Trigger, Christine v Australian Telecommunications Commission

[1984] FCA 82

Re: CHRISTINE TRIGGER
And: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G242 of 1983
No. G243 of 1983
6 IR 446 / 2 FCR 246 Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY
GENERAL DIVISION
McGregor J.(1)

CATCHWORDS

Administrative Law - judicial review - application for declaration - dismissal of a temporary employee in the Public Service - whether employee entitled in the circumstances to application of principles of natural justice - whether denial of natural justice - applicability of s.58 of the Telecommunications Act 1975 - whether person who made decision to dismiss employee should himself have afforded employee hearing - whether authority to dismiss properly delegated - whether Staff By-law 156 was invalid on grounds of inconsistency and ultra vires.

Administrative Decisions (Judicial Review) Act 1977 ss.5,13.

Federal Court of Australia Act 1976 s.21

Telecommunications Act 1975 ss.33,39,42,43,47,48,49,50,51,53,54,56,57,58,65,66,67,69,111.

Telecomunications Regulations, 35A

Telecommunications (Staff) By-laws 8,152,156.

Australian Telecommunications Commission Telephone and Phonogram Staff (Salaries and Specific Conditions of Employment) Award 1978 Clauses 3,5.

Australian Telecommunications Commission Employees (General Conditions of Employment) Award 1975. Cl. 31.

Administrative Law - Judicial review - Application for declaration - Dismissal of a temporary employee in the Public Service - Whether employee entitled to application of principles of natural justice - Whether denial of natural justice - Applicability of s. 58 of the Telecommunications Act 1975 - Whether person who made decision to dismiss employee should himself have afforded employee hearing - Whether authority to dismiss properly delegated - Whether Staff By-law 156 was invalid on grounds of inconsistency and ultra vires - Administrative Decisions (Judicial Review) Act 1977, ss 5, 13 - Federal Court of Australia Act 1976, s. 21 - Telecommunications Act 1975, ss 33, 39, 42, 43, 47, 48, 49, 50, 51, 53, 54, 56, 57, 58, 65, 66, 67, 69, 111 - Telecommunications Regulations, 35A - Telecommunications (Staff) By-laws 8, 152, 156 - Australian Telecommunications Commission Telephone and Phonogram Staff (Salaries and Specific Conditions of Employment) Award 1978, cll. 3, 5 - Australian Telecommunications Commission Employees (General Conditions of Employment) Award 1975, cl. 31.

HEADNOTE

The applicant was dismissed from temporary employment with the Australian Telecommunications Commission under By-law 156 of the Telecommunications (Staff) By-laws by a letter of termination signed by the Acting District Telecommunications Manager. During the course of her employment she arrived late for work on numerous occasions and her unsatisfactory attendance record and other matters were the subject of discussions with the Officer-in-Charge. She was warned that permanent appointment would not be recommended and failure to improve could result in deferral of increment, formal charges under s. 58 and severe disciplinary action.

Held: (1) The legislature did not intend that there should be available to a temporary employee in the ordinary course of events any implementation of the principles of natural justice.

(2) The facts relating to the employment of the applicant did not give rise to an inference that as a temporary employee she had a right to a hearing before her services were terminated.

(3) The applicant was not entitled to any further notice by the respondent that her dismissal was imminent.

(4) When her services were terminated it was not necessary to give reasons: McInnes v. Onslow-Fane (1978) 1 W.L.R. 1520 per Megarry V.C. at 1531 applied.

Wiseman v. Borneman (1971) A.C. 297; Furnell v. Whangarei High School Board (1973) A.C. 660; The Commissioner of Police v. Tanos (1958) 98 C.L.R. 383; Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106; Ridge v. Baldwin (1964) A.C. 40, referred to.

HEARING

Sydney, 1983, September 23; November 18; 1984, March 5-7, 16, 19, 30. #DATE 30:3:1984

APPLICATION.

Application for orders of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 and application for declarations concerning the validity of certain by-laws.

C. Simpson, for the applicant.

J.A. Farmer, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Maurice May & Co.

Solicitor for the respondent: T. A. Sherman, Acting Commonwealth Crown Solicitor.

P.T.

ORDER

The applications are dismissed.

The applicant is to pay the respondent's costs.

Applications dismissed with costs.

JUDGE1

CHRISTINE TRIGGER (applicant) has made application (G242) for an order of review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act) and (G243) for certain declarations pursuant to s.21 of the Federal Court of Australia Act 1976 in relation to a decision conveyed by letter dated 9 March 1983 over the hand of Kenneth John Kime, then Acting District Telecommunications Manager in the Chatswood branch to the applicant, that her employment by THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION (respondent) was terminated.

Legislation referred to includes s.21 of the Federal Court of Australia Act 1976 which reads -

(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2) A suit is not open to objection on the ground that a declaratory order only is sought."

Sections of the Telecommunications Act 1975 (the Act) to the extent referred to include -

"33.(1) The Commission may, by instrument under its seal, delegate to a Commissioner, to the Chief General Manager or to an officer or employee, either generally or otherwise as provided by the instrument of delegation, all or any of its powers under this Act (except this power of delegation).

(2) . . .

43(1) Subject to this Part, officers and employees hold office on such respective terms and conditions as the Commission determines.

57(2) In this Division, a reference to midsconduct, in relation to an officer, is a reference to a failure of the officer to fulfil his duty as an officer."

58(1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if -

(a) he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction;
(b) he is inefficient or incompetent by reason of causes within his own control;
(c) he is negligent or careless in the discharge of his duties;
(d) he is guilty of improper conduct as an officer;
(e) he is guilty of improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties, is prejudicial to the interests of the Commission or damaging to the business of the Commission:

(f) he contravenes or fails to comply with a provision of this Act, of the Regulations or of the By-laws, that is applicable to him or with the terms and conditions upon which he is employed; or

(g) he has, whether before or after becoming an officer, wilfully supplied to the Commission, to an officer or to some other person acting on behalf of the Commission incorrect or misleading information in connexion with his appointment to the Service.

(2) If a supervisor of an officer has, at any time, reason to believe that the officer may have failed to fulfil his duty as an officer, the supervisor may require the officer to furnish to the supervisor, in writing, an explanation of the matters alleged to constitute the failure and may, after consideration of any explanation furnished by the officer, if he is of the opinion that the officer has failed to fulfil his duty as an officer -

(a) counsel the officer; or

(b) furnish a report concerning the matters together with any explanation furnished to him in relation to those matters to an officer authorized for the purposes of sub-section(3).

(3) Where an officer authorized by the Commission for the purposes of this sub-section is of the opinion, whether by reason of his consideration of a report furnished under sub-section (2) or otherwise, that an officer may have failed to fulfil his duty as an officer the authorized officer shall, as soon as practicable, decide whether he should be charged and -

(a) if he decides that the officer should not be charged - may counsel the officer or cause a supervisor of the officer to counsel the officer; or

(b) if he decides that the officer should be charged - by writing under his hand delivered to the officer, charge the officer with the failure.

(4) Where an officer charged under sub-section (3) so requests, a copy of the charge shall be furnished to the organization to which the officer belongs.

(5) Where an officer is charged with misconduct, an officer authorized by the Commission for the purposes of this sub-section, not being either the supervisor of the officer charged or an officer authorized for the purposes of sub-section (3), shall, without undue delay, hold an inquiry into the charge.

(6) In an inquiry for the purposes of sub-section (5), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given the opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after that notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters.

(7) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer.

(8) An officer charged with misconduct shall not be taken, by reason only of having failed to deny the truth of a matter alleged to constitute the misconduct, to have admitted the truth of that matter.

(9) Where the officer who held an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer or cause a supervisor of the officer to counsel him, or, if he is of the opinion that other action is necessary -

(a) admonish the officer;

(b) direct that a sum not exceeding $40 be deducted from the salary of the officer;
(c) if the officer occupies a position to which a range of salary is applicable and is in receipt of a salary other than the minimum salary of that range - direct that his salary be reduced to a lower salary within that range for a period not exceeding 12 months; or

(d) recommend to the Commission, in writing -

(i) that the Commission transfer the officer to another position, whether at the same or a different locality, being a position for which he is qualified and which has the same classification as the position held by the officer, and the salary, within the salary range of the position, that should be paid to the officer;

(ii) that the Commission transfer the officer to another position, whether at the same or a different locality, being a position for which he is qualified and which has a lower classification than the position held by the officer, and the salary, within the salary range of the position, that should be paid to the officer; or

(iii) that the Commission dismiss the officer from the Service.

(10) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, he shall furnish to the Commission, with his recommendation, full particulars of his findings in relation to the facts giving rise to the misconduct.

(11) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, the Commission may, after consideration of the particulars furnished under sub-section (10) counsel the officer, or, if it considers that other action is necessary -

(a) admonish the officer;

(b) decide -

(i) to give effect to the recommendation; or

(ii) to take any other action that could have been recommended under that paragraph; or

(c) give a direction referred to in paragraph (9)(b) or (c).

. . . . .

69. An award made under this Division shall, for the purposes of the Conciliation and Arbitration Act 1904-1974, be deemed to have been made under that Act."

111.(1) The Commission may make By-laws, not inconsistent with this Act and the regulations, prescribing all matters which are required or permitted to be prescribed by the By-laws, and making provision for, or with respect to -

. . . . .

(g) the terms and conditions of employment of officers and employees; and

. . . . "

Regulation 35A of the Telecommunications Regulations (the Regulations) reads -

"Division 6 of Part V of the Act applies to and in relation to an employee who -

(a) has been in continuous employ of the Commission for a period of not less than one year; or

(b) has been engaged by the Commission to serve for a period of not less than one year.

subject to the following modifications and adaptions of the provisions of that Division:

(c) subject to the succeeding paragraphs of this regulation, a reference in that Division to an officer (other than a reference, however expressed, to an officer acting on behalf of the Commission, to an officer authorized for the purposes of sub-section 58(3) of the Act, to an officer authorized for the purposes of sub-section 58(5) of the Act or to an officer referred to in paragraph 63(2)(b) of the Act) shall be read as a reference to an employee;

(d) the words"appointment to the Service" in paragraph 58(1)(g) of the Act shall be read as if the words "engagement as an employee" were substituted:

(e) the words "his fellow officers" in sub-section 59(1) of the Act shall be read as if the words "of officers and his fellow employees" were substituted;

(f) the words "appoint the person as an officer, without probation, to fill" in sub-section 61(3) and sub-paragraph 62(7)(b)(i) of the Act shall be read as if the words "engage the person as an employee to perform the duties of" were substituted;

(g) a reference in that Division, however expressed, to the transfer of an officer to a position shall be read as a reference to a direction to an employee to perform the duties of that position;

(h) the words "reappoint the person as an officer and appoint him to" in sub-section 64(6) of the Act shall be read as if the words "re-engage the person as an employee and direct him to perform the duties of" were substituted."

Telecommunications (Staff) By-laws have been referred to e.g. -

"Breach of by-laws re attendance and unauthorized absence.

8. An officer or employee -

. . . .

(e) who is frequently late in attending for duty;

. . . .

commits a breach of these By-laws."

By-law 152 -

"Granting of leave.

An employee may be granted leave of absence for recreation, or on account of illness, on such terms and conditions as are determined by the Commission."

By-law 156 -

"Termination of service.

(1) Where an employee absents himself from duty without permission and is so absent for a continuous period of not less than 2 weeks, he shall be deemed to have resigned from his employment with the Commission at the expiration of that period of 2 weeks.

(2) Subject to sub-clause (3), the Commission may terminate the services of an employee at any time.

(3) Where, under the regulations, Division 6 of Part V of the Act applies to and in relation to an employee, the Commission shall not dispense with his services under sub-clause (2) by reason only of the fact that he has done, or omitted to do, an act or thing in respect of which a charge could be laid against him or on the ground that a court has convicted him of a criminal offence within the meaning of that Division or found, without recording a conviction, that he has committed such an offence."

The facts which are not in dispute include that on 23 June 1980 the applicant commenced employment with the respondent as a temporary employee. On 23 April 1982 she applied for permanent appointment with the respondent. But she was regularly arriving late for work. On occasions during her employment when the applicant was late a document called "Late attendance report" was completed. The applicant gave a reason for her lateness in the part headed "Explanation" and signed the document. On other occasions when arriving late she applied for leave. An Application for Leave form which she also signed was filled out. Again she provided a reason for the leave though this may have been only in respect of the period for which she was late, e.g. perhaps 40 minutes. Thus there is in all these documents a detailed record of the explanation advanced by the applicant herself for her conduct. Throughout her employment there were some 90 occasions recorded of late attendance, in respect of some of which, as I have said, she applied for leave. She had not given prior notice of any intention to apply for leave.

On each occasion when the documents were filled in the applicant would have to approach a supervising officer. A consideration of the period over which her unpunctuality persisted, many of the excuses made and that it continued despite expression of dissatisfaction, would not encourage belief that the applicant took her position seriously. She was notified on 7 June 1982 that that her permanent appointment would be deferred for a period of three months whereupon her attendance record would be reviewed. Prior to November 1982 her lateness had been discussed with her on at least 12 separate occasions; the officers on those occasions made it plain they were dissatisfied with her. On 3 November 1982 she was notified that that period having expired, a review of her attendance record did not provide any evidence to indicate that she had attempted to display any improvement in that regard. She was further advised that her permanency would not be recommended until the required improvement was evidenced. Moreover, failure to show improvement could result in "severe disciplinary action". Her habit of unpunctuality continued. Following the communication of 3 November 1982, to which I have already referred, the applicant was late for work on some nineteen occasions.

On 1 March 1982 a memo was sent to her advising that her late arrivals constituted a breach of By-law 8(e). Following a further five late attendances, a letter was sent to her on 28 April 1982 stating -

"You are again warned that any further breach of By law (8)(e) or any of the Acts, Regulations or By Laws of the Australian Telecommunications Commission will result in disciplinary action being taken against you."

The next communications were by letters dated 7 June 1982 and 3 November 1982 to which I have referred earlier.

On 11 November 1982 she was "counselled" (see s.58(2)(a)) regarding her "unsatisfactory conduct" and late attendances between 9.11.82 and 11.11.82. A memo or letter was given to her on the last date and signed by her as acknowledging (she says) that the matters set out were discussed. It was said in the letter that the following points were covered -

"1. Failed to advise supervisory staff of your intended lateness although you were on the premises at the time you were due to commence duty.

2. Had a number of articles of clothing, including underwear on ledge and wash basin in the Wash Room on 9.11.82, obstructing other staff from using these facilities.

3. Spoke to me in a snappish tone when queried regarding lateness and clothing.

4. Continually leave a trolley in the Rest Room: the bars of this protrude and could result in an accident.

You have undertaken to improve in these areas and make other necessary adjustments to meet requirements."

On 18 January 1983, Sheila Chaney, Personnel Officer, spoke to the applicant to ascertain if she would be interested in speaking to the social worker regarding her personal problems. She assented. In the conversation which is set out in a document headed "Record of Interview - C. Trigger" tendered in evidence there is attributed to the applicant a mention of certain occasions and events. I do not set these out in detail.

The letter of 9 March 1983 to the applicant signed by Mr. Kenneth Kime stated -

"Since June 1980 you have been employed as a Telephonist with Telecom Australia.

During your period of service you have shown you are unable to perform the duties of your position satisfactorily. Despite counselling from your Supervisor, the Personnel Officer, and the Telecom Welfare Officer you have failed to achieve the minimum standard required.

After extended and sympathetic consideration it is concluded that for reasons beyond your control you are unable to perform the duties of your position.

Therefore I regret that acting under the authority vested in me by Staff By-Law 156 I have no alternative but to terminate your services with the Australian Telecommunications Commission as from close of business on 9 March 1983. Any outstanding monies including one week's pay in lieu of notice will be forwarded to your home address as soon as possible."

In her affidavit dated 12 August 1983, in support of application G242, the applicant stated -

"4. Although I had previously had some interviews with personnel officers and had been asked to explain certain lateness and absences, I was given no prior advice that termination of my employment was being considered. I was never told the specific grounds on which my employment was terminated. I was never given an opportunity to explain any behaviour of mine which may have led to the termination of my employment. I have never been told what are the "reasons beyond my control" upon which it was concluded that I am unable to perform the duties of my position.

5. I say that I am able to perform the duties of my position. I say that I wish to have the opportunity to hear the allegations against me and to call evidence and/or explain any conduct of mine which is considered to be unsatisfactory."

For this hearing she also provided evidence of a report prepared by a psychiatrist and an appraisal of her by a psychologist.

A request pursuant to s.13 of the Judicial Review Act for a statement of reasons was answered by a letter dated 1 August 1983 which included the following paragraphs -

"During her period of employment with Telecom Australia as a Telephonist at the Chatswood Service Assistance Centre her unsatisfactory attendance record and her behaviour adversely affected the efficiency of this service. She was counselled regarding such matters as wearing clown's clothes and make up at work; doing dangerous "exercises" whilst sitting at the switch-board; hiding under tables, and washing personal items of clothing in hand-basins in the Rest-Room. After extended sympathetic consideration it was concluded that she was not suitable for continued employment in Telecom and accordingly her employment was terminated under Staff By-Law 156."

In submissions on behalf of the applicant, her Counsel relied on s.5(1)(a) of the Judicial Review Act that a breach of the rules of natural justice occurred in connection with the making of the decision to terminate the employment. She submitted that the applicant was entitled to the benefit of those rules when consideration was being given to the said termination. Those rules included a right to be notified of specific allegations against her and the nature of the material relied upon, a right to a hearing in the sense of an opportunity of rebutting evidence against her and furnishing material on her own behalf, and to adequate notice of the time and place where it would occur; and, further, if the occasion arose, a right to make representations as to any penalty. She submitted that the applicant was not given the benefit of any of these matters. She submitted, further, that the applicant was entitled to the benefit of procedures set out in s.58 Division 6 of Part V of the Act and these procedures were not observed. Counsel argued that as Division 6 of Part V applied to the applicant by reason of Regulation 35A, By-law 156(3) precluded the respondent from dispensing with the applicant's services under By-law 156(2) because she was alleged to have done acts or things in respect of which a charge could have been laid. It was submitted that it was the person who made the decision terminating the employment who was required to give the applicant the benefit of the provisions of natural justice, i.e. a hearing; and it was not sufficient that other persons, including a Miss Chaney and a Miss Mitchell, should have spoken with her.

In support of the application G243, the submission was that By-law 156 was invalid as both ultra vires and inconsistent with the Act and Regulations. As to ultra vires, Counsel referred to s.111(1)(g) of the Act as being the only arguable ground providing authority for the making of By-law 156 i.e. the "only conceivable source of power". However, the words "terms and conditions of employment of . . . . employees" in s.111(1)(g) did not refer to termination of employment of such persons. Further, she said the By-law was inconsistent with s.58 providing a comprehensive scheme for punishment, dismissal, dealing with inefficiency etc; and these provisions were quite inconsistent with a power in a By-law to terminate services of an employee at any time. It was not "realistic" for the Commission to make such a By-law given the scheme set out in s.58 for dismissal. She referred to Ridge v. Baldwin (1964) A.C. 40 at pp.64-66; Twist v. Randwick Municipal Council (1976-1977) 136 C.L.R. 106; Hamblin v. Duffy (No.2) (1981) 37 ALR 297; Utah Construction & Engineering Pty. Ltd. v. Patakv (1966) A.C. 629; Shanahan v. Scott (1956-1957) 96 C.L.R. 245; Carbines v. Powell (1925) 36 C.L.R. 88; Cory Lighterage Ltd. v. Transport and General Workers Union (1973) 2 All E.R. 558.

Applicant's counsel did not concede that the purported termination was by an officer with appropriate authority. This termination was by the act of Kenneth John Kime in his letter dated 9 March 1983 already quoted. She conceded that Kime was an "officer" within the meaning of s.33 of the Act and further that he was, in terms of the instrument of delegation received in evidence, an officer properly described by the expression "Section Head and above". However, she submitted that a delegation could be valid only if to a person named, and specifying the particular powers delegated. So, she said, the delegation would have had to include the name "Kenneth John Kime".

Counsel for the respondent submitted that there was nothing in s.33 which required the use of a name in an instrument of delegation otherwise correct in form and indicating clearly to whom there was a delegation.

He submitted that the respondent did not dispute that "in some sense" the applicant was entitled to the benefit of the principles of natural justice; though I gathered in argument he qualified this. The rules of natural justice did not in this case include the rights listed by applicant's counsel. He submitted there was no entitlement to a hearing or to make representations as to penalty in the circumstances here. An example of a case where a formal oral hearing was required was, he said, Finch v. Goldstein 36 ALR 287. An example where it was not required was In re H.K. (An Infant) (1967) 2 Q.B. 617. He referred to Furnell v. Whangarei High Schools Board (1973) A.C. 660; Davis v. Carew-Pole (1956) 1 W.L.R. 833; there was no dispute about the fact that the applicant had been late for work on the occasions referred to in the Exhibits and that she had given reasons which were noted on those documents and attached her signature thereto. Nor was it contested that warnings were given to the applicant, in particular, that she would have to improve her performance so far as lateness was concerned. He cited cases which emphasised that it was the circumstances of a particular situation to which one must pay attention in considering whether or not the decision-making body had acted fairly. He cited Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1964-1965) 113 C.L.R. 475; Ansell v. Wells 43 ALR 41. He submitted that it was not incumbent on the decision maker himself personally to give a hearing to the person to be affected by the decision. He referred to Local Government Board v. Arlidge (1915) A.C. 120; Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 A.C. 551 at p.568.

He submitted the applicant was a temporary employee, not an officer entitled to be dealt with only under s.58 of the Act; further, there was no inconsistency between that section and By-law 156. He contested the submission advanced on behalf of the applicant that the sole ground for dismissal was breach of duty of a kind listed in s.58(1) in respect of which the applicant should have been charged. He submitted there were other powers to dismiss for reasons other than breach of duty. By-law 156(2) provided a general power of dismissal for other than s.58 situations. It might be exercised for reasons that had nothing to do with breach of duty. In the case of a temporary employee, he said, there could be dismissal if there was no need any longer for her services. Section 58, he submitted, did not provide a code as to the means of dismissal. He referred to s.65(I) and to Division 8 s.66 and s.67 of the Act and to the powers and functions of the Commonwealth Conciliation and Arbitration Commission; that Commission had an overriding jurisdiction to determine terms and conditions of employment. He referred to Australian Telecommunications Commission Telephone and Phonogram Staff (Salaries and Specific Conditions of Employment) Award 1978 which he said incorporated certain provisions of Australian Telecommunications Commission Employees (General Conditions of Employment) Award 1975.

Clauses 3, so far as relevant, and 5 of the former Award read (cf the Act ss.67 and 69) -

"3. In this Award:

. . . .

"Temporary Employee" means a person so engaged under the Telecommunications Act 1975 as may be amended from time to time.

. . . .

5. (1) This Award shall be read in conjunction with the Telecommunications Act 1975 as may be amended from time to time, Regulations and By-laws made thereunder from time to time.

(2) Where the said Act, Regulations and By-laws are inconsistent with the provisions of this Award the latter shall prevail."

Clause 31 of the latter (1975) award under the heading

"TERMINATION OF ENGAGEMENT OF TEMPORARY EMPLOYEES" reads -

"When the employment of a temporary employee has extended over a period of not less than four weeks, the temporary employee shall be entitled to at least one week's notice of termination of engagement. When the notice is not given, payment shall be made for one week in lieu of the notice:

Provided that the services of a temporary employee may be terminated without notice at any time on the grounds of misconduct or unsatisfactory service."

He submitted these provisions indicated that s.58 did not provide a code and supported the validity of the applicant's dismissal; that whether one read the Award by itself or in conjunction with the By-laws there was a general power of dismissal in respect of a temporary employee on the giving of a week's notice or payment in lieu; or even without notice on the grounds of misconduct or unsatisfactory service. This was, he said, not a breach of duty case. If the source of the power were misdescribed as By-law 156 when it should have been Clause 31 the validity of exercise would not be affected. He submitted that though there were statutory provisions applying to the employment of a public servant there were others of a contractual nature; "terms and conditions" in s.111(1)(g) included those under which employment can be brought to an end. He referred to s.43 of the Act; the "terms" and conditions" referred to there would include those in s.58 and thus terms and conditions can be related to dismissal. He cited Gould v. Stuart (1896) A.C. 575 at p.577: Keeley v. State of Victoria (1964) V.R. 344. Authorities discussed in the latter suggested that unless otherwise provided ("curtailed by statute") the Crown has power to dismiss at its pleasure. He submitted that employment in the public service was essentially contractual though "overlaid" by specific statutory provisions; so the Act did not provide a code setting out all the terms and conditions of employment; that Division 6 dealt only with breach of duty cases; for all other kinds of dismissal one looked at the contract; the common law position remained intact. By-law 156 and Clause 31, at least for temporary employees, reproduce the common law position in express terms. Division 6, he said, anyway, would have to yield to the award. It had been recognized that into s.58 there had to be incorporated common law duties; Australian National University v. Burns 43 ALR 25; Australian Telecommunications Commission v. Hart 43 ALR 165 e.g. per Fox J. at p.170 supported the argument that s.58 did not provide a code. He distinguished Bennett v. Commonwealth (1980) 1 NSWLR 581. He referred to Australian Broadcasting Commission v. Industrial Court (S.A.) (1977-1978) 138 C.L.R. 399.

In argument, respondent's counsel submitted there was evidence to support the assertion in the letter of dismissal and that the continued unpunctuality constituted inability to perform her duties. He disavowed any intention to put forward a case based on misconduct except in so far as late attendance could be regarded as misconduct. Counsel further stated that, if the applicant made out her case, he would not ask that as a matter of discretion she be denied relief.

No good purpose would be served by restating the arguments of Counsel in their entirety. The instrument of delegation received in evidence was in my opinion sufficient to invest Kenneth John Kime with authority to dismiss a temporary employee without the use of his name. There is no reason to read s.33 as requiring the use of a name in the instrument to which the section refers. I proceed to consider the two applications G242 and G243 separately.

Consideration of the applicant's case will be assisted by adverting to the method of engagement of "officers" and "temporary employees".

Section 39 confers power on the Commission to appoint officers. A person is not to be so appointed unless he passes a medical test, possesses certain educational qualifications, and the Commission is satisfied he is a fit and proper person to be an officer. The appointment will ordinarily be on probation for a period of six months; after which the appointment may be confirmed terminated or a further period of probation directed. Subject to Part V officers and employees hold office on such respective terms and conditions as the Commission determines - s.43. Provision is made for the selection of an officer for promotion to a vacant position whereby consideration shall be given to the relative efficiency and seniority of those officers - s.47. The Commission may determine that a person shall not be appointed or an officer transferred or promoted to a specified position unless he or she possesses such qualifications and complies with conditions as are specified - s.48. Other provisions provide for transfers and promotions to certain positions - s.49, promotion of officers who complete courses of training (s.50), appeals against promotions (s.51) to a Promotions Appeal Board (s.53). An officer who has attained sixty years is entitled to retire but may continue until he attains the age of sixty five years (s.54). There is provision for retirement on grounds of inefficiency, incapacity etc. (s.56). Disciplinary action in respect of officers is provided for in s.58. By a combination of s.57 and s.58, there is provision for the charging of an officer with misconduct, an expression referring to a failure of the officer to fulfil his duty as an officer; and the ways in which he may so fail are set out in the paragraphs (a) to (g) in sub-section 1 of section 58. The provisions of that section provide an elaborate procedure for dealing with any such charge. Their operation might be said to equate to an application in respect of an officer so charged of the rules of natural justice. Later sections refer to suspension of officers (s.59), removal and variation of suspension (s.60), and what may happen when an officer has been convicted on a charge for an offence of the kind referred to in s.59(1)(a) (s.61). There is provision for appeal by an officer to a Disciplinary Appeal Board against an admonition, direction or decision made with respect to him under s.58; or against a decision made by the Commission with respect to him under sub-section (1) of s.61. There is further provision for forfeiture of office where an officer is absent from duty without permission for a certain period (s.65).

In contrast to this, the Commission is empowered to "engage persons as temporary employees" (s.42(1)). It will be noted there is no requirement for medical examination, educational qualification or that he or she is a "fit and proper person", or for a period of probation. The terms and conditions of employment referred to in s.43 earlier mentioned are, I suggest, extended by s.111(1)(g) referring to "terms and conditions of employment of officers and employees" and By-law 156 in the case of temporary employees.

Subject to the argument as to validity to which I refer later, it was pursuant to s.111(1)(g) that By-law 156 was passed providing for termination of service of the employee "at any time". There is no set of rules which provide or give reference comprehensively to all occasions when the principles of natural justice are to be applied; or how they are to be implemented. See e.g. Wiseman v. Borneman (1971) A.C. 297 per Lord Reid at p.308; per Lord Guest at p.310; Furnell v. Whangarei High Schools Board (supra), the majority judgment at p.679. The legislature may exclude or limit the rules; The Commissioner of Police v. Tanos (1957-1958) 98 C.L.R. 383 per Dixon C.J. and Webb J. at p.396; Twist v. Randwick Municipal Council (supra) per Barwick C.J. at p. 109-110. The Court "will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen" (per Barwick C. J. ibid, at p.110. Any such exclusion must be "unambiguously clear". There is no general obligation to give reasons for a decision - see McInnes v. Onslow-Fane (1978) 1 W.L.R. 1520 per Megarry V.-C. at p.1531. For present purposes I shall assume a termination of services relying on e.g. By-law 156 was within power; though I refer to this later. The legislature here, as is common, does not offer any explicit guidance as to whether the principles should be applied or, if so, what they required in the circumstances. In favour of their application are the "dismissal" cases where the person to be dismissed was entitled to a hearing. See e.g. Ridge v. Baldwin (supra) where Lord Reid at p.66 expressed as a general principle that ". . . . an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation." Later, at p.68 he referred to -

". . . . the general principle that a man is not to be dismissed for misconduct without being heard."

I note that Mr. Ridge had been in the constabulary until dismissal for a period of 33 years and had attained the rank of Chief Constable. In my opinion the presence in the total legislation of the elaborate provisions relating to an officer and the relatively short reference to "temporary employees" with the provision for termination of services in By-law 156 indicates that the legislature did not intend that there should be available to a temporary employee in the ordinary course of events any implementation of the principles of natural justice or a procedure as is set out in s.58. Clause 31, in my view, confirms this approach. The legislature, therefore, in my opinion, has evinced an intention to displace the rule, if there ever was one, that a temporary employee had the right to a hearing before her services were terminated. If, nevertheless, such a right can be inferred from the circumstances of a particular situation, the facts relating to the employment of the applicant do not give rise to any such inference here. She had been spoken to and counselled, and was constantly in touch with various superiors in relation to her late attendance and, it seems, some aspects of her conduct. The rejection of her application for permanent appointment, accompanied as it was with some adverse comment as to her attendance record, which had been under review for a period of three months, would have made it clear to any ordinary person that the tenure of her employment was anything but secure.

In my view, she was not entitled to any further notice by the respondent that her dismissal was imminent or to an opportunity to be heard in that regard.

The reasons set out in the letter of 9 March 1983 do not coincide with the statement of reasons in the letter dated 1 August 1983. I would add that there was ample evidence to support the assertions in the latter as to unpunctuality; I am not satisfied that the allegations in the letter of 9 March 1983 have been made out. But in the view I take of the legislation when the services of the applicant were being terminated it was not necessary to give reasons.

In the circumstances here By-law 156(3) has no application. The Commission terminated her services but did not dispense with the services of the applicant; nor by reason only that she had -

done or omitted an act or thing in respect of which a charge could be laid against her; or

on the ground that a Court had convicted her of a criminal offence; or

found without recording a conviction she had commited such an offence.

As to G243, I am satisfied By-law 156 was validly passed and within the power conferred by s.111(1)(g). Nor do I see any inconsistency in the relevant legislation which both facilitates termination of the services of a temporary employee whilst making more elaborate provisions before a similar action is effected for officers. If there was an inconsistency so that By-law 156 was invalid, Clause 31 gave a similar power.

The applications are dismissed with costs.