CATCHWORDS ADMINISTRATIVE LAW - temporary employee - whether appointment as an "officer" - repetitive strain injury ~-sick leave - slow progress on rehabilitation programme - CMO report - opportunity to provide further information - whether basis on which respondent could find applicant unfit for employment as a data processing operator ~ whether respondent required in the circumstances to afford applicant an opportunity to be heard - whether order should be made in the light of non-compliance with another condition precedent to employment. Administrative Decisions (Judicial Review) Act 1977 s.5 Telecommunications Act 1975 $8.38, 39 TeLlecommunications Regulations r.35a. Trigger v. The Australian Telecommunications Commission FUL Court, 17.12.84, unreported). Kioa v. West (1986) 60 A.L.J.R. 113. ELIZABETH HENDERSON V. AUSTRALIAN TELECOMMUNICATIONS COMMISSION NO. G47 of 1986 Jackson J. lst December 1986 Brisbane IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G47 of 1986 GENERAL DIVISION BETWEEN: ELIZABETH HENDERSON Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent CORAM: JACKSON J. DATE: lst December 1986 PLACE: Brisbane MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application for an order of review be refused. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G47 of 1986 ew ww GENERAL DIVISION BETWEEN: ELIZABETH HENDERSON Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent CORAM: JACKSON J. DATE: lst December 1986 PLACE: Brisbane REASONS FOR JUDGMENT These are proceedings in which the applicant seexs an arder of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 in respect of a decision communicated to her by the respondent by a letter dated 20th March 1986. I shall refer later to the terms of the letter and to the events which followed it, bt it is sufficient for the moment to say that it was intended to bring to an end as from lst April 1986 the applicant's employment by the respondent as a data processing operator and to communicate tc her the fact that she was not to be appointed as an "officer" £ the respondent. The applicant's employment by the respondent to that time had been as a member of the Australian Telecommunications Commission Service which is established by s.38(1) of the Telecommunications Act 1975 and consists relevantly of persons "appointed as officers" or "employed as temporary employees" in accordance with Part V of that Act. See s.38(2). The Commission's "officers", for whom quite elaborate provision is made (see e.g. ss.39, 40, 50, 51, 54), are for practical purposes its "permanent" employees and may only be appointed if they satisfy the criteria in s.39(2). Appointment as an officer is initially an appointment on probation for a period of six months (s.40(1)). Temporary employees may also be engaged by the respondent (s.42(1)) but the Act itself is relatively silent on the position of employees so engaged. (See generally the discussion of the relevant provisions of the Act in Trigger v. The Australian Telecomnunications Commission (Full Court, unreported, 17th December 1984)). The applicant's employment »y the respondent commenced on 16th April 1984. She was at all times employed by the respondent as a temporary employee, having been first interviewed for the purposes of employment on 9th April 1984 by two of the respondent's officers, Mrs de Wit and Ms Sheehan. The employment which was discussed on that occasion was temporary employment as a data processor in training and I am satisfied that during the discussions which occurred the possibility that a permanent position might result from the employment was discussed. In particular I am satisfied that the applicant was informed that if she had passed the necessary examinations as a data processor and if her work performance were satisfactory then subject to availability of a permanent position and subject to her passing a medical examination she had good prospects of permanent employment by the respondent in the relatively near future. I do not accept the applicant's evidence that she was given an assurance of permanent employment in an earlier telephone conversation with Mrs de Wit, nor do I think that any such assurance was given during the interview on 93th Avril 1984. At the same time, as I have said, there were good prospects of permanent appointment in the future, and this fact was recognized in the conversation which occurred during the interview. It was the practice of the respondent when engaging staff in the position of the applicant to send a letter setting out the terms of employment and it is contended by the respondent that in accordance with the practice the applicant was sent the original of Exhibit D to Mrs de Wit's affidavit of 18th June 1986 which is relevantly as follows:- "CONFIRMATION OF FIXED TERM EMPLOYMENT Position DATA PROCESSING OPERATOR IN TRAINING Commencing Salary (Gross) $8462 per annum Location REVENUE BRANCH Period of Employment from 16/4/84 to 31/1/85 I wish to confirm arrangements made recently in connection with your employment in the above position. As discussed employment is offered for the above period only. However, if adverse reports on your conduct, diligence or efficiency are received at any time during this period, your services may be terminated. The basic conditions of service as an employee are described overleaf. Commencing Instructions Please report at: 8.30 am to: 7th Floor Communications House 131 Barry Pde FORTITUDE VALLEY " The applicant denies that she received such a document and there is no direct evidence of the posting of it. In the circumstances I am not prepared to make a finding that the letter was sent to or received by the applicant but I am satisfied that in one way or another t*~* applicant was aware at all times that her employment was of a temporary nature although, as I have said, there was a significant possibility that she would become a permanent employee. In the latter part of 1984 it became apparent to Mrs de Wit that a vacancy was likely to arise for the appointment to a permanent position of a data processing operator. The applicant was spoken to in this regard and she was one of a number of persons who were in consideration for the appointment to the position. It had not been necessary for the applicant to be medically examined for the purpose of her initial appointment but it was necessary, no doubt by reason of s.39(2)(a) of the Telecommunications Act, for her to be so examined for the purpose of a permanent appointment, and in consequence of this she was medically examined by a Commonwealth Medical Officer, Dr Ephraums, on 3rd December 1984. It was necessary for Mrs de Wit to make a formal recommendation for permanent appointment in respect of the applicant, and she did so on 12th November 1984. When doing so she had some reservations about her suitability because of her sick leave record and she enclosed the sick leave record with the recommendation. In response the Appointments Officer in the respondent's Personnel and Industrial Relations Department by a memorandum dated 10th December 1984 said in relation to the applicant that:- "As her sick Leave has been excessive, she should not have been recommended for appointment but informed that recommendation of her appointment would be deferred for six months and that meanwhile she should endeavour to obtain a satisfactory sick leave record. Please take action to warn Miss Henderson accordingly and inform her that the recommendation for her appointment will be deferred for 6 months during which she should establish a satisfactory sick leave record or her services will be terminated." Mrs de Wit accordingly wrote to the applicant on 8th January 1985 stating:- "I regret to advise that I am unable to recommend your permanent appointment as the amount of sick leave taken has been excessive. Your sick leave record will be reviewed in May 1985 and should it still not be satisfactory consideration may have to be given to termination of your services. It is hoped this review will indicate a satisfactory leave record so that appointment can proceed. In view of the above the period of your fixed term temporary employment has heen extended to 31 May 1985." Although that letter was dated 8th January 1985 it was not in fact received by the applicant until 26th February 1985 when it was handed to her after she had recommenced employment. She had been on sick leave from 12th December 1984 until late February 1985 as a result of an accident which occurred while she was on her way to work, a period of sick leave which I accept was not then or later taken into account in considering whether she had taken "excessive" sick leave. After the applicant resumed employment on 26th February 1985 the incidence of her sick leave, other than the sick leave taken in consequence of the accident to which I have referred, reduced and on 4th June 1985 Mrs de Wit wrote to the applicant in the following terms:- "On 8 January 1985 you were sent a letter advising that permanent appointment could not be recommended because of your unsatisfactory sick leave record. Your sick leave record has been reviewed and it has been decided to proceed with permanent appointment. It will be necessary for you to be re-examined by the Commonwealth Medical Officer before appointment can take place." I should mention at this point that it was argued, albeit faintly, that the letter of 4th June 1985 was an appointment of the applicant as an officer under s.39(1) of the Act. That provision is as follows:- "(1) The Commission may appoint as officers such number of persons as it thinks necessary for the purposes of this Act". The exercise of the power conferred by s.39(1) is limited, however, by s.39(2) which provides inter alia that:- "(2) A person shall not be appointed as an officer unless - (a) the Commission is satisfied, after he has ' undergone a medical examination required by the Commission, as to his health and physical fitness; " and it is clear that the respondent has never been so satisfied. It was argued in the alternative that the terms of $.39(2)(a) are not a "condition precedent" to the exercise of the power conferred by s.39(1), but rather a "condition subsequent" and that a person might be appointed subject to a later compliance with s.39(2)(a). The opening words of $.39(2) are clear, however, and militate against the adoption of such a view. In the result I am satisfied that the applicant has never been appointed an "officer". At the time when Mrs de Wit wrote the letter of 4th June 1985, and indeed when had written the letter of 8th January 1985, Mrs de Wit had not seen the report from Dr Ephraums resulting from his examination of the applicant in December 1984. It was not until later in June 1985 that she did see that report. The report had noted a statement by the applicant that at Christmas 1982 the applicant had attended Princess Alexandra Hospital for examination and X-rays of her neck "after diving into shallow pool", that she was not admitted into hospital on that occasion but that she had worn a brace for two weeks and that she still suffered some neck discomfort if she slept on a hard pillow. In the report Dr Ephraums stated his opinion, as the form required, that the applicant was not likely to reach maximum retiring age if engaged because of "Late effects of neck injury - History of headaches". That conclusion was agreed in by Dr Schmidt, another Commonwealth Medical Officer at Brisbane. Dr Ephraums was also of the view that the applicant should be re-examined in 11 months to enable a decision to be made on her permanent employment in the light of her neck condition. After Mrs de Wit became aware of the terms of that report she caused to be sent to the applicant a letter dated 26th June 1985 which was as follows:- "On 4 June 1985 you were sent a letter advising that your sick leave record has been reviewed and it had been decided to proceed with your permanent appointment and that you would be required to be re-examined by the Commonwealth Medical Officer before appointment could take place. I now further advise, that as a result of your initial medical examination of 3 December 1984, the Commonwealth Medical Officer has advised that you do not meet the standard for appointment at this time and that you will be required to attend for a re-examination in early November before a final decision regarding your medical fitness can be given. Further details will be forwarded to you at a later date." On 27th June 1985, however, the applicant was absent from work on sick leave, the cause being repetitive strain injury which I accept was caused by her work with the respondent. She was absent from the same cause the next day, and then for a period from 3rd July until 17th September 1985. (Once again I accept that these periods were not later taken into account in considering whether she had taken excessive sick leave.) She returned to work on 18th September 1985 and provided a report from Dr Martin Devereaux, a rheumatologist, who said that:- "She has now made a full recovery. I would be grateful if you could slowly introduce her back to her data processing - with initial variety and avoidance of prolonged periods at the keyboard. Within 5-10 days I would expect she should be capable of all work." The applicant, on her return to work, was placed on a programme for rehabilitation arranged by the respondent's Occupational Health Section. The aim of the programme was to start with a little data processing and work up to more and more until she reached a stage where she was able to key in at data processing for fifty minutes out of every sixty. By mid-January 1986, however, the applicant was able to work over a whole day for about 10 minutes each hour at the keyboard, for about 35 minutes each hour doing clerical work and having a break of about 10 minutes, although on occasions in the mornings she was able to work for about 25 minutes at the keyboard. She agreed in evidence that at all times her performance was not nearly sufficient to be employed as a data processing operator but said that the length of time involved in her rehabilitation was due to the fact that she was "snowed under with clerical work" which "seemed to have more importance than the keyboard work". I do not believe the applicant's evidence that the length of time involved in her rehabilitation was because she was snowed under with clerical work. I think that the applicant knew that her progress in rehabilitation was slow and was seeking to provide an explanation, which was untrue, for her having performed poorly, in comparative terms, at the rehabilitation course. The average time taken by repetitive strain injury sufferers in the rehabilitation course before being able to resume work as data processing operators was about one month. Whilst I am not prepared on the evidence to find that the applicant was told of that fact, I yet think that the applicant knew that her performance was not as good as that of other repetitive strain injury sufferers in the course. As will be apparent from the remarks which I have just made Dr Devereaux's prognosis had proved too optimistic and the applicant was still suffering from repetititive strain injury on 16th January 1986 when she was re-examined by Dr Ephraums. Dr Ephraums noted in one of his reports of that date that in June 1985 the applicant had had "RSI both wrists and forearms" and that "Pain persists in R/forearm & wrist". His "recommendation" was expressed as follows:- "Recommendation - not fit for work as a DPO Gr l. Redeploy to clerical duties." He stated the position a little more fully in another report of the same date. After receipt of the reports, Mrs de Wit wrote to the applicant on 6th February 1986 a letter which stated that:- "AS you are aware permanent appointment as a Data Processing Operator was deferred because the Commonwealth Medical Officer declared you medically unfit for appointment after your examination in December 1984. The results of your re-examination by the CMO on 16 January 1986 have been received and he has advised that you are still are (sic) not medically fit for appointment as a Data Processing Operator. In the circumstances I regret to advise that we are unable to offer further employment; therefore your services will be terminated from close of business on Friday 14 February 1986. Salary owing will be made available on that day at the Paymasters Office and all other monies owing to you will be forwarded by cheque to your home address as soon as possible after that date." The letter was handed to the applicant on the same day. The consequence of the letter of 6th February 1986 was that industrial action was threatened by the applicant's union and in the result it was decided to give the applicant an opportunity to put forward any further material which she wished. That decision was conveyed on 14th February 1986 when Mrs de Wit handed to the applicant a letter in the following terms:- "I refer to my letter of 6 February 1986 advising termination of services from close of business on 14 February 1986. That decision has been taken in line with the conditions of Staff By-Law 156 (copy attached) and based on the following facts: (a) (b) (ec) Whilst employed on a temporary basis you began to suffer from RSI in June 1985 and since then you have had long periods of sick leave for that reason and have not been able to perform the duties for which you were employed. After lengthy participation in a rehabilitation work program your progress toward resumption of normal duties has been inadequate. Resulting from an examination on 16 January 1986 advice has been received from the Commonwealth Medical Officer indicating you are not medically fit for appointment as a Data Processing Operator. Before the decision of 6 February is enacted it has been decided to offer you the opportunity to provide any further information which could have a bearing on my decision making process. Any such information must reach me personally by 4.00 pm on Friday 21 February 1986. In the light of this decision it has been decided to offer a further fixed term period of employment from 17 February 1986 to close of business on 28 February 1986." It will be seen that paragraph (a) of the letter referred only to sick leave related to the repetitive strain injury. The applicant's response to the invitation was to provide medical reports from Dr §.G. Coleman, an orthopaedic surgeon, a further report from Dr Devereaux and a report from her general practitioner, Dr A.B. McKay. I shall refer below to the terms of those reports but it is sufficient for present purposes to say that in consequence of their receipt it was arranged that the applicant would see, at the instigation of the Department of Health, Dr David Vickers, an orthopaedic surgeon in private practice, in early March 1986. Although the Letter of 14th February had referred to a term of employment ending on 28th February, the term was extended to 28th March 1986 because of delays involved in obtaining the medical reports. Dr Vickers provided a report dated 7th March 1986 and after receiving that report and Dr Ephraums' comments thereon of 20th March 1986, Mrs de Wit wrote on 20th March 1986 to the applicant stating that:- "I refer to my letter of 14 February 1986 advising that your employment would be extended to allow examination of any evidence which might support the continuation of your employment. All information has now been examined and the following has been determined. (a) Specialist advice from Dr N Vickers informs us that - " ....++.I did however perform an examination as a matter of routine and found no abnormality." ",.....If she had a genuine case of upper limb disability from keyboard operating in the past, chances are this would happen again." "..ee.-T don't believe that a trial of work back at the keyboard is likely to do her any particular harm". (b) On the basis of further consideration of all medical information the Commonwealth Medical Officer has determined that the decision of 16 January 1986 that you are medically unfit for appointment as a Data Processing Operator remains unchanged. (¢) Your sick leave record is once again far in excess of the level considered acceptable for appointment to take place. Since 1.11.85 you have availed of 13 days l hour 6 minutes sick leave and have supported your absences with approved medical certificates on only two occasions totalling 5 days 4 hours 41 minutes. I refer to my previous warning of 8.1.85 which stated - "Your sick leave record will be reviewed in May 1985 and should it still not be satisfactory consideration may have to t2 given to termination of your services." (d) As you have been declared unfit for permanent appointment the only employment option would be further fixed term employment as a Data Processing Operator. Due to a number of circumstances at present we have a surplus of four DPO's (not including yourself) and we will not need to employ any further staff in the foreseeable future. Taking into account all the above factors, there is no change to our decision to cease your employment. Therefore I regret to advise that your services will be terminated as of close of business on Tuesday 1 April 1986. All salary owing to you will be available at the Paymaster's Ofice on 1 April and all other monies owing will be forwarded to your home address by cheque as soon as possible after that date." Some negotiations occurred between the applicant's union and the respondent and the applicant was continued in temporary employment pending the determination of the dispute which by 10th April 1986 had come before the Australian Conciliation and Arbitration Commission. On that date Commissioner Grimshaw recommended that the applicant be given a three month trial of work. His recommendation was in the following terms:- "The evidence suggests Ms Henderson no longer suffers from R.S.I.. It is the recommendation of this Commission, having considered the submissions of the parties and the exhibits tendered, particularly the medical evidence that Ms Henderson should be re-employed as a Data Processing Operator and that she be examined by the Commonwealth Medical Officer on a monthly basis. Copies of those reports to be sent to me and that this matter will be relisted for report in 3 months time. During this period Telecom should make every effort to ensure that the equipment is ergonomically designed to remove or lessen the likelihood of further injury." The three months trial was to commence on 14th April 1986 but before that could happen the applicant produced a medical certificate from Dr McKay which stated:- "I hereby certify that on 2/4/86 YT was consulted by Elizabeth E. Henderson .. who in my opinion is suffering from work related injury resulting in "unfit to work" category and will be unfit for duty up to and including 1/4/86 to 1/7/86". In the light of that report, which was at odds with the medical reports which were the basis of Commissioner Grimshaw's decision, two events occurred. First the respondent refused to participate in the trial of work contemplated by Commissioner Grimshaw, and secondly ; Commissioner Grimshaw revoked his recommendation. I may say that Dr McKay has asserted in an affidavit in these proceedings that at the time when he gave the certificate his belief was that the applicant "had totally recovered" from the repetitive strain injury, despite the terms of the certificate. It is unnecessary, however, to deal further with that curiosity. The decision to bring to an end the applicant's temporary employment (in which was involved the decision not to take the steps necessary to engage her as an officer) was attacked on a number of grounds, to which I shall turn ina moment. Before doing so, however, I should deal with one argument advanced on behalf of the respondent. That argument 1s that the decision conveyed by the letter of 20th March 1986 is no longer operative because, as it was put in argument:- ",.. the decision has already been reviewed and reconsidered - and reconsidered in favour of the respondent for a period of 10 days, and then altered again because of the production of the medical certificate, which showed that she was incapacitated as from 3 April." I do not accept this argument. It seems to me that the decision to bring to an end the applicant's temporary _employment and the concomitant decision not to engage her as an officer were never changed. It is true that the date on which those decisions were to take effect was changed, and it is true that if the three month trial had proved satisfactory then the decisions would have changed, but I do not think that there was ever a change in the substance of those decisions. As I have said the decision conveyed by the letter of 20th March 1986 was attacked on a number of grounds, the first of which was put in argument as being that a breach of natural justice had occurred in arriving at the decision that the applicant was medically unfit for appointment as a data processing operator. Although the argument was characterised as breach of natural justice, the bases of the argument were essentially that the medical reports to which I have referred showed that all the material as to the applicant's fitness was "one way", i.e. in her favour, and that the applicant was fit for employment as a data processing operator. y think that the argument so advanced is simply not correct factually. As I have said Dr Ephraums' report of 16th January 1986 was to the effect that the applicant still had RSI, that her prognosis was "uncertain", that she was unfit for continued employment, that she should be redeployed to clerical duties and that she should avoid repetitive tasks for prolonged periods. On its face, however, Dr Coleman's report does support the applicant's case in that while he was of the view that she had a fatigue type RSI, and was experiencing some pain in the extensors of the forearm, front of the wrist and in the ulna fingers, he yet expressed the view that her symptoms were then minimal, that she was still able to work, and that there was no permanent disability. The conclusion that she was still able to work appears to have been based, however, on the view "that she is now working quite satisfactorily", a view which I find as a fact was not the case. In relation to the other reports, Dr Devereaux did not give an unqualified report. He had seen her in the period 16th July 1985 to 17th September 1985 and expressed the view that:- "With care, rest breaks and avoidance of excess overtime I would consider her capable of continuing in her chosen eccupation. She has demonstrated past ability to cope with data processing when she worked for Westpac." and Dr McKay said that it would be necessary for her to maintain work relief in her position but that did not preclude her continuing in her employment capacity as a data processor. I think that it is thus impossible to say, as the argument for the applicant would have it, that the reports to which I have referred were entirely in favour of the applicant being fit for duty. Rather they recognized that she would have to be careful in the way in which she went about her affairs. Nor, I think, does Dr Vickers' report support the view that the applicant was fit for appointment as a data processing operator. His report was as follows:- "At your request I have interviewed ELIZABETH EMILY HENDERSON regarding the pain in her upper limbs. The medical component of my consultation was rather brief as this patient claims that she has fully recovered from her reversible fatigue syndrome, and as you are aware, there are no signs in this condition in any case, so I did not really have anything to work on. One can only take her word that she has recovered. I did however perform an examination as a matter of routine and found no abnormality. I gather that the point of the consultation was regarding her employability. I asked her whether she was prepared to return to keyboard operating, and she indicated that she was. If she had a genuine case of upper limb disability from keyboard operating in the past, chances are this would happen again. I advised her of this possibility, and indicated that I thought it would only be reasonable that if she was given another chance to remain as a keyboard Operator at Telecom, she would have to accept dismissal if she then had a recurrence of reversible fatigue syndrome preventing her from achieving an adequate work performance. She seemed to accept this point of view, but of course this was only verbal. I don't believe that a trial of work back at the keyboard is likely to do her any particular harm, but of course the decision regarding this can only be taken by the Employer because of the potential legal repercussions." It is clear, it seems to me, that this letter can not be regarded as a letter which suggests that the applicant was fit for permanent employment as a data processing operator. The applicant had, as I accept, a genuine case of repetitive strain injury and, as Dr Vickers said in his report, if this were so the chances were that it would happen again. That would seem to me to indicate that the applicant was not fit for appointment. After Dr Ephraums had received Dr Vickers' report he said in a further report dated 19th March 1986:- "Based on my examination of 16 January 1986 I still consider Ms Henderson unfit for appointment as a Data Processing Operator. I will however defer to Dr Vickers' expert opinion and recommend a trial of full time DPO duties for three months followed by a further medical review." I see no reason whatsoever why Mrs de Wit was not entitled to rely upon what was said by the Commonwealth Medical Officer, Dr Ephraums, namely that the applicant was unfit for appointment as a data processing operator nor do I see why she was not entitled to rely upon the view of Dr Vickers that if she had had a genuine case of RSI the chances were that it would recur. In these circumstances I think that the contention that there was no basis on which it could be said that she was unfit for appointment as a data processing operator is not made out. It was then argued in the alternative that none of the reports said that the applicant was unfit for appointment. Once again, however, this is not the case because Dr Ephraums' report had specifically so stated. Thirdly on this aspect, it was put that the applicant was not given a proper hearing on the question of her medical fitness because the three medical reports received from her were given no weight in the decision as to her medical fitness. I am not satisfied that this is so. Mrs de Wit saw and read the three reports and, in consequence of having done so, caused the applicant to be examined by Dr Vickers. 21 ' In the result I am not satisfied that the ground to which fi have referred has been made out. I turn then to consider the question of sick leave. As I have said earlier, the applicant was told by letter dated 8th January 1985 that her permanent appointment could not be recommended because of her unsatisfactory sick leave record and on 4th June 1985 was told by letter that her sick leave record had been reviewed and that it had been decided to proceed to make a permanent appointment, subject to examination by the Commonwealth Medical Officer. Sick leave was mentioned in paragraph (a) of the letter of 14th February 1986 but the sick leave then referred to was that resulting from repetitive strain injury. The topic of sick leave was not specifically raised with the applicant until 7th March 1986 when by a letter of that day Mrs de Wit said to the applicant:- "With reference to your fixed term temporary emplovment which expires on 7 March 1986 I wish to advise that a further '1xed term period of one week ending 14 March 1986 has been granted. The extra time is required for us to fully consider all information to hand in relation to your medical fitness and the availability of fixed term and permanent employment. Permanent employment is dependent on satisfactory conduct diligence and efficiency, a satisfactory sick leave record and being certified medically fit for appointment by the Commonwealth Medical Officer. If any one of these conditions cannot be met permanent employment cannot take place." I am satisfied that at the time when the letter of 7th March was written Mrs de Wit had not turned her attention specifically to the question whether the applicant's sick leave record in the period since she returned to work on 18th September 1985 was satisfactory. I am also satisfied that in that period her sick leave record was in fact unsatisfactory. No medical certificate was produced to account for the leave taken on 15th November 1985 (a Friday), 16th December 1985 (a Monday), 8th January 1986, 17th January 1986 (a Friday), 7th February 1986 (a Friday), 12th and 13th February 1986 and 25th and 26th February 1986. After the letter of 7th March was received sick leave was taken for a further three days in the period 12th - 14th March and on this occasion a medical certificate was produced. The applicant, I should note in passing, admitted that not all the days off were genuine, although "most were". The argument which is put on behalf of the applicant is that the applicant was not informed that her sick leave record was regarded as unsatisfactory and that she should have been given an opportunity to place information before the respondent to militate against the view that her sick leave record was unsatisfactory. Whilst I regard the matter as very much one on which different minds might take different views, I am in the end of the opinion.that the dictates of fairness would have required that the fact that the applicant's sick leave was unsatisfactory be brought specifically to her attention before a decision adverse to that issue was made. I take that view because although the need for a satisfactory sick leave record was mentioned specifically in the letter of 7th March, the letter in its second paragraph suggested at the same time that the only questions remaining for consideration were the applicant's medical fitness and the availability of positions. Accordingly I am of the view that (assuming that the case was one to which the principles of natural justice would apply) the applicant should have had the opportunity of responding to the view that her sick leave record was unsatisfactory. Compare Kioa v. West (1986) 60 A.L.J.R. 113 at 128B-D per Mason J.. The applicant's argument also contended that a separate reason for the decision contained in the letter of 20th March 1986 was the applicant's performance in the rehabilitation programme and that the applicant should have been given an opportunity to be heard on that matter before the decision was made. It is to be noted, of course, that the letter of 20th March did not refer to the applicant's performance on the rehabilitation course as a reason for the decision and the contention that this was a separate reason derives from a passage in the cross-examination of Mrs de Wit when she said that one of the reasons why the applicant was not appointed permanently was that she had proven through her performance in the rehabilitation group that she was not able to cope with the type of work. I do not think that on the evidence Mrs de Wit did other than treat this matter as one aspect of the whole of the question of the applicant's fitness for the position in the future, and I think that any obligation to give the applicant the opportunity to deal with the issue was satisfied by the invitation given to the applicant in the letter of 14th February to submit such information as she desired, the letter having mentioned specifically her lack of progress in the rehabilitation programme. It was next argued that the decision should be set aside because the procedure contemplated by reg. 35A of the Telecommunications Regulations had not been applied. To understand what is meant by this I should refer to reg. 35A, a regulation which is authorised by s.112(a) of the Act and which provides that:- "35A. Division 6 of Part V of the Act applies to and in relation to an employee who - (a) has been in 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 certain modifications and adaptations of Division 6. Division 6 of Part V provides for procedures to be followed when allegations of misconduct are made against employees of the respondent and one of the results which may follow if the procedures of that Division are followed is dismissal. See s.58(11). It was argued initially that:- (a) because the applicant was a person who had been in the continuous employ of the respondent for a period in excess of a year; and (b) because abuse of sick leave could amount to misconduct in terms of s.57(2) and s.58(1); the only procedure which taking sick leave was an the course of argument, made by Division 6 would into account as a factor appointed an officer and the issue further. Reliance was then Guidelines issued by the could be followed where the propriety of issue was that prescribed by Division 6. [In however, it wags accepted that the provision not preclude abuse of sick leave being taken in determining whether a person should be it is accordingly unnecessary to deal with placed upon paragraph D2/1/30 of some respondent. That part of the Guidelines, Exhibit 3, was in the following terms:- "ADVICE TO APPLICANTS - CONDITIONS D2/1/30 The successful applicant or person to be employed must be advised as soon as possible, in writing, of the selection. Other applicants should be advised in writing as soon as possible of their non-selection and where avprovriate, of future suitable vacancies for which they may apoly. The advice to the successful applicant or any person being engaged must contain the following information: a. ii. Details of the position in which the person is to be engaged, including salary. When, where and to whom to report for duty. Arrangements for medical examination. Where medical examination is being arranged, the person must be advised that continued employment is subject to a satisfactory medical report. Employment is subject to satisfactory conduct, diligence and efficiency. The contract of employment may be terminated by Telecom Australia at any time in accordance with Staff By-law 156 for reasons including but not restricted to unsatisfactory conduct or efficiency. Details of the period of employment, where such employment is for a fixed period, specific project ora specific event occurs and advice that redundancy benefits are not available for fixed period employees. Fixed period means: a period of employment defined by a specific commencement date and a specific cessation date, e.g., commencing on 1 December 1977, ceasing on or before 30 June 1980; or a period of employment defined by a specific commencement date and a maximum period of time, e.g., commencing on 1 December 1977 with employment up to a maximum period of 3 months. employment for a specific project; employment until a specific event occurs, e.g., closure of an exchange. Any unqualified person employed in a position where qualifications are required will be required to relinquish the employment if and when a qualified person is available. A copy of the Conditions of Employment Booklet. A person re-engaged for a fixed period must be advised in writing of the approval and the conditions mentioned in the previous part must again be stipulated." It was suggested that because advice of the nature referred to in the first paragraph of Guideline D2/1/30 had not been given to the applicant, her temporary employment could not be terminated and that failure to comply with the Guideline, assuming it had occurred, vitiated the decision of 20th March 1986. I fail to see how failure to comply with self-imposed guidelines as to notification of terms of employment could, without more, have any effect uvon the matters dealt with in the letter of 20th March and I regard the point as without substance. The next issue concerns Exhibit 4 which is Guideline D3/2/1 and is in the following terms:- "AUTHORITY D3/2/1 Telecom Australia may terminate the services of fixed term employees in accordance with Staff By-law 156, except for disciplinary reasons where the employee has at least one years service, or has been employed with the view to employment beyond one year." By-law 156 is in the following terms:- "Termination of service 156. (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 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 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." The By-law is one of the Telecommunications (Staff) By-Laws made pursuant to s.111(1) of the Act, which includes power to make by-laws the subject matter of which is (s.111(1)(g)):- "(g) the terms and conditions of employment of officers and employees; " The power to make by-laws is by s.1l1(1) expressly stated to be subject to the requirement that the by-laws are not inconsistent with the Act or the regulations, and it may be that in some circumstances questions would arise whether By-law 156(2) was not too widely stated, or should be read down to ensure its validity, e.g. in circumstances to which reg.35A applies. Whether this be so or not, however, and whether Guideline D3/2/1 is or is not entirely consistent with By-law 156(2), it seems to me that that part of Guideline D3/2/1 commencing with the words "except for" and ending with the words "beyond one year" has no relevant application. There was not here a termination of the temporary employment for disciplinary reasons but rather because the temporary employment which existed at the relevant time was purely for the purpose of dealing with the situation pending the making of a decision whether permanent employment would be offered. Rather similar considerations apply to a further Guideline which was relied on, namely Guideline D3/2/3 which is as follows:- "DISCIPLINE - DISMISSAL p3/2/3 Any disciplinary action against an employee with at least one year's continous service may only be taken in accordance with Regulation 35A. (Statutory Rule 27 of 1977). Employees with less than one year's actual or intended service may be dismissed by the Ql1 delegate. It is not necessary for notice of dismissal to be given." The short fact is that the decision in question was not the taking of disciplinary action against an employee in terms of Guideline D3/2/3. Accordingly, in my view, that provision of the Guidelines does not assist the applicant. A further argument advanced on behalf of the applicant was that in terms of s.5(2)(e) of the Administrative Decisions (Judicial Review) Act Mrs de Wit, in making the decision evidenced by the letter of 20th March, exercised a personal discretionary power at the direction or behest of another person. The person at whose direction or behest the power is said to have been exercised is Dr Ephraums. It seems quite apparent, however, that all that was done was that Dr Ephraums provided his professional opinion in relation to the matter. There was no "direction" or "behest" on his part As will be apparent from the foregoing, I am of the view that if the respondent was required to do so it did not afford the applicant natural justice in relation to the taking into account of her sick leave record but that otherwise there is no cause for complaint by her as to the procedure which has occurred. The questions which then arise are whether it was necessary for the respondent to afford her natural justice in the circumstances and whether it is in any event necessary to decide that question. I do not think that it is necessary in this case to decide whether the respondent was required in the circumstances to afford the applicant an opportunity to be heard in relation to the question of sick leave. I take that view because it is quite apparent that the power given to appoint a person as an "officer" under s.39(1) is a power which may only lawfully be exercised once the respondent has satisfied itself as to the matters referred to in s.39(2)(a), to which I have already referred. The respondent was not so satisfied in the present case and even if there had been no question arising as to sick leave it could not lawfully have appointed the applicant as an "officer". In those circumstances I do not think that any order should be made under s.16 of the Administrative Decisions (Judicial Review) Act altering the decision in relation to an appointment as an "afficer". Further it is clear that the temporary employment which the applicant had at the time when the decision was made was one which was intended to continue only until her appointment as an "afficer" or refusal to make such an appointment. Once again no relief is called for. The application for an order of review is refused. were I certify that Tm Huwhy (30) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Jackson. Associate: Witencncder liars. Date: lst December 1986 Counsel for the applicant: Mr M.W.D. White Solicitors for the applicant: Hawthorn Cuppaidge & Badgery Counsel for the respondent: Mr R.I. Hanger Q.Cc. with Mr S. Keim Solicitors for the respondent: Australian Government Solicitor Dates of hearing: 20, 21 October 1986