La Roche, Philip Raymond v Commonwealth Bank of Australia [1997] FCA 1170

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - complaint of UNLAWFUL TERMINATION - VALID REASON - PROCEDURAL FAIRNESS - COSTS

Industrial Relations Act 1988 ss 170DE, 170DC, 170DF Workplace Relations Act 1996 s 347(1) Maggs v Comptroller-General of Customs (1995) 128 ALR 586, applied PHILIP RAYMOND LA ROCHE v COMMONWEALTH OF AUSTRALIA VI 4568 of 1995 MARSHALL J MELBOURNE 31 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 4568 of 1995

BETWEEN: PHILIP RAYMOND LA ROCHE

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: MARSHALL J

DATE OF ORDER: 31 OCTOBER 1997

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 4568 of 1995

BETWEEN: PHILIP RAYMOND LA ROCHE

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: MARSHALL J

DATE: 31 OCTOBER 1997

PLACE: MELBOURNE

REASONS FOR JUDGMENT On 30 August 1995 the applicant filed in the Victoria District Registry of the Industrial Relations Court of Australia ("IRCA") an application pursuant to what was then known as s 170EA of the Industrial Relations Act 1988 ("the IR Act"). The applicant alleged that his employment had been terminated by the respondent unlawfully. He sought the remedies of reinstatement and compensation. His employer was described in the application as "Australian Taxation Office (Australian Public Service)". There is no juristic person of that name. When the matter came before me the title of the respondent was, by consent, amended to "the Commonwealth of Australia". On 18 September 1995 the District Registrar of IRCA referred the matter to the Australian Industrial Relations Commission ("AIRC") for conciliation pursuant to s 170ED of the IR Act. On 14 November 1995 Commissioner Cribb certified that the AIRC had been unable to settle the matter by conciliation. The matter was heard by Judicial Registrar Millane over twelve sitting days between 10 April 1996 and 27 September 1996. The Judicial Registrar published her reasons for judgment on 22 January 1997. She dismissed the application. On 10 February 1997 the applicant applied for a review of the exercise of power by the Judicial Registrar pursuant to s 377(1) of the Workplace Relations Act 1996 ("the Act"), although the relevant notice of motion incorrectly referred to the IR Act. The review was heard by me on 13, 14, 15, 16, 17, 20 and 21 October 1997. Mr Brian Lacy, of counsel, appeared for the respondent. The applicant represented himself. The hearing time required to complete the matter was unnecessarily prolonged by lengthy cross-examination by the applicant of the respondent's witnesses the vast majority of which was irrelevant to the issues which required determination. On the other hand some time was saved by the acceptance into evidence of parts of the transcript of evidence before the Judicial Registrar. In his submissions and in his evidence as well as in his cross-examination of witnesses, the applicant raised various matters which do not bear upon the central issues to be determined, ie, whether the respondent acted in breach of ss 170DE(1), 170DC and/or 170DF of the IR Act in terminating his employment. The time pressures upon the Court and the exigencies of modern case management are such that I will not be diverted into dealing with those matters which are extraneous to the issues which the Court must concentrate upon to determine this matter. BACKGROUND FACTS The applicant was employed by the respondent as an Administrative Services Officer, Class 4 ("ASO 4"). He was designated "Senior Prosecutions Officer" in Lodgement Enforcement, ("LENF") Revenue Collection of the Australian Taxation Office ("ATO") at Box Hill. He was appointed to that position on 1 July 1992 upon the opening by the ATO of its Box Hill office. The applicant was previously employed at the ATO's premises in Dandenong as a training officer. He commenced employment at the ATO on 30 January 1990. Senior officers in the Box Hill office of the ATO formed the view in the year following the applicant's commencement of duties at Box Hill that the applicant's work performance was unsatisfactory and that his behaviour, attitude and lack of interpersonal skills was causing problems. The applicant at all times denied that he had done anything wrong. On 23 June 1993 the then Manager of LENF, Mr Carrucan, counselled the applicant. It was put to the applicant by Mr Carrucan that many staff were concerned about the way the applicant dealt with them. It was also put to him that he should be "more involved as a member of LENF and not as a separate entity of Senior Prosecutor". The applicant was informed that his actions were causing tension and disharmony in the section and that more serious action would have to be taken if the situation did not improve. On 30 June 1993 the written report of the counselling session was given to the applicant for his response. He made no response. The applicant's attitude was that directions given to him by his superiors in LENF were unlawful and unreasonable. He failed to recognise that his superiors had any authority to give him instructions in the course of his duties. He believed that as a senior prosecutor he held an independent office and could not be directed. The applicant's position of senior prosecutor required him to prepare for and appear in hearings in the Box Hill Magistrates Court. These hearings involved prosecutions of taxpayers for failing to lodge their income tax returns and/or pay group tax. He was not in any sense a person who held a position equivalent to that of a Crown Prosecutor. It is apparent from the evidence that, in his dealings with his superiors, the applicant displayed an attitude of superiority and arrogance because he was studying law whilst his superiors were not and had not. This attitude was also displayed by the applicant before the Court on the review. A further counselling session occurred on 2 September 1993. Mr O'Shaughnessy, one of the applicant's superiors in LENF, discussed the applicant's unsatisfactory work performance with him. Together they agreed upon targets to be achieved by the applicant in respect of work performance. As a result of the applicant's failure to meet those targets he was again counselled on 10 November 1993 about his unsatisfactory work performance. Further work targets were set at that meeting and deadlines were fixed for the performance of certain tasks. Those work targets and deadlines were not met. This resulted in Mr Carrucan's refusal to recommend the payment to the applicant of an annual pay increment. The applicant was given further "completion deadlines" on 7, 17, 18, 24 and 25 January 1994. These further deadlines were also not met. A "formal counselling session" occurred on 22 February 1994 during which Messrs Carrucan and O'Shaughnessy "formally counselled" the applicant about his work performance and conduct. The applicant was assisted at the session by counsel and a union representative. At the conclusion of the session the applicant was given a formal written direction regarding his attendance record. On 10 March 1994 he received formal advice and directions regarding the performance of his duties. On 21 April 1994 the applicant was provided with a document which clarified the directions given on 10 March 1994. The applicant made no effort to comply with these directions. He believed he had a legal right to refuse to speak with Mr Carrucan. On 12 July 1994, Ms Bonner, the team leader in LENF, recommended to Mr Humphries, who was then a Deputy Commissioner of Taxation, that the applicant's work performance be reviewed pursuant to the inefficiency procedure provisions of the Public Service Act 1922 ("the PS Act"). In her recommendation, Ms Bonner said: "The formal counselling identified that Philip gave no indication of any intention to change his behaviour, and given that these issues were covered in some length at the Counselling interview, we believe that they should be noted again. The recommendation to deal with this under the PSC Inefficiency Guidelines is not merely the outcome of the Formal Direction to perform duties, but the result of events over the last 12 months. There has been considerable discussion and attempts made to address the problems with Philip's work performance and ability to work in this team. The management of Lodgement Enforcement has not seen any evidence of change or willingness to change from Philip in this time." On 15 July 1994 the applicant received a formal warning that in the course of performing the duties of his position he had not achieved an acceptable standard of work performance. By letter dated 11 August 1994 Acting Deputy Commissioner Rackham advised the applicant that the applicant had been declared an inefficient officer within the meaning of the PS Act, and was to be assessed under the "Public Service Commission Inefficiency Procedures against (his) normal duties for a period of three calender months." Mr Barry, a Senior Officer in the ATO, was appointed to conduct the inefficiency review. The period of the review was 15 August 1994 to 14 November 1994. On 17 January 1995, Mr Barry reported that: