CATCUWOPRDS Administrative Law - judicial vreview - acolicatian 'for declaration - dismissal of a temnovrary emplayee in the Public Service - whether employee entitled in the circumstances to application of princinles of natural justice - whether denial of natural justice ~ applicability of s.58 of the Telecommunications Act 1975 - whether verson who mage decision ro dismiss employee should himself have afforded emoloyee hearing - whether authority to Gismiss properly delegated - whether Stafr By-law 156 was invalid on grounds of inconsistency and ultra vires. Administrative Decisions (Judicial Review) Act 1977 $8.5,i13. Federal Court of Australia Act 1976 5.21 Telecommunications Act 1975 383.33,39,42,43,47,48,49,50,51,53,54,56,57,58,65,66,67,69,111. D lecomunications Regulations, 35A Telecommunications (Staff) By-laws 8,152,156. Australian Telecommunications Commission Telephone and Phonogram Staff (Salaries and Svecific Conditions of Employment) Award 1978 Clauses 3,5 Australiar Telecormuricattions Commzssion Employees (General Conditions of Employment) Award 1975. Cl. 31. CHRISTINE TRIGGER v. THE AUSTRALTAN TELECOMMUNICATIONS COMMISSION No. G242 of 1983 No. G243 of 1983 Sydney McGregor J. 30 March 1984, TN THE FEDERAL COURT OF AUSTRALIA No. ¢ Ne, SYONEY DISTRICT REGISTRY i NN aes Wit 1, Hh ae atu uw Ls is & ~- een GENERAL DIVISION BETWEEN : CHRISTINE TRIGGER Applicant AND: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSTON Resvondent ORDER JUDGE MAKING ORDER: MCGREGOR J, DATE OF ORDER: 30 March 1984 WHERE MADE: SYDNEY THE ORDERS I MAKE ARE 1. The apolications are dismissed. 2. The applicant is to pay the respondent's costs. aad eta sm mere eeeene) WemncineeninineneeY Dai 7 ae ee nn - IN TRE FEDFRAL COURT OF AUSTPALTA SYDNEY DISTRICT REGIST es] ¥ No. G242 of 19A? No. G243 of 1983 GENERAL DIVISION BETWEEN : Applicant AND: THE AUSTPALTAN TELECOMMUNECATTONS COMMISSTON Respondent REASONS FOR JUDGMENT Coram: McGregor J. Date : 30 March 1984 CHRISTINE TRIGGER (applicant) has made apeolication (G242) for an order of review pursuant to the vorovisions of the Administrative Decisions (Judicial Review) Act 1977 (Judicral Review Act) and (G243) for certain declarations pursuant to s.cl of the Federal Court of Australia Act 1976 in relation toa decision conveyed by letter dated 9 March 1983 over the hand of Kenneth John Kime, then Acting District Telecommunications Manager in the Chatswood branch to the apvlicant. that her employment by THE AUSTPAL TAN TELECOMMUNTCATIONS COMMTSSTON (respondent) was terminated. Tea1slation ceferred to auncludes 5.21 of the Federal Australia Act 1976 which reads - (1) The Court may, in relation to a matter in which 1 has original jurisdiction, make binding declarations of right, whether or not any consequential relief 1s or could be claimed. (2) A suit 1s not open to objection on the ground that a declaratory order only 2s6 sought." Sections of the Telecommnunications Act 1975 (the Act) the extent referred to include - ore rere tenn er ee "33.(1) The Commission may, by instrument under its seal, delegate to a Commissioner, to the Chief General Manager or to an officer or employee, either generally or otherwise as provided by the instrument of delegation, all or any of its powers under this Act (except this power of delegation). (2) ... 43(1) Subject to this Part, officers and employees hold office on such respective terms and conditions as the Commission determines. 57(2) In this Division, 2 reference to midsconduct, in relation to an officer, is a reference to a failure of the officer to fulfil his duty as an officer." 58(1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if - (a) he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction; (b) he is inefficient or incompetent by reason of causes within his own control; (c) he is negligent or careless in the discharge of his duties; (ad) he as guilty of improper conduct as an officer: to ~ it) oy is gulrlty of improper cenduct otherw s an officer. being cenduct that afr ely the verformarce of his duties, 2 ial to the interests of the Comrmission damaging to the business of the Commission; (f) he contravenes or fails to comply with a provision of this Act, cf the Regulations or of the By-laws, that is applicable to him or with the terms and conditions upon which he is employed; or (g) he has, whether before or after becoming an officer, wilfully supplied to the Commission, to an officer or to some other persen acting on behalf of the Commission incorrect or misleading information in connexion with his appointment to the Service. (2) If a supervisor of an officer has, at any time, reason to believe that the officer may have failed to fulfil his duty as an officer. the supervisor may require the officer to furnish to the supervisor, in writing, an explanation of the matters alleged to constitute the failure and mav, after consideration of any explanation furnished by the officer, if he is of the opinion that the officer has failed to fulfil his duty as an officer - (a) counsel the officer: or (b) furnish a report concerning the matters together with any explanation furnished to him in relation to those matters to an officer authorized for the purposes of sub-section(3). (3) Where an officer authorized by the Commission for the purposes of this sub-section is of the opinion. whether by reason of his consideration of a report furnished under sub-section (2) or otherwise, that an officer may have failed to fulfil his duty as an officer the authorized officer shall. as soon as practicable, decide whether he should be charged and - (a\'" if he decides that the officer should not he charged - may counsel the officer or cause a supervisor of the officer to counsel the officer: or (b) if he decides that the officer should he charged - by writing under his hand delivered eeaeistaenendahenethdan dnedaenminnienmdamentenndiaee an eabaienersasnn a aamemaememiealimedaatial ee eee re ee ee a he officer, charge the officer wi-h the D i ct % Oo i a cS ooD (4) Where an officer charged under sub-section (3) so requests, a2 copy of the charge shail he furnished to the organization to which the officer belongs. (5) Where an officer 1s charged with misconduct, an officer authorized by the Cemmission for the purvoses of this sub-section, not being either the supervisor of the officer charged or an officer authorized for the purposes of sub-section (3), shall. without undue delay, hold an inquiry into the charge. . (6) In anainquiry for the purposes of sub-section (5), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and qiven the opportunity to state, in writing, within 7 davs or such longer period as the officer holding the inquiry may allow after that notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters. (7) Where an officer has furnished a statement in relation tc the matters alleged to constitute misconduct. the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer. (B) An officer charged with misconduct shall not be taken, by reason only of having failed to deny the truth of a matter alleged to constitute the misconduct, to have admitted the truth or that matter. (9) Where the officer who held an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer or cause a supervisor of the "sefflicer to counsel him, or, if he is of the opinion that other action is necessary - fa) admonish the officer: (b) direct that a sum not exceeding $40 be deducted from the salary of the officer; a yy within that rarce 12 months: or be ceduced to a lower sa for a period not exceedin (c) if the officer oaccuoles a sosition to which a yange of salary 1s applicable and is in veceiot of a salary other then the minimum salary of that canae - direct that his salary a os (d) vecommend to the Commission, in writing - (i) that the Commission transfer tne officer to another position, whether at the same or a different locality, being a position for which he is qualified and which has the same classification as the position held by the officer. and the salary, within the salarv range of the position. that should be paid to the officer: (il) that the Commission transfer the officer to another position, whether at the same or a different locality, being a position for which he 15 qualified and which has a lower classification than the position held by the officer, and the salary, within the salary range of the position, that should be paid to the officer; or (iii) that the Commission dismiss the officer from the Service. (10) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, he shall furnish to the Commission, with his recommendation, full particulars of his findings 1n relation to the facts giving rise to the misconduct. (11) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer. the Commission may, after consideration of the particulars furnished under sub-section (10) counsel the officer, or, 1f 1t considers that other action is necessary - (a) admonish the officer; (b) decide - (i) to give effect to the recommendation: or (ii) to take any other actzon that could have been recommended urder that paragratrh; or (c) give a direction referred to in ovaragragh } 69. An award made under this Division shall. for the purpases of the Conciliation and Arbitration Act 1904-1974, be deemed to have been made under that Act." L1i1l.¢1) The Commission may make By-laws, not inconsistent with this Act and the requiations, prescribing all matters which are required or permitted to be prescribed by the By-laws, and making provision for, or with respect to - (g) the terms and conditions of employment of officers and employees; and t eee Regulation 35A of the Telecommunications Regulations Regulations) reads - "Division 6 of Part V of the Act applies ro and in relation to an emplovee who - (a) has been un continuous employ of the Commission for a period of not less than one year; or (b) has been engaged by the Commission to serve for a period of not less than one year. subject to the following modifications and adaptions of the orovisions of that Division: (c) subject to the succeeding paragraphs of this regulation, a reference in that Division to an officer (ather than a reference, however expressed, to an officer acting on behalf of the Commission. to an officer authorized for the purposes of sub-section 58(3) of the Act, to an officer authorized for the ourposes of sub-section 58(5) of the Act or to an officer yeferred to in paragraph 63(2)(b) of the Act) shall be read as a reference to an employee: (ad) the words"appointment to the Service" in paragraph 58(1)(q) of the Act shall be read as {the a (e) (f) (g) (h) eee ee oS cae meena teninmeinnes eee ee eee = ee if the words "engagement as an emplovee" were substituted: the words "his fellow officers" in sub-section 59(1) of the Act shall be read as if the words "of officers and his fellow employees" were substituted: the words "appoint the person as an officer, without probation, to f111" in sub-section 61(3) and sub-paragraph 62(7)(b)(i) of the Act shall be read as if the words "engage the person as an employee to perform the duties of" were substituted; a reference in that Division, however expressed, to the transfer of an officer toa position shall be read as a reference toa direction to an employee to perform the auties of that position; the words "reappoint the person as an officer and appoint him to" aun sub-section 64(6) of the Act shall be read as if the words "re-engage the person as an employee and direct him to perform the duties of" were substituted." Telecommunications (Staff) By-laws have been ref "Breach of by-laws re attendance and unauthorized absence. 8. An officer or employee ~ (e) who 1s frequently late in attending for duty; commits a breach of these By-laws." rred By-law 152 - "Granting of leave. An employee may be granted leave of absence for recreation, or on account of illness. on such terms and conditions as are determined bv the Commission," By-law 156 - "Termination of service. (1) Where an employee absents himself from duty without permission and is so absent for a continuous veriod of not less than 2 weeks, he shall be deemed to have resigned from his employment with the Commission at the expiration of that period of 2 weeks. (2) Subject to sub-clause (3), the Commission may terminate the services of an employee at any time. (3) Where, under the requlations, Division 6 of Part V of the Act applies to and in relation to an employee, the Commission shall not dispense with his services under sub-clause (2) by reason only of the fact that he has done, or omitted to do, an act or thing in respect of which a charge could be laia against him or on the ground that a court has convicted him of a criminal offence within the meaning of that Division or found, without recording a conviction, that he has committed such an offence." The facts which are not in dispute include that on 23 June 1980 the applicant commenced employment with the resvondent as a temporary employee. On 23 April 1982 she applied for permanent appointment with the resnendent. But she was regularly arriving late for work. On occasions during her employment when the applicant was late a document called "Late attendance veportr" was completed. The applicant gave a reason for her lateness in the part headed "Explanation" and signed the document. On other occasions when arriving late she applied for leave. An Application for Leave farm which she also siqned was filled out. Again she provided 2 reason for the leave though this may have been only in respect of the period for which she was late, e.g. perhaps 40 minutes. Thus there is in all these documents a detailed record of the explanation advanced by the apvlicant herself for her conduct. Throughout her employment there were some 90 occasions recorded of late attendance. in respect of some of which, as I have said, she applied for leave. She had not given prior notice of any intention to apply for leave. On each occasion when the documents were filled in the applicant would have to "approach a supervising officer. A consideration of the period over which her unpunctuality persisted, many of the excuses made and that 1t continued despite expression of dissatisfaction, would not encourage helief thac the apolicant took her position seriously. She was notified on 7 June 1982 that that her permanent appointment would be deferred for a-period of three months whereupon her attendance record would be reviewed. Prior to November 1982 her lateness had been discussed with her on at least 12 separate occasions: the officers on those occasions made it plain they were dissatisfied with her. On 3 November 1982 she was notified that that period having expired, a review of her attendance record did not vrovide any evidence to indicate that she had attempted to display any improvement in that regard. She was further advised that her permanency would not be recommended until the yrequirea ~ improvement was evidenced. Moreover, fa1rlure to show improvement 10. could result in "severe dGisciol2rary action". Her habit of unounctuality continued. Following the communication of 3 November 1982, to which I have already referrea, the apolicant was late for work on some nineteen occasions. On 1 March 1982 a memo was sent to her advising that her late arrivals constituted a breach of By-law 8(e). Following a further five late attendances, a letter was sent to her on 29 April 1982 stating - "You are again warned that any further breach of By Law (8)(¢) or any of the Acts, Regulations cr By Laws of the Australian Telecommunications Commission will result in disciplinary action being taken against you." The next communications were by letters dated 7 June 1982 and 3 November 1982 to which I have referred earlier. On il November 1982 she was "counselled" (see s.58(2)(a)) vegarding her "unsatisfactory conduct" and late attendances between 9.11.82 and 11.11.82. A memo or letter was given to her on the last date and signed by her as acknowledging (she says) that the matters set out were discussed. It was said in the letter that the following points were covered - "L. Failed to advise supervisory staff of. vour intended lateness although you were on the premises at the time you were due to commence —~~—~- duty. bu Had a number or articles of clothing, including underwear on ledge and wash basin in the Wash Room on 9.11.82, obstructing other staff from using these facilities. ll. a2 snappish tone when queried ness and clothing. las sw DO a ma ce) cr pe) rs ur) DH ie] garding 4. Continually leave a trolley in the Rest Roam: the bars of this protrude and could resuit in an accident. You have undertaken to improve in these areas and make other necessary adjustments sta) meet requirements." On 18 January 1983, Sheila Chaney, Personne! Officer, spoke to the applicant to ascertain if she would be interested in speaking to the social worker regarding her personal problems. She assented. In the conversation which is set out in a document headed "Record of Interview - C. Triager" tendered in evidence, there is attributed to the applicant amention of certain occasions and events. I do not set these out in detail. The letter of 9 March 1983 to the applicant signed by Mr. Kenneth Kime stated - "Since June 1980 you have been emvloyed as a Telephonist with Telecom Australia. During your period of service you have shown you are unable to perform the duties of your position satisfactorily. Despite counselling from your Supervisor, the Personnel Officer, and the Telecom Welfare Officer you have failed to achieve the minimum standard required. After extended and sympathetic consideration it is concluded that for reasons beyond your control vou are unable to perform the duties of your position. Therefore I regret thar acting under the authority vested in me by Staff By-Law 156 I have no alternative but to terminate your services with the Australian Telecommunications Commission as from close of business on 9 March 1983. Any cutstanding monies including one week's pay in lieu of notice will be forwarded to your home address as soon as possible." Re een ene mer Meme ae ee ee et me eee oe sree In her affidavit dated 12 August 1983, in sunnort of application G242, the applicant stated - "4a, Although I had previously had some interviews with personnel officers and had been asked to explain certain lateness and absences, I was given no prior advice that termination of ny employment was being considered. I was never told the specific grounds on which my employment was terminated. T was never given an opportunity to explazn any behaviour of mine which may have led to the termination of my employment. I have never been told what are the "reasons beyond my control" upon which it was concluded that I am unable to perform the duties of my position. 5. I say that Iam able to perform the duties of my position. ~ I say that I wish to have the opportunity to hear the allegations against me and to call evidence and/or explain any conduct of mine which is considered to be unsatisfactory." For this hearing she also provided evidence of a report prepared by a ovosychiatrist and an appraisal of her by a psychologist. A request pursuant to s.13 of the Judicial Review Act for a statement of reasons was answered by a letter dated 1 August 1983 which included the following paragraphs - "During her period of employment with Telecom Australia as a Telephonist at the Chatswood Service Assistance Centre her unsatisfactory attendance record and her behaviour adversely affected the efficiency of this service. She was counselled reaqarding such matters as wearing clown's clothes and make up at work; doing dargerous "exercises" whilst sitting at the switch-board; hiding under tables, and washing personal items of clothing in hand-basins in the Rest-Room. After extended symnathetic corsideration it was concluded that she was not suLltable empLlovment in Telecom and a t cordingiyv her employment was terminated under Staff B mn ie In submissions on behalf of the applicant, her Counsel relied on s.5(1)(a) of the Judiczral Review Act that a breach of the rules of matural justice occurred in connection with the making of the decision to terminate the employment. She submitted that the applicant was entitled to the benefit of those rules when consideration was being given to the said termination. Those rules included a right to be notified of specific allegations against her and the nature of the material relied upon, a right to a hearing in the sense of an opportunity of rebutting evidence against her and furnishing material on her own behalf, and to adequate notice of the time and place where it would occur: and, further, if the occasion arose, a right to make representations as to anv penalty. She submitted that the applicant was not given the benefit of any of these matters. She submitted, further, that the applicant was entitled to the benefit of procedures set out in s.58 Division 6 of Part V of the Act and these procedures were not observed. Counsel argued that as Division 6 of Part V applied to the applicant by reason of Regulation 35A, By-law 156(3) precluded the respondent from dispensing with the applicant's services under By-law 156(2) because she was alleged to have done acts or things in respect of which a charge could have been laid. It was submitted that it was the person who made the decision terminating the employment who was required to give the applicant the henefit cf the provisions of natural justice, i.e. a hearing; and it was not en nl re ae ne ee ee / -—~ , sufficient that other cersons. including a Miss Chaney and a Miss Mitchell, should have snoken with her. In support of the application G242. the submission was that By-law 156 was invalid as both ultra vires and inconsistent with the Act and Requlations. As to ultra vires, Counsel referred to s.1il(l)(q) of the Act as being the only arguable ground providing authority for, the making of By-law 156 1.e. th 1D un "only conceivable source of power". However. the words "term and conditions of employment of....employees" in s.1lli(l)(g) did not refer to termination of employment of such persons. Further, she said the By-law was inconsistent with 5.58 providing a comprehensive scheme for wsunishment, dismissal, dealing with inefficiency etc; and these provisions were quite inconsistent with a power in a By-law to terminate services of an emvloyee at any time. It was not "realistic" for the Commission to rake such a By-law given the scheme set out in s.58 for dismissal. She referred to Ridge v. Baldwin (1964) A.C. 40 at po.64-€6;: Twist v. Randwick Municipal Counciit (1976-1977) 136 C.L.R. 106; Hamblin v. Dutfv (No.2) (1981) 37 ALR 297; tah Construction & Engineering Pty. Ltd. v. Patakv (1966) A.C. 629: Shanahan v. Scott (1956-1957) 96 C.L.R. 245; Carpines v. Powell (1925) 36 C.L.R. 88; Cory Lighterage Ltd. v. Transport and General Workers Union (1973) 2 All E.R. 558, Applicant's counsel did not concede that the purvorted terminatzon was by an officer with appropriate authority. This Oe eee eS neem enh net a ernie am " teeminetion was by the act of Kenneth John Kime in his letter dated 9 March 1983 already quoted. She conceded that kine was an "otficer" within the meaning of s,33 of the Act and further that he was. in terms of the instrument of delesation received in evidence, an officer properly describea by the expression "Section Head and above". However, she submitted that a delegation could be valid only if toa person named, and Specifying the particular powers delegated. So, she said. the delegation would have had to include the name "Kenneth John Kime". Counsel for the respondent submitted that there was nething in s.33 which required the use of a name in an instrument of delegation otherwise correct in form and indicating clearly to whom there was a delegation. He submitted that the respondent did not disoute that "in some sense" the applicant was entitled to the benefit of the principles of natural justice: though I gathered in argument he qualified this. The rules of natural justice did not in this case include the rights listed by applicant's counsel. He submitted there was ro entitlement to a hearing or to maxe representations as to penalty in the circumstances here. an example of a case where a formal oral hearing was required was, he said, Finch v. Goldstein 36 ALR 287. An example where 1t was not required was In re H.K.'An Infant) (1967) 2 9.B. 617. He referred to Furnell v. Whangare: High Schools Board (1973) A.C. en nee - - = ee - 660; Davis v. Carew-Pole (1956) 1 W.L.R. 833; there was no dispute about the fact that the apolicart had been Late for wort on the occasions referred toin the Exhibits and that she had given reasons which were noted on those documents and attached her signature thereto. Nor was it contested that warnings were given to the applicant, in particular, that she would have to improve her performance so far as lateness was concerned. He cited cases which emphasised that it was the circumstances of a particular situation to which one must pay attention in considering whether or not the decision-making body had acted fairly. He cited Mobil 01:1 Australia Ptv. Ltd.v. Federal Commissioner of Taxation (1964-1965) 113 C.L.R. 475; Ansell v. Wells 43 ALR 41. He submitted that it was not incumbent on the decision maker himself personally to qive a hearing to the person to be affected by the decision. de referred to Local Government Board v. Arlidge (1915) A.C. 120; Jeffs v. New Zealand Dairv Production and Marketing Board (1967) 1 A.C. 551 at p.568. He submitted the applicant was a temporary employee, not an officer entitled to be dealt with only under s.58 of the Act; further, there was no inconsistency between that section and By-law 156. He contested the submission advanced on behalf of the applicant that the sole ground for dismissal was breach of duty of a kind listed in s5.58(1) in respect of which the applicant should have been charged. He submitted there were other powers to dismiss for reasons other than breach of auty. By-law 156(2) provided a qeneral power of dismissal for other 17. than 93.98 situations. If might be exercised for reasons that had nothing to do with breach of duty. In the case oF a temporary emoloyee, he said, there could he dismissal if there was 190 needa any longer for her services. Section *8. he su byPr ct wt op) jan fu im feyQO cr provide a ccde as to the means of dismissal. He referred to s.565(1) and to Division 8 s.66 and s.67 of the Act and to the powers and functions of the Commcenwealth Conciliation and Arbitration Commission; that Commission had an overriding jurisdiction to determine terms and conditions of employment. He yeferred to Australian Telecommunications Commission Telephone and Phonogram Staff (Salaries and Specific Conditions of Employment) Award 1978 which he said incorporated certain provisions of Australian Telecommunications Commission Employees (General Conditions of Employment) Award 1975. Clauses 3. so far as relevant, and 5 of the former Award read (cf the Act ss.67 and 69) - "3. In this Award: "Temporary Employee" means a person so engaged under the Telecommunications Act 1975 as may be amended from time to time. see e 5. (1) This Award shall be read in conjunction with the Telecommunications Act 1975 as may be amended from time to time, Regulations and By-laws made thereunder from time to time. ""~~42)_ Where the said Act. Regulations and By~ laws are inconsistent with the provisions of this Award the latter shall prevail." ee ln ant ct Eee aM oo 18. Clause 31 of the flatter (1975) award under the heading "TEPMINATION OF ENGAGEMENT OF TEMPORARY EMPLOVERS" reads - ) "When the employment of a temporary employee has extended over a pertod of not less than four weeks. the temporary employee shall be entitled ta at least one week's notice of termination of engagement. When the notice 1s not given, payment shall be made for one week in lieu of the notice: Provided that the services of a temporary employee may be terminated without notice at any time on the grounds of misconduct or unsatisfactory service." He submitted these vrovisions indicated that s.58 did not vorovide a code and supported the validity of the applicant's dismissal; that whether one read the Award by itself or in conjunction with the By-law there was a general power of dismissal in respect of a temporary employee on the giving of a week's notice or payment in lieu; or even without notice on the grounds of misconduct or unsatisfactory service. This was, he said, not a breach of duty case. If the source of the power were misdescribed as By-law 156 when it should have been Clause 31 the validity of exercise would not be affected. He submitted that though there were statutory provisions applying to the employment of a public servant there were others of a contractual nature; "tarms and conditions" in s.111(1)(g) ancluded those under which employment can be brought to an end. He referred to.s.43 of the Act: the "terms and conditions" referred ta there would include those in s.58 and thus terms and conditions can be related to dismissal. He cited Gould v. Stuart (1896) A.C. 575 at 0.577: Keelev wv. Sta ct fi) te) rt Victoria (1964) V.R. 344. Authorities discussed in the latter suggested that unless otherwise provided ("curtailed by statute") RN a re net een nr ener = = ee --- 19. the Crown has power to dismiss at its pleasure. He submitted that employment in the public service was essentially contractual thougn "overlaid" by specific statutory »rovisions: so the Act did not provide a code setting out all the terms and conditions of employment; that Division 6 dealt only with breach of duty cases; for all other kinds of dismissal one looked at the contract: the common law position remained intact. By-law 156 and Clause 31, at least for temporary emplovees, reproduce the common law position in exvress terms, Division 4, he said, anyway, would have to yiela to the award. It had been recognized that into s.58 there had to be incorporated common law duties; Australian National University v. Burns 43 ALR 25; Australian Telecommunications Commission v. Hart 43 ALR 165 e.g. per Fox J. at 9.170 supported the argument that s.58 did not provide a code. He distinguished Bennett v. Commonwealth (1980)1 WNSWLR 581. He referred to Australian Broadcasting Commission v. industrial Court (S.A.) (1977-1978) 138 C.L.R. 399. In argument, respondent's counsel submitted there was evidence to support the assertion in the letter of dismissal and that the continued unpunctuality constituted inability to verform her duties. He disavowed any intention to put forward a case based on misconduct except in so far as late attendance could be regarded as misconduct. Counsel further stated that. if the applicant made out her case, he would not ask that as a matter of discretion she be denied relief. roy 20. No good pursose would be served by restating the ! arguments of Counsel in cr he1r entirety. The instrument of Hi} rey delegation received in evidence was in my opinion sutficient to invest Kenneth Jobn Kime with authorzty to dismiss a temvorary employee without the use of his name. There 1s no reason ta read 5.33 as yreauiring the use of a name in the instrument to which the section refers. I oroceed to consider the two applications G242 and G243 separately. Consideration of the applicant's case will be assisted by adverting to the method of engagement of "officers" and "temporary employees". Section 39 confers power on the Commission to appoint officers. A person is not to be so appointed unless he passes a medical test, possesses certain educational qualifications. and the Commission 1s satisfied he is a fit and proper person to be an officer. The appointment will ordinarily be on probation for a period of six months; after which the appointment may be confirmed, terminated or a further period of probation directed, Subject to Part V, officers and employees hold office on such respective terms and conditions as the Commission determires - s.43. Provision 1s made for the selection of an offficer for promotion to a vacant position whereby consideration shall be given to the relative efficiency and seniority of those officers - s.47. The Commission may determine that a person shall not he appointed or an officer transferred or promoted to a specified er nen ee: ns — ee nee eo ee —- -- --- rs} Tv osition unless he or she ovoossesses sucn qualifications and ID a omplies with conditions as ars specified - §.48. Others om provisions provide for transfers ana promotions to certain positions - 5.49, promotion of officers who complete courses of training ( s§.50), appeals against prometions (s.51' to a Promotions Appeal Board (s.53). An officer who has attained wt sixty years is entitled to retire but may continue until he attains the age of sixty five years (s.54). There is provision for retirement on grounds of aunefficiency, incapacity etc. (s.56). Disciplinary action in respect of officers 1s provided for in s.58. By a combination of s.57 and $.58, there 1s provision for the charging of an officer with misconduct. an expression veferring toa failure of the officer to fulfil his duty as an officer: and the ways in which he may so fail are set out in the paragraphs (a) to (q) in sub-section 1 of section 58. The provisions of that section provide an elaborate srocecure for dealing with anv such charge. Their operation might be said to equate to an application in respect of an officer sco charged of the rules of natural justice. Later sections refer to suspension of officers (5.59), removal and variation of suspension (s.60), and what may happen when an officer has been convicted ona charge for an offence of the kind referred to in s.59(1)(a) (s.61). There 1S provision for appeal by an officer to a Disciplinary Appeal Beard against an admonition, direction or decision made with respect to him under s.58; or againsta decision made by the Commission with respect ta him under sub-section (1) of s.6l. There is further provisitan for tr rer rn cerns - one eee ee ee --- a er 22. forfeiture of office where an officer 1s absent from duty without permission for a certain perind (s.55). In contrast to this, the Commission is empowered to enqage persons as temporary employees" (s.42(1)). It will be noted there is no requirement for medical examination, educational qualification or that he or she is a "fit and proper person", or for a period of probation. The terms and conditions of employment referred to in s.43 earlier mentioned are, I suggest, extended by s.1lli(l)(q) referring to "terms and conditions of employment of officers and emplovees" and By-law 156 in the case of temporary employess. Subject to the argument as to validity to which I refer later, it was pursuant to s.111(1)(q) that By-law 156 was passed providing for termination of service of the employee "at any time", There 15 no set of rules which provide or give reference comprehensively to all occasions when the principles of natural justice are to be applied; or how they are to he implemented. See e.g. Wiseman v. Borneman (1971) A.C. 297 per Lord Peid at p. 308; per Lord Guest at p.310; Furnell v. Whangare1 Hich Schools Board (supra), the majority judqment at p.679, Th nn) legislature may exclude or limit the rules; The Commissiorer of Police v. Tanos (1957-1958) 98 C.L.R. 383 ver Dixon C.J. and Webb J. at p.396; Twist v. Randwick Municipal Council 'suvra) oer Barwick C.J. at p.i09-110. The Court "will aporoach the construction of the statute with a presumption that the on eg en eT re ene Re ee se eee ~~ - 23. legislature does not auntend to deny natural -vtustice to the citizen" (ver Barwick C.J ibid, at p.1iod. Any such exclusion must be "unambiguously clear". There 1s no general obligation ta give reasons for a decision - see Mcinnes v. Onsilow-Fane (1978) 1 W.L.R. 1520 wer Megarry V.-C.at p.1531. For wvresent purposes I shall assume a te¥mination of services relying on e.g. By-law 156 was within power; though I refer to this later. The legislature here, as is common, does not offer anv explicit guidance as to whether the principles should be applied or, if so, What they required in the circumstances. In favour of their application are the "dismissal" cases where the person to be R dismissed was entitled to a hearing. See e.g. midge v. Baldwin (supra) where Lord Reid at p.66 expressed as a general principle that "....an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation." Later, at ».58 he referred to - ",...the general principle that a man is not to be dismissed for misconduct without being heard." Io note that Mr. Ridge had been in the constabulary until dismissal for a period of 33 years and had attained the rank of Chief Constable. In my opinion the presence in the total legislation of the elaborate provisions relating to an officer and the relatively short reference to "temvoorary employees with the provision for termination of services in By-law 156 indicates that the legislature did not intend that there should be available toa temporary employee in the ordinary course of events any implementation of the principles of natural justice or ee a _-- eeenrve senre -- eee - - --+ —- ee wwe we ne ee ee 24, a orocedure as 18 sé@ét out in 5.528. Mlause 31. tn my view, confirms this approach. The legislature, therefore, in ny opinion, has evinced an aintention to displace the rule, 12 ther ever was ane, that a temoorary employee had the vridht to a hearing before her services were terminated. If. nevertheless, such a svight can be inferred from the circumstances of a particular situation, the facts relating to the employment of the applicant do not give rise to any such inference here, She had been spoken to and counselled, and was constantly in touch with various superiors in relation to her late attendance and, it seems, some aspects of her conduct. The rejection of her application for permanent appointment, accompanied as it was with some adverse comment as to her attendance record, which had been under reyiew for a period of three months. would have made it clear to any ordinary person that the tenure of her 2nsloyment was anything but secure. In my view, she was not entitled to any further notice by the respondent that her dismissal was imminent or to an opportunity to be heard in that regard. The reasons set out in the letter of 9 March 1983 do not coincide with the statement cf reasons in the letter dated 1 August 1983. I would add that there was ample evidence to support the assertions in the latter as to unpunctuality; I am not satisfied that the allegations in the letter of 9 March 1983 have been made out. But in the view I take of the legislation 25. when the services of the applicant were being terminated 14 was not necessary to give reasons. In the circumstances here By-law 15613) has no apolication. The Commission terminated her services but did not dispense with the services of the applicant: nor by reason only that she had - done or omitted an act or thing in respect of which a charge could be laid against her; or on the ground that a Court had convicted her of a criminal offence; or found without recording a conviction she had commited such an offence. As to G243, I am satisfied By-law 156 was validly passed and within the power conferred by s.11l1(1)(g). Nor do I see any inconsistency in the relevant legislation which both facilitates termination of the services of a temporary employees whilst making more elaborate provisions before a similar action 1s effected for officers. If there was an inconsistency so that By-law 156 was invalid, Clause 31 gave a similar power. The applications are dismissed with costs. 1 certify eat this and the au préce.ing pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice McGregor, ide boa : Assoclate ey Dated: 30 Marcel 1734