Federal Court of Australia

HIS HONOUR: This is an application for review of a decision by a judicial registrar that there was a valid reason for the termination of the applicant's employment by the respondent.

On 18 April 1990 Mr Donaldson was employed as a Field Officer of the respondent ("the NPWS") at Montague Island, near Narooma. Montague Island is a Nature Reserve administered by the respondent, situated about 10km from the mainland.

The applicant's main responsibilities included the maintenance of buildings, equipment and the environment on the island. His job combined aspects of the work of a caretaker, handyman and cleaner. In the first year of his employment his supervisory officers had expressed no real concerns about Mr Donaldson's capability, except for a few minor incidents, and on 5th May 1991 the District Manager of the Service, Mr Johnston, stationed at Narooma, recommended that he be permanently appointed to the position.

Thereafter, however, Mr Donaldson's supervisor became increasingly concerned about his apparently poor work performance, in particular his apparent inability to follow instructions and to complete assigned tasks within a reasonable time and without close supervision. By February 1993 Mr Johnston decided to implement a review of the applicant's performance based on performance indicator sheets, periodic on-site inspections, and formal review meetings between the applicant and his supervisors. By July 1993 the applicant's supervisors expressed the opinion that his performance was still sub-standard, and it was apparently thought that he did not have the necessary skills to carry out the basic tasks of his work. In October 1993 formal disciplinary proceedings were commenced in relation to the applicant and in July 1994 he was formally charged under s66(1)(e) of the Public Sector Management Act 1988 (NSW) ("PSMA") with being inefficient in the performance of his duties. As a result of the subsequent disciplinary proceedings, the Director-General of the Service found that the applicant was guilty of the charge, and he was directed to resign on 4th November 1994.

The applicant sought an order for re-instatement and compensation under s 170EA of the Workplace Relations Act 1996 ("the Act") on the grounds that his employment was unlawfully terminated. The applicant based his claim on two grounds: that he was not given a fair opportunity to defend himself against the allegations made against him (s 170DC), and the respondent's reasons for termination were not valid (s 170DE(1)).

The application was first heard by a judicial registrar who, for reasons given on 26th March 1996, dismissed the application. The judicial registrar held that the applicant had been afforded every opportunity to address the allegations of poor work performance made against him. The judicial registrar also found that the evidence clearly demonstrated the respondent had a valid reason to terminate the applicant's employment, mainly because he consistently failed to achieve an acceptable standard of work.

Mr Donaldson sought a review of the judicial registrar's decision in accordance with s 377 of the Act. The applicant raised the same issues as to allegedly unlawful termination, but introduced new evidence to support his claims.

Review of the applicant's work performance

The applicant submitted that, despite appearances, the respondent did not afford him a real opportunity to respond to the allegations made about his poor work performance, because in reality officers of the respondent had already decided to dismiss him before the work performance review was undertaken. It was the applicant's contention that the respondent's officers were "just going through the motions" to make it seem that its internal processes were fair. The submission is based on an informal memorandum written on 21st January 1993 by one of the applicant's supervisors, Mr Constable, to Mr O'Connell, a senior Ranger and a higher-ranking supervisor.

It is convenient here to describe the local "chain of command": Mr Donaldson was under the immediate supervision of his leading hand, Mr Bruce Kettlewell, who, like Mr Donaldson, lived on the island. Both were overseen by a Ranger, Mr Ross Constable. Mr Constable reported to his Senior Ranger, Mr Martin O'Connell, who in turn reported to Mr Johnston.

Much was made of the fact that the memorandum referred to was not on the applicant's personnel files. It was therefore presumably not drawn to the attention of any of the senior NPWS officers who ultimately considered Mr Donaldson's fate, and was not discovered until after the hearing before the judicial registrar; however, there is no evidence to suggest that the respondent had deliberately withheld this document and I do not draw that inference.

In the memo, Mr Constable had written:

"For what its (sic) worth, I consider the problems encountered with Wayne will not improve. At best he will be reprimanded, threatened, counciled (sic) and spoken to off the record and the problems will lay dormant for a time. However, to coin a famous phrase, `as long as your arse points to the ground' they will reappear time and time again, tying up the District resources and time."

Mr Constable indicated that, despite the other options that were available, he favoured the commencement of disciplinary proceedings to terminate the applicant's employment. In fairness to Mr Constable, it should be noted that later, because he was concerned that he himself might have been at fault in his supervision of Mr Donaldson, he proposed that others should take part in such supervision during the crucial testing time for the applicant.

However, rather than the implementation of disciplinary proceedings, it was decided that a "performance review" process would be implemented. On 1st February 1993 a meeting was called between the applicant, Mr O'Connell, Mr Johnston and Mr Shepherd, a union representative, to discuss the applicant's need to improve his work performance. It was agreed that a "work programme" would be drawn up by Mr Kettlewell, setting out the projects which were to be completed by the applicant. Mr Kettlewell was instructed physically to show Mr Donaldson each of the projects he was expected to complete.

The first on-site inspection took place on 15th February. Mr Constable was of the opinion that the projects which had been assigned to the applicant either had not been attempted, or were not completed to a satisfactory standard.

A further meeting was held on 22nd February between the applicant, Mr Kettlewell and Mr Constable to formulate another work programme to be completed by 1st March. Mr Constable inspected the work site on that date and found that all tasks had been completed except one, which was of the lowest priority. Mr Constable concluded that, on the basis of the applicant's past performance, the finish and quality of each of the projects were satisfactory. However, compared to the performance of other field workers, the applicant's performance was still unacceptable.

Further inspections were undertaken by Mr Johnston on the 4th of March and by Mr Constable on 9th March and 12th April, the outcome in each case being that although some work had been performed satisfactorily, the standard of work was below that expected of field workers.

The first formal performance review meeting took place on 22nd April. In his report Mr Johnston noted a general improvement in the operations on the island, but that the work was not yet to the required standard. Mr O'Connell indicated that the Service would be satisfied if the applicant focused on doing "core" jobs well and that, as his work performance improved, he would be given more responsibility.

A second performance review was held on 1st June. At that meeting, Mr Constable reported that the applicant had ignored part of the work programme set out by his supervisor, and instead had performed other jobs that he thought needed to be done. The work that he had completed was not performed to his supervisor's satisfaction, particularly the construction of a drain, and other workers would have to be brought in to repair and complete the job. Mr Constable also found that the maintenance of grounds and buildings completed by the applicant was of a fair to poor quality; that his preparation for tours for the public was fair; that he had failed to return work diaries on time; and that he had failed to follow instructions from the District office. Mr Constable concluded, and Mr O'Connell agreed, that the applicant did not demonstrate the minimum skills expected of a Field Officer. Mr O'Connell recommended that if the applicant did not at least reach a fair standard of work in the areas assessed at the next review, a disciplinary interview should be arranged.

A third review took place on 21st June, at which Mr Griffiths, the acting Senior Ranger, was of the opinion that although some aspects of the applicant's cleaning and painting were not satisfactory, in general the applicant's performance was satisfactory.

A fourth review was held on 7th July. Mr Johnston felt that the applicant's performance had slipped, and this was probably due to a variety of reasons, including: personality clashes with Mr Kettlewell; personality problems; lack of skills; poor matching of people to jobs; inability to follow instructions; and a failure to ask questions if uncertain about instructions. He concluded that the applicant's performance remained unsatisfactory despite the performance review process and the opportunities provided to the applicant to improve. The applicant was informed that the next stage would involve formal counselling and possible disciplinary proceedings if his performance did not improve.

In a memo prepared after the fourth review, Mr Johnson stated:

"During the review, all instructions to staff have been given verbally, written and visually in an attempt to overcome any communication problem or understanding of the task. The staff have also been required to acknowledge that they understand what is meant and required from the instructions.

The first two major interviews have been held. There has been so little improvement in performance I would rate it as nil. The monthly inspections are also unsatisfactory.

Tasks requested to be performed have generally been at a level well below what is normally expected of other park workers.

I believe all supervisors and the review committee have given the process of performance review full support, with a general desire to see an improvement.

Immediately following his appointment, Mr Donaldson's performance was satisfactory but rapidly declined to a point where it was deemed necessary to intervene. Mr Donaldson repeatedly promised to improve his performance. Unfortunately my faith in him was unfounded.

The decline in his work performance is in my opinion due to his inability to

- accept instructions from his supervisor

- accept that he is not in charge

- accept his role on the island

- accept chain of command

- accept procedural issues

Mr Donaldson has not followed instructions even from the District O.I.C. When questioned on these matters, he always maintains that he has not been told etc. In most cases his reasons are demonstrably incorrect or untrue. He has often sought media attention against district instruction.

His inability to accept or carry out instructions to an acceptable standard can no longer be tolerated. He has not improved during the review process.

Mr Donaldson's future employment needs to be reviewed within the parameters of Section 66 of the Public Sector Management Act 1988."

However, Mr Johnston recommended that the applicant be transferred to the mainland for three two-week periods, as a six-weeks' trial under the direct supervision of Ranger Griffiths, for the purpose of gaining skills and to learn how the District Office operated. (Mr Johnston's recommendation was endorsed by the Regional Manager on 27th July, but this was not fully carried through.)

The last review was undertaken on 27th July by Mr Griffiths, who had been appointed as the applicant's direct supervisor at the previous review meeting. Mr Griffiths reported that of the 21 tasks allocated to the applicant during the month of July, only 9 of those had been completed and in general the work had been carried out to a poor standard. There was also a significant number of days not accounted for in the applicant's field staff diary, and on other days the tasks indicated did not constitute a day's work. Mr Griffiths concluded that the applicant's poor performance was due to his lack of attention to detail; that he consistently ignored specific instructions given to him; and in many instances appeared to lack the necessary skills to carry out simple tasks. He recommended that the performance results of the August review be brought to the attention of the District Manager.

The applicant submitted that in the memorandum written after the fourth review, Mr Johnston failed to take into account the outcome of the May review in which he himself had noted a general improvement in the island works, and also failed to take into account the June review at which Mr Constable had stated that the applicant's performance had been satisfactory. The applicant also submitted that the memo, which formed part of the brief for disciplinary action, was prepared prior to the last formal performance review in July. This fact, in conjunction with the earlier memo of Mr Constable prophesying the utility of persevering with Mr Donaldson, it was submitted, demonstrated that the supervisory officers of the Service had already determined to dismiss the applicant, and that the review process was merely a "self-justification" exercise.

The disciplinary process

The scheme of the Public Sector Management Act 1988 (NSW) is as follows:

"66 Breaches of discipline

(1) An officer is guilty of a breach of discipline if the officer :

(a) contravenes this Act or the regulations, or

(b) engages in any misconduct, or

(c) consumes or uses alcohol or drugs to excess, or

(d) intentionally disobeys, or intentionally disregards, any lawful order made or given by a person having authority to make or give the order, or

(e) is negligent, careless, inefficient or incompetent in the discharge of his or her duties, or

(f) engages in any disgraceful or improper conduct, ......

75 Punishment of officers for breaches of discipline

(1) If:

(a) an alleged breach of discipline is dealt with in accordance with the regulations, and

(b) the officer concerned is found to have committed the breach or admits to the person or persons dealing with the breach that the officer committed the breach,

the appropriate Department Head may decide to:

(c) impose on the officer one or more of the punishments specified in subsection (2), or

(d) dismiss the officer from the Public Service or direct that the officer resign, or be allowed to resign, from the Public Service within such period as the direction specifies, or

(e) in the case of an officer on probation annul the officer's appointment.

(2) For the purpose of subsection (1) (c), the following punishments are specified-

(a) a caution,

(b) a reprimand,

(c) a fine,

(d) except in the case of a senior executive officer, reduction of salary or demotion to a lower position in the Public Service .

(3) If:-

(a) the appropriate Department Head , in the exercise of powers conferred by this section, decides to direct an officer to resign, or be allowed to resign, from the Public Service within a period specified in the direction, and

(b) the officer does not resign within that period,

the Department Head may decide to dismiss the officer from the Public Service .

........"

Part 4 of the Public Sector Management (General) Regulation 1988 (now repealed) provided that, if it appeared to the appropriate Department Head or senior officer that an officer may have committed a breach of discipline, the officer might be charged with that breach, but a preliminary inquiry was to be instituted by the Head; alternatively, the Head might instigate a preliminary inquiry prior to any charges being laid (Reg 23). The Head might either conduct the preliminary inquiry, or appoint a public servant (other than the person who charged the officer with the breach of discipline) to conduct the preliminary inquiry; the investigating officer had to furnish the Head with a written report (Reg 24). The preliminary inquiry was an informal procedure, but the officer under investigation must have been given an opportunity to make written submissions in response to the allegations, or oral submissions with the approval of the person conducting the preliminary inquiry (Reg 25). The investigating officer's report to the Head had to set out the facts relied upon to reach the conclusions set out in the report, and had to recommend whether the charge should be dismissed or the inquiry should proceed (Reg 26). The Head was not bound by those recommendations, but after considering the results of the preliminary inquiry, might dismiss the charge (if any charge has been laid) or proceed with the inquiry, making any amendments deemed appropriate.

If the inquiry was to proceed, the Head was required to notify the officer in writing of the particulars of the charge, and call on the officer to either deny or admit the truth of the alleged breach of discipline and to show cause why he or she should not be punished. The officer might request an interview to discuss the matter with the Head (Reg 27), and was to be given notice of the time and place at which the interview would be held. The officer was entitled to have an observer present at that interview (Reg 29).

On 22nd October 1993 Mr Howard, the Deputy Director of Field and Management Services, authorised Mr Thorpe, the Manager of Administration and Finance for the Northern Region, to begin disciplinary proceedings under the PSMA by conducting a disciplinary interview.

The applicant also submitted that he had not been afforded procedural fairness during the disciplinary process. An interview between the applicant and Mr Thorpe took place on 26th November, with an observer, Mr Wilson, a Field Supervisor from another District. At that interview, Mr Thorpe explained to the applicant that the purpose of the interview was to gain information in order to write a report to the Director General of the respondent. Mr Thorpe had also interviewed the applicant's supervisors and reviewed the files kept by the Service. As a result of these interviews, Mr Thorpe reported that the applicant:

(1) repeatedly made minor errors or omissions with regard to his work duties and obligations;

(2) had not adequately followed instructions given by his supervisors;

(3) had not understood, and may not have been capable of fully understanding written instructions, although when questioned he always maintained that no such communication problem existed; and

(4) had not improved his standard of work performance during his period of employment.

Mr Thorpe noted that the District establishment had offered support to the applicant in attempting training courses and gaining qualifications, however the applicant had twice failed a crane chaser's certificate examination, and had gone outside established procedures to attempt enrolment for a coxswains certificate but then failed to produce all enrolment prerequisites when required. Mr Thorpe further stated:

"His standard of work performance is consistently below that requested by his supervisors and below what is a reasonable expectation of the position even though Mr Donaldson states that he is performing to the best of his ability. Mr Donaldson has been given ample opportunity to improve his work performance yet has failed to do so.

Montague Island is a major focus of the Narooma District and problems with Mr Donaldson are now affecting the morale and work performance of the entire District with considerable time and effort being spent by District staff in supervising Mr Donaldson and documenting any problems. Some staff are now becoming antagonistic towards him. Based on their previous experiences working with Mr Donaldson none of the District staff I interviewed wanted to continue to supervise or work with Mr Donaldson.

Transfer within the District therefore does not appear to be an option, and transfer within the Region although an option would only be transferring the problem and not contributing to the solution. Different supervisors have been used to overcome any personality problems. All supervisors used have experienced difficulties in getting Mr Donaldson to follow instructions. The work tasks requested of Mr Donaldson appear reasonable for someone of his classification. The work program required of the staff on Montague Island is not excessive and is probably less than required of other field staff......More time and effort has been spent by the District in supervising Mr Donaldson and documenting his problems than I have seen spent on any similar situation."

Mr Thorpe stated that he had taken the following factors into account:

(1) Although the applicant may have a literacy and comprehension problem, his supervisors had used basic written and verbal instructions as well as physical demonstrations in an effort to ensure that the applicant understood what was required. The applicant denied in the interview that he had a literacy problem.

(2) The isolation of the island raises special difficulties for employees, but the applicant had maintained he and his family were happy on the island.

(3) The inadequacies of the applicant's immediate supervisor, Mr Kettlewell, could have had a detrimental effect on the applicant's work; however, the District had provided sufficient support and direction to ensure that work on the island could continue as normal as possible.

(4) The applicant had passed a chainsaw course during the last week of November, and this demonstrated an improvement in the applicant's performance; however, it was a basic practical course with little written instruction, and it demonstrated that the applicant could comprehend and follow verbal instructions if he chose to do so.

Mr Thorpe recommended that further disciplinary action was warranted, and that there was sufficient evidence to support charges brought under s 66(1)(e) PSMA. He also recommended that the applicant be directed to resign, or be allowed voluntarily to resign in accordance with s 75(1)(d).

Following the day of Mr Thorpe's interview, the stenographer telephoned the applicant and asked if he would help her reconstruct the interview based on a list of questions that had been asked, because of some fault with the recording equipment. The applicant rang Mr Johnston to ask what he should do and was advised that he should assist the stenographer. On this basis, the applicant submitted that the interview was fundamentally flawed in respect of both its content and accuracy, and also in relation to the weight that the respondent placed on it.

The applicant further submitted that although Mr Thorpe noted some mitigating points in his favour, he was clearly influenced by the respondent's informants, including the notes provided by Mr Johnston after the fourth review. Although Mr Thorpe's report contained a record of interview with the applicant, there were no records of the interviews that he had held with other employees, and this, it was said, was unfair.

In response to Mr Thorpe's recommendations, Mr Willis, the acting District Manager, was appointed by the Director General of the Service to conduct a preliminary inquiry prior to the laying of disciplinary charges, pursuant to cl 24(1) of the Public Sector Management (General) Regulation 1988. The applicant was invited to make written representations in respect of his work performance prior to the interview, and he did so. In his report dated 24th June 1994, Mr Willis concluded that, based on Mr Thorpe's disciplinary report and the record of interview, and the applicant's written response, formal disciplinary action should be taken against the applicant.

The applicant submitted that an unfair approach was also adopted at this stage of the disciplinary proceedings. Firstly, the applicant was asked to make a written submission despite the fact that there had been a suggestion he was illiterate. The applicant was also prevented by bad weather from travelling from the island to attend an interview which had been organised between the applicant and Mr Willis. Accordingly, Mr Willis had based his recommendation on Mr Thorpe's report, which was tainted by notes made by the applicant's supervisors.

On 22nd July 1994 the applicant was informed in writing by the Director General, Ms Kruk, that he had been charged with having committed breaches of discipline within the meaning of s 66(1)(e) PSMA, namely that he had been inefficient in the performance of his duties of Field Officer on Montague Island. The applicant was informed that he had 14 days to show cause why he should not be punished for these breaches of discipline, and that he was entitled to request an interview to discuss the matter with the Director General or her delegate.

On 1st August the applicant requested an interview, stating that "I believe that an interview will provide me with an important opportunity to defend myself against the charges brought against me". The applicant was represented by Mr Farley, his union representative. The interview took place on 4th August with Mr Howard, the Director General's delegate. Based on that record of interview and other information, the Director General found that the applicant was guilty of a breach of discipline within the meaning of s 66(1)(e), namely that he was negligent in the discharge of his duties. Ms Kruk indicated that she had considered the option of transfer to another position either in the Narooma district or another geographic location, but decided that this was not feasible (transfer was not available as a disciplinary option.) Pursuant to s 75(1)(d), the applicant was directed to resign from the Public Service on 4th November 1994.

Opportunity to respond to allegations of poor work performance

The applicant's central contention is that, based on the alleged flaws in the review process which have been adverted to above, the review process was not genuine in the sense that the outcome had been pre-determined. All of the documents, it is submitted, starting with the memo from Mr Constable, indicate that a decision had been made at both middle and senior management level to terminate the applicant's employment, prior to any formal procedures being commenced. Accordingly, the respondent contravened s 170DC by terminating Mr Donaldson's employment without first giving him a real opportunity to defend himself against the allegations made regarding his poor work performance.

Section 170DC of the Act provides:

"An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:

(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b) the employer could not reasonably be expected to give the employee that opportunity."

In my view this challenge fails.

The respondent's concerns about Mr Donaldson's work performance were brought to his attention on numerous occasions, and it was clear that he needed to improve. Mr Donaldson would simply not accept that there was anything wrong with his work.

The first stage of the formal disciplinary process, involving Mr Thorpe, was conducted by an officer not attached to the local establishment. Mr Donaldson was represented by a union officer during the interview. He was told that the main purpose of the interview was to get his version of events, and to provide information to the Director General about his work performance. The technical problem with the recorder falls short of amounting to evidence which would sustain the allegation that the transcript was "fundamentally flawed". If anything, it is likely to have favoured Mr Donaldson.

In the second stage of the disciplinary process, another "outside" officer, Mr Willis, reviewed the documentation and transcripts, and asked Mr Donaldson to provide a written submission, which he did.

When Mr Donaldson was charged, he was provided with an opportunity to defend his position - see Exhibit 17. Mr Donaldson was then interviewed by Mr Howard, with a union representative present to ensure fair play. Mr Donaldson later contacted the NPWS's acting manager of Human Resources and was given yet another opportunity to provide further information in his defence of the allegations.

Had Mr Constable's pre-judgment of the matter stood alone, things may have been different. But in my view, Mr Donaldson was treated sufficiently fairly thereafter, subject to the matters concerning Mr Kettlewell dealt with below, including by people not from the Narooma area, for that pre-judgment not to have been, in truth, a material circumstance. In any case, Mr Johnston, in particular, seems at an early stage to have expressed a balanced view of the matter, which view the senior officers later had before them.

Valid reason for termination

The applicant also submitted that the respondent did not have a valid reason to terminate his employment, and consequently breached s 170DE(1) of the Act. Section 170DE(1) provides:

"An employer must not terminate an employee's employment unless there is a valid reason, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service."

The applicant submitted that, due to the isolation of the island and the fact that his background had been not in the local area, he was not easily able to assimilate into the work environment. The impact of his isolation and the limited opportunity for him to "fit in" was worsened by the fact that he lacked adequate supervision from Mr Kettlewell, who was young, immature, inexperienced and with whom he clashed. The applicant had a high public profile from media attention he had received by being interviewed in relation to Montague Island and associated matters for various magazines and television programs. The applicant submitted that some officers in the Service probably resented his publicity and this must have influenced the decision to terminate his employment. But, if local feathers were ruffled, there is nothing to suggest that the senior officers, who were crucial to the final decision, are likely to have been influenced by envy or resentment.

The applicant further submitted that disciplinary action should not have been taken against him, since no action was taken against his immediate supervisor, Mr Kettlewell, in respect of much more serious matters. It is necessary that I speak frankly and critically of Mr Kettlewell upon the basis of the evidence before me. Such remarks should in no sense reflect upon Mr Kettlewell other than for the purposes of these proceedings. Mr Kettlewell was not even a witness in this case, let alone a party to it. Mr Kettlewell was arrested for drug possession on the island and was suspended from duties; on another occasion he became intoxicated and abused members of an advisory committee during an overnight visit to the island. There was documented evidence of Mr Kettlewell abusing the applicant and other Service staff during his employment. On another occasion, Mr Kettlewell appears culpably to have failed to restrain a relative from confronting Mr Johnston and his young daughter with verbal abuse, and to have exhibited an attitude markedly lacking in due concern when the incident was raised with him. In a memorandum dated 27th October 1994, Mr Johnston, in my view very sensibly, indicated that he had recommended disciplinary procedures against both the applicant and Mr Kettlewell; however, on advice from the Head Office, action was only taken against the applicant. As a result of some re-structuring, Mr Kettlewell was transferred to another area within the Service. It appears that a mentor was to be found from within NPWS ranks to train Mr Kettlewell, and that he would be encouraged to attend any managerial training opportunities that arose through the Service. The applicant submitted that the differential treatment afforded to himself when compared to Mr Kettlewell demonstrated unfairness, so that the respondent did not have a valid reason to terminate his employment.

The onus is upon the employer to demonstrate that it had a valid reason for termination (s 170EDA). The respondent pointed to evidence to support its assertions, among other things, that:

(1) the applicant was ignorant and/or careless of basic safety issues; for example, he allowed visitors to the island to swing from a crane into the water, had allowed his children to ride on the front of the tractor, and inappropriately allowed his children near worksites;

(2) the applicant consistently ignored or was unable to comply with instructions from supervisory staff. Some of the many examples pointed to by the respondent include: the cleaning of the tourist facilities on the island remained unsatisfactory, despite repeated verbal instructions and demonstrations; he had not completed tasks in order of priority as instructed; he intervened in guided tours, despite specific instructions not to do so unless the tour guide asked for assistance; he allowed friends to use NPWS equipment although he had been warned against this on several occasions; and he consistently failed to complete diary entries; and

(3) the quality of the applicant's work generally was sub-standard, despite the many opportunities provided to him to demonstrate some improvement or a willingness to improve.

In relation to the proposition that the applicant had received differential treatment, the respondent contended that both the applicant and Mr Kettlewell had been assessed according to a performance review, but that Mr Kettlewell's work performance had improved whilst the applicant's had not. There were also, it was said, mitigating circumstances in Mr Kettlewell's case, which were not applicable in the applicant's circumstances; in particular the Service had failed to provide adequate supervisory training to Mr Kettlewell, whereas the Service had provided training opportunities to the applicant, who had either not taken up these opportunities or had not followed the proper channels. In his evidence, Mr Constable stated that he regarded the applicant's poor work performance as a separate issue from that of the work performance of Mr Kettlewell, the first being related to a lack of basic skills necessary to perform the job, and the second to supervisory ability.

Conclusions

The applicant's complaints about Mr Constable, Mr Johnston and the formal disciplinary process are without substance, except as to what happened in relation to Mr Kettlewell. Mr Johnston, as I have indicated, was quite fair and balanced: it is a pity that what he proposed in relation to both Mr Kettlewell and the applicant did not find favour with those to whom he reported. The complaints based on Mr Donaldson's alleged illiteracy were belied by his denial, during the disciplinary process of any such problem. Other alleged difficulties that he had in optimally participating in the disciplinary process were quite reasonably addressed by the respondent's officers, in my opinion.

The questions of substance to my mind all concern Mr Kettlewell. The NPWS has not sought to prove that Ms Kruk, the final decision-maker, knew the full story in relation to Mr Kettlewell's and the applicant's interaction. Is this likely to have made any difference?

Mr Kettlewell apparently, on account of his youth and some signs of improvement through early 1994 was, surprisingly to me, subjected to no disciplinary action; he was merely transferred (a non-disciplinary step) to another area and given a mentor (which he sorely needed). Mr Donaldson was, in effect, dismissed for misconduct. Was this nevertheless "consistent" treatment, although plainly dissimilar? If not, does that affect the validity of the decision in relation to Mr Donaldson?

Apart from those issues, I think the NPWS made out its case, Mr Donaldson was insufficiently useful as to warrant being described as "efficient" to any very appreciable degree. He seems to have been unable, rather than unwilling, to accept discipline and the modest limits of his proper work role. Were it not for the matters to which I am about to refer, I think the employer has comfortably demonstrated that it had a valid reason connected with Mr Donaldson's capacity or conduct for terminating his services. However the issues to which I have referred are troubling.

Mr Donaldson had applied, but was beaten by Mr Kettlewell, for the leading hand job. Mr Kettlewell was a young man of 19 or 20 when the two began working together. Mr Donaldson was 15 years older. A mature and responsible person in Mr Kettlewell's position would have applied a little gentleness in handling Mr Donaldson. Mr Donaldson and his family had come from years of living in inland NSW; they were strangers to the Narooma district; they had moved from a large country town to a very socially isolated place, even if more isolated places can be found. Mr Kettlewell and the Donaldsons were permanent, and the only permanent, residents on the island. All of this must have been hard for Mr Donaldson and his family. Mr Donaldson was willing enough, but evidently educationally limited and apparently lacked the ability to see a task through to a successful conclusion or to comprehend that good-natured willingness, as he put it in one document, to "hook in" and help when it looked useful to do so, may not be an especially valuable or valued trait in the somewhat formal relationships that public employment seems necessarily to foster. He also seems to have been a publicity hound, but that is a failing of not a small number of people. One expects (and certainly hopes!) that Mr Kettlewell has considerably developed in the years since 1994. However, it must be said that, on the evidence before me, he was then an immature tearaway, much more in need himself of close supervision than fit to attempt the supervision of a man whose somewhat misplaced enthusiasms and unsteady performance would test an experienced supervisor. He and Mr Donaldson cordially disliked each other. Neither knew how to deal with that situation effectively; they told tales about each other. But Mr Kettlewell was telling them as Mr Donaldson's immediate supervisor. Those to whom Mr Kettlewell reported could not ignore his complaints. I find it difficult to believe that, had she known the full story, Ms Kruk would have perceived it as an exercise in good management and sound judgment to require the departure of the blundering labourer while harbouring, indeed providing a mentor for, the boorish and unruly leading hand.

In any case, what Ms Kruk may or may not subjectively have done is not the end of the matter. Mr Donaldson and his wife knew at first hand of Mr Kettlewell's misbehaviours. He was subjected to no formal disciplinary action at all by the NPWS, and to precious little effective, informal discipline for a long time. It is inevitable that the Donaldsons would have a sense of grievance. In my view, such is the disparity in treatment of the two men that that a sense of grievance would be justified.

It is no answer to say to this that Mr Kettlewell's good fortune, or the NPWS's lack of due firmness with him, is irrelevant to the consideration of the relationship between Mr Donaldson and the NPWS. The criminal law, for example, aims at the protection of citizen's lives, limbs and property by punishing those found guilty of deliberate, reckless or gravely negligent acts. With purposes of such fundamental importance, it is nevertheless the case that, as between co-offenders, the principle of parity of treatment is of such weight that it may be appropriate, where one offender has escaped with too lenient a sentence, to reduce an otherwise appropriate penalty for his colleague in crime to a level which, looked at alone, would be inadequate; and the reason why the principle of disparity of treatment is accorded such weight is that:

"disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander" (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, per Mason J at 613-4)

I find this analogy compelling. Few things have such a tendency to give rise to a sense of grievance by employees as perceived differential treatment of themselves or their fellow employees without strong justification. The tendency of the analogy, however, is not without limits. It does not require equality of result but consistency of treatment: Capral Aluminium Ltd v Sae (unreported, Madgwick J, 1 August 1997). There was in my opinion no reasonable consistency of treatment here. Neither do I overlook the fact that Mr Kettlewell and Mr Donaldson were not exactly "co-offenders" engaged in a joint enterprise antithetical to their employer's interests. They acted at the same time but quite independently, except that each was to some extent goaded by the very presence of the other into exacerbation of his own distinctive kind of poor work performance. Nevertheless, their circumstances were very closely related and I think that the "objective bystander" is affronted by the differences in treatment of the two men by the NPWS.

For those reasons, I think that the otherwise unexceptionable decision to terminate Mr Donaldson's services lacked validity. It should be held that there was not, in these very unusual circumstances, a valid reason for such termination.

Remedy

The question of what, if any, remedy is appropriate is not an easy one. Reinstatement can hardly be said to be impracticable, and such is the remedy primarily contemplated by the Act. However, I acknowledge that, in some respects, it may seem a curious result to foist Mr Donaldson, with all his limitations (however unfortunate it is that he has them), back on the NPWS. Nevertheless, Mr Donaldson's claim that the termination of his employment was unlawful has been made out. Prima facie he is entitled to the remedy the section contemplates: see H & H Security Pty Ltd v Toliopoulos (unreported, Madgwick J, 25 July 1997) in which I discussed Liddell v Lembke (1994) 56 IR 447 at 465 and 473 and Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 508. His sins were more of omission, by way of apparent inability to get work done properly, than of commission (compare, for example, Toliopoulos). The poor administration which put and left Mr Kettlewell as Mr Donaldson's supervisor was not of the latter's making. If he is not reinstated then, because of my finding that reinstatement is not impracticable, he cannot be awarded any compensation: s 170EE(2) makes such impracticability one of the pre-conditions for an award of compensation. The public has an interest in parity of treatment of employees, including publicly-employed persons, an aspect of what might be called "due process", which ought practically to be vindicated if it is to have any meaning. On balance, it is less just that Mr Donaldson receive no remedy than that he be reinstated. I therefore, with some lack of enthusiasm, consider that it is appropriate that he be reinstated.

I will give the parties an opportunity to address me as to the precise orders I should make, in the light of these conclusions. Mr Donaldson's circumstances, for example, may have changed in some material way.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated: 11 August 1997

Solicitor for the Applicant:	R Dunn
Counsel for the Respondent:	E Brus
Date of Hearing:	10 October 1996
Date of Judgment:	11 August 1997