AA 3 CATCHWORDS Administrative Law - judicial review - dismissal of temporary employee - consideration of grounds for dismissal - whether denial of natural justice - applicability of s.58 Telecommunications Act, 1975 = validity of (Staff) By-law 156(2) as passed under s.1il of Telecommunications Act, 1975. Administrative Decisions (Judicial Review) Act, 1977 s.5 Telecommunications Act, 1975 ss.56, 58, 111 Telecommunications Regulations, reg.35A Telcommunications (Staff) By-laws, By-law 156 Christine Trigger v. The Australian Telecommunications Commission No. Gl26 of 1984. Fox, Lockhart and Beaumont, JJ. 17 December 1984. Sydney. ee 50SA? oe 2 ZA — We, ty . in Y - ¥ \ \ . eo iN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY wee hve GENERAL DIVISION No. G 126 of 1984 ON APPEAL from a single judge of the Federal Court of Australia BETWEEN : CHRISTINE TRIGGER Appellant AND: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent QEDER Judges making order: Fox, Lockhart and Beaumont. JJ. Date order made: 17 December 1984 Where made: Svdney THE COURT ORDERS THAT: l. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G126 of 1984 ~ewe rw GENERAL DIVISION QN APPEAL FROM A SINGLE JUDGE OF THE FEDERAL CQURT OF AUSTRALIA BETWEEN : CHRISTINE TRIGGER Appellant AND: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent CORAM: Fox, Lockhart and Beaumont JJ. DATE: 17 December 1984 REASONS FOR JUDGMENT FOX J. This is an appeal froma decision of a judge of this Court (McGregor J.) given in an application under the Administrative Decisions (Judicial Review) Act 1977. The appellant claims to have been wrongly dismissed from the respondent's employ. She was a temporary officer, but because she had been in the continuous employment of the respondent for not less than a year (June 1980 to March 1983 in fact) she was, by reason of reg. 35A, entitled to the benefit of Division 6, Part V of the Telecommunications Act 1975, as if she were an "officer". This Division relates to disciplinary offences, and contains a procedure for dealing with them. Section 58 is a kev section, and I set out sub-s. (1)(b), which has particularly been relied on: "S58. (1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer 1f and only if - (b) he 1s inefficient or incompetent by reason of causes within his own control". The facts are more fullv dealt with in the i1udgqments of other members of this bench, and of McGregor J., and I can confine myself to stating a conclusion which, as TI understand, was that of the responsible officer of Telecom, and is fully supported by the evidence. It is simply that the appellant was incapable of observing punctuality in her work, and also of conducting herself at work sensibly and properly. The conclusion is an unusual one, to be approached with some scepticism. Tt was, however, an extraordinarv situation. She had arrived late at work, often very late, on innumerable occasions, had been spoken to and cautioned by her superior on many occasions, had been warned in writing of the possible consequences of continuing her behaviour, and had been given counselling assistance, yet her unpunctuality continued. Also, she had placed articles of clothing in the staff wash room basins, obstructed other staff from using those facilities, repeatedly left a trolley in the rest room, and had otherwise often behaved strangely, and to the inconvenience of others. The Letter terminating her employment was as follows: "Since June 1980 you have been employed as a Telephonist with Telecom Australia. During your period of service you have shown vou are unable to perform the duties oar your position satisfactorily. Despite counseiling from vour 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 bevond your control vou are unable to perform the duties of your position. Therefore I regret that acting under the authority vested in me by Staff By-Law 156 I have no alternative but to terminate vour services with the Australian Telecommunications Commission as from close of business on 9 March 1983. Any outstanding monies including one week's pay in lieu of notice will be forwarded to your home address as soon as possible." The use of the phrase "for reasons beyond your control" in the second last paragraph doubtless is related to the lanquacge in s.58(1)(b), and to that in s.56, which 1s not part of Div. 46, Although the letter expressed reliance on by-law 156 of the by-laws passed by the Commission under s.lll of the Telecommunications Act 1975 and the validity of that by-law was challenged, it seems to me that the Commission was entitled in the circumstances to justify its action on the basis of any power which it then had. One such basis was the qeneral law. It is not as if different consequences flowed from reliance on that law as distinct from by-law 156(2), or that the appellant could in any relevant way be misled by the Commission's reliance on one or the other. The by-law was in the following terms: "156. (1) Where an employee absents himself from duty without permission and 1s so absent for a continuous period of not less than 2 weeks, he shall be deemed to have resigned from his employment with the Commission at the expiration of that period of 2 weeks. (2) Subject to sub-clause (3), the Commission may terminate the services of an employee at any time. (3) Where, under the regulations, Division 6 of Part V of the Act applies ta 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 tno do, an act or thing in respect of which a charge could be laid against him or on the ground that a court has convicted him of a criminal offence within the meaning of that Division or found, without recording a conviction. that he has committed such an offence." It 1s not necessary to consider its validitv. In my view Telecom had power if not under the by-law, at common law. to dismiss the appellant on the grounds of behaviour which was, to all appearances, beyond her control. and which therefore did not come within s.58(1)(b). I agree that the appeal should be dismissed, with costs. I certify that this and the four (4) preceding pages area true copy of the Reasons for Judqment herein of his Honour Mr. Justice Fox. "Ty VA fal: Ce re. Associate Dated: 17 December 1984 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SQUTH WALES DISTRICT REGISTRY ) No. G126 of 1984 ) GENERAL DIVISTON ) ON APPEAL, FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : CHRISTINE TRIGGER Appellant AND: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent CORAM: Fox, Lockhart & Beaumont JJ. DATE 17 December 1984 REASONS FOR JUDGMENT LOCKHART J. On 9 March 1983 Christine Trigger, the appellant, was dismissed by The Australian Telecommunications Commission, the respondent, from her position of temporary telephonist with the respondent's Chatswood branch. She challenged her dismissal by filing two applications with this Court, one seeking review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), of the decision terminating her services and the other seeking declarations to the effect that her dismissal was unlawful. The case was heard by a single judge of this Court (McGregor J.) who dismissed both applications with costs. The appellant appealed from his Honour's judgment. 2. The facts are not in dispute. The appellant commenced employment with the respondent as a temporary employee on 23 June 1980. The Service of the respondent consists of officers and temporary employees. Officers are in effect the permanent staff of the respondent. On 23 April 1982 the appellant applied for what is described in the evidence as "permanent appointment" with the respondent (I assume that means she applied to become an "officer"). However, she frequently arrived late for work. Throughout her employment there were 90 occasions recorded by the respondent of late attendance. On some of these occasions the appellant applied for leave in respect of the period for which she was late by completing and signing a form of application for leave. At other times she gave a reason for her lateness ina document called "Late Attendance Report" which she signed. On each occasion when the documents were completed by the appellant she spoke to a supervising officer. Her lateness was discussed with her on many occasions by officers of the respondent who made it plain that they were dissatisfied. She was given many warnings over a long period about her lateness. On 7 June 1982 she was told that her "permanent appointment" would be deferred for a period of three months when her attendance record would be reviewed. On 3 November 1982, the three month period having expired, the appellant was informed that a review of her attendance record did not reveal any evidence that she had attempted to display an improvement. Further, she was told that her permanency would not be recommended until the required improvement was evidenced and moreover, that failure to improve could result in "severe disciplinary action". Prior to 3 November 1982 her lateness had been discussed with her on 3. at least twelve separate occasions. Following that day the appellant was late for work on some 19 occasions. On 11 November 1982 she was "counselled" regarding her "unsatisfactory conduct" and late attendances by Miss Mitchell, her supervisor. A letter written by Miss Mitchell was handed to the appellant on 11 November 1982 and signed by her in acknowledgement that the matters mentioned therein were discussed. That letter stated that the following matters were canvassed: "1. Failed to advise supervisory staff of your intended lateness although you were on the premises at the time you were due to commence duty. 2. Had a number of articles of clothing, including underwear on ledge and wash basin in the Wash Room on 9.11.82, obstructing other staff from using these facilities. 3. Spoke to me in a snappish tone when queried regarding lateness and clothing. 4. Continually leave a trolley in the Rest Room: the bars of this protrude and could result in an accident. You have undertaken to improve in these areas and make other necessary adjustments to meet requirements." On 18 January 1983 Miss Sheila Chaney, the personnel officer of the Chatswood branch of the respondent, spoke to the appellant in the presence of the assistant personnel officer, Mrs. Jones. A file note signed by Miss Chaney records the interview with the appellant in these terms, as far as is relevant: "The purpose of my visit was to ascertain whether or not Ms. Trigger would be interested in speaking to the Social Worker regarding her personal problems. She indicated she would be keen todo this if f considered that it would be beneficial to her. In general conversation Ms. Trigger explained that she was at work to enable her to pay off her husband's tractor in spite of the fact that she was diagnosed in England as a juvenile schizophrenic. She mentioned occasions when she hid under the telephone table in the Rest Room because 'she needed to be alone' and stated that 'she was quite normal except for the times she was sick or mental'. EShel ... accepted the fact that there was a need for her-to seek professional guidance by the Social Worker." On 4 March 1983, following a report to him from Miss Chaney, Mr. Kime, Acting District Telecommunications Manager of the Chatswood branch of the respondent, sent a report to Mr. J. Kleyn, Manager, General Personnel Services Branch of the respondent, concerning the conduct of the applicant. Thereafter, Mr. Kleyn informed Mr. Kime that termination of the appellant's services pursuant to Staff By-law 156 was appropriate. On 9 March 1983 Mr. Kime wrote to the appellant in the following terms, formally terminating her employment: "Since June 1980 you have been employed as a Telephonist with Telecom Australia. During your period of service you have shown you are unable to perform the duties of your position satisfactorily. Despite counselling from your Supervisor, the Personnel Officer, and the Telecom Welfare Officer you have failed to achieve the minimum standard required. 5. After extended and sympathetic consideration it is concluded that for reasons beyond your control you are unable to perform the duties of your position. Therefore I reqret that acting under the authority vested in me by Staff By-Law 156 [I have no alternative but to terminate your services with the Australian Telecommunications Commission as from close of business on 9 March 1983. Any outstanding monies including one week's pay in lieu of notice will be forwarded to your home address as soon as possible." Staff By-Law 156 is in the following terms: "Termination of service. (1) Where an employee absents himself from duty without permission and is so absent for a continuous period of not less than 2 weeks, he shall be deemed to have resigned from his employment with the Commission at the expiration of that period of 2 weeks. (2) Subject to sub-clause (3), the Commission may terminate the services of an employee at any time. (3) Where, under the regulations, Division 6 of Part V of the Act applies to and in relation to an employee, the Commission shall not dispense with his s2rvices under sub-clause (2) by reason only of the fact that he has done, or omitted to do, an act or thing in respect of which a charge could be laid against him or on the ground that a court has convicted him of a criminal offence within the meaning of that Division or found, without recording a conviction, that he has committed such an offence." It was submitted by counsel for the appellant before the learned trial Judge that breaches of the rules of natural justice occurred in connection with the making of the decision to terminate her employment and particular reliance was placed upon para. 5(1)(a) of the Judicial Review Act. It was argued that the appellant should have been notified of the specific allegations against her and the 6. nature of the material relied upon to support' them. Further the appellant ought to have been given an opportunity to rebut any evidence against her and to furnish material on her own behalf. It was submitted also that the person who made the decision to terminate the appellant's employment should have heard what she wished to say in respect of the complaints made against her: it was not sufficient that other persons, including Miss Chaney and Miss Mitchell, should have spoken to the appellant or "counselled" her and reported the results of those interviews to senior officers of the respondent. Additionally, it was arqued that should the occasion arise the appellant was entitled, to make representations as to any penalty. Counsel argued that the appellant had a legitimate expectation that she would be given a hearing of some kind, although not necessarily a formal hearing, before any decision was made to terminate her employment. The legitimate expectation was said to arise from the respondent's own actions in sending letters to the appellant respecting her conduct and attendance threatening disciplinary action if she did not improve while, so it was said, leading her to believe that should disciplinary action be taken, it would be in the form of charges laid pursuant tos. 58 of the Telecommunications Act 1975 ("the Telecommunications Act") and not pursuant to Staff By-law 156. Counsel relied on Kanda v. The Government of Malaya (1962) A.C. 322; Ridge v. Baldwin (1964) A.C. 40; Twist v. Randwick Municipal Council (1977) 136 C.L.R. 106; Hamblin v. Duffy (No. 2) (1981) 37 A.L.R. 297; Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149; Cole v. Cunningham (1983) 49 A.L.R. 123; Attorney-General for Hong Kong v. Ng Yuen Shiu (1983) 2 W.L.R. 735. Alternatively, it was argued that the appellant was entitled to the benefit of procedures set forth in s. 58, that those procedures were not observed and that the decision to dismiss her was therefore bad in law. It was also submitted on behalf of the appellant before the trial Judge that by-law 156(2) is inconsistent with the Telecommunications Act and the Telecommunications Regulations and is therefore invalid; hence the decision to dismiss her was a nullity as it was based on that by-law. The trial Judge held that the presence in the Telecommunications Act, Telecommunications Regulations and By-Laws of elaborate provisions relating to officers of the respondent and the relatively brief reference to temporary employees, when coupled with the provision for termination of services in by-law 156, evinced an intention of the legislature to displace the rule, if there was one, that a temporary employee had the right to some form of hearing before his or her services were terminated. His Honour also held that if, nevertheless, such a right could be inferred from the circumstances of a particular case, this was not such a case hecause of the facts peculiar to the appellant. His Honour said: "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 8. attendance record, which had been under review for a period of three months, would have made it clear to any ordinary person that the tenure of her employment was anything but secure. In my view she was not entitled to any further notice by the respondent that her dismissal was imminent or to an opportunity to be heard in that regard." His Honour said that, when the services of the appellant were terminated, it was not necessary that the respondent give reasons for the termination. His Honour held that there was no inconsistency between by~law 156 and the Telecommunications Act and that the by-law was valid. He said that by-law 156 empowered the respondent to terminate the appellant's services. His Honour also said that clause 31 of the Australian Telecommunications Commission Employees (Salaries and Specific Conditions of Employment) Award 1978 ("the Award") gave a similar power to the respondent to terminate the services of the appellant. I shall refer to clause 31 later. The argument of counsel for the appellant on this appeal was substantially the same as the argument which she advanced before the trial Judge. It is necessary to refer to certain provisions of the Telecommunictions Act to understand the issues involved in this case. The Telecommunications Act establishes the respondent as a body corporate with the powers commonly entrusted to Commonwealth statutory bodies (s. 21). As I mentioned earlier, the respondent's Service consists of officers and temporary employees (s. 38). Before a person may be appointed an officer he must satisfy certain statutory requirements as to health and education (paras. 39(2)(a) and (b)). 9. Appointment as an officer is generally for a probationary period of six months (sub-s. 41(1)). The respondent is empowered to engage persons as temporary employees (s. 42). No qualifications for temporary employees are prescribed by the Telecommunications Act. Persons engaged as temporary employees shall perform duties as directed by the respondent or its managing director (sub-s. 42(2)). Officers and employees hold office on such terms and conditions as the respondent determines (sub-s. 43(1)). The respondent may create and abolish positions in its Service and may determine the salary or the yrange of salary applicable to a position in the Service (s. 44). It may alter the designation of positions or alter the classification of positions in the Service by raising or lowering the salary or range of salary applicable to the position (sub-s. 45(1)). The respondent may appoint persons as officers or transfer or promote officers to fill vacant positions in the Service (s. 46). Promotions of officers tu vacant positions is provisional and is subject to appeal as provided by s. 51 namely, an appeal to a Promotions Appeal Board which makes full inquiry into the claims of the appellant and of the officer provisionally promoted and determines the appeal. Division 6 of Part V of the Telecommunications Act contains provisions relating to disciplinary action against officers for misconduct. A reference in the division to misconduct is a reference to a failure of the officer to fulfil his duties as an officer (sub-s. 57(2)). Section 58 is an important section in this case; but as it 15 a very long section (there are fifteen sub-sections) I will not proceed to set it out in full. It is desirable, however, to recite sub-s. 58(1): 10. 58. (1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if - (a) he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction; (b) he is inefficient or incompetent by reason of causes within his own control; (c) he is negligent or careless in the discharge of his duties; (d) he is guilty of improper conduct as an officer; (e) he is guilty of improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties, is prejudicial to the interests of the Commission or damaging to the business of the Commission; (f) he contravenes or fails to comply with a provision of this Act, of the requiations or of the By-laws, that is applicable to him or with the terms and conditions upon which he is employed; or (¢g) he has, whether before or after becoming an officer, wilfully supplied to the Commission, to an officer or to some other person acting on behalf of the Commission incorrect or misleading information in connexion with his appointment to the Service." Thus subsection 58(1) specifies a wide range of conduct by officers which it deems to constitute misconduct; but generally, if not entirely, where the act or omission alleged to constitute the misconduct is within the will, power or control of the officer, for example, wilful disobedience of directions, neqliqence or improper conduct. Paragraph 58(1)(b) is a clear illustration of this point because it is specifically confined to inefficiency or incompetence by 11. reason of causes within the control of the officer. It does not therefore extend to inefficiency or incompetence caused by matters beyond the control of the officer which would, in my opinion, include causes such as'- sickness or accident, mental or emotional instability, infirmity or disturbance. Section 58 contains rather elaborate provisions for charging officers with disciplinary offences where a superior officer has reason to believe that the officer concerned may have been guilty of misconduct. The section specifies the procedure that must be followed for charging an officer with misconduct and, if he is found guilty of misconduct, the respondent is empowered to discipline him in various ways, which include admonition, reduction of salarv, transfer to another position or dismissal. Section 58 is to be contrasted with s. 56 which appears in Division 5 of Part V. Section 56 provides that, if an officer appears to the respondent to be inefficient or incompetent or unable to discharge or incapable of discharging the duties of his position, the respondent may transfer him to another position having the same classification as the position held, reduce him to a lower position and salary or retire him from the Service. Whether s. 56 is confined to cases of inefficiency, incompetence, inability or incapacity beyond the control of the officer or may extend to matters within the officer's control is open to some question, but it is not necessary "that I form any view about it. What matters for present purposes is that the events which enliven the respondent's powers under s. 56 at least include causes beyond the control of the officer which become manifest in the performance of his duties. 12. Division 6 also provides for the suspension of officers (s. 59) the removal and variation of suspension (s. 60) and for disciplining, counselling or dismissing officers who have been convicted by courts on charges of particular offences (s. 61). Provision is made for appeals by officers to a Disciplinary Appeal Board against decisions made with respect to them by officers of the respondent under s. 58 or against decisions made with respect to them by the respondent itself under sub-s. 61(1). Provision is made by gs. 64 for review by the respondent of findings by authorised officers or by Disciplinary Appeal Boards. Sections 56 and 58 and the other sections in Division 6 to which reference has been made are not the only provisions in the Telecommunications Act which authorise the respondent to dismiss delinquent or incompetent officers. Section 65 appears in Division 7 and it provides for the deemed resignation of officers in circumstances where they have been absent from duty without permission for a continuous period of not less than four weeks. Division 6 of Part V applies to temporary employees of the respondent who have been in the continuous employ of the respondent for a period of not less than one year or have been engaged by the respondent to serve for a period of not less than one year. This is achieved by Regulation 35A of the Telecommunications Regulations made pursuant to the regulation making power (s. 112 of the Telecommunications Act). Temporary employees who have not been in 13. continuous employ of the respondent for not less than one year or have not been engaged by the respondent to serve for a period of not less than one year are therefore outside the operation of Division 6 of Part V and are not susceptible to disciplinary action under s. 58. Section 56 has not been made applicable to any temporary employees. It is common ground that the appellant was a temporary employee who had been in the continuous employment of the respondent for a period of not less than one year and that Division 6 of Part V of the Telecommunications Act applied to her before her dismissal. Counsel for the appellant submitted before us that the allegations made against her by the respondent fall within each of paras. 58(1)(b), (c), (e) or (£) and that she therefore should have been dealt with under that section. This in my opinion misconceives the true nature of the circumstances which led the respondent to conclude that the appellant was unable to perform her duties for reasons beyond her control, and which formed the basis of the decision to terminate her services. The appellant was persistently late for work over a long period - 90 occasions in all of which 19 occurred between 3 November 1982 and 93 March 1983. She was given many opportunities to explain her lateness and she offered explanations on each of those occasions and when "counselled" for example, by Miss Mitchell in November 1982. On that occasion Miss Mitchell also mentioned other matters to which I referred earlier namely, placing articles of clothing on a ledge and in the wash basins in the wash room, obstructing other staff from 14. using those facilities, continually leaving a trolley in the rest room and speaking to Miss Mitchell ina ""snappish" tone when queried about lateness and clothing. Also, the appellant told Miss Chaneyy on 18 January 1983 that she would be keen to see the respondent's social worker regarding her personal problems if Miss Chaneyy thought 21t beneficial to her. She told Miss Chaneyy then that she was diaanosed in England as a "juvenile schizophrenic", that she had sometimes hidden under the telephone table in the rest room because "she needed to be alone" and that she "was quite normal except for the times she was sick or mental". The file note signed by Miss Chaneyy records that the appellant accepted the fact that there was a need for her to seek professional guidance from the social worker. The lanquage of the letter of dismissal suygests that, in the respondent's opinion, the appellant's conduct was beyond her control. If she had been an officer in the respondent's Service the respondent may have relied on s. 56 and retired the respondent from the Service. That section was not available with respect to the appellant since she was a temporary employee. It was for the appellant to establish to the satisfaction of the trial Judge that her conduct fell within s. 58, and this she did not do. Indeed, the evidence points stronqly to the conclusion that s. 58 was not applicable. Counsel for the appellant also arqued that the letter of dismissal was a subterfuge by the respondent for the purpose of circumventing para. 58(1)(b) of the Telecommunications Act. Reliance was placed upon the language of the letter of dismissal itself. There 15. is no substance in this contention. The evidence establishes that the respondent concluded that the appellant was unable to carry out her duties due to causes beyond her control and that in those ciycumstances para. 58(1)(b) was inapplicable. What then was the source of the respondent's power to dismiss the appellant? There is no statutory power conferred upon the respondent in express language by the Telecommunications Act or the Telecommunications Regulations to dismiss temporary employees. The basis of the employment of temporary employees is essentially contractual, though overlaid and circumscribed by certain statutory provisions: Keeley v. State of Victoria (1964) V.R. 344; Australian National University v. Burns (1982) 43 A.L.R. 25; and Australian Telecommunications Commission v. Hart (1982) 43 A.L.R. 165. As I mentioned earlier, the respondent is a body corporate with authority to da anything incidental to the performance of any of its functions specified in s. 5 including the function of maintaining and operating telecommunications services within Australia. It is also authorised to do all things necessary or convenient to be done for or in connection with or as incidental to the performance of its functions under the Telecommunications Act. The respondent is empowered to engage persons as temporary employees to hold office on such terms and conditions as the respondent determines. In my opinion the respondent does have power to dismiss temporary employees, the power arising by implication from the powers to which I have referred. The respondent was therefore authorised to determine the services of the appellant. 16. I do not think it necessary to decide whether either by-law 156(2) or clause 31 of the Award was a source of the respondent's power to dismiss the appellant. The respondent's power to make by-laws is conferred by s. 111 of the Telecommunications Act which is a power to make by-laws, not inconsistent with the Telecommunications Act and the Telecommunications Requlations, prescribing all matters that are required or permitted to be prescribed by by-laws and making provision for or with respect to the terms and conditions of employment of officers and employees (para. 111(1)(g)). As at present advised I think that by-law 156(2) answers the description of such a by-law, that it is not inconsistent with s. 58 and that it was a source of the respondent's power to dismiss the appellant. Nothing turns on the fact that the letter of 9 March 1983 terminating the services of the appellant states that the writer of the letter (Mr. Kime) was acting "under the authority vested in me by Staff By-Law 156". Even if by-law 156 is invalid (as at present advised I do not think it is) the validity of the dismissal of the appellant would not be affected. The letter does not exclude reliance upon any other available source of power. So far as clause 31 of the Award is concerned, it is common ground that the clause is still in force (see sub-s. 58(2) of the Conciliation and Arbitration Act 1904). Clause 31 provides: 17. "31 - TERMINATION OF ENGAGEMENT OF TEMPORARY EMPLOYEES When the employment of a temporary employee has extended over a period of not less than four weeks, the temporary employee shall be entitled to at least one week's notice of termination of engagement. When the notice is not given, payment shall be made for one week in lieu of the notice: Provided that the services of a temporary employee may be terminated without notice at any time on the grounds of misconduct or unsatisfactory service." I doubt if clause 31 is a source of the respondent's power to dismiss temporary employees whose employment has extended over a period of not less than four weeks. It is really a restraint upon the exercise of the respondent's power to dismiss employees from its Service. However, my observations with respect to by-law 156(2) and clause 31 are only tentative. There remain the submissions of counsel for the appellant that the respondent was bound to observe the rules of natural justice and that it failed to do so. I referred earlier to these submissions in some detail and need not repeat then. Counsel for the respondent did not dispute that the appellant was entitled to the benefit of the principles of natural justice but he arqued that the circumstances of this case called for the application of one principle only namely, that the respondent was under a duty to act fairly towards the appellant. 18. There are no comprehensive or universal rules of natural justice which automatically apply in every case. The requirements of natural justice must depend on the particular circumstances. I derive little assistance from the definitions of natural justice which have been attempted from time to time. As Lord Morris of Borth-y-Gest said in Wiseman v. Borneman (1971) A.C. 297 at p. 309: "Natural justice, it has been said, is only 'fair play in action'". In my view, natural justice required in the present case that the course which the respondent was bound to take, when considering what to do about the appellant, was to act fairly and justly in all the circumstances. The respondent did act in accordance with that requirement. If the respondent had alileged that the appellant was guilty of one isolated but serious act of misconduct and then threatened her with disciplinary action, natural justice probably would have required that she be told the case against her, be given an opportunity to contradict it and be heard in some forn. In the present case the appellant had a serious record of persistent lateness for work extending over along time. She was always given the opportunity to explain her lateness which she attempted to do on each occasion. She was also "counselled" and interviewed by the Personnel Officer of the branch of the respondent at which she worked. These discussions were not confined to her lateness for work. They ranged wider than that and encompassed alleged peculiarities of behaviour at work. The appellant must have known that her employment was in 19. jeopardy and that if she did not improve her performance it may be terminated. It is true that in certain communications from the respondent to the appellant she was told that, if she did not improve, action would be considered against her by way of charge under s. 58 of the Telecommunications Act and that her application for permanent appointment to the Service of the respondent would be in jeopardy. But when this material is read as a whole it is plain that the appellant must have known that one of the consequences of her failure to improve could be dismissal. It is unreal to conclude that the appellant had a legitimate expectation that she would be given some form of hearing before her employment was terminated. She was in effect given a number of hearings over a long period of time with reference to her problems, especially her lateness. She was "counselled" more than once and given repeated warnings that her performance had to improve. She was told that her job was in jeopardy and she was given ample opportunity to explain her conduct. The respondent was not denied natural justice. I would dismiss the appeal with costs. I certify that this and the "S Preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Lockhart. ") Associate Dated: 17 -12-S4¢- IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY oe ae GENERAL OIVISTON No. G 126 ot 1984 ON APPEAL from a single judge or the Federal Court of Australia BETWEEN : CHRISTINE TRIGGER Appellant AND: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent CORAM: Fox, Lockhart and Beaumont, JJ. DATE: 17 December 1984. REASONS FOR JUDGMENT BEAUMONT, J.: , I have had the advantage ot reading the | reasons of Lockhart. J. and I need not repeat what he has said in relation to this appeal. 2. The appellant tirst argues that this was, in truth, a "misconduct" case to which the provisions of s.58 of the Telecommunications Act, 1975 ("the Act") apply; yet, the argument runs, the respondent seeks to nullify the protection given to the appellant by s.58 by labelling the case as one, not of misconduct. but ot incapacity, that 1s, conduct beyond the appellant's control and so outside the tanquage of s.58. It 18s common ground that the legal relations between the parties were governed by the terms ot the contract ot employment modified, as required, by the relevant operation of the Act, its requiations, the by-laws and the award. The point ot departure between them is the identification of the real reason for the termination of the appellant's services. The learned judge round a pattern of behaviour on the part ot the appellant extending over a long period which was consistent only with her incapacity to perform her work with any reasonable deqree of etriciency. The learned judge further found that. eventually. despite counselling and other sympathetic treatment. the appellant s frequent unpunctuality and eccentric behaviour patterns could no longer reasonably be tolerated by those charged with the responsibility of administering the attairs of the respondent in a responsible manner. 3. However, the learned iudge made no specific finding as to the source of the appellant's inetficiency and, ror present purposes, the identification ot that source 1s crucial. Was it ser1rous misconduct in the sense of something done wilfully or even recklessly, without caring tor the consequences? In such a case, termination of an employment contract at common law by summary dismissal 1s. generally speaking, justified (see Clouston & Vo. v. Corry C1906] A.C. 122 at p.129: North v. Television Corporation Limited (1976) 11 A.L.R. 599; Macken, McCarry and Sappideen, The Law ot Employment, 2nd Ed. at p.121). But, if misconduct 18 relied on, the provisions of s.58 of the Act supplant the general law. Summary dismissal as a remedy for misconduct 15 then no Longer avallable (see Gould v. Stuart C1896] A.C. 575; Keeley v. State of Victoria £1964] V.R. 344; Bennett v. The Commonwealth £1980] 1 N.S.W.L.R. 581; cf. Australian Telecommunications Commission v. Hart (15982) 43 A.L.R. 165; Hogq, Liability of the Crown. at pp.1i55 et seq-). Alternatively, was the appellant's behaviour attributable, not to deli1berate or reckless misconduct, but to sheer inability to cope with a work situation because ot the pressures of ill-health? If the appellant s lack ot equilibrium was sufficiently serious and not merely temporary, the point could be reached where, under the general law. her contract of employment would be discharged 4. by the doctrine of frustration (see Simmons v. Hay (1964) 81 W.N. (Pt.1) (N.S.W.) 358; Finch v. Sayers £1976] 2 N.S.W.L.R. 540: Marshall v. Harland & Wolff Limited £19721 1 W.L.R. 899: Eqq Stores (Stamford Hill) Limited v. Lerbovici £19771 I.C.Rk. 260; Anderman, The Law ot Untair Dismissal, at o.131: Hart v. A.R. Marshall & Sons £19771 1 W.L.R. 1067; Macken, op.cit.., at pp.y3-4). If, on a proper analysis. the appellant s situation was one of incapacity rather than misconduct, then since the provisions ot the Act are silent on the point, the matter falls to be regulated by the general law of contract. including its doctrine ot trustration. In the case of the misconduct of a temporary employee, the position 1S exhaustively requlated by s.58 ot the Act (see regulation 35A). Yet. although the position or an incapacitated officer 1s requlated by s.56 1n Daiv.5 ot Part VV or the Act. requlation 35A makes applicable to temporary employees only the provisions or Div.6 or Fart Vv, picking up s.58 but not s.56. Thus the appellant can only complain of the respondent's failure to observe the requirements of s.58 aif she can demonstrate that, in truth, her case was one ot misconduct rather than incapacity attributable to all-health. It. as a matter of obiective fact, the casé 13 one of incapacity. the position will be 5. governed entirely by the common law contract of employment and s.58 will have no relevant operation (cr. Hunkin v. Siebert (1934) S51 c.L-R. 538 at p.542:; Kaye v. Attorney-General for Tasmania 1.11956) 94 C.L.R. 193: Reedman v. Hoare (1959) 102 C.L.R. 177). The question posed does not admit of an easy answer. Possibly because of the delicate nature of the problem. neither party squarely addressed it. In the litigation itself and before, both sides were quilty otf some degree of equivocation on the issue. In these proceedings, the appellant asserted that this was a misconduct case but denied any misconduct. For its part, the respondent submitted that this was not really a misconduct case, although 1t said that there was evidence of misconduct. It contended that dismissal was justified because ot the appellant's failure to achieve the required standard ot competence. Such a contention rather assumes that the appellant had the capacity to achieve that standard. The history of the respondent''s handling of the matter also indicates a measure ot equivocation. At one stage, 1t took the approach that the actions ofr the appellant called for disciplinary action appropriate ina case of misconduct rather than one of incapacity. At another stage, the respondent offered the appellant sympathetic counselling. Ultimately. inthe letter ot dismissal written on 9Y March 1983, the respondent put the termination of the appellant's services squarely on the ground of her lack of her capacity to cope with her work situation, thus suggesting illness or instability as the cause ot the problen. Given the respondent's disclaimer in the letter ot termination of any charge that the appellant was guilty ot misconduct within her control, a heavy onus lies upon her to demonstrate that the reasons for termination described in the letter should be ignored as a fabrication. Since the objective circumstances are consistent with the view of the Matter taken by the respondent. the approach adopted by it was at least reasonably open. Moreover, it was never suggested to anv or the respondent s -'ltnesses that the letter ot termination was deliberately framed so as to indicate the incapacity of the appellant as the basis for termination rather than misconduct on her part. Specifically, 1t was not put on behalrt of the appellant that the letter was no more than a device to avoid the protection atforded employees by s.58. It is therefore not open to the appellant now to seek to put such a complexion upon the letter tsee Browne v. Bunn £1896] 6 R. 67). Whilst, theretore. the appellant could have sought to challenge the letter of termination as a mere device to avoid the operation ot s.58 and thus an impermissible attempt to do indirectly what 1s forbidden to be done directly (see James v. Eve (€18731 O.R. 6 H.L. 335 at p.344; Oxley County District Council v. Macleay River District County Council (1964) 65 3S.R. (N.S.W.) 13 at p.28), no such challenge was made in the course ot the evidence betore the learned judge. It 1s simply too late tor the matter to be raised atter the close of the evidence. In any event, looking at the matter objectively. the respondent was. I think, justified in viewing the case as one of incapacity rather than misconduct. Further, in my opinion, the reasons expressed in the letter tor the termination ofr the appellant's services should be accepted as retlecting the view of her case actually held by the respondent. Once the case 18 seen as one of mere incapacity and not of misconduct, 1t rollows, 1n my opinion, that s.58 can have no application to the case. The appellant's first argument should be rejected. The appellant next argues that she was denied natural justice. I[ agree with Lockhart, J.. tor the reasons he gives, that this arqument should also he reiected. 8. Pinally. the appellant attacks the validity of By-law 156(2) pursuant to which the respondent purported to terminate her services. Two distinct arguments are advanced. First, 1t 1s said that. because the by-law is framed without qualification 'its application 1s not expressed to be subject to the operation or Div.o of Part V or the Act, and. in particular. s.58), 1t is inconsistent with the Act and requlations (in particular, Requlation 35A) \see, @.q., Shanahan v. Scott (1956) 96 C.L.R. 245 at p.250). Secondly. the appellant says that the only relevant source of power to make By-law 156 1s to be found in s.lililiiq) or the Act, that 1s, a power to make delegated legislation with respect to "the terms and conditions of employment of officers and employees"; vet, she arques, By-law 1561.2) purports to deal with a ditferent subiect matter, namely the dismissal ot employees isee cory Lighterage Limited v. Transport & General Workers Union C1973] 1 W.L.R. 792). In my opinion, neither argument should be accepted. Although By-law 156(2) confers a power ot dismissal ot employees upon the respondent, the general language ot the by-law should, as a matter ot construction, be read down so as to be subject to the operation ot.any provision ot the Act or requlations where relevant. if. for example, the circumstances ot a particular case activate the operation or s.58, then the power of dismzssal conterred by By-law 156: 2) 9. should be read as capable ot exercise only subject to compliance with the provisions of Div.6 of Part V of the Act. In short. the by-law should be read together with the act and requlations. So construed, the by-law 1s not to be taken to exhaustively state the conditions upon which dismissal may take place and no inconsistency arises (see Pearce, Delegated Legislation, p.182, para.416). Further. 1n my view, the by-law 1s within the power conterred by s.liicliig). It ais not limited in its scope to the dismissal of a single employee. Rather, 1t purports to conter a general power ot dismissal of emplovees. It thus deals with a subsisting relationship of employer and employee. It may be contrasted with a provision which does no more than requlate the rights ot parties whose employment relationship has ended. The by-law may properly be characterised as a provision dealing with the terms and conditions ot employment of existing employees icrt. Slonim vy. Fellows (1984) 54 A.GL.R. 673). In my opinion, the by-law 1s valid. I would dismiss the appeal with costs. | certify that this andthe & preceding Pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Beaumont. . . a aaa * A thee - dou / Associate Dated 5 ose twp