Tutos v State of Victoria
[2018] VSC 23
•5 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2017 01357
| MARIUS LUCIAN TUTOS | Plaintiff |
| v | |
| THE STATE OF VICTORIA | First Defendant |
| THE MERIT PROTECTION BOARDS | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 October 2017 (and supplementary submissions filed on 13 and 27 November 2017) |
DATE OF JUDGMENT: | 5 February 2018 |
CASE MAY BE CITED AS: | Tutos v State of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 23 |
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ADMINISTRATIVE LAW – Judicial review of Merit Protection Boards decision confirming plaintiff’s annulment of probation – Whether Boards acted beyond jurisdiction in making a finding on the probationary clause in the employment contract – Whether Boards misconstrued probationary clause – Whether probationary clause was an anticipatory fetter on the future exercise of a discretionary statutory power – Probationary clause invalid – Whether Boards disclosed path of reasoning of findings – Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] 139 CLR 54 – O’Hara v State of Victoria (Department of Education and Training) (2004) 133 IR 118 – Education and Training Reform Act 2006 – Administrative Law Act1978 –Ministerial Order 199 – O 56 Supreme Court (General Civil Procedure ) Rules 2015.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the First Defendant | Ms S Gory | Victorian Government Solicitor’s Office |
| For the Second Defendant | No appearance |
HER HONOUR:
In December 2015, Mr Tutos accepted an offer of ongoing employment as a teacher. He was employed at Edenhope College (‘the college’), a Victorian government school in the Wimmera. Mr Tutos moved to Edenhope and commenced his teaching contract. Shortly before the expiry of the probationary period stated in his employment contract, which was approximately five months, the Principal of the college informed Mr Tutos that she was extending his probation by another six months. Mr Tutos says that his employment contract was not respected and that the extension was unlawful. He tried unsuccessfully to have the Merit Protections Boards (‘the Board’) review the Principal’s decision. Later, during the period of his extended probation, the Acting Principal of the college terminated Mr Tutos’ employment. Mr Tutos lodged a second grievance with the Board. It disallowed his grievance. Mr Tutos seeks judicial review of the Board’s decision.
The issues for determination in this proceeding are as follows.
1. Recruitment processes and procedures
In respect of the Board’s findings concerning compliance with recruitment processes and procedures: is there an error of law or jurisdictional error?
2. The contract of employment
In respect of the probationary period in the contract, did the Board:
(a) act beyond its jurisdiction in making a finding concerning it?
(b) if not, misconstrue the contract?
3. Probation guidelines
In respect of its findings concerning compliance with induction and probation guidelines:
(a) did the Board disclose its pathway of reasoning?
(b) were the findings open on the facts before the Board?
(c) were they so unreasonable that no reasonable person would have made them?
4. Annulment of probation
Was the decision to confirm the annulment of probation:
(a) beyond the Board’s jurisdiction?
(b) if not, open on the facts before it?
Background
Mr Tutos believes he was recruited to teach mathematics at the college based on the selection criteria.[1] The college required him to teach other subjects that he says he had not taught before. Mr Tutos also says that the college did not follow the Department’s guidelines on induction and probation. [2] The college acknowledges that it did not follow all those guidelines.[3]
[1]Affidavit of Marius Lucian Tutos sworn on 12 April 2017 [1] (‘The Tutos affidavit’).
[2]Ibid [7]–[8].
[3]Merit Protection Boards Determination dated 27 February 2017 being Exhibit ‘NJM-6’ to the Affidavit of Natasha Jo-Anne Maugueret [4.1.2.6] – [4.1.2.7].
Mr Tutos’ employment contract specifies the dates of his probationary period of employment. The period specified is approximately five months. The contract states that his employment will be confirmed or annulled at the end of that period. It was not. Instead, the college principal decided to extend Mr Tutos’ contract for a period of approximately six months.[4]
[4]Letter from Ms Robyn Hollis to Mr Tutos dated 13 July 2016, Court Book, 358-359.
Mr Tutos lodged a grievance with the Board.[5] He indicated to the Board that the grievance was that his contract had not been confirmed. After initially scheduling a hearing date, the Board did not proceed with the hearing. [6] It determined it did not have jurisdiction to hear Mr Tutos’ grievance based on its characterisation of the grievance as a dispute about extension of probation.[7]
[5]Merit Protection Boards Application for Grievance Review dated 26 July 2016, Court Book, 347-348.
[6]Letter from Ms June Weir to Ms Robyn Hollis dated 27 July 2016, Court Book 164, 345-346.
[7]Letter from Merit Protection Boards to Mr Tutos, undated, Court Book, 232 (the Court Book contains an incomplete copy of the letter).
In the meantime, Mr Tutos’ relationship with the college deteriorated further. In October 2016, the Acting Principal of the college informed Mr Tutos that he had decided to annul Mr Tutos’ probationary appointment with immediate effect.[8] This had the effect of terminating his employment.
[8]Letter from Mr Jon Neall to Mr Tutos dated 26 October 2016, Court Book, 129-130.
Following the termination of his employment, Mr Tutos lodged a second grievance with the Board. The Board made a decision, with reasons, on 27 February 2017 (‘the decision’).[9] It confirmed the Acting Principal’s decision to annul his probation. This proceeding is an application by Mr Tutos for judicial review of the decision.
[9]Exhibit ‘NJM-6’ to the Affidavit of Natasha Jo-Anne Maugueret, Court Book 1134-1145.
Originating motion
Mr Tutos’ amended originating motion filed 1 June 2017 contains the following grounds:
1.The Merit Protection Boards (MPB) did not intervene when abuses and breaches of law in regard to my employment contract and school management were signalled, previous to the date of 27 February 2017. As a direct consequence, my health deteriorated significantly.
2.MPB accepted the recruitment process initiated by Edenhope College, process that contravened the law and the principles of education.
3.MPB accepted the decision made by the school principal to extend my probationary period, decision that was unreasonable and did not follow the legislation in place, specifically regulating such a process.
4.MPB, influenced by employees with high responsibilities in the Department of Education (DE) stopped a formal investigation process, process initiated and formally started by the same MPB, before the intervention from the DE.
The relief sought in Mr Tutos’ originating motion is as follows:
Remedy Sought: Reinstated as Senior Mathematics Teacher – Ongoing position
Compensated for the traumatising period of time and health deterioration experienced as a direct consequence of the unlawful decision made by the Merit Protection Boards.
I challenge the decision made by the Merit Protection Boards on the date of 27 February 2017.
Identifying the real issues in dispute
Mr Tutos is self-represented. The Court has duties to self-represented litigants. The Court of Appeal summarised these in the following manner.
Essentially, the duty of the judge to provide adequate assistance to an unrepresented litigant is an aspect of the obligation of the judge to ensure that the trial is fair. For that purpose, the judge is required to provide advice and assistance to a litigant in person in order to diminish, so far as possible, the disadvantage that the litigant would ordinarily suffer when opposed to a trained lawyer on the other side, and in order to ensure that the unrepresented litigant does not become an unwitting victim of pitfalls that the adversarial system can present to those who are uneducated in the law. Accordingly, the judge is required to give to the unrepresented litigant sufficient advice on matters of practice and procedure to avoid that litigant from suffering such a disadvantage.
On the other hand, it is important that a judge, while providing assistance and advice to the unrepresented litigant does not become an advocate in that litigant’s cause. As this Court recently observed in Trkulja in determining the scope of assistance to be offered to a self-represented litigant, “the touchstones are fairness and balance”. The court further stated:
It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of the judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.[10]
[10]Redzepovic v Western Health [2016] VSCA 251 at [101]–[102] (Ferguson JA, Beale AJA, citing Trkulja v Markovic [2015] VSCA 298 [41]) (citations omitted).
A proceeding such as this, for judicial review, is not a forum for a rehearing of all matters before the original decision-maker. A judicial review in a matter such as this, is confined to a review of jurisdictional errors of law, breach of natural justice, and want/excess of power.[11]
[11]See, for instance, Craig v South Australia [1995] HCA 58.
A general submission made by the State in this proceeding is that Mr Tutos is effectively seeking a merits review of the decision, and that is not permissible. It submits that no error of law or jurisdictional error has been identified.
I adopt the following statement of principles concerning judicial review.
The common law jurisdiction of this Court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules. The jurisdiction is supervisory and does not entitle this Court to canvass matters that it would on an appeal. In a judicial review, the Court is concerned with the legality of what was done by the court or tribunal below, and is not concerned with the merits of the decision under review.
This is made clear in the decision of the High Court in Craig v South Australia, where the Court noted that:
(a)Certiorari was a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or tribunal. It merely enables the quashing of an impugned order or decision upon one or more of a number of distinct grounds, of which the most important are:
(i)jurisdictional error;
(ii)failure to observe some applicable requirement of procedural fairness;
(iii)fraud; and
(iv)error of law on the face of the record.
(b)Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it;
…
(d)It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made.[12]
[12]Kavitha Gurappaji v Senior Constable Kirby Tonkin [2015] VSC 177 [24]-[25] (per Derham AsJ).
It is not possible to give Mr Tutos the relief he is seeking, namely reinstatement and compensation, as an outcome of judicial review. Upon determining a judicial review proceeding, the Court may not substitute its own decision for that of the original decision-maker. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J stated:
The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.[13]
[13](1986) 162 CLR 24 at 40-1.
Mr Tutos filed voluminous material. Much of it is not relevant to a judicial review. I make no criticism of Mr Tutos for this. The difference between an appeal and a judicial review is not always easy for lawyers to understand, let alone self-represented litigants. Further, there is no avenue of appeal from a decision by the Board. He has done his best with the resources he has. It is, however, unnecessary to address all of his material in this judgment. Rather, I am required to focus on the real issues in dispute.
The overarching purpose of the Civil Procedure Act 2010 (‘the CPA’) is to facilitate the ‘just, efficient, timely and cost-effective resolution of the real issues in dispute’. The real issues in dispute in the proceeding must accordingly be identified. In making any orders or directions in a civil proceeding, the Court shall further this overarching purpose by having regarding to a number of objects including the just and timely determination of the proceeding, the efficient conduct of the business of the Court, efficient use of judicial and administrative resources, and dealing with the proceeding in a matter proportionate to the complexity or importance of the issues in dispute.[14] The Court may have regard to various matters including the extent to which parties have had the benefit of legal advice and representation.[15]
[14]Section 9(1), CPA.
[15]Section 9(2)(h), CPA.
Considering the nature of the proceeding, the originating motion and submissions by the parties, I identified the issues listed at the outset of this judgment, and gave the parties the opportunity to make submissions on each of them. Both parties did so.[16]
[16]Supplementary submissions of the State dated 13 November 2017; Supplementary submissions of Mr Tutos dated 27 November 2017 (‘Tutos Supplementary Submissions’).
There was one issue which Mr Tutos raised which is out of time. It relates to the decision of the Board not to review his first grievance. Mr Tutos did not make an application for extension of time or indicate that he wished to do so.[17] Accordingly, that decision is not properly the subject of this proceeding and is not further considered because it is out of time. That is, beyond the 60 day period prescribed for judicial review by r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).
[17]Transcript of proceedings, Marius Tutos v The State of Victoria & Anor (Supreme Court of Victoria, S CI 2017 01357, Ierodiaconou AsJ, 23 October 2017), 69-70, (‘Transcript of Proceedings’).
At the hearing Mr Tutos raised several matters that may be categorised as issues of merit. I will now refer to these briefly. They will not be further considered given they are issues concerning the merits of the decision and accordingly not appropriate for judicial review.
Mr Tutos submitted that the college and the Department of Education protected the interests of a small group of local teachers, giving them preferential treatment over new teachers.[18] He said that he contacted the federal and State Ministers of Education to intervene on his behalf and was advised to contact the state Acting Regional Director to investigate any allegations. He says he did so, however she did not respond to him.[19] Mr Tutos stated that he was a victim of a ‘denigration campaign’ commenced to ‘eliminate him from the college’.[20]
[18]Ibid.
[19]Transcript, 9.
[20]Ibid.
In relation to his first personal grievance complaint made to the board, Mr Tutos submitted that this investigation was terminated at the intervention of the Department of Education. Mr Tutos made detailed submissions about the background of this.
Lastly Mr Tutos made closing remarks in relation to the detrimental impacts of the board’s decision on his health.[21]
[21]Transcript, 78.
Turning now to the first issue.
The Contract of Employment
There is a contract of employment between Mr Tutos and the Department of Education and Training (‘the contract’) in the form of a letter of offer dated 17 December 2015 signed by Ms Robyn Hollis, Principal of the college, and an attached form titled ‘Ongoing Employment Offer’, which Mr Tutos has signed that he understood and accepted on 18 December 2015.[22]
[22]Court Book, 285 -286.
Relevantly, the contract states:
I am pleased to offer you ongoing employment in the Victorian Teaching Service under Part 2.4 of the Education and Training Reform Act 2006. The terms of the offer are set out below and in the attachment to this letter.
This offer is to be read in conjunction with the Education and Training Reform Act 2006, Public Administration Act 2004, and any other relevant legislation, regulations made from time to time under those acts, any ministerial orders, instructions and policies issued by the Department of Education and Training and any applicable Federal Award and/or agreement. You may access any of these documents on the Department’s Human Resource website…
…
There will be a period of probation from 26/01/2016 to 24/06/2016.
Your employment in the Teaching Service will be subject to the completion of a satisfactory probationary period. At the end of the probationary period your employment will either be confirmed or annulled.
…
The italicised clause above shall be referred to as ‘the probationary clause’.
For convenience, in this decision the following phrase in the contract above shall be abbreviated to ‘the instruments’: ‘the Education and Training Reform Act 2006, Public Administration Act 2004, and any other relevant legislation, regulations made from time to time under those acts, any ministerial orders, instructions and policies issued by the Department of Education and Training and any applicable Federal Award and/or agreement’. For clarity, that is not to say that everything in that phrase is an instrument, it is simply a useful abbreviation.
The Ongoing Employment Offer form included the following:
Employment:
Commencement date
26/01/2016
Probationary period From 26/01/2016 To 24/06/2016 Or
The following statement is contained in the decision under the heading ‘Breach of his employment contract’.
4.1.3.1Mr Tutos contended that in the Letter of Offer he received upon his appointment to the college, confirmation of employment or annulment of probation was mentioned but it was silent on the prospect of extending his probation. Consequently, Mr Tutos argues that the decision to extend his probation was unlawful and he should be confirmed as an ongoing employee.
4.1.3.2The Board noted that the Letter of Offer was explicit in advising that it was to be read in conjunction with legislation relevant to employment in the Teaching Service in Victoria and the relevant Ministerial Orders and Departmental policies. Departmental policy regarding probation is clear in informing prospective employees that extension of probation is a possible outcome at the end of a period of probation. In the view of the Board Mr Tutos’ contention is ill-founded.
[emphasis added]
Did the Board act beyond its jurisdiction in making a finding in respect of the probationary period?
The State acknowledges that the Board does not have jurisdiction to review a decision to extend probation. However, Mr Tutos’ contention before the Board was, in substance, a challenge to the decision to annul his probation. The State says that Mr Tutos argued that if his probation had not been extended that may be a reason why the annulment decision was unlawful, and thus the State contends that the Board had jurisdiction to deal with the extension of probation in that limited sense.
Mr Tutos’ contention was, and still is, that the extension of probation was unlawful. In order to review the decision as to the annulment of Mr Tutos’ probation, the Board needed to consider whether he was properly on probation. Therefore, in the context of considering the annulment decision, I do not consider that the Board acted beyond jurisdiction in making its finding in respect of the extension of the probationary period. Given my findings below, the Board will need to reconsider the issue of jurisdiction.
Did the Board misconstrue the contract in respect of the probationary period?
Mr Tutos submitted that the Board did not respect his contract. In particular, the contract had a set probationary period and stated that at the end of it, his employment would be confirmed or annulled. Mr Tutos submitted that the Ongoing Employment Offer form only provided for the dates for that probationary period. The boxed space (shown above) after the box providing the end of probation date and the word ‘Or’ was left blank. In other words, there was no date provided for an extension of probation.
Mr Tutos acknowledges that the contract is to be read ‘in conjunction with’ the instruments, but says that he was not provided with them all.
The State says that the contract is to be read in conjunction with the instruments. It says that the Education and Training Reform Act 2006 (‘ETRA’) specifically provides for probation in s 2.4.8. It provides that a person may be employed on probation in accordance with a Ministerial Order and that a person employed in the teaching service remains a probationer until his or her employment is confirmed or annulled in accordance with a Ministerial Order.
The State relies upon clause 9.6 of Ministerial Order 199 (‘the Ministerial Order’). It provides that unless otherwise determined by the Secretary, the employment of a person in an ongoing position in the teaching service shall be on probation for such a period as specified by the Secretary, not exceeding 12 months. Further, at the end of the probation period, the Secretary will confirm or annul employment, or extend probation for a further period not exceeding 12 months. The probationary period can only be extended once and at its expiry, the Secretary must confirm or annul employment. The Ministerial Order and ETRA both provide that power is delegated to the school principal.
Further, the State refers to the relevant enterprise agreement: the Victorian Government Schools Agreement 2013 (‘the enterprise agreement’). It contains a similar clause to the Ministerial Order that at the expiration of the probationary period, the employment will be confirmed or annulled, or probation extended for a period not exceeding 12 months. The State says that if there is any inconsistency between the Ministerial Order and any federal industrial award or agreement, then the latter shall prevail.
Unlike the principal and executive classes, the State says there is no provision in ETRA that the contract of employment prevails to the extent of any inconsistency with the Ministerial Order. The appointment of a teacher must not be on terms that fetter the future exercise of the discretion to extend the probationary period conferred by statute on the Crown. The authorities relied upon by the State are considered further below. The Secretary does not have power to enter into a contract that limits her discretion under the Ministerial Order to extend a teacher’s probation at the end of the probationary period.
The State submits that the contract is to be construed consistently with the terms of statute, any federal award or agreement and any Ministerial Order. If there is any inconsistency, a contractual term that purports to fetter the Secretary’s discretion is invalid.
In conclusion, the State says that the Secretary employed Mr Tutos pursuant to the Ministerial Order and that included the power to extend his probation for a further period. To the extent that any term of the contract sought to abrogate the Secretary’s discretion to extend that period, that term is invalid. It says the better view is that the power of the Secretary to extend the probationary period under the Ministerial Order and enterprise agreement was incorporated into Mr Tutos’ contract.
The State says the Board’s decision is correct. It held that the contract is to be read in conjunction with the instruments and they provide that extension of probation is one possible outcome of probation. There is accordingly no conflict between the contract and the instruments. The instruments are incorporated into the contract.
The State says that the words in the contract that at ‘the end of your probationary period your employment will either be confirmed or annulled’ should be construed as meaning that Mr Tutos’ probation will either be confirmed or annulled at the end of his probationary period, such period to include any further period of probation resulting from an extension of the period by the Secretary in accordance with clause 9.6(2)(c) of the Ministerial Order or clause 21(4)(d) of the enterprise agreement.
Consideration
I find that the probationary clause in the contract is invalid on the basis that it constitutes a fetter on the exercise of discretionary power. My reasons are as follows.
A number of instruments provide the Secretary (or their delegate) with the power to extend the probationary period beyond the initial probationary period.
The relevant enterprise agreement contains a term on probation and pursuant to s 2.4.2 of ETRA, it prevails. Clause 21(4) of the enterprise agreement states:
(a)The employment of a person on an ongoing basis is subject to a probationary period for such period not exceeding 12 months, or 6 months in respect of education support class employees, as the Employer determines whether generally or in any particular case or class of cases.
(b)A person employed on probation will remain a probationer until the employment is confirmed or annulled in accordance with this clause.
(c)The Employer may annul the employment of a person at any time while on probation.
(d)At the expiration of the period of probation the Employer will either:
(i)confirm the employment;
(ii)annul the employment; or
(iii)extend the probation for a further period (not exceeding 12 months or 6 months in respect of education support class employees).
(e)Where the Employer extends the probation for a further period the Employer may confirm or annul the employment at any time during the further period and if the employment has not been confirmed or annulled before the expiration of that period the Employer will as soon as practicable confirm or annul the employment.
…
Oddly, there is no reference to the enterprise agreement in the Board’s decision at all.
Clause 2.4.8 of the ETRA states:
1.A person may be employed in the Teaching Service on probation in accordance with a Ministerial Order.
2.A person employed in the Teaching Service on probation remains a probationer until his or her employment is confirmed or annulled in accordance with the Ministerial Order.
3.The Secretary may annul the employment of a person at any time while he or she is a probationer.
The Explanatory Memorandum to ETRA refers specifically to cl. 2.4.8 and states that the clause is amended to provide that the period of probation is to be determined by Ministerial Order, rather than specifying a 12 month period. Relevantly it states that cl 2.4.2 acknowledges that the teaching service provisions are subject to certified agreements and awards
Clause 9.6.1 and 9.6.2 of the Ministerial Order provide as follows:
9.6.1Except where the Secretary otherwise determines either generally or in a particular case, the employment of a person who is not an ongoing employee to an ongoing position in the Teaching Service will be on probation for such a period (not exceeding 12 months or 6 months in respect of an education support class employee) as the Secretary specifies whether generally or in any particular case or class of cases.
9.6.2At the expiration of the period of probation determined under clause 9.6.1, the Secretary will either:
(1)Confirm the employment of the probationer;
(2)Annul the employment of the probationer pursuant to s 2.4.8(3) of the Act; or
(3)Extend the probation for a further period (not exceeding 12 months or 6 months in respect of an education support class employee).
…
The Departmental policy referred to in clause 4.1.3.2 of the decision is not identified in that paragraph of the decision. However, in the list of “Legislation, Orders, Departmental Policies and matters considered by the Board’ and clause 1.2 of the decision, reference is made to the Department of Education and Training policy ‘DET: Human Resources – Probation Guidelines - Teaching Service’ (‘the probation guidelines’). The probation guidelines commence with the following words.
Clause 9.6.1 of Ministerial Order 199 provides that, unless otherwise approved by the delegate, the employment of a person who is not an ongoing employee to an ongoing position in the teaching service will be subject to a period of probation. A person remains a probationer until his or her employment is confirmed or annulled in accordance with these Guidelines.
….
In comparison with the principal and executive classes, there is no express provision in ETRA to make contracts with teachers. This is a similar structure to the Public Administration Act 2004, which is also applicable to Mr Tutos’ employment.
The lack of an express power does not impede the State’s ability to enter into contracts with teachers. Clause 5.2.3 of the Explanatory Memorandum to ETRA confirms the Minister’s powers to do anything that is ‘necessary or convenient to be done in or in connection with functions of the Minister’ under the Act. Further it reflects the common law giving the Minister powers to enter into contracts on behalf of the Government in connection with any subject matter which properly comes within the Minister’s portfolio. Clause 5.3.3 confirms the Secretary’s broad delegation powers. However, the contract must be consistent with any statute. The principle is stated by Brennan J in Director-General of Education v Suttling:
The relationship [between a civil servant of the Crown and the Crown] 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… the statute itself controls the terms of service…[23]
[23](1987) 162 CLR 427, 437-8 (Brennan J).
Importantly, public authorities cannot fetter their own exercise of discretionary power. This principle is enunciated by Mason J in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth:[24]
There is a general principle of law that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings…
…
Public confidence in government dealings and contracts would be greatly disturbed if all contracts which affect public welfare or fetter future executive action were held not to be binding on the government or on public authorities. And it would be detrimental to the public interest to deny to the government or a public authority power to enter a valid contract merely because the contract affects the public welfare. Yet on the other hand the public interest requires that neither the government nor a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute by binding itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future.
[24][1977] 139 CLR 54, 74 (‘Ansett’).
In this case, the party to the contract is the same person exercising the relevant discretionary power. The principal entered into the contract as a delegate of the Secretary. The principal was empowered to do so by s 5.3.3 of ETRA and cl 12.1.1 of the Ministerial Order.
The contract provides a start and end date for probation. The contract states that ‘At the end of the probationary period your employment will either be confirmed or annulled.’ The end date of the probationary period, together with the statement that, at the end of probation, employment will either be confirmed or annulled, paints a specific picture. That is, that, as Mr Tutos submits, at the end of his probationary period, the contract will be confirmed or annulled. There is no provision in the contract for extension of probation. This is inconsistent with the general power to extend probation. The contract is therefore a fetter upon the exercise of the discretionary power to extend probation. The consequence is that the probationary clause is invalid.[25] It may be described as void.[26]
[25]Ansett at [76].
[26]See: Seddon, N C, Bigwood R A and Ellinghaus M P, Cheshire and Fifoot Law of Contract (Lexis Nexis Butterworths Australia, 10th edition, 2012)[18.40].
I reject the State’s submission that the instruments are incorporated into the contract because the contract states it is to be read ‘in conjunction with’ the instruments. ‘In conjunction with’ must have its plain and ordinary meaning. That is, ‘together, jointly’.[27] The phrase ‘in conjunction with’ does not remedy the specific inconsistency problem between the contract and the instruments. It does not provide that, in the event of inconsistency, the instruments should override the contract. However, the Board’s decision is predicated upon the incorrect assumption that the contract should be read in that manner.[28]
[27]Lesley Brown (ed), The New Shorter Oxford English Dictionary (Oxford University Press, 1993).
[28]Clause 4.1.3.2 of the decision.
I pause here to observe that the State referred to a decision of the Australian Industrial Relations Commission, being O’Hara v State of Victoria (Department of Education and Training).[29] It relies upon that decision on the basis that the employment contract in O’Hara was read in conjunction with the relevant legislation.
[29](2004) 133 IR 118.
In O’Hara, a Full Bench of the Commission considered the question of whether an employment contract was a specified contract or not. It decided that it was not a specified contract on the basis that the relevant legislation provided a right to dismiss at any time, noting that a more limited reading of that legislation would mean that Ansett was applicable. In that case, in contradistinction to this one, Ansett was not applicable because the dates in the contract merely set the outer limit of employment. It did not have the consequence of trumping the statutory right to dismiss. The Commission held that a different interpretation of the contract would be contrary to law as an anticipatory fetter on the future exercise of a discretionary statutory power.
In comparison to the circumstances here, in O’Hara there was no inconsistency between the contract and the relevant legislation. In O’Hara, the Commission was able to read the contract consistently with the legislation. The contract in that case was silent on dismissal. Here, as discussed above, there is an inconsistency between the contract and the instruments which provide for extension of probation.
The Board erred in law in its decision in construing the probationary clause as a valid one that supported the extension of probation by reason of the clause that it be read ‘in conjunction with’ the instruments.
What is the consequence of the probationary clause in the contract being invalid?
If an error of law does not impact on a Tribunal’s ultimate decision then the Court may decline to quash the decision. In this case, I find that the error did impact on the ultimate decision for the following reasons.
The decision of the Board was predicated on the basis that Mr Tutos was properly on probation. The decision concluded, at 4.2.1:
The Board was entirely satisfied that the decision to annul Mr Tutos’ probationary appointment was compliant with the relevant clauses of the Education and Training Reform Act 2006 and Order 199. The decision was, in the view of the Board, compliant with the provisions of DET: Human Resources – Probation Teaching Service, the relevant policy in this matter. Further, the Board was entirely satisfied the decision could not be characterised in any way as unreasonable.
Given that the probationary clause in the contract is invalid, it is necessary to consider the submission of the State that Mr Tutos was on probation at the time his employment was annulled.
The State says that Mr Tutos was on probation at the time of the annulment of his employment because the principal had power to extend his probation, and even if she did not, ETRA provides that a teacher remains on probation until the employment is annulled or confirmed. The State says that the Board had jurisdiction to review the decision to annul his probation pursuant to clauses 9.6.6 and 5.1.1(4)(b)(iii) of the Ministerial Order.
However, there is a question as to whether or not Mr Tutos was ever a probationary employee given the probationary clause in the contract is void because it is invalid. That is, whether the period of probation can be implied by law or conduct.
Neither ETRA nor the enterprise agreement provide a minimum period of probation. Indeed, the enterprise agreement gives employers a discretion as to probation: ‘…as Employer determines whether generally or in any particular case…’.[30] This leaves it open to have no period of probation at all in some circumstances. Indeed, that is envisaged by the probation guidelines, which state the following.
[30]Clause 21(4)(a) of enterprise agreement.
On employment to an ongoing position in the teaching service a twelve month period of probation is required for employees in the principal and teacher classes… The delegate has the discretion to employ a person on a shorter probationary period or without a probationary period. The offer of employment is to specify whether or not a probationary period is to apply including the duration of the probationary period where one is required.
Circumstances where the delegate may consider it is appropriate to employ a person without the requirement to undertake a probationary period include, but are not limited to, the following:
· …
· Where it is considered desirable to offer ongoing employment in order to attract the person to the position
· …
(bold emphasis added) [31]
[31]Human Resources Probation Guidelines Teaching Service, Victoria State Government Education and Training, Last updated 9 May 2016, 2.
Given the absence of a mandatory probation period, a period of probation cannot be implied by law.
Following the invalidity of the contractual probationary clause, it is an open question, and not one for this Court to decide upon judicial review, whether a probationary period may be implied by conduct.
I do not agree with the State’s submission that there is no utility in remitting the matter back to the Board as it does not have a general jurisdiction to determine the terms and conditions of employment nor decisions concerning termination of employment. This assumes that the Board cannot have jurisdiction. It does have jurisdiction to review actions directly affecting an employee[32] (but not termination of permanent employment). Mr Tutos’ grievance extends beyond termination of employment. The decision as to whether the Board has jurisdiction is one that it must be given the opportunity to make in light of this decision and upon consideration of Mr Tutos’ grievance to it.
[32]Ministerial Order 199 Clause 5.1.1(4)(a).
Turning now to the next issue.
Probation Guidelines
The decision states, under the sub-heading ‘flawed application of probation procedures’, the following.
4.1.2.1Mr Tutos contended that the probationary process was flawed and that no steps as outlined in the Department’s guidelines were implemented until the decision to extend probation was made.
4.1.2.2The Board rejected this contention as noted above, no issues of significance concerning Mr Tutos arose until relatively close to the end of his initial probation period. The Board accepts that not all the formal steps contemplated in the probation guidelines were followed by the college. The Board does not find the lack of these formal steps to be a flaw. Mr Tutos was an experienced teacher and it was entirely reasonable that the college would expect him to be able to perform with a limited induction program.
4.1.2.3The Board noted that when issues with Mr Tutos’ conduct arose, the college appropriately followed the required guidelines.
4.1.2.4Further, Mr Tutos contended that the decision to extend his probation was not properly documented.
4.1.2.5The Board rejected this contention. The Board was provided with sufficient documentation in relation to the decision to firstly extend and then annul Mr Tutos’ probation.
4.1.2.6Mr Tutos raised the issue of the college requiring him to complete a performance and development plan in breach of the probation guidelines.
4.1.2.7The college acknowledged this as an error and the Board found that it had no impact on the annulment decision.
(bold emphasis added)
A Did the Board identify its pathway of reasoning?
Mr Tutos asks ‘on what basis’ the Board rejected his contention that the probation process was flawed.[33] He asks that the Board present the evidence to support its decision.[34]
[33]Mr Tutos submissions in reply filed on 1 September 2017, 18. (‘Tutos submissions in reply’).
[34]Ibid.
Mr Tutos says the college had to implement two distinct and formal processes working as supportive programs: probation guidelines and induction. He said the probationary period process was not followed in his case. There were no meetings, communication in any form, or any documents, to suggest the processes were being implemented. Mr Tutos says he was not given any induction at all. He also says that the process concerning the extension of probation was illegal and there was no supporting documentation. As a consequence, he was not on probation any more. He says that the new processes for probation were only implemented after the unlawful extension of his probation. Namely, to provide him with a professional development plan supported by documentation signed by him. He says that he was threatened and intimidated concerning these matters.
Mr Tutos says he was not given a proper induction, nor were the probation guidelines followed. He says those guidelines require regular and documented meetings between the principal and the new teacher. Mr Tutos says the word ‘ensure’ in the probation guidelines expresses the necessity to document the meetings between teacher and principal required under the probationary guidelines. Stage 1 indicates the principal needs to provide information in respect of the possibility of extension of the probation period. After the first meeting the teacher should be aware that the extension of probation is a possibility. The policy says the principal must ensure the employee understands ’in particular the duration of the probationary period’. Mr Tutos says that the principal did not follow the probation guidelines which means she did not respect the law which clearly stipulates that the principal is responsible to implement government policies (cl 11.2.2 of the Ministerial Order). There were no meetings or documentation at all. He submits that there was no documentation to support the extension of probation.
Mr Tutos disputes the finding by the Board that as an experienced teacher it was entirely reasonable that he could perform with a limited induction program. He was not given any induction at all. Experienced or not, the processes needed to be applied to him as a new teacher. Mr Tutos says that is what the probation guidelines require. He may have been an experienced teacher but he was new to the college and needed induction as to the specific requirements of the college. If he was so experienced that he did not need induction, he queries why was he placed on probation at all.
Mr Tutos says that the first document (required as part of the probation process) was only produced ten days before the end of his probation period. He was asked to sign four different versions of documents, which he says was unlawful given that the probation guidelines provide a person is not required to participate in the normal performance and development processes during that period, and that a successful probationary assessment meets the performance requirements. The probation guidelines provide the development requirements for that period of the performance and development cycle.
Mr Tutos refers to his contention before the Board that the college’s requirement for him to complete a performance and development plan was in breach of the probation guidelines. The Board refers to this contention and states that the college ‘acknowledged this as an error’ (cl 4.1.2.7 of the decision).
Mr Tutos says that it was only after the illegal extension of his probation that the principal initiated a new process to provide him with a professional development plan. He refers to being intimidated and harassed by the principal. Mr Tutos refers to the principal requiring him to attend a medical examination pursuant to clause 6.2.10 of the Ministerial Order. He says that is not a ground for dismissal or annulment of employment.
The State says this ground is not properly before the Court as it has not been raised by Mr Tutos. Rather, Mr Tutos’ submission is that the decision is wrong.
The State says that the Board is not under a duty to provide reasons. As to the duty imposed on administrative decision makers to provide reasons under s 8 of the Administrative Law Act1978 (‘the ALA’), it is not a condition on the exercise of the decision-making power. For that reason, it says the failure to provide adequate reasons is not an error of law amenable to prerogative relief. Rather the remedy is an order the decision-maker provide reasons.[35]
[35]The State relies on Sherlock v Lloyd (2010) 27 VR 434.
The State says that, at any rate, the reasons were adequate. It says the standard is lower than that for a judge giving reasons for a decision, and the reasons should not be examined too critically.[36] The reasons provided by the Board addressed all of Mr Tutos’ complaints and explained why the Board did not consider those complaints to be justified.
[36]The State relies on Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 [54]-[56]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 259, 272.
The State says that the Board considered the evidence put forward by Mr Tutos and rejected his contention that he was subject to a flawed application of the probationary and induction process. Further, the Board found that the problems with Mr Tutos’ conduct only arose towards the end of his probationary period and when they did, the college properly followed the relevant guidelines.
The State says that the Board accepted that not all formal processes were followed but noted that Mr Tutos was an experienced teacher and that it was entirely reasonable the college would expect him to perform with a limited induction program. The State says that it may be inferred that the Board was referring to Mr Tutos’ complaint that there had been no documentation and feedback as required by the probation guidelines and that the processes were only followed when a problem arose with his conduct.
It says the Board rejected Mr Tutos’ contention there was no appropriate documentation dealing with his probation.
The State says the Board accepted he had been required to undertake professional development contrary to the probation guidelines but found this had no impact on the annulment decision.
Consideration
I agree with the State that one of Mr Tutos’ submissions is that the decision is wrong. However, given that Mr Tutos is also querying the basis the Board made its decision, the ground is properly before the Court.
It is an established principle that at common law there is no duty upon an administrative decision maker to give reasons for a decision, unless it is required by statute.[37] The Board is a statutory body established under s 2.4.44 of ETRA. There are no provisions in ETRA requiring the board to provide reasons for their decisions.
[37]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, [662] (Gibbs CJ); [675] (Deane J).
Section 8 of the Administrative Law Act1978 (‘the ALA’) requires an administrative tribunal to give reasons for its decision. The ALA’s jurisdictional scope is limited to ‘decisions’ of ‘tribunals’. Section 2 of the ALA defines a tribunal as a ‘person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice’.[38] Clause 5.1.11(2) of the Ministerial Order states that the board’s ‘grievance resolution process must allow for principles of natural justice to be applied.’
[38]The above definition does not include a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.
‘Decision' is defined in section 2 of the ALA as a ‘decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision.’ The board’s decision confirmed the decision of the Acting Principal of the college to annul Mr Tutos’ probation. This effectively terminated Mr Tutos’ employment. Therefore section 8 of the Administrative Law Act 1978 is applicable.
Section 8(4) of the Act requires the reasons of a tribunal be sufficient to enable a Court to determine whether the decision involves any error of law.
I find that the Board did not disclose its pathway of reasoning in respect of the probation guidelines.
The decision indicates that the Board accepted Mr Tutos’ submissions that the probation guidelines had not been followed, that the requirement to complete a performance and development plan was in breach of the probation guidelines. However, it rejected other submissions made by Mr Tutos. It held that there was sufficient documentation and that (1) when issues as to Mr Tutos’ conduct arose, the required guidelines were followed, and (2) that there was sufficient documentation in relation to the decisions to extend and annul his probation. The Board does not disclose its pathway of reasoning in respect of the latter two findings. Those findings are merely conclusions. Pursuant to s 8(4) of the ALA, the Board was required to provide reasons that are sufficient so as to enable a Court to determine whether there was any error of law and it has not done so.
This ground is however affected by the finding above that the probationary clause in the contract was invalid. Accordingly, there is no utility in ordering the Board now provide adequate reasons for its decision in respect of the probation guidelines.
BWas the decision concerning the probation guidelines open on the facts before it?
Given the finding above, this ground is not considered.
CWas the decision concerning the probation guidelines so unreasonable that no reasonable person would have made it?
Given the finding above, this ground is not considered.
Annulment of employment
In respect of its findings concerning annulment, the decision states the following.
4.1.9The Board closely considered the individual issues raised by Mr Tutos as well as the totality of the circumstances that resulted in his probation being annulled. In his submissions, Mr Tutos made constant reference back to what he considered an illegal recruitment process, demonstrated a lack of understanding of the need for him to teach subjects other than mathematics, demonstrating a lack of understanding of the need for him to cater for the absence of students on a Wednesday and persisted with misguided views around his offer of employment and possible probation outcomes. The Board noted that the college raised concerns with Mr Tutos’ lack of insight and what appeared to be a total lack of capacity to respond appropriately to feedback.
4.2Conclusion
4.2.1The Board was entirely satisfied that the decision to annul Mr Tutos’ probationary appointment was compliant with the relevant clause of the Education and Training Reform Act 2006 and Order 199. The decision was, in the view of the Board compliant with the provisions of DET and: Human Resources – Probation Teaching Service, the relevant policy in this matter. Further, the Board was entirely satisfied the decision could not be characterised in any way as unreasonable.
Was the decision to confirm annulment of probation beyond the Board’s jurisdiction, or, if not, open on the facts before it?
Mr Tutos said that considering his probation was illegally extended, he was in a ‘twilight zone’ and should not have been considered still in a probationary period.[39]
[39]Tutos supplementary submissions [65].
The State submits that the decision to confirm annulment of Mr Tutos’ employment was within its jurisdiction. Clause 9.6.6 of the Ministerial order confers jurisdiction on the Board to consider Mr Tutos’ grievance about the annulment and to resolve that grievance. Clause 5.1.6 of the Ministerial Order gives the Board power to confirm the action under review.
Consideration
It is within the Board’s jurisdiction to review decisions concerning annulment of probation. Clause 5.1.1(4) of the Ministerial Order defines ‘personal grievance’ in a manner that includes annulment of the employment of a probationer pursuant to s 2.4.8(3) of ETRA. That section provides the Secretary ‘may annul the employment of a person at any time while he or she is a probationer’. Part 9, Division 6 of the Ministerial Order concerns probation. Clause 9.6.6 provides a person may lodge a grievance with the Board in relation to a decision to annul his or her [probationary] employment.
The Board does not have jurisdiction to review termination of the employment of permanent employees: see the definition of personal grievance in clause 5.1.1(4)(b)(iii) of Ministerial Order 199.
The decision was predicated on the finding that Mr Tutos was on probation at the time that his employment was annulled. As discussed above, the probationary clause of his contract is invalid and it is not for this Court to determine whether Mr Tutos was on probation. That is, whilst the period of probation cannot be implied by law, the question of whether or not it can be implied by conduct is a live one.
Given this, I do not need to consider whether the decision to confirm the annulment of Mr Tutos’ probationary period was open to the Board on the facts before it.
Recruitment processes and procedures
The decision states, under the sub-heading ‘unlawful and inappropriate recruitment process’, the following.
4.1.1.1Mr Tutos contended that the position he applied for at the college was as mathematics teacher. Requiring him to teach physics and electronics was unreasonable and “set him up for failure”.
4.1.1.2The Board was entirely satisfied that Mr Tutos has been the subject of a lawful and appropriate recruitment process. The position was advertised as mathematics and science. Further, Mr Tutos on his own testimony was an experienced and highly qualified teacher. The subjects other than mathematics he was asked to teach were, in the view of the Board, well within his skill set.
Is there an error of law or jurisdictional error in respect of the findings on recruitment processes and procedures?
Mr Tutos says that the recruitment process contravened the law. He says that the college did not follow the Department’s guidelines. Mr Tutos says the Board accepted the college’s unlawful recruitment process.
In essence, Mr Tutos says that the position to which he was ultimately appointed was a mathematics position not a general position. Mr Tutos said the position was incorrectly advertised as a mathematics and science position. He says every advertised position must present a very specific selection criteria (specific subjects to teach to secure the right teacher with experience and knowledge on specific subject/s) for the positon. He refers to clause 9.4.3 of the Ministerial Order. The two subjects ‘tagged’ were mathematics VCE and mathematics. When responding to the application, he needed to clarify his knowledge of the subjects.
Instead, Mr Tutos was asked to teach additional other subjects than mathematics and mathematics VCE. He was asked to do so during a probationary period. He says that at the end of the probationary period the future of a teacher’s career is decided - it is either confirming or annulling employment. Before that, the teacher is monitored and evaluated on performance as per the probationary guidelines policy. Mr Tutos says that rather than allocating ‘strange’ subjects to some teachers [on probation], there should be allocation to ongoing teachers, whose performance is not being checked. He says that the Board made the wrong decision when finding his recruitment process was properly done.
In response to the Court’s request for a submission on whether or not the Board disclosed its path of reasoning regarding recruitment processes and procedures, the State says that this ground is not properly before the Court as it has not been raised by Mr Tutos. Rather, he simply disagrees with the decision. The State also reiterates its submissions above that there is no obligation on the Board to give reasons.
The State says that the reasons that the Board has given in respect of its decision concerning the recruitment processes and procedures are more than adequate. It found there was no substance to his complaint. It was entirely satisfied that Mr Tutos was the subject of a lawful and appropriate recruitment process. It further observed the position had been advertised as a ‘mathematics and science’ position, that Mr Tutos was, on his own testimony, ‘an experienced and highly qualified teacher’, and that the subjects other than mathematics that he was required to teach were ‘well within his skill set’. To require more of the Board would involve an ‘overzealous’ review of their reasons and delve impermissibly into merits review.
Consideration
Having carefully reviewed Mr Tutos’ submissions, I agree with the State that the issue of whether or not the Board sufficiently disclosed its path of reasoning is not before the Court.
The issue that is before me is that Mr Tutos disagrees with the decision.
It is impermissible for the Court to stray into merits review in a judicial review proceeding. As discussed above, the Court has a limited role of review in such a proceeding. Disagreement with outcome is insufficient to establish an error of law or jurisdictional error. Mr Tutos has not established such an error in respect of the Board’s decision on recruitment processes and procedures.
Conclusion
Orders will be made quashing the decision and remitting the proceeding to the Board. It will need to consider whether it has jurisdiction and if so, make a decision according to law. I will hear the parties on the appropriate form of orders and on costs.
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