SAINI v DIRECTOR GENERAL OF NEW SOUTH WALES AGRICULTURE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and COLE JJA 11 October 1996, 11 October 1996 [1996] NSWCA 464 APPEAL from GREAT — "impracticability of reinstatement" — question of fact not law and thus no appeal — adequate reasons given. Cole JA The appellant employee was, on 25 January 1995, served with a letter of charge by the Director General of New South Wales Agriculture. It alleged breach of discipline within the meaning of s66(d) Public Sector Management Act 1988 in that the appellant had intentionally disobeyed or intentionally disregarded a lawful order made or given by a person having authority to make or give such order. Three particulars of charge were detailed. The appellant was further charged with having committed a breach of discipline within the meaning of s66(e) Public Sector Management Act in that he was negligent, careless, inefficient or incompetent in the discharge if his duties. Details of that charge were given. Pursuant to cl27(2)(b) Public Sector Management (Regulations) 1988 the appellant was required to admit or deny the truth of the alleged breaches of discipline and show cause why he should not be punished for those breaches. He did so on 17 February 1995. He admitted the truth of the alleged breaches of discipline under s66(d) and set out a number of factors which he sought to have taken into consideration. He did not accept the alleged breaches of s66(e). On 3 March 1995 the Director General advised the appellant that he had determined that each of the charges was established and called upon the appellant to advance any further material which he wished to have considered when punishment pursuant to s75 Public Sector Management Act was being addressed. The appellant made further submissions on 15 March 1995. On 23 March 1995 the Director General determined that the appellant should be dismissed effective from 3 April 1995. The appellant appealed to the Government and Related Employees Appeal Tribunal (GREAT). It found that each of the charges alleged in breach of both s66(d) and s66(e) were established. Regarding punishment the Tribunal considered whether dismissal was appropriate or whether there should be reinstatement upon certain conditions. It said: "The Tribunal had in mind that the appellant might be reinstated, on certain conditions, if it could be satisfied that his behaviour would change for the better and that a proper relationship could be re-established between the appellant and the employer. The Tribunal invited the appellant to return to the witness box and give further evidence on the issue of whether reinstatement was a practical option; in particular, whether the Tribunal could be satisfied that the appellant's attitude and behaviour would change if he were to be placed back in his position. The appellant's evidence was unsatisfactory on this issue. He was equivocal and unconvincing of any genuine desire to change. On the matter of apology for his 2 UNREPORTED JUDGMENTS past conduct the appellant's general response was that he would be prepared to do so "If the Tribunal thinks I should". Somewhat reluctantly the Tribunal has decided that it cannot reach a state of comfortable satisfaction that there would be any change if the appellant were to be reinstated. In all the circumstances the Tribunal is not able to say that the decision of the Director General to dismiss the appellant was inappropriate, harsh or unreasonable. The Tribunal, therefore, declines to intervene." The appellant has appealed to this Court pressing five grounds of appeal. I shall deal with each in turn. GROUND 2 The second respondent (GREAT) erred in law in failing to apply the correct test of practicability of reinstatement. An appeal lies to this Court only on a question of law!. Upon a breach of s66 Public Sector Management Act 1988 being established, the Director General was empowered by s75(1) to impose the penalty of dismissal from the public service.2 That decision was not to be implemented without the Governor's approval3. The decision was subject to the right of appeal pursuant to Pt3 Government and Related Employees Appeal Tribunal Act 19804. S24 GREAT Act conferred a right of appeal to the Tribunal in such circumstances. By s48 the Tribunal was entitled to "allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit'.5 The onus in that appeal remained with the appellant®. The appellant did not succeed in persuading the Tribunal that it should uphold the appeal, or that it should make an order for reinstatement. In determining whether the appellant "might be reinstated, on certain conditions" the Tribunal was exercising its power to consider, and if appropriate make, "such other decision with respect to the appeal as it thinks fit". In that consideration, so the appellant argues, the Tribunal erred in law in "failing to apply the correct test of practicability of reinstatement". In my opinion the question whether reinstatement is practicable so as to justify the Tribunal exercising a power so to order does not involve any question of law. It raises, in all the circumstances of the case, an issue of fact. Accordingly there is no appeal to this Court on that ground. The appellant, whilst accepting that an assessment of the "practicability" of reinstatement involves an element of fact contended that it also involved an element of law thus grounding an appeal. Reliance was placed upon the decision of Industrial Relations Court of Australia in Liddell vy Lembke7. There the Court was concerned with the scope of power vested in it. $1 70EE(2) Industrial Relations Act 1988 (Commonwealth) provided that the remedy of compensation was available only "If the court thinks... that the reinstatement of the employee is impracticable'. In those circumstances Wilcox CJ and Keely J said: 'The precise meaning of "impracticable" in this context should be left to another day, the question is one of general importance and it was not fully argued in this case. But, although "impracticable" does not mean "impossible", it means more than "inconvenient" or "difficult". The imposition of such a stringent S54 Government and Related Employees Appeals Tribunal Act 1980 (as amended). S$75(1)(d) Public Sector Management Act 1988. S75(4). S75(5). S48(2). $42(2). (1994) 127 ALR 342. NAWRYON SE URSAINI v DIRECTOR GENERAL OF NEW SOUTH WALES AGRICULTURE (Cole JA) 3 limitation on the court's power to award compensation, rather than order reinstatement, is inconsistent with the notion that the Parliament intended the court to have an open discretion whether to intervene at all."'8 Where the meaning of the word "impracticable" as used in a statute is in issue, there may well be a question of law involved. However that is not so where a tribunal is determining whether it will exercise its power to make "such other decision with respect to the appeal as it thinks fit". In those circumstances the question of whether reinstatement is impracticable is a question of fact. It follows that there is no appeal to this Court on this ground. GROUND 3 The second respondent erred in law in failing to give sufficient reasons as to why the appellant was not entitled to reinstatement. This ground proceeds on a misconception. The appellant had no "entitlement" to reinstatement. It was a question for the Tribunal to consider whether, in exercise of the powers conferred by s48, it would decide to order reinstatement. Regarding the substance of the ground of appeal, it is well recognised that failure to give reasons for a decision may constitute an error of law, and indeed, s48(4) GREAT Act requires the Tribunal to set forth in its instrument of decision the reasons for its decision. In my opinion it is clear that the Tribunal gave adequate reasons for not ordering reinstatement, namely, that where there was a long history of inappropriate attitude and conduct on behalf of the appellant which rendered it difficult for other employees to work satisfactorily with him, reinstatement would only be appropriate where his past attitude could be shown to be likely to change. The appellant did not give evidence satisfactory to the Tribunal that in truth his attitude would change were he reinstated. This ground fails. GROUND 4 The second respondent erred in law in its finding of fact that it was not practicable to reinstate the appellant to his employment with the first respondent, by not applying the correct standard of civil proof required in the matter of appeal No 277 of 1995. The appellant has seized on the use of the words "comfortable satisfaction" in the passage setting forth the Tribunal's reasons for not ordering reinstatement. It suggests that those words imply application of a criminal rather than a civil standard of proof. It is sufficient to say that, in context, the words "comfortable satisfaction" do not mean "beyond reasonable doubt". Accordingly there has been no error of law. GROUND 5 The second respondent erred in law in that the decision was against the evidence or the weight of evidence. The only matter advanced by the appellant on this ground was the material relied upon in relation to ground 2. The ground is thus interpreted to mean that the finding that reinstatement was impracticable was against the weight of evidence. In my opinion it clearly was not. The Tribunal recited the long history of unsatisfactory relationships between the appellant on the one hand and five employees extending over a number of years on the other. There was abundant evidence flowing from that, coupled with the appellant's found absence of attitudinal change, to justify the finding. 8. (1994) 127 ALR at 360. 9. Soulemezis v Dudley Holdings Pty Ltd (1978) 10 NSWLR 247. 4 UNREPORTED JUDGMENTS GROUND 6 The second respondent acted upon material, without affording the appellant, expressly or by appropriately signalling the matter to his attention, the opportunity to offer evidence and/or submissions upon the material in question. The appellant contends that in making its finding regarding punishment that reinstatement was not appropriate, and in referring to the appellant's general response regarding the giving of an apology that "he would be prepared to do so if the Tribunal thinks I should'', the Tribunal erred because that evidence was given not in relation to the topic of reinstatement but at an earlier point in the hearing when he was asked whether he would apologise to certain departmental officers. It was said that the appellant should have been given the opportunity once the Tribunal determined that he was guilty of the charges, to tender an apology, or at least be asked whether he would do so. Further it was contended that the Tribunal relied on matters other than those in the letter of charge in dealing with the appellant's appeal without giving the appellant the opportunity to present evidence or address on such matters. In my opinion this ground is without substance. The appellant conceded the first charge. Thus punishment was clearly in issue throughout the whole proceedings. Further, the Tribunal dealt only with the charges specified in the letter of charge and punishment therefore. It must have been obvious to the appellant and his advisers that the Tribunal was dealing only with those matters. It considered other matters relating to conduct of the appellant in determining whether in the exercise of its discretion it would order reinstatement. It was entitled to do so, just as it was entitled to have regard to other matters dealt with by the evidence in assessing the appellant's credit. In my opinion Ground 6 fails. I would propose that the appeal be dismissed with costs. Clarke JA For the reasons given by Cole Ja I am unable to conclude that the appellant has established that the Tribunal erred in law. Except in so far as the appellant submitted that the Tribunal denied natural justice, the grounds of appeal raised in my opinion are only errors of fact. the other ground, that is the denial of natural justice, while raising the question of law, was not made out I agree with the order proposed. Meagher JA I agree with Mr Justice Cole. Clarke JA: The orders of the Court will that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: A Moses Solicitors for the appellant: Walters Counsel for the respondent: E Brus Solicitors for the respondent: Cameron Gillingham Boyd