Richards, R.J. v Watson, A.R
[1986] FCA 201
•23 MAY 1986
Re: RUSSELL JAMES RICHARDS
And: ARTHUR ROY MANSFIELD WATSON; VALMA BESSIE MARSH; ALDO VALERIO TOSOLINI
No. ACT G 81 of 1985
Administrative Law - Public Service
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY GENERAL DIVISION
Neaves J.
CATCHWORDS
Administrative Law - Judicial review - Appeal to Disciplinary Appeal Board against direction that employee be transferred to other duties - Scope of Board's function on hearing appeal - Whether authority of person giving direction open to challenge before Board - Authority of Board to set aside direction.
Public Service - Powers conferred on "Chief Officer" as defined - Secretary to a Department authorized to exercise powers conferred on "Chief Officer" - Whether Secretary is a "Chief Officer".
Administrative Decisions (Judicial Review) Act 1977 (Cth), sub-ss.3(4), 5(1)
Administrative Appeals Tribunal Act 1975 (Cth), sub-s.30(1)
Public Service Act 1922 (Cth), ss.7, 25, 26A, 61, 62, 63B, 63D, 63H, 63T, 82
Public Service Reform Act 1984 (Cth), s.15
Public Service Regulations, regs.144, 147, 148, 152, 153, 155, 165, 166, 167
HEARING
CANBERRA
#DATE 23:5:1986
ORDER
The application be dismissed.
The applicant pay the third respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Aldo Valerio Tosolini ("the third respondent") is employed in a temporary capacity in the Department of Education under s.82, a provision within Division 10 of Part III, of the Public Service Act 1922 (Cth). As such, he is an "employee", and not an "officer", within the meaning of those expressions as used in the Act (see sub-s.7(1)). At all times material to this application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"), he had been so employed continuously for a period of not less than one year.
It is necessary to refer to various provisions of the Public Service Act 1922 (Cth) ("the Act") and the Public Service Regulations ("the regulations") made thereunder in the form in which they stood at the relevant time.
Division 6 of Part III of the Act makes detailed provision for disciplinary action against officers. It has five subdivisions. The heading of each subdivision and a reference to the sections contained therein are as follows:
Subdivision A - Preliminary (ss.55, 56)
Subdivision B - Secretaries of Departments and Certain Unattached Officers (ss.56A - 60)
Subdivision C - Officers other than Secretaries of Departments (ss.60A - 63H)
Subdivision D - Officers employed otherwise than in a Department (ss.63J - 63Q)
Subdivision E - Miscellaneous (ss.63R - 66)
Section 63T provides, inter alia, that the regulations may make provision for and in relation to the application of the provisions of Division 6 of Part III which precede s.63T to and in relation to an employee who is employed in a Department and has been employed in that Department continuously for a period of not less than one year. The regulations may also make provision modifying and adapting those provisions in relation to such an employee.
Part X of the regulations comprising regs 161-168 inclusive, contains provisions relating, inter alia, to discipline in relation to temporary employees. Regulation 165 provides that an employee referred to in s.63T of the Act, other than an employee falling within one of certain specified categories, is an employee to whom Part X of the regulations applies. The specified categories are not relevant to the third respondent's circumstances. Regulation 166 provides:
"166. For the purposes of section 63T of the Act, the provisions of Sub-divisions A, C and D of Division 6 of Part III of the Act, of section 63R of the Act and of regulations 139 to 146
(inclusive) and 148 to 164 (inclusive) apply, subject to the modifications and adaptations specified in regulations 167 and 168, to and in relation to an employee to whom this Part applies as if, unless the contrary intention appears, a reference in those provisions -
(a) to employment included a reference to engagement under the Act;
(b) to the Service included a reference to the Department in which that employee is employed under section 82 of the Act;
(c) to an officer included a reference to such an employee;
(d) to an unattached officer within the meaning of Subdivision D of Division 6 of Part III of the Act were a reference to an employee to whom this Part applies and who is employed or engaged to perform duties on the personal staff of a Minister or of another member of Parliament; and
(e) to an office included a reference to employment or engagement under the Act."
Regulation 167 sets out the modifications and adaptations of the Act for the purposes of s.63T and reg.166. In referring hereafter to the provisions of the Act, I shall refer to them as relevantly modified and adapted by regs 166 and 167.
By virtue of s.61, as so modified and adapted, an employee to whom Part X of the regulations applies may, in the circumstances there set out, be charged with having failed to fulfil his duty as such an employee and thus to have been guilty of misconduct. Such an employee is to be taken to have failed to fulfil his duty as an employee if, inter alia, he engages in improper conduct as an employee (s.56). Sub-section 62(1) provides:
"(1) Where an (employee to whom Part X of the regulations applies) is charged with misconduct under section 61, an inquiry shall, without undue delay, be held into the charge -
(a) subject to paragraph (b), by the Chief Officer; or
(b) if the Chief Officer is, under sub-section (2), ineligible to hold an inquiry into the charge - by another officer eligible to hold the inquiry who is authorized for the purpose by the relevant Secretary."
The expression "relevant Secretary" means the Secretary of the Department in connexion with which, or in which is employed an officer or employee in connexion with whom, the expression is used or is applicable (see sub-s.7(1)). Sub-section 62(2) provides that an inquiry into a charge is not to be held by an officer who furnished a report in respect of any of the matters alleged to constitute the misconduct to which the charge relates or by the officer who laid the charge.
Where the officer holding an inquiry into a charge is satisfied that the employee charged has failed to fulfil his duty as an employee, he may counsel the employee, or cause the employee to be counselled, or, if he is of opinion that other action is necessary, he may direct that other action be taken in respect of the employee or may recommend to the Public Service Board that action be taken to dismiss the employee from his employment. The action that the officer holding the inquiry may direct includes admonishing the employee, causing a sum to be deducted from his salary, reducing his salary or transferring him to other duties (sub-s.62(6)). A direction under s.62 in respect of an employee takes effect, if the employee appeals against the direction, upon the lapsing or withdrawal of the appeal or upon a Disciplinary Appeal Board confirming the direction or, in any other case, upon the expiration of the period within which the employee may appeal to a Disciplinary Appeal Board against the direction (sub-s.62(10)).
Under sub-s.63D(2) an employee may appeal to a Disciplinary Appeal Board constituted under s.63E against a direction (referred to in s.63D as a decision) made in respect of him, if the direction relates to a charge of misconduct, on either or both of the following grounds -
(i) that the charge should have been dismissed; or
(ii) that the action directed or recommended to be taken in relation to the charge is unduly severe.
Sub-section 63D(3) provides:
"(3) A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (2) and may confirm, vary or set aside the decision against which the appeal is made."
A Disciplinary Appeal Board is required by sub-s.63D(7) to give reasons, in writing, for its decision on an appeal under s.63D (see also reg.155).
With that background, it is convenient to turn to the relevant facts.
On 28 February 1985 two charges of failing to fulfil his duty as an employee were laid against the third respondent, the charges alleging that he had engaged in improper conduct as an employee. The inquiry into the charges, which sub-s.62(1) of the Act required to be held, was conducted by Russell James Richards ("the applicant"). He held the inquiry pursuant to an authority dated 28 February 1985 given to him for the purpose by the Secretary to the Department of Education. As a result of the inquiry, the applicant was satisfied that the third respondent had failed to fulfil his duty as an employee and that disciplinary action was necessary in respect of that failure. In a document bearing a date in April 1985 he reported to the Secretary to the Department of Education upon the inquiry, setting out his findings and the considerations which he had taken into account in determining that the third respondent -
"be transferred from the position of Storeman, School of Building PN 1934 Bruce TAFE College to Storeman, Main Store PN 2936, Bruce TAFE College."
A notice dated 11 April 1985 was forwarded to the third respondent informing him of the direction and of the reasons for giving it. The report to the Secretary is somewhat more expansive than the notice given to the third respondent. It is, however, unnecessary to refer to the detail of either document.
From that direction the third respondent, by notice dated 24 April 1985 addressed to the Director, Grievance and Appeals Bureau of the Office of the Public Service Board, appealed to a Disciplinary Appeal Board. Such a board, constituted by Arthur Roy Mansfield Watson ("the first respondent"), Valma Bessie Marsh ("the second respondent") and David Lamont, commenced to hear the appeal on 8 July 1985. Although the notice of appeal stated that the third respondent was appealing on both grounds permitted by s.63D(2), namely the ground that the charges should have been dismissed and the further ground that the action directed to be taken in relation to the charges was unduly severe, it was made plain at the outset of the hearing of the appeal that it was only upon the second of those grounds that the third respondent relied. In other words, the third respondent accepted the finding that he had failed to fulfil his duty as an employee. He contended, however, that the direction that he be transferred to other duties was unduly severe.
The Board proceeded to take evidence and to hear submissions upon that issue and, at the conclusion of the hearing on 8 July 1985, it informed the parties that it proposed to take time to consider its decision and to put its reasons in writing as required by sub-s.63D(7).
On 19 July 1985 the Board reconvened, having informed the parties that it desired to hear submissions upon the question whether the applicant in the present proceeding was authorized to hold the inquiry into the charges of misconduct against the third respondent. On that day, only the first and second respondents sat as members of the Board, Mr Lamont being unable to be present. The parties, pursuant to sub-s.63E(13) of the Act, consented to the hearing continuing before the Board constituted by the first and second respondents. The Board as so constituted, heard submissions from the parties, both parties supporting, though not for the same reasons, the proposition that, in the circumstances, the applicant had been properly authorized pursuant to sub-s.62(1)(b) to conduct the inquiry.
Before proceeding further it may be convenient to refer to certain other provisions of the Act which are necessary to an understanding of the basis upon which the Board questioned the applicant's authority to conduct the inquiry. The text of the relevant parts of s.62 has already been set out but it is convenient to re-state its general effect. Sub-section (1) requires that the inquiry be held by the Chief Officer or, if the Chief Officer is, under sub-s.(2), ineligible to hold the inquiry, by another officer eligible to hold the inquiry who is authorized for the purpose by the relevant Secretary. Sub-section (2) provides that an inquiry into a charge is not to be held by an officer who furnished a report in respect of any of the matters alleged to constitute the misconduct to which the charge relates or by the officer who laid the charge.
Section 7 of the Act defines the expression "Chief Officer" as follows:
"'Chief Officer', in relation to an officer or employee, means a Chief Officer who, by virtue of section 26A, may exercise and perform powers and functions in relation to that officer or employee."
Sub-section 26A(1) provides that the Secretary of a Department may, in writing, appoint an officer or an employee to be a Chief Officer of the Department. Section 26A was inserted in the Act by s.15 of the Public Service Reform Act 1984 (Cth) which also repealed the former s.26 which provided who were to be Chief Officers of a Department. Sub-section 15(2) of the Public Service Reform Act 1984 (Cth) provides that, notwithstanding the repeal of the former s.26, an appointment of a person as a Chief Officer of a Department that was in force under that section immediately before the date of commencement of s.15 continues in force, on and after that date, as if it had been made under the new s.26A.
It is also necessary to refer to sub-s.25(3) of the Act which provides:
"(3) The Secretary of a Department may, in any case in which he thinks fit, exercise all or any of the powers, or perform all or any of the functions, conferred by -
(a) a relevant Act;
(b) the regulations made under a relevant Act;
(c) a determination under sub-section 9(7A) or section 82D; or
(d) an industrial award,
on a Chief Officer of the Department, and, for the purposes of the exercise of such powers, or the performance of such functions, by the Secretary, any reference in the relevant Act, the regulations, the determination or the industrial award, as the case requires, to a Chief Officer shall, unless the context otherwise requires, be read as a reference to the Secretary."
The expression "relevant Act" is defined so as to include the Public Service Act 1922 (Cth).
To again take up the narrative, the Board, after hearing the submissions of the parties, adjourned to consider the matter. After a short adjournment, it made the following announcement:
"Gentlemen, the Board is satisfied that as matters stand at present there is not before it any indication that the Chief Officer was ineligible to hold the inquiry into the charge and in the absence of any such evidence it would appear that the purported determination by Mr Richards was not authorized by the Act."
The Board then afforded counsel for the present applicant an opportunity to place further material before it. Evidence was given by Peter Charles Maher, Assistant Secretary, Personnel and Services Branch of the Management Division of the Department of Education. In answer to a question from the Chairman of the Board, Mr Maher said:
"There are three Chief Officers. The Secretary by virtue of a post, is a Chief Officer. There are two other appointed Chief Officers in head office and all of our State Directors are appointed Chief Officers...."
It is implicit in Mr Maher's evidence, though not expressly stated, that the two appointed Chief Officers in the head office of the Department of Education were Mr Maher himself and Dr Taloni. The terms of their respective appointments were not placed before the Board but the matter proceeded on the basis that both Mr Maher and Dr Taloni were Chief Officers in relation to the third respondent (see s.7).
In his evidence Mr Maher said that both he and Dr Taloni had been involved in discussions concerning the complaint made against the third respondent prior to the third respondent being charged and in the charging process. According to Mr Maher, both he and Dr Taloni regarded themselves as ineligible to conduct the inquiry into the charges which sub-s.62(1) of the Act required. Mr Maher also said that the Secretary to the Department of Education had been given a report concerning the circumstances leading to the third respondent being charged.
The Board again took the matter under consideration and subsequently, on 17 September 1985, gave its decision. It set aside the decision against which the appeal had been brought and determined that the Department of Education should pay to the third respondent an agreed amount by way of costs.
In its written decision dated 17 September 1985 the Board set out in par.5, in a number of lettered sub-paragraphs, what it referred to as its findings. The findings set out in sub-pars (i) and (j) thereof read:
"(i) On the evidence put before the Board there are three Chief Officers of the Department in Canberra and there may well be others. Of those in Canberra Mr P.C. Maher, who gave the direction referred to in sub-para.(c) above, gave evidence that indicated that he considered himself to have been involved, to some extent at least, in the charging process. Whether or not there was such an involvement as to warrant disqualification under sub-section 62(2) it is not necessary to decide. It is sufficient to note that there was no evidence at all that the Permanent Head was in any way liable to such disqualification and only the faintest suggestion that the other Chief Officer in Canberra (Dr Taloni) may have been so liable. Accordingly the circumstances envisaged by sub-section 62(2) did not arise and the purported authorization of Mr Richards to determine the charges was not warranted by the Act.
(j) Mr Madden, for the inquiry officer, submitted that that is not, however, the end of the matter. Even if the determination under appeal is considered invalid, he submitted, nevertheless the appeal is on foot and the Disciplinary Appeal Board is required to make the decision which it considers appropriate in the circumstances. Support for that submission was, subsequent to the conclusion of the hearing, drawn from the decision of Neaves J. in Kelly v. Stow (Federal Court 26 July 1985, unrep.). Application of that decision to the present case would, however, only lead to the view that, in view of the very substantial pecuniary penalty the appellant has in fact already suffered, the appropriate decision is to set aside the determination or purported determination."
Sub-paragraph (i) set out above refers to "the direction referred to in sub-para.(c) above". Sub-paragraph (c) recites that on 7 February 1985, that is on a date prior to the date on which the third respondent was charged, Mr Maher directed the third respondent to report for duty as a storeman in the main store of Bruce TAFE College pending a decision whether or not charges of misconduct were to be laid. According to the evidence before me, the direction was in fact given by Mr P.B. Holmes, who described himself as a delegate of the Chief Officer. The direction is dated 1 February 1985 and directed the third respondent to report for duty at the Bruce TAFE College Main Store at the start of business on 4 February 1985. At the time the direction was given, the third respondent was performing the duties of a storeman in the Bruce TAFE College School of Building, those being the duties he was performing at the time of the acts of misconduct alleged against him.
Mr Holmes gave that direction pursuant to s.63B of the Act as modified by reg.167 of the regulations. That section, as so modified, provides, inter alia, that, where an officer authorized for the purposes of sub-s.61(2) has informed the Chief Officer that he is of opinion that an employee to whom Part X of the regulations applies may have failed to fulfil his duty as an employee and the Chief Officer is of opinion that it would be prejudicial to the effective operation of the Department in which the employee is employed under s.82 of the Act, to the interests of the public or to the interests of the employee or his fellow officers (or employees) if the employee were to continue to perform the duties of his existing employment pending the taking of a decision not to charge the employee with misconduct or the hearing and determination of any charge of misconduct laid against the employee, as the case may be, the Chief Officer may, by notice in writing delivered to the employee, direct the employee to perform temporarily other duties that he is qualified to perform (whether at the same or a different locality) or suspend the employee from duty. A Chief Officer may delegate to a person authorized for the purposes of sub-s.61(2) any of his powers under s.63B (s.63H).
It may be inferred from the Board's decision that, at the time when the appeal was heard, the third respondent was continuing to perform duties as a storeman at the Bruce TAFE College Main Store though whether that was pursuant to the direction dated 1 February 1985 given by Mr Holmes (a direction which on one view - a view which the Board seems to have taken - was limited to the period from 4 February 1985 until the decision was taken to lay the charges against the third respondent) or pursuant to some further direction does not appear. It is clear, however, that at no time was the third respondent performing duty in the main store pursuant to the direction given by the applicant on 11 April 1985 as sub-s.62(10) of the Act was effective to prevent that direction coming into effect. On the hearing of the present application the Court was informed that the third respondent was no longer performing duty in the main store but had on 26 September 1985 been directed to perform duty as a storeman in the paint store. The Court was further informed that that direction was given in the ordinary course of the administration of the affairs of the College and was unrelated to the charges laid against the third respondent on 28 February 1985 or to any other disciplinary action against him.
The applicant challenges the Board's decision on a number of grounds but, before considering the issues so raised, reference must be made to a threshold submission made on behalf of the third respondent that the applicant has no standing to bring the proceedings. It is submitted that the applicant is not properly described as a person who is aggrieved by the decision of the Board within the meaning of that expression in sub-s.5(1), read with sub-s.3(4), of the Judicial Review Act. It is not put that there is no person who answers the description of a person aggrieved by the Board's decision: indeed, it is suggested that the proceedings might properly have been brought by either the Secretary to the Department of Education or a Chief Officer within that Department. But the applicant was not, so it was submitted, within the class of persons who might invoke the jurisdiction of the Court.
The regulations postulate that there are "parties" to a proceeding before a Disciplinary Appeal Board. A number of provisions refer to a party or the parties to such a proceeding: see regs 144, 147, 148, 152 and 153. It is, however, somewhat curious that neither the Act nor the regulations expressly identifies the parties. One may feel confident that the officer or employee who has been the subject of a direction or a recommendation under the disciplinary provisions and who has appealed from the relevant decision is a party to the proceedings before the Disciplinary Appeal Board. The regulations refer to such an officer or employee as "the appellant". No clear indication is given, however, as to who is to be the party representing the interests of the relevant Department or, perhaps, more accurately, the interests of the Commonwealth of Australia as the employer.
It may be thought by some to be surprising that the person who made the decision that the employee has failed to fulfil his duty should be the party actively asserting, in proceedings before a Disciplinary Appeal Board by way of appeal from his decision, that his decision should be confirmed. The legislature has, however, considered it proper so to provide in somewhat similar circumstances. Sub-section 30(1) of the Administrative Appeals Tribunal Act 1975 (Cth) expressly provides that the person who made the relevant decision is a party to a proceeding before the Administrative Appeals Tribunal for the review of that decision and such decision-maker is, in practice, the party actively asserting the correctness of the decision under review. Notwithstanding the absence of such a provision in relation to proceedings before a Disciplinary Appeal Board, I can see no sufficient reason for concluding that the person who made the decision from which the appeal is brought may not properly be the party actively conducting the proceedings before the Board. I can equally see no sufficient reason why he, as such a party, may not properly answer the description of a person aggrieved by a decision of the Board setting aside or varying his decision. I am satisfied that the jurisdiction of the Court has been properly invoked by the proceeding commenced in the name of the present applicant. The submission made on behalf of the third respondent is rejected.
It was submitted on behalf of the applicant that it was not open to the Board to question the decision of the Secretary to the Department of Education to authorize the applicant to conduct the inquiry into the charges of misconduct. The Board's duty, it was submitted, was, in the circumstances, to determine on the merits whether the direction that the third respondent be transferred to other duties was unduly severe. The Board had, according to the argument, failed to fulfil that duty in that its decision, upon a fair reading of it, was based on the view that the applicant was not duly authorized to conduct the inquiry and that, in consequence, his decision could not stand and must be set aside.
Kelly v. Watson ((1985) 8 ALD 385), referred to by the Board sub nom. Kelly v. Stow, was a case in which Mr Stow appealed to a Disciplinary Appeal Board pursuant to s.63D of the Act against a recommendation that action be taken to dismiss him from the Australian Public Service. The Board determined that it had no jurisdiction to entertain the appeal for the reason that Mr Kelly, the officer who made the recommendation, had no authority to do so. This followed from the Board's view that Mr Kelly's transfer to an office the occupancy of which would constitute him a Chief Officer pursuant to a determination made by the Public Service Board under sub-s.26(1) of the Act in the form in which it then stood had not been validly effected because, in turn, the officer who purported to effect the transfer had no authority to do so. Upon an application under the Judicial Review Act, I held that the jurisdiction of the Board to hear and determine the appeal did not depend in any sense upon it being established that Mr Kelly had authority to make the recommendation. I said:
"The correct view is, I think, that the right to appeal arises when an officer, purporting to act pursuant to paragraph 63(1)(d), in fact makes a recommendation for the dismissal of the officer. On the proper construction of the provision, the reference therein to a recommendation made in respect of an officer under paragraph 63(1)(d) is a reference to a decision in fact made whether or not the decision is a legally effective decision."
I went on:
"I am also of opinion that the function of the Board in this case was limited to considering the question whether the action recommended was unduly severe and that, having regard to the limited nature of its function, it would not have been open to it on the hearing of the appeal to canvass the question whether the officer making the recommendation had authority to do so. It seems to me that, where a person is aggrieved by the making of a recommendation under paragraph 63(1)(d) and he wishes to contest the authority of the officer making the recommendation, an appeal under sub-section 63D(2) is not an appropriate vehicle by which to put that question in issue. If that issue is to be raised it must be done by the institution of collateral curial proceedings."
In my opinion, it was not open to the Board in the present case to question the authority of the applicant to conduct the inquiry resulting in the direction that the third respondent be transferred to other duties. The inquiry had, in fact, been held and the direction had, in fact, been given in purported pursuance of s.62 of the Act. From that decision the third respondent had appealed, an appeal which, in the event, was limited to the ground that the direction was unduly severe. The Board's function was limited to considering that ground. If the applicant's authority was to be questioned, the appropriate course would have been for collateral curial proceedings to be instituted but, as I have already noted, the third respondent did not seek to raise any such issue either before the Board or before the Court.
A further submission was made on behalf of the applicant that the Board had fallen into error in concluding that it was a condition precedent to the exercise of the power conferred by par.(b) of sub-s.62(1) of the Act that the Secretary to the Department of Education, as well as those officers who had been appointed to be Chief Officers pursuant to sub-s.26A(1), should be shown to be ineligible under sub-s.62(2) to hold the inquiry into the charges laid against the third respondent. The Board's conclusion depends upon the Secretary to the Department of Education being properly described as a "Chief Officer" within the meaning of that expression in sub-s.62(1). That proposition was disputed by the applicant.
In my opinion, the submission of the applicant should be upheld. The Act makes clear provision that a Chief Officer is an officer or employee who has been appointed to be a Chief Officer by the Secretary to the Department pursuant to the power conferred by sub-s.26A(1) or an officer or employee whose appointment as such under the now repealed s.26 remains in force by virtue of sub-s.15(2) of the Public Service Reform Act 1984 (Cth). Nowhere does the Act provide that the Secretary to a Department is to be a Chief Officer. On the contrary it provides, by sub-s.25(3) that, although not a Chief Officer, the Secretary to a Department is entitled, in any case in which he thinks fit, to exercise all or any of the powers conferred by the Act on a Chief Officer of the Department. In my opinion, the references in sub-s.62(1) to "the Chief Officer" do not include the Secretary to the relevant Department. The Secretary may, of course, hold the inquiry required by sub-s.62(1) if he sees fit to do so, but he does so, not as a Chief Officer, but by virtue of the power expressly conferred upon him as Secretary by sub-s.25(3). It follows that the power vested in the Secretary to authorize an officer to hold an inquiry under sub-s.62(1) does not, in my view, depend upon the Secretary being ineligible under sub-s.62(2).
The applicant also submitted that a Disciplinary Appeal Board, upon hearing, as was the Board in this case, an appeal solely on the ground that the action directed to be taken in relation to the charge was unduly severe, has no power simply to set aside the direction against which the appeal is brought but may only confirm the direction or vary it so as to direct some other action to be taken in respect of the officer or employee concerned. That conclusion, it was submitted, was required because, upon the proper construction of the relevant provisions, the powers of a Board do not extend beyond those of the officer holding the inquiry pursuant to sub-s.62(1) of the Act and such an officer, having made a finding that a charge of misconduct had been made out, is bound to take one of the various courses of action prescribed by sub-s.62(6). It was, it was said, not open to such officer to direct that no such action be taken.
In my opinion, the langugage of sub-s.62(6) does not require the conclusion contended for by the applicant. Although the instances in which it would be appropriate to do so may be rare, I can see no reason why the statute should be construed as precluding the officer holding the inquiry from determining that, although the charge of misconduct has been proved, no further action should be taken against the offender. The provision is not cast in mandatory terms - it gives to the officer concerned a very wide range of choice so as to mould the appropriate course of action to the circumstances. It is not, in my view, to be construed as requiring that in every case of a finding of guilt, some penalty must be directed. But, whatever may be the position of the officer holding the inquiry under sub-s.62(1), there is no warrant for reading the very general words of sub-s.63D(3) giving a Board power to "confirm, vary or set aside the decision against which the appeal is made" in the limited way necessary to give effect to the view contended for by the applicant. The "decision" against which an appeal is brought is the direction made in respect of the offender under sub-s.62(1), not the finding that the charge has been proved. I can see no reason to limit the power of the Board to set aside the decision appealed against to cases in which the ground of appeal relied upon is that set out in sub-s.63D(2)(i) namely, that the charge should have been dismissed. The applicant sought to gain some support for the submission by reference to reg.158 which requires an entry to be made in the official conduct record kept in respect of the officer or employee concerned of action, other than counselling, taken consequent upon a charge of misconduct. That regulation cannot, of course, affect the proper construction of the provisions of the Act but, in any event, I do not find anything in that regulation which supports the view for which the applicant contended.
I now come to the question, which is crucial so far as the outcome of this proceeding is concerned, whether the Board fulfilled its duty of considering the appeal on its merits. The applicant contended that that question should be answered in the negative. It was said, and I think correctly, that the only part of the Board's written decision that supports the conclusion that it considered the appeal on its merits is sub-par.5(j), the text of which has already been set out, and, in particular, the last sentence of that sub-paragraph. Nowhere else in its written decision does the Board address the question. The last sentence in sub-par.5(j) reads:
"Application of that decision (that is, the decision in Kelly v. Watson (supra)) to the present case would, however, only lead to the view that, in view of the very substantial pecuniary penalty the appellant has in fact already suffered, the appropriate decision is to set aside the determination or purported determination."
It may, I think, be assumed that the reference to "the very substantial pecuniary penalty the appellant has in fact already suffered" is a reference to the following statement in sub-par.5(e) of the Board's written decision:
"In fact the evidence disclosed that in his position as Storeman in the paint store he was assured of approximately $108 overtime per week for the 36 weeks of the academic year which commenced a day or two after his transfer to the main store. It is not altogether clear whether, in that position, he was eligible for any overtime. The evidence was that to the date of the hearing he had not worked any overtime at all so that the loss of earnings, which had become appreciable by the time Mr Richards made his decision, had verged on the substantial sum at the date of the hearing."
The applicant pointed to the absence from the Board's decision of any discussion of the nature of the admitted misconduct of the third respondent, of the seriousness of that misconduct or of the factors relied upon by the applicant in reaching his conclusion that it was necessary that disciplinary action be taken by way of transferring the third respondent to other duties in the performance of which the third respondent would not have the same degree of direct contact with the students at the Bruce TAFE College. It was further said that, not having discussed any of those matters, the Board's decision does not indicate what, if any, weight was given to them in the balancing process involved in deciding what disciplinary action was appropriate in the circumstances.
The applicant's submission was put in the alternative. It was submitted that, if the Board in the last sentence of sub-par.5(j) of its written decision had failed to express all of the matters which it had taken into account in reaching the conclusion that the direction given by the applicant should be set aside, the reasons stated are inadequate and the Board failed to satisfy the requirements of sub-s.63D(7). Alternatively, it was submitted that, if that sentence does set out the whole of the matters taken into account, the Board failed to take into account a number of relevant considerations, being those identified in the preceding paragraph.
Counsel for the third respondent submitted to the contrary. While acknowledging the deficiencies in the Board's written decision, he submitted that, on a proper consideration of the whole of the proceedings before the Board, the Court should conclude that it did consider the appeal on its merits and, having done so, determined that the decision under appeal should be set aside because, in its judgment, the direction that the third respondent be transferred to other duties was unduly severe and no other disciplinary action should, in all the circumstances, be taken.
There is much to be said in favour of the applicant's submission. The Board's written decision clearly demonstrates its preoccupation, almost to the point of excluding any consideration of the merits of the appeal, with the question of the applicant's authority to conduct the inquiry. The discussion of that issue overshadows all else - it clearly overshadows the important and, as I would think, the sole issue for the Board namely what disciplinary action was appropriate given the admitted misconduct of the third respondent. As has been said, the Board devotes only one sentence to the merits and does not refer to any factor as being relevant other than the pecuniary loss suffered by the third respondent by his transfer to other duties. In that sense the Board's written decision is less than satisfactory. One may speculate that the writing of the decision had been completed, or substantially completed, before the judgment in Kelly v. Watson (supra), which was not delivered until after the hearing of the appeal had been concluded, came to the notice of the members of the Board.
But, cryptic as the decision on this point may be, the Board must, I think, be taken to have regarded the financial burden which in its view the third respondent had already suffered as so far outweighing all other factors otherwise relevant to be taken into account as to make it unnecessary to refer to and discuss them. It is clear from a perusal of the transcript, which was tendered in evidence before the Court, of the proceedings before the Board that the factors which the parties considered relevant to the merits of the appeal were fully canvassed. I have, therefore, after anxious consideration having regard to the deficiencies in the way in which the Board has expressed its decision, concluded that the Board did reach a decision on the merits and that that decision was one which was open to it. In the circumstances I do not consider it appropriate that the matter be remitted to the Board for the sole purpose of having its reasons expressed in a more adequate way.
In the result, although in my view the Board fell into error in a number of respects, the application should, I think, be dismissed. Although the applicant succeeded on a number of the issues raised, it seems appropriate in all the circumstances to order that the applicant pay the third respondent's costs of the application.
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