CATCHWORDS Administrative Law - Judicial Review of administrative decisions - public service promotions appeal on the ground of superior efficiency - failure of Committee to make full enquiries as the result of notice of a complaint by the applicant of sexual harassment against the Manager of her section - production of complaint by member of the public to applicant in the course of the hearing of the appeal without previous notice to her - whether a breach of the rules of natural justice. Public Service Act 1522, s.50. SUZANNE CLARKE v. ANDREW MACINTOSH AND OTHERS No. G163 of 1983 Coram: Sheppard J. 23 December 1983 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES REGISTRY No. G1i63 of 1983 GENERAL DIVISION BETWEEN SUZANNE CLARKE Applicant AND ANDREW MACINTOSH AND OTHERS Respondents ORDER JUDGE MAKING ORDER : Sheppard J. DATE OF ORDER 23 December 1983 WHERE MADE Sydney THE COURT ORDERS THAT: 1. The decision of the first, second and third respondents of 14 April 1983 dismissing the applicant's appeal against the provisional promotion of Lynette Mallory be quashed. 2. The applicant's appeal be dealt with according to law by a Promotions Appeal Committee constituted by persons other than the first, second and third respondents. 3. The applicant's costs of the application be paid by the fourth respondent, The Commonwealth of Australia. IN _THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES REGISTRY ) No. G163 of 1983 ) GENERAL DIVISION ) BETWEEN SUZANNE CLARKE Applicant ANDREW MACINTOSH AND OTHERS Respondents CORAM: SHEPPARD J. 23 December 1983 REASONS FOR JUDGMENT By her amended application in this matter the applicant seeks the review of the decision of the first three respondents who acted as a Promotions Appeal Committee pursuant to s.50 of the Public Service Act 1922. The decision was made on 14 April 1983. The applicant had appealed against the provisional promotion of a Miss Mallory (who is the fifth respondent but who has not appeared in the proceedings) to the position of Clerical Assistant, Grade 3 in the Enquiries Section of the Sydney office of the Australian Taxation Office. Miss Mallory had been provisionally promoted to the position by notification in the Gazette of 10 February 1983. The applicant lodged her appeal on 16 February 1983. On 3 March 1983 a letter was written to the applicant acknowledging receipt of her appeal and advising her of the procedures to be adopted by the Committee and her rights as an appellant. On 8 March 1983 the applicant had signed a statutory declaration detailing events which took place in late 1982 which she considered amounted to sexual harassment by the Manager of the Enquiries Section who was her superior. At or about the same time other statutory declarations were signed by employees in the Enquiries Section also alleging conduct on the part of the Manager which was said to amount to sexual harassment. In all, five statutory declarations were signed including that signed by the applicant. The conduct which was referred to in the statutory declarations occurred over a period commencing in May 1982 and ending about the time the declarations were signed. It is unnecessary to set out the details of the allegations. It is enough to say that an officer of the Federated Clerks Union despatched the declarations to the Personnel officer of the Australian Taxation Office by letter dated 9 March 1983. In the letter only two complaints are referred to, but it is clear that there were five. Asa result of the letter a departmental enquiry was held, the result of which is irrelevant for present purposes. The report issued by those who conducted the enquiry is not in evidence. It 1s to be observed that the complaint made by the applicant was made after she had lodged her appeal against Miss Mallory's promotion and before the hearing by the Promotions Appeal Committee on 14 April 1983. On 17 January 1983 the applicant had been counselled by two superiors, the Manager earlier referred to and a Miss Donaldson who 1s the Assistant Manager of the Enquiries Section. Although both the Manager and Miss Donaldson were present at the counselling session, it would appear that it was in fact conducted in the main by the Manager rather than Miss Donaldson. According to Miss Donaldson's evidence, which on this point I accept, the session could not accurately be described as a counselling session. Rather, it was a meeting at which the manager specified a number of alleged short-comings on the applicant's part; the applicant denied what was alleged against her and she was told that she would be taken off certain higher duties to which she had been appointed for a period of three months "until we saw how her performance had improved". The period of three months was current at the time the complaint was made and was about to expire when the Promotions Appeal Committee dealt with the matter on 14 April 1983. It remains to say that the applicant's complaint about the Manager, although made on 8 March 1983 after the counselling session, was in respect of conduct which had occurred late in 1982, that is, prior to the counselling session and each of the other events which I have described. Evidence of what transpired before the Promotions Appeal Committee was given by the applicant and by Mr. MacIntosh who was the chairman. Ne1ther of the other two members of the Committee was called. There is not substantial conflict between the applicant and Mr. MacIntosh as to what transpired. Mr. MacIntosh kept some notes of the proceedings which he used to refresh his memory. I accept by and large the account of the proceedings given by him in his affidavit and in his oral evidence. Mr. MacIntosh said that before interviewing the applicant there was general discussion by the Committee of the procedure to be followed. During this discussion Miss Osborn, who is the second respondent and was the Taxation Office representative on the Committee, said that the applicant had made a complaint of sexual harassment against one of her supervisors "and this may come up in the appeal." The applicant was interviewed by the Committee for a period of approximately forty Minutes. I do not find it necessary to refer to the entirety of the evidence of what transpired. There are only two matters of significance which need to be referred to. At one stage the applicant said "There have never been any complaints about my work". Miss Osborn said "Are you sure that there has been no complaint about you?" The applicant said "There has been no complaint". Miss Osborn then produced a letter containing a complaint from a member of the public about the applicant's behaviour and showed it to the applicant and the two other members of the Committee. The letter is in evidence. I do not refer to the detail of it but it is from a member of the public who made a formal complaint concerning the way he had been treated by the applicant when he made a telephone enquiry about when he might expect a notice of assessment. There appears to have been no other reference to the letter. Over the objection of counsel for the applicant, Mr. MacIntosh gave evidence that the letter had not weighed with the Committee when it made its decision. The other matter of significance was the mention by the applicant of the fact that she had made an official complaint about sexual harassment against one of her supervisors. Mr. MacIntosh said "Are you claiming that the people who wrote the departmentd@l statement on you were interviewed by the person against whom you have complained?" The applicant said, "Yes". After the Committee had interviewed the applicant, it interviewed Miss Mallory for about half an hour. It then interviewed Miss Donaldson who had been nominated by Miss Mallory as a referee During the course of the interview Mr. MacIntosh said to Miss Donaldson, "Were you the person who conducted the counselling of Miss Clarke referred to in the departmental report?" Miss Donaldson said that she was and that the counselling had taken place on 13 January 1983. It would appear, as earlier said, that the counselling session was on 17 January 19383 but nothing turns on this. Mr. MacIntosh asked Miss Donaldson whether she was aware of a complaint of sexual harassment made by the applicant. She said that she was. The interview then proceeded: 'Mr. MacIntosh, "Were you aware of the complaint of sexual harassment at the time of counselling?" Miss Donaldson,"No. Those allegations weren't made till4 March". Mr. MacIntosh, "So a period of about six or seven weeks elapsed before the counselling and your becoming aware of the allegations of sexual harassment?" Miss Donaldson,"Yes". Mr. MacIntosh, "Were you the person principally responsible for the comment on Miss Clarke in the departmental state- ment?" Miss Donaldson,"Yes. I supplied those comments". Mr. MacIntosh, "Did the complaint of sexual harassment have any bearing on your comments?" Miss Donaldson,"No". Mr. MacIntosh, "Did the supervisor who was the subject of the complaint have anything to do with the counselling or your comments?" Miss Donaldson,"No. He was not involved in any way."' The Committee then interviewed a Mrs. McVeigh, a referee nominated by the applicant. They did not raise with her the complaint of sexual harassment which had been made. Finally, the Committee recalled the applicant and gave her the opportunity of commenting on statements made by Miss Donaldson, not in relation to sexual harassment but in relation to certain criticisms she had made of the applicant's work. The applicant sought the reasons for the decision of the Promotions Appeal Committee to disallow her appeal. These were provided on 30 May 1983 and were as follows:- "In reaching its decision, the Committee considered relative efficiency and examined in detail the claims of both parties and had regard to the components of efficiency as defined 1n Section 50(4) of the Public Service Act. The Committee also consulted nominated referees. The Committee found that you satisfied' the selection criteria and that you would be able to perform the duties of the position in an efficient manner. However after careful consideration the Committee concluded that Miss Mallory was able to demonstrate superior proven performance under criterion 2. You were considered to be equal to the provisional promotee on the other criterla™ ° -10- The Committee carefully considered whether the allegations of sexual harassment made by you against a supervisor could have affected the Departmental assessment of your performance as you alleged at the appeal hearing. You will remember that you were recalled and given the opportunity to comment on additional remarks by referees who had been consulted by the Committee about your performance. It was pointed out to you at that time that one of the referees had indicated that the counselling on the matters alluded to in the Departmental statement had occurred some seven weeks before the allegations of sexual harassment were made and therefore the supervisor who counselled was not aware of the allegations. The Committee therefore concluded that the allegations were unlikely to have influenced the assessment. The Committee could find no other evidence of a connection between the allegations and the Departmental assessment. After completing its enquiries, the ' Committee considered that Miss Mallory more fully met the selection criteria than you did. The Committee therefore determined that you had not established the grounds of your appeal of equal efficiency combined with seniority and your appeal was disallowed." In her affidavit the applicant said that she had told the Committee that she thought the departmental statement would be biased because of what was happening in the Enquiries Section at that time. Mr. MacIntosh had said that the Committee knew about the complaint. -l1- She also said that she was told that the statement had been prepared by "a female supervisor". According to her she said that she thought the supervisor was Miss Donaldson and also that the counselling referred to in the departmental statement had anvolved both the Manager, against whom the complaint had been made and Miss Donaldson. This account varies slightly from that given by Mr. MacIntosh but not significantly. Nothing turns on such differences as there are. Subject to objection as to relevance, some evidence was given in reply. Upon reflection I do not regard the evidence as relevant and I do not further refer to it. The only other evidentiary matter to which I need refer is the Public Service Board Guidelines for Resolving Cases of Sexual Harassment. The Guidelines are not issued pursuant to any statute or statutory instrument, but, as their name implies, are for the guidance of members of the Public Service when complaints of sexual harassment are made. They were issued on 5 June 1981. Para. 17(d) of the Guidelines is as follows: -12- "Where an officer has made a formal appeal, such as an appeal against a provisional promotion, as well as a complaint of sexual harassment, it is desirable that those appeals be dealt with separately. If it is alleged that decisions taken in the provisional promotion had some bearing on the complaint of sexual harassment then the grievance relating to sexual harassment should be resolved before the PAC hearing takes place." Mr. MacIntosh, at the time of the hearing of the appeal, had recently been appointed Chairman of the Promotions Appeal Committee in New South Wales. He was not aware of para. 17(d) of the Guidelines. Promotions Appeal Committees act pursuant to s.50 of The Public Service Act 1922. It is unnecessary to refer to the detail of the section except to notice that sub-sec. (8A) provides that a Promotions Appeal Committee "shall make full enquiries into the claims" of the parties. §.50 has been the subject of consideration in a number of cases. These include Finch v. Goldstein (1981) 36 A.L.R. 287, Ansell v. Wells (1982) 43 A.L.R. 41 and Hurt v. Rossall (20 July 1983, unreported). These cases establish that a Promotions Appeal Committee is obliged to act fairly and is bound by the rules of -13- natural justice. Furthermore, it will not have discharged its duties if it does not make the full enquiries which are required by sub-sec. 50(8A). What is fair in a given situation and what will amount to full enquiries depend upon the circumstances of the particular case. In the submission of counsel for the applicant the Committee did not observe the rules of natural justice and failed to make the full enquiries which sub-sec. 50(8A) of the Public Service Act required it to make. The two principal matters relied upon were the inadequacy of the Committee's enquiries concerning matters connected with the complaint of sexual harassment made against the Manager and the manner in which the complaint made by a member of the public was brought to the applicant's attention. A reading of Mr. MacIntosh's evidence (the principal portions of which I have set out) as to the way the appeal was conducted disclosed that he thought he could overcome the problem which the evidence of the complaint posed by satisfying himself that the Manager had nothing to do with the counselling or the compiling of the departmental reports concerning -14- the applicant. One can see this from the nature of the questions asked by him. Furthermore, there was the additional factor that the applicant's complaint had not been lodged until 8 March 1983, some weeks after the counselling session. It is clear that he thought that was decisive against the complaint having any relevance. Mr. MacIntosh's approach has a superficial attraction. But there are difficulties about it. The first of these is found in the question he asked Miss Donaldson, "Did the supervisor who was the subject of the complaint have anything to do with the counselling or your comments?" and Miss Donaldson's emphatic reply, "No. He was not involved in any way;"" see p.8 supra. Insofar as the counselling was concerned the answer was plainly wrong. It 1s common ground that Miss Donaldson played little part in the counselling; the session was conducted by the Manager. In other evidence Mr. MacIntosh and Miss Donaldson endeavoured to say that her answer to this question was untended by her and taken by him to relate only to the -15- preparation of the reports and not to the counselling. That is probably what they both now believe. But Mr. MacIntosh's question was explicit. Miss Donaldson's answer was emphatic. She must have conveyed the impression to the Committee - there was no evidence from Miss Osborn or Miss Nichol - that the Manager had played no part in the counselling or the preparation of the reports. Why she should do this is not a matter upon which it is useful to speculate. But I am satisfied that in this way she misled the Committee. Of course, one would not set aside a committee's decision just because it was misled by evidence before 1t. Like any other tribunal it may be misled wittingly or unwittingly by evidence called before it. But the question arises as to whether the Committee's enquiries were adequate. Were they the full enquiries it was obliged to make? I do not think that they were. I cannot help feeling that Mr. MacIntosh was principally persuaded not to make further enquiries because the complaint was made well after the counselling session. He took the simple view that because the Manager knew nothing - 16- of the complaint at the time of the counselling, he could not have then been affected by it. But what Mr. MacIntosh and his Committee did not find out was that the complaint related to matters which had occurred late in 1982 before the counselling session took place. The applicant's case is that the Manager had attempted to impose upon her at that time. She had resisted his advances. That was something, which, according to her, there was between them when he counselled her in January 1983. All this could have been ascertained by the Committee if it had made proper enquiries. Without spelling these out, they could have been made by asking the applicant detailed questions about the matter, asking the Manager to attend for interview and requiring the production of the relevant documents. I wish to pause to make it clear that I do not express any view upon whether the applicant's complaints were justified or not. That is not something upon which it is relevant for me to express a view. In any event, evidence has not been led before me which would enable me to come to any conclusion about the matter; furthermore the Manager -17 - has not been represented in these proceedings. What is relevant is that the conduct alleged against the Manager had been committed, if it were committed at all, prior to the counselling session. That is something which cast a shadow over what then occurred. Another matter which it 1s pertinent to mention at this point, is 'para. 17(d) of the Public Service Guidelines earlier quoted. The second sentence of that paragraph contains, in my opinion, sound advice. It seems unlikely that Mr. MacIntosh would have acted as he did if he had been aware of it. But that is only by the way. The Guidelines have no legal force. The question remains whether, in all the circumstances, the Committee acted according to law or not. Upon the basis of what I have earlier said I am satisfied that it did not. Its enquiries as to a relevant matter were inadequate. An attempt was made by counsel for the respondents to overcome the consequences of such a finding. He submitted that the important matters relied upon by the - 18 - Committee were in the departmental reports and in the assessment which they themselves made of the applicant and Miss Mallory, aided by what they were told by Miss Donaldson and Mrs. McVeigh. I think there is force in that submission. But in the light of Miss Donaldson's misleading answer to Mr. MacIntosh's critical question concerning the part played by the Manager in the counselling. I am left with the conviction that the conduct of the proceedings was unsatisfactory. Because of Miss Donaldson's answer the Committee did not test her statement that she was alone responsible for the compilation of the departmental reports. Appropriate questions may have established that she was persuaded to write as she did wholly or partly because of views which she knew or thought were held by the Manager. In the circumstances she was not asked what influence the Manager's views expressed at the counselling session had had upon her. She may have formed her own view, wholly or partly and whether consciously or subconsciously, as a result of what was then said or said on other occasions. Human experience would -19 - suggest that it is most unlikely that the Manager's views would not have played some part in what she, as Assistant Manager of the section, said of the qualifications of the applicants for the position in question. What it comes down to is that the Committee failed to perceive the significance of the existence of the complaint about sexual harassment. Proper enquiries would have led it to give the matter much more detailed consideration than it did. It seems unlikely that it would have accepted without question the evidence of Miss Donaldson if it had been made clear to it that the counselling session was conducted by the Manager. Desirably, once the Committee had realised what was involved, it would have decided to follow the course provided for in the Guidelines and waited until after the enquiry into the complaints of sexual harassment had been completed. What I have said is enough to entitle the applicant to succeed. But I think she is also entitled to succeed on the second of her principal grounds. Really, she was given no opportunity of dealing with the allegation that a member of the - 20 - public had made a complaint against her. WNe1ther Mr. MacIntosh nor Miss Nichol knew of the existence of the complaint until Miss Osborn produced the letter. It would appear that, although the applicant had some previous knowledge of the existence of the complaint, this had come to her in an informal way. No official complaint about her conduct had ever previously been made to her. She was quite unprepared for the production of the letter. It may be, as Mr. MacIntosh said, that the Committee did not allow the existence of the letter to influence them in their deliberations. But it is all very well for him, with the benefit of hindsight, to say that that is the case. It may or May not have been. The Committee is not obliged to give reasons for its conclusion and no evidence has been led from Miss Osborn or Miss Nichol as to what effect the production of the letter had upon them. Presumably Miss Osborn thought it important; she would hardly have produced it otherwise. The Committee's conduct in relation to the letter constituted a denial of the natural justice to which the applicant was entitled. On this ground - 21 - also she is entitled to the relief she seeks. I propose to make orders of the kind which were made by the Full Court in Hurt v. Rossall (supra). Those orders are as follows:- (1) (2) (3) The decision of the first, second and third respondents of 14 April 1983 dismissing the applicant's appeal against the provisional promotion of Lynette Mallory be quashed. The applicant's appeal be dealt with according to law by a Promotions Appeal Committee constituted by persons other than the first respondents. The applicant's costs of the application be paid by the fourth respondent, The Commonwealth of Australia. i certy that this andthe 24 p-eceding pages are a liue copy of ~1.3 *2asons for judgment hereim of The Honcurable Mr Justice Sheppard. Ss), 4.0. Associate Dated 23 Pesem ben, (qs