SECRETARY OF THE DEPARTMENT OF HEALTH v HARVEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE (1), MEAGHER (2) AND HANDLEY (3) JJA 31 July 1990, 5 October 1990 [1990] NSWCA 196 ADMINISTRATIVE LAW — JURISDICTION OF GREAT — DENIAL OF PROCEDURAL FAIRNESS — IMPLIED STATUTORY DUTY ON EMPLOYER TO ADVISE EMPLOYEE OF APPEAL RIGHTS ADMINISTRATIVE LAW — Jurisdiction of GREAT — Whether failure to lodge appeal within time mandatory and going to jurisdiction — Denial of procedural fairness — Whether employer under implied statutory obligation to notify employee of right of appeal to Tribunal. held there is no implied statutory duty on an employer to notify affected employees of their appeal rights, the statutory requirement is for employers to notify an employee in writing of an appealable decision thereby fixing a definite date from which the time for appeal would run. The time limitation is mandatory and the Tribunal has no jurisdiction to hear an appeal lodged out of time. Local Government Act 1919 s312A Industrial Arbitration Act 1940 Suitors' Fund Act 1951 Government and Related Employees Appeal Tribunal Act 1980 s23(1), s24, s26(1), s29(1), s29(s2),29(3), s54 AND s60. Ex parte Wurth re Flanagan (1957) 58 SR (NSW) 51 Commissioner of Police v Tanos (1958) 98 CLR 383 Agriculture etc. Training Board v Kent [1970] 2 QB 19 Pettitt v Dunkley [1971] 1 NSWLR 376 Patterson v The Public Service Board (1984) 1 NSWLR 237 Forbes v Public Service Board (1986) 14 IR 375 Public Service Board v Osmond (1986) 159 CLR 656 Council of the Shire of Hornsby v Porter (15/6/90 C of A NSW unreported) Clarke JA I agree with the orders proposed by Handley JA for the reasons he has given. Meagher JA I agree with Handley JA. This case is a simple one. The Act means what it says, and, what is more important, it does not mean what it does not say. Handley JA This is an appeal from a decision of the Government and Related Employees Appeal Tribunal (the Tribunal) overruling an objection to its jurisdiction. The Tribunal held that it could hear and determine an appeal by the respondent from the decision of his employer to dismiss him from his employment as a Probationary Ambulance Officer. The right of appeal to this Court conferred by s54 of the Government and Related Employees Appeal Tribunal Act (the Act) is limited to questions of law but there was no dispute that the present appeal raised a question of law. The decision to dismiss fell within s23(1). Accordingly the respondent had a right of appeal to the Tribunal pursuant to s24. However s29(1) requires the appellant to lodge a notice of appeal within twenty-eight days after being notified in writing of the decision against which the appeal is to be made. The respondent was unaware of his right of appeal. The notice in writing of the decision to dismiss which was given to him did not inform him of his right of appeal. When he consulted a senior officer of the Ambulance Service shortly 2 UNREPORTED JUDGMENTS afterwards that officer did not inform him of his appeal rights either. Later he consulted the local officials of his union who informed him of the possibility of an application being made to the Industrial Commission for his reinstatement. Such an application can only be made by the relevant industrial union and ultimately the respondent was informed that the union was not prepared to take up his case. However at no stage did the union officials inform the respondent of the existence of his right to appeal to the Tribunal, which of course he could exercise independently of any official support from his union. In the result the statutory period of twenty-eight days expired without the respondent lodging a notice of appeal. An appeal was lodged out of time on 31 January 1989. The Department promptly objected to the Tribunal's jurisdiction. The Act does not enable the time for appealing to be extended. Moreover the Tribunal has held that the time limit fixed by s29(2) is mandatory and goes to the jurisdiction of the Tribunal to hear the appeal. The respondent did not contend otherwise and this view is supported by the decision in Patterson v The Public Service Board (1984) 1 NSWLR 237 where it was held that the time limit fixed by s55 for appealing to this Court from a decision of the Tribunal was mandatory and there was no power to extend it. It is unfortunate that the respondent was neither aware of his appeal rights nor informed of their existence by his employer or his union. However the time limit appears in an Act of Parliament and Parliament has not seen fit to confer any authority to allow a notice of appeal to be filed outside that time limit. The answer of the present respondent to the appellant's objection to jurisdiction was to rely upon s29(3) and an implied statutory duty on an employer to notify an employee affected by an appealable decision of his or her right of appeal. S29(3) provides: "Nothing in this section prevents an employee from appealing against a decision which was not notified, or particulars of which were not notified, to the employee as required by or under this or any other Act". If the employer was under a statutory obligation to notify the respondent of his right of appeal, the time for appealing to the Tribunal did not commence to run. Accordingly the notice of appeal lodged on 31 January 1989 would be within time and the appeal validly instituted. The issue therefore is whether the employer was under an implied statutory duty to notify the respondent of his right of appeal to the Tribunal. There is of course no express statutory duty to inform employees of their right of appeal. S60 confers power on the Governor to make regulations for the purposes of the Act. This power is wide enough to authorise the making of regulations requiring employers to notify employees of their rights of appeal. No such regulations have been made in relation to disciplinary cases. However a regulation has been made requiring a prescribed form of notice to be given to employees affected by promotion decisions. These forms at least bring the existence of the Tribunal to the attention of employees affected by such decisions. The Court was also informed that the relevant industrial award imposed no obligation on the employer to notify employees of their right of appeal from disciplinary decisions. Any such duty therefore must be implied and derived from the statute by a process of construction. URJ SECRETARY OF THE DEPARTMENT OF HEALTH v HARVEY (Handley JA) 3 S23(1) imposes on an employer bound by the Act a duty to give an employee affected by a disciplinary decision which is subject to appeal to the Tribunal "notice, in writing, of the decision". It is clear that the decision referred to is the decision to dismiss or impose disciplinary action on the employee. The employer is bound by s26 to defer carrying that decision into effect until the time for appeal has expired and if a notice of appeal is filed in time again to defer carrying that decision into effect until the appeal has been heard and determined. There is an apparent conflict between s26(1) and s27 in relation to dismissals which it is not necessary to resolve in the present case. However there is authority which supports the view that s26(1) does apply in a dismissal case and suspends the decision to dismiss during the periods specified. See Ex parte Wurth re Flanagan (1957) 58 SR (NSW) 51 at 58 and Forbes v Public Service Board (1986) 14 IR 375 at 379. In the present case the respondent was terminated from 23 December 1988 pursuant to notice received the day before and was paid two week's salary in lieu of notice in accordance with the award. It would seem on the face of it that the respondent may have been unlawfully dismissed contrary to s26(1) of the Act and may have an entitlement to a further two week's pay pursuant to that section. However this issue is not before this Court and I have formed no concluded opinion on the question. While s26(1) appears to suspend the carrying into effect of a decision to dismiss until the time for appeal to the Tribunal has expired the relevant decision remains a decision to dismiss. It is not a decision to dismiss unless an appeal to the Tribunal is filed and the appeal dismissed. Accordingly the statutory obligation pursuant to s23(1) on the employer to give the affected employee notice in writing of the relevant decision is satisfied by the giving of a written notice which informs the employee concerned of the disciplinary action taken by the employer. In a closely reasoned decision the Chairman of the Tribunal Mr Lynn concluded that the employer owed a duty to inform the respondent of the existence of his right to appeal and since it had failed to discharge this duty the time for appealing had not commenced to run and the appeal was in time. The Chairman said: "Tt is...difficult to see the purpose of the requirement in s23(1) of the...Act to give a notice in writing of certain decisions of disciplinary character if it is not to inform the employee of his appeal rights....accordingly in the particular circumstances of this case, the Tribunal has come to the conclusion that the appellant has not been afforded procedural fairness. The notice he received of the decision which he now wishes to challenge was not in a form which provided him with proper notice of his right of appeal. The notice did not meet the purpose of the legislation which required it to be given. The notice was therefore invalid." In my opinion it is not possible to derive a duty to notify the employee affected of his or her right to appeal merely from the terms of the express statutory obligation to give written notice of the decision. Neither the Tribunal in its decision nor Mr JW Shaw QC who appeared for the respondent were able to refer to any decision in which a Court had found that an administrative decision maker had an implied statutory duty to notify an affected party of the existence of appeal rights. The decision in Agriculture etc. Training Board v Kent [1970] 2 QB 19 referred to by the Tribunal is not such a case. There the delegated legislation imposed an express duty on the Board in any notice of assessment for industrial training levy to include in that notice the Board's 4 UNREPORTED JUDGMENTS address for the service of a notice of appeal or an application for an extension of time for appealing. The decision turned on the true construction of this provision and the validity of a notice of assessment which did not comply. In my opinion the case does not support any general proposition that an administrative decision maker is necessarily under an implied statutory duty to notify persons affected of any appeal rights they might possess. In Pettitt v Dunkley [1971] 1 NSWLR 376 this Court held that a judicial officer from whom an appeal lies to a higher court has a duty in an appropriate case to state his findings of fact and the reasons for his decision to enable the case to be properly and sufficiently laid before the appellate court. The relevant right of appeal is a statutory right granted by Parliament to the aggrieved party and in the words of Asprey JA at 381: "the failure of a trial judge...to state his findings and reasons amounts, in my view, to an encroachment upon those rights. The omission of the trial judge makes it impossible for an appellate court to give effect to those rights, either for one party to the appeal or another and so carry out its own appellate functions". Likewise in the present case it might be said that unless an implied obligation existed on the employer to notify the employee affected of the existence of the right of appeal, the employer could effectively deprive an ignorant employee of his or her appeal rights. The analogy is not without considerable force. However the limits of the principles applied in Pettitt v Dunkley (above) should be noted. In Public Service Board v Osmond (1986) 159 CLR 656 the High Court declined to extend that decision to administrative decision makers so as to require a statement of written reasons which would then be susceptible to judicial review for error of law on the face of the record. In that case the duty to give reasons was sought to be derived from the duty to afford natural justice. However that duty itself must be derived by a process of construction from the statute which authorises the making of the decision, although there is a presumption that statutory powers to affect the rights etc. of others must be exercised in accordance with the requirements of natural justice. See Commissioner of Police v Tanos (1958) 98 CLR 383 at 395. It has not hitherto been suggested that courts subject to a duty, in accordance with Pettitt v Dunkley (above), to give an adequate statement of the reasons for their decisions are also under a duty to inform an unsuccessful litigant of the existence and incidents of a right of appeal to a higher court. The most relevant authority is the recent decision of this Court in Council of the Shire of Hornsby v Porter (15/6/90 not yet reported). The question in that case, as Samuels JA said, was confined to the proper construction of s312A of the Local Government Act 1919 which provided that the owner of adjoining land or of land which might be detrimentally affected by the erection or alteration of a building could inspect the plans of such proposed building or alteration. A simultaneous amendment to a related section obliged Councils to consider the likely effect of a proposed building on adjoining land and buildings before approving a building application. The Council submitted that s312A did not explicitly confer any right to notice and that no such right was to be implied. This Court however held unanimously that a Council did have an implied statutory duty to that effect. Samuels JA concluded: "the section would be robbed of any efficacy which it might have if there were no obligation on the Council to inform adjoining land owners of the fact that an application likely to affect them detrimentally had been made. As far as URJ SECRETARY OF THE DEPARTMENT OF HEALTH v HARVEY (Handley JA) 5 I know there is no way in which occupiers can find out with certainty what building plans their neighbours might harbour. Without notice therefore the section would be wholly ineffective. To apply the language of the passage from Craies (Craies on Statute Law 7th ed.1971 at page 111) to which I have referred...notice is essential 'to the proper and effectual performance of the work which the statute has in contemplation". Likewise Kirby P. said: "The amendment of the Act to permit certain specified owners of land to inspect plans of a proposed erection or alteration of a building on adjoining land or where that building might detrimentally affect the enjoyment of their land imports the necessary implication that such owners should be notified by the local government authority which has them of the existence of such plans. Otherwise the right of inspection which Parliament has conferred would be a comparatively empty one. It would be virtually devoid of effectiveness. The owner would not ordinarily be aware of the existence of such plans, still less of their contents." Naturally the respondent submits that this decision governs the present case and requires the dismissal of the appeal. It is important to note the precise legal basis of the implication found by this Court in s312A. This was the principle stated in Craies on Statute Law referred to above and quoted by Samuels JA as follows: "If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the courts are at liberty to infer that the statute by implication empowers that detail to be carried out." Despite a willingness to find, if I can do so judicially, an implied duty in the Act on the part of employers to notify affected employees of their appeal rights I have been driven to the conclusion that no such implied right can be supported in this case. The Act and its predecessor have been part of the law governing public employment in this State since 1944 and for nearly half a century the statute and its predecessor has functioned adequately and the Tribunal and its predecessor have been kept busy without any apparent need for the recognition of such a statutory duty. In these circumstances I cannot see how the existence of such an implied duty can be a "detail", or that such a detail can either be of great importance or essential to the working of the statute. In the Hornsby Council case (above) unless the neighbouring owners were notified of the existence of a building application that might affect them, they would almost certainly remain in total ignorance of the occasion for the exercise of their new right of inspection. The decision on the building application would be made behind their backs, probably for all practical purposes in secret, and they would never know that an occasion had arisen in which their right of inspection had become exercisable. In these circumstances it was a short step for this Court to take to imply a duty on the Council to notify adjoining owners that an occasion had arisen where their right of inspection was exercisable. In the present case statute has imposed on employers an express obligation to notify an affected employee of the appealable decision. Some of those decisions might otherwise have been made in secret, particularly decisions to make a relevant recommendation or perhaps to defer payment of an increment. 6 UNREPORTED JUDGMENTS Other decisions, such as a decision to dismiss, would have to be notified in any event, but not necessarily in writing. The statute has therefore required the employer to notify an affected employee in writing of an appealable decision, thereby fixing a definite date from which the time for appeal would run, but Parliament has gone no further. Perhaps the Parliament considered that the public sector unions would be vigilant to ensure that their officials and members were aware of these important appeal rights and that therefore there was no need for Parliament to impose any duty on employers to notify affected employees of their existence. Whatever the reason I have been driven to the conclusion that it is not possible to interpret the Act as imposing an implied duty on an employer to notify affected employees of their appeal rights. In my opinion therefore the Tribunal had no jurisdiction to hear and determine the purported appeal by Mr Harvey. It may be that a question as to whether a public sector employer should be under a legal obligation to inform its employees of their rights of appeal to the Tribunal would be an industrial matter so that such an obligation could be imposed by award or agreement. If so s29(3) might apply because the notification may be one that is required "under" the Industrial Arbitration Act. I express no concluded view on this question. The Department appealed to this Court from the preliminary decision of the Tribunal upholding its jurisdiction before the Tribunal had made a final decision on the merits. It is possible that an appeal does not lie to this Court from an interlocutory ruling of the Tribunal on a question of law, including a ruling that the Tribunal possesses jurisdiction. However no objection was raised to the competency of the present appeal and since on any view this Court would have power in original proceedings to make declarations and orders in its supervisory jurisdiction to restrain the Tribunal from proceeding to hear and determine the appeal by Mr Harvey, I am content to assume that the appeal to this Court is competent. In my judgment the appeal should be allowed. The decision of the Tribunal determining that it had jurisdiction should be set aside and in lieu thereof an order should be made striking out the appeal to the Tribunal for want of jurisdiction. The respondent must pay the costs of the present appeal. The Tribunal may not be a court, and if that is the case this Court could only grant the respondent a certificate under the Suitor's Fund Act if a regulation has been made under s7 prescribing the Tribunal as a court for the purposes of the relevant definition in s3. It appears however that no such regulation has ever been made. In these circumstances I am of the opinion that this Court should not grant a certificate under the Suitor's Fund Act at this stage. The respondent should have liberty to apply for grant of such a certificate if so advised. Counsel for the Appellant: TJ ANDERSON Counsel for the Respondent: J SHAW QC AND DJ DICKINSON Solicitors for the Appellant: MJ STERRY, DEPARTMENT OF HEALTH Solicitors for the Respondent: McINTOSH McPHILLAMY and CO - BATHURST