R v Watling; ex parte Northern Residential Support Group Incorporated

[1999] TASSC 99

[1999] TASSC 99

CITATION:R v Watling; ex parte Northern Residential Support Group Incorporated [1999] TASSC 99

PARTIES:  R
  v
  WATLING, R J
  NORTHERN RESIDENTIAL SUPPORT GROUP   INCORPORATED, ex parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M21/1999
DELIVERED ON:  23 September 1999
DELIVERED AT:  Hobart
HEARING DATE:  23 September 1999
JUDGMENT OF:  Evans J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Prosecutor:  S B McElwaine
           Respondent:  No appearance
Solicitors:
           Prosecutor:  S B McElwaine
           Respondent:  No appearance

Judgment  Number:  [1999] TASSC 99
Number of paragraphs:  14

Serial No 99/1999
File No M21/1999

THE QUEEN v R J WATLING; EX PARTE
NORTHERN RESIDENTIAL SUPPORT GROUP INCORPORATED

REASONS FOR JUDGMENT  EVANS J

23 September 1999

1. The prosecutor, the Northern Residential Support Group Incorporated ("NRSG") seeks an order quashing a determination of Commissioner Watling of the Tasmanian Industrial Commission, that the employment of Mr Robert Von Bibra was not lawfully terminated by NRSG on 21 April 1998.

1. NRSG is an incorporated association and is subject to the provisions of the Associations Incorporation Act 1964.

1. For some time prior to 14 April 1998, Mr Von Bibra was employed by NRSG.  Following an incident on 14 April 1998, NRSG's Manager, Mr David Laugher, and President, Ms Pauline Robson, conducted an investigation and concluded that Mr Von Bibra's employment should be terminated.  Ms Robson telephoned the members of a group she described as the Executive of NRSG, who agreed that Mr Von Bibra should be dismissed.

1. By a letter handed to Mr Von Bibra on 21 April 1998, Ms Robson advised him of his dismissal.  She signed the letter as: "President ¾ For and on behalf of the Board of Management of NRSG (inc)". 

1. The rules of NRSG provide for the management of its affairs by a Committee of Management.  That Committee is referred to by NRSG as its Board, and for convenience, I will adopt that term.  At a meeting of the Board on 20 May 1998, a copy of the letter of dismissal handed to Mr Von Bibra was tabled.  The Board endorsed Ms Robson's action and ratified the decision to dismiss Mr Von Bibra.

1. Following the dismissal, Mr Von Bibra's Union applied to the President of the Tasmanian Industrial Commission, pursuant to the Industrial Relations Act 1984, s29(1), for a hearing before a Commissioner in respect of an industrial dispute arising from the dismissal. The President convened a hearing of the matter before Commissioner Watling. In the course of that hearing, it was submitted on behalf of the Union that NRSG had not validly terminated Mr Von Bibra's employment.

1. The rules of NRSG provide for sub-committees of the Board and an executive committee of the Board.  Rule 28(6), which relates to the executive committee, was the focus of considerable attention in the course of the hearing before the Commissioner.  It provides:

"28     …

(6)      The President, Vice-Presidents, the Treasurer, and the Secretary constitute an executive committee, which may issue instructions to the public officer and the servants of the Association in matters of urgency connected with the management of the affairs of the Association during the intervals between meetings of the committee, and where any such instructions are issued shall report thereon to the next meeting of the committee."

1. This rule was a focus of attention as a proposition considered by the Commissioner was that the dismissal was valid as it had been approved by the executive committee. 

1. The Commissioner concluded that Rule 28(6) did not empower a properly constituted executive committee to dismiss an employee.  In my view, that conclusion is correct.  The authority given to the executive committee is confined by the rule to issuing instructions to servants in matters of urgency.  This does not include a power to hire or fire servants.  In the absence of evidence that the Board had authorised the executive committee to dismiss employees, there was no basis on which the Commissioner could have found it had that authority.

1. On behalf of NRSG, it was contended that Mr Von Bibra's dismissal had been ratified by the Board.  As to this issue, the Commissioner said:

"Rule 28(6) also provides that, the executive committee, in circumstances in which it has issued instructions, shall report upon them to the next meeting of the Committee.  There is no requirement that the instruction be ratified at that meeting for it to have effect.  An instruction validly given, pursuant to Rule 28(6), will have effect whether or not it is ratified.

Further, I am of the view that, just as a failure by the Committee to ratify a valid instruction of the executive committee will not invalidate that instruction, (although the committee could arguable [sic] overturn such an instruction) so ratification by the committee of an invalid instruction of the executive committee will not serve to validate it."

1. With respect, the Commissioner's conclusion in relation to ratification does not accord with the law.  A primary aspect of the concept of ratification is the validation of an invalid action.  It is only invalid acts which require ratification.  The following passage from The Laws of Australia, 8.1.12, is a concise statement of the applicable law:

"Ratification refers to the approval of an act originally done without authority.  Where the act has been done by a person expressly on behalf of another, though without prior authority to do so, and is subsequently ratified by that other person, the relationship of principal and agent or the relevant authority is constituted retrospectively, and the act is as valid and as effectual as it would be if it had been done with prior authority.  The doctrine applies regardless of whether the intermediary was an agent exceeding authority, or was a person having no authority at all.  The act is not merely validated from the date of ratification, but takes effect from the time of the agent's act."

1. The letter of dismissal handed to Mr Von Bibra on 21 April 1998 was expressly signed by Ms Robson, as President of NRSG for and on behalf of the Board of Management.  Whilst she apparently did not have the authority of the Board to dismiss Mr Von Bibra at that time, the Board ratified her action at its meeting on 20 May 1998.  The following conditions for an effective ratification were satisfied.  At the time of the dismissal, Ms Robson had disclosed that she was acting for the Board.  The letter of dismissal was tabled at the time that the Board ratified her actions, so it is manifest that the Board had full knowledge of the relevant facts.  The ratification occurred within a reasonable time of the dismissal.

1. The ratification of Ms Robson's action made the dismissal as effective as it would have been had it been done with prior authority.  The dismissal was made effective from its occurrence on 21 April 1998.

1. For these reasons I am satisfied that the Commissioner's determination was erroneous.  In lieu of ordering that a writ issue, I will order that pursuant to the Rules of the Supreme Court, O72, r4(2)(1), the determination made by Commissioner Watling in proceedings T7691 of 1998 be quashed.