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

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…

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.

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Details

Case: [2015] SASCFC 1
Decision Date: 22 January 2015

CaseChat Overview and Summary

This matter concerned an appeal to the Full Commission of the Industrial Relations Commission of South Australia, brought by Mr Kirkham against his dismissal. The dispute centred on whether the dismissal was harsh, unjust, or unreasonable, and whether procedural fairness had been afforded to Mr Kirkham during the dismissal process.

The legal issues before the Full Commission included whether the failure to expressly consider a specific ground for dismissal (failure to truthfully answer) rendered the dismissal unjust, and whether a failure to comply with section 54(3) of the Public Sector Management Act 1995 (SA) (PSA) constituted a jurisdictional error or a breach of procedural fairness. The court was required to determine if any such procedural non-compliance had caused injustice to Mr Kirkham and, if so, whether relief should be granted.

The Full Commission, in its decision, found that the failure to expressly advert to the "fail to truthfully answer" ground did not render the dismissal unjust. Furthermore, it concluded that any failure to comply with section 54(3) of the PSA was insignificant and could not reasonably be found to have caused any injustice to Mr Kirkham. The court reasoned that there was no procedural reason to refrain from dismissing Mr Kirkham on the grounds that were amply justified, and that the non-compliance with section 54(3) PSA was inconsequential. Despite acknowledging a jurisdictional error by the Full Commission, the court exercised its discretion to refuse the relief sought by Mr Kirkham, deeming the grant of relief to be futile. Consequently, the plaintiff's action was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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