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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Administrative Law - judicial review - dismissal of temporary employee - consideration of grounds for dismissal - whether denial of natural justice - applicability of s.58 Telecommunications Act, 1975 - validity of (Staff) By-law 156(2) as passed under s.111 of Telecommunications Act, 1975.Administrative Decisions (Judicial Review) Act, 1977 s. 5
Telecommunications Act, 1975 ss. 56, 58, 111
Telecommunications Regulations, reg. 35A
Telecommunications (Staff) By-laws, By-law 156
Administrative Law - Judicial review - Dismissal of temporary employee - Allegation of wrongful dismissal - Whether denial of natural justice - Applicability of Telecommunications Act 1975 (Cth), s 58 - Validity of by-law 156 passed under Telecommunications Act 1975 (Cth), s 111.
Statute - By-law - Construction - Subject to statute and regulations.
Master and Servant - Statutory authority - Temporary employee - Implied power to dismiss.
Administrative Law - Expressed basis for decision - Whether decision may be justified upon other grounds. Held (per Fox and Lockhart JJ): (1) The expressed reliance in a letter of dismissal of a temporary employee of the respondent upon by-law 156 (the terms of which are set out in the judgment of Fox J) did not preclude the respondent from justifying its decision upon the basis of any other power which it had.
(2) (Per Lockhart and Beaumont JJ). The respondent had power, if not under by-law 156, at common law to dismiss the appellant on the grounds of behaviour which was to all appearances beyond her control.
(3) (Per Beaumont J). The appellant, who had been warned many times about her unsatisfactory conduct, and who had had, in effect, many hearings as to this conduct, had no legitimate expectation that she would be afforded a further hearing before being dismissed.
(4) By-law 156(2) is within power because it should be read down as capable of exercise only subject to compliance with the Act and the regulations. Thus construed, the by-law is a valid provision dealing with the terms and conditions of employment of existing employees.
HEARING
1984, October 24; December 17. 17:12:1984Appeal from the decision of McGregor J in an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
C Simpson, for the appellant.
In questions relating to the termination of her employment the appellant was entitled to expect that the rules of natural justice would be observed: Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 at 66; Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109; Hamblin v. Duffy (No 2) [1981] FCA 108; (1981) 55 FLR 228 at 236-238. The rules of natural justice required that the appellant be told of the case against her, be given an opportunity to correct or contradict it: Kanda v. Government of Malaya (1962) AC 322 at 337 and be given an opportunity to be heard on the question of penalty if it arises: Ridge v. Baldwin, ibid 68. In particular she was entitled to be heard by the adjudicating officer and to be shown the written statements against her. Even if she was not actually entitled to a hearing in the circumstances, the respondent's behaviour led her to expect a hearing before her employment was threatened: Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149 at 170; Cole v. Cunningham (1983) 49 ALR 123; A.-G. of Hong Kong v. Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629 at 635, 637 She was entitled to have procedures laid down by Div 6, Pt V implemented as allegations made against her came under s 58(1)(b), (c), (e) and/or (f). By-law 156(2) is inconsistent with the Act and Regulations and is invalid: Shanahan v. Scott [1957] HCA 4; (1957) 96 CLR 245 at 250; Carbines v. Powell [1925] HCA 16; (1925) 36 CLR 88 at 92; Morton v. Union Steamship Co of New Zealand [1951] HCA 42; (1951) 83 CLR 402 at 410, 412; Paull v. Munday (1976) 50 ALJR 551 at 554, 555, 556; Utah Construction and Engineering v. Pataky (1966) AC 629; R. v. Minister of State for the Interior (1972) 20 FLR 449
J A Farmer, for the respondent.
This was a case where the employment was terminated because of the appellant's failure to achieve the required standard of competence. The appellant could have no legitimate expectation in the circumstances, of permanent employment or a formal hearing. The requirements of natural justice are "fairness writ large". What is fair depends upon the circumstances in each case: Ansell v. Wells [1982] FCA 186; (1982) 43 ALR 41 at 45; Ceylon University v. Fernando (1960) 1 WLR 223; Mobil Oil of Australia Pty Ltd v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 504, and should have regard to "practical questions" arising Ansell, ibid 46. In the circumstances there was no requirement - in compliance with the obligation to act fairly - to give a formal hearing or to "make out a case" against the appellant, cf Finch v. Goldstein [1981] FCA 132; (1981) 55 FLR 257; Re H K (an Infant) (1967) 2 QB 617; Davis v. Carew-Pole (1956) 1 WLR 833. There were no facts in dispute, the appellant had been put on express notice that her job was in jeopardy, she had had many warnings, she knew her performance had not improved, she was never denied an opportunity to explain her lateness: Local Government Board v. Arlidge (1915) AC 120 at 132-133, 135, 142, 147, 151.
Division 6, Pt V does not provide the only avenue for dismissal of
"officers" or employees of more than twelve months continuous service.
Division
7 (s 65) and Div 5 (s 56) contain modes of dismissal. Section 111
authorises the making of by-laws relating to terms and conditions
of
employment - this would ordinarily include termination of employment. By s
67(1)(2) an award relating to terms and conditions
may be made that is
inconsistent with Div 6, Pt V, for example Australian Telecommunications
Commission and Phonogram Staff (Salaries and Specific Conditions of
Employment) Award
1978, cll 3, 5(2), 67(2), 8, 22 which incorporates by
reference parts of the Australian Telecommunications Commission Employees
(General
Conditions of Employment) Award 1975, cl 31. Modes of dismissal are
set out in Div 6, Pt V, Div 7, s 65, cl 31 of the award and by-law 156.
Division 6 only covers termination of employment for "failure to fulfil duty"
as
defined in s 58(1). The appellant was found to be unable to perform her
duties "for reasons beyond (her) control" hence dismissal
under s 58(1) for
misconduct was not appropriate. Public service employment is not entirely
statutory as the basis of employment
is contractual though overlaid and
circumscribed by statutory provisions: Keeley v. State of Victoria (1964) VR
344; Australian National University v. Burns [1982] FCA 191; (1982) 43 ALR 25; Australian
Telecommunications Commission v. Hart (1982) 43 ALR 165; cf Bennett v. The
Commonwealth (1980) 1 NSWLR 581
Cur adv vultSolicitors for the appellant: Maurice May & Co.
Solicitor for the respondent: Australian Government Solicitor.
GFV
ORDER
1. The appeal be dismissed.2. The appellant pay the respondent's costs of the appeal.
Orders accordingly
DECISION
This is an appeal from a decision of a judge of this Court (McGregor J.) given in an application under the Administrative Decisions (Judicial Review) Act 1977. The appellant claims to have been wrongly dismissed from the respondent's employ. She was a temporary officer, but because she had been in the continuous employment of the respondent for not less than a year (June 1980 to March 1983 in fact) she was, by reason of reg. 35A, entitled to the benefit of Division 6, Part V of the Telecommunications Act 1975, as if she were an "officer". This Division relates to disciplinary offences, and contains a procedure for dealing with them. Section 58 is a key section, and I set out sub-s. (1)(b), which has particularly been relied on:"58. (1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if - . . . (b) he is inefficient or incompetent by reason of causes within his own control".
The facts are more fully dealt with in the judgements of other members of this bench, and of McGregor J., and I can confine myself to stating a conclusion which, as I understand, was that of the responsible officer of Telecom, and is fully supported by the evidence. It is simply that the appellant was incapable of observing punctuality in her work, and also of conducting herself at work sensibly and properly. The conclusion is an unusual one, to be approached with some scepticism. It was, however, an extraordinary situation. She had arrived late at work, often very late, on innumerable occasions, had been spoken to and cautioned by her superior on many occasions, had been warned in writing of the possible consequences of continuing her behaviour, and had been given counselling assistance, yet her unpunctuality continued. Also, she had placed articles of clothing in the staff wash room basins, obstructed other staff from using those facilities, repeatedly left a trolley in the rest room, and had otherwise often behaved strangely, and to the inconvenience of others.
The letter terminating her employment was as follows:"Since June 1980 you have been employed as a Telephonist with Telecom Australia.
The use of the phrase "for reasons beyond your control" in the second last
paragraph doubtless is related to the language in s. 58 (1)(b), and to that in
s. 56, which is not part of Div. 6. Although the letter expressed reliance
on by-law 156 of the by-laws passed by the Commission under
s. 111 of the
Telecommunications Act 1975 and the validity of that by-law was challenged, it
seems to me that the Commission was entitled in the circumstances to justify
its
action on the basis of any power which it then had. One such basis was the
general law. It is not as if different consequences flowed
from reliance on
that law as distinct from by-law 156(2), or that the appellant could in any
relevant way be misled by the Commission's
reliance on one or the other. The
by-law was in the following terms:
"156. (1) Where an employee absents himself from duty without permission and
is so absent for a continuous period of not less than
2 weeks, he shall be
deemed to have resigned from his employment with the Commission at the
expiration of that period of 2 weeks.
(2) Subject to sub-clause (3), the Commission may terminate the services of
an employee at any time.
(3) Where, under the regulations, Division 6 of Part V of the Act applies to
and in relation to an employee, the Commission shall not dispense with his
services under sub-clause (2) by
reason only of the fact that he has done, or
omitted to do, an act or thing in respect of which a charge could be laid
against him
or on the ground that a court has convicted him of a criminal
offence within the meaning of that Division or found, without recording
a
conviction, that he has committed such an offence."
It is not necessary to consider its validity.
In my view Telecom had power if not under the by-law, at common law, to dismiss the appellant on the grounds of behaviour which was, to all appearances, beyond her control, and which therefore did not come within s. 58(1)(b).
I agree that the appeal should be dismissed, with costs.
On 9 March 1983 Christine Trigger, the appellant, was dismissed by The Australian Telecommunications Commission, the respondent, from her position of temporary telephonist with the respondent's Chatswood branch. She challenged her dismissal by filing two applications with this Court, one seeking review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), of the decision terminating her services and the other seeking declarations to the effect that her dismissal was unlawful. The case was heard by a single judge of this Court (McGregor J.) who dismissed both applications with costs. The appellant appealed from his Honour's judgment.
The facts are not in dispute. The appellant commenced employment with the respondent as a temporary employee on 23 June 1980. The Service of the respondent consists of officers and temporary employees. Officers are in effect the permanent staff of the respondent. On 23 April 1982 the appellant applied for what is described in the evidence as "permanent appointment" with the respondent (I assume that means she applied to become an "officer"). However, she frequently arrived late for work. Throughout her employment there were 90 occasions recorded by the respondent of late attendance. On some of these occasions the appellant applied for leave in respect of the period for which she was late by completing and signing a form of application for leave. At other times she gave a reason for her lateness in a document called "Late Attendance Report" which she signed. On each occasion when the documents were completed by the appellant she spoke to a supervising officer. Her lateness was discussed with her on many occasions by officers of the respondent who made it plain that they were dissatisfied. She was given many warnings over a long period about her lateness. On 7 June 1982 she was told that her "permanent appointment" would be deferred for a period of three months when her attendance record would be reviewed. On 3 November 1982, the three month period having expired, the appellant was informed that a review of her attendance record did not reveal any evidence that she had attempted to display an improvement. Further, she was told that her permanency would not be recommended until the required improvement was evidenced and moreover, that failure to improve could result in "severe disciplinary action". Prior to 3 November 1982 her lateness had been discussed with her on at least twelve separate occasions. Following that day the appellant was late for work on some 19 occasions.
On 11 November 1982 she was "counselled" regarding her "unsatisfactory
conduct" and late attendances by Miss Mitchell, her supervisor.
A letter
written by Miss Mitchell was handed to the appellant on 11 November 1982 and
signed by her in acknowledgement that the matters
mentioned therein were
discussed. That letter stated that the following matters were canvassed:
"1. Failed to advise supervisory staff of your intended lateness although you
were on the premises at the time you were due to commence
duty.
2. Had a number of articles of clothing, including underwear on ledge and wash
basin in the Wash Room on 9.11.82, obstructing other
staff from using these
facilities.
3. Spoke to me in a snappish tone when queried regarding lateness and
clothing.
4. Continually leave a trolley in the Rest Room: the bars of this protrude and
could result in an accident.
You have undertaken to improve in these areas and make other necessary
adjustments to meet requirements."
On 18 January 1983 Miss Sheila Chaney, the personnel officer of the
Chatswood branch of the respondent, spoke to the appellant in
the presence of
the assistant personnel officer, Mrs. Jones. A file note signed by Miss Chaney
records the interview with the appellant
in these terms, as far as is
relevant:
"The purpose of my visit was to ascertain whether or not Ms. Trigger would be
interested in speaking to the Social Worker regarding
her personal problems.
She indicated she would be keen to do this if I considered that it would be
beneficial to her. In general conversation Ms. Trigger
explained that she was
at work to enable her to pay off her husband's tractor in spite of the fact
that she was diagnosed in England
as a juvenile schizophrenic. She mentioned
occasions when she hid under the telephone table in the Rest Room because 'she
needed
to be alone' and stated that 'she was quite normal except for the times
she was sick or mental'. (She) . . . accepted the fact that
there was a need
for her to seek professional guidance by the Social Worker."
On 4 March 1983, following a report to him from Miss Chaney, Mr. Kime,
Acting District Telecommunications Manager of the Chatswood
branch of the
respondent, sent a report to Mr. J. Kleyn, Manager, General Personnel Services
Branch of the respondent, concerning
the conduct of the applicant. Thereafter,
Mr. Kleyn informed Mr. Kime that termination of the appellant's services
pursuant to Staff
By-law 156 was appropriate. On 9 March 1983 Mr. Kime wrote
to the appellant in the following terms, formally terminating her employment:
"Since June 1980 you have been employed as a Telephonist with Telecom
Australia.
During your period of service you have shown you are unable to perform the
duties of your position satisfactorily. Despite counselling
from your
Supervisor, the Personnel Officer, and the Telecom Welfare Officer you have
failed to achieve the minimum standard required.
After extended and sympathetic consideration it is concluded that for reasons
beyond your control you are unable to perform the duties
of your position.
Therefore I regret that acting under the authority vested in me by Staff
By-Law 156 I have no alternative but to terminate your services
with the
Australian Telecommunications Commission as from close of business on 9 March
1983. Any outstanding monies including one
week's pay in lieu of notice will
be forwarded to your home address as soon as possible."
Staff By-Law 156 is in the following terms:
"Termination of service.
(1) Where an employee absents himself from duty without permission and is so
absent for a continuous period of not less than 2 weeks,
he shall be deemed to
have resigned from his employment with the Commission at the expiration of
that period of 2 weeks.
(2) Subject to sub-clause (3), the Commission may terminate the services of an
employee at any time.
(3) Where, under the regulations, Division 6 of Part V of the Act applies to
and in relation to an employee, the Commission shall not dispense with his
services under sub-clause (2) by
reason only of the fact that he has done, or
omitted to do, an act or thing in respect of which a charge could be laid
against him
or on the ground that a court has convicted him of a criminal
offence within the meaning of that Division or found, without recording
a
conviction, that he has committed such an offence."
It was submitted by counsel for the appellant before the learned trial Judge that breaches of the rules of natural justice occurred in connection with the making of the decision to terminate her employment and particular reliance was placed upon para. 5(1)(a) of the Judicial Review Act. It was argued that the appellant should have been notified of the specific allegations against her and the nature of the material relied upon to support them. Further the appellant ought to have been given an opportunity to rebut any evidence against her and to furnish material on her own behalf. It was submitted also that the person who made the decision to terminate the appellant's employment should have heard what she wished to say in respect of the complaints made against her: it was not sufficient that other persons, including Miss Chaney and Miss Mitchell, should have spoken to the appellant or "counselled" her and reported the results of those interviews to senior officers of the respondent. Additionally, it was argued that should the occasion arise the appellant was entitled, to make representations as to any penalty. Counsel argued that the appellant had a legitimate expectation that she would be given a hearing of some kind, although not necessarily a formal hearing, before any decision was made to terminate her employment. The legitimate expectation was said to arise from the respondent's own actions in sending letters to the appellant respecting her conduct and attendance threatening disciplinary action if she did not improve while, so it was said, leading her to believe that should disciplinary action be taken, it would be in the form of charges laid pursuant to s. 58 of the Telecommunications Act 1975 ("the Telecommunications Act") and not pursuant to Staff By-law 156. Counsel relied on Kanda v. The Government of Malaya (1962) A.C. 322; Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40; Twist v. Randwick Municipal Council [1976] HCA 58; (1977) 136 C.L.R. 106; Hamblin v. Duffy (No. 2) (1981) 37 A.L.R. 297; Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149; Cole v. Cunningham (1983) 49 A.L.R. 123; Attorney-General for Hong Kong v. Ng Yuen Shiu [1983] UKPC 2; (1983) 2 W.L.R. 735.
Alternatively, it was argued that the appellant was entitled to the benefit of procedures set forth in s. 58, that those procedures were not observed and that the decision to dismiss her was therefore bad in law.
It was also submitted on behalf of the appellant before the trial Judge that by-law 156(2) is inconsistent with the Telecommunications Act and the Telecommunications Regulations and is therefore invalid; hence the decision to dismiss her was a nullity as it was based on that by-law.
The trial Judge held that the presence in the Telecommunications Act,
Telecommunications Regulations and By-Laws of elaborate provisions relating to
officers of the respondent and the relatively brief
reference to temporary
employees, when coupled with the provision for termination of services in
by-law 156, evinced an intention
of the legislature to displace the rule, if
there was one, that a temporary employee had the right to some form of hearing
before
his or her services were terminated. His Honour also held that if,
nevertheless, such a right could be inferred from the circumstances
of a
particular case, this was not such a case because of the facts peculiar to the
appellant. His Honour said:
"She had been spoken to and counselled, and was constantly in touch with various superiors in relation to her late attendance and, it seems, some aspects of her conduct. The rejection of her application for permanent appointment, accompanied as it was with some adverse comment as to her attendance record, which had been under review for a period of three months, would have made it clear to any ordinary person that the tenure of her employment was anything but secure. In my view she was not entitled to any further notice by the respondent that her dismissal was imminent or to an opportunity to be heard in that regard."
His Honour said that, when the services of the appellant were terminated, it was not necessary that the respondent give reasons for the termination. His Honour held that there was no inconsistency between by-law 156 and the Telecommunications Act and that the by-law was valid. He said that by-law 156 empowered the respondent to terminate the appellant's services. His Honour also said that clause 31 of the Australian Telecommunications Commission Employees (Salaries and Specific Conditions of Employment) Award 1978 ("the Award") gave a similar power to the respondent to terminate the services of the appellant. I shall refer to clause 31 later.
The argument of counsel for the appellant on this appeal was substantially the same as the argument which she advanced before the trial Judge.
It is necessary to refer to certain provisions of the Telecommunications Act to understand the issues involved in this case. The Telecommunications Act establishes the respondent as a body corporate with the powers commonly entrusted to Commonwealth statutory bodies (s. 21). As I mentioned earlier, the respondent's Service consists of officers and temporary employees (s. 38). Before a person may be appointed an officer he must satisfy certain statutory requirements as to health and education (paras. 39(2)(a) and (b)). Appointment as an officer is generally for a probationary period of six months (sub-s. 41(1)). The respondent is empowered to engage persons as temporary employees (s. 42). No qualifications for temporary employees are prescribed by the Telecommunications Act. Persons engaged as temporary employees shall perform duties as directed by the respondent or its managing director (sub-s. 42(2)). Officers and employees hold office on such terms and conditions as the respondent determines (sub-s. 43(1)). The respondent may create and abolish positions in its Service and may determine the salary or the range of salary applicable to a position in the Service (s. 44). It may alter the designation of positions or alter the classification of positions in the Service by raising or lowering the salary or range of salary applicable to the position (sub-s. 45(1)). The respondent may appoint persons as officers or transfer or promote officers to fill vacant positions in the Service (s. 46). Promotions of officers to vacant positions is provisional and is subject to appeal as provided by s. 51 namely, an appeal to a Promotions Appeal Board which makes full inquiry into the claims of the appellant and of the officer provisionally promoted and determines the appeal.
Division 6 of Part V of the Telecommunications Act contains provisions
relating to disciplinary action against officers for misconduct. A reference
in the division to misconduct is
a reference to a failure of the officer to
fulfil his duties as an officer (sub-s. 57(2)). Section 58 is an important
section in this case; but as it is a very long section (there are fifteen
sub-sections) I will not proceed to set
it out in full. It is desirable,
however, to recite sub-s. 58(1):
58. (1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if - (a) he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction; (b) he is inefficient or incompetent by reason of causes within his own control; (c) he is negligent or careless in the discharge of his duties; (d) he is guilty of improper conduct as an offier; (e) he is guilty of improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties, is prejudicial to the interests of the Commission or damaging to the business of the Commission; (f) he contravenes or fails to comply with a provision of this Act, of the regulations or of the By-laws, that is applicable to him or with the terms and conditions upon which he is employed; or (g) he has, whether before or after becoming an officer, wilfully supplied to the Commission, to an officer or to some other person acting on behalf of the Commission incorrect or misleading information in connexion with his appointment to the Service."
Thus subsection 58(1) specifies a wide range of conduct by officers which it deems to constitute misconduct; but generally, if not entirely, where the act or omission alleged to constitute the misconduct is within the will, power or control of the officer, for example, wilful disobedience of directions, negligence or improper conduct. Paragraph 58(1)(b) is a clear illustration of this point because it is specifically confined to inefficiency or incompetence by reason of causes within the control of the officer. It does not therefore extend to inefficiency or incompetence caused by matters beyond the control of the officer which would, in my opinion, include causes such as sickness or accident, mental or emotional instability, infirmity or disturbance. Section 58 contains rather elaborate provisions for charging officers with disciplinary offences where a superior officer has reason to believe that the officer concerned may have been guilty of misconduct. The section specifies the procedure that must be followed for charging an officer with misconduct and, if he is found guilty of misconduct, the respondent is empowered to discipline him in various ways, which include admonition, reduction of salary, transfer to another position or dismissal.
Section 58 is to be contrasted with s. 56 which appears in Division 5 of Part V. Section 56 provides that, if an officer appears to the respondent to be inefficient or incompetent or unable to discharge or incapable of discharging the duties of his position, the respondent may transfer him to another position having the same classification as the position held, reduce him to a lower position and salary or retire him from the Service. Whether s. 56 is confined to cases of inefficiency, incompetence, inability or incapacity beyond the control of the officer or may extend to matters within the officer's control is open to some question, but it is not necessary that I form any view about it. What matters for present purposes is that the events which enliven the respondent's powers under s. 56 at least include causes beyond the control of the officer which become manifest in the performance of his duties.
Division 6 also provides for the suspension of officers (s. 59) the removal and variation of suspension (s. 60) and for disciplining, counselling or dismissing officers who have been convicted by courts on charges of particular offences (s. 61). Provision is made for appeals by officers to a Disciplinary Appeal Board against decisions made with respect to them by officers of the respondent under s. 58 or against decisions made with respect to them by the respondent itself under sub-s. 61(1). Provision is made by s. 64 for review by the respondent of findings by authorised officers or by Disciplinary Appeal Boards.
Sections 56 and 58 and the other sections in Division 6 to which reference has been made are not the only provisions in the Telecommunications Act which authorise the respondent to dismiss delinquent or incompetent officers. Section 65 appears in Division 7 and it provides for the deemed resignation of officers in circumstances where they have been absent from duty without permission for a continuous period of not less than four weeks.
Division 6 of Part V applies to temporary employees of the respondent who have been in the continuous employ of the respondent for a period of not less than one year or have been engaged by the respondent to serve for a period of not less than one year. This is achieved by Regulation 35A of the Telecommunications Regulations made pursuant to the regulation making power (s. 112 of the Telecommunications Act). Temporary employees who have not been in continuous employ of the respondent for not less than one year or have not been engaged by the respondent to serve for a period of not less than one year are therefore outside the operation of Division 6 of Part V and are not susceptible to disciplinary action under s. 58. Section 56 has not been made applicable to any temporary employees. It is common ground that the appellant was a temporary employee who had been in the continuous employment of the respondent for a period of not less than one year and that Division 6 of Part V of the Telecommunications Act applied to her before her dismissal.
Counsel for the appellant submitted before us that the allegations made against her by the respondent fall within each of paras. 58(1)(b), (c), (e) or (f) and that she therefore should have been dealt with under that section. This in my opinion misconceives the true nature of the circumstances which led the respondent to conclude that the appellant was unable to perform her duties for reasons beyond her control, and which formed the basis of the decision to terminate her services.
The appellant was persistently late for work over a long period - 90 occasions in all of which 19 occurred between 3 November 1982 and 9 March 1983. She was given many opportunities to explain her lateness and she offered explanations on each of those occasions and when "counselled" for example, by Miss Mitchell in November 1982. On that occasion Miss Mitchell also mentioned other matters to which I referred earlier namely, placing articles of clothing on a ledge and in the wash basins in the wash room, obstructing other staff from using those facilities, continually leaving a trolley in the rest room and speaking to Miss Mitchell in a "snappish" tone when queried about lateness and clothing. Also, the appellant told Miss Chaneyy on 18 January 1983 that she would be keen to see the respondent's social worker regarding her personal problems if Miss Chaneyy thought it beneficial to her. She told Miss Chaneyy then that she was diagnosed in England as a "juvenile schizophrenic", that she had sometimes hidden under the telephone table in the rest room because "she needed to be alone" and that she "was quite normal except for the times she was sick or mental". The file note signed by Miss Chaneyy records that the appellant accepted the fact that there was a need for her to seek professional guidance from the social worker.
The language of the letter of dismissal suggests that, in the respondent's opinion, the appellant's conduct was beyond her control. If she had been an officer in the respondent's Service the respondent may have relied on s. 56 and retired the respondent from the Service. That section was not available with respect to the appellant since she was a temporary employee. It was for the appellant to establish to the satisfaction of the trial Judge that her conduct fell within s. 58, and this she did not do. Indeed, the evidence points strongly to the conclusion that s. 58 was not applicable.
Counsel for the appellant also argued that the letter of dismissal was a subterfuge by the respondent for the purpose of circumventing para. 58(1)(b) of the Telecommunications Act. Reliance was placed upon the language of the letter of dismissal itself. There is no substance in this contention. The evidence establishes that the respondent concluded that the appellant was unable to carry out her duties due to causes beyond her control and that in those circumstances para. 58(1)(b) was inapplicable.
What then was the source of the respondent's power to dismiss the appellant? There is no statutory power conferred upon the respondent in express language by the Telecommunications Act or the Telecommunications Regulations to dismiss temporary employees. The basis of the employment of temporary employees is essentially contractual, though overlaid and circumscribed by certain statutory provisions: Keeley v. State of Victoria (1964) V.R. 344; Australian National University v. Burns [1982] FCA 191; (1982) 43 A.L.R. 25; and Australian Telecommunications Commission v. Hart (1982) 43 A.L.R. 165. As I mentioned earlier, the respondent is a body corporate with authority to do anything incidental to the performance of any of its functions specified in s. 5 including the function of maintaining and operating telecommunications services within Australia. It is also authorised to do all things necessary or convenient to be done for or in connection with or as incidental to the performance of its functions under the Telecommunications Act. The respondent is empowered to engage persons as temporary employees to hold office on such terms and conditions as the respondent determines. In my opinion the respondent does have power to dismiss temporary employees, the power arising by implication from the powers to which I have referred. The respondent was therefore authorised to determine the services of the appellant.
I do not think it necessary to decide whether either by-law 156(2) or clause 31 of the Award was a source of the respondent's power to dismiss the appellant. The respondent's power to make by-laws is conferred by s. 111 of the Telecommunications Act which is a power to make by-laws, not inconsistent with the Telecommunications Act and the Telecommunications Regulations, prescribing all matters that are required or permitted to be prescribed by by-laws and making provision for or with respect to the terms and conditions of employment of officers and employees (para. 111(1)(g)). As at present advised I think that by-law 156(2) answers the description of such a by-law, that it is not inconsistent with s. 58 and that it was a source of the respondent's power to dismiss the appellant.
Nothing turns on the fact that the letter of 9 March 1983 terminating the services of the appellant states that the writer of the letter (Mr. Kime) was acting "under the authority vested in me by Staff By-Law 156". Even if by-law 156 is invalid (as at present advised I do not think it is) the validity of the dismissal of the appellant would not be affected. The letter does not exclude reliance upon any other available source of power.
So far as clause 31 of the Award is concerned, it is common ground that the
clause is still in force (see sub-s. 58(2) of the Conciliation
and Arbitration
Act 1904). Clause 31 provides:
"31 - TERMINATION OF ENGAGEMENT OF TEMPORARY EMPLOYEES
When the employment of a temporary employee has extended over a period of
not less than four weeks, the temporary employee shall
be entitled to at least
one week's notice of termination of engagement. When the notice is not given,
payment shall be made for one
week in lieu of the notice:
Provided that the services of a temporary employee may be terminated without
notice at any time on the grounds of misconduct or
unsatisfactory service."
I doubt if clause 31 is a source of the respondent's power to dismiss temporary employees whose employment has extended over a period of not less than four weeks. It is really a restraint upon the exercise of the respondent's power to dismiss employees from its Service. However, my observations with respect to by-law 156(2) and clause 31 are only tentative.
There remain the submissions of counsel for the appellant that the respondent was bound to observe the rules of natural justice and that it failed to do so. I referred earlier to these submissions in some detail and need not repeat them.
Counsel for the respondent did not dispute that the appellant was entitled to the benefit of the principles of natural justice but he argued that the circumstances of this case called for the application of one principle only namely, that the respondent was under a duty to act fairly towards the appellant.
There are no comprehensive or universal rules of natural justice which
automatically apply in every case. The requirements of natural
justice must
depend on the particular circumstances. I derive little assistance from the
definitions of natural justice which have
been attempted from time to time. As
Lord Morris of Borth-y-Gest said in Wiseman v. Borneman (1971) A.C. 297 at p.
309:
"Natural justice, it has been said, is only 'fair play in action'".
In my view, natural justice required in the present case that the course which the respondent was bound to take, when considering what to do about the appellant, was to act fairly and justly in all the circumstances. The respondent did act in accordance with that requirement. If the respondent had alleged that the appellant was guilty of one isolated but serious act of misconduct and then threatened her with disciplinary action, natural justice probably would have required that she be told the case against her, be given an opportunity to contradict it and be heard in some form. In the present case the appellant had a serious record of persistent lateness for work extending over a long time. She was always given the opportunity to explain her lateness which she attempted to do on each occasion. She was also "counselled" and interviewed by the Personnel Officer of the branch of the respondent at which she worked. These discussions were not confined to her lateness for work. They ranged wider than that and encompassed alleged peculiarities of behaviour at work. The appellant must have known that her employment was in jeopardy and that if she did not improve her performance it may be terminated. It is true that in certain communications from the respondent to the appellant she was told that, if she did not improve, action would be considered against her by way of charge under s. 58 of the Telecommunications Act and that her application for permanent appointment to the Service of the respondent would be in jeopardy. But when this material is read as a whole it is plain that the appellant must have known that one of the consequences of her failure to improve could be dismissal. It is unreal to conclude that the appellant had a legitimate expectation that she would be given some form of hearing before her employment was terminated. She was in effect given a number of hearings over a long period of time with reference to her problems, especially her lateness. She was "counselled" more than once and given repeated warnings that her performance had to improve. She was told that her job was in jeopardy and she was given ample opportunity to explain her conduct. The respondent was not denied natural justice.
I would dismiss the appeal with costs.
I have had the advantage of reading the reasons of Lockhart, J. and I need not repeat what he has said in relation to this appeal.
The appellant first argues that this was, in truth, a "misconduct" case to which the provisions of s.58 of the Telecommunications Act, 1975 ("the Act") apply; yet, the argument runs, the respondent seeks to nullify the protection given to the appellant by s. 58 by labelling the case as one, not of misconduct, but of incapacity, that is, conduct beyond the appellant's control and so outside the language of s. 58.
It is common ground that the legal relations between the parties were governed by the terms of the contract of employment modified, as required, by the relevant operation of the Act, its regulations, the by-laws and the award. The point of departure between them is the identification of the real reason for the termination of the appellant's services. The learned judge found a pattern of behaviour on the part of the appellant extending over a long period which was consistent only with her incapacity to perform her work with any reasonable degree of efficiency. The learned judge further found that, eventually, despite counselling and other sympathetic treatment, the appellant's frequent unpunctuality and eccentric behaviour patterns could no longer reasonably be tolerated by those charged with the responsibility of administering the affairs of the respondent in a responsible manner.
However, the learned judge made no specific finding as to the source of the appellant's inefficiency and, for present purposes, the identification of that source is crucial. Was it serious misconduct in the sense of something done wilfully or even recklessly, without caring for the consequences? In such a case, termination of an employment contract at common law by summary dismissal is, generally speaking, justified (see Clouston & Co. v. Corry (1906) A.C. 122 at p.129; North v. Television Corporation Limited (1976) 11 A.L.R. 599; Macken, McCarry and Sappideen, The Law of Employment, 2nd Ed. at p.121). But, if misconduct is relied on, the provisions of s. 58 of the Act supplant the general law. Summary dismissal as a remedy for misconduct is then no longer available (see Gould v. Stuart (1896) A.C. 575; Keeley v. State of Victoria (1964) V.R. 344; Bennett v. The Commonwealth (1980) 1 N.S.W.L.R. 581; cf. Australian Telecommunications Commission v. Hart (1982) 43 A.L.R. 165; Hogg, Liability of the Crown, at pp.155 et seq.).
Alternatively, was the appellant's behaviour attributable, not to deliberate or reckless misconduct, but to sheer inability to cope with a work situation because of the pressures of ill-health? If the appellant's lack of equilibrium was sufficiently serious and not merely temporary, the point could be reached where, under the general law, her contract of employment would be discharged by the doctrine of frustration (see Simmons v. Hay (1964) 81 W.N. (Pt.1) (N.S.W.) 358; Finch v. Sayers (1976) 2 N.S.W.L.R. 540; Marshall v. Harland & Wolff Limited (1972) 1 W.L.R. 899; Egg Stores (Stamford Hill) Limited v. Leibovici (1977) I.C.R. 260; Anderman, The Law of Unfair Dismissal, at p. 131; Hart v. A.R. Marshall & Sons (1977) 1 W.L.R. 1067; Macken, op.cit., at pp.93-4). If, on a proper analysis, the appellant's situation was one of incapacity rather than misconduct, then since the provisions of the Act are silent on the point, the matter falls to be regulated by the general law of contract, including its doctrine of frustration.
In the case of the misconduct of a temporary employee, the position is exhaustively regulated by s. 58 of the Act (see regulation 35A). Yet, although the position of an incapacitated officer is regulated by s. 56 in Div.5 of Part V of the Act, regulation 35A makes applicable to temporary employees only the provisions of Div.6 of Part V, picking up s. 58 but not s. 56. Thus the appellant can only complain of the respondent's failure to observe the requirements of s. 58 if she can demonstrate that, in truth, her case was one of misconduct rather than incapacity attributable to ill-health. If, as a matter of objective fact, the case is one of incapacity, the position will be governed entirely by the common law contract of employment and s. 58 will have no relevant operation (cf. Hunkin v. Siebert [1934] HCA 43; (1934) 51 C.L.R. 538 at p. 542; Kaye v. Attorney-General for Tasmania [1956] HCA 3; (1956) 94 C.L.R. 193; Reedman v. Hoare [1959] HCA 50; (1959) 102 C.L.R. 177).
The question posed does not admit of an easy answer. Possibly because of the delicate nature of the problem, neither party squarely addressed it. In the litigation itself and before, both sides were guilty of some degree of equivocation on the issue. In these proceedings, the appellant asserted that this was a misconduct case but denied any misconduct. For its part, the respondent submitted that this was not really a misconduct case, although it said that there was evidence of misconduct. It contended that dismissal was justified because of the appellant's failure to achieve the required standard of competence. Such a contention rather assumes that the appellant had the capacity to achieve that standard.
The history of the respondent's handling of the matter also indicates a measure of equivocation. At one stage, it took the approach that the actions of the appellant called for disciplinary action appropriate in a case of misconduct rather than one of incapacity. At another stage, the respondent offered the appellant sympathetic counselling. Ultimately, in the letter of dismissal written on 9 March 1983, the respondent put the termination of the appellant's services squarely on the ground of her lack of her capacity to cope with her work situation, thus suggesting illness or instability as the cause of the problem.
Given the respondent's disclaimer in the letter of termination of any charge that the appellant was guilty of misconduct within her control, a heavy onus lies upon her to demonstrate that the reasons for termination described in the letter should be ignored as a fabrication. Since the objective circumstances are consistent with the view of the matter taken by the respondent, the approach adopted by it was at least reasonably open. Moreover, it was never suggested to any of the respondent's witnesses that the letter of termination was deliberately framed so as to indicate the incapacity of the appellant as the basis for termination rather than misconduct on her part. Specifically, it was not put on behalf of the appellant that the letter was no more than a device to avoid the protection afforded employees by s. 58. It is therefore not open to the appellant now to seek to put such a complexion upon the letter (see Browne v. Dunn (1896) 6 R. 67).
Whilst, therefore, the appellant could have sought to challenge the letter of termination as a mere device to avoid the operation of s. 58 and thus an impermissible attempt to do indirectly what is forbidden to be done directly (see James v. Eve (1873) L.R. 6 H.L. 335 at p.344; Oxley County District Council v. Macleay River District County Council (1964) 65 S.R. (N.S.W.) 13 at p.28), no such challenge was made in the course of the evidence before the learned judge. It is simply too late for the matter to be raised after the close of the evidence. In any event, looking at the matter objectively, the respondent was, I think, justified in viewing the case as one of incapacity rather than misconduct. Further, in my opinion, the reasons expressed in the letter for the termination of the appellant's services should be accepted as reflecting the view of her case actually held by the respondent.
Once the case is seen as one of mere incapacity and not of misconduct, it follows, in my opinion, that s. 58 can have no application to the case. The appellant's first argument should be rejected.
The appellant next argues that she was denied natural justice. I agree with Lockhart, J., for the reasons he gives, that this argument should also be rejected.
Finally, the appellant attacks the validity of By-law 156(2) pursuant to which the respondent purported to terminate her services. Two distinct arguments are advanced. First, it is said that, because the by-law is framed without qualification (its application is not expressed to be subject to the operation of Div.6 of Part V of the Act, and, in particular, s. 58), it is inconsistent with the Act and regulations (in particular, Regulation 35A) (see, e.g., Shanahan v. Scott [1957] HCA 4; (1956) 96 C.L.R. 245 at p.250). Secondly, the appellant says that the only relevant source of power to make By-law 156 is to be found in s.111(1)(g) of the Act, that is, a power to make delegated legislation with respect to "the terms and conditions of employment of officers and employees"; yet, she argues, By-law 156(2) purports to deal with a different subject matter, namely the dismissal of employees (see Cory Lighterage Limited v. Transport & General Workers Union (1973) 1 W.L.R. 792).
In my opinion, neither argument should be accepted. Although By-law 156(2) confers a power of dismissal of employees upon the respondent, the general language of the by-law should, as a matter of construction, be read down so as to be subject to the operation of any provision of the Act or regulations where relevant. If, for example, the circumstances of a particular case activate the operation of s. 58, then the power of dismissal conferred by By-law 156(2) should be read as capable of exercise only subject to compliance with the provisions of Div.6 of Part V of the Act. In short, the by-law should be read together with the Act and regulations. So construed, the by-law is not to be taken to exhaustively state the conditions upon which dismissal may take place and no inconsistency arises (see Pearce, Delegated Legislation, p.182, para.416).
Further, in my view, the by-law is within the power conferred by s. 111(1)(g). It is not limited in its scope to the dismissal of a single employee. Rather, it purports to confer a general power of dismissal of employees. It thus deals with a subsisting relationship of employer and employee. It may be contrasted with a provision which does no more than regulate the rights of parties whose employment relationship has ended. The by-law may properly be characterised as a provision dealing with the terms and conditions of employment of existing employees (cf. Slonim v. Fellows [1984] HCA 51; (1984) 54 A.L.R. 673).
In my opinion, the by-law is valid.
I would dismiss the appeal with costs.
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