when	a qualified
person is available.

A copy of the Conditions of Employment Booklet.

A person re-engaged for

a fixe2 period must be asvised

in writing of the approval and the conditions mentioned

in the previous part must again

be stipulated."

It was suggested that because advice

of the nature referre2 to

in the first paragraph

of Guideline D2/1/30 had

not been given to the

applicant, her temporary employment could not

be terminated and that

failure to comply with the Guideline, assuming it had occurre?,

vitiated the decision of 20th March 1986.

I fail to see how failure

to comply with self-imposed guidelines as to notification

of terms of

employment could, without

more, have any effect upon the matters

dealt with in the letter	of 20th March and	I regard the polnt as
without substance.

The next issue concerns Exhibit

4 which is Guideline

D3/2/1

and is in the following terns:-

"AUTHORITY

D3/2/1 Telecom Australia may terminate the services

of flxed

term employees in accordance with Staff By-law

156, except for

disciplinary reasons where the employee has at least one years service, or has been employed with the view to employment beyond one year."

By-law 156 is in the following tens:-

"Termination of service

156. (1) where an employee absents himself from duty wlthout

permission and is

so absent for a continuous

perioc? of cot

less than 2 weeks,

he shall be deemed

to have resigned frcm

his employment with the Commission at the expiration	of that
period of 2 weeks.

(2) Subject to sub-clause

( 3 1 , the Commission may terminate

the services

of an employee at any time.

( 3 )

where, under the regulations, Dlvision

6 of Part V of the

Act applies to and in relation to an

employee, the Commission

shall not dispense with his services under sub-clause

( 2 ) by

reason only of the fact that

he has done, or omitted to eo , an

act or thing in respect

of which a charge could be laid

against him

or on the ground that a court has convicted him

a criminal offence within the meaning

of that Division or

found, without recording a conviction, that	he has committed
such an offence."

The By-law is

one of the Telecommunications (Staff) By-Laws

made pursuant to

s.111(1) of the Act, which includes power to make

by-laws the subject matter

of which is (s.lll(l)(g)):-

"(g) the terms and conditions

of employment of officers and

employees: "

The power to make by-laws is by

s.111(1) expressly stated to

be subject to the requirement that the by-laws are not inconsistent

with the Act

or the regulations, and it may be that in some

circumstances questions would arise whether By-law 156(2) was not too

widely stated,

or should be read down to ensure its validity, e.g. in

circumstances to which reg.35A applies. Whether this be

so or not,

however, and whpther Guideline D3/2/1 is or is not entirely consistent with By-law 156(2), it seems to me that that part of Guideline D3/2/1 commencing with the words "except for" and ending

with the words "beyond one

year" has no relevant application. There

was not here a termination of the temporary employment for

disciplinary reasons but rather because the temporary employment

which existed at the relevant time was purely for the purpose

dealing with the situation pending the making

of a decision whether

permanent employment would

be offered.

Rather similar considerations apply to a further Guideline

which was relied

on, namely Guideline D3/2/3 which

is as follows:-

2 9

"DISCIPLINE - DISMISSAL

D3/2/3 Any disciplinary action against an

employee with at

least one year's continous service may only

be taken in

accordance with Regulation 35A.

(Statutory Rule 2 7 of 1977).

Einployees with less

than one year's actual or intended service

may be dismissed by the Q11 delegate. It	is not necessary for
notice of dismissal to be given."

The short fact is that the decision in question was

not the

taking of disciplinary action against

an employee in terms of

Guideline D3/2/3. Accordingly, in my view, that provision	of the
Guidelines does not assist the applicant.

A further argument advanced

on behalf of the applicant was

that in terms

of s.5(2)(e) of the Administrative Decisions

(judicial

geview) Act

Mrs de Wit, in making the decision evidenced by the

letter of 20th March, exercised a personal discretionary power

at the

direction or behest of another person. ??le person at whose direction

or behest the power is said to have been exercised

is Dr Ephraums.

It seems quite apparent, however, that all that was done was

<:qat Dr

Ephraums provided his professional opinion in relation to the matter.

There was no "direction" or "behest" on his part

As will be apparent from the foregoing,

I am of the view that

if the respondent

was required to do so it did not afford the

applicant natural justice in relation

to t4e taking into account

her sick leave record but that otherwise there is no cause for

complaint 5y her as to the procedure which has occurred.

?he

questions which then arise are whether

it was necessary for

the

respondent to afford her natural justice in the circumstances and

whether it is in any event necessary to

Zecide that questl3r..

I do not think that it is necessary in this case to decide whether the respondent was required in the circumstances to afforc? the applicant an opportunity to be heard in relation to the question

of sick leave.

I take that view because it

is quite apparent that

the power given to appoint

a person as an "officer" under s.39(1) is

a power which may only lawfully be exercised once the respondent has

satisfied itself as to the matters referred

to in s.39(2)(a), to

which I have already referred. The respondent was not

so satisfied

in the present case

and even if there had been

no question arismg as

to sick leave it could not lawfully have appointed the applicant as

an "officer". In those circumstances

I do not think that any order

should be made under

s.16 of the Administrative Decisions

(Judicial

Review) Act altering the decision

in relation to an appointment as an

"afficer". Further it is clear that the temporary employment which

the applicant had at the time when the decision was made was one

which was intended to continue only until her appointment as an

"officer" or refusal to make such an appointment. Once again	no
relief is called for.

The application for an order

of review is refused.

I certify

that g !

(30)

preceding pages are a true copy

the Reasons for

Judgment herein

his Honour Mr Justice Jackson.

Associate: -

Date:

1st December 1986

Counsel

for

the

applicant:

M r M.W.D.

'White

Solicitors for the applicant: Hawthorn Cuppaidge

Badgery

Counsel for the respondent:

Mr R.I. Hanger Q.C.

with Mr S. Keim

Solicitors for the respondent:

Australian Government Solicitor

Dates of hearing:

20, 21 October 1986

[1986] FCA 566

12 Jan 1986