Holden v Tasmania - [2018] TASFC 12

[2018] TASFC 12

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Holden v Tasmania [2018] TASFC 12

PARTIES:  HOLDEN, Jane Elizabeth
  v
  STATE OF TASMANIA

FILE NO: 1468/2017
JUDGMENT

APPEALED FROM: Holden v State of Tasmania [2017] TASSC 29

DELIVERED ON:  29 November 2018
DELIVERED AT:  Hobart
HEARING DATE:  30 May 2018
JUDGMENT OF:  Estcourt J, Geason J, Marshall AJ

CATCHWORDS:

Employment Law – Termination and breach of contract – Transfer of employment – Whether there was deemed appointment to new office – Whether trial judge erred in failing to find that old office had ceased to exist – No error found – Redundancy – Redundancy stated basis of termination – Employee claim that termination was on the basis of performance and conduct issues – Whether termination amounted to breach of contract –– Inference of termination due to performance or conduct issues not reasonably open – Appeal dismissed.

State Service Act 2000 (Tas), ss 29, 31, 33
Acts Interpretation Act 1931 (Tas), s21A
Tasmanian Health Organisations Act 2011 (Tas), ss 28, 30
Aust Dig Employment Law [1059]

REPRESENTATION:

Counsel:
             Appellant:  M Rinaldi
             Respondent:  P Turner, D Osz
Solicitors:
             Appellant:  Dobson Mitchell & Allport
             Respondent:  Solicitor General

Judgment Number: [2018] TASFC 12
Number of paragraphs: 143

Serial No 12/2018
File No 1468/2017

JANE ELIZABETH HOLDEN v STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
GEASON J (Dissenting)
MARSHALL AJ
29 November 2018

Order of the Court

Appeal dismissed.

Serial No 12/2018
File No 1468/2017

JANE ELIZABETH HOLDEN v STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
MARSHALL AJ

29 November 2018

Background

The appellant, Jane Elizabeth Holden, was appointed to the office of Chief Executive Officer (CEO) of the Southern Tasmania Area Health Service (STAHS), by an instrument of appointment dated 8 March 2012. Prior to that appointment, Mr Rhys Edwards, the then Secretary of the Department of Premier and Cabinet, had prepared and sent, on 2 March 2012, a minute to the then Premier.
Although the instrument of appointment made no reference to any appointment of the appellant as the CEO of a proposed new entity to be known as Tasmanian Health Organisation South (THO South), it seems apparent from the minute that it was intended that the appellant would succeed to that office when that organisation came into existence on 1 July 2012. Indeed, on 27 June 2012, the Premier gave a direction pursuant to s 21A of the Acts Interpretation Act 1931 (the AI Act), (s 21A direction), that the appellant should perform the duties of the office of CEO of THO South in accordance with the provisions of the Tasmanian Health Organisations Act 2011 (the THO Act), and the State Service Act 2000 (the SSA). Subsequently, until 23 May 2014, the appellant was given a number of s 21A directions, all of which were in relevantly identical terms.
On 16 August 2013 the Governing Council (GC) of THO South did write to the Premier recommending…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Holden v Tasmania

Details

AGLC: Holden v Tasmania [2018] TASFC 12
Case: [2018] TASFC 12
Decision Date: 29 November 2018

CaseChat Overview and Summary

Holden appealed to the Full Court of the Supreme Court of Tasmania against a decision of a single judge who had dismissed his application concerning the termination of his employment with the State of Tasmania. Holden alleged that his employment had been unlawfully terminated, claiming the termination was based on performance and conduct issues rather than redundancy, as stated by the employer.

The Full Court was required to determine whether the trial judge erred in finding that Holden's previous office had not ceased to exist following a transfer of employment, and consequently, whether there was a deemed appointment to a new office. The court also had to consider whether the trial judge erred in failing to infer that Holden's termination was due to performance or conduct issues, rather than redundancy.

The Full Court upheld the trial judge's findings. It reasoned that the evidence did not support the conclusion that Holden's original office had ceased to exist, nor did it establish that he had been deemed appointed to a new office. Furthermore, the court found that the inference that Holden's termination was based on performance or conduct issues was not reasonably open on the evidence presented. The stated basis for termination, redundancy, was accepted as the operative reason.

Accordingly, the appeal was dismissed.

Orders