Rabel v Whitehorse City Council [1999] FCA 115 (16 February 1999)

Last Updated: 4 March 1999

FEDERAL COURT OF AUSTRALIA

Rabel v Whitehorse City Council [1999] FCA 115

Alleged unlawful termination - Home carer employed by local authority dismissed for failing to comply with instructions regarding conduct towards clients - Whether there was a valid reason for termination - Whether employee had been afforded a reasonable opportunity to defend himself - Power of Court to award costs - Whether this was a proper case for costs order.

Workplace Relations Act 1996 (formerly Industrial Relations Act 1988 ) ss 170DC, 170DE, 170EHA and 347

ANDREW FRANK RABEL v WHITEHORSE CITY COUNCIL

VG307 of 1998

WILCOX, O'CONNOR and MARSHALL JJ

16 FEBRUARY 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VG307 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANDREW FRANK RABEL Appellant
AND:	WHITEHORSE CITY COUNCIL Respondent
JUDGES:	WILCOX, O'CONNOR AND MARSHALL JJ
DATE OF ORDER:	16 FEBRUARY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The order for costs made by North J on 22 June 1998 be set aside.

2. Otherwise, the appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VG307 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANDREW FRANK RABEL Appellant
AND:	WHITEHORSE CITY COUNCIL Respondent

JUDGES:	WILCOX, O'CONNOR AND MARSHALL JJ
DATE:	16 FEBRUARY 1999
PLACE:	MELBOURNE

EXTEMPORE REASONS FOR JUDGMENT

1 WILCOX J: Before the Court is an appeal by Andrew Frank Rabel against a decision of a Judge of the Court, North J, in the review of a decision of a Judicial Registrar concerning a claim of unlawful dismissal pursuant to s 170EA of the Workplace Relations Act 1996 . The respondent employer is the City of Whitehorse. The appellant was employed for a relatively short period as a home carer, attending to the needs of aged, disabled and incapacitated residents of the city. The facts of the matter are set out in the Judicial Registrar's decision, which we have had the advantage of reading, and in the findings of his Honour.

2 The hearing on review was a hearing de novo. It extended over a period of 10 days. His Honour ultimately came to the conclusion that the employer had made out a case under s 170DE(1) of the Workplace Relations Act in that it had established a valid reason for the termination of Mr Rabel's employment. His Honour was also satisfied that there had been compliance with s 170DC of the Act in respect of giving Mr Rabel an opportunity to defend himself against the allegations made.

3 The substance of the case put by the council was that over a relatively short period of time, but occupying most of the period during which Mr Rabel was employed by it, he had persisted in breaking the council's rules in relation to contact with the clients whose needs he was to service. This predominantly took the form of failing to attend at appointed times and attending at some other time, working hours different from those that had been previously arranged, contacting clients out of hours, and when his conduct came under scrutiny, soliciting from clients references as to the quality of his care for them.

4 The importance of adhering to the rules was spelt out in the evidence and the findings of both the Judicial Registrar and the reviewing judge. One only has to consider the fact that the clients are people who are dependent, perhaps lacking self-confidence, to realise the significance of sticking to the rules. They are in a very vulnerable position. It seems, as the Judicial Registrar commented, that Mr Rabel never developed any sensitivity to the importance of this aspect of his work and, for that reason, was really not suited for it. It was at all times the council's case that Mr Rabel's actual work performance was good. The problem was the way in which he conducted himself.

5 There was a meeting on 2 May 1996 in respect of complaints. At that time material was given to Mr Rabel, to enable him to consider it and formulate a reply. The meeting was then in effect adjourned until 8 May. The transcript of both these meetings is in evidence. The meeting of 8 May, in particular, reveals that all the matters mentioned above were canvassed in detail. There can be no doubt whatever that Mr Rabel was made aware that the council officers dealing with the matter were concerned about his behaviour and that any further breach of the rules would be likely to result in the termination of his employment.

6 One of the matters emphasised was that he must not ask clients for references. It was pointed out that pressure for a reference might cause a client stress. Two days later Mr Rabel solicited a reference from a client, Mrs Veltjens. His evidence was that he had previously spoken to her about a reference and she had said she was unable to give it at that time because she had an appointment. Whether this was genuine or she was unwilling to give the reference and used the appointment as an excuse is not apparent. Mrs Veltjens did not give evidence.

7 However, it is clear the request was made on 10 May and a reference obtained that day. I say it is clear because Mr Rabel himself gave evidence to this effect. It is not necessary to deal with a question that was raised by counsel as to the admissibility of evidence of a telephone complaint by Mrs Veltjens to an officer of the council shortly after 10 May. It seems Mrs Veltjens was upset on that occasion. The evidence clearly establishes a breach by Mr Rabel of a precise instruction given to him only two days earlier.

8 There was a further meeting on 20 May when this matter was referred to, along with a number of other matters. It is a fair comment that the meeting of 20 May unnecessarily concerned itself with matters that had been previously discussed, rather than the one matter which had occurred since the previous discussion. However, it is also clear this particular incident was referred to. Although Mrs Veltjens was not named, the incident was sufficiently identified so that Mr Rabel must have understood what was being addressed. The council officers were not satisfied with his explanation and he was terminated on that day.

9 In my view the case presented to the Court clearly establishes a valid reason for the employer to terminate the employee's employment. It seems Mr Rabel had no understanding of the significance of the rules he was asked to follow, and no inclination to follow even explicit instructions.

10 In relation to s 170DC, I have entertained some doubt during the course of the proceedings, because of the lack of specificity of the meeting of 20 May 1996. However, on considering the transcript of that meeting, I think it is clear that the matter of the approach to Mrs Veltjens did sufficiently emerge, to enable Mr Rabel to know this was a matter he needed to address if he was to avoid termination. Consequently, in my view, the requirements of the section were satisfied.

11 North J was persuaded that this was a case in which he should make a costs order against the applicant for review. He thought the application for review had been instituted without reasonable cause and, consequently, the general prohibition of s 347 of the Workplace Relations Act did not apply. There is a question about the application of that section to applications for review but I do not think it is necessary to address it. As North J pointed out, a similar result would probably be obtainable under s 170EHA of the Workplace Relations Act.

12 In my opinion this is not a case for an order for costs against the applicant. As North J observed, the circumstances in which an order should be made in an industrial matter, having regard to the policy in s 347, are strictly limited. Such an order should only be made against an applicant in a clear case. As one of my colleagues pointed out during the course of argument, parties have a constitutional right of review of the decision of a Judicial Registrar. Whilst this does not mean there is no power to make an order for costs, I think it should inculcate caution in exercising that power.

13 In the present case, it is my opinion the case brought by the council in respect of s 170DE(1) was extremely strong. However, an objective observer, considering the possibility of a successful application for review, might reasonably have thought there was a question about s 170DC. As I have indicated, at the end of the day I think the council complied with s 170DC, but the situation was not so clear cut as to make this a proper occasion on which to exercise the power to order costs. I am not prepared to say that, on the material that was known to Mr Rabel at the time of considering whether to apply for a review of the Judicial Registrar's decision, it had to be said there was no reasonable prospect of the application for review being successful. If that is so, it provides an answer to an application for costs, whether one pays attention to s 347 or s 170EHA.

14 The matter should be disposed of by the Court setting aside the order for costs made by North J on 22 June 1998, but otherwise ordering the appeal be dismissed. If that is the order of the Court, there will have been some success on each side of the record today. Consequently, I think there ought to be no order in respect of the costs of the appeal.

15 O'CONNOR J: I agree.

16 MARSHALL J: The primary judge held that the appellant's employment with the respondent had been terminated in circumstances where the respondent had not contravened s 170DE(1) or s 170DC of the Industrial Relations Act 1988 (Cth), ("the Act"). The primary judge, in a separate judgment, also concluded that in applying to review a judgment of the judicial registrar the appellant acted without reasonable cause. Consequently the primary judge ordered that the appellant pay the respondent's costs of the review.

17 On appeal the appellant has put in issue the primary judge's findings regarding contravention of the Act and his judgment on the question of costs. I agree with the primary judge, for the reasons expressed by him, that the respondent did not contravene s 170DE or s 170DC of the Act in terminating the appellant's employment. The reasons of the primary judge, in my opinion, comprehensively and accurately deal with every issue in contention between the parties concerning the lawfulness of the termination.

18 His Honour's judgment on costs is more controversial. On the basis of the judgment of the Full Court in Cosco Holdings v Thu (1997) 79 FCR 566, there is a real doubt in my mind in regard to whether the primary judge was correct in holding s 347(1) of the Act applied to a review as distinct from the original application. (See Northrop J at 588 in Cosco where the judgment of Gray J in Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437 is approved. See also Lindgren and Lehane JJ at 593 where their Honours express agreement with this aspect of Northrop J's reasons).

19 However, as pointed out in Konrad v Victoria Police (1998) 152 ALR 132 at 135 to 136, Cosco was decided without reference to the judgment of the Full Court of the Industrial Relations Court of Australia in Shackley v Croatian Club (1996) 141 ALR 736. I note that the primary judge expressly declined to consider an alternative submission based on s 170EHA of the Act. However, I do not find it necessary to join in this controversy as it was conceded by counsel for the appellant that "without reasonable cause" in s 347(1) of the Act, and "an unreasonable act" in s 170EHA of the Act, are relevantly indistinguishable concepts.

20 In my opinion, in the circumstances of this case, the act of applying for the review cannot be construed as an unreasonable act in connection with the conduct of the proceeding. I agree with completely with what Wilcox J has said on this issue. I join in the order proposed by Wilcox J.

21 WILCOX J: The order of the Court will be as I have indicated. We thank counsel for your assistance in this matter. We now adjourn.

I certify that the preceding twentyone (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, O'Connor and Marshall.

Associate:

Dated: 16 February 1999

Counsel for the Appellant:	W Stark
Solicitor for the Appellant:	Eastern Community Legal Centre Inc
Counsel for the Respondent:	G Katz
Solicitor for the Respondent:	Gary Katz & Associates
Date of Hearing:	16 February 1999
Date of Judgment:	16 February 1999