Laurence Christopher O'Kane v Mark Douglas, Peter Wallace and Neville Smith as members of the Disciplinary Appeal Committee and the Australian Capital Territory [2001] ACTSC 130 (21 December 2001)

Last Updated: 24 December 2001

Laurence Christopher O'Kane v Mark Douglas, Peter Wallace and Neville Smith as members of the Disciplinary Appeal Committee and the Australian Capital Territory

[2001] ACTSC 130 (21 December 2001)

CATCHWORDS

ADMINISTRATIVE LAW - application for review under Administrative Decisions (Judicial Review) Act 1989 - Disciplinary Appeals Committee - finding of misconduct by public employee - failure to obey lawful and reasonable direction - whether direction impossible to perform is reasonable - whether failure to obey where performance is impossible - whether conduct of officer voluntary - whether demotion excessive penalty for bus driver failing to report likely lateness for work.

Administrative Decisions (Judicial Review) Act 1989

Merit Protection (Australian Government Employees) Act 1984

Public Sector Management Act 1994

Spring v The Merit Protection Board (unreported, Supreme Court of Victoria, 9 December 1994)

R v White Ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1985-86) 162 CLR 24

No. SC 629 of 2001

Judge: Miles CJ

Supreme Court of the ACT

Date: 20 December 2001

IN THE SUPREME COURT OF THE )

) No. SC 629 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LAURENCE CHRISTOPHER O'KANE

Applicant

AND: MARK DOUGLAS, PETER WALLACE and NEVILLE SMITH as members of the DISCIPLINARY APPEAL COMMITTEE

First Respondent

AND: AUSTRALIAN CAPITAL TERRITORY

Second Respondent

ORDER

Judge: Miles CJ

Date: 21 December 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. This is an application under s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (the ADJR Act) for an order of review in respect of a decision of the first named respondents made on 10 July 2001. By that decision, the first respondents, who are the members of the relevant Disciplinary Appeal Committee (DAC) established in accordance with Subdiv C of Div 2 of Pt II of the Merit Protection (Australian Government Employees) Act 1984 (Cth), determined an appeal from directions made by an officer of the second respondent (the ACT) following an inquiry into two charges of misconduct on the part of the applicant. The directions were that in relation to charge 1 $150.00 be deducted from the applicant's salary and in relation to charge 2 the applicant be demoted to the level of GSO 4.2 and transferred to duties as a bus cleaner/refueller.

2. The decision of the DAC was as follows:

"By majority, the decision of the DAC is to vary the decision in relation to Charge 1 to a direction that the Appellant be admonished and to confirm the decision in relation to Charge 2."

3. The relevant legislation includes the following provisions of the Public Sector Management Act 1994 (the PSM Act):

"Section 9. A public employee shall in performing his or her duties:

...

(j) Comply with any lawful and reasonable direction given by a person having authority to give the direction.

Section 178.

(1) ...

`misconduct', in relation to an officer, means a failure of the officer to fulfil his or her duty as an officer.

4. Section 191 provides that an officer may appeal to a disciplinary appeal committee against a decision made in respect of him or her, if the decision relates to a charge of misconduct, on either or both of the following grounds:

"(1) That the charge should have been dismissed.

(2) That the action directed to be taken in relation to the charges unduly severe.

FACTS

5. The applicant was a bus driver with ACTION, a section of the Department of Urban Services of the Australian Capital Territory and the public transport provider within the Territory. The applicant lived at Charnwood, a suburb on the north western extremities of the Territory.

6. On 13 December 2000, the applicant was given by way of letter, signed by his Business Unit Manager, a direction in writing which contained the following:

"...you must notify Belconnen Starters' Office personnel of your inability to attend for work and ...such notification must be provided by you within a reasonable time prior to the commencement of your shift to allow adequate time for your shift to be covered. As you will be aware, failure to follow a reasonable and lawful direction may lead to the commencement of disciplinary action within the provisions of the Public Sector Management Act 1994."

7. Following letters written to the applicant complaining of his failure to comply with this direction, an inquiry was held into the alleged misconduct on the part of the applicant and the subsequent events occurred as outlined above at [1] leading to the decision of the DAC on 10 July 2001. Reasons were furnished by the DAC on 30 August 2001.

8. The DAC's reasons contain the following findings of fact.

Incident 13 March 2000

The applicant was due to start work at 6.20 am. He awoke at about 4.30 am with severe nose bleeding. In the belief that he had successfully stopped the bleeding he prepared and dressed for work. The bleeding recommenced. By the time he had once again stopped the bleeding, the time was close to 6.20 am. He telephoned his supervisor at about one minute before the starting time to say that he was ill and unable to attend work. By that time it was too late for ACTION to organise another employee to replace him on the shift.

Incident 15 March 2001

The applicant was in the middle of a bus run and during his lunch break. He was due to resume at Watson at 10.20 am. He took his bus to Calvary Hospital in order to collect a medical certificate for his own purposes. The hospital would not give him the certificate until he had been examined. He waited there for the examination and afterwards was advised by the examining doctor to take the rest of the day off. He telephoned his supervisor at 10.20 am to say that he had been delayed at the hospital (where, he said, there was no clock in the vicinity). He returned to work at 11.00 am.

9. The DAC concluded that these facts proved misconduct on the part of the applicant. It went on to consider the seriousness of the misconduct and countervailing mitigating factors.

10. In relation to the seriousness of the misconduct, the DAC considered that it went "to the heart of the responsibilities of a bus operative" and that the applicant's behaviour "clearly brings ACTION into disrespect". In general terms the DAC said as follows:

"11.1 The reliability of service is one of the basic requirements of any public transport system. Failure of a bus to arrive at a stop at the designated time causes the travelling public the most inconvenience and is one of the most significant causes of complaint and loss of patronage. In this case the actions of the Appellant resulted in 2 services being compromised and in the second incident a bus which could have been used as backup was kept out of service."

11. In relation to mitigating factors the DAC acknowledged that the applicant had no previous disciplinary charges against him and that in respect of charge 1 the applicant had a valid excuse for his failure to report, but not on charge 2. The DAC noted that the applicant had had prior warning of the need to call in on time so that his absence could be covered by a replacement employee, that in particular he had received one such warning on 14 March 2001, a warning that he did not seem to take seriously and which he rejected in favour of a view that ACTION should go through a process of counselling before issuing warnings and a more general view of ACTION being conducted inefficiently.

12. The DAC concluded as follows:

"16.1 The role of the DAC is to facilitate effective administration of the Public Sector and to maintain public confidence in its integrity. The purpose is not to punish individuals. Public confidence in the operations [of] ACTION is essential particularly in relation to the reliability of its service. The Appellant by his behaviour has forfeited the confidence of ACTION and the community in his ability to perform duties of a bus driver.

16.2 It certainly would not enhance the integrity of ACTION if no action was taken to ensure that the Appellant was well aware of his duty to the travelling public and could be relied on to perform effectively in the future. Accordingly the decision of the DAC is to vary the Direction in relation to Charge 1 to a direction that the Appellant be admonished and to confirm the direction in relation to Charge 2."

13. It may be noted that the DAC decision was a majority decision. A minority report by one of the DAC members considered that the majority had not taken sufficient note of the ameliorating factors, including the financial impact that demotion would have on the appellant as well as upon his career. It concluded that the monetary penalty imposed by the inquiry officer was "more than warranted".

GROUNDS FOR REVIEW

14. These are set out in the application filed as follows:

"1. The [First] Respondent erred in law in finding the charges proven in that:

(a) on the findings of fact made by the [First] Respondent, the Applicant did not intend to commit either disciplinary charge and could not therefore be found guilty of them;

(b) in the alternative, on the findings of fact made by the [First] Respondent, the Applicant was unable to comply with the directions through circumstances beyond his reasonable control and could not therefore be found guilty of the disciplinary charges;

(c) the proper interpretation of the directions given to the Applicant was that "reasonable notice" meant reasonable notice in all the circumstances, and not just reasonable notice for ACTION's purposes.

2. The [First] Respondent failed to take into account relevant considerations, namely:

(a) the Applicant's lack of intention to commit the disciplinary offences;

(b) the Applicant's inability to be able to comply with the directions within a time that was reasonable for ACTION's purposes;

(c) the circumstances of the Applicant on each day in question in determining the reasonableness of the Applicant's notification of ACTION in respect of his inability to attend for his rostered shifts."

I deal with these grounds in turn.

LACK OF INTENT

15. It is not necessary to discuss in any depth the submission in relation to whether or not as a matter of law it was necessary for the DAC to consider whether the applicant intended to commit either of the disciplinary charges. The findings of fact are such that the conduct in question was clearly conscious and voluntary and it resulted in the failure to report the anticipated absence from work before the time work was to commence. Whether timely reporting was impossible in the circumstances is dealt with below.

IMPOSSIBILITY OF PERFORMANCE

16. The next part of the submission is that the DAC was wrong in law in finding or confirming the finding that the applicant was guilty of the two charges when on the facts it was impossible for him to comply with the direction of 14 March 2001 that he report his proposed absence before the starting time. As counsel acknowledged, the submission really involved one or both of two questions: Was the relevant legislation and the direction, or both, subject to an implied condition of reasonableness in the standard of conduct demanded? In other words, to borrow from the terminology of the criminal law, does the legislation create a strict liability on the part of an officer who fails to obey a lawful and reasonable direction, or is it subject to an implied qualification that failure to obey a direction which is impossible of performance is not misconduct within the meaning of the legislation?

17. Reliance was placed on a decision from Victoria, Spring v The Merit Protection Board (unreported, Supreme Court of Victoria, 9 December 1994), J D Phillips J. That case was concerned with a disciplinary charge against a school teacher under Victorian State legislation. The charge alleged failure to control disruptive behaviour by pupils in the classroom. The teacher claimed that any such failure was due to a depressive illness on his part. A disciplinary board found that the state of ill health on the part of the teacher was crucial and that in the light of such ill health the board was not satisfied that the teacher's conduct was deliberate. Accordingly, it dismissed the charges.

18. On application for certiorari, J D Phillips J held that it was not necessary to do more than conclude that the disciplinary offence in question may be constituted, although there be no "wilful" misconduct, and that it was sufficient that it be voluntary, that is, a willed and intentional act.

19. The result was that his Honour found that there was an error of law in the proceedings before the board in that the board had not examined the question whether the teacher was so affected by a depressive illness that his conduct in the classroom should be regarded as involuntary.

20. I have not examined the Victorian legislation in that case in order to compare it with the relevant statutory provisions for the purposes of the present appeal. But, in my view, it is clear that the approach is correct in principle. Translated to the circumstances of the appeal now before this Court, the question becomes: Did the DAC consider the question whether the failure of the applicant on either occasion was so affected by events outside his control that his conduct constituting the failure may be regarded as involuntary? Posed in that way, the question is not about impossibility of performance.

21. Before answering that question it is necessary to bear in mind that the DAC is not a court and cannot be expected to pose such questions nor to endeavour to answer them with the nicety expected of a court of law. Even a court is not usually expected to raise issues for itself and will normally decide the issues that the parties put before it. The question of voluntariness and, possibly, reasonableness under s 9 and the terms of the direction do not appear to have been raised by those appearing for the applicant and ACTION respectively when the charges were before the DAC. It is not only unreal, with the wisdom of hindsight, to say that the DAC should have recognised that these were issues which arose and which the parties should address, but it should be remembered that an alleged breach of a disciplinary provision such as s 9(j) of the PSM Act is not a criminal charge: see R v White; Ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665.

22. The strictures of Mason J in the Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1985-86) 162 CLR 24 at 40 and following, are pertinent to the present case. They include the following:

"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ..."

23. I am unable to see that the DAC took into account any irrelevant consideration or failed to take into account any relevant consideration. The application of the PSM Act has to be made in the light of the circumstances. In some departments of public service lateness for work may be of relatively little importance and may be compensated for by working longer. The concept and practice of allowing flexible working hours (flexi-time) is known to be recognised and applied widely. However in some departments, particularly where officers are dealing face to face with members of the wider public, punctuality may be essential. The delivery of essential services, including public transport services, provides obvious examples. A public transport system cannot function effectively if drivers do not give administrators the opportunity to make alternative arrangements in the event of anything occurring to make the driver unavailable or late for work, particularly if late for work in peak traffic hours. It may be open to a body such as the DAC to find that an officer who does not comply with a direction to report that he or she will be late for work is not guilty of misconduct if the DAC finds that the failure is not due to fault on behalf of the officer. There will often be a fine line between the failure being properly regarded on the one hand as misconduct committed in extenuating circumstances and, on the other hand, conduct which is not blameworthy and therefore not properly categorised as misconduct at all. In the present case, the DAC arrived at the former conclusion. Even the member who delivered the minority report appeared to have done that. There is no error in that approach. Further, when looking at the circumstances in mitigation, for the purpose of deciding what action should be taken in respect of the misconduct proved, the DAC was entitled to look at the applicant's history, which indicated that he had failed on other occasions to give timely notice of an anticipated late arrival for work. The DAC was therefore entitled to regard the misconduct as calling for a reprimand in the first charge and demotion on the second. In my view, the decision is not reviewable and the application will be dismissed.

24. I will hear the parties on costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 21 December 2001

Counsel for the applicant: Mr C Erskine

Solicitor for the applicant: Hill and Rummery

Counsel for the second respondent: Mr R L Crowe

Solicitor for the second respondent: Minter Ellison

Date of hearing: 5 December 2001

Date of judgment: 21 December 2001