Kirkham v Industrial Relations Commission

[2015] SASCFC 1

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

KIRKHAM v INDUSTRIAL RELATIONS COMMISSION & ANOR

[2015] SASCFC 1

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)

22 January 2015

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS

The plaintiff was dismissed from his employment as a corrections officer with the second defendant, the Department for Correctional Services, after the Chief Executive found he had engaged in serious misconduct warranting dismissal pursuant to s 54 of the Public Sector Act 2009 (SA). The plaintiff’s application pursuant to s 106 of the Fair Work Act 1994 (SA) on the ground that his dismissal was harsh, unjust or unreasonable was dismissed by a Commissioner of the Industrial Relations Commission. The plaintiff’s appeal against that decision to the Full Commission of the Industrial Commission was dismissed. The plaintiff now seeks judicial review of the decision of the Full Commission of the Industrial Commission.

Held per Kourakis CJ; (Bampton J agreeing) dismissing the appeal:

1. A failure to comply with the statutory requirement to give the Commissioner notice of a proposed dismissal in accordance with s 54(3) of the Public Sector Act 2009 (SA) is a relevant consideration in determining whether dismissal is harsh, unjust or unreasonable [at 4].

2. Despite the jurisdictional error of the Full Commission, by the exercise of this Court’s discretion the plaintiff’s action is dismissed as the grant of relief sought by the plaintiff would be futile [at 44].

Held per Vanstone J (dismissing the appeal):

1. Failure to comply with s 54(3) of the Public Sector Act 2009 (SA) by the Chief Executive does not in this case bear on the question of whether the dismissal was harsh, unjust or unreasonable – non-compliance with that statutory requirement could not, of itself, result in procedural unfairness to an employee.

Public Sector Act 2009 (SA) s 54, s 14, s 4; Fair Work Act 1994 (SA) s 106; Australian Broadcasting Corporation Act 1983 (Cth) s 70; Law Enforcement (Controlled Operations) Act 1997 (NSW), referred to.
Kirkham v Department for Correctional Services [2013] SAIR Comm 17; Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; Gedeon v Commissioner of the New South Wales Crime Commission & Ors (2008) 236 CLR 120; Australian Broadcasting Corporation v Redmore Proprietary Limited (1989) 166 CLR 454; R v Industrial Court of South Australia; Ex Parte General Motors-Holdens Pty Ltd (1975) 10 SASR 582, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED

"harsh, unjust or unreasonable"

KIRKHAM v INDUSTRIAL RELATIONS COMMISSION & ANOR
[2015] SASCFC 1

Full Court:  Kourakis CJ, Vanstone and Bampton JJ

1. KOURAKIS CJ:  The plaintiff, Mr Kirkham, was dismissed from his employment as a corrections officer with the second defendant, the Department for Correctional Services (DCS) on 25 January 2012 after the Chief Executive of DCS (the Chief Executive) found that he had engaged in serious misconduct warranting his dismissal pursuant to s 54 of the Public Sector Act 2009 (SA) (the PSA). Mr Kirkham brought an application pursuant to s 106 of the Fair Work Act 1994 (SA) (the FWA) on the ground that his dismissal was harsh, unjust or unreasonable. His application was dismissed by a Commissioner of the Industrial Relations Commission on 28 March 2013. Mr Kirkham appealed against that decision to the Full Commission of the Industrial Commission (the Full Commission). The Full Commission dismissed his appeal on 4 October 2013.

2. Mr Kirkham brings this action for judicial review of the decision of the Full Commission of the Industrial Commission on the ground that the Full Commission erred in holding that a failure of the Chief Executive to comply with a statutory provision governing the exercise of the power to dismiss, pursuant to s 54 of the PSA, did not render Mr Kirkham’s dismissal invalid.[1]  Mr Kirkham contends that the error is jurisdictional.

   [1]    Mr Kirkham had also sought an order in the nature of certiorari quashing the decision of the Chief Executive to terminate his employment but that relief was not pressed at the hearing.

3. Section 54 PSA obliges a Chief Executive to give the Commissioner of Public Sector Employment (the Commissioner) notice of a proposed dismissal. The Full Commission found that the Chief Executive had failed to comply with s 54 of the PSA but went on to hold that non-compliance did not affect the question whether the dismissal was harsh, unjust or unreasonable because, on its construction of the PSA, non-compliance did not invalidate the dismissal.

4. For the reasons which follow, I would hold that a failure to comply with the statutory requirement to give the Commissioner notice of a proposed dismissal in accordance with s 54(3) of the PSA is, in itself, a relevant consideration in determining whether a subsequent dismissal is harsh, unjust or unreasonable.

5. Speaking generally, a failure to comply with a statutory or contractual provision regulating a power to dismiss may support a finding that the dismissal is unjust, whether or not the non-compliance also shows the dismissal to be unreasonable or unfair. Moreover, a breach of such a statutory or contractual provision may support a decision that the dismissal was unjust even if it does not invalidate the dismissal. Accordingly, I would hold that the Full Commission erred in law in failing to take into account its finding that the Chief Executive failed to comply with s 54 PSA because, on its construction of s 54 of the PSA, non-compliance did not invalidate the dismissal. Nonetheless, I would dismiss the plaintiff’s action in the exercise of this Court’s discretion because, accepting for these purposes that the Chief Executive failed to give the Commissioner notice in accordance with s 54 of the PSA, Mr Kirkham’s application pursuant to s 106 of the FWA is bound to fail. It is not open to the Full Commission to find, in the circumstances of this particular case, that the failure to give the Commissioner the statutory notice rendered Mr Kirkham’s dismissal unfair, unjust or unreasonable.

   The Legislation

6. Section 54 of the PSA provides:

   54—Termination

   (1)A public sector agency may terminate the employment of an employee of the agency on any of the following grounds:

   (a)     the employee is excess to the requirements of the agency;

   (b)     the employee’s physical or mental incapacity to perform his or her duties satisfactorily;

   (c)     the employee’s unsatisfactory performance of his or her duties;

   (d)     the employee’s misconduct;

   (e)     the employee’s lack of an essential qualification for performing his or her duties.

   (2)The employment of an employee may not be terminated under subsection (1)(a) or (b) unless the public sector agency has made reasonable endeavours to find, but has failed to find, other suitable duties in the agency, or other public sector employment (to which this Part applies), to which the employee might be assigned or transferred on conditions that maintain the employee’s substantive remuneration level.

   (3)A public sector agency may not terminate the employment of an employee under subsection (1) on any ground unless the agency—

   (a)     has informed the Commissioner of the grounds on which it is proposed to terminate the employment of the employee and the processes leading up to the proposal to terminate; and

   (b)     has considered any advice given by the Commissioner within 14 days about the adequacy of the processes.

   Factual summary

7. On 18 July 2011, an email (the email) was sent through various DCS distribution lists purporting to have been sent by a correctional services officer, C, announcing that he was homosexual and that he was looking for likeminded people.  In fact the email was not sent by C.  After conducting an inquiry the Chief Executive concluded that the email had been sent by Mr Kirkham. 

8. On 7 November 2011, the Chief Executive wrote to the Commissioner advising him insofar as it is relevant to this action as follows:

   Our Intelligence and Investigations Unit (IIU) conducted interviews of staff as part of the investigation from 18 July 2011 to 2 August 2011.  Mr Kirkham was interviewed by the IIU on 18 July 2011 and during this interview he admitted to sending the email.  However, Mr Kirkham retracted his statement in a second interview with the IIU on 19 July 2011.  Mr Kirkham advised that he was coerced by other staff members to admit to sending the email and take the blame.

   During the investigation, IIU instructed the Department’s Information Systems to seize the computer located in Unit 4 of the ARC from which the inappropriate email was sent.  As a result of an audit of this computer, it was found that Mr Kirkham conducted inappropriate searches on Wikipedia via the internet.  The IIU interviewed Mr Kirkham about this matter on 19 August 2011.

   The IIU submitted its report to me on 8 September 2011 and I delegated the matter to Mr David Brown, Executive Director Custodial Services to consider. On 4 October 2011, Mr Brown advised Mr Kirkham that, based on the information provided to the Department, he may be guilty of misconduct and liable to disciplinary action pursuant to the PS Act. Mr Brown advised the grounds upon which he suspected Mr Kirkham may be liable for disciplinary action, the documents Mr Kirkham may have potentially contravened or breached as a consequence of the incidents, the particulars of the allegations, the evidence collated as a result of the investigation …, and provided Mr Kirkham with a period of 14 days to make any further submissions.

   Mr Brown received further submissions in writing from Mr Kirkham dated 14 October 2011.  Mr Kirkham admitted to conducting inappropriate searches for material on Wikipedia via the internet, but denied any involvement in the writing and sending of the email.

   ...

   Based on an analysis of the interviews conducted by the IIU during the investigation and the Justice Information System (JIS) Audit Log Report for 18 July 2011, the Department considers that the evidence is such that it places Mr Kirkham at the computer in Unit 4 at the ARC at the time the inappropriate email was sent. It is therefore the view of the Department that on the balance of probabilities Mr Kirkham sent the inappropriate email and his action contravened both the Department’s Employee Conduct Policy and the Code of Ethics, and breached the Department’s SOP 38 ‘E-Mail Access & Use’, section 87(1) of the Equal Opportunity Act 1984 and section 21(1a) of the Occupational Health, Safety and Welfare Act 1986. A breach of these Acts contravenes the Professional Conduct Standards in the Code of Ethics.

   (underlining added)

   The Chief Executive attached supporting documentation including transcripts of interviews with Mr Kirkham and a number of other persons.  It will be observed that even though the letter to the Commissioner does not expressly refer to a finding that Mr Kirkham had failed to truthfully answer questions, that finding is implicit in the underlined passages.  Be that as it may the Commissioner was not notified that the Chief Executive proposed to dismiss Mr Kirkham on that ground.

9. The Chief Executive wrote to Mr Kirkham on 14 December 2011 informing him of his intention to terminate his employment and giving him an opportunity to make submissions in reply.  The letter relevantly provided:

   Notwithstanding your denial of responsibility in relation to the inappropriate email sent on 18 July 2011, I am satisfied on the balance of probabilities that:

   1.At all material times you were an employee of the Department for Correctional Services.

   2.On 16-17 July 2011, you conducted inappropriate searches on Wikipedia.  In doing so you failed to comply with the Code of Ethics for the South Australian Public Sector (“Code of Ethics”) and Standard Operating Procedure 38 – ‘Internet Access & Use’.

   3.On 18 July 2011, you wrote and sent an inappropriate email from the user account of [C] without his knowledge or consent.  In doing so, you failed to comply with the Department’s Employee Conduct Policy, the Code of Ethics and Standard Operating Procedure 38 – ‘E-Mail Access & Use’.

   Your behaviour is unacceptable and constitutes serious misconduct pursuant to the Public Sector Act 2009 (“PS Act”) … You are therefore liable to disciplinary action.

   I note that I am also seriously concerned that in light of my finding that you did write and send the inappropriate email from the user account of [C] on 18 July 2011 you have not answered questions truthfully during the course of the disciplinary investigation.  This is a serious issue of itself and amounts to a breach of the implied obligation of trust and confidence in an employment relation.

   …

   Under the PS Act, a number of options are available to me by way of disciplinary action. In all of the circumstances, I am of the view that your misconduct and failure to answer questions truthfully during the course of the investigation is so serious that the appropriate disciplinary action is termination of your employment pursuant to section 54 of the PS Act.

   I hereby provide you with an opportunity to submit to me as to why I should not proceed to terminate your employment.  Any submission you wish to make must be in writing and received by 9 January 2012.  Should you fail or choose not to make a submission, I will proceed to terminate your employment on that date without any further notice.

   It will be observed that the letter put Mr Kirkham on notice of three potential grounds for dismissal being:

   ·inappropriate web searches;

   ·sending the email;

   ·failing to truthfully answer questions.

10. The Public Service Association of South Australia responded on behalf of Mr Kirkham.  By letter dated 25 January 2012, the Chief Executive terminated Mr Kirkham’s employment for his “misconduct and failure to answer questions truthfully during the course of the investigation”.

11. The Full Commission found that DCS had not complied with s 54(3) of the PSA for the following reason:[2]

    In our view s 54(3)(a) implicitly required that the DCS, in seeking advice from the CPSE, provide adequate information as to the underlying ground or grounds of misconduct. The generic reference to “misconduct” in the letter of 7 November 2011, and the provision of information as to one ground of misconduct only, when another ground was also known to the DCS and considered relevant, was not sufficient for compliance with the required procedure. The purpose of s 54(3) of the PS Act would be defeated if it permitted advice to be given by the CPSE on the basis of incomplete information as to the grounds for a proposed dismissal. In the circumstances we conclude that the respondent terminated the appellant’s employment in breach of its obligations under s 54(3) of the PS Act.

    [2]    Kirkham v Department for Correctional Services [2013] SAIR Comm 17 at [50].

12. However, the Full Commission went on to hold that non-compliance with s 54(3) of the PSA did not render the dismissal invalid. For that reason, the Full Commission put to one side its finding that the Chief Executive had breached s 54(3) of the PSA when it was considering whether Mr Kirkham’s dismissal was harsh, unjust or unreasonable. The Full Commission reasoned that because the termination was valid, the non-compliance with s 54(3) PSA was not relevant, other than insofar as the failure to notify the Commissioner of the failure to truthfully answer ground might have denied Mr Kirkham procedural fairness. The Full Commission found that it did not, explaining:[3]

    Further, we reject the appellant’s contention that non-compliance with s 54(3) resulted in procedural unfairness in that if Mr McCann had been informed of the main basis on which it was proposed that the appellant’s employment be terminated, he may have given advice which suggested there should be a lesser penalty than dismissal. Whilst we cannot know what advice would have been given, we do know that on the information before him Mr McCann advised only that the respondent should obtain legal advice before proceeding to termination. It is fanciful to suggest that, had he been apprised of the further and more serious grounds of alleged misconduct, he may have given alternative advice which counselled against dismissal.

    [3]    Kirkham v Department for Correctional Services [2013] SAIR Comm 17 at [58].

    Was statutory notice given?

13. Plainly enough it is the purpose of s 54(3) of the PSA to ensure that the relevant public sector agency provides the Commissioner with sufficient information for the Commissioner to be able to give meaningful advice pursuant to s 54(3)(b) of the PSA. That purpose must inform the construction of s 54(3) of the PSA.

14. Mr Kirkham’s counsel submits that to achieve that purpose the word “grounds” in s 54(3)(a) of the PSA should be given a different meaning to the word “ground” appearing in s 54(1), and the introduction to s 54(3), of the PSA. He contends that the word “grounds” should be read as meaning “particularised grounds”. As a general rule the same meaning should be given to a word wherever it appears in a statutory provision unless the context otherwise demands. I accept that the purpose of s 54(3) of the PSA at least suggests that “grounds” means particularised grounds. However, to so construe the word “grounds” leaves open, and not particularly well defined, the degree of particularisation required by the subsection. The degree of particularisation required in any case cannot be considered in the abstract. The particularisation of criminal or disciplinary charges, or grounds of dismissal, serves a reasonably well understood purpose when given to the person charged. However, the same level of particularisation may not always be required in the notice given to the Commissioner in order to serve the purposes of s 54(3) of the PSA. Nonetheless, given the well developed common law principles governing the particularisation of charges and grounds for dismissal there is some reason to so construe the word “grounds” in s 54(3)(a) of the PSA.

15. The alternative is to require some particularisation of the grounds in the obligation to inform the Commissioner of “processes leading up to the proposal to terminate.”  It is after all, on the adequacy of those processes that the Commissioner may provide advice, and it is for that reason that an obligation to provide some particularisation of the grounds that are under consideration might be implied.  However, it is very difficult to be precise about the level of particularisation that such an implication would require.

16. On either approach, it is open to argument whether or not the letter to the Commissioner notified him of the failure to truthfully answer questions as a ground of dismissal.  The Commissioner found that it did but the Full Commission found that it did not.

17. In the ordinary course, the consideration by a superior court of whether an inferior court or tribunal has made a jurisdictional error of law is determined on the facts as found by the tribunal, unless the facts themselves, and not the tribunal’s satisfaction as to those facts, are jurisdictional. However, s 54(3) of the PSA requires a conclusion as to an evaluative fact which is inextricably connected with the statutory purpose of s 54. I tend to the view, therefore, that it is open to this Court to reach its own conclusion as to whether there was compliance with s 54(3) of the PSA. If it is a matter for this Court, then for the following reasons I would find that s 54(3) of the PSA was complied with.

    Adequacy of the Notice

1. I first make the following general observations on adequacy of the notice required by s 54(3) of the PSA. In considering the adequacy of the disclosure, the particular role played by the Commissioner must steadily be kept in mind. Section 14 of the PSA confers the following functions on the Commissioner:

   14—Functions of Commissioner

   (1)The Commissioner has the function of advancing the objects of this Act, and promoting observance of the public sector principles, in so far as they relate to public sector employment and for that purpose is to—

   (a)     issue the public sector code of conduct (see section 15); and

   (b)     issue public sector employment determinations (see section 16); and

   (c)     monitor and report to the Minister on observance of the public sector principles, code of conduct and employment determinations; and

   (d)     issue guidelines relating to public sector employment matters; and

   (e)     provide advice on public sector employment matters at the request of public sector agencies or on the Commissioner’s own initiative; and

   (f)    provide advice on and conduct reviews of public sector employment or industrial relations matters as required by the Premier or the Minister or on the Commissioner’s own initiative; and

   (g)     investigate or assist in the investigation of matters in connection with public sector employee conduct or discipline as required by the Premier or at the request of a public sector agency and investigate such matters on the Commissioner’s own initiative (including on receipt of public interest information under the Whistleblowers Protection Act 1993).

   (2)The Commissioner has any other functions assigned to the Commissioner under this Act.

2. In short, the role of the Commissioner is to establish the framework within which public sector agencies will exercise employment-related powers and to advise on broad adherence to that framework.  However, the responsibility for termination rests with the public sector agency.  The Commissioner’s role is limited to a high-level review and to providing advice about processes.  The Commissioner does not in any sense review the merits of the decision. 

3. Counsel for Mr Kirkham submitted that the failure to specifically refer to a finding that Mr Kirkham had lied was important in that the Commissioner may have cautioned against dismissing on such a finding without undertaking further investigation because of its seriousness.  However, the degree and extent of the investigations which a Chief Executive considers to be necessary goes to the adequacy of evidence and is a matter within the province of the Chief Executive.  It is not the role of the Commissioner to supervise the enquiries of public sector agencies.  It is not for the Commissioner to give advice to Chief Executives on whether to dismiss public sector employees, and on the grounds on which the termination might be based.

4. The letter to the Commissioner of 7 November 2011 fully disclosed:

   all the evidence on which the Chief Executive was proposing to proceed; 

   the investigative process generally and the records of interview with Mr Kirkham; 

   the Chief Executive’s conclusion that Mr Kirkham had sent the email.

   It is often the case that in the course of a disciplinary investigation, the matter investigated is compounded by a failure of the person charged to answer questions truthfully.  That the Chief Executive was so satisfied would have been obvious to the Commissioner.  The Commissioner would also have known that that conclusion might well have affected the decision to terminate Mr Kirkham and may indeed have been reason for doing so.  Sufficient information was provided to the Commissioner for him to comment on whether any different, or further process or course, should be taken having regard to that necessary implication. 

5. Be that as it may, it is not necessary to finally decide the question as to which view of the letter should be preferred because, on any view, a failure of the kind alleged here could not reasonably support the conclusion that the termination was unjust.

   Invalidity of the Termination

6. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority,[4] McHugh, Gummow, Kirby and Hayne JJ said:[5]

   An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

   Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said “a clause is directory where the provisions contain mere matter of direction and nothing more”. In R v Loxdale, Lord Mansfield CJ said “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been “substantial compliance” with the provisions governing the exercise of the powerhttp:// - . But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville - when discussing the statutory provision in that case: “substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.”

   In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.

   (citations omitted)

   [4] (1998) 194 CLR 355.

   [5] (1998) 194 CLR 355 at [91]-[93].

7. Mr Kirkham’s counsel made the following written submissions on the consequence of non-compliance with s 54(3) of the PSA:

   18.Moreover, the expression “may not” – using the “empowering” word, “may” – rather than “must not”, serves to emphasise that what is involved is a withdrawal or absence of power or authority.  The form of expression – the negation of empowerment – literally serves to exclude the authority otherwise conferred by s 54(1), in the event that s 54(3) is not observed. This is a powerful textual indication that Parliament intended that the power to terminate a public servant’s employment should depend upon compliance with s 54(3).

   19.A decision to terminate, otherwise than following compliance with s 54(3), is one “made without authority”. If s 54(3) was not complied with (which is not disputed), “the decision maker does not have authority to make the decision that was made; he or she did not have jurisdiction to make it”.

   The requirement in s 54(3) precedes the exercise of the power in s 54(1)

   20.The procedural step required by s 54(3) is one which logically and temporally precedes the exercise of the power to decide to terminate the employment of a public sector employee. That is itself a consideration in favour of a conclusion that compliance with s 54(3) is a condition precedent to that exercise. It may be contrasted with a provision which assumes a particular decision-making power and merely regulates the manner in which that decision is to be made. Section 54(3) “imposes essential preliminaries to the exercise of” the power in s 54(1) rather than merely regulating “the exercise of functions already conferred”.

8. There is much force in these submissions. I observe that similar language is used by s 54(2) of the PSA with respect to the requirement to find alternative employment, an obligation which confers an important substantive right on employees and might for that reason be thought to affect the validity of a subsequent decision.

9. Similar observations about the use of the term “must not” in the Law Enforcement (Controlled Operations) Act 1997 (NSW) were made by the High Court in Gedeon v Commissioner of the New South Wales Crime Commission & Ors:[6]

   The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd:

   “The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration.  There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous.  Unless this condition is fulfilled, the authority cannot act – it is a condition of jurisdiction.”

   An instance in the LECO Act is the requirement in s 6(1) that the chief executive officer first have considered an application made under s 5 for the authority to conduct a controlled operation. The text of these provisions is set out earlier in these reasons.

   Section 7(1) of the LECO Act is expressed in the terms of prohibition and thus stands rather differently.  The provision does not stipulate any criterion the satisfaction of which enlivens the exercise of a power or discretion.  Rather, s 7(1) delimits the scope for any exercise of authority by a chief executive officer.  There is no statutory power to grant an authority where the proposed operation involves any participant in the operation of any of the activities identified in pars (a), (b) and (c).  That is the force of the expression “must not be granted” in s 7(1).  It conveys the notion of a contraction in the content of what would be the power otherwise conferred by s 6.

   If it be established upon a “collateral” attack which is decided in a ruling at trial under s 138 of the Evidence Act, or other form of “collateral” attack or (if the proceeding be appropriate) upon judicial review, that, for example, the authority in question was in relation to a proposed operation involving any participant engaging in conduct that was likely to seriously endanger the health or safety of that or any other participant or any other person, then the grant of the authority was beyond power. No question of abuse of discretion or unreasonable decision making arises. The question is answered at an earlier stage of legal analysis. The contrary conclusion by the Court of Appeal appears to have proceeded from a misconstruction of the statutory provisions, in particular of the interrelation between ss 5, 6 and 7.

   (Footnotes omitted)

   [6] (2008) 236 CLR 120 at [44]-[47].

10. Contrary to the Solicitor-General’s submission, the consideration that s 54(3) of the PSA does not require the public sector agency to follow the Commissioner’s advice, but only to consider it, does not strongly contraindicate invalidity. A failure to comply with a statutory direction to act on the Commissioner’s advice would be a relatively obvious case of jurisdictional error but breaches of other requirements might also invalidate the exercise of statutory powers.

11. The consideration that s 54(3) of the PSA is in the nature of “an internal quality control mechanism” is a neutral indication. The purpose of the provision is not limited to protecting the interests of employees. As counsel for Mr Kirkham submitted, it serves the purpose of maintaining the standards of the public sector.[7]  In that sense, it provides a check and balance on the statutory conferral of an important power on public sector agencies.  It is a section enacted as much for the benefit of the executive government as a whole as it is for individual employees. 

    [7]    Public Sector Act 2009 (SA), s 4(c), 4(d), 4(g), 4(i).

12. There is authority that statutory controls internal to government do not, when breached, invalidate dealings with potential parties.  In Australian Broadcasting Corporation v Redmore Proprietary Limited[8] the High Court considered the validity of a contract made by the Australian Broadcasting Commission (the ABC) in relation to premises in Sydney which it occupied. It did so without the approval of the Minister. Later, after a dispute arose, the ABC claimed that, because it was beyond its powers to enter into a contract involving expenditure of more than $500,000 without obtaining the Minister’s consent, the contract was unenforceable. It relied on s 70(1)(a) of the Australian Broadcasting Corporation Act 1983 (Cth) (the Act) which provided:

    (1)     The Corporation shall not, without the approval of the Minister —

    (a)     enter into a contract under which the Corporation is to pay or receive an amount exceeding $500,000 or, if a higher amount is prescribed by the regulations, that higher amount, or

    (b)     enter into a contract or arrangement with another person under which the other person agrees to acquire real or personal property to be leased, or let on hire, to the Corporation.

    [8] (1989) 166 CLR 454.

13. The majority, Mason CJ, Deane and Gaudron JJ, held that both the general structure of the Act and the context provided by other provisions within the Part indicated that the provisions were not concerned with confining the content of powers given, or with invalidating or rendering unenforceable contracts with innocent outsiders made in the exercise of them; but were directory, imposing a statutory duty upon the ABC and its officers.  Their Honours held that the failure to comply with the directive could constitute misconduct, but could not have the effect of making any contract entered into ultra vires.

14. As I have already observed, the scope of the obligation imposed by s 54(3) of the PSA to inform the Commissioner of the processes in which the agency has engaged will often not easily be ascertainable. The scope of the disclosure may vary greatly from case to case. What is adequate will be fact sensitive and inherently disputable, and there may not be a clearly identifiable line for agencies to follow. These considerations suggest that invalidity is not an intended consequence of non-compliance.

15. Moreover, and contrary to Mr Kirkham’s submission, s 54(3) of the PSA has useful purposes to serve even if non-compliance does not result in invalidity. The Solicitor-General correctly submitted:

    38.Similarly, a failure to comply with the obligation imposed by s 54(3) does not “attract no consequence”; cf, Plaintiff’s submissions, [24]. The Commissioner has the function of monitoring and reporting to the Minister on the observance of, relevantly, the public sector principles set out in s 5 of the PS Act; PS Act, s 14(1)(c). Failure to comply with s 54(3) on the part of a public sector agency would at least amount to breach of s 5(7) of the PS Act – legal requirements. Consistently with the purpose of s 54(3) being to operate as an internal mechanism to improve the quality of decision-making in relation to employment, such a breach might be the subject of a report to the Minister by the Commissioner. Moreover, such non-compliance to the extent that it caused procedural unfairness would be a relevant factor in any determination by the Commission as to whether the dismissal was harsh, unjust or unreasonable. It can be expected that identified serious non-compliance with s 54(3) would cause the Commission to scrutinise more carefully any dismissal before it.

16. True it is that the opportunities of a public sector employee to enforce s 54(3) of the PSA might be limited. However, on some occasions a public sector employee may be able to secure compliance by demands made in the course of an investigation and by seeking a declaration if not satisfied with the agency’s response. In any event, it is common to many procedural limitations on the exercise of executive power that enforcement is difficult.

17. I accept that attaching the consequence of invalidity would better serve the various purposes of s 54(3) of the PSA. However, that observation can be made with respect to every statutory requirement imposed on the exercise of a power. It does not follow that that was the statutory intention in this particular case.

18. On balance the context of s 54(3) of the PSA, which is the regulation of the conduct of statutory officers in the management of the public service, tells strongly against a statutory intention to visit the consequence of invalidity on a failure to notify the Commissioner.

19. Again, it is not necessary to finally decide whether the statutory consequence of non-compliance with s 54(3) PSA is invalidity because the second defendant accepted that irrespective of the statutory consequence the Full Commission fell into jurisdictional error in putting to one side the failure to comply with s 54 of the PSA.

20. That concession is plainly right.  A lawful dismissal may nonetheless be harsh, unjust or unreasonable just as an unlawful dismissal may be neither harsh, unjust or unreasonable depending on all of the circumstances.   In R v Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd[9] Bray CJ said of s 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA), a progenitor of s 106 of the FWA:

    I think that the subsection is designed to apply to all dismissals, whether wrongful or lawful at common law.  A lawful dismissal, in appropriate circumstances, can, I think, be legitimately categorised as harsh and unreasonable, and probably it could even be called unjust.  Conversely, some wrongful dismissals, as when by excusable mistake a notice is given slightly short of the necessary week, might deserve none of these adjectives.  The criterion is not lawful or wrongful dismissal, but harsh, unjust or unreasonable dismissal.

    [9] (1975) 10 SASR 582 at 586.

1. A failure to comply with a statutory obligation in the exercise of a power to dismiss an employee will, generally speaking, be capable of rendering the dismissal unjust.  That is because, again as a general rule, justice is done through compliance with the law.  However, it may transpire that the statutory breach has not resulted in an “unjust” dismissal.  The term “unjust” in this context requires an evaluative and normative judgment based on community standards of workplace justice.  For that reason, it is not possible to be overly prescriptive about the denotation of the term.  In general terms where the breach is trivial or could not possibly affect either the substantial merits of the dismissal or the fairness of the procedure, it is unlikely to render the dismissal unjust.

2. However, whatever the ultimate conclusion may be, a breach of s 54(3) PSA implicates the justness of a dismissal as a matter of employment law, whether or not it also invalidates the dismissal as a matter of administrative law. Therefore, if a breach of s 54(3) PSA is shown, it is necessary to consider whether it has rendered an ensuing dismissal unjust even though the dismissal is nonetheless a valid exercise of power.

   The Discretion

3. It therefore falls to this Court to determine whether or not the orders sought should be made and the decision of the Full Commission quashed.

4. Leaving aside the consequence of the non-compliance with s 54(3) of the PSA, both the Commissioner at first instance and the Full Commission of the Commission have held that Mr Kirkham’s dismissal was not harsh or unreasonable. The Full Commission was plainly right to find that Mr Kirkham was not denied procedural fairness by the failure of the letter to expressly refer to his termination on the ground that he had falsely denied that he was the author of the email. Mr Kirkham was accorded procedural fairness in the letter of 14 December 2011 which gave him notice of the intention to dismiss him.

5. The Commissioner, at first instance, found that Mr Kirkham was not a credible witness.  The Commissioner found that it was likely that Mr Kirkham was at the computer terminal from which the email was sent at the relevant time.  The Commissioner rejected Mr Kirkham’s evidence that he was confused and nervous when interviewed.  The Commissioner concluded that the Chief Executive had reasonably concluded that the applicant had sent the email and had lied during the investigation.  The Commissioner was satisfied that he had been accorded procedural fairness and that the remedy of termination was reasonable.  That conclusion, affirmed by the Full Commission, is not challenged and cannot be affected by the failure to notify the Commissioner of the failure to truthfully answer ground.

6. In the light of those findings, the Full Commission could not reasonably find that the failure to expressly advert to the fail to truthfully answer ground in the advice to the Commissioner rendered the dismissal unjust. The failure to comply with s 54(3) of the PSA could not reasonably be found to have caused any injustice to Mr Kirkham. There was no reason, in terms of process, to refrain from dismissing Mr Kirkham on the failure to truthfully answer ground. Moreover the other grounds amply justified his dismissal. The non-compliance with s 54(3) PSA is insignificant.

   Conclusion

7. I would exercise the discretion to refuse the relief sought by Mr Kirkham, despite the jurisdictional error of the Full Commission, because the grant of relief would be futile.  I would dismiss the plaintiff’s action

8. VANSTONE J:     I have had the benefit of reading the reasons prepared by the Chief Justice.  I agree that the relief sought by Mr Kirkham should be refused.

9. However, my reasons for reaching that position are different from those of the Chief Justice. I can be brief in explaining the variance, since the competing considerations have been outlined. In my view, even if the Chief Executive failed to comply with s 54(3) of the PSA – as to which I, like the Chief Justice, remain unconvinced – I do not accept that such a failure could, in this case, bear on the question of whether the dismissal was harsh, unjust or unreasonable. I am not persuaded of the correctness of the concession made by the Solicitor-General about this, the terms of which are set out in the Chief Justice’s reasons. That is, I do not accept that non-compliance could, of itself, result in procedural unfairness to an employee. I do not say that non-compliance might not be a relevant factor in any inquiry. For example, it might bear on the credibility of the officer responsible for complying with s 54(3) PSA. However, I cannot see in this case that there is any causal link between the asserted failure to comply and the validity of the applicant’s dismissal.

10. Because of the Solicitor-General’s concession the Court did not have the benefit of robust argument on these matters.  For that reason and in circumstances where it is agreed that the plaintiff’s summons should be dismissed, I prefer to express no final view.

11. BAMPTON J:      I agree that the plaintiff’s action for judicial review should be dismissed and with the reasons of Kourakis CJ.