Joseph Steven Rappa v Commonwealth of Australia
[1995] IRCA 672
•29 Nov 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - PROCEDURAL FAIRNESS - NOTICE - DELAY - EXTENSION OF TIME
INDUSTRIAL RELATIONS ACT 1988 , ss170DB, 170DC, 170DE
Maggs v Comptroller- General of Customs 128 ALR 586
Nicolson v Heaven & Earth Gallery Pty Ltd 126 ALR 233
JOSEPH STEVEN RAPPA v COMMONWEALTH OF AUSTRALIA
QI 95/1114
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 NOVEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1114
QUEENSLAND DISTRICT REGISTRY
BETWEEN: JOSEPH STEVEN RAPPA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
MINUTE OF ORDERS
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 NOVEMBER 1995
THE COURT ORDERS THAT:
1.The application be dismissed.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1114
QUEENSLAND DISTRICT REGISTRY
BETWEEN: JOSEPH STEVEN RAPPA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 NOVEMBER 1995
REASONS FOR JUDGMENT
At all material times the applicant was an employee of the Department of Social Security (the Department) at its Woodridge, Brisbane office. He had been so employed since 16 January 1989. For about two years prior to 1994 the applicant had been an acting Field Assessor, his principal duties being concerned with reviews of the entitlement of persons in receipt of benefits, and the size of those benefits, provided to them by the respondent.
The applicant had been receiving a Linguistic Availability Performance Allowance ("LAPA"). He had some fluency in Spanish which he employed when dealing with benefit recipients whose native tongue was Spanish. The use of this skill entitled him to LAPA, and boosted his renumeration.
On 15 November 1993 the Department initiated a review into the payment of LAPA. As a result of this review, the applicant was advised by Personnel Section that the review had demonstrated his use of Spanish linguistic skills was insufficient to justify payment of LAPA to him, and that allowance would be cancelled with effect from pay day 10 March 1994. After the applicant made contact with the Personnel Section, his Personnel Manager agreed to a further six weeks survey period commencing 8 March 1994, in which to determine his LAPA eligibility.
The applicant's immediate supervisor was a Jane Swallow. It came to her attention on 16 March 1994 that the applicant had apparently initiated a review of the one of the Department's benefit recipients (a Spanish speaker) without, she claimed, appropriate authority. Ms Swallow suspected that there may be a connection between the review conducted by the applicant of the benefit recipient's file (which might involve his conversing in Spanish with the recipient), and the current review of the applicant's eligibility for LAPA. She spoke to the applicant that day, and made a note of her conversation with him (exhibit R18).
I accept Ms Swallow's assertion that the review conducted by the applicant was unauthorised. She was supported in this by other witnesses for the respondent whose evidence I accept also. I find that the applicant knew that the review was unauthorised when he performed it. When questioned by Ms Swallow on 16 March 1994 about whether there was any link between the review and his receipt of LAPA, the answer he gave suggests there was such a connection.
I accept that Ms Swallow also made it plain to the applicant on 16 March 1994 that he was not to review any files without authority, and that the applicant understood her direction. Despite this, I find that the applicant carried out a further four unauthorised reviews between 16 and 25 March 1994. On the latter date these four, and two others (performed on 11 and 14 March 1994 respectively) came to Ms Swallow's attention.
On 28 March 1994 Ms Swallow took up with the applicant the matter of the further unauthorised reviews, and his disobedience of the instructions she had given him on 16 March 1994. The further reviews all concerned Spanish speakers. I find that each review was unauthorised, the applicant knew each was unauthorised at the time he conducted them, and his purpose in conducting them was to build up his claim for continuing receipt of LAPA.
Ms Swallow passed on what she learnt to her superiors. The Regional Manager of the office, a Mr Webster, referred the matter to a Privacy Investigation Officer of the Department, a Mr Barr. The applicant provided a handwritten statement dated 20 April 1994 dealing with Ms Swallow’s concerns. Subsequently, on 6 June 1994, charges under the Public Service Act 1922 were laid against him. An officer (a Mr Beutel) was appointed to conduct an official inquiry into the charges.
The charges were as follows:
I, Kerry Dianne Flynn, an officer authorised by the Secretary for the purposes of subsection 61(2) of the Public Service Act 1922 ("the Act"), being of the opinion that Joseph Steven Rappa, Administrative Service Officer Class 1 (acting Administrative Service Officer Class 3) of Woodridge Regional Office may have failed to fulfil his duty as an officer, HEREBY CHARGE JOSEPH STEVEN RAPPA with having failed to fulfil his duty as an officer within the meaning of s 56(f)(1) of the Act in that he contravened or failed to comply with a provision of the Public Service Regulations in that:
On a date or dates unknown between 1 March 1994 to 28 March 1994 inclusive he did contravene the provision of regulation 37(1) of the Public Service Regulations being a provision that is applicable to him.
Regulation 37(1) states that, an officer shall not take, or seek to take advantage of that officer's functions in order to obtain a benefit for that officer or a body or person other than that officer.
Particulars of the charge then followed.
Omitting the preamble to the other charges, they were as follows:
HEREBY CHARGE JOSEPH STEVEN RAPPA with having failed to fulfil his duty as an officer within the meaning of s56(f)(1) of the Act in that he contravened or failed to comply with a provision of the Public Service Regulations in that:
At or about 1 March 1994 he did contravene the provision of regulation 8A(b) of the Public Service Regulations being a provision that is applicable to him.
Particulars of the charge are that he failed to comply with Departmental Instructions numbered CG900172 (issued 14 September 1990) and CG930010 (issued 14 January 1993) with which it was his duty to comply.
Instruction CG900172 states that it is an offence for staff to access information about clients contained in Commonwealth computers other than on a need to know basis to do their job.
Instruction CG930010 advised staff of a new provision of the Social Security Act 1991 namely s1312A, which came into effect on 24 December 1992 and made an offence of the unauthorised access to "protected information". "Protected Information" is defined in the Social Security Act 1991 as "information about a person that is held in the records of the Department".
There then followed identification of the client whose record the applicant was alleged to have improperly accessed.
The other five charges were in like terms to the charge alleging a contravention of regulation 8A(b) of the Public Service Regulations. Each of those charges particularised alleged improper access to client records held by the Department.
A Notice of Inquiry dated 5 July 1994 under section 62 of the Public Service Act was served on the applicant. Mr Beutel interviewed the applicant on 21 July 1994, which interview was recorded. It was signed by the applicant on 11 August 1994, at which time he provided a handwritten statement of the same date.
On 5 September 1994 Mr Beutel found the applicant guilty of each of the charges. Apart from monetary penalties which he imposed for each of the regulation 8A(b) charges he found proved, he considered dismissal was the appropriate penalty for the regulation 37(1) offence. In consequence, the applicant was served on 8 September 1994 with a Notice of Direction under sub-section 62(6) of the Public Service Act that he was to be dismissed from the Australian Public Service. That notice also advised the applicant of his right to appeal under section 63D of the Act against Mr Beutel's decision, to a Disciplinary Appeal Committee. The applicant appealed, his appeal being dismissed by a Disciplinary Appeal Committee, written notice to that effect being given to him on 10 November 1994. Termination of the applicant's employment by the respondent took effect on that date.
The applicant did not file proceedings in this court until 19 April 1995. His application is substantially out of time - para 170EA(3)(a) of the Industrial Relations Act 1988 (“the Act”).
I propose to deal with the merits of the matter before turning to the question of whether or not time for the bringing of the proceedings ought to be extended.
Section 170DE
I am satisfied on the evidence before me that the respondent has proved it had a valid reason, within the meaning of subsection 170DE(1) of the Act, for the termination of the applicant's employment. This reason is connected with the applicant's conduct, I being satisfied that the charges laid against the applicant have each been proved.
Was the termination otherwise harsh, unjust or unreasonable? I am not satisfied it was, particularly in view of the applicant's breach of regulation 37(1). In so concluding, I have taken into account all the charges of which the applicant was found guilty.
Section 170DB
In my opinion, no question of notice arises, the applicant being guilty of the kind of misconduct referred to in para 170DB(1)(b) of the Act - Maggs v Comptroller General of Customs 128 ALR 586.
Section 170DC
The applicant was given the opportunity to defend himself against the allegations made. He got "a fair go" - Nicolson v Heaven and Earth Gallery Pty Ltd 126 ALR 233.
Miscellaneous
The applicant's principal criticisms before me were directed to a number of matters falling generally under the rubric of procedural fairness. He complained that Ms Swallow did not provide him with a copy of her notes of her conversations with him, on 16 and 28 March 1994. There was no obligation on her so to do. He questioned the propriety of the matters being referred by his Regional Manager to Mr Barr, who was then the fiance, and is now the husband, of his supervisor, Ms Swallow. I find that early in the process Mr Barr, being mindful of the possible suggestion of partiality to the role of his fiance, passed the matters on to another investigator, a Mr Bell. Nothing of consequence has resulted from this connection.
The applicant had not received a pamphlet of staff members' rights until after he had handed in his written statement dated 20 April 1994. He had, however, been verbally advised of his rights prior to submitting that statement. Nothing turns on this.
Finally, the applicant claimed he had been denied an advocate of his choice, a Mr Conway, before the Disciplinary Appeal Committee. He seemed to link this with the fact that Mr Conway's supervisor was the wife of the applicant's Regional Manager, Mr Webster. I reject the suggestion that Mr Webster, or any other employee of the respondent, played any role in preventing Mr Conway from appearing for the applicant.
Extension of time
In view of the conclusions I have reached about the fate of the application, it is not strictly necessary that I decide whether or not time ought to be extended for its filing. If it were necessary to decide, I would not extend time. In my opinion, the applicant has not provided an acceptable explanation for the delay which occurred between 10 March 1995, when he swore he first learnt of his rights to bring application in this court, and 19 April 1995, the actual date of filing. I take into account also that, after the decision of the Disciplinary Appeal Committee, the respondent does not appear to have been made aware, until the application was filed, that the applicant was still disputing the termination of his employment. In the circumstances, I would not consider it fair and equitable to extend time.
Order
I order that the application be dismissed.
I certify that this and the preceding FIVE (5) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 29 November 1995
Appearing for the Applicant: In person
Counsel for the Respondent: Mr Belcher
Solicitor for the Respondent: Australian Government Solicitor
Dates of hearing: 24 & 25 October, 7 & 8 November 1995
Date of judgment: 29 November 1995
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