Joseph Steven Rappa v Commonwealth of Australia [1995] IRCA 672

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - PROCEDURAL FAIRNESS - NOTICE - DELAY - EXTENSION OF TIME INDUSTRIAL RELATIONS ACT 1988 , ss170DB, 170DC, 170DE Maggs v Comptroller- General of Customs 128 ALR 586 Nicolson v Heaven & Earth Gallery Pty Ltd 126 ALR 233 JOSEPH STEVEN RAPPA v COMMONWEALTH OF AUSTRALIA QI 95/1114 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 29 NOVEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1114 QUEENSLAND DISTRICT REGISTRY BETWEEN: JOSEPH STEVEN RAPPA Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent MINUTE OF ORDERS BEFORE: BOULTON JR PLACE: BRISBANE DATE: 29 NOVEMBER 1995 THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1114 QUEENSLAND DISTRICT REGISTRY BETWEEN: JOSEPH STEVEN RAPPA Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 29 NOVEMBER 1995 REASONS FOR JUDGMENT At all material times the applicant was an employee of the Department of Social Security (the Department) at its Woodridge, Brisbane office. He had been so employed since 16 January 1989. For about two years prior to 1994 the applicant had been an acting Field Assessor, his principal duties being concerned with reviews of the entitlement of persons in receipt of benefits, and the size of those benefits, provided to them by the respondent. The applicant had been receiving a Linguistic Availability Performance Allowance ("LAPA"). He had some fluency in Spanish which he employed when dealing with benefit recipients whose native tongue was Spanish. The use of this skill entitled him to LAPA, and boosted his renumeration. On 15 November 1993 the Department initiated a review into the payment of LAPA. As a result of this review, the applicant was advised by Personnel Section that the review had demonstrated his use of Spanish linguistic skills was insufficient to justify payment of LAPA to him, and that allowance would be cancelled with effect from pay day 10 March 1994. After the applicant made contact with the Personnel Section, his Personnel Manager agreed to a further six weeks survey period commencing 8 March 1994, in which to determine his LAPA eligibility. The applicant's immediate supervisor was a Jane Swallow. It came to her attention on 16 March 1994 that the applicant had apparently initiated a review of the one of the Department's benefit recipients (a Spanish speaker) without, she claimed, appropriate authority. Ms Swallow suspected that there may be a connection between the review conducted by the applicant of the benefit recipient's file (which might involve his conversing in Spanish with the recipient), and the current review of the applicant's eligibility for LAPA. She spoke to the applicant that day, and made a note of her conversation with him (exhibit R18). I accept Ms Swallow's assertion that the review conducted by the applicant was unauthorised. She was supported in this by other witnesses for the respondent whose evidence I accept also. I find that the applicant knew that the review was unauthorised when he performed it. When questioned by Ms Swallow on 16 March 1994 about whether there was any link between the review and his receipt of LAPA, the answer he gave suggests there was such a connection. I accept that Ms Swallow also made it plain to the applicant on 16 March 1994 that he was not to review any files without authority, and that the applicant understood her direction. Despite this, I find that the applicant carried out a further four unauthorised reviews between 16 and 25 March 1994. On the latter date these four, and two others (performed on 11 and 14 March 1994 respectively) came to Ms Swallow's attention. On 28 March 1994 Ms Swallow took up with the applicant the matter of the further unauthorised reviews, and his disobedience of the instructions she had given him on 16 March 1994. The further reviews all concerned Spanish speakers. I find that each review was unauthorised, the applicant knew each was unauthorised at the time he conducted them, and his purpose in conducting them was to build up his claim for continuing receipt of LAPA. Ms Swallow passed on what she learnt to her superiors. The Regional Manager of the office, a Mr Webster, referred the matter to a Privacy Investigation Officer of the Department, a Mr Barr. The applicant provided a handwritten statement dated 20 April 1994 dealing with Ms Swallow's concerns. Subsequently, on 6 June 1994, charges under the Public Service Act 1922 were laid against him. An officer (a Mr Beutel) was appointed to conduct an official inquiry into the charges. The charges were as follows: I, Kerry Dianne Flynn, an officer authorised by the Secretary for the purposes of subsection 61(2) of the Public Service Act 1922 ("the Act"), being of the opinion that Joseph Steven Rappa, Administrative Service Officer Class 1 (acting Administrative Service Officer Class 3) of Woodridge Regional Office may have failed to fulfil his duty as an officer, HEREBY CHARGE JOSEPH STEVEN RAPPA with having failed to fulfil his duty as an officer within the meaning of s 56(f)(1) of the Act in that he contravened or failed to comply with a provision of the Public Service Regulations in that: On a date or dates unknown between 1 March 1994 to 28 March 1994 inclusive he did contravene the provision of regulation 37(1) of the Public Service Regulations being a provision that is applicable to him. Regulation 37(1) states that, an officer shall not take, or seek to take advantage of that officer's functions in order to obtain a benefit for that officer or a body or person other than that officer. Particulars of the charge then followed. Omitting the preamble to the other charges, they were as follows: HEREBY CHARGE JOSEPH STEVEN RAPPA with having failed to fulfil his duty as an officer within the meaning of s56(f)(1) of the Act in that he contravened or failed to comply with a provision of the Public Service Regulations in that: At or about 1 March 1994 he did contravene the provision of regulation 8A(b) of the Public Service Regulations being a provision that is applicable to him. Particulars of the charge are that he failed to comply with Departmental Instructions numbered CG900172 (issued 14 September 1990) and CG930010 (issued 14 January 1993) with which it was his duty to comply. Instruction CG900172 states that it is an offence for staff to access information about clients contained in Commonwealth computers other than on a need to know basis to do their job. Instruction CG930010 advised staff of a new provision of the Social Security Act 1991 namely s1312A, which came into effect on 24 December 1992 and made an offence of the unauthorised access to "protected information". "Protected Information" is defined in the Social Security Act 1991 as "information about a person that is held in the records of the Department". There then followed identification of the client whose record the applicant was alleged to have improperly accessed. The other five charges were in like terms to the charge alleging a contravention of regulation 8A(b) of the Public Service Regulations. Each of those charges particularised alleged improper access to client records held by the Department. A Notice of Inquiry dated 5 July 1994 under section 62 of the Public Service Act was served on the applicant. Mr Beutel interviewed the applicant on 21 July 1994, which interview was recorded. It was signed by the applicant on 11 August 1994, at which time he provided a handwritten statement of the same date. On 5 September 1994 Mr Beutel found the applicant guilty of each of the charges. Apart from monetary penalties which he imposed for each of the regulation 8A(b) charges he found proved, he considered dismissal was the appropriate penalty for the regulation 37(1) offence. In consequence, the applicant was served on 8 September 1994 with a Notice of Direction under sub-section 62(6) of the Public Service Act that he was to be dismissed from the Australian Public Service. That notice also advised the applicant of his right to appeal under section 63D of the Act against Mr Beutel's decision, to a Disciplinary Appeal Committee. The applicant appealed, his appeal being dismissed by a Disciplinary Appeal Committee, written notice to that effect being given to him on 10 November 1994. Termination of the applicant's employment by the respondent took effect on that date. The applicant did not file proceedings in this court until 19 April 1995. His application is substantially out of time - para 170EA(3)(a) of the Industrial Relations Act 1988 ("the Act"). I propose to deal with the merits of the matter before turning to the question of whether or not time for the bringing of the proceedings ought to be extended.