Weaver v Commonwealth of Australia

DECISION NO: 216/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - CONDUCT OF EMPLOYEE - PUBLIC SERVICE

Industrial Relations Act 1988 ss 170DC, 170DE(2), 170EA, Regulation 30B, Section 47.

Fischer -v- Commonwealth (unreported) Judgment Number 445/95
Nicolson -v- Heaven and Earth Gallery 126 ALR 223
Kelson -v- Forward (1996) 39 ALD 303 at 317

No. AI 1152 of 1995

SUSAN WEAVER -v- COMMONWEALTH OF AUSTRALIA

CORAM:     LINKENBAGH JR
PLACE:       CANBERRA
DATE:          1 MAY 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY

No. AI 1152 of 1995

BETWEEN:

SUSAN WEAVER
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
Respondent

CORAM:     LINKENBAGH JR
PLACE:       CANBERRA
DATE:          1 MAY 1996

REASONS FOR JUDGMENT

This is an Application pursuant to the provisions of Section 170EA of the Industrial Relations Act, 1988 in which the applicant seeks a remedy arising from the termination of her employment with the Commonwealth of Australia and, in particular, the Mint, which is located at Deakin in the Australian Capital Territory. The applicant was employed at the Mint between 15 June 1993 and 25 April 1995. Her employment was on two bases and I will come back to those bases later in these reasons.

The employment of the applicant was in the capacity of Corporate Marketing Manager at the level of Senior Officer Grade C in the Commonwealth Public Service structure. The Mint conducts various business activities and the area in which the applicant worked was in the marketing of products of the Mint which were not coinage or money, but involved the manufacture and sale of medals and medallions, special coins, replicas, collector's items of various kinds, tokens and plaques. These items were developed and sold to private and Government organisations and I think it is a fair summary to say that that was the business of the Mint and the applicant's duties were to do with the marketing of those products.

The position which she held must be seen in the context that she was a member of the Australian Public Service. Her initial appointment on 15 June 1993 was on a temporary contract for a period of 11 months. Before that period had expired the position in which the applicant was employed substantively became available and she applied for and was appointed to that position on 21 April 1994. From that date, her status changed from being a contractor under the terms of the pre-existing contract, to employment under the Public Service Act. Such employment, particularly at the Senior Officer level at which the applicant entered the Public Service, requires of officers a degree of personal integrity and standards of behaviour and performance which I think it is fair to describe as of a high level.

The applicant was appointed to Position Number 0569 by an Instrument of Appointment which is Annexure F to the affidavit of the applicant sworn on 9 August 1995. The position attracted a salary of $47,107 per annum with allowances of just over $2000 per annum and entitlement to participation in a performance pay scheme and some benefits by way of transport and removal costs. The appointment was an appointment subject to the probationary provisions contained in Section 47 of the Public Service Act, 1922.

There is a preliminary issue raised in these proceedings as to whether or not the applicant is excluded from bringing these proceedings because of the operation of Regulation 30B of the Industrial Relations Regulations.

Mr Thomas, for the applicant, argued that no person appointed on probation to whom the provisions of Section 47 apply can ever be caught by the provisions of Regulation 30B because Regulation 30B requires that persons serving a period of probation caught by the Regulation should be serving a period which is determined in advance as is reasonable. He argued that persons to whom Section 47 applies, by the nature of the operation of that Section, are in a category of employees on their own, as it were, and that it is never possible for such public servants to come within the operation of the Regulation.

Mr Tracey, for the respondent, argues to the contrary, that persons to whom Section 47 apply are persons who are serving a period of probation and that the wording of Section 47 allows for determination of the period of probation in advance and allows for consideration of the reasonableness or otherwise of the period. Mr Tracey relies on the decision of the Chief Justice Wilcox in Fischer -v- Commonwealth (unreported) Judgment Number 445/95, where the Chief Justice was considering an Application to the Court by a person to whom Section 47 applied, who was a base grade Clerk, and in respect of whom probation period had effectively lasted for some 16 months. His Honour determined that the period of probation in that particular case did not satisfy the reasonableness test and that therefore the Regulation did not apply so as to exclude Mr Fischer's right to make an Application to the Court. His Honour referred his own words in Nicolson -v- Heaven and Earth Gallery 126 ALR 223 and said, in effect, that whether or not a period of probation is reasonable depends upon the duties and the status of the particular employee. At the foot of page 10 of the judgment the Chief Justice says:

Section 47 applies to all Commonwealth public servants. Even if it were reasonable to keep some types of employees on probation for two years it would not follow this was reasonable in relation to all types of employees. Regulation 30B(1)(c) refers to a period that is "reasonable having regard to the nature and circumstances of the employment." That is of the particular appointment. Whatever the position concerning senior appointments, I do not think it is possible to justify a probation period of two years in relation to a base grade Administrative Service Officer, that is a clerk.

That decision of His Honour leaves open the question of the reasonableness of the period of probation to be determined by the Court dealing with a particular Application. His Honour's decision was the subject of an appeal to the Full Court of this Court, but the Full Court declined, for other reasons, to make any determination of the question of the relationship between persons employed under Section 47 and Regulation 30B. I am left therefore with the decision of the Chief Justice as the authority. His Honour's reasoning does not allow for me to agree with Mr Thomas' submission that persons employed under Section 47 are of necessity outside the Regulation.

In the particular circumstances of this case it is my view that, following the decision of the Chief Justice, the period of probation in this case was determined in advance because of the provisions of Section 47, which the Full Court in Fischer said, very clearly, cannot be read down by subordinate legislation. I find that the period of probation was reasonable given the status and duties of the applicant in relation to this particular appointment. My finding is therefore that the applicant is excluded from making this Application by reason of Regulation 30B.

I propose to deal with the substance of the claim because if I am wrong in relation to Regulation 30B, then I think that both the parties, but particularly the applicant, having been involved in a hearing in this Court which has lasted for three days and an Application which was filed on 16 May 1995, are entitled to have a determination and to hear my views as to the merits of the Application generally.

The facts in the matter are complex. The evidence has been complex and perhaps more detailed than it might have been. I propose to make findings of fact as follows:

The applicant was appointed on probation on 21 April 1994
The applicant's work performance and conduct up to July 1994 was satisfactory and on 6 July 1994 a three monthly Probation Report was issued which raised no questions as to the applicant's conduct and work performance
Sometime after July 1994 problems arose and I shall detail some of those difficulties and the applicant's role in them
From about July and certainly by September 1994, the applicant's relationship with one of the persons whom she supervised, Mr Ban, deteriorated markedly
Mr Ban was Administrative Service Officer Class 4 who, with Ms Merkel, also an Administrative Service Officer Class 4, worked to the applicant and was located with her in the one office
On or about 1 September 1994, an argument erupted between the applicant and Mr Ban which was disruptive to the point that Ms Merkel left the room and sought assistance from Mr Hawkins, who was the applicant's immediate supervisor
From that time the applicant's relationship with Mr Ban further deteriorated and the deterioration in that relationship resulted in Mr Ban’s being relocated to another work area
At around the same time, the relationship between the applicant and Mr Hawkins deteriorated and without canvassing in detail of the issues which have been raised in the evidence, I find that the evidence supports the conclusion that there were several issues in respect of which the applicant took a stance which brought her into conflict with Mr Hawkins
The applicant’s preferred method of resolving difficulties in the workplace was to engage in whatever course of conduct she deemed appropriate, designed to achieve an outcome which she had predetermined as being her preferred outcome
By November 1994, when it was time for Mr Hawkins to write a six monthly probationary report in respect of the applicant, Mr Hawkins who was charged with the task of preparing that report, felt obliged to report some areas in respect of which the applicant "needs to improve". Those areas were in relation to her relations with other officers and her general behaviour
Mr.Hawkins reported on other areas of performance as required by the form such as attendance, quality of work, work output, application, drive and energy, relations with clients and expression, as being "satisfactory". He noted in the report that the applicant had expressed concern regarding stress and other related health issues and that she had indicated that she would like to address those issues with Comcare. He also indicated that she had expressed concern regarding the level of supervisory support offered to her and that her immediate manager, who was in fact Mr Hawkins himself, had agreed to address that issue
That report appears to have been the catalyst for the events which culminated in the annulment of the probationary appointment of the applicant
The report was handed to the applicant and Mr Hawkins requested that she make an appointment to discuss it with him
The applicant did not make such an appointment but pursued a course of conduct the most significant factor of which was that she lodged a grievance with the Merit Protection and Review Agency against Mr Hawkins in relation to the report
The Agency accepted the grievance and the first step in the process of investigating the grievance was that a meeting was arranged between an officer of the Merit Protection and Review Agency, the applicant and Mr Hawkins
That meeting was terminated by the applicant and a report was subsequently prepared by the Agency which in essence did not uphold the grievance
In the meantime, there were other aspects of the applicant's performance in the workplace which were noteworthy.
In the last months of 1994 there was an ongoing issue in the workplace in relation to the relocation of the applicant's work area within the building. Without canvassing the detail of the evidence in relation to that, my finding is that that issue is an instance which illustrates the applicant's inability to conciliate and co-operate with her fellows in the workplace
The applicant was minded to remain at her existing work location and was not minded to move and she therefore made no effort to comply with directions or to attempt to work out a resolution of the issue about changing her work location
That was an issue which I find was created by her in the first instance
The applicant had numerous interviews and conversations with personnel at the Mint and at times she sought assistance and support from persons outside the Mint and in the Department of the Treasury
Her approaches to the personnel in Treasury were made without the knowledge or approval of her superiors at the Mint
She also, in her efforts to establish that her perception of Mr Hawkins was a correct perception, was involved in the raising of an allegation of impropriety on the part of Mr Hawkins before the Senate Estimates Committee
The applicant took leave on many occasions in the last part of 1994 and was substantially on leave for that part of 1995 during which she remained in the employment of the Mint
The administration of the Mint attempted in February 1995 to set in motion events which would facilitate the return of the applicant to the work force. Those attempts involved some discussions with Comcare
The applicant did not willingly and fully participate in engaging in the program which was designed to have her return to the work force
Although the applicant was not entitled to any sick leave in 1995 her employer arranged for her to be paid moneys pursuant to a Public Service Commission Determination which allows for payments in special circumstances, notwithstanding that there are no available leave entitlements
The report of the Merit Protection and Review Agency became available to the Controller of the Mint in early March 1995 and on 14 March 1995 that report was provided to the applicant
Thereafter there was an exchange of correspondence between the Controller and the Solicitor for the applicant which commenced with a letter from the Controller dated 21 March 1995. That letter details aspects of unsatisfactory management behaviour and refusal to work towards resolving difficulties with that behaviour and it informs the applicant in clear terms that the Controller was considering whether or not to terminate her probationary appointment
The letter further invites the applicant to provide any comments, should she wish to reply, by 4 April 1995. On that date the applicant responded with a letter from her Solicitor. That letter is noteworthy in that it informs the Controller that "I have initiated proceedings under the Administrative Decisions Judicial Review, Act contesting the MPRA report. That is the basis for the MPRA report and the evidence upon which it is based are rejected by my client and that report is now to be contested before the Federal Court." The Solicitor asks the Controller to defer any decision in relation to the probationary appointment for that reason
In fact no such Application was ever made, let alone had one been made before 4 April 1995. The Solicitor's letter of 4 April included some notes giving the applicant's view of the detail of incidents which had occurred and her perceptions of relationships in the workplace
The Controller responded to that letter with a letter of 5 April 1995 seeking clarification of the comments in the enclosure to the Solicitor's letter of 4 April and indicating that the Controller would defer making a decision until 11 April
On 7 April the applicant's Solicitor again wrote in these terms:

The Federal Court proceedings relating to the MPRA report relating to my client have been initiated by the request under the Administrative Decisions Judicial Review Act provisions for a detailed statement from the MPRA of the material, facts, comments, evidence and reasons relied upon in compiling that report.

And the letter says that:

Once that has been received, an Application will then be made to the Court.

The letter answers the request for clarification and indicates that it would be inappropriate, in the Solicitor's view, for any adverse determination to be made in respect of the probationary appointment
On 12 April the Controller again extended the time for the applicant to make further comment until the close of business on 18 April
On 18 April a further letter was received from the Solicitor by the Controller and it makes the statement, "while Federal Court proceedings are pending."
The Controller on 24 April 1995 signed an Instrument terminating the appointment and forwarded that Instrument to the applicant's Solicitors with a letter setting out a summary of reasons for the decision, other than reasons which might have otherwise been available from the report of the Agency

I have detailed that correspondence because of the submission by Mr Thomas for the applicant that the respondent is in breach of the provisions of Section 170DC of the Act. The evidence does not support a finding of any breach of Section 170DC.

I find that the applicant was given more than enough opportunity to respond not just in the context of responding to allegations, but of expressing her opinion over a large range of issues in the months prior to the termination of her employment. What is significant, in my view, is that in spite of the opportunities which the applicant had to express her point of view, none of her expressions of her point of view include suggestions that she was prepared to be conciliatory and co-operative and considerate of the views of others or the interests of others in her work place.

In relation to the credibility of witnesses, it is my general conclusion from my observation of the witnesses who have appeared before me, that I prefer the evidence of witnesses for the respondent to evidence of the applicant and her witnesses.

The witnesses for the respondent gave their evidence and were involved in the matters about which they were required to give evidence because they were persons in the same workplace as the applicant. With the exception of Mr Gillard, who is the applicant's husband there was no personal connection between the witnesses. Their common link was that they all worked together at the Mint. There were substantial and numerous variations between, for instance, versions of conversations and events given by Mr Hawkins and Ms Merkel, and the version of the same conversations and events given by the applicant. I do not propose to canvass those variations in detail.

My assessment of the applicant was that she was willing to deny matters put to her in cross-examination based on the evidence of, for instance, Mr Hawkins and Ms Merkel, and that where she did acknowledge the truth of the evidence of the respondent's witnesses, that acknowledgment was often in terms of a down playing of the impact of their evidence about her conduct or statements that had been made by her. Her denials of aspects of her own conduct in those areas which are covered by the doctor's report, which is an annexure to one of the applicant's affidavits, again said to some extent by what the doctor reports of statements made by her to him about aspects of the workplace.

Ms Merkel was the person who worked in closest physical proximity to the applicant. My observation of Ms Merkel was that she was an honest witness who, in her role as an Administrative Service Officer Class 4, worked closely with the applicant. She did everything that she could to give her evidence in a fair and even handed manner. The general significance of Ms Merkel's evidence was that it indicated that Ms Merkel, because of the manner in which the applicant behaved in the workplace, feared the applicant. Ms Merkel did not complain initially about the applicant's conduct that concerned her because she had observed the manner in which the applicant treated other people and she feared being subjected to what she described as "vindictive treatment" by the applicant.

Ms Merkel described her situation as "a no win situation". Her evidence on its own, in fact, indicates a gross incapacity in the applicant's ability to perform her duties as a supervisor in an adequate manner.

Mr Hawkins' demeanour in the witness box gave me no cause to consider that the applicant's description of Mr Hawkins' conduct in the workplace, which she variously described as "abusive" and as "harassment", was accurate. The words of Finn J in the matter of Kelson -v- Forward (1996) 39 ALD 303 at 317 are relevant in considering the applicant's perception of Mr Hawkins. In that case his Honour said this:

There is well know aphorism in United States tort law: it is not a tort for government to govern. Likewise, it is not workplace harassment for managers to manage.

And my finding on the evidence before me is that Mr Hawkins discharged his duty as a manager in a competent and professional manner.

But the difficulties which the applicant had with Mr Hawkins were difficulties which were perceived by the applicant and substantially created and exacerbated by her. In giving the reasons that she gave for the termination of the annulment of the probationary appointment, the Controller summarised her reasons. The evidence before me indicates that there were other matters relating to the applicant's conduct and work performance which are relevant in consideration of the issue of whether or not the termination of this employment was for a valid reason, and also in consideration of, if it were to arise, the issue of whether or not the termination was harsh, unjust or unreasonable.

The overwhelming weight of the evidence is that the probation report of 8 November triggered an irrational response in the applicant which set her on a path which ultimately led to the annulment of her probation. It must be remembered as well that the provisions of the Public Service Act, in particular Section 47, apply to this employment. The Controller had a discretion in relation to the fate of this probationary employment, as the Full Court says in its decision in Fischer, the provisions of Section 47 stand on their own and are not to be read down.

The right to annul the probationary appointment rested with the Controller and that is to be remembered in considering the question of whether or not a valid reason existed for termination of the employment, as it is in that context that the facts must be seen. The overwhelming evidence, as I said, is that there was a valid reason for the termination of this employment. The applicant wanted her probationary employment confirmed and when it was not confirmed she, as I have said, engaged in a course of conduct which ultimately led to its being terminated. Her conduct overall and the evidence before me indicates a failure in her to appreciate her obligations and duties as an Officer of the Commonwealth Public Service.

The applicant failed to accept and to judge herself against the appropriate standards of personal conduct which she should have exhibited in the workplace both in relation to those who were subordinate to her and those who were her superiors. The evidence indicates that there is a question mark over her personal integrity and indicates that she lacked the necessary quality to conciliate and co-operate which is a quality which is, in the opinion of this Court absolutely necessary in modern work environments. She also indicated an unwillingness to accept or understand Public Service procedures and directions.

I have not in these reasons referred to all of the issues in respect of which evidence has been given. I have not addressed, for instance, the allegations of the applicant gossipping about other members of staff, about making inappropriate remarks about Mr Ban, the detail of matters relating to her personal life and her health and other matters. Overall, the picture that the evidence presents of the applicant is of a woman who is undoubtedly talented in the performance of the duties for which she was engaged in this employment but who, regrettably, did not, in the context of this work place, exhibit the personal characteristics and qualities which were an essential part of the employment.

For all of those reasons I find that there was a valid reason for the termination of this employment. As I have said, there is no breach of Section 170DC and it is not necessary for me to consider the application of 170DE(2), and it is also not necessary for me to canvass the arguments which were put in relation to remedy.

In summary, my decision is that the applicant's Application is excluded under the provisions of Regulation 30B of the Industrial Relations Regulations and that if I am wrong in that, the substantial Application fails, there being a valid reason for the termination of the employment. Those are my reasons. The order that I make is that the Application is dismissed.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh.

Associate: Renee Cauchi

Date: 21 May 1996

Appearances:

Solicitor for the Applicant: Mr Richard Thomas

Counsel for the Respondent: R Tracey QC

Solicitor for the Respondent: Ms J Bonsey

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY

No. AI 1152 of 1995

BETWEEN:

SUSAN WEAVER
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
Respondent

CORAM:     LINKENBAGH JR
PLACE:       CANBERRA
DATE:          1 MAY 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The Application be dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

[1996] IRCA 216

01 May 1996