Morante v South Australian Superannuation Board No. Scgrg-97-900 Judgment No. S6758

[1998] SASC 6758

MORANTE V SA SUPERANNUATION BOARD

Miscellaneous Appeal
Lander J

The appellant (who is unrepresented) appeals from a decision of the South Australian Superannuation Board given on 4 July 1997 whereby the Board determined that the appellant’s employment had not been terminated by retrenchment and declined the appellant’s application for superannuation under the Superannuation Act. 

The South Australian Superannuation Board is a body corporate constituted under the Superannuation Act 1988. The Board is responsible to the Minister for all aspects of the administration of the Act (except the management and investment of the South Australian Superannuation Fund).

The applicant was a contributor to the South Australian Superannuation Fund.  He was an old scheme contributor which means that he had been accepted as a contributor to the fund before 31 May 1986.

Section 35 provides for the payment of a pension and a lump sum to a contributor whose employment is terminated by retrenchment.

Section 35 relevantly provides:

“(1)   Where—

(a)a contributor’s employment is terminated by retrenchment;

(b)the contributor has reached the age of 45 years but not the age of retirement;

(c)the contributor has been a contributor for not less than 5 years;

(d)the Board is satisfied that there is no suitable employment (being employment attracting a salary of at least 80% of the salary applicable to the former employment) available to the contributor,

......... the contributor is entitled to a pension and a lump sum under this section.”

The remaining subsections of s35 then provide how the amount of the pension is calculated, but that is not relevant for the purpose of this appeal.

A contributor is entitled to a pension and a lump sum in circumstances where the contributor has been retrenched, if the contributor can establish each of the four matters in s35.

The appellant was born on 13 September 1949 and at the relevant time had reached the age of forty-five years, but not the age of retirement.  He had also been a contributor for not less than five years. 

Therefore, he was entitled to a pension and a lump sum under the Superannuation Act if he could establish that his employment had been terminated by retrenchment and the Board was satisfied that there was no suitable employment (being employment attracting a salary of at least 80 per cent of the salary applicable to the former employment) available to the appellant.

By application dated 29 April 1997 the appellant applied to the Board for a pension on the ground of retrenchment. Accompanying that application was a letter dated 8 May 1997 in which the appellant informed the Board that he had ended his employment with Primary Industries SA on 29 April 1997. He claimed in that letter (which was written in support of his application for a pension and lump sum) that he had been constructively dismissed and was therefore entitled to a pension and lump sum pursuant to the provisions of s35 of the Superannuation Act 1988.

He also sent with that letter, accompanying the application, a further letter which he had written to the Chief Executive Officer of the Department of Primary Industries, Mr Madigan, on 2 May 1997.  In that letter the appellant wrote: 

“The conduct by my employer, its servants or agency (sic) has destroyed the relationship of confidence and trust and that the breach of the agreement was so fundamental that I have brought our relationship to an end.

I verbally stated the above to Mr Peter Jackson on the 29th April 1997.”

The South Australian Superannuation Board replied to the appellant on 8 May 1997 acknowledging receipt of the application for retrenchment benefit and the letter of 8 May 1997.

On 12 May 1997 the appellant again wrote to the South Australian Superannuation Board in the following terms:

“Re:  In reference to letter to Board dated 8th May 1997.

“Enclosed is a letter dated 9th May 1997 from Mr Dennis Mutton, Chief Executive of PISA concerning the Certificate of Agency details that the Board requires.

I have no doubt that this letter should have been sent to State Superannuation Board so that the Board can determine whether I am entitled or not entitled to a retrenchment pension pursuant to section 35 of the Super Act, see letter to Board dated 8th May 1997.

I am now redirecting the letter to you and reiterate to the Board that it has a duty to notify me, in writing, of the decision to grant or deny me a pension and a lump sum, pursuant to section 35 of the Act, by the 7th June 1997. Furthermore, if the Board does not notified (sic) me by the 7th June 1997, it shall be taken to be that the Board has denied me a retrenchment pension.”

Accompanying that letter was a letter from Mr Dennis Mutton, the chief executive of PISA.  For completeness I set out that letter:

“Dear Mr Morante

The Department for Primary Industries SA (PISA) pay office has received your ‘Application by Employee for Pension on the Ground of Retrenchment’ (Superannuation Form 13/1).

The State Government currently has a Memorandum of Understanding with the United Trades and Labour Council (UTLC) which, among other things, provides for a no retrenchment policy to operate until 31 December 1998.

In addition, PISA has suitable employment available to you through the customary redeployment process.

PISA, therefore is unable to complete this form as you have not been retrenched from this Agency.

Your application for a pension has been discussed with the State Superannuation Office, and it has been confirmed that your application cannot be proceeded with as you have not been retrenched from employment.

Therefore, I have returned your application to you (enclosed).

Please contact Peter Jackson (Manager, Support Services) if you would like to discuss this matter further (on telephone [phone]).”

On 14 May 1997 the Board wrote to Mr Morante in the following terms: 

“Dear Mr Morante

I thank you for your letter of 8 May 1997 and a copy of your Application for Payment of a Retrenchment Benefit.

The Superannuation Office has been in contact with your employer and have been advised that there is a no retrenchment policy within the Government, and there is suitable employment available to you through the redeployment process.

The Superannuation Board is therefore unable to approve your claim.

As you have not been at work since 29 April 1997, you should discuss your superannuation options with a Client Services Officer of the Superannuation Office (telephone: [phone]) at your earliest convenience.”

As can be seen, the letter referred to the Superannuation Office having been in contact with the appellant’s employer and being advised of the matters contained in the letter.  It states that “the Superannuation Board is therefore unable to approve your claim”. 

In fact the application was not at that stage referred to the South Australian Superannuation Board because the assistant secretary and the acting secretary did not consider that one of the pre-conditions for the payment of a retrenchment benefit, as contained in s35(1)(a) of the Superannuation Act, namely that a contributor’s employment be terminated by retrenchment had been met.  Therefore the view was taken administratively that it was not necessary to refer the matter to the Board.

The appellant, of course, was not to know that from the terms of the letter.  He took the letter of 14 May 1997 to be a rejection of his application by the Board. 

On 26 June 1997 the appellant appealed to this Court against the decision of the South Australian Superannuation Board “made and given on 14 May 1997 whereby the Board denied the appellant a retrenchment benefit under s35 of the Superannuation Act 1988 (the Act) on the ground that the appellant had not been constructively dismissed for reason of redundancy”.

The appeal set out a number of grounds of appeal together with particulars.

At the time that this appeal was lodged anyone dissatisfied with a decision of the Board had a right of appeal to this Court: s44.  The section has subsequently been amended to provide for appeals to be heard by the District Court:  Superannuation (Miscellaneous) Amendment Act 1988.

Upon receipt of the appellant’s notice of appeal the secretary of the Board instructed the assistant secretary to prepare a minute to the Board advising of the application and the reply to that application.

That minute contained a recommendation in the following terms:

“As the Superannuation Board has not actually considered the claim, it is suggested that the Board view the application for a retrenchment pension from Mr Morante and officially deny Mr Morante’s claim based on the advice provided by Primary Industry.”

The Board accepted that recommendation and resolved as follows:

“The Board considered a report from the Secretary and noted that Mr Morante had applied for payment of a Retrenchment Pension and had subsequently been advised by the Superannuation Office that the Superannuation Board was unable to grant the benefit as advice from his employer showed that he had not been retrenched.  The Board noted that Mr Morante has since appealed his case to the Supreme Court.  The Board noted the appeal, confirmed the Office decision and requested that the case be referred to the Crown Solicitor as the Board’s legal representative.”

The appellant’s appeal, therefore, was in a sense premature.  That is no criticism of him.  He was not to know that in fact the advice which he received on 14 May 1997 did not reflect the decision of the Board.

When these matters were brought to the appellant’s attention he sought leave to amend his notice of appeal.  Leave was given on 23 March 1998.

In his amended notice of appeal, the appellant appeals against the decision of the South Australian Superannuation Board made on 4 July 1997 (being the date of the resolution of the Board) whereby the Board denied the appellant a retrenchment benefit under s35 of the Act on the ground that the appellant had resigned within the meaning of s39 of the Act.

There are two grounds of appeal for which there are a number of particulars.

The grounds of the appeal without the particulars are:

“1..... The Board erred in determining that the appellant had resigned from his employment within the meaning of Section 39 of the Act.

2...... That on the whole of the evidence the Board should have found that the appellant was retrenched from his employment within the meaning of Section 35 of the Superannuation Act 1988.”

The parties are agreed that the notice of appeal ought to speak from 4 July 1997 being the date of the resolution of the Board.

The parties are further agreed that the Board did determine on that date that the appellant’s employment was not terminated by retrenchment.  It is further agreed that the Board did not consider whether there was any suitable employment (being employment attracting a salary of at least 80 per cent of the salary applicable to the former employment) available to the appellant on or at any time before 4 July 1997.

In those circumstances it is agreed by the parties that if the appellant is to succeed on this appeal then the matter ought to be remitted to the Board to consider whether there is any suitable employment of the kind referred to in s35(1)D available to the appellant. On the other hand if the appellant fails on this appeal then the appeal should be dismissed and the decision of the Board that the employment has not been terminated by retrenchment will stand and the appellant will not be entitled to a pension and lump sum under s35.

If the appellant is to succeed on this appeal the appellant must establish that, at some time prior to 4 July 1997, his employment was terminated by his employer.  He must also establish that the termination of his employment came about by way of retrenchment.

Initially, the respondent argued that the appellant’s employment had not been terminated.  Indeed, for a period of time after this appeal was lodged, the employer claimed that the appellant was still employed.  Eventually, in September-October 1997, the respondent accepted that the employer’s employment had come to an end as at 29 April 1997.

It is common ground, therefore, that the appellant’s employment did terminate on 29 April 1997.

The issue on the appeal, and the only issue which will determine whether the matter ought to go back to the Board or not, is whether or not the appellant’s employment terminated by retrenchment.

“Retrenchment pension” is defined in section 4 of the Superannuation Act 1988 as “the pension payable to an old scheme contributor on account of retrenchment”.

“To retrench” is defined in the same section “in relation to a contributor means to terminate a contributor’s employment on the ground that work of the kind for which the contributor is qualified and suited is no longer available for the contributor”.

The obligation on the appellant before the Board was, therefore, to establish that his employment had been terminated on the ground that work of the kind for which the appellant was qualified and suited was no longer available for him.

Ordinarily one would expect that that question could be answered by a consideration of the facts and circumstances leading to the cessation of the employer/employee relationship.

The relationship ended when the appellant met with Mr Peter Jackson, Human Resources Manager of PISA, and told him that he was ending his employment relationship effective from that day.  On the same day, the appellant lodged an application for a pension on the ground of a retrenchment with Mr John Anderson, senior payroll officer of PISA.

Again, on the same day, he wrote to Mr Keith Freeman, General Manager, Business Operations, who had been delegated to hold a disciplinary enquiry hearing into the conduct of the appellant in 1996 which had not concluded as at 29 April 1997 in the following terms:

“Dear Keith,

I have informed Mr Peter Jackson that I have applied for my pension on the ground of retrenchment.”

On 2 May 1997 the appellant wrote to Mr Madigan, the Chief Executive Officer of the Department of Industries SA, in the following terms:

“Dear Mr Madigan,

The conduct by my employer, its servants or agency [sic] has destroyed the relationship of confidence and trust and that the breach of the agreement was so fundamental that I have brought our relationship to an end.

I verbally stated the above to Mr Peter Jackson on the 29th April 1997.”

On 2 May 1997 the appellant registered for job seeker registration; on 6 May 1997 he wrote to Ms McMahon, General Secretary of the PSA, cancelling his union fee; on 6 May 1997 he cancelled his superannuation payment; and on 8 May 1997 he wrote to the Board of the State Superannuation Office for application for retrenchment benefit pursuant to section 35 of the State Superannuation Act, 1998.

I have already recounted the further history of the matter.

On the face of it that correspondence would suggest that the appellant has elected to use a neutral term to retire from his employment on 29 April 1997.  Clearly enough his retirement, as that correspondence shows, has been occasioned he claims by reason of conduct on the part of his employer which was so fundamental, as he describes it, to bring the relationship of employment to an end.  Again, clearly enough, he claims that he left his employment on the claimed ground of retrenchment.

His case is that he was “constructively retrenched”.  The respondent’s case is that he resigned and that there was no retrenchment - either actual or constructive.

In support of his appeal, the appellant has placed significant reliance upon a decision of a single Judge of this Court in Blaikie v SA Superannuation Board (1995) 65 SASR 85. In that case Dr Blaikie had been employed in the health service area in the South Australian government for many years. In September 1991 he was appointed a full time member and Chairman of the South Australian Health Commission for a five year term. The appointment was made by the Governor’s Deputy in Executive Council pursuant to the South Australian Health Commission Act.

At the time of his appointment His Excellency the Governor’s Deputy signed a minute in Executive Council setting out the conditions of appointment as a full time member and Chairman of that Commission.  On the same day Dr Blaikie was, by resolution of the Commission, appointed as Chief Executive Officer of the South Australian Health Commission.  He occupied the position as Chief Executive Officer and Chairman of the Commission until 14 December 1993.  On that day the Honourable Dean Brown was sworn in as Premier of South Australia after his party successfully won an election held on 11 December 1993.

At that meeting the Premier asked him to step down as Chairman of the Health Commission and, in response to a question from Dr Blaikie, also to step down as Chief Executive Officer.   Dr Blaikie then said something to the effect that he thought he had no choice.  The Premier then thanked him for his contribution and service.

Thereafter, the Premier instructed a senior public servant to negotiate with Dr Blaikie about the conditions of his separation.  A number of meetings were held between public servants instructed by the Premier on the one hand and Dr Blaikie on the other hand in relation to his severance conditions.  In due course, a dispute arose as to the adequacy of the severance package and Dr Blaikie instructed solicitors.  Dr Blaikie’s solicitor negotiated with the Crown Solicitor.  The trial Judge found that Dr Blaikie was the subject of considerable pressure in relation to the separation offers.  Part of that pressure included a suggestion that the government would legislate in such a way as would prevent Dr Blaikie from being able to establish that he had been retrenched.

In due course Dr Blaikie resigned on terms which he accepted, but which he did not consider acceptable.

The learned trial Judge concluded that there was no doubt that at the time that his employment was terminated, the work of the kind for which Dr Blaikie was qualified and suited was no longer available to him.  The sole question for determination in the case was whether there had been a termination.

After a discussion of a number of authorities the learned trial Judge determined that a decision of the Court of Appeal in New Zealand, Auckland Shop Employees Union v Woolworths (NZ) Limited (1985) 2 NZLR 372, summarised the modern Australian law.

In that case, in a consideration of a constructive dismissal, the Court of Appeal said:

“The concept is certainly capable of including cases where an employer gives a worker an option of resigning or being dismissed;  or where an employer has followed a course of conduct with the deliberate and dominant purpose of coercing a worker to resign ...  A third category consists of cases where a breach of duty by the employer leads a worker to resign.”

His Honour then determined that the conduct of the government immediately following the election amounted to a repudiation of the applicant’s contract.  Moreover, the government then placed pressure upon Dr Blaikie which the learned trial Judge determined was unconscionable.  In the circumstances, he concluded that Dr Blaikie had resigned because of the coercion of the government and his resignation amounted to a constructive dismissal.

I am content, for the purposes of this appeal, to assume the correctness of the decision in Blaikie v SA Superannuation Board (supra) without further analysis.  I do so because Blaikie v SA Superannuation Board amounts to the high water mark of the appellant’s case.  Moreover, it was not suggested by the respondent that Blaikie v SA Superannuation Board was wrongly decided.  Implicitly it was recognised that the decision is correct.  I shall proceed accordingly. 

It was argued by the respondent that Blaikie’s case could be distinguished on its facts.  It was submitted that, in the circumstances of this appellant, the relationship was not contractual but was governed entirely by the Public Service Act 1967, then the Government Management and Employment Act 1985 and finally the Public Sector Management Act 1985.

Whilst it was argued that the relationship may not be contractual, it was submitted that in any event those Acts were codes which exhaustively and exclusively regulated the employment of public servants: McQuillan v Commissioner for Public Employment (1993) 60 SAIR 540; Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399 per Mason J at 415; Welbourn v Australian Postal Commission (1983) VR 257 and Dixon v The Commonwealth (1981) 55 FLR 34 at 39.

In particular it was argued that those Acts empower the employer to assign the appellant to various positions within the public service without, at the same time, allowing the appellant to complain that the assignment amounted to a repudiation of the contract.  It was argued by the respondent that, in the event that the appellant had any complaint in relation to the employer’s conduct, there was a code under the Public Sector Management Act providing for grievances on the part of employees such as the appellant, which was the remedy available to the appellant.  The respondent argued that the appellant could not claim that he was constructively dismissed.

It is not necessary to decide whether the relationship between the appellant and his employer was contractual or otherwise.  It does not matter because whatever the relationship was it must have been subject from time to time to the three Acts to which I have referred.

In particular, at the time that the appellant ‘retired’ his relationship with his employer was regulated by the Public Sector Management Act.

That Act empowers the Chief Executive of an administrative unit to assign an employer from one position in the unit to another position in the unit: s44(1). There are some restrictions on the Chief Executive Officer’s powers to assign but they are not important for the purpose of this decision.

Even if there was a contractual relationship between the appellant and the employer, that relationship was subject to the Chief Executive’s Officers power to assign the appellant from one position in the unit to another: Suttling v Director General Of Eduction (1987) 61 ALJR 117 per Brennan J at pp120-121; s44(s) Public Service Management Act.

This is a case which, assuming the correctness of Blaikie v SA Superannuation Board (which as I have said is the high water mark of the appellant’s case), can be determined on its facts.  The facts in this case, in my opinion, do not enable it to be said that the employer gave the appellant an option of resigning or being dismissed or that the employer followed a course of conduct with the deliberate and dominant purpose of coercing the appellant to resign.  Nor can it be said there was any breach of duty by the employer which led the appellant to resign.

The appellant has brought in a voluminous body of evidence in support of his case.  He has filed a vast number of affidavits setting out the whole of his service within the public service since 8 March 1983.  He has pointed to a number of discrepancies in the terms of his employment over the period of years all of which, it seems to me, are irrelevant to the issue which has to be decided.  I will try to state as shortly as possible the history of the appellant’s employment leading up to his retirement.  I do not intend to cover the matter in the same detail to which Mr Morante has descended.  The relevant issue is whether the conduct of the employer has been such that the employer evidenced a repudiation of the relationship of employment and so conducted itself for the predominant purpose of deliberately coercing the appellant to resign or putting the appellant in a position where he either resigned or was dismissed.

The appellant was born on 13 September 1949 and obtained a tertiary qualification with an undergraduate degree of Applied Science in Applied Chemistry from the University of South Australia.  He took up a position with Australian Mineral Development Laboratories (AMDEL) and as such came within the then government’s no retrenchment policy which included AMDEL.

On 8 March 1983 he was appointed a temporary scientific officer in the Department of Agriculture up to 7 October 1983. That employment was extended until 23 December 1983. There were a series of extensions of employment until on 25 June 1987 his appointment was extended until 30 June 1988. Eventually, at a meeting on 23 June 1988, he was asked whether he would accept a reassignment to a temporary position. He refused such a reassignment and on 30 June 1988 he was appointed to the position of scientific officer class 1 (SO1) in the Department of Agriculture from 1 July 1988 until 30 June 1991, pursuant to the provisions of section 50 of the Government Management and Employment Act 1985.

The appointment was expressly limited to a period of three years.

On 29 May 1990 the Classification Review Panel approved the appellant’s application for a personal reclassification to SO2 level on the basis of “demonstrated professional achievement”.

On 21 June 1991 the appellant was advised that the Department was facing major budget issues and that the Director General may have to declare him excess to requirements.  He was advised that if that occurred the Public Service Association would be notified and his curriculum vitae would be forwarded to the Redeployment Unit of the Department of Industrial Relations.  He was told:

“This will have the advantage of enabling you to be considered for all suitable positions within the public service.”

Between 30 June 1991 and December 1991 the appellant worked within the State Chemical Laboratories. During that time he lodged an appeal with the Promotions and Grievance Appeals Tribunal, pursuant to section 64(1) of the Government Management and Employment Act regarding the decision to appoint and assign him to another position with different duties and the decision to cause him to revert to the PSO1 classification level.

In April 1992 the Promotion and Grievance Appeals Tribunal gave its decision in respect of the decision to reduce the appellant in salary from SO2 to SO1 upon the expiration of his three year appointment.

In conclusion, after questioning its own jurisdiction, it said:

“It is noted that Mr Morante’s professional achievements were formally assessed in 1990 as warranting the equivalent of the PSO2 classification level.  It is also noted that it is now over nine (9) years since Mr Morante was guaranteed continuing employment under the Government’s non retrenchment policy.  Whilst it is outside the scope of the Tribunal to make directions in respect of the matters just touched upon, the Tribunal’s view is that the Department of Labour in concert with the Department of Agriculture should make every effort to secure for Mr Morante a position at the PSO2 level, and that he be appointed on a permanent basis.”

On 24 April 1992 the Tribunal wrote to the Commissioner for Public Employment enclosing a copy of those reasons. 

On 22 May 1992 the Director General of Agriculture wrote to the Commissioner for Public Employment proposing that the appellant be appointed and assigned to a permanent PSO1 position pursuant to section 73 of the Government Management and Employment Act 1985.

At the same time it was proposed by the Director General that Mr Morante should also be retained on the redeployee list so that the officers of the Commissioner for Public Employment could pursue opportunities for him for which his qualifications and skills could be utilised within the public service.

On 10 June 1992 the Commissioner for Public Employment acknowledged the advice and advised the Acting Director General of Agriculture that he was arranging for Mr Morante to be permanently appointed at the PSO1 level.  He asked the Acting Director General to nominate an appropriate ongoing vacancy to allow a recommendation for the appointment to proceed.

The Commissioner wrote:

“Consistent with that advice, I am arranging for Mr Morante to be permanently appointed at the PSO1 level. I propose that this appointment will be made pursuant to Section 73 of the Government Management and Employment Act, and I would appreciate you nominating an appropriate on-going vacancy to allow a recommendation for the appointment to proceed.

Mr Morante’s formal employment status with the State Government and other issues regarding his recent employment have been of concern to me, since these matters were raised with the Promotion and Grievance Appeals Tribunal.  To overcome some of these difficulties and recognising Mr Morante’s redeployment situation as being unique, I have determined that an allowance equivalent to POS2 (and taking account of incremental progression), be paid to Mr Morante effective from 1 July 1991.  This proposal was discussed with Dr van Velsen and I understand it is supported by you.

...

I am still hopeful that an appropriate PSO2 position may become available for Mr Morante in the Department of Agriculture, in the natural course of events.  As this may not be the case, Mara Potticary (Senior Consultant) of the Careers Consulting Unit will be exploring options for Mr Morante’s redeployment to an alternative position within the State Government, on the basis of your advice of 22 May 1992.

... ”

A copy of that minute was sent to the appellant.

In December 1992 it was announced that the former Departments of Agriculture and Fisheries would be separated to form two Departments - the South Australian Research and Development Institute and the Department of Primary Industries.  The appellant was advised that it was proposed that he would remain within the Department of Primary Industries.

On 4 August 1993 the Chief Executive Officer of the Department of Primary Industries advised the appellant that Her Excellency the Governor in Executive Council had approved his permanent appointment to the position of Analytical Chemist PSO1 in the Department of Primary Industries.  The Chief Executive Officer advised:

“Your permanent employment to the above position pursuant to section 73 of the Government Management and Employment act formally secures your appointment within the public service. I am advised that the Commissioner for Public Employment has determined an allowance in recognition of your skills at the PSO2 level, and that this allowance will continue. I am further advised that the Careers Consulting Unit of the Department of Labour will continue to assist you in finding a suitable position at the PSO2 level.”

On 6 April 1994 the appellant received advice that a Targeted Separation Package was available as a one-off offer to employees to assist budget funded agencies with workforce restructuring.

That advice included the following:

“All employees are covered by the Government’s No Retrenchment Policy.”

However, the offer advised the appellant that if he requested a Targeted Separation Package it would mean that he was entitled to be considered for a financial incentive to resign.  On the other hand, if he did not request a separation package, he would not be so considered.

He was advised that a seminar was available to give him further information.  He was also advised that he could seek the advice of his union.  Advice was also included in relation to superannuation benefits.

The offer is a standard form offer which I have supposed was sent to a number of employees within the public service.

On 20 and 24 May 1994 the appellant consulted his general practitioner who referred him to a psychiatrist.  It is not entirely clear from the appellant’s affidavit whether or not the consultation with his general practitioner, or indeed the psychiatrist, was as a result of receiving the offer of a Targeted Separation Package, but I think as much can be inferred from the fact that the appellant refers to the medical appointments immediately after reciting the receipt of the Targeted Separation Package.  Indeed later facts show that the medical treatment was probably sought because of the offer of the Tartgetted Separation Package and rumour that he might be transferred to Cleve on the Eyre Peninsula.

On 19 July 1994, Mr Madigan, the Chief Executive Officer of PISA, wrote to the appellant in the following terms:

“Dear Carmine,

As part of the restructuring of Primary Industries SA, the Division of Plant Industries & Natural Resources was split into the Sustainable Resources, Field Crops and Horticultural Groups and your position of PSO-1, Analytical Chemist was reallocated to the Sustainable Resources Group.

The filling of the Level 4 & Level 5 positions in the Sustainable Resources Group has still to be finalised, but in the meantime it is necessary for me to inform you that your position of Analytical Chemist, (Position Number: 603987) has been declared redundant to departmental requirements in accordance with Section 59 of the Government Management and Employment Act.

I have asked the Commissioner for Public Employment to assist in exploring alternative employment options across the Public Sector.  To achieve this, I have declared your position as excess to departmental requirements.

I understand that Mr Roger Wickes, General Manager, Sustainable Resources has informed you of this decision, but if you have any further concerns or enquiries, please feel free to contact Ms Louise Neale, Senior Personnel Consultant on [phone].”

A meeting called at the request of the appellant was held on 21 July 1994.  I will mention that meeting in more detail later.

On 29 July 1994 Mr Madigan wrote to the Commissioner for Public Employment proposing that the PSO1, Analytical Chemist, Plant Industries and Natural Resources position be abolished and the substantive occupant Mr Carmine Morante declared surplus to requirements.

In that minute Mr Madigan wrote:

“However, suitable employment has not been found since the formation of Primary Industries SA. - The Division of Plant Industries and Natural Resources was split into the Field Crops, Sustainable Resources and Horticultural Groups, with the above incumbent being transferred to the Sustainable Resources Group.

Mr Morante has not obtained a position in the PISA structure although he has been located in a number of areas to increase his options for employment and now needs to be considered for alternative employment in the Public Sector.”

On 13 April 1995, Mr Roger Wickes, General Manager of the Sustainable Resources Division in PISA, called the appellant into his office and asked him to read and sign minutes of a meeting held on 21 July 1994 at which Mr Morante, Mr Roger Wickes, Ms Sandra Broadbridge, PSA and Ms Louise Neale, Human Resources Consultant, were present.  That meeting was called, apparently by a Ms Broadbridge on behalf of the appellant, to discuss the appellant’s future in the Department.  The appellant was concerned that he had received an offer of a Targetted Separation Package.

The minutes of that meeting disclose that the appellant told the meeting that he was concerned about his future prospects and applied for a position as a hospital scientist at the Royal Adelaide Hospital.

The minutes contain this assertion:

“It was agreed that Mr Morante undergo a career assessment in light of the diminishing opportunities in the Public Sector for an Analytical Chemist.  There is no guarantee that there will be a suitable position found in the Public Sector that may suit Mr Morante’s skills and experience.  Should this be the case Mr Morante will need to take responsibility for his future and not consider that this responsibility lies solely with the Department.”

Mr Morante declined to sign those minutes.

On 26 April 1995 two Analytical Chemist positions were advertised in the weekly Notice of Vacancies.  The appellant telephoned the Careers Consulting Unit to enquire about being reassigned to one of those vacant positions.  He also spoke to the Industrial Officer of the PSA.  A meeting was arranged for 24 May 1995.

In the meantime, the appellant wrote to Ms McMahon, the General Secretary of the PSA, concerning the conduct of his employer.  He complained in that letter that his employer had treated him in such a way that he had become de-skilled over the years of his employment.  He also complained that on 26 May 1994 he had been subjected to a rumour about being reassigned to a position in Cleve on the Eyre Peninsula. 

He complained that he had never been consulted about his suitability for the position or whether he wished to take such a position.

It is clear that the possibility of his being appointed to Cleve precipitated his consultation with his general practitioner in May 1994 and subsequent referral to a psychiatrist.

In the first week of May 1995 there was a meeting between the appellant and Mr Roger Wickes, Manager Sustainable Resources.

The appellant claims that he received a copy of a facsimile sent from Shirley Jansen to Roger Wickes in the following terms:

“Attached job (OPS2) at Turretfield has come available following a TSP.  As this may be suitable for Carmine Morante, would you please pass this on for his consideration.

Shirley.”

The facsimile had attached to it a Job and Person specification for appointment as an agricultural officer OPS2 at Turretfield.  The term of the appointment was dependent upon the availability of funds.  The position was at Turretfield Research Centre.  The position required extensive intrastate travel.  Out of hours work would have been required especially during seeding and harvesting periods.

The facsimile came with an endorsement in the following terms:

“Carmone, [sic]

Can we discuss this please.

Roger W.”

At the meeting which followed, the appellant claims that Mr Wickes told him that he should either reconsider taking a Targeted Separation Package or be redeployed to the OPS2 position located at Turretfield.  The appellant said that he told Mr Wickes that he had pushed him too far this time and that he would seek legal opinion on the matter.  He said he left the office in distress.

Mr Wickes has sworn two affidavits in these proceedings.  In the second of those he addresses this meeting.  He said that he did ask the appellant to consider applying for a position at the Turretfield Research Station, which at the time was part of the Department of Primary Industries.  The position involved the performance of field work entailing the testing of plant varieties, fertilizers, production techniques and the like by growing small quantities of a crop in a research station.  He said he took into account in asking the appellant whether he would be interested in taking this job that laboratory work was decreasing significantly in the Department of Primary Industries, although the volume of plot field work was being maintained.  He thought that if the appellant moved into plot field work, initially admittedly at a non-professional level, he might develop expertise which would lead to future career opportunities at a professional level in an area where his scientific training would be relevant.

He denied that he placed any pressure upon the appellant to accept the position.  Particularly, he denied that he directed him to accept the position.  He said that he made it clear to the appellant that the appellant had a choice whether to accept the job or not.  He said that he also told the appellant that the appellant should make up his mind as to his future career path and employment.  He accepts that he may have suggested to the appellant that if he was not willing to consider alternative career options the appellant should consider taking a Targeted Voluntary Separation Package.

Mr Wickes says that he did not take any action when the appellant declined to pursue the vacancy as the position was classified at a lower non-professional level and was located a significant distance from his home.

Clearly enough, Mr Wickes has recognised that the position was at a lower level than the appellant was then classified, although if the appellant had accepted the position his salary would have been at a PS02 level.   The position also would have been inconvenient to the appellant.

This matter has been heard upon the affidavits.  It is not possible to resolve conflicts on the evidence by reference to the manner in which the evidence has been given.  The conflict must be resolved by reference to other objective evidence such as contemporaneous documents.

Mr Morante was clearly very upset at the time he had the meeting with Mr Wickes.  He had been upset for a period of some time prior to that meeting.  It is likely that he saw this suggestion as an insult to his professional qualifications and a threat to his employment.  Indeed the appellant says that he told Mr Wickes at that time that he was seeking legal advice concerning his ‘employment matter’.

I think that it is likely that he saw it that way because it appears, even from his own evidence, that by May 1995 he believed that he should be retrenched from the public service because there was not suitable work available to him.

I do not think there is any doubt that that was his belief at that time.  In his letter to Ms McMahon of 3 May, he wrote in the penultimate paragraph:

“Under section 59 of the GME Act which states that after all avenues have been explored to find an employee a suitable position according to his existing skills the commissioner can recommend that he be retired on full pension. ... Is 12 years of exploring been long enough.”

I think that by this stage it may be inferred from the appellant’s own evidence that he had a potential to overreact.  He said that he became distressed in the meeting which I have referred.  The meeting, however, seems to have been called with the best possible intentions.  The meeting arose out of a suggestion by Shirley Jansen that the position may be suitable for the appellant and asked Mr Wickes simply to pass it on to the appellant for his consideration.

I do not discern from any of the contemporaneous documents that the senior officers in the Department exerted pressure upon Mr Morante to accept that position.  I am inclined to think, having regard to the contemporaneous documents, that Mr Wickes’ account is to be preferred.

On 8 May 1995 at or about the time of this meeting the General Secretary, through Mr Lindsay an industrial officer, wrote to Mr Foreman, the Commissioner for Public Employment, regarding the appellant.  After referring to his employment history, the letter continued:

“Positions commensurate with Mr Morante’s professional skills as an Analytical/Research Chemist have proven to be severely limited.  However a position at the PSO2 level within Mr Morante’s profession was advertised in the Notice of Vacancies issued 26th April 1995 (see attached).”

It was then suggested that Mr Morante ought to be assigned to that position and that such reassignment could be ‘actioned’ under ss59 or 73a of the Government Management and Employment Act.

The letter concluded in the following terms:

“Although this position does not offer Mr Morante permanency at the PSO2 level, it does allow further development of his professional skills as an Analytical/Research Chemist, something which he had been denied through circumstances for a substantial period of time.”

A meeting took place on 24 May 1995.  Present were the appellant, the Industrial Officer of the PSA, Mr Lindsay and Mr Williamson from the Commissioner for Public Employment office.

Mr Williamson advised Mr Morante and Mr Lindsay that he had been assigned by the Commissioner for Public Employment to investigate matters identified in the PSA correspondence of 8 May 1995.

He identified potential redeployment opportunities which should have a need for analytical chemist skills.  Mr Williamson undertook to explore those areas for redeployment opportunities.  Mr Lindsay told Mr Williamson that the PSA and the appellant were disappointed by the action, or lack of action, by the Department of Agriculture or PISA, which has resulted in the appellant effectively being de‑skilled.

Mr Williamson suggested in those circumstances that perhaps the appellant ought to undertake a vocational assessment to identify where and to what extent his skills had fallen behind due to his employment situation over the last four years.  He also suggested that the appellant undertake a staff selection and interview technique course through TAFE to assist him with future interviews.

Five matters were identified to follow up.  They were:

“1..... GW to speak with J Stock in relation to the vocational assessment.

2...... CM to undertake further research in relation to deployment opportunities in SAPS.

3.     CM to continue to apply for positions.

4.     GW explore staff selection and interview techniques course.

5.     GW to identify opportunities for hands on training.”

A further meeting took place on 16 June 1995.  Present at that meeting were Mr Peter Jackson, Manager Support Services, Ms Shirley Jansen, Human Resources, Mr Williamson, Mr Lindsay and the appellant.

Mr Lindsay’s minutes of the meeting suggest that Mr Jackson advised the meeting that there were no opportunities within PISA for Mr Morante and that PISA would not be able to provide a position for Mr Morante in the future.

Mr Lindsay advised the meeting that PISA had a responsibility to find opportunities to place the appellant in another agency to regain his skills.  Until his skills are regained the appellant, Mr Lindsay said, could not compete for PSO2 level positions.

Mr Williamson again raised the option of the appellant undergoing a vocational assessment which had been previously discussed.

Mr Lindsay’s minutes record that the outcome of the meeting was that the appellant would undergo a vocational assessment and the parties would meet again on 11 July 1995.

Mr Jackson does not accept that Mr Lindsay’s minutes accurately record all of the matters discussed at the meeting.  In particular, he said that he did not say that there were no opportunities within PISA for Mr Morante.  He said that his advice was that it would be difficult to find work for the appellant as an analytical chemist.

On 22 June 1995 the appellant instructed a solicitor to act for him in relation to his employment matters.

On 4 July 1995 Mr Lindsay wrote on behalf of the PSA General Secretary, Mr McMahon, to the Commissioner for Public Employment, Mr Foreman, seeking to have Mr Foreman recommend to the Governor that the appellant be retired from the public service pursuant to section 59(2) of the GME Act.  That letter referred to Mr Morante’s employment within the public sector and pointed out that Mr Morante had not been placed in a position during the previous 12 years.

On 6 July 1995, Mr Lindsay received a fax from the appellant advising him that the appellant had instructed a solicitor in relation to his employment contract.  The facsimile asked Mr Lindsay to make arrangements with the appellant to meet with the lawyer.

On 27 July 1995 Mr Lindsay met with Ms Mary Garson from the law firm Thomsons.

At that meeting the appellant, Mr Lindsay and Ms Garson agreed that it would be best if Mr Lindsay contacted the Commissioner for Public Employment to arrange a meeting at which Ms Garson would be present in order to discuss or negotiate a settlement.

The Commissioner declined to meet with the appellant’s solicitor.  Mr Lindsay then attempted to meet with the Minister of Primary Industries but that request was also declined.

On 26 September 1995 Mr Wickes offered the appellant a temporary position of Extension Officer (Residues) as a retraining exercise at the current PSO2 rate of pay.

The offer was made in writing and I set out the letter from Mr Wickes to the appellant:

“Dear Carmine

Herewith is a job and person specification for the temporary position of Extension Officer (Residues) which has recently become available.  Your scientific and technical background form an excellent basis for considering you as a potential candidate for the position.  Moreover, this appears to be a suitable position for you to retrain and develop your career within a core PISA activity.

It has been some time since we discussed your employment options in the State Public Service, but you are aware of the limited opportunities available in your specific field of expertise and the need to consider alternatives.

Accordingly, it is proposed that you be placed in the above position, as a retraining exercise, at your current PSO2 rate of pay.  It would be useful for us to discuss the duties as soon as possible so that you have a clearer understanding of this opportunity.

Please arrange a meeting with me in the next day or so.  Shirley Jansen is also available should you wish to discuss this matter with her.”

The letter was apparently handed to the appellant on 27 September 1995.  The appellant’s evidence is that he told Mr Wickes that he could not consider any further appointment in the public service until he had received legal advice relating to his ‘employment matter’.

On the next day he wrote to Mr Andrew Lindsay relating to this offer in the following terms:

“Note:  Yesterday, 27th September 1995, Roger Wickes handed me a letter dated 26th September 1995 stipulating that I consider a temporary position as an Extension Residue Officer in Farm Chemical Branch.  This position along with other vacant permanent positions available in the Farm Chemical Branch had been known to me since last christmas (sic) when I visited John Burley (head of Farm Chemical Branch at that time) to consider me for any suitable permanent positions.  This same position was handed to Mr David Malinda on the 18th of September 1995 and was asked if he would like the position, however he refused it.  They also wanted an immediate reply in writing from me.

What a joke these people are getting to be!”

Mr Wickes said that the duties accompanying the position included implementing and extending programmes designed to help in the prevention or resolution of residue problems in South Australia’s primary produce and to assist in the provision of information on agricultural chemicals and veterinary medicines to producers and the general public.  A prerequisite for the position was knowledge of the use of agricultural and veterinary chemicals, and a desirable prerequisite was knowledge of chemical residue issues.

Mr Wickes says that he offered the position to the appellant because he believed that the appellant’s background in industrial chemistry made him suitable for the position.  He also believed that the position would help the appellant retrain if that retraining was necessary.  Lastly, he mentioned that the appellant had spoken to him on a previous occasion expressing an interest in working in the area of farm chemicals.

The appellant refused the position.

On Thursday 28 September 1995 Ms Jansen e-mailed the appellant in the following terms:

“I refer to our discussion last Tuesday about a vacancy in the Farm Chemical Branch.

As explained to you, your decision to decline the offer needs to be formalised otherwise the selection process is further delayed.

Please respond by E-mail today whether or not you are interested in accepting the position of Extension Officer (Residues).”

Apparently the appellant did not reply to that e-mail and on Friday, 29 September Mr Peter Jackson e-mailed him in the following terms:

“Could you please urgently send me an e-mail regarding your decision on the job offer mad [sic] to you earleir [sic] this week regarding the PSO1 position in Farm Chemicals.”

The appellant refused to accept the offer of employment contained in Mr Wickes’ letter of 26 September 1995 and he continued to work in assisting with the National Land Care Programme.

Mr Wickes said the appellant’s contribution to that work was low as the appellant refused to learn the upgraded data base management programmes with the introduction of a Microsoft Office environment to the whole of the Department of Primary Industries.  Although training was compulsory for every employee, the appellant refused to fill out the questionnaire about the course or to undertake the training.

Mr Wickes says that, on a number of occasions after the appellant refused the offer of employment in his letter of 26 September, he attempted to discuss with the appellant his career options.  The appellant refused to have any discussions with Mr Wickes about that matter without Mr Andrew Lindsay of the Public Service Association being present.  As it happened, Mr Lindsay was not available to attend any of the tentative meetings scheduled between the appellant and Mr Wickes.

The appellant does not dispute Mr Wickes’ observations.  The appellant says that he advised the NLP Co-ordinator on an intermittent basis that he would not perform any duties assigned to the position of assistant NLP Co-ordinator until he had received a legal opinion concerning his ‘employment matter’.  On 11 October 1995 he told Mr Moran, acting line manager and Ms Morony, NLP Co-ordinator that he would not perform any duties until he had received legal opinion concerning his ‘employment matter’.  He says that he refused to perform any duties lest it be thought that he had elected to treat the employment contract as still subsisting.  He believed that his employer had no right to unilaterally assign him to a new position.

The appellant had sought legal advice in May.  Apparently it still had not been provided by October.  There is no explanation for the delay.  On this appeal the appellant saw nothing unreasonable about him not performing any duties whilst he waited on this advice.

During this time the appellant continued to consult with his psychiatrist Dr R J Taylor.  It is clear enough from Dr Taylor’s report that the appellant was suffering from anxiety and some depressive features arising out of his experiences in his employment.

Some time early in 1996, the appellant approached the PSA solicitor for legal advice.  As I understand his case he did not ever receive any legal advice from the legal practitioner whom he had approached in May/June 1995.  The particular solicitor whom the appellant had instructed left Messrs Thomsons in late 1995.

The appellant withdrew his instructions from Messrs Thomsons on 6 February 1996 for reasons which he says he does not wish to divulge.

He says that thereafter he and Mr Lindsay decided to seek legal advice from Mr Peter Hannon, the PSA’s Acting Solicitor at that time.  On 1 April 1996, Mr Hannon wrote to him acknowledging the appellant’s anxiety to obtain advice in relation to his position.

Mr Hannon said, however, that he simply did not have the time to devote to the appellant’s matter at that time but would be free to look at his position after the middle of April 1996.

On 6 May 1996 Mr Wickes sent a facsimile to Mr Andrew Lindsay in the following terms:

“Dear Andrew,

Proposed meeting with Carmine Morante on 22/5/96 at 11.00 am in Roger Wickes’ office,

Soil & Water Environs Centre, Waite Road, Urrbrae

The meeting I have set up with Carmine is to resolve the current managerial issue I have with him.  He currently refuses to discuss any work program with me and has not undertaken any work that is of use to me since last year.

Carmine has refused to discuss any work issues as it may affect his “case”.  He has also refused to take on other positions offered to him in the organisation and taken on computer training on the new system that is necessary for all PISA and SARDI staff, to be able to use the network.

He has refused to discuss his work program (or lack of) unless the PSA is present.

I have met with various people in the public sector to establish how I should operate as a manager because of his “case”.  I have not established he has a “case’ being considered and if there is one, it should not affect the normal manager/employee relationships.

The purpose of the meeting is to re-establish normal employer/employee relationships.  If this cannot be achieved, I will then have to discuss with you the next steps as this situation is unacceptable.

Those proposed to attend the meeting are myself, Peter Jackson, Digby Beames, Carmine and yourself.  Please contact Leonie Whittlesea on above phone number to confirm your attendance.

(signed)
Roger B Wickes
GENERAL MANAGER, SUSTAINABLE RESOURCES.”

The transmission indicates a sense of exasperation on the part of Mr Wickes.  He points out in that communication that the appellant has refused to discuss any work programmes with him.  Moreover, the appellant has not undertaken any work that is of any use to Mr Wickes since last year.

Mr Wickes points out in that communication the lack of co-operation on the part of the appellant.  As I have already pointed out the appellant’s effort and lack of co-operation are not matters of dispute.

The purpose of the meeting was clearly identified and that was to re-establish normal employer/employee relationships.

Mr Wickes has exhibited to his affidavit extracts from his diary indicating the efforts which he made in March and April to discuss Mr Morante’s employment with him.  On 11 March Mr Morante refused to talk to Mr Wickes relating to any work programme.  He indicated that he would only talk to Mr Wickes in the presence of Mr Lindsay.

Mr Wickes pointed out to him that he only wished to talk to him to determine a work programme and in relation to Mr Morante finishing with the National Land Care Programme.  Mr Morante refused to discuss that matter.

Mr Wickes made enquires on 21 March to determine whether Mr Morante had brought any legal proceedings against the Crown which would inhibit further discussion.  Enquiries were made at the instigation of Mr Wickes with the Crown Solicitor on 2 April.  They were unaware of any legal action.

The diary indicates that Mr Lindsay believed that whatever was going on legally, management relationships should continue.  The diary note indicates that Mr Wickes would set up a meeting with the appellant in the next few days.

On 19 April 1996 Mr Wickes attempted again to speak to the appellant who still refused to talk to him.  He told Mr Wickes that he would not recognise who he worked for.  He told Mr Wickes to set up a meeting with the union.

Mr Lindsay agreed to attend the meeting set for 22 May 1996.      On 14 May 1996 Mr Lindsay wrote, on behalf of the General Secretary of the PSA, to Mr Wickes advising that he would be unavailable on 22 May 1996 and would not be available until the week of 10 June 1996.  On the day before the meeting Mr Lindsay withdrew.  The appellant, thereafter, refused to attend and remained in his office.  Attempts were made to obtain some other PSA representative apart from Mr Lindsay but the appellant would not agree.

Mr Lindsay’s letter also stated that the appellant would not be in a position to respond to any matters raised at a meeting until such time as he had sought legal advice.

By that stage Mr Morante had been waiting nearly a year for his advice.  He first approached a solicitor on 22 June 1995, albeit a different solicitor from the solicitor he was then waiting upon.

In fact the appellant and Mr Lindsay had met with Mr Hannon on 13 May 1996.  The appellant said that he was dissatisfied with the advice given by Mr Hannon which he said “fell short of the advice which would be given in a normal solicitor/client relationship”.  The appellant said that he realised during the meeting that the legal advice being given was not in the regular course of a solicitor/client relationship but in the context of a legal assistant scheme which might necessitate some departure from normal procedures.        He thought the advice was unsatisfactory.

On 14 May 1996, which is the same day as Mr Lindsay advised Mr Wickes that the appellant could not reply until he received legal advice, the appellant wrote to Mr Hannon advising him that he was seeking a second opinion regarding his employment matter from Clayton Utz in Sydney.  In that letter to Mr Hannon he said that he would seek an opinion from Mr Joe Catanzariti, a Sydney based solicitor.  He was seeking that second opinion because he believed that the dispute would be resolved in court.  He mentioned that his employer had been deliberately wasting his time and the employer had made no attempt to try and resolve the dispute.

It is difficult to understand how the appellant could assert that the employer was deliberately wasting time and that the employer was making no attempt to try and resolve the dispute.

An objective assessment of the position as at May 1996 would rather suggest that the time wasting was on the part of the appellant and it was he who was making no attempt to try and resolve the dispute.

However the appellant cannot, of course, view this matter objectively.

There was no change in the situation between May and September 1996.  The appellant apparently received no legal advice during that time.

In August 1996 PISA became aware that the calicivirus had escaped.  The Animal and Plant Control Commission was involved in monitoring the spread of the virus.  For reasons which are unimportant it was decided to undertake the sample analysis in Adelaide.  The sample analysis involved routine laboratory testing but there was also a research component being developed so that the tests could be carried out in the field during the monitoring work.

On 26 August 1996 Mr Wickes wrote to the appellant offering him a position as Senior Research Scientist (PS02) with the programme.

Because the letter and the offer contained in the letter is important, I set out the letter in full:

"  Position for Rabbit Calicivirus Detection

Please find attached a position to undertake diagnostic work in the Rabbit Calicivirus program.  This work is required to underpin the proposed release and monitoring of the Rabbit Calicivirus so that the impact of the disease can be improved by understanding its behaviour in the field.

The position requires some laboratory skills and will involve training in the use of ELISA techniques and development of the laboratory technique into a field assessment technique.  This will require[d] a literature review and adaption [sic] of the techniques so that researchers may have a simple method of detecting Rabbit Calicivirus, particularly when they are conducting monitoring experiments a long way from the laboratory.

I have assessed the position and your skills and while you may not have worked with the techniques to be employed, I am sure that with your laboratory skills, it will be within your capability.

The position is for two years, the length of the national monitoring program, commencing in September, 1996.  It will initially be based at the Veterinary laboratories to learn the techniques and may be relocated to the Animal and Plant Control Commission laboratory.  Waite Road, Urrbrae, at a later date.

I propose to assign you to these duties on 16th September, 1996 and expect you to report to Peter Durham at the PISA laboratories, Flemington Street, Frewville at 9.00 am on that day.

Please feel free to discuss this with me over the next week, as if you have any concerns, please let us both work through them.

I trust that you will find these arrangements satisfactory.

Yours sincerely
[Signed]
Roger B Wickes
GENERAL MANAGER, SUSTAINABLE RESOURCES”

The letter seems to me to be entirely unobjectionable.

The calicivirus programme was based in the Sustainable Resources Group PISA and the location of the work was at the veterinary laboratories at Frewville.  Indeed the veterinary laboratories occupied the same location as the Amdel Laboratories.  He previously had worked at Amdel.  The position involved no loss of salary.  Mr Wickes offered him the position, so he says, because he thought the appellant was a good candidate in light of his laboratory based experiences as an industrial chemist.  The position required laboratory skills and also involved training in the use of the ELISA technique, a routine laboratory technique used to identify antigens and used widely in a rapid test in determining the presence of proteins.  There was also some research required to turn the laboratory technique to a field assessment technique. 

Mr Wickes believed that the appellant would benefit from the position as it would permit him to extend his laboratory techniques used in relation to chemicals to biological matter.  By working with a competent laboratory manager Mr Wickes believed that the appellant would be able to sharpen up his general laboratory skills which Mr Wickes believed was important to the appellant as the appellant claimed he had lost those skills over the years.

It is not entirely clear how Mr Wickes’ letter was published to the appellant.  The appellant says that Mr Wickes’ letter was mailed to him at his home address.  It probably does not matter but Mr Wickes’ diary note suggests that it was provided to him.

In any event there was a confrontation between the appellant and Mr Wickes on 4 September 1996.  Mr Wickes has exhibited a copy of the handwritten diary note in relation to that confrontation.

The diary note reads:

"Spoken with Carmine.  Provided him with a letter about the position on rabbit calicivirus.  Refused to accept the offer.  Made it clear that the job offer would be available until Monday week at which time action would be taken.  Said I should receive direction from Minister and Commissioner that it was my problem.  Informed him I had and that this was the best offer.  He said there was a case and that Andrew Lindsay had written to me.  I said I do not know of the letter.  He said I was stupid.  I should do what I should do.  He had asked Court to be a witness.”

.................. There can be no doubt that the appellant took exception to the offer of employment.

.................. He made his position quite clear in a further communication to Mr Wickes on 13 September 1996.  Again, because it is important, I set it out in detail:

"Mr Roger Wickes

Manager
Sustainable Resources
PISA
13/09/96

Dear Robert

I detest and condemn your conduct and actions of sending me an offer of a new employment position, by mail, at my home address.

To intimidate and coerce me into accepting a new employment position whilst I am seeking legal opinion, concerning my existing employment situation, is an act of deceptive, bullying and conscious wrongdoing by you.

You have been informed, in writing, by Mr Andrew Lindsay, CPSU union representative, and by Mr Paul Moran, my line manager, and told by me, and I quote,

‘that I am unable to consider any future employment positions in the South Australian Public Service until I have obtained legal opinion concerning my existing employment situation”.

In a democratic society, the common law allows a person to seek legal opinion.

I recommend that you seek the Crown Solicitor’s opinion if you are not able to understand the contents of this letter.  Furthermore, do not continue to threaten me that I must accept a new employment position.

Note: ...... For all future correspondence, please contact Mr Andrew Lindsay, my CPSU union representative on 82053292.

Regards
[Signed]
Carmine Morante

CC
Mr Dean Brown, Premier of South Australia
Mr Andrew Lindsay, CPSU union representative.
Minister for Primary Industries.
Commissioner of Public Employment.
CEO for PISA
Mr Julian Stephani
Mr Andrew Johnson, my line manager.”

The appellant’s reaction is, in my opinion, an over-reaction.  The offer put by Mr Wickes is apparently reasonable.  The reaction is quite extraordinary.  The reaction is unfortunately consistent with Mr Wickes’ file note which also indicates an unreasonable attitude on the part of the appellant.

It may have been that the appellant was disappointed with his employer.  It may have been that he was suffering from considerable frustration by reason of an inability to be placed in his employment.

This letter indicates no co-operation whatsoever with his employer in attempting to resolve the issues between them.

Regrettably, this reaction appears to be consistent with his attitude over the fifteen months or so prior to this offer.

The appellant seems to have taken a position that he was entitled to do a minimum of work, not to co-operate and wait upon legal advice in relation to the ‘employment matter’.  It does not seem to have occurred to the appellant during this time that it might be unreasonable to call upon his employer to wait more than twelve months while he obtained legal advice.  It may have been that the appellant’s frustration was heightened by his inability to obtain legal advice over this period of time.  But again that is not a matter which can be visited upon the employer.  During this period of time the employer was trying to resolve an impasse.  The appellant on the other hand made no efforts to assist.

Predictably the appellant did not report to work as required in Mr Wickes’ letter and on 18 September 1996 the Chief Executive Officer of PISA advised the appellant that he had decided to conduct a disciplinary enquiry under s58 of The Public Service Management Act.  He further advised the appellant that he had delegated his powers to conduct the enquiry to Mr Keith Freeman.  He sent a copy of the Notice of Enquiry to the appellant, the subject matter of the enquiry being:

"On the 16th day of September 1996 you failed to comply with a direction given to you by a person with authority to give that direction.”

The particulars of the direction not complied with were as follows:

"On 26 August 1996 and on 13 September 1996 you were directed in writing by Roger Wickes, the General Manager, Sustainable Resources in the Department of Primary Industries, to report at 9 am on the 16th day of September 1996 to Mr Durham at the PISA laboratories Flemington Street Frewville and thereafter to undertake work as a senior research scientist in the Rabbit Calicivirus Program.  You failed to report to Mr Durham and have not performed the duties directed by Mr Wickes.”

The letter giving notice of the disciplinary enquiry went on:

"I have also formed the preliminary view that I should exercise my power under Section 59 of the Public Sector Management Act 1995 to suspend you from duty without pay pending the outcome of the inquiry.  If you wish me to take into account any relevant matters relating to the proposed suspension prior to me making my decision, you should forward your comments in writing to me by 5 pm on Friday 27 September 1996.  I will take your views into account prior to deciding whether or not you should be suspended and whether any suspension should be with or without pay and accrual of leave rights.”

The respondent responded to that letter of 18 September 1996 by letter dated 24 September 1996.  For completeness I set out the terms of that letter:

"Under common law, I have the right to seek legal opinion concerning my existing employment in the South Australian Service.  Mr Andrew Lindsay, my union representative, and I have notified Mr Wickes, in writing, of this action taken by me.  I have also notified Mr Wickes whilst I am seeking legal opinion all future meetings and/or discussions with me are to be held in the presence of Mr Andrew Lindsay, and that until I have obtained legal opinion on my existing ‘state-of-affair’ employer-employee relationship I shall be unable to consider any future employment positions, in the South Australian Public Service.  This existing ‘state-of-affair’ relationship is the gist for seeking legal opinion.  Consequently, I am estopped to consider any direction/s orders from my employer which will result in changing my existing employment relationship.

Clearly, Mr Wickes has failed to comply with this request because his directive order to me, is an offer of a new employment position, with new terms and conditions of employment.Under common law, I have the right to estoppel my employer from forcing or coercing me to accept a new offer of employment, especially whilst I am seeking legal opinion to my existing employment position.  Furthermore, it seams (sic) that Mr Wickes does not apply/use merit principle when selection suitable applicants for scientific positions.

I hope that you shall take the contents of this letter into account as the reason why I am unable to consider offers of new employment in the South Australian Public Service.

I recommend that you seek the Crown Solicitor’s opinion on this important question and to take the answer into account prior to making your decision to suspend me without pay and accrual of leave rights.

The question is: ‘is the direction, by Mr Wickes, to report to a new location and undertake new work duties an offer of a new employment position in the South Australian Public Service?’.

If the answer to the question is ‘Yes’, then you must realise that I am estopped from considering a new offer of employment from Mr Wickes whilst I am waiting for legal opinion from my solicitor.

Note:  Please send a copy of all future correspondence to Mr Andrew Lindsay, CPSU union representative.  He can be contacted on 82053292.

Yours sincerely
[Signed]
Carmine Morante

CC Mr Andrew Lindsay”

Again, with respect, the reply seems to be an over-reaction to the notice given the appellant.  Of course the appellant would have been distressed by the notice that he was subject to a disciplinary enquiry but still, the reply seems aggressive and unreasonable.  The appellant does not seem to have considered, at this stage, that to wait upon legal advice for a period of fifteen months might itself be unreasonable.

On 30 September 1996 the Chief Executive, after considering that communication and also advice received from the Crown Law, advised the appellant that he did not believe that the appellant had presented any valid reasons why the suspension should not follow without accrual of leave rights.  He accordingly suspended the appellant from duty without accrual of leave rights with effect from Monday 7 October 1996.  The suspension was to remain in force pending the outcome of the enquiry.

The appellant lodged a grievance appeal pursuant to s64 of The Public Service Sector Management Act against Mr Madigan’s act of suspension without pay during the hearing of the enquiry.  He gave as his reasons for dissatisfaction for that administrative act:

"Manifestly excessive response to subject matter of disciplinary enquiry.”

On 24 September 1996, the same day as the appellant wrote his letter to Mr Madigan, he also wrote to Mr Freeman enclosing a copy of the letter sent to Mr Madigan.

He told Mr Freeman that his inquiry should take into account that his employer had been notified in writing both by the appellant and by Mr Lindsay that the appellant was seeking legal opinion concerning his existing employment in the South Australian public service and that as a result, under common law, the appellant was estopped from considering new employment offers until such time as he had obtained that legal opinion.

He asked that the matter be adjourned until mid October when Mr Lindsay would be available to assist him in the inquiry.  He told Mr Freeman that if he was denied the right to be assisted by Mr Lindsay he would not take part in the inquiry.

Mr Andrew Lindsay and the appellant appeared before the Promotion and Grievances Appeal Tribunal.  Mr Peter Jackson represented Mr Madigan and Mr Chris Purgacz represented the Commissioner for Public Employment Mr Foreman.

In its reasons for decisions dated 30 September 1996 dismissing the appellant’s appeal, the Tribunal said:

“Irrespective of Mr Morante’s circumstances in terms of seeking legal advice about the Department’s prior treatment of him, it is our view that that does not alter the fact that he was directed to report for duty to perform certain duties and he did not do so.

We understand that Mr Morante is an excess ‘permanent’ employee whose substantive remuneration level is PSO2.  Consequently, we believe that the decision to assign Mr Morante to an available PSO2 position was consistent with the duty that a Chief Executive has to place excess employees.  We therefore regard the assignment decision as being properly made in accordance with the law, and that Mr Morante’s failure to do as directed constitutes a breach of section 57 (a)(ii) of the Act which states:

‘57... An employee is liable to disciplinary action if the employee -

(a)     contravenes or fails to comply with -

(i)     ...

(ii)a direction given to the person as an employee by a person with authority to give that direction (whether the authority derives from this Act or otherwise); ...’

In making this judgement about the lawfulness of the assignment decision we realise that Mr Lindsay intends making submissions at the disciplinary inquiry to the effect that the said decision is both unreasonable and unlawful.  However, he chose not to put those same submissions to us, and we understand and respect his reasons for not doing so.  Nevertheless, we can only make decisions based on the information and evidence before us.  Therefore, based on what we know, we consider that the decision to assign Mr Morante to the Rabbit Calicivirus position was a proper one to make, and Mr Morante’s failure to comply with that direction was a serious breach of the Act which warranted a stern and considered response.”

Mr Freeman rescheduled the hearing of the Disciplinary Enquiry to Monday 28 October 1996.

On 9 October 1996 the appellant received legal advice from Clayton Utz.  Again the advice has not been disclosed.  One would, of course, not expect the appellant to disclose that advice.

Following that advice the appellant made an appointment to confer with “legal counsel” on Monday 28 October 1996.

On 23 October 1996 Mr Lindsay wrote on behalf of the General Secretary of the PSA to Mr Freeman, advising Mr Freeman that the appellant was meeting with legal counsel on 28 October 1996. 

The letter goes on to say:

“In this regard we suggest that a further date not be confirmed until Mr Morante has met with his legal counsel and ascertained when any necessary written legal opinion would be available. 

The Association requests your response by close of business 24th October 1996.”

The disciplinary inquiry does not seem to have been held prior to 29 April 1997.  It was on that day that the appellant met with Mr Peter Jackson and advised him that he was ending his employment relationship that day and it was on that day that he lodged his application for a pension on the ground of retrenchment.

As I have indicated earlier, on 2 May 1997 he wrote to Mr Madigan advising that the employer’s conduct was such that the relationship of employer/employee had been brought to an end.

On 7 May 1997 the Chief Executive Officer of PISA advised Mr Freeman that Mr Morante had written to him indicating that he regarded the relationship with PISA to be at an end.  He also advised Mr Freeman that Mr Morante would be unlikely to attend the disciplinary inquiry which was scheduled to commence on Friday, 9 May.  It was also unlikely that his representative, Mr Lindsay, would attend.

The Chief Executive Officer of PISA, Mr Mutton, after 29 April 1997 continued to regard the appellant as an employee.  In that letter of 7 May 1997 he said that he considered that suitable work was available for Mr Morante.  He said that Mr Morante had not been dismissed.  He said that he continued to regard the appellant as an employee of the Department for Primary Industry, albeit suspended without pay.

Mr  Morante must have been advised prior to 29 April 1997 that the inquiry would resume on 9 May 1997.  So much can be gleaned from the correspondence which passed on 7 May 1997.  On that day Mr Freeman advised the appellant that he understood neither the appellant nor Mr Lindsay would attend the disciplinary inquiry “scheduled for Friday, 9 May 1997”.  He said, however, that he would still continue with holding the inquiry on that day at 2.00 pm.  He recommended to Mr Morante that it would be in his best interests for him to attend and for his representative to also attend, but if they did not, he would proceed with the inquiry in their absence.

Thereafter the inquiry continued in the absence of the appellant.

Before a decision was announced, the appellant lodged a summons in the Industrial Relations Commission alleging unfair dismissal on the part of PISA but he discontinued those proceedings on 20 June 1997.  He says he discontinued thise proceedings because he recognised “that the Act failed for want of jurisdiction to hear an appeal against the Superannuation Board.”

On 4 July 1997 Mr Mutton wrote to the appellant advising him that he had received the report of the delegate responsible for the disciplinary inquiry and that report had found him liable for disciplinary action.

He invited submissions from the appellant in relation to the issue of penalty.

On 8 July 1997 Mr Mutton purported to revoke the previous suspension without pay and assigned the appellant to a position of Senior Research Scientist in the Sustainable Resources Group and directed that he report for duty in that position on 21 July 1997.  The appellant’s employer maintained, at least until July 1997 and probably a little longer, that the appellant was still in employment.  Eventually, however, the parties agreed that his employment ceased on 29 April 1997.

In those circumstances, it is not relevant to consider the further communications between the parties after that date.

I have set out the history in extenso.

The reason for that is that the appellant claims that the whole of his employment history is relevant in establishing that the conduct of the employer has been such that he has been “constructively retrenched”.

In my opinion, the facts do not support the appellant’s claim.

There is nothing in the conduct of the employer in the relevant period leading up to 29 April 1997 which could allow the appellant to successfully assert that the conduct of the employer had evidenced a repudiation of the contract of employment between the parties.  Moreover, there is nothing in the conduct of the employer which would allow the appellant to say that the employer followed a course of conduct with the deliberate and dominant purpose of coercing the appellant to resign.

Indeed, the facts and circumstances to which I have referred show the opposite.  The employer, and in particular Mr Wickes, for the two years or so immediately prior to the cessation of employment, persisted in attempts to obtain a satisfactory position for the appellant.  It was not because a position was not available that the appellant could not be placed.  It was because the appellant was unreasonable in his conduct towards his employer.

The appellant seems to think that by seeking legal advice the employer was not entitled to direct him to carry out his duties.  That is a fundamental misunderstanding on the part of the appellant.  The appellant also seems to think that, having taken legal advice, he was entitled to do a minimum of work and disobey the instructions of his employer in relation to his particular employment.

I find that, during the period between May 1995 and April 1997, the appellant failed to carry out duties to which he was assigned and failed to carry out his obligations pursuant to his contract of employment.

I find that he did so because of a misconception of his position.  He was not entitled simply to stand back from his obligations whilst he waited on legal advice.  Moreover, it was unreasonable of him to suggest that the employer had to wait some fifteen months or so whilst he obtained that legal advice.

As the Promotions and Grievance Appeal Tribunal has found, the conduct of the employer was reasonable in the circumstances.  I agree with that Tribunal’s finding.

In my opinion, accepting the correctness of the decision in Blaikie v SA Superannuation Board, the appellant has failed to make out his case that the termination of his employment arose out of retrenchment.  In particular, he has failed to make out his case that the employer’s conduct caused the cessation of the contract of employment.

For the reasons already given the employer had the right to assign Mr Morante to a new position within the unit.  It exercised that right under s44 of the Sector Management Act.  Whatever the relationship was between the parties it must have been subject to the Public Service Management Act.  That Act specifically allows an assignment of an employee within the unit.

Since 1979 successive South Australian Governments have adhered to a no retrenchment policy within the public sector.  That policy provides that no public servant nor any employee in the public sector agencies covered by the policy can be compulsorily retrenched.

The Government entered into a memorandum of understanding with the PSA and other relevant trade unions which operates from a period between 1 January 1997 to 31 December 1998.  That memorandum of understanding requires the government to preserve a no retrenchment policy until the latter date.

A no retrenchment policy has inherent in it the right on the part of the employer to redeploy excess employees into areas where work is available for them to perform.  The no retrenchment policy also has as an element the downsizing of the public sector by natural attrition or by employees taking voluntary redundancy packages from time to time.

The no retrenchment policy could not operate if the employer did not have the right to reassign employees within the unit under s44 of the Public Sector Management Act or to transfer the employees from one position in the public service to another under s50 of the same Act.

If there was no statutory power to compulsorily reassign or redeploy staff then staff who become excess to requirements would remain in areas where there is no work for them to perform.

For those reasons Parliament has given the employer the powers under s44 and s50 of the Act.

If the appellant’s argument was right then the Chief Executive Officer would never have the right to reassign someone under s44. Moreover, the Commissioner would not have the right to redeploy people under s50 of the Act.

If that was so neither s44 or s50 would ever have any work to do.

The appellant’s argument simply cannot be right.

In those circumstances I do not have to decide a number of alternative arguments which were put by the respondent.  The respondent argued that it was doubtful that there was a contract of employment between the appellant and the appellant’s employer.  The respondent also argued that, because there was no relevant contract of employment, there could be no repudiation on the part of the employer.

It argued that, in the alternative, if there was a contract that not every change in duty to be performed by an employee will constitute a repudiation of the contract and only something that was exceptional or far reaching could give rise to a repudiation.

Lastly, it argued that the change of duties required by the reassignment of the Calicivirus position did not constitute a repudiation because the change in duties was not exceptional or far reaching.

It was the respondent’s case that the appellant had resigned voluntarily and was not retrenched and therefore not eligible for retrenchment pension.  In the end result, I accept the argument of the respondent.  I accept that the instruction to the change of duties was in the circumstances of this case quite reasonable and was empowered by s44 of the Act.  In these circumstances it did not evince an intention on the part of the employer to bring the appellant’s employment to an end.  More specifically it was not even for the purpose of coercing the appellant to resign.  It was done for the purpose of attempting to place the appellant in gainful employment.

For all those reasons, the appeal must be dismissed.