La Roche, Philip Raymond v Commonwealth Bank of Australia

[1997] FCA 1170

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL  TERMINATION - VALID REASON - PROCEDURAL FAIRNESS - COSTS

Industrial Relations Act 1988 ss 170DE, 170DC, 170DF
Workplace Relations Act 1996 s 347(1)

Maggs v Comptroller-General of Customs (1995) 128 ALR 586, applied

PHILIP RAYMOND LA ROCHE v COMMONWEALTH OF AUSTRALIA
VI 4568 of 1995

MARSHALL J
MELBOURNE
 31 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 4568  of   1995

BETWEEN:	PHILIP RAYMOND LA ROCHE Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:		MARSHALL J
DATE OF ORDER:		31 OCTOBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 4568 of 1995

BETWEEN:	PHILIP RAYMOND LA ROCHE Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	MARSHALL J
DATE:	31 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

On 30 August 1995 the applicant filed in the Victoria District Registry of the Industrial Relations Court of Australia (“IRCA”) an application pursuant to what was then known as
s 170EA of the Industrial Relations Act 1988 (“the IR Act”). The applicant alleged that his employment had been terminated by the respondent unlawfully. He sought the remedies of reinstatement and compensation. His employer was described in the application as “Australian Taxation Office (Australian Public Service)”. There is no juristic person of that name. When the matter came before me the title of the respondent was, by consent, amended to “the Commonwealth of Australia”.

On 18 September 1995 the District Registrar of IRCA referred the matter to the Australian Industrial Relations Commission (“AIRC”) for conciliation pursuant to s 170ED of the IR Act. On 14 November 1995 Commissioner Cribb certified that the AIRC had been unable to settle the matter by conciliation. The matter was heard by Judicial Registrar Millane over twelve sitting days between 10 April 1996 and 27 September 1996. The Judicial Registrar published her reasons for judgment on 22 January 1997. She dismissed the application. On 10 February 1997 the applicant applied for a review of the exercise of power by the Judicial Registrar pursuant to s 377(1) of the Workplace Relations Act 1996 (“the Act”), although the relevant notice of motion incorrectly referred to the IR Act.

The review was heard by me on 13, 14, 15, 16, 17, 20 and 21 October 1997.  Mr Brian Lacy, of counsel, appeared for the respondent.  The applicant represented himself.  The hearing time required to complete the matter was unnecessarily prolonged by lengthy cross-examination by the applicant of the respondent’s witnesses the vast majority of which was irrelevant to the issues which required determination.  On the other hand some time was saved by the acceptance into evidence of parts of the transcript of evidence before the Judicial Registrar.

In his submissions and in his evidence as well as in his cross-examination of witnesses, the applicant raised various matters which do not bear upon the central issues to be determined, ie, whether the respondent acted in breach of ss 170DE(1), 170DC and/or 170DF of the IR Act in terminating his employment. The time pressures upon the Court and the exigencies of modern case management are such that I will not be diverted into dealing with those matters which are extraneous to the issues which the Court must concentrate upon to determine this matter.

BACKGROUND FACTS

The applicant was employed by the respondent as an Administrative Services Officer, Class 4 (“ASO 4”).  He was designated “Senior Prosecutions Officer” in Lodgement Enforcement, (“LENF”) Revenue Collection of the Australian Taxation Office (“ATO”) at Box Hill.  He was appointed to that position on 1 July 1992 upon the opening by the ATO of its Box Hill office.  The applicant was previously employed at the ATO’s premises in Dandenong as a training officer.  He commenced employment at the ATO on 30 January 1990.

Senior officers in the Box Hill office of the ATO formed the view in the year following the applicant’s commencement of duties at Box Hill that the applicant’s work performance was unsatisfactory and that his behaviour, attitude and lack of interpersonal skills was causing problems.  The applicant at all times denied that he had done anything wrong.  On 23 June 1993 the then Manager of LENF, Mr Carrucan, counselled the applicant.  It was put to the applicant by Mr Carrucan that many staff were concerned about the way the applicant dealt with them.  It was also put to him that he should be “more involved as a member of LENF and not as a separate entity of Senior Prosecutor”.  The applicant was informed that his actions were causing tension and disharmony in the section and that more serious action would have to be taken if the situation did not improve.  On 30 June 1993 the written report of the counselling session was given to the applicant for his response.  He made no response.  The applicant’s attitude was that directions given to him by his superiors in LENF were unlawful and unreasonable.  He failed to recognise that his superiors had any authority to give him instructions in the course of his duties.  He believed that as a senior prosecutor he held an independent office and could not be directed.

The applicant’s position of senior prosecutor required him to prepare for and appear in hearings in the Box Hill Magistrates Court.  These hearings involved prosecutions of taxpayers for failing to lodge their income tax returns and/or pay group tax.  He was not in any sense a person who held a position equivalent to that of a Crown Prosecutor.  It is apparent from the evidence that, in his dealings with his superiors, the applicant displayed an attitude of superiority and arrogance because he was studying law whilst his superiors were not and had not.   This attitude was also displayed by the applicant before the Court on the review.

A further counselling session occurred on 2 September 1993.  Mr O’Shaughnessy, one of the applicant’s superiors in LENF, discussed the applicant’s unsatisfactory work performance with him.  Together they agreed upon targets to be achieved by the applicant in respect of work performance.  As a result of the applicant’s failure to meet those targets he was again counselled on 10 November 1993 about his unsatisfactory work performance.  Further work targets were set at that meeting and deadlines were fixed for the performance of certain tasks.  Those work targets and deadlines were not met.  This resulted in Mr Carrucan’s refusal to recommend the payment to the applicant of an annual pay increment.  The applicant was given further “completion deadlines” on 7, 17, 18, 24 and 25 January 1994.  These further deadlines were also not met.

A “formal counselling session” occurred on 22 February 1994 during which Messrs Carrucan and O’Shaughnessy “formally counselled” the applicant about his work performance and conduct.  The applicant was assisted at the session by counsel and a union representative.  At the conclusion of the session the applicant was given a formal written direction regarding his attendance record.  On 10 March 1994 he received formal advice and directions regarding the performance of his duties.  On 21 April 1994 the applicant was provided with a document which clarified the directions given on 10 March 1994.  The applicant made no effort to comply with these directions.  He believed he had a legal right to refuse to speak with Mr Carrucan.

On 12 July 1994, Ms Bonner,  the team leader in LENF,  recommended to Mr Humphries, who was then a Deputy Commissioner of Taxation, that the applicant’s work performance be reviewed pursuant to the inefficiency procedure provisions of the Public Service Act 1922 (“the PS Act”).

In her recommendation, Ms Bonner said:

“The formal counselling identified that Philip gave no indication of any intention to change his behaviour, and given that these issues were covered in some length at the Counselling interview, we believe that they should be noted again.  The recommendation to deal with this under the PSC Inefficiency Guidelines is not merely the outcome of the Formal Direction to perform duties, but the result of events over the last 12 months.  There has been considerable discussion and attempts made to address the problems with Philip’s work performance and ability to work in this team.  The management of Lodgement Enforcement has not seen any evidence of change or willingness to change from Philip in this time.”

On 15 July 1994 the applicant received a formal warning that in the course of performing the duties of his position he had not achieved an acceptable standard of work performance.

By letter dated 11 August 1994 Acting Deputy Commissioner Rackham advised the applicant that the applicant had been declared an inefficient officer within the meaning of the PS Act, and was to be assessed under the “Public Service Commission Inefficiency Procedures against (his) normal duties for a period of three calender months.”

Mr Barry, a Senior Officer in the ATO, was appointed to conduct the inefficiency review.  The period of the review was 15 August 1994 to 14 November 1994.

On 17 January 1995, Mr Barry reported that:

“(h)aving given due consideration to all the evidence presented in this assessment I feel that it is reasonable to conclude that Mr La Roche has failed to prove himself to be an efficient officer.  He has failed to attain and sustain an acceptable level of work performance during the review period.”

Mr Barry’s report to Mr Humphries was quite detailed.  In the report Mr Barry noted, inter alia, the following matters:

• the applicant was advised to seek the advice of his Union concerning the inefficiency review but declined to do so;

• the applicant was asked if there were “medical reasons” which may have affected his performance.  He referred to “fatigue’ which contributed to his “lateness” for work.  Mr Barry did not take the applicant’s attendance record into account in his recommendation;

• the applicant refused to liaise with his superiors concerning decisions about which matters would be prosecuted despite being directed to so liaise;

• during the assessment period well achievable targets were set for the performance of certain work.  None were achieved;

• the applicant spent lengthy periods of time preparing “internal minutes” which were unnecessary and in some cases “highly unprofessional”;

• Ms Bonner arranged for the applicant to work on a certain “pool of cases”.  He declined to do so.  He decided to concentrate on other cases;

• the applicant’s unsatisfactory performance occurred despite continued encouragement from Mr Barry at feedback sessions;

• the applicant had “a personal animosity towards Messrs Carrucan and O’Shaughnessy deriving from the counselling session of 22.2.94 and the subsequent issuing of formal directions”;

• the animosity was evidenced by “considered and prepared comments” which were “unfounded, highly unprofessional and unacceptable”;

• the applicant failed to achieve a “satisfactory turnover of cases”;

• the applicant failed to “manage his time effectively”;

• the applicant spent time in preparing unnecessary documents;

• the applicant “spent a considerable amount of his time working on the computer production of summonses” which was the work of information technology staff; and

• the applicant was not prepared “to change his behaviour or work practices”.

The evidence before the Court from Messrs Carrucan, O’Shaughnessy, Barry and Humphries, and Ms Bonner, supports the conclusion that the applicant was an inefficient employee who refused to accept direction from superiors and possessed extremely poor interpersonal skills.

The applicant did not attempt to prove that he was not inefficient.  He rather suggested that he could not be efficient in an inefficient office run by incompetent people.  I do not accept that the LENF section at ATO Box Hill was inefficient nor do I accept that it was managed by incompetent people.  Each of the respondent’s witnesses who gave evidence before me were competent and hard-working people who did their best in difficult circumstances to cope with the applicant who refused to accept direction in the performance of his duties.

Mr Barry prepared a supplementary report on 24 February 1995 in response to a request from Mr Humphries on 13 February 1995 for some further clarification.  Mr Humphries gave the applicant a copy of the original report and gave him seven days to respond.  The annexures to that report were not provided with the report.  However, the applicant was given a full opportunity after the delivery of the supplementary report to respond to all of Mr Barry’s findings and his recommendation.  The applicant responded in writing and also had conversations with Mr Humphries concerning the matter.  Such discussions were invited by Mr Humphries as he did not believe that the applicant had done justice to his cause by the quality of his written response.

On 7 March 1995, Mr Humphries issued a notice to the applicant that he would be retired on grounds of inefficiency.  The applicant appealed to the Merit Protection Review Agency.  An appeal committee (“the committee”) heard the appeal and dismissed it.  The committee issued a decision to that effect on 17 August 1995, the day upon which the applicant’s termination took effect.

VALID REASON

The applicant conducted his case as if the decision to terminate was made by the committee.  Later in the course of his submissions, he essentially submitted, in the alternative, that his termination was effected by Mr Humphries, subsequently confirmed by the committee and took effect upon such confirmation.  I accept that alternative submission. See Maggs v Comptroller-General of Customs (1995) 128 ALR 586, 591.

An issue before the Court is whether the respondent, through Mr Humphries, had a valid reason for the termination of the applicant’s employment.  I have no doubt that it did.  The applicant’s conduct leading up to his termination justified the decision to retire him as an inefficient officer.  The applicant was inefficient, incapable of following the instructions of his superiors and  openly antagonistic to them.  He took no advantage of the efforts made by his superiors to assist him improve his performance.  In my view the respondent had a valid reason for the termination of the applicant’s employment connected with the applicant’s capacity and conduct.

During the review proceedings the applicant demonstrated a belief that he could do no wrong and that he could not be the subject of valid criticism.  He never came to grips with the matters raised against him by witnesses for the respondent on the review.  He rather concentrated on his allegations that the LENF section was inefficient and his superiors were incompetent and further that it was impossible for him to be efficient in an inefficient environment.  He also submitted that the inefficiency process was flawed because he should have been the subject of disciplinary proceedings.  In making these submissions the applicant failed to  comprehend that if the Court did not consider his superiors inefficient or incompetent he gave it no basis to conclude that his termination was not for a valid reason.

SECTION 170DC

The applicant contended that the respondent breached s 170DC of the IR Act in terminating his employment. I reject that contention. On the contrary, Mr Humphries gave the applicant a full opportunity to defend himself against the matters raised in Mr Barry’s reports before effecting the termination. There is no merit whatsoever in the applicant’s allegation that the respondent breached s 170DC of the IR Act. The respondent gave the applicant every opportunity to prove his efficiency. Its processes were thorough and meticulous. The applicant failed to avail himself of the opportunities afforded by the respondent. I reject his contention that s 170DC of the IR Act was breached by the respondent.

SECTION 170DF(1)(e)

The applicant alleged that he was terminated in part because of proceedings he took in this Court against the respondent concerning a Promotion Appeals Board matter.  There was no evidence to support that proposition other than the applicant’s mere assertion which I reject as inherently improbable.  On the contrary, Mr Humphries denied taking the applicant’s previous litigation into account when effecting his termination.

I accept Mr Humphries’ denial.  He acted on the recommendations of Mr Barry which made no reference to the applicant’s previous Federal Court proceeding.

SECTION 170DF (1)(f)

The applicant contended that he was terminated in part on account of:

• his sex;

• his physical disability;

• his religion;

• his political opinion;

• his social origin.

There was no evidence to support these contentions. 

In support of his submission that he was terminated on account of his sex and political opinion, the applicant submitted that Mr Humphries took into account the applicant’s attitude to equal employment opportunity (“EEO”),  which the applicant claimed Mr Humphries took as opposition to EEO.  There is no evidence before the Court that the applicant held any particular opinion with regard to EEO as distinct from his adverse attitude to one particular EEO course.  More importantly there is no evidence to suggest that if the respondent believed that the applicant opposed EEO as a concept it terminated him either wholly or partly for that reason.

The applicant said that Mr Humphries and Mr Barry also mentioned a certain underlying physical disability which the applicant possessed. The fact that it was mentioned by Mr Humphries and Mr Barry does not mean that it was a factor which led to the applicant’s termination. There is simply no evidence to support the proposition that the respondent breached s 170DF(1)(f) of the IR Act by reference to the applicant’s physical disability. On the contrary, I believe Mr Barry referred to the applicant’s physical disability in a mitigating sense. Additionally Mr Humphries testified that in terminating the employment of the applicant he did not take the applicant’s health into account. I accept that uncontradicted evidence.

The applicant also submitted that he was terminated in part because of his religion.  He submitted that because he had written in one of his “missives” to his superiors that “Like Luther I will not recant”, his superiors knew he was a Protestant and accordingly terminated him.  There is no evidence to support that proposition.  Mr Humphries testified to the effect that he was not aware of the significance of the applicant’s reference to Luther.  In my view the applicant’s religion was not a reason for the termination of his employment. 

The applicant also submitted that he was terminated in part for the reason that he was of a particular social origin.  Again there was no evidence to support that submission.  In any event the particular “social group” which the applicant asserted he belonged to was that of “graduates”.  I do not accept that graduates constitute a discrete group of particular “social origin” in any event.

SECTION 170DF(1)(d)

The applicant contended that as he considered himself a “self-appointed advocate” for a fellow worker who was involved in an inefficiency review proceeding he was dismissed because he acted in the capacity of a representative of employees.  There is no evidence that if he did so act the applicant was terminated in whole or part on that account.  In any event there is no evidence of the applicant assisting any more than one person albeit in “self-appointed” capacity.

COSTS

Mr Lacy sought costs having regard to s347(1) of the Act on the basis that the review was instituted vexatiously by the applicant. The applicant submitted that he sought the review in circumstances where he honestly believed that the judgment of the Judicial Registrar was wrong. I have no reason to doubt the applicant’s sincerity in that regard as he well demonstrated before me that he was unable to believe that any criticism or rejection of his views or actions could be valid.

Not without some hesitation, having regard to the fact that his case was an extremely weak one, I have come to the view that it cannot be said that the applicant instituted the review application vexatiously.  I therefore decline to order costs against him.

ORDER

The Court orders that the application be dismissed.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated:             31 October 1997

Applicant appeared in person
Counsel for the Respondent:	B Lacy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13, 14, 15, 16, 17, 20 & 21 October 1997
Date of Judgment:	31 October 1997