Krstic, N. v Australian Telecommunications Commission
[1988] FCA 674
•24 NOVEMBER 1988
Re: NATALIA KRSTIC
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. VG91 of 1988
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.(1)
CATCHWORDS
Administrative Law - judicial review - termination of probationary appointment of officer - statutory provision for review of decision by tribunal - requirements of natural justice or procedural fairness - whether officer entitled to be represented by lawyer or union official - right to have friend or adviser present - whether such decisions validly made by all tribunal members - whether officer entitled to be present during all interviews by tribunal - whether confirmation of termination by officer who had previously recommended it vitiated decision.
Telecommunications Act ss 39 and 40
Telecommunications Regulations 31-35
HEARING
MELBOURNE
#DATE 24:11:1988
Counsel for the Applicant: Mr T. Hurley
Solicitors for the Applicant: O'Haire and O'Haire
Counsel for the Respondent: Mr R. Tracey
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The application be dismissed, with no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 ('the AD(JR) Act') to review the decision of the respondent to terminate the applicant's appointment as an officer of the respondent at the end of her period of probation.
The applicant had previously served for some time as a temporary employee of the respondent ('Telecom'). That service, as a data process operator, had been marred by the fact that she had suffered a repetitive strain injury which resulted in a lengthy absence from work. Eventually her appointment was terminated but, after representations by her union, she was re-engaged as a clerical assistant in November 1986. These proceedings are only concerned with the later period of employment and with questions of the applicant's conduct. They are not concerned with the earlier period or her medical history, although there were some references to both matters in the course of the hearing.
The applicant worked as a clerical assistant until she received notice of termination of her appointment in June 1988, her period of six months probation having expired the previous month.
She asked for her termination to be considered by a Review Tribunal. That review, in effect, upheld the decision, which was then confirmed by another officer of the respondent.
The applicant in these proceedings complains of a number of different aspects of the decision-making process which, separately and together, are said to amount to a denial of natural justice or, as I would prefer to say, procedural fairness. As Mason J said in Kioa v West (1985) 159 CLR 550 at 593,
"It has been said on many occasions that natural justice and fairness are to be equated .... And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression 'natural justice' has been associated, perhaps too closely associated, with procedures followed by courts of law."
In the present case the applicant's chief complaints, as outlined by her counsel, may be summarised as follows:
(a) She was not allowed to be represented at the review proceedings by a solicitor.
(b) She was not allowed, at those proceedings, to be adequately represented or supported by a union official.
(c) The decisions in (a) and (b) were made, in effect, by the chairman of the Review Tribunal ('the Tribunal') without her applications being heard by the other two members.
(d) Evidence adverse to her case was taken by the Tribunal in her absence and she was given no opportunity to respond to it.
(e) The final decision to confirm her termination was made by an officer who had taken part in the original termination process and given evidence to the Tribunal.
The applicant's entitlement to procedural fairness in the circumstances of this case is not disputed by the respondent; see O'Rourke v Miller (1985) 156 CLR 342. What procedural fairness requires is a matter of more difficulty. As Mason J also said in Kioa (above, at 584),
"Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute."
The relevant provisions of ss 39 and 40 of the Telecommunications Act 1975 and the regulations made under that Act are as follows:
"39.(1) The Commission may appoint as officers such number of persons as it thinks necessary for the purposes of this Act.
(2) A person shall not be appointed as an officer unless -
(a) the Commission is satisfied, after he has undergone a medical examination required by the Commission, as to his health and physical fitness;
(b) he possesses such educational qualifications, or meets such other requirements (if any), as are determined by the Commission; and
(c) the Commission is satisfied that he is a fit and proper person to be an officer.
(3) ....
(4) ....
(5) ....
40.(1) Unless the Commission, in a particular case, otherwise directs, the appointment of every officer shall be on probation for a period of 6 months commencing on the day on which the officer commences duties in pursuance of his appointment.
(2) A person appointed as an officer on probation remains a probationer until his appointment is confirmed or terminated in accordance with this section.
(3) The Commission may, at any time during the period of 6 months, terminate the appointment.
(4) As soon as practicable after the expiration of the period of 6 months, the Commission shall -
(a) confirm the appointment;
(b) terminate the appointment; or
(c) direct that the probationer continue on probation for such further period (not being a period exceeding 6 months) as the Commission determines.
(5) ....
(6) Where the appointment of a probationer is to be terminated, the Commission shall notify the probationer in writing of the reasons for the termination of the probation.
(7) The regulations shall make provision for and in relation to the review of a decision of the Commission under paragraph (4)(b)." "Telecommunications Regulations
31. For the purposes of the reviews of decisions of the Commission under paragraph 40(4)(b) ..... of the Act, the Commission shall, from time to time, arrange for the establishment of such Review Tribunals as are required. 32.(1) A Review Tribunal shall, in relation to an application by an officer for a review of a decision of the Commission under paragraph 40(4)(b) ..... of the Act, be constituted by -
(a) a Chairman, being a person who holds the office of Chairman of a Promotions Appeal Board;
(b) an officer nominated by the Commission for the purposes of the review; and
(c) an officer nominated, for the purposes of the review, by the organization that is the appropriate organization in respect of the review.
(2) An officer shall not be nominated by the Commission as a member of a Review Tribunal if that officer has been directely concerned with the decision that is the subject of the review.
(3) ....
33. An officer affected by a decision of the Commission under paragraph 40(4)(b) ..... of the Act may, within 14 days after he receives notice of the decision, apply in writing addressed to the person in charge of the office of a Promotions Appeal Board for the State or Territory in which he performs his duties for a review of the decision. 34.(1) A Review Tribunal shall undertake a full review of a decision of the Commission in relation to which an application for review is made in accordance with regulation 33.
(2) Subject to this Part, in the conduct of a review by a Review Tribunal -
(a) the Tribunal may inform itself in such manner as it thinks fit;
(b) the procedure to be followed is within the discretion of the Tribunal;
(c) the Tribunal is not bound by the rules of evidence; and
(d) the Tribunal shall proceed without regard to legal forms or solemnities.
(3) ....
35.(1) Where a Review Tribunal is of the opinion that any action taken under paragraph 40(4)(b) ..... of the Act should receive further consideration by the Commission, it may recommend accordingly to the Commission and may advise the Commission of any action which, in its opinion, should be taken by the Commission in order to do justice to the merits of the application.
(2) The Commission shall, upon receipt of a recommendation and advice from a Review Tribunal under sub-regulation (1), give further consideration to the matter and may confirm the decision previously made by it or take such other action as it considers appropriate to give effect to the recommendation or advice of the Tribunal."
In my view these provisions make it clear that the applicant's first argument cannot succeed. It is open to the Tribunal to decide that it, a lay body, does not want to have lawyers appearing before it. Counsel relied upon The King v Board of Appeal, ex p Key (1916) 22 CLR 183 as authority for the proposition that the applicant was entitled to be legally represented. But that case turned upon a provision of the Commonwealth Public Service Act 1902-1915 which required the tribunal in that case to "hear such appeal and transmit the evidence taken together with a recommendation" to the Public Service Commissioner. The High Court, expressing considerable doubts and without the benefit of a contrary argument, held that the references to an appeal and to taking evidence were sufficient to suggest an entitlement to legal representation. That decision has been followed, in a case involving similar regulatory provisions, in R v Commissioner of Police; ex p Edwards (1977) 17 ALR 445 at 455-6. But the regulations governing the Tribunal in the present case are to very different effect; see, in particular, sub-reg 34(2) above. The clear effect of those provisions is that the Tribunal may proceed informally, and from this is may be inferred that the appearance of lawyers is not anticipated.
That is not to say that the Tribunal, in a proper case and in the exercise of its discretion, could not permit a lawyer to appear. One could imagine, for example, a case in which a young employee was having probation terminated because of alleged theft, where the nature and seriousness of the allegation could easily lead the Tribunal to the view that legal representation was desirable.
It was said for the applicant in the present case that her livelihood was at stake; and this was true in the sense that an adverse finding would mean she had to look for other employment and this would be made more difficult by the absence of favourable references. Nevertheless the question whether or not an officer should be appointed permanently after a period of probation is not, of its nature, one which requires lawyers to assist in its decision. And, as a Full Court of this Court said in Cains v Jenkins (1979) 28 ALR 219 at 230,
"On the authorities there is no absolute right to representation even where livelihood is at stake."
The question whether a person in the applicant's position should be allowed assistance or representation by a person other than a lawyer is more difficult. In my view it depends upon the ability of the person concerned to conduct his or her own case.
A person with a tertiary qualification and a normal amount of self-confidence should require no representation or assistance. But even that person might ask to have a friend present, for reassurance and, perhaps, consultation at times. A tribunal such as that in the present case would, in my view, be well advised to grant such a request, unless there was good reason for rejecting it.
At the other end of the scale, a person having a low standard of education, and perhaps some difficulty with the English language, who is lacking in self-confidence, may be quite incapable of adequate self-representation, and only able to put a case through a friend or union representative - or, if these are not available, a lawyer. Such an application should clearly be granted.
In the present case, having heard the evidence of others and observed the applicant in the witness box, I am satisfied that the applicant was quite able to stand up for herself and put to the Tribunal what was necessary by way of explanations or comments on the material before it - which consisted of Telecom documents relating to her employment which had also been supplied well in advance to the applicant.
However, in view of her age and level of education, it was sensible for the Tribunal to allow a union organizer, Mr Stephenson, to be present at the applicant's request. In my view it would have been even more sensible if he had been allowed to sit beside her or immediately behind her so that she could quietly communicate with him if she needed advice during the hearing. There was no need to allow him to represent her and, indeed, the more the Tribunal members heard directly from the applicant, the better chance they had of judging her for themselves and, perhaps, reaching a favourable finding. But for the chairman of the Tribunal to place artificial restrictions on her ability to communicate with Mr Stephenson, by requiring him to sit at a distance from her was, in my opinion, unnecessary and unhelpful. As Lord Tenderden said, speaking of a magistrate's court, in Collier v Hicks (1831) 2 B & Ad 663 at 669,
"Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices."
See also McKenzie v McKenzie 1970 3 All ER 1034.
However in the present case the applicant was allowed to communicate with Mr Stephenson during several adjournments which were either requested by her or offered by the Tribunal. Given her personal capacities and those opportunities to receive advice and assistance, I do not believe there was any procedural unfairness on this score.
The next matter raised by the applicant was the way in which the decisions about representation were reached.
On the day first appointed for the hearing, the applicant and Mr Stephenson were met in the foyer of the Tribunal's premises by Mr Hill, the chairman. When Mr Stephenson indicated his intention of representing the applicant - which had already been foreshadowed in a letter to the Tribunal - Mr Hill made it clear that, so far as he was concerned, that would not be permitted. He took Mr Stephenson and the applicant into an empty boardroom to discuss the matter. After an exchange of views he left to report these discussions to the other Tribunal members, Mr Barrot and Mr Dighton, neither of whom had sat on the Tribunal before, though Mr Barrot had sat on a number of promotion boards.
Mr Hill told his colleagues of the discussions and gave his reasons for the view which he took, which were based on sub-reg 34(2). They agreed with him that, on the understanding that the applicant was capable of putting her own case, she should not be represented.
The applicant and Mr Stephenson were then brought in by Mr Hill to meet the other Tribunal members and a quite lengthy discussion took place. In the course of it the Tribunal readily agreed that, since the applicant had not been expecting to present her own case, she should have an adjournment to a later date to prepare herself. The Tribunal also checked that she had received the necessary documents from the Telecom file. In the course of these discussions, which lasted some forty minutes, the members of the Tribunal were able to confirm the view already expressed by Mr Hill, following his earlier conversation with her, that the applicant would be able to represent herself.
However I am bound to say that Mr Hill's handling of this matter was unsatisfactory. The chairman of a tribunal such as this must realise that he is only first among equals. His views carry no more weight than those of the other members, and he should do nothing which might appear to pre-empt the decision of the whole Tribunal. It would have been much better if the applicant and Mr Stephenson had been able to put their arguments directly to the three Tribunal members rather than have them relayed by the chairman.
Nevertheless I do not believe that the course taken by Mr Hill actually resulted in a denial of procedural fairness. Having heard evidence from the other two members of the Tribunal I am satisfied that the discussions conducted by Mr Hill were adequately reported to them, they had an opportunity to make up their own minds, and did so after proper consideration. They then had an opportunity to confirm the appropriateness of their decision in the discussions with the applicant which followed. I accept Mr Barrot's statement that he would have reconsidered his decision if it had become apparent at any time that the applicant was not representing herself adequately. I don't doubt that the other Tribunal members would have done the same. In this sense the decision made was always open to review as the hearing progressed.
The same undesirable procedure was followed by Mr Hill when the lawyer, Mr Grabau, sought to represent the applicant on the adjourned hearing date. I make the same findings about that procedure. In this case it is clear that the other two members agreed strongly with Mr Hill that legal representation was unnecessary and undesirable. Although it would again have been much better if Mr Grabau had been allowed to address his brief argument, about natural justice in a case where livelihood was at stake, to the whole Tribunal, I do not believe there was a denial of procedural fairness.
The Tribunal is expressly empowered to "inform itself in such manner as it thinks fit" and to determine its own procedures. Having heard both Mr Barrot and Mr Dighton give evidence, I am satisfied that they were both properly informed of the issues at stake and expressed their genuine concurrence with the views first put by Mr Hill. I am satisfied that, in each instance, had a better course been taken it would have produced no different result.
The next matter of which the applicant complains came about in the following way. When the applicant herself was heard, she was taken through the documents relating to her employment one by one and invited to comment on any adverse reference by a supervisor or other superior officer. At the end of that process, which took about four hours, she was told that the Tribunal would, on a later date, interview those people who had made the adverse comments and question them about what they had written. If anything fresh emerged she would be told of it and given an opportunity to respond. If not, the Tribunal would consider the matter and she would be notified of its findings in due course. The decision to see the Telecom officers personally was taken because the applicant asked the Tribunal not to take adverse comments on her performance "at face value". It seems that the usual practice of Telecom Review Tribunals, at least in Victoria, is to speak to such persons by means of a conference telephone call rather than interviewing them in person.
When the intended procedure in her case was explained to the applicant she raised no objection to it and it was in fact adopted. The applicant now claims that she should have been present to hear anything that was said in case she wanted to contradict it.
In my view, given the right of the Tribunal to determine its own procedures, it was within its powers in deciding to interview these other Telecom officers without the applicant being present. This then placed on the Tribunal the burden of ensuring that it did not put in the balance any allegation adverse to the applicant made by a Telecom official which the applicant had not had a chance to refute; see Kioa v West (above). There is nothing in the material before me to persuade me that any such allegation was made. The officers in question merely confirmed opinions previously expressed in their written reports on the applicant.
Telecom's formal statement to the Review Tribunal, which was supplied to the applicant, gave as the reasons for termination of her appointment that it was
"... due to unsatisfactory conduct, diligence and efficiency.
In particular :-
. abrupt, rude telephone manner when dealing with Customers . unsatisfactory level of speed and accuracy when performing duties . despite considerable on the job training, unsatisfactory knowledge standard and output of work (unable to grasp fundamentals, asks same questions repeatedly)"
The gist of the complaints of her supervisors recorded in her work reports was that the speed and accuracy of her clerical work was unsatisfactory and, in particular, her telephone communications with the general public were "not suitable" and lacking in "common courtesy". One supervisor described her attitude to work as "very poor". All such suggestions were put to the applicant by the Tribunal when she was interviewed. She made her reply, denying rudeness and offering explanations for other criticisms made of her. It is perhaps significant that she offered no general references to counter-balance the statements of these supervisors.
On the important question of rudeness to the public, she produced statements from two people who said she had been helpful in dealing with their problems. Another specific complaint made by the applicant about the way the hearing was conducted was that these two references were not pursued by contacting the people who had given them. In my view there is nothing in this point because the referees were only speaking of isolated events which were sufficiently described in their statements. They were not character referees and nothing would have been gained by contacting them. It is unfortunate that, in referring to the references, Mr Hill appears to have said something to the effect that unless she wished to table them the applicant might as well throw them out. Such words from the chairman of an independent tribunal are not calculated to inspire confidence in its seriousness of purpose; but they are not sufficient to vitiate its proceedings.
The final point raised by the applicant before this Court was that, after the Tribunal had made a report which was adverse to her, her termination of appointment was confirmed by Mr G.I. Steele who, although he had not known her personally, had held a position which required him to sign the earlier recommendation that her appointment be terminated and who had been summoned before the Tribunal to give what evidence he could about that circumstance. By the time the Tribunal made its report, he held the appropriate delegation from Telecom to act on the Tribunal's decision.
I think it would have been preferable if, in the circumstances, Mr Steele had referred the matter to a senior officer to make the final decision. But he was not called upon to exercise any real discretion. A decision had already been made, at an appropriate level, to terminate the applicant's appointment. This decision was affirmed by the Tribunal without qualification. The Tribunal unanimously agreed with the three reasons given for termination of her appointment and recommended that Telecom "should proceed with its proposed and stated course of action". There was, in my view, no arguable reason for a reviewing officer to reach any different conclusion in making the formal decision whether or not to proceed with termination. In my opinion there was no denial of procedural fairness of this score.
For the reasons I have given, I do not believe that any one of the applicant's chief complaints, lettered (a) to (e) at the outset of these reasons, has been shown to be sufficiently soundly based to entitle her to an order of review. I have also considered a number of minor points relied on by counsel for the applicant from among those in the amended application, and can find no substance in them.
However I am troubled by the general way in which this matter was handled by the chairman of the Review Tribunal. I think he displayed, at several points, an authoritarian manner which led the applicant to fear that the issue of termination had been prejudged. I am satisfied that this was not the case. I have no reason to doubt the chairman's evidence on this point, and I was impressed by both the other members of the Tribunal. Mr Dighton, the nominee of the Australian Public Service Association, said that he regarded it as his task "to make sure that she had a fair hearing", and this had occurred. I am satisfied that, even when the various points of criticism I have made are totalled, they do not amount to a denial of procedural fairness or provide any other ground for review under the AD(JR) Act. Accordingly the application will be dismissed.
Nevertheless I think that it would be appropriate for the Court to mark its concern with the manner in which the chairman conducted the review by making no order as to costs.
Since drafting this judgment I have seen a decision of a Full Court of this Court in Busby v Australian Telecommunications Commission (unreported, 28 October 1988) which was concerned with a review similar to this. It confirms the views I have expressed above about the absence of any requirement for the applicant to be present when supervisors were being interviewed, and is on no other point inconsistent with the opinions I have stated.
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