Ivanovic v Australian Customs Service
[2007] FMCA 503
•16 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IVANOVIC v AUSTRALIAN CUSTOMS SERVICE | [2007] FMCA 503 |
| ADMINISTRATIVE – Customs Trainee – probationary employee – termination of probationary employment – natural justice – obligation to inform of investigation – sufficiency of details of allegations – no formal interview by decision-maker – preparation of report by supervisor – observation of procedures required by law – whether evidence or other material to justify decision made – relevant and irrelevant considerations - whether decision made at behest or direction of another person – non-existence of a certain state of facts. |
| Administrative Decisions (Judicial Review) Act, 1977 (Cth), ss.5 (1)(a),(b), (2)(a),(b),(f),(3)(a), 6 (1)(a),(2)(a),(b),(f),(3)(a), 13 Customs Certified Agreement 2004-2007 cll 1.5.1 and 1.5.3 |
| Edelsten v Health Insurance Commission & Ors (1990) 96 ALR 673 C Enright, Federal Administrative Law (Sydney: The Federation Press, 2001) |
| Applicant: | ZORAN IVANOVIC |
| Respondent: | THE DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE OF THE COMMONWEALTH OF AUSTRALIA |
| File number: | ADG 240 of 2006 |
| Judgment of: | Lucev FM |
| Hearing dates: | 22 & 23 January 2007 |
| Date of last submission: | 23 January 2007 |
| Delivered at: | Perth (By Video Link to Adelaide) |
| Delivered on: | 16 April 2007 |
REPRESENTATION
| Applicant: | Appeared in Person |
| Counsel for the Respondent: | Ms K Bean |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant pay the Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
ADG 240 of 2006
| ZORAN IVANOVIC |
Applicant
And
| THE DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE OF THE COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
Zoran Ivanovic (“the Applicant”) was terminated from his position with the Australian Customs Service (“ASC”) by the Respondent (
Ms Reimitz, Regional Director, ACS, South Australia), on 1 August 2006.
The Applicant has made application to the Court under ss.5 and 6 of the Administrative Decisions (Judicial Review) Act, 1977 (Cth) (“ADJR Act”) seeking a review of the decision to terminate and a review of conduct relating to the making of the decision to terminate.
The application
The Application seeks to review the ACS decision that:
“terminated my employment on the grounds that I demonstrated behaviour that had a significantly detrimental impact on customs, its clients and/or other employees”.
The Application also seeks to review the conduct of the Respondent relating to the making of the decision under which it is alleged there was:
“a breach of the rules of natural justice and procedural fairness in connection with the making of the decision and that there was no evidence or other material to justify the making of the decision.”
The Applicant asserts that he is aggrieved by the decision and conduct of ASC because:
“1. My employment has been unfairly terminated.
2. Any future public service employment is highly compromised.
3. Significant emotional distress caused by the disclosure of the decision to other parties.”
Several grounds to the Application are set out but they do no more than recite the gist of various paragraphs of ss.5 and 6 of the ADJR Act. The Applicant’s Outline of Submissions set out the grounds relied on and outlines the Applicant’s case. The various grounds are dealt with in the body of these reasons below.
The Applicant claims the following relief:
a)an order or declaration that his employment be reinstated, and that he “be given every opportunity and support necessary to meet the expected standards of conduct and performance as per probationary manual”; and
b)that his salary be backdated until the date of termination.
Background facts
There is little or no dispute about the essential background facts, which are as follows:
a)the Applicant commenced employment with the ASC on 1 May 2006;
b)the Applicant was employed as a Customs Trainee;
c)the Applicant’s employment was subject to a 12 month probationary period;
d)the supervisor of the Applicant’s training course (“Training Course”), a Mr McComas, prepared a report dated 10 July 2006 allegedly identifying issues and difficulties between the Applicant and another employee and other employees, which difficulties had emerged during the Training Course (“the Probationary Report”);
e)by reason of the issues and difficulties identified in the Probationary Report McComas recommended that the Respondent consider terminating the Applicant and another employee;
f)the Respondent wrote to the Applicant on 14 July 2006 advising of McComas’ recommendation and the reasons for it, as well as providing the Applicant a copy of the Probation Report;
g)the Respondent’s 14 July 2006 letter invited the Applicant to provide a statement as to why his probationary employment ought not be terminated, and provided seven days for the Applicant to respond;
h)on 20 July 2006 the Applicant provided the Respondent with a statement containing reasons why his probationary employment ought not be terminated;
i)the Respondent wrote to the Applicant on 25 July 2006 advising of further information potentially relevant to any decision to terminate the Applicant’s probationary employment, and giving the Applicant further opportunity to comment on that information, by 27 July 2006;
j)the Applicant provided a response to the Respondent on 27 July 2006 addressing the additional issues;
k)the Respondent decided that the Applicant’s probationary employment was to be terminated, and on 1 August 2006 forwarded the Applicant a letter advising of his termination, and enclosing a copy of an instrument terminating his probationary employment;
l)
a Statement of Reasons for the Respondent’s decision dated
8 September 2006 was provided to the Applicant under s.13 of the ADJR Act.
Other relevant facts are set out as necessary in dealing with the issues to be determined.
Issues
The Applicant’s Submissions raise the following issues (identified by reference to the ADJR Act section/s relied upon – or said to be relied upon – by the Applicant).
Section.5 (1)(a) – Alleged breach of rules of natural justice
The Applicant contends that the Probationary Report is in breach of the rules of natural justice, in a variety of ways, some of which were raised in other parts of the Applicant’s submission (see for example in relation to s.6(1)(a) of the ADJR Act).
Obligation to inform of investigation
The Applicant asserts that the Respondent was obliged to inform him of its investigation into his conduct as a Customs Trainee. This assumes an obligation of the type described. In the Court’s view there is no such obligation (absent statutory prescription). Natural justice requires that the Applicant be given the opportunity to put his case prior to termination, in response to the allegations to be relied upon by the decision-maker: University of Ceylon v Fernando [1960] 1 WLR 223 at 232; Ridge v Baldwin [1964] AC 40 at 132 per Lord Hodson; but not necessarily to be informed of any prior investigation into his conduct which investigation ultimately had no effect on the Applicant’s rights without the further step of referral to the actual decision-maker (the Respondent): Pearlberg v Varty [1972] 1 WLR 534 at 547 per Lord Pearson, at 550 per Lord Salmon; Re New South Wales Bar Association; Ex parte Evatt (1967) 67 SR (NSW) 232 at 235; Edelsten v Health Insurance Commission & Ors (1990) 96 ALR 673.
The Applicant was forwarded letters by the Respondent on 14 and 25 July 2006, and the Respondent replied on 20 and 27 July 2006.
The Respondent’s letter of 14 July 2006: Exhibit 1 pp.61-62; provides as follows:
“ …
I have received a Probationary Report from the Customs Trainee Course Supervisor on 10 July 2006 which documents matters which may lead me to conclude that you have demonstrated behaviour that has had a significantly detrimental impact on Customs, our clients and other employees. The Probationary Report recommends that I terminate your probationary employment with Customs.
Specifically it is alleged that you made comments in the work place that could have been considered inappropriate, offensive or construed as harassment. Your training supervisor and other workplace trainers have indicated that you have not met the required standards of performance and conduct expected of an APS employee and Officer of Customs, specifically with regard to a number of areas including:
· Ethics and high standards of personal accountability and responsibility;
· An understanding of client needs (including co-workers);
· The ability to demonstrate sound interpersonal, communication and relationship building skills;
Your training supervisor is concerned that these behaviours, if repeated within a passenger processing environment would be ‘highly corrosive’ to what would be a tight team environment.
You have been spoken to on a number of occasions regarding your behaviour.
A copy of the report from Customs Supervisor H McComas which details the incidents and his investigation of these matters is attached.
This information will be taken into consideration in determining whether your engagement should be terminated. Before I decide whether or not to terminate your probationary employment, you have the opportunity of providing a written statement outlining why your engagement should not be terminated. The statement should reach this office within 7 days of receipt of this Minute, otherwise I will decide whether or not to terminate your probationary employment on the information contained in the Probationary Report.”
The Applicant responded to the Respondent by letter dated 20 July 2006. Relevantly, the Applicant:
a) expresses “sincere regret” that the situation had developed as it had: Exhibit 1 p.63 and see also Exhibit 1 p.67;
b) says it had never been his “intention to cause any disruption, particularly not one of this nature”: Exhibit 1 p.63, and see also Exhibit 1 p.67;
c) says that he had “apologised to the group for offending or upsetting anyone” indicating “it was never my intention to do so”: Exhibit 1 p.63;
d) on a number of occasions indicates that he has been the subject of offensive behaviour or conduct, or points to conduct of other Customs Trainees, of which he says he has not been accused but which has been alleged of others: see, for example, Exhibit 1 p.63 and p.65;
e) admits his “interaction within this group has been challenged”: Exhibit 1 p.65;
f) “concluded that perhaps people didn’t appreciate being challenged into thinking outside the square”: Exhibit 1 p.65;
g) suggests that one of the statements (relied on by the Respondent) “was effectively made under duress”: Exhibit 1p. 66;
h) admits to being “very concerned” that he “offended’ one other Customs trainee on three occasions: Exhibit 1 p.67.
There is no denial of the occurrence of incidents: merely argument about their context and effect.
The Respondent then wrote a further letter dated 25 July 2006 to the Applicant: Exhibit 1, page 71. The Respondent advised the Applicant that:
a)she was presently considering the matters put in the Applicant’s letter of 20 July 2006;
b)further information had come to the Respondent’s attention which the Respondent intended to take into account in reaching any decision as to whether or not to terminate the Applicant’s probationary employment;
c)the further information included:
i)a copy of a decision of the Australian Industrial Relation’s Commission in Ivanovic v Telstra Corporation Limited (unreported, Print PR 962169, O’Callaghan SDP, 5 September 2005) (“Ivanovic v Telstra”); and
ii)a copy of the record of answers to questions concerning the circumstances surrounding the Applicant’s departure from his employment with Telstra given during the recruitment process leading to his probationary employment as a Customs Trainee (“Applicant’s Employment Questionnaire”);
d)the further information indicates that it is open for the Respondent to conclude that the Applicant was “dishonest to your previous employer based on conduct referred to in the decision, but also dishonest to Customs in not disclosing the nature of your departure from your previous employer when specifically asked to do so.”
The record of answers to questions about the circumstances surrounding departure form previous employment referred to in the Respondent’s letter of 25 July 2006 refers to the fact that the Applicant indicated that his reason for leaving Telstra was:
“Resigned to spending a year travelling throughout Europe.” (Exhibit 1 p.74)
The decision in Ivanovic v Telstra describes the Applicant as having:
a) “failed comprehensively” to meet his obligations to inform Telstra of his whereabouts during the time he was a Telstra employee: at para 35 per O’Callaghan SDP;
b) “failed comprehensively” to be “honest in terms of information provided to” Telstra: at para 35 per O’Callaghan SDP;
c) abandoned employment with Telstra: at para 36 per O’Callaghan SDP;
d) conducted himself in a manner whereby his “actions could only then [if the termination of employment was not abandonment but initiated by Telstra] be described as numerous instances of serious and wilful misconduct associated with his absence”: at para 39 per O’Callaghan SDP.
Given:
a)the notice of the various allegations contained in the Respondent’s letters to the Applicant of 14 and 25 July 2006;
b)the opportunity to respond afforded to the Applicant in the Respondent’s letters of 14 and 25 July 2006;
c)the Applicant’s responses to the Respondent’s letters of 14 and 25 July 2006, including the detail and responsiveness of those responses,
the Court has concluded that the Applicant was afforded natural justice to the requisite extent and this ground is therefore not made out.
Insufficient time to consider allegations
The Applicant asserts that he did not have sufficient time to properly respond to the Respondent’s letter of 25 July 2006. However, the fact of the response, by way of the Applicant’s letter of 27 July 2006, the length of the letter (two and one half pages) and its detail and responsiveness to the issues associated with the decision in Ivanovic v Telstra belie the assertion of insufficient time. Further, the Applicant did not take all of the time available to him to respond: his email to the respondent attaching his letter of 27 July 2006 was sent at 2.07pm that afternoon: Exhibit 1, p. 91; when a response was not due until close of business that day: Exhibit 1, p. 71. If the Applicant truly had insufficient time the response might have been emailed later in the day, closer to close of business than mid-afternoon. Moreover, the email to which the Applicant’s letter of 27 July 2006 was attached contains no inkling of time pressure. Most pertinently perhaps is the letter of 27 July 2006 itself, and particularly the penultimate paragraph. In that paragraph the Applicant alludes to the “limited time … assigned to prepare the response” but makes it clear that any deficiencies in the letter are “not” because “I haven’t given the task the attention it deserves”: Exhibit 1, p.88.
Given:
a)
the nature and detail of the response in the Applicant’s letter of
27 July 2006;
b)the Applicant not taking all the time allotted to complete and forward the response; and
c)the Applicant’s admission that he had given the preparation of the response the attention that it deserved,
the Court does not consider that the Applicant was denied natural justice, and this ground is not made out.
Insufficient detail of allegations
The Applicant also asserts that he was not given sufficient details of the accusations against him. However, the accusations made against him were put in the Applicant’s letters of 14 and 25 July 2006: Exhibit 1, pp. 61-62 and 71; and in the Probationary Report and appendices: Exhibit 1, pp. 35-60, a complete copy of which was provided to the Applicant: Exhibit 1, p.61. The Applicant’s responses do not complain of a lack of detailed accusation. If anything the contrary is the case: the Applicant’s letter of 20 July 2006 “address[es]”, first, the three areas of concern … high-lighted” in the Respondent’s letter of 14 July 2006, second “each written complaint as listed”, and third “matters regarding” the Applicant and the other employee concerned: Exhibit 1, p. 63. In relation to the Respondent’s letter of 25 July 2006, that related to two inter-related issues which were expressly put to the Applicant, and expressly responded to by him: Exhibit 1, p. 71, 72-86 and 86-88. In these circumstances, no denial of natural justice on this basis has been made out, and this ground must fail.
No formal interview
The Applicant claims a denial of natural justice on the basis that he was not granted his request for a formal interview prior to termination of employment because he was not able to adequately state his case in writing. The Respondent was not however obliged to speak to the Applicant in person or in an interview situation before making the decision to terminate employment. Moreover the Applicant’s request to meet with the Respondent, contained in the Applicant’s email of 31 July 2006 to the Respondent: Exhibit 1, p. 91, was not put on the basis that the Applicant was not able to adequately state his case in writing. Rather, it was requested to “discuss my ongoing employment and any concerns you may have in relation to it”: Exhibit 1, p. 91. There is simply no mention or suggestion by the Applicant of an inability to adequately state a case in writing. In any event, his written responses of 20 and 27 July 2006 belie any such suggestion. In these circumstances, no denial of natural justice on this basis has been made out, and this ground must fail.
Preparation of probationary report by supervisor
The Applicant asserts a denial of natural justice because the Probationary Report was prepared by Mr McComas. In this regard the Court agrees with the Respondent’s submission that as “the supervisor of the applicant’s training course … [McComas] was the appropriate person to prepare a report for the decision maker”: Outline of Submissions of the Respondent, para 8.1.5. Further, there is nothing in the evidence indicating any impropriety in McComas preparing the Probationary Report. Finally, there is, on the facts in this case, no impediment in law (such as actual or apprehended bias) to a supervisor preparing such a report. No denial of natural justice is made out in these circumstances, and this ground must fail.
Section 5(1)(b) - procedures required by law to be observed
The Applicant contends under s.5(1)(b) of the ADJR Act that procedures required by law to be observed by the Respondent in connection with the making of the decision were not observed. The Applicant specifically refers to the ACS “Conditions of Engagement and Probationary Policy” (“Probationary Conditions”) which refers to concerns about a probationary employee’s performance being addressed with them by their manager, their being given every opportunity and the support necessary to meet required standards of performance where performance is lacking and the development of a corrective action agreement to address the issues prior to termination of employment: Exhibit 1. p. 12.
The Respondent points to the “Assessment of Probationary Employees – Managers Toolkit” (“Manager’s Probationary Toolkit”) which provides for the immediate termination of a probationary employee “where they have demonstrated behaviour that has had a significantly detrimental impact on Customs, our clients, and/or other employees”, and that these matters ought to have been brought to the probationary employee’s attention and the “principles of natural justice followed prior to termination”: Exhibit 1. p.23.
The Respondent takes a more fundamental point however: that is that the Probationary Conditions and Manager’s Probationary Toolkit do not prescribe procedures that the Respondent was “required by law” to observe. In order to address that contention it is necessary to consider the statutory context in which a decision to terminate a probationary employee is made, and what, in that context is meant by “required by law”.
The Respondent says that the statutory context includes:
a)s.22(6) of the Public Service Act, 1999 (Cth) (“PS Act”) which provides that the “engagement of an APS employee … may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters”. The “following matters” include “probation”: PS Act, s.22(6)(a);
b)s.29 of the PS Act which provides for termination of an APS employee “at any time, by notice in writing”: PS Act, s.29(1), and that the “only grounds for termination” of an ongoing APS employee (which the Applicant was) include “failure to meet a condition imposed under sub-s.22(6)”: PS Act, s. 29(3)(f).
The Respondent also refers to the Customs Certified Agreement 2004-2007 (“Certified Agreement”) which provides for Customs Trainees to be engaged on 12 months probation: Certified Agreement, clause 1.5.1, and for “termination of the employment of a probationary employee” to “be based on the application of natural justice”: Certified Agreement, clause 1.5.3.
The Respondent says that no procedures are prescribed for termination of probationary employees under what it says is the relevant law, namely, the PS Act and the Certified Agreement, and that the Probationary Conditions and Manager’s Probationary Toolkit “are no more than policy documents and do not have force of law”: Outline of Submissions of the Respondent, para 8.2.8.
What procedures are required by law to be observed in connection with the making of the decision to terminate the Applicant’s probationary employment? The answer is, shortly, a particular procedure prescribed by the relevant law: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 480 per Wilcox J, (1987) 13 ALD 740 at 743 per Wilcox J; breach of which renders the decision invalid: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 per McHugh, Gummow, Kirby and Hayne JJ, [1998] HCA 28 at para 93 per McHugh, Gummow, Kirby and Hayne JJ. The “law” is the relevant statutory instrument under which the reviewable administrative decision has been made.
In this case the Applicant was terminated by notice in writing: Exhibit 1 p.93-95, as required by s.29(1) of the PS Act, for “failure to meet a condition imposed under” s.22(6) of the PS Act: PS Act, s. 29(3)(f). That condition was a “condition notified” to the Applicant upon “engagement” in relation to “probation”: PS Act, s. 22(6)(a). The “engagement” is “subject to” any “conditions notified”: PS Act, s.22(6).
What “conditions” were “notified” to the Applicant upon “engagement”? The answer lies in the “Notice of Engagement”: Exhibit 1 p. 7, which prescribes the following relevant conditions:
“ Successful progress in, and completion of, the Customs Trainee Program
Successful completion of the 12 month probation period”
The above are the only conditions prescribed by the PS Act under which the Applicant was appointed. Those conditions did not require the Respondent, as a matter of law, to follow any particular policy or procedure in terminating the Applicant’s probationary employment.
To the extent that it might be applicable as a statutory instrument the Certified Agreement also did not require the Respondent, as a matter of law, to follow any particular policy or procedure in terminating the Applicant’s probationary employment. Rather it required the Respondent to afford the Applicant natural justice in the process of termination, which the Respondent did.
The Probationary Conditions and Manager’s Probationary Toolkit do not therefore prescribe procedures that the Respondent was required by law to observe under s.5(1)(b) of the ADJR Act, and nor does the Certified Agreement. This ground therefore fails.
Section 5(1)(h) - no evidence or other material to justify the making of the decision
The Applicant contends under s.5(1)(h) of the ADJR Act that there was no evidence or other material to justify the making of the decision to terminate his probationary employment.
The Probationary Report and annexures contain material including the following:
a)that there was tension within the Training Course arising from a related but unresolved Code of Conduct enquiry in which the Applicant was the complainant: Exhibit 1, p.35;
b)complaints about the conduct of the Applicant toward the other Customs Trainee about whom the Applicant had complained (the complaints being by the other Customs Trainee): Exhibit 1, pp.36 and 53;
c)approaches from other members of the Training Course to a Trainer (Chantrell) indicating that the conflict between the Applicant and the other Customs Trainee about whom the Applicant had complained “appeared to be harming the entire course”: Exhibit 1, pp.37, 51 and 54;
d)evidence that McComas had expressed a view that the Applicant had inflamed an already volatile situation concerning the other Customs Trainee about whom the Applicant had complained: Exhibit 1, p.38 and 54;
e)that the Applicant had been making inappropriate comments to another (female) Customs Trainee: Exhibit 1, pp.38, 51, 54 and 58;
f)comments by another Trainer (Watson) that he had observed behaviours and was concerned about the suitability of the Applicant and the other Customs Trainee about whom the Applicant had complained for work in customs and passenger environments: Exhibit 1, p.39;
g)a variety of possibly adverse comments (orally and by email) about the Applicant (and the other Customs Trainee about whom the Applicant had complained) by other Customs Trainees on the Training Course: Exhibit 1, pp.39-40 and 57-60;
h)a view expressed by McComas that the Applicant’s conduct fell short of that required by ACS and more generally within the APS: Exhibit 1, p.41;
i)that the nature of comments made by the Applicant to other members of the Training Course “could be interpreted as verging on sexual harassment” and that his behaviour was of a “confrontational nature” vis-à-vis his co-workers: Exhibit 1, pp.41 and 57;
j)that the inappropriate nature of the conduct of the Applicant was something of which he had been aware as part of his training: Exhibit 1, pp.42-43; and
k)that the Applicant was unlikely to successfully complete the Training Course: Exhibit 1, p.43.
The above extracts from the Probationary Report indicate that there was material to support the view arrived at by the Respondent that the Applicant was having a “significantly detrimental effect on Customs, our clients and/or other employees”: Exhibit 1, p.95, at least in relation to Customs (ACS) and other employees. See also Transcript pp.46-48. In the circumstances the Applicant cannot make out a case that there was no evidence or other material to justify making the decision to terminate his probationary employment.
Section 6(2)(a) and (b) – Relevant and irrelevant considerations
The Applicant’s Outline of Submissions refers to s.6(2)(a) and (b) of the ADJR Act, but it appears that this ought to be a reference to s.5(2)(a) and (b) of the ADJR Act. It matters not, for the result, based on the submissions made by the Applicant remains the same.
The material relied on by the Respondent and complained about by the Applicant (“frivolous statements and an inadmissible probationary report”) are relevant. The materials contained in the Probationary Report are patently relevant to the decision made. The vast bulk of the material in the Probationary Report addresses, in a serious manner, the Applicant’s conduct as a Customs Trainee: see, for example Exhibit1 pp.36-42, 46-48, 50-51, 53-55, 57. Some of the material, particularly from some (but not all) other Customs Trainees, contains differing views as to the degree of seriousness of the Applicant’s conduct and Exhibit s a perhaps understandable reluctance to become involved. That reluctance was for various reasons: for example, a reluctance “to be seen as dob[b]ing”: Exhibit 1 p.57, and a forlorn hope that the matter would not become a “big … issue”: Exhibit 1 p.59. But none of the substance can be said to be irrelevant to the final decision, and indeed some of the reasons for reluctance might themselves be seen as relevant. Thus they were relevant considerations in the determination of the decision to be made by the Respondent.
The Applicant asserts that the Respondent failed to take into account the impact of the conduct of the other Customs Trainee about whom the Applicant had complained, and that this was a failure to take into account a relevant consideration. The Applicant addressed this issue in his letter of 20 July 2006 to the Respondent: see specifically Exhibit pp.169-70. The Respondent in the termination letter of 1 August 2006 specifically says she has had regard to the material contained in the Applicant’s letter of 20 July 2006: Exhibit 1 p.93. There is no evidence to the contrary. In any event, the Respondent did not fail to take into account a matter she was required by law to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J (“Peko-Wallsend”); Sean Investments v Mackellar (1981) 38 ALR 363 at 375 per Deane J (“Sean Investments”). That includes the relevant policies and procedures which the Respondent properly had regard to as relevant considerations, and did not, in the Court’s view misapply: Exhibit 1. pp.93-95; Nikac v Minister for Immigration (1988) 92 ALR 167 at 183 per Wilcox J; Minister for Immigration v Gray (1994) 50 FCR 189. In particular, in so far as it was a relevant consideration, the Manager’s Toolkit envisaged and provided for termination of probationary employment on the basis on which the Applicant was terminated, subject to the Applicant being afforded natural justice, which he was in the Court’s view.
The Applicant has not proved that the Respondent failed to take into account relevant considerations or took into account irrelevant considerations. This ground is not made out by the Applicant.
Section 6(2)(f) – Exercise of personal discretionary power at the direction or behest of another person
The Applicant’s Outline of Submissions refers to s.6(2)(f) of the ADJR Act, but it appears that this ought to be a reference to s.5(2)(f) of the ADJR Act. Again, it matters not, for the result, based on the submissions made by the Applicant remains the same.
The Applicant argues that McComas “exercised his discretionary power of recommending my termination at the behest of the delegate [Respondent]”: Applicant’s Submissions, para 8. However, the Respondent (who was the decision maker) did not do so: she separately and independently considered the Probationary Report and did not merely adopt the recommendation. Quite properly, she did not act at McComas’ “behest” or direction, but allowed the Applicant the opportunity to put his case, and it was she who decided the Applicant’s fate having afforded that opportunity to him: Sean Investments at 370 per Deane J; and the discussion of the “behest” point in C Enright, Federal Administrative Law (Sydney: The Federation Press, 2001) at p. 414.
This ground is not established by the Applicant and therefore fails.
Section 6(3)(a) – Non-existence of a certain state of facts
The Applicant’s Outline of Submissions refers to s.6(3)(a) of the ADJR Act, but it appears that this ought to be a reference to s.5(3)(a) of the ADJR Act. Once again, it matters not, for the result, based on the submissions made by the Applicant remains the same.
The Applicant asserts that there was no material from which the Respondent could have been reasonably satisfied that the alleged conduct had a significantly detrimental impact of Customs, its clients and/or other employees. It is clear from the Probationary Report, the decision in Ivanovic v Telstra, and the matters referred to in the Applicant’s own letters of 20 and 27 July 2006, that there was material, and sufficient material, reasonably capably of satisfying the Respondent, and enabling the Respondent to draw the conclusion, that the Applicant’s conduct, both on the Training Course and in his deceitful response to the reason for leaving previous employment question in the Applicant’s Employment Questionnaire, had had a significantly detrimental impact, at least on Customs (ACS) and on other employees. See Transcript pp.46-48.
This ground is not established by the Applicant and therefore fails.
Conclusion
The Applicant has not established any of the alleged grounds for review. The Application will therefore be dismissed.
The Applicant must pay the Respondent’s costs. The Court will hear the parties as to the quantum of costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 16th April 2007
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