Potter, Kim Susan v Australian Capital Territory
[1997] FCA 968
•17 SEPTEMBER 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - termination of appellant’s employment as Administrative Service Officer Class 2 in the Australian Capital Territory - whether termination unlawful - whether the employment was excluded from Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth) by reg 30B of the Industrial Relations Regulations - whether the employment was probationary - whether the relevant maximum probationary period was twelve months (as stated in the appellant’s letter of appointment) or two years, in accordance with s 47 of the Public Sector Act 1922 (Cth) and/or s 70 of the Public Sector Management Act 1994 (ACT) - whether a maximum period of two years probation was determined in advance - whether two years probation was reasonable, having regard to the nature and circumstances of the employment
Public Sector Management (Consequential and Transitional Provisions) Act 1994 (ACT)
Public Sector Management Act 1994 (ACT) s 70
Public Service Act 1922 (Cth) s 47
Industrial Relations Regulations reg 30B
Fischer v Commonwealth (1995) 63 IR 401, applied
Director General of Education v Cuttling (1987) 162 CLR 427, applied
KIM SUSAN POTTER v AUSTRALIAN CAPITAL TERRITORY
ACT I 1016 of 1997
WILCOX, MARSHALL and NORTH JJ
MELBOURNE
17 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ACT I 1016 of 1997 ) GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
BETWEEN: KIM SUSAN POTTER
AppellantAND: AUSTRALIAN CAPITAL TERRITORY
Respondent
JUDGES: WILCOX, MARSHALL and NORTH JJ DATE OF ORDER: 17 SEPTEMBER 1997 WHERE MADE: MELBOURNE
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal 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 ) ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ACT I 1016 of 1997 ) GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
BETWEEN: KIM SUSAN POTTER
AppellantAND: AUSTRALIAN CAPITAL TERRITORY
Respondent
JUDGES: WILCOX, MARSHALL and NORTH JJ PLACE: MELBOURNE DATED: 17 SEPTEMBER 1997
REASONS FOR JUDGMENT
THE COURT
This is an appeal from a judgment of Moore J (“the trial judge”) sitting as a judge of the Industrial Relations Court of Australia (“IRCA”). See Potter v Australian Capital Territory (1997) 72 IR 163. The appeal is dealt with by this Court pursuant to the Workplace Relations and Other Legislation Amendment Act 1996. See Part 3 of Schedule 16 thereto.
BACKGROUND FACTS
The appellant, Ms Potter, was employed by the respondent, Australian Capital Territory, (“the Territory”) as an Administrative Service Officer Class 2 at the Woden Valley Hospital (“the hospital”) in the Territory. Her employment was terminated on 30 June 1995 with effect from 14 July 1995.
Prior to her employment with the Territory, Ms Potter was employed by the Commonwealth in the Australian Public Service (“APS”). In October 1992 Ms Potter was a “continuing employee” pursuant to Division 10 of Part III of the Public Service Act 1922 (Cth) (“the PS Act”). At that time she suffered a serious back injury in her employment at the hospital. During the following months she undertook rehabilitation and commenced to perform clerical work at the hospital.
On 30 March 1993 Ms Potter applied for the position which she held at the time of her termination. On 20 August 1993 she was advised that she was successful in her application. Her appointment as an Administrative Service Officer Class 2 in the Case Management Unit, Personnel Services at the hospital took effect from 9 September 1993.
According to the letter of 20 August 1993, Ms Potter was appointed as an Administrative Service Officer Class 2 on a probationary basis initially of six months with a possible extension to twelve months. The letter said:
“Your appointment is on (6) months probation during which time your conduct, work performance and medical fitness will be assessed to determine whether you meet the standard required for confirmation of your appointment. If there are any doubts on any of these matters, the probationary period may be extended up to a total period of 12 months. If your conduct or work performance are considered unsatisfactory or you do no (sic) meet the medical fitness standards for your appointment, or you are not an Australian citizen your appointment may be annulled.
All officers appointed to the public service must obtained (sic) Australian Citizenship before their appointment can be confirmed.”
The letter went on to refer to an appointment with the Commonwealth Medical Officer (“CMO”) on 27 August 1993. On that day, Ms Potter was assessed not to be medically fit. Nonetheless, she was permitted to commence duties in her new position. The trial judge described Ms Potter’s work pattern in the following way:
“Following her appointment and prior to the termination of her employment in 1995, Ms Potter worked for periods of several weeks or months, though she would not work each day of the week nor work for the full day. Her pattern of work was not entirely regular. She would work 15 hours a week over three days though the number of hours she worked on any particular day would depend on her capacity physically, on that day, to work the hours she intended. There were occasions where the pain she suffered precluded her working on days she had intended to work though Ms Potter would compensate by working an additional day later. During that time, Ms Potter was off work for periods after surgery which related to her back injury. There was one period at this time when the applicant worked from home.”
On 1 July 1994 as a result of the Public Sector Management Act 1994 (ACT) (“the PSM Act”) Ms Potter’s employment was transferred from the Commonwealth to the Territory. In March 1995 Ms Potter was medically examined to enable the Territory to determine whether her probationary employment should be confirmed. The examining doctor found that Ms Potter was “unfit for appointment”. On 23 March 1995 the Territory wrote to Ms Potter through an officer of its Department of Public Administration (“the Department”) asking her to provide a written response to the recommendation of the CMO that her appointment not be confirmed. On 30 June 1995 an officer of the Department advised her that “your appointment is to be terminated on medical grounds” and that “(t)he date of effect of your termination of appointment shall be close of business on Friday 14 July 1995.”.
On 14 July 1995 Ms Potter instituted a proceeding under Division 3 of Part VIA of the Industrial Relations Act 1988 (as the legislation was then styled) in which she claimed the termination was unlawful. The application came before Moore J who held that Ms Potter’s employment was excluded from the operative provisions of that Division by reg 30B of the Industrial Relations Regulations (as they were then called). He dismissed the application.
REASONING OF THE TRIAL JUDGE
The trial judge examined the PS Act and PSM Act. He noted that it was common ground between the parties that s 6(3) of the Public Sector Management (Consequential and Transitional Provisions) Act 1994 (ACT) (“the Transitional Provisions Act”), made Ms Potter’s probationary appointment in the APS, a probationary appointment in the Territory’s Government Service (“the ACT Service”).
His Honour then examined the provisions of s 170CC of the Industrial Relations Act and reg 30B. Regulation 30B(1)(c) provides as follows:
“30B(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:
(a) ...
(aa) ...
(b) ...(c)an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires:
(i) is determined in advance; and
(ii)is reasonable, having regard to the nature and circumstances of the employment;
(d) ...”
The trial judge examined s 47 of the PS Act and s 70 of the PSM Act. Section 47 of the PS Act provides, so far as is material, as follows:
“47(1) Subject to subsection (2), the appointment of a person to the Service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation.
(2) ...
(3) The Commissioner may, at any time within the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.
(4) The relevant Secretary may, at any time after an officer (other than an SES officer) is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment.
(4A) ...
(5) The relevant Secretary may, at any time after the end of the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment.
(6) Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated:
(a)in the case of an officer other than an SES officer - the relevant Secretary must, as soon as practicable, confirm or terminate the appointment; and
(b)in the case of an SES officer whose appointment the relevant Secretary intends to confirm - the relevant Secretary must, as soon as practicable, confirm the appointment; and
(c)in any other case - the relevant Secretary must, as soon as practicable, give written notice to the Commissioner that he or she does not intend to confirm the appointment.
(6A) ...
(7) Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed.
(8) ...
(9) The Commissioner shall not, under subsection (3) or (6A), and the Secretary shall not, under subsection (5) or (6), confirm the appointment to the Service of an officer unless the Commissioner or Secretary, as the case may be, is satisfied, after the officer has undergone a medical examination approved by the Commissioner, as to the officer’s health and physical fitness.
(10) ....
(11) The Commissioner may, under subsection (4A) or (6A), and the relevant Secretary may, under subsection (4) or paragraph (6)(a), terminate an officer’s appointment to the Service on any of the following grounds:
(a)that he or she is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer’s health and physical fitness;
(b)that he or she considers, after receiving a report from the officer’s supervisor or another appropriate officer, that the manner of the officer’s performance of duties has not been satisfactory;
(c)that he or she considers that the officer is not a fit and proper person to remain an officer of the Service;
(d)that he or she is satisfied that the officer is an excess officer;
(e)in the case of an officer who is not an Australian citizen, that he or she is satisfied:
(i)that the person has been refused Australian citizenship; or
(ii)that the person is unlikely to be granted Australian citizenship within a reasonable time; or
(iii)that the person is not seeking a grant of Australian citizenship with appropriate diligence.
(12) ...”
Section 70 of the PSM Act provides to similar effect.
Moore J commented that counsel for both parties accepted:
“that the effect of these provisions was that Ms Potter’s probationary appointment as an officer of the Australian Public Service became probationary appointment as an officer of the ACT Service and subject to the operation of s 70. It was the exercise of the power in s 70 to terminate her appointment that has led to the application under s 170EA of the Act.”
His Honour then proceeded to consider the application of reg 30B (1)(c). He pointed out that the regulation “refers to the duration of the period of probationary employment or the maximum duration of the period of probationary employment and requires that either period be determined in advance”. He held, and we agree, that “the exclusionary effect of reg 30B operates only while an employee is serving the period of probationary employment of the character referred to in reg 30B(1)(c). That is, it operates on probationary employment during the period or maximum period determined in advance”. It followed that it was necessary for him to determine whether Ms Potter was a probationary employee at the time of the termination of her employment on 14 July 1995. As will be apparent, if the relevant maximum probationary period was twelve months, as stated in her letter of appointment of 20 August 1993, she was not then a probationary employee; if it was two years, there being in the meantime neither a confirmation or termination, she was then still a probationary employee.
Moore J held that the relevant period was two years. Section 47 of the PS Act specifies a maximum of two years’ probation and that period:
“... could not be altered by the administrative act of appointment and the articulation of terms of appointment in a letter of appointment.”
The trial judge then considered whether the period of two years’ probation was reasonable “... having regard to the nature and circumstances of the employment.”
Moore J found that “the length of the period of probation actually served prior to the second medical examination in March 1995 was to improve Ms Potter’s chances of passing it.”. He held that two years probation for a junior clerical position in the APS would ordinarily not be reasonable, but in determining reasonableness it was appropriate to examine the employee’s personal circumstances, including health. His Honour said:
“Notwithstanding that the scheme in s 47 was not intended, in my opinion, to accommodate probationary officers in the position of Ms Potter, it does not preclude the appointment of a person who was probably medically unfit, was undergoing a program of rehabilitation and might become medically fit during the period of probationary employment.”
Moore J concluded that:
“... it was ... reasonable for there to have been a maximum probationary period of two years in which Ms Potter could, first, undergo surgery and, second, rehabilitate herself to a point where she could perform the duties required of her in a full time clerical position.”
THE COMPETING SUBMISSIONS
Counsel for Ms Potter, Mr Ian Neil, in his written submissions, contended that s 47 of the PS Act did not have the effect of determining a two-year period of probation in advance. He submitted that the section permitted the specification in a letter of appointment of any period, up to two years, as the relevant probationary period. It followed, on this argument, that as the relevant letter had specified a period of probation of up to twelve months, Ms Potter’s period of probation was twelve months not two years.
Mr Neil also submitted that s 47 of the PS Act and s 70 of the PSM Act did not operate to extend the period of probation beyond the twelve months referred to in the letter of 20 August 1993. In this context he referred to s 9(2)(b) of the Transitional Provisions Act.
Section 9(2)(b) of the Transitional Provisions Act provides that:
“(2) A person shall be taken to have been employed as an officer -
(a)...
(b)to the extent no such provision is made - on the same terms and conditions as applied to the person immediately before the commencement day.”
Mr Neil also challenged the trial judge’s conclusion that the two year period was reasonable. He disputed the finding of a possibility that, during those two years, Ms Potter could:
“... rehabilitate herself to a point where she could perform the duties required of her in a full time clerical position.”
He said all the available (medical) evidence was against that being possible.
It was also Mr Neil’s submission that the determination of reasonableness, under reg 30B(1)(c)(ii) had to be made by reference only to the position held by the employee and not to the personal circumstances of the employee concerned.
Mr Christopher Erskine, counsel for the Territory inter alia made the following points in response:
the combined effect of the PSM Act and the PS Act was to provide a maximum period of two years probation in advance.
Mr Neil’s attack on the finding of Moore J referred to above concerning Ms Potter’s ability to rehabilitate herself was misplaced and that there was evidence to support that finding.
CONCLUSIONS
(i) Was a maximum period of two years probation determined in advance?
We agree with the trial judge that the effect of s 47 of the PS Act was to determine in advance a maximum period of two years probation. This was the conclusion of Wilcox CJ in Fischer v Commonwealth (1995) 63 IR 401; a conclusion which was not controverted on appeal. See (1996) 67 IR 123. Although s 47 contemplates the earlier termination of an employee’s probation (see subss (3), (4) and (5)) and encourages a decision to confirm or terminate promptly after twelve months (see subs (6)), it permits probation to continue for up to two years. Only at the end of that period does an otherwise unconfirmed probationary appointment become absolute.
The writer of the letter of 20 August 1993 apparently thought the maximum probationary period was twelve months; the letter refers to the possibility that “the probationary period may be extended up to a total period of 12 months”. If that was so, the writer was under a misapprehension. The two year period was fixed by statute. Whatever the letter writer thought, in the absence of a confirmation or termination, Ms Potter’s employment would continue on a probationary basis until it was confirmed, terminated or two years expired, whichever happened first. Nobody could fix a shorter maximum period. The comment of Brennan J in Director General of Education v Cuttling (1987) 162 CLR 427 applies:
“If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute.”
We reject the contention of Mr Neil that s 47 of the PS Act does not fix a maximum period of probation and that the fixing of such a period is by letter of appointment. Section 47 of the PS Act contemplates a probationary period extending for two years but no more. Thus, it has fixed the maximum period at two years. We do not understand s 9(2) of the Transitional Provisions Act to affect that conclusion. We agree with the submission of Mr Erskine that at the time Ms Potter’s employment transferred to the Territory, she was a probationary employee of the Territory employed under provisions of the PSM Act which were materially identical to those of the PS Act. Compare s 70 of the PSM Act with s 47 of the PS Act.
(ii)Was two years’ probation reasonable, having regard to the nature and circumstances of the employment?
The nature and circumstances of the employment of Ms Potter in our view contemplates the entire circumstances of her employment and not merely the circumstances of the position she held as her counsel submitted. Otherwise the word “position” would have been used in the regulation and not the word “employment”.
We agree with Moore J that the reasonableness of the probation period must be assessed having regard to the situation at the date the employment commenced. We also agree that a period of two years would ordinarily not be reasonable, in the case of a junior clerical position in the Australian Public Service. But this is not an ordinary case. Shortly before Ms Potter’s appointment, her case manager, Ms Cooper, had reported that Ms Potter was “unable to increase her hours beyond 2 hours per day” and was “really struggling at times to maintain these few hours”. Plainly, it would be some time, if at all, before she would be likely to pass a medical examination; as that was a prerequisite to confirmation, there was merit in an unusually long probationary period. In the very special circumstances of this case, we agree with Moore J that a period of two years’ probation was not unreasonable.
In the circumstances it is our view that the trial judge was correct in holding that reg 30B applied to deny IRCA the jurisdiction to deal with Ms Potter’s application.
COMMENT
Moore J concluded his Reasons for Judgment with some general observations on Ms Potter’s situation. We agree with those observations. If, as everybody seems to have assumed, Ms Potter lost her status as a continuing employee under Division 10 of the PS Act when she applied for the position of administrative service officer, the advice to do so was unfortunate, although undoubtedly well-meant. But we wonder whether that is the position; we are not aware of anything in the legislation that would have this effect. It is commonplace for public servants to move from one position to another and we have always understood that this did not affect their status as continuing employees.
We emphasise that we are not expressing any concluded view on this matter. The point has not been argued before us and the legislation may indeed have the assumed effect. But the point might warrant consideration.
Of course, if the point is well taken, Ms Potter was not a probationary employee in 1993-1995 at all; so the conclusion set out above would be irrelevant. But that would not affect the result of the appeal. If Ms Potter were a continuing employee, she was not lawfully terminated under s 70 of the PSM Act; the appliction under s 170EA of the Workplace Relations Act was misconceived and should be dismissed. If curial relief were necessary at all, it would appropriately take the form of a declaration that Ms Potter remains a continuing employee of the Territory.
We dismiss the appeal.
I certify that this and the preceding eight (8) pages are a true copy of the Court.
Associate:
Dated: 17 September 1997
Counsel for the Appellant: I Neil Solicitor for the Appellant: Barker Gosling Counsel for the Respondent: C Erskine Solicitor for the Respondent: ACT Government Solicitor Date of completion of written submissions: 9 July 1997
Date of Judgment: 17 September 1997
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