CATCHWORDS

 

ADMINISTRATIVE LAW - Administrative Appeals - appeal from decision of Secretary of Department of Veteran Affairs and from decision of Redeployment and Retirement Appeal Committee - Public Service Act 1922 - retirement decision under s 76W of Public Service Act 1922 - decision to retire officer on inefficiency grounds - whether warning adequate under certified agreement - procedural fairness - whether principles of procedural fairness should apply under "streamlined" procedures - whether officer entitled to be informed of case against her and be given an opportunity to be heard - whether unreasonable delay amounts to "serious defect" - whether use of inefficiency procedures for disciplinary reasons amounts to "serious defect" - whether counselling in accordance with certified agreement - whether failure to provide documents which were taken into account amounts to serious non-compliance - whether Redeployment and Retirement Appeal Committee applied correct test - whether appeal to Redeployment and Retirement Appeal Committee "cured" defects at first instance.

 

PUBLIC SERVICE - Public Service Act 1922 - retirement of officer - whether "inefficient" - whether non-compliance with procedures - effect - whether strict compliance with procedures mandatory.

 

NATURAL JUSTICE - whether grounds need to be specified in detail - failure to provide documents - reasonable expectations - appeal - whether "cured" defects in decision appealed from.

 

 

Public Service Act 1992 (Cth), Division 6, ss 55 to 66, Division 8c ss 76S to 76Z

 

Merit Protection (Australian Government Employees) Act 1984 (Cth) s 39(5), s 42(1), s 42(5)

 

Administrative Decisions (Judicial Review) Act 1977 (Cth)

 

Industrial Relations Act 1988 (Cth) s 4

 

Certified Industrial Agreement; "Improving Productivity Jobs and Pay in the Australian Public Service 1992-1994 Agreement".

 

 

 

Etherton v NSW Public Service Board [1983] 3 NSWLR 297

 

Kioa v West (1985) 159 CLR 550

 

Cole v Cunningham (1983) 49 ALR 123

 

Colpitts v Australian Telecommunications Commission (1986)

9 FCR 52

 

Kanda v Government of Malaya [1962] AC 322

 

Barnes v Australian Telecommunications Commission (1989)

25 FCR 283

 

Arafura Seafood Products Pty Limited v Landos (1988)

16 ALD 519

 

Romeo v Asher (1991) 29 FCR 343

 

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648

 

Scurr v The Brisbane City Council (1973) 133 CLR 242

 

Peira v PSA (NSW) (re Scorzelli) (1993) 49 IR 169

 

Lee v Jacka (1994) 125 ALR 459

 

Dr Bart James v Brian McDonald (Sackville J, 21 October 1994, NG 631 of 1994, unreported)

 

Preston v Carmody (1993) 44 FCR 1

 

Macksville and District Hospital v Mayze [1987] 10 NSWLR 708

 

Twist v Randwick Municipal Council (1976) 136 CLR 106

 

Calvin v Carr [1979] 1 NSWLR 1

 

 

 

 

 

 

 

 

 

 

 

 

 

CHRISTINA PANAGOPOULOS v THE SECRETARY,                            DEPARTMENT OF VETERAN AFFAIRS, JIM HETHERINGTON,

DEBORAH  BAILEY, and JIM TSOUKALIDIS

 

No NG 729 of 1994      

 

 

Tamberlin J

Sydney

6 November 1995

IN THE FEDERAL COURT OF AUSTRALIA)                 

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 729 of 1994

GENERAL DIVISION                  )

 

 

 

 

              BETWEEN:                CHRISTINA PANAGOPOULOS

                                      Applicant

 

 

              AND:                    THE SECRETARY,

                                      DEPARTMENT OF VETERAN

                                      AFFAIRS

                                      First Respondent

 

                                      JIM HETHERINGTON

                                      Second Respondent

 

                                      DEBORAH  BAILEY

                                      Third Respondent

 

                                      JIM TSOUKALIDIS

                                      Fourth Respondent      

 

 

 

 

 

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        6 NOVEMBER 1995

 

 

                   MINUTE OF ORDERS

 

 

THE COURT:

 

 

 

1.   Declares that both the decision of the Delegate of the Secretary of the Department of Veteran Affairs and the decision of the Redeployment and Retirement Appeal Committee are invalid

 

2.   Orders that the decision to retire the applicant be set aside.

 

3.   Orders that the first respondent pay the applicant's costs of the appeal.

 

 

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

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 729 of 1994

GENERAL DIVISION                  )

 

 

 

 

              BETWEEN:                CHRISTINA PANAGOPOULOS

                                      Applicant

 

 

              AND:                    THE SECRETARY,

                                      DEPARTMENT OF VETERAN

                                      AFFAIRS

                                      First Respondent

 

                                      JIM HETHERINGTON

                                      Second Respondent

 

                                      DEBORAH  BAILEY

                                      Third Respondent

 

                                      JIM TSOUKALIDIS

                                      Fourth Respondent      

 

 

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        6 NOVEMBER 1995

 

 

                    REASONS FOR JUDGMENT

 

 

TAMBERLIN J:

 

Christina Panagopoulos ("the applicant") began her public service career with the Department of Veterans Affairs ("the Department") on 31 January 1984. Since October 1985 she has worked with the Treatment Services Section in a variety of capacities. At all relevant times she was employed under the Public Service Act 1922 ("the Act"). She was an Administrative Service Officer, Class 2, which had the local designation of Treatment Examiner/Assessor within that department.

The first respondent is the Secretary of the Department. Under the Act the Secretary has power under s 76W to retire an officer from the service where satisfied of a relevant matter in relation to that officer.

 

On 31 May 1994, Peter Walker, a delegate of the Secretary, issued a formal notice under that section retiring the applicant from the Australian Public Service, effective from 14 June 1994 on the ground that the applicant was "inefficient" (the retirement decision). The second, third and fourth respondents were members of a Redeployment and Retirement Appeal Committee ("the Appeal Committee") constituted under the Act and under the Merit Protection (Australian Government Employees) Act 1984 to hear appeals against retirement decisions.

 

On 28 September 1984, the Appeal Committee issued a decision confirming the notice of retirement (the "appeal decision"). This was a majority decision with the fourth respondent dissenting.

 

It was not disputed that both the retirement decision and the appeal decision were decisions to which the Administrative Decisions (Judicial Review Act) 1971 (Cth) ("ADJR Act") applies.  Nor was there any dispute that the applicant was a person aggrieved.

 

In this application the applicant seeks to set aside both the retirement and the appeal decisions.

 

The errors of law raised by the applicant turn on procedural matters. These errors are said to arise as a result of failure to comply with the procedural requirements of the Certified Industrial Agreement entitled "Improving Productivity Jobs and Pay in the Australian Public Service 1992-1994 Agreement" ("the Agreement"), in force during the period 1992-1994.  In addition, there are claims that breaches of natural justice occurred in connection with the making of the retirement decision and that the appeal decision failed to apply the correct legal test. The submissions are set out more fully later in these reasons.

 

Statutory Framework

 

The main statutory provisions relevant in this matter are contained in that Division of the Act dealing with retirement on the ground of inefficiency.

 

Under Division 8C of the Act entitled "Redeployment and retirement of officers other than Secretaries of Departments and Senior Executive Service officers", there are a number of provisions (ss 76S to 76Z) which relate to inefficient officers. Relevantly they are as follows:

          "Interpretation ...

 

          76S(2) For the purpose of this Division, an officer is inefficient ... only if the officer fails, in the performance of the duties that he or she is required to perform, to attain or sustain a standard of efficiency that a person may reasonably be expected to attain or sustain in the performance of those duties.

 

          (3) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether an officer has failed, in the performance of the duties that he or she is required to perform ... :

 

          (a) regard shall be had to:

 

          (i) any written selection criteria or job specifications applicable ....

 

          (ii) any duty statement describing those duties; and

 

          (iii) any written work standards or instructions relating to the manner or performance of those duties;

          .....

 

          Powers of Secretary and Board

          76W(1) Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the Secretary may, ... by notice in writing given to the officer, ... retire the officer from the Service.

 

          .....

          (4) The powers conferred on a Secretary ... by this section are subject to any applicable industrial award.

 

          (6) In this section "relevant matter", in relation to an officer, means ... :

 

          (a) That an officer is unable to perform his or her duties or, other duties appropriate to the officer's classification, because of physical and mental incapacities;

 

 

          ....

 

          (c) That an officer is not qualified to perform his or her duties;

 

          Board may issue administrative instructions and directions

 

          76X(2) The Board may, by notice in writing, give to a Secretary directions in relation to the exercise of powers conferred on Secretaries by this Division.

 

          (3) A Secretary exercising, or proposing to exercise, a power conferred by this Division:

 

          (a) shall comply with any administrative instructions expressed to be binding on Secretaries ....

 

          Appeals

 

          76Z(1) An officer to whom a notice under s 76W has been given ... may, within the prescribed period after receiving the notice,  appeal to an Appeal Committee against the giving of the notice on the ground that ... the retirement of the officer ... would be unreasonable."

 

Provision is made for the Appeal Committee to hear and determine the appeal and either confirm or revoke the notice.

 

In relation to s 76W(4) an "industrial award" means an award under the Industrial Relations Act 1988. Section 4 of the that Act defines "award" to include certified agreement.

 

The relevant certified Agreement in the present matter is the Agreement which came into force from 4 December 1992 and remained in force until 3 December 1994. This covers the relevant period for present purposes.

Included in the Agreement is a section entitled "Improved Handling of Inefficiency in the APS".  This sets out a series of procedural steps to be followed in dealing with inefficiency in the Australian Public Service. As the procedures are of central importance in this matter I set them out below:

"Improved Handling of Inefficiency in the APS	Inefficiency
The parties agree to streamline the inefficiency process. After normal counselling, the following formal procedures apply. The procedures are not to be used for disciplinary or invalidity reasons.	streamlining
Step 1   .     Where an officer has not achieved an acceptable standard of work performance, the supervisor is to give a formal written warning to the officer. The warning will detail the required standard and outline how the officer's performance does not meet the standard.	Step 1
Step 2   .     The Secretary (or delegate) then appoints a person to formally assess the officer's performance for a specified period of 3 months. The person must be an officer from outside the immediate work area of the officer whose performance is to be assessed.	Step 2
.     At the completion of the assessment period, the assessing officer advises the Secretary (or delegate) on whether the officer sustained (or, where appropriate, attained and sustained) an acceptable standard of work performance during the assessment period.         (An officer may be retired with consent after a formal Warning has been issued by the supervisor.)

Step 3   .     If the officer's work performance improves to the required standard, no further action is taken.   .     If the officer did not achieve an acceptable standard of work performance the assessor informs the delegate who issues a notice of "Intention to retire" to the officer unless the officer can show cause why the action should not proceed.	Step 3
.     The Officer has 7 days in which to respond.
Step 4   .     The delegate then decides whether to:         - issue a section 76W notice of retirement; or         - take some other action (including transfer)	Step 4
.     If an officer is, without consent, retired or reduced in classification, the officer may appeal to the MPRA within 14 days of the issue of the notice of retirement or reduction on the ground that the action was unreasonable in that he or she met the required standard or that there was a serious defect in the application of the formal procedures outlined above.	appeal to MPRA within 14 days
.     A notice of retirement takes effect after 14 days unless the officer lodges an appeal. In the event of an appeal the officer will remain attached to his/her position on full pay	notice of retirement
.     It is the intention of the parties that appeals will be finalised within a period of four (4) weeks from the date of lodgment.	finalise within 4 weeks
.     An officer who appeals must submit any statement in support of the appeal to the MPRA within 21 days of the issue of the notice of retirement or reduction. Where the officer, without due cause, fails to submit a statement within the time allowed or fails to appear at a scheduled hearing of the appeal, the MPRA may dismiss the appeal.	statement to MPRA within 21 days
.     The Appeal Committee will have the power to confirm or revoke the notice.	Appeal Committee's powers
.     If the Appeal is successful the notice of retirement is revoked without detriment to the officer.	successful appeal

.     The above process will not be delayed by the lodgment of a grievance and any grievance of the officer in relation to the procedures adopted for the purpose of inefficiency action will be considered and determined by the Appeal Committee."

all grievances to be determined by Appeal Committee

 

 

The Appeal Committee referred to in s 76Z is defined in s 76S to mean a Redeployment and Retirement Appeal Committee constituted under the Merit Protection (Australian Government Employees) Act 1984 ("the MPRA Act").

 

Under s 39(5) of the MPRA Act the Appeal Committee has power to review any decision in respect of which application to it is made under any enactment.  The Appeal Committee may exercise all the powers and discretions conferred by any Act on the person who made the decision under review. The committee must make a decision in writing which either affirms the decision under review or varies it, or sets it aside and makes a substitute decision, or remits the matter for reconsideration (s 42(1) of the MPRA Act). A decision by the Appeal Committee to vary a person's decision is deemed to replace the decision of that person and generally has effect on or from the day on which the decision under review has or had effect; s 42(5)

 

It should be noted that under the Act Division 6, which comprises ss 55 to 66, deals in detail with matters of discipline. For relevant purposes that Division is concerned with "misconduct" which is defined to mean a failure of an officer to fulfil his duty as an officer. The failure of an officer to fulfil his duty is defined in s 56 as follows:

 

          "56.  For the purposes of this Subdivision and Subdivisions B, C and E, 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 by a person having authority to give the direction, being a direction with which it is his duty as an officer to comply;

 

          (b)  he is inefficient or incompetent for reasons or causes within his own control;

 

          (c)  he is negligent or careless in the discharge of his duties;

 

          (d)  he engages in improper conduct as an officer;

 

          (e)  he engages in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute; (Emphasis added)

 

              ....."

 

The disciplinary provisions prescribe a different procedure to that laid down in the Agreement for inefficiency. Inefficiency which is for reasons or causes within the control of the officer, can amount to "misconduct" and thereby can attract the disciplinary procedure under the Act.  The definition of an "inefficient officer" in s 76S, in contrast, is directed to a situation where the officer simply fails in the performance of duties that he or she is required to perform. It does not matter in the latter instance, whether the reasons or causes for the inefficiency are within or outside the control of the officer. The existence of inefficiency in performance is sufficient under s 76S, but under the disciplinary section, s 56, it must be shown, not just that the officer is inefficient, but that it was for reasons or causes within the control of that officer.

 

This distinction is important as there are two procedural streams established for dealing with misconduct and inefficiency.

 

The Instructions given (under s 76X of the Act) by the Public Service Commissioner on 12 March 1993,  in relation to inefficiency procedures, make the procedures binding on Secretaries of Departments. 

 

The material furnished with the Instruction at page iv summarises the relationship of the two regimes as follows:

 

 

 

          "The Inefficiency Procedures overlap the disciplinary provisions of the Act, where it is provided that inefficiency within an officer's own control can be subject of disciplinary action.  Under the Inefficiency Procedures a Secretary is not required to establish whether the inefficiency is within or beyond an officer's control. It is sufficient to establish the inefficiency. Where an officer's inefficiency arises from a deliberate act or acts the disciplinary provisions may be used."

 

The inefficiency procedures expressly prohibit their use "for disciplinary reasons" and it is submitted for the applicant that this prohibition has been breached in the present case.

 

Background

 

The applicant's employment by the Veteran's Affairs Department began on 31 January 1984. The applicant worked in the Treatment Services Section. During the relevant period she was an ASO2 "Treatment Examiner/Assessor".

 

The applicant's Duty Statement as in force at 18 June 1993 included examining, determining or arranging for the provision of services to beneficiaries in accordance with Departmental policy; attending to inquiries and providing information relating to clients' benefits; accessing and updating appropriate ADP computer networks relating to the Health Program and exercising delegations and preparing relevant correspondence.

 

On 9 March 1990 a recommendation for incremental advancement recorded the applicant's attendance as "satisfactory", her diligence as "good" and her efficiency as "good".

 

After March 1990 difficulties arose from time to time in the applicant's relations with her immediate supervisors, Ms Philip and Ms Young.

 

The applicant says that she recalls two formal counselling sessions prior to an official warning being given to her on 19 July 1993. The first counselling related to an incident which took place between herself and another officer, Mr Wakeham, on 29 October 1992, in which she hit him on the arm in the course of an argument. The second counselling session took place on 12 March 1993. This related to two specific matters, namely that she had been seen drying underwear under a hand dryer and she had been seen spitting into a hand basin. Both incidents occurred in the ladies toilets. The applicant gave an explanation in her Statement in relation to these two particular incidents. The events, the subjects of the two counselling sessions, were apparently one-off matters.

 

Following the counselling on 12 March 1993, a Memorandum from the Manager of Personnel Services, records:

          "1.  Reference is made to your interview this morning in Personnel Section with Ms J Grantham and Messrs Cauchi, Berton and Flint.

 

          2.   At the conclusion of the meeting it was made clear to you that certain aspects of your behaviour such as drying underwear in the ladies washroom and spitting in the sink and in the basins in the ladies washroom was not only un-hygienic (sic) but also unacceptable.

 

          3.   You are advised that should incidents of this nature occur again it will lead to disciplinary action being taken against you."

 

On 23 June 1993 Mr Effie Cauchi, ("Mr Cauchi"), the Assistant Director of Treatment Services, sent a Memorandum to the Manager of Personnel Services, Mr Flint, listing twenty-four specific instances of misconduct by the applicant within the office.  The Memorandum records twenty-four specific complaints, for the most part giving dates and detailing behaviour regarded as offensive to other members of the staff, including, arriving late, not arranging her work, borrowing train tickets and looking in people's desks, and screaming.  In the penultimate paragraph Mr Cauchi states:

 

          "In essence this matter has now reached the situation that disciplinary action should be taken against this officer. Although it may be difficult I would like this officer removed from the Health Program immediately."

 

 

On 19 July 1993 Mr Sanders, the Acting Director of Corporate Services, issued a formal warning to the applicant under the Inefficiency Procedures which reads as follows:

 

          "...

          1.   I hereby warn you that I am not satisfied that you have, in the course of performing the duties required of your position, achieved an acceptable standard of work performance.

 

          2.   The duties of your position require that:

 

          Under general direction you undertake one or a number of examinations and/or authorisation functions in the Treatments Services Section.  Specific duties are at Attachment A.

 

          3.   I have formed the opinion that you have not met the standard required for the following reasons:-

          a.   Conducting yourself in a manner that disrupts the overall functioning of the section in that on numerous occasions you have argued repeatedly with your supervisor and other staff to the point of becoming abusive.

 

           b.   Have failed to obey directions in relation to leaving the work place at the end of the day. Having on several occasions been escorted off the premises by either your supervisors or security staff.

 

          c.   Have failed to abide by official directions in relation to recording of attendance and have absented yourself from the work place without approval.

 

           d.   Detracts from the overall efficiency of the section in that your co-workers are at odds with you over the state of cleanliness about your work area, your personal hygiene and your argumentative behaviour.

 

          e.   Your refusal to obey directions relating to your duties and behaviour.

 

           4.   A copy of this warning will be sent to the delegate of The Secretary who will appoint a person to assess your work performance during a three month assessment period. At the conclusion of this period, the assessing officer will  advise the delegate of The Secretary on whether you attained and sustained an acceptable standard of work performance during the assessment period.

 

          5.   The assessment period is three calendar months from the date the delegate of The Secretary advises you of the appointment of the assessing officer.

 

          6.   If, during the three months assessment period, you do not attain and sustain an acceptable standard of work performance, the delegate of The Secretary will give you a notice of "Intention to Retire". This notice will advise you that it is The Secretary's intention to retire you from the service on the grounds of inefficiency. You will have seven days to respond and show cause why you should not be retired.

          7.   If after considering any comments you make, The Secretary is satisfied that you are inefficient, The Secretary may issue a notice of retirement under Section 76W of the Public Service Act 1922, or take some other action.

 

          8.   If you are given notice of retirement or reduction without your consent, you will have the right to appeal to a Redeployment and Retirement Appeal Committee. If you appeal against the giving of a notice, the notice will not take effect unless and until The Secretary's decision is confirmed by the Appeal Committee.

 

          9.   Following the issue of this warning, the Secretary may, with your prior consent, retire you from the service.

 

          10.  If you need further information on the inefficiency process at this time, please contact Mr R Flint, Manager (Personnel Services)..." (Emphasis added)

 

A Memorandum dated 20 June 1993 from Mr Flint, the Manager of Personnel Services to Mr C Puckey, the Assistant Director of Community Services, notified Mr Puckey that he had been appointed as Assessing Officer under the Inefficiency Procedures initiated in respect of the applicant. He was given a copy of the formal warning, the Notice of Appointment, the "Work Contract" established for the applicant and the Public Services Guidelines for the new Inefficiency Procedures. He was required to furnish Mr Flint with a report at the completion of the assessment period, namely on 20 October 1993 as to whether or not the applicant had attained and sustained an acceptable standard of work performance during the assessment period.

 

On 22 July 1993 the applicant signed what is described as a Performance Agreement.  This Agreement required the applicant to carry out specified activities. There were further specific "administrative arrangements" entered into, such as accepting reasonable directions by her supervisor without argument; leaving the building by 5.15 pm each working day; preparing time sheets on arrival and departure; informing her supervisor should she require to leave her section; maintaining a clean and tidy work area and refraining from going into other officers' desks without permission.  Provision was made in the Agreement for performance feedback. There is no statement in that Agreement as to how her performance did not meet any standard.

 

On 22 July 1993 the applicant met with Mr Puckey, the assessing officer, and discussed the matters set out in the formal Warning.

 

On 28 July 1993 the applicant was given a copy of a document entitled "Agreed Assessment Procedure" signed by Mr Puckey. This stated as follows:

 

          "Copies of any documents which are taken into account will be provided to the applicant and an opportunity will be provided for her to respond to any matters raised therein."

 

 

This was not complied with, as will be shown later.

 

On 8 October 1993 the applicant was provided with a report of Ms Philip dated 17 September 1993. 

 

On 20 October 1993 the assessment period was concluded. The applicant believed that her behaviour would only be assessed on her performance during that period.

 

On 8 February 1994 Mr Puckey formally reported in writing on the performance of the applicant. He found, among other things, that the applicant had not sustained an acceptable level of work performance during the assessment period and was inefficient. About two months later, on 5 April 1994, a further report on the applicant was provided by Ms Muller to Mr Walker, the delegate, and on this occasion a copy was provided to the applicant.

 

On 2 May 1994 the applicant was handed a "Notice of Intention to Retire", signed by Mr Walker. She was given seven days within which to show cause why she should not be retired.

 

On 9 May 1994 she furnished Mr Walker with a detailed typewritten document of ten pages in response to the show cause notice. An Incidents Report, dated 24 May 1994, signed by two officers was provided to the applicant. On 26 May 1994 the applicant responded to this Incidents Report.

 

On 31 May 1994 Mr Walker, as delegate for the Secretary for the Department, handed to the applicant a Notice of
Retirement, on the ground of inefficiency, effective on 14 June 1994 and advised her of her rights of appeal.

 

On 9 June 1994 the applicant obtained copies of further documents and on 10 June 1994 she appealed pursuant to s 76Z of the Act.

 

The appeal was heard by the Appeal Committee on 12 and 13 July and on  28 September 1994.

 

On 28 September 1994 the Appeal Committee issued its decision and by majority confirmed the retirement decision.

 

Report of Assessing Officer - 8 February 1994

 

Mr Puckey concluded that the applicant during the assessment period failed to meet reasonable expectations for understanding of and adherence to proper working procedures.  She had an inadequate understanding of (or acceptance of) proper workplace behaviour, especially the need to carry on acceptable relationships with her supervisors, managers and colleagues. In this respect, she failed to adhere to five of the nine "administrative arrangements" set out in the Performance Agreement. Three of the remaining four "arrangements" related to time keeping and could be regarded as less important in terms of the maintenance of effective working relationships. Mr Puckey said that it was unlikely that the applicant would perform satisfactorily as her shortcomings were related to the basics of clerical work, including inter-personal relations. He saw no reason to believe that she would reach an acceptable level of performance if reduced to the ASO level 1.

 

The disruption brought about by her behaviour was said to be such that her employment was a net loss to the organisation.

 

Decision of Appeal Committee 28 September 1994

 

The decision of the Committee confirmed the Notice of Retirement of 31 May 1994. In its conclusions, the majority of the Committee said that the procedure adopted by the Department was not without its shortcomings, but these shortcomings, either individually or collectively did not represent a "serious defect" in terms of the inefficiency assessment process.  The majority referred to the failure of the applicant to satisfy the conditions of the Performance Agreement together with her demonstrated inefficiency in relation to follow up action on cases, and her performance on the phone. It was said that the applicant was a person who had taken little or no responsibility for her own behaviour in the office and had transgressed, on several occasions, basic standards of office etiquette to the disadvantage of general departmental efficiency.  They considered the fact that she failed to respond appropriately to frequent reminders, instructions and admonishments by a variety of supervisors
over a number of years, undermined the credibility of her argument that she was not aware of relevant procedures.

 

In reaching their conclusion, the majority of the members of the Committee made the following observations:

          "There were a number of shortcomings in the application of the formal procedures by the Department and this led to an extended hearing as each of the issues was addressed by both parties.

 

          ....

 

          Due to the number of weaknesses in the application of the inefficiency procedures and the potential for some of these to constitute "serious defects", the Committee was unable to make a decision on 5 September.

 

          ....

 

          The Committee concludes that there were clearly shortcomings in the Departments's counselling of the Appellant,

 

          ....

 

          Indeed, insofar as the Department was of the view Ms Panagopoulos had wilfully disobeyed or disregarded a reasonable direction by a person in authority, disciplinary action under Part 6 of the Act would have been appropriate.

 

          ....

 

           The outline provided by the Department of "how the officer's performance does not meet the standard" also implies what are the relevant standards of behaviour, but in the Committee's view this falls short of "detail" as to what is required.

 

          ....

 

          The Notice of Intention to Retire was issued by the delegate to Ms Panagopoulos on 2 May 1994 - a further 12 weeks. That is, it took the Department 28 weeks to make the decision to retire Ms Panagopoulos.  By any measure this is an inordinate amount of time and the Committee was sympathetic to the claim that this was a distressing and confusing period for the Appellant.

 

          ....

 

          On this basis, the delay of itself was not a serious defect, ie. in the view of the Committee, the decision of the delegate was not likely to have been affected by the delay per se.

 

          ....

 

          In relation to the claim that the assessment addressed matters that arose outside the formal assessment period, it was not clearly demonstrated how this, to the extent it occurred, acted to the disadvantage of the Appellant. On the contrary, if any weight were to be given to the investigations and reports of matters outside the assessment period, on balance they could be seen to have favoured the Appellant.

 

          ....

 

           From one perspective it was unfair to the Appellant that her performance was being reviewed without her being explicitly advised that this was occurring and that these actions further delayed an already drawn out process. On the other hand, the Notice of Intention to Retire was delayed.  Moreover, the supplementary reviews did not affect the outcome, and as such do not represent a serious defect in the procedures.

 

          ....

 

          The Committee was left with the view that, whilst the way the Department structured the assessment process gave rise to an appearance of a process lacking objectivity, the Assessing Officer had ample opportunity and did make his own assessment of the Appellant's efficiency.

    

          ....

 

          On the other hand, it was clear that neither the ASO 2 Duty Statement nor the Operations Manual specifically addressed follow up on matters of this sort.  Despite the shortfall in the documented procedures, the Committee agrees with the views of the Departmental officers.

          ....

 

          The procedure adopted by the Department was not without its shortcomings, as discussed above. Nevertheless these shortcomings, either individually or collectively, do not represent a "serious defect" in terms of the inefficiency assessment process." ... (Emphasis added)

 

 

On first reading these observations by the majority of the members of the Appeal Committee, I was concerned that the procedures may have miscarried. On closer examination these misgivings were confirmed for the reasons set out below.

 

I now turn to the central issues.

 

The Adequacy of the Warning of 19 July

 

The Agreement requires that there be "a formal written warning" which will "detail the required standard and outline how the officer's performance does not meet the standard".

 

The applicant submits that this requirement was not met.

 

In ascertaining whether an officer has failed to meet a reasonable standard of efficiency regard must be given to the applicable selection criteria; job specification; any duty statement and any written work standards or instructions relating to the manner of performance of those duties. Regard may be had to a wide range of other matters. (See s 76S.)

 

The first question is whether the Warning "detailed" the required standard.

 

In relation to the required standard, the Warning stated as follows:

 

          "1. ... I am not satisfied that you have,  ... achieved an acceptable standard of work performance.

 

          2.  The duties of your position require that: 

 

          Under general direction you undertake one or a number of examination and/or authorisation functions in the Treatment Services Section. Specific duties are at Attachment A." (Emphasis added)

 

The Duty Statement attached to the Warning is dated 6 November 1985, and is reproduced earlier in these reasons. It sets out a loosely described set of tasks relating to processing applications, claims and records.  The applicant is also required to "exercise delegations and prepare relevant correspondence."

 

The Warning goes on to refer to a certain types of behaviour which are set out earlier in these reasons.

 

In my view, simply to attach a Duty statement does not amount to giving the officer details of the required standard as prescribed by the Agreement. No "details" are given. The officer is entitled to know with particularity what standard or level of achievement he or she is required to attain in performing the relevant duties. The statement does not do this. Nor does the Warning particularise the "acceptable standard of work" which, Mr Sanders is satisfied she has not achieved.

 

The Performance Agreement of 22 July 1993 does not clarify the obscurity of the Warning Notice. Rather, it further confuses the issue. It required her to perform under general direction a "combination of operational and administrative activities, consistent with the ASO2 work level standards". It then sets out six paragraphs which generally outline tasks to be performed each of which were differently worded from the applicant's duty statement of 6 November 1985 attached to the Warning, except for the rather amorphous general mandate that she is to "exercise delegations and prepare relevant correspondence."

 

There is no information given as to what are the "ASO2 work level standards". They were certainly not specified in the Warning Notice. If they existed they should have been stated.

 

As the Performance Agreement indicates by its reference to being "consistent with the ASO2 work level standards", there is a distinction drawn between the tasks and duties which are to be performed and the level or acceptability of performance in carrying out those tasks and duties.

The Performance Agreement of 22 July states that:

 

          " The above duties are described in the approved duty statement, and a copy is attached for information."

 

 

 

This is confusing because the wording of the duties referred to in the Performance Agreement are substantially different from the duties in the Warning. The applicant's duties listed in the Performance Agreement include for example, "giving technical and procedural advice to other staff"; examining "computer reconciliation reports as required"; examining and processing "claims for treatment benefits"; and accessing and updating "appropriate ADP computer networks". These matters are not referred to in the Warning.

 

The Warning seems to me to beg the question in that it warns the applicant that she has not achieved an acceptable standard in performing her duties but does not tell her what is meant by that term. It lists her duties but it does not tell her, much less detail, the required standard which she must attain in the performance of those duties.

 

The bald assertion that she has not achieved an "acceptable standard" goes no way towards compliance with a requirement that the Warning must "detail the required standard". The word "acceptable" is not explained in any way.

 

It appears that, by 19 July 1993, when the Warning was issued, the duty statement which had been attached to the Warning Notice had been superseded. It was by then out of date. This was capable of generating considerable confusion. The applicant had been referred to differing duty statements.

 

Furthermore, there is nothing in the warning which sets out a "standard" of performance. In my view, the term "standard" is used in this context, in the sense of a "required or specified level of excellence or attainment". See the Shorter OED, 3rd ed, at 3028.  One searches in vain, in the present case, for any specification at all as to any level of attainment to be achieved.

 

In summary, the Warning not only omits to detail any standard of performance but it totally fails to meet this procedural requirement of the Agreement.

 

The next question with respect to the Warning is whether it "outlines how the officer's performance does not meet the standard".

 

The "five reasons" given in the Warning are cast in imprecise generalised language. No specific instances are given to the applicant. There is no reference to time, place or the identity of other staff. There is no reference to the identity or duties of "relevant supervisors" in question. In essence, she is told that she is argumentative with staff and supervisors to the point of becoming abusive. This disrupts the section. She has failed to obey directions about leaving her work place at the end of the day. She has failed to abide by official directions to record attendance and has absented herself without permission from work. Her co-workers are "at odds" with her over cleanliness in the work area, her hygiene and her argumentative behaviour. Most generally of all the applicant is told she has refused to obey directions relating to duties and behaviour.

 

Etherton's Case & Procedural Fairness

 

There was much debate before me as to whether the well-settled principles laid down by Hunt J in Etherton v NSW Public Service Board [1983] 3 NSWLR 297 should be applied in the present circumstances. After an extensive review of authority his Honour concluded at 306 cff:

 

          "It is clear from all of them that the plaintiff is entitled to particulars of the specific acts or omissions relied upon by the Board as establishing the truth of the charge against him.

 

          .....

       

          In my view, therefore, the plaintiff was entitled to particulars of the specific acts or omissions relied upon to establish the charge against him and to have identified for him specifically whether he is alleged in relation to each such act or omission to have been negligent, careless, inefficient or incompetent.

 

          ......

 

          In  my view, the proceedings as a whole have been infected by the breach of natural justice perpetrated by the refusal to give proper particulars and ... the proceedings as a whole are void." (Emphasis added)

 

The submission was made that the above principles do not apply in the present case because:

 

(a)  That case involved a disciplinary as opposed to an inefficiency proceeding;

 

(b)  It would be contrary to the procedural "streamlining" purpose underlying the Agreement to unduly "burden" the process with the necessity to give particulars.

 

I do not accept the above submission for the reasons set out below.

 

First, Etherton  is simply one particular example of the general requirement for procedural fairness. It is well settled that procedural fairness requires that when a decision is made which will deprive a person of a right or interest he or she is entitled to be informed of the case sought to be made against that person and an opportunity must be given to reply to that case. The reference to "right or interest" in this context includes the preservation and protection of livelihood or reputation which are matters of fundamental importance.  Kioa v West (1985) 159 CLR 550 at 582 per Mason J;  Cole v Cunningham (1983) 49 ALR 123; Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 69-71; Kanda v Government of Malaya [1962] AC 322 at 337; Barnes v Australian Telecommunications Commission (1989) 25 FCR 283 at 294-5; Arafura Seafood Products Pty Limited v Landos (1988) 16 ALD 519; Romeo v Asher (1991) 29 FCR 343.  Recent authority in Australia has continued the trend to extend the application of this requirement. As Deane J pointed out in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653:

          "the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear legislative intent, be recognised as applying generally to governmental executive decision-making..."   

 

There is no reason, in principle, why procedural requirements preceding dismissal from employment should be read down simply because they are not to be classified as "disciplinary". This is especially so where the person issuing the Notice of Retirement has expressed a "satisfaction" that the applicant has been inefficient. This conclusion is expressly recorded in the first paragraph of the Warning. In substance, the Notice states: I am satisfied that you are inefficient and I give you a warning so you can endeavour to show you will not continue to be inefficient in the future. In such circumstances, where in effect an onus placed on her, the applicant is entitled to know with precision what specific behaviour has led to this conclusion. This is particularly so  where her conduct leads to the initiation of a process which may result in loss of employment.

 

Second, the "streamlining" of the processing of inefficiency matters envisaged in the Agreement, cannot without clear wording to that effect, justify the displacement of the requirement for procedural fairness. There is nothing in the Agreement to exclude the provision of particulars with respect to specific behaviour about which the Warning is given. Indeed the Agreement requires them. It would not be onerous to attach a Schedule to the Warning which outlined the incidents and matters about which there was complaint. This information was readily available to the delegate, particularly having regard to the Cauchi Memorandum of 23 June which itemised twenty-four specific incidents.  The applicant did not become aware of the contents of this Memorandum until about one year later and had not received a copy of it by 9 June 1994.  Indeed, such particularisation could save time by providing a specific focus for consideration and submission.

 

In employment cases basic procedural fairness cannot be sacrificed at the alter of an "efficient" resolution of the question as to whether the officer has performed her duties.

 

Third, although the assessment and appeal involved administrative process rather than curial litigation, I do not see why or how this circumstance justifies a lack of particularity as to the way in which there is an alleged failure to comply with the performance standard especially in view of the observations of Deane J (supra).

 

Fourth, the Performance Agreement of 22 July cannot "cure" an omission to outline the manner in which she had failed to meet the performance standard, because it simply prescribes future conduct and is silent as to the earlier conduct of the applicant.  In addition, it does not purport to be part of the Warning and I do not think that it can be used as a basis to remedy the important omissions in the Warning.

 

Fifth, the requirement in the Agreement to "detail the required standard and outline how the officer's performance does not meet the standard" is mandatory and there has been no compliance substantial or otherwise with that requirement in the Warning. Scurr v The Brisbane City Council (1973) 133 CLR 242 at 256; and Peira v PSA (NSW) (re Scorzelli) 1993 49 IR 169.

 

In Scorzelli, Clause 27(2) of the relevant Regulation required the Department Head to notify the officer in writing of the charge and of the particulars of that charge. In considering whether failure to provide those particulars invalidated the subsequent proceedings the Full Industrial Court of NSW (Hill, Hungerford & Peterson JJ) said at 49 IR 184-5:

          "In our opinion the requirement of cl 27(2) to provide particulars is mandatory having regard to the purpose and nature of the whole scheme; that scheme reflects the seriousness of the subject matter of disciplinary action and its consequences. The structure of the process afforded by the PSM Act and Regulation, namely, the division of the process into a preliminary inquiry (before or after a change is made), the provision of a report of the results of the inquiry and, if it is decided to proceed further with the inquiry, the notification to the officer in writing of the charge (or any amended or further charge) AND the particulars thereof AND a copy of the report BEFORE proceeding further with the inquiry make it abundantly clear that it is fundamental and a condition precedent to subsequent action that the prior procedures be scrupulously observed. Indeed it may be considered that the legislative scheme is overly detailed and intricate. But that simply confirms the importance which the legislation attaches to the subject matter. The scheme is obviously designed to ensure that the officer concerned is given every opportunity of answering any allegations and/or charges made and that they are thoroughly investigated.  For those purposes to be fulfilled it is necessary for the officer to be fully aware of the precise charge and its component particulars so that the officer may properly defend or answer them.  In our opinion, the legislative scheme offers a more streamlined, less legalistic, procedure than that which obtained under the Public Service Act 1979, but it cannot be construed as imposing no, or only a partial, duty to comply with its requirements, breach of which could result in a slipshod, "cavalier" (to use Hunt J's adjective in Etherton v Public Service Board [1983] 2 NSWLR 297; 6 IR 323, attitude to procedure."

 

 

The central importance of a detailed statement as to the required standard is emphasised by the fact that one of the two grounds of appeal to the Appeal Committee, provided for in Step 4, is that the applicant met "the required standard". Unless the standard is clearly expressed, in detail, an officer who appeals the delegate's decision will not know, with any precision, what needs to be established and so could be unfairly prejudiced in pursuing the appeal.

 

The Warning is the initiating document in the efficiency procedure and provides the basis on which subsequent steps are grounded. Without a Warning which complies with the requirements of the Agreement, the procedure does not comply with the Act or the Agreement.

 

I consider that the defects in the Warning operated to make the retirement decision "unreasonable" in that there were "serious defects in the application of the formal procedures" within the meaning of Step 4 of the Agreement.  As a result the Appeal Committee erred in law in failing to uphold the applicant's appeal.

 

Delay

 

The question of delay relates to Step 2 as set out in the Agreement. It is submitted for the applicant that the decision of the assessor and subsequent steps were vitiated because there was a failure to implement the processes required by Step 2 within a reasonable time.

 

Step 2 states that the assessor must "assess the officer's performance for a specified period of 3 months".

 

In the present case, the three month assessment period was from 20 July 1993 to 20 October 1993. The assessor's report, which was adverse to the applicant, was not completed until 8 February 1994 and not acted upon until 31 May 1994. The Agreement requires that the advice of the assessor be given to the Secretary at the completion of the assessment period. This means, it is said, within a reasonable time of completion of the expiration of the specified assessment period. A delay of about three months is not a reasonable time. This was the period which elapsed between the giving of the report on 8 February and the issue on 2 May 1994 of a "Notice of Intention to Retire". The whole process from the Warning to the Retirement notice extended over ten months from the issue of the warning. Further, it is submitted for the applicant, that an overview of the inefficiency process demonstrates that it is based on a rigorous and specific time frame.

 

In outline the process is structured as follows. A warning must be given. The Secretary then appoints a person to formally assess the performance of the officer. The specified period for assessment is three months.  At the completion of the assessment period, the assessor must report to the Secretary. If the report is adverse, in that the officer did not achieve an "acceptable standard" of work, the delegate must issue a "Notice of Intention to Retire."   The officer is then given seven days to respond and fourteen days to appeal. The Notice of Retirement takes effect after fourteen days unless there is an appeal. There is an intention expressed that appeals be finalised within four weeks from date of lodgment. The officer must submit any statement in support for the appeal within twenty-one days.

 

It is important in considering this issue to bear in mind that the Agreement is designed to "streamline" the inefficiency process. A period of around nine months in carrying out steps 1 and 2 can hardly be described as a streamlined procedure.

 

The applicant says that on the basis of the time periods specified in the Agreement, it is clear that a strict construction should be given to the implied requirement that the report and the Notice of Intention to Retire should be given within a reasonable time. The time lapses in the present case substantially exceeded this limit; the procedure was not complied with, and the result was that the decision to retire the applicant was invalid.

 

The applicant refers to the decision of Beaumont J in Lee v Jacka (1994) 125 ALR 459 where his Honour held that because an involuntary retirement decision was not made until 3 years after notice offering voluntarily retirement was issued and such a period from initiation of process was more than a reasonable time for a decision to retire to be made then the retirement decision was beyond power. That was a more extreme case of delay. However, his Honour observed that the power to retire in s 76W was subject to the usual implication that it must be exercised within a reasonable time.

 

The Appeal Committee, in the present case, in paragraph 23 of its decision, referred to the twenty-eight weeks which it took the Department to make its decision to retire the applicant and said:

 

          "By any measure this is an inordinate amount of time and the Committee was sympathetic to the claim that this was a distressing and confusing period for the Appellant."

 

However the committee concluded that because the relevant ground of appeal required unreasonableness in respect of a serious defect in the application of the formal procedures, the delay of itself was not a serious defect and that the decision of the delegate was not likely to have been affected by the delay per se.

 

The dissenting member of the Appeal Committee considered that the delay of over 3 months in the writing of the assessing officer's report was totally unacceptable. He pointed to the delay in considering the report before deciding to seek up-dated work performance reports. He considered that the delays went against the spirit of the procedures and that this was a serious defect in the application of the procedures.

 

In her affidavit the applicant said that between 20 October 1993 and 5 April 1994 she was unaware that she was still subject to inefficiency action. She said that she assumed that her improvement had been sufficient to satisfy the assessing officer that she was an efficient officer. This is indicative of the confusion which can arise when the report of the Assessing officer is unduly delayed. The Warning specified the period of three months and records that if she does not "attain an acceptable standard of work performance" during the three month period, she will be given a "Notice of Intention to Retire'".

 

Given that the Agreement provides for streamlining of the inefficiency process, which establishes a rigid time frame for the requisite procedural steps, I consider that the delays in the present case were so unreasonable as to constitute non-compliance with the Agreement in a significant respect, with the result there was a further "serious defect" in the application of the formal procedures.  As a result the decision of the assessor ought to have been set aside and the appeal to the Committee should have been allowed.

 

The detriment to an officer suffered as a result of the "inordinate" delay in implementation of the procedures include the following:

 

(a)  As the committee pointed out, the employee is subjected to distress and confusion during the period of delay;

(b)  The extended duration of the exposure to assessment can leave the employee vulnerable to other complaints which may arise during this period which were not fully appreciated;

 

(c)  An applicant who does not hear of an adverse report until the expiry of six and a half months from the end of the assessment period might well act on the assumption that the report is favourable. This will clearly aggravate the ultimate disappointment.

 

The applicant, as pointed out, was led to believe by the Memorandum of Mr Puckey of 21 October 1993, that the three month review period was at an end, and that "he would be required to submit his report promptly."  In fact, it was submitted three and a half months later and no decision was made on it until the expiry of a further three and a half months. This statement was calculated to engender an expectation of an early report and undue delay could be anticipated to produce the distress and confusion which the applicant here experienced.

 

The procedural time frame is clearly designed to ensure efficient and timely resolution of inefficiency complaints and disputes. Delay of the order involved in this matter is not conducive to the achievement of that underlying purpose.

 

In addition, from an evidentiary viewpoint, the effect of delay is that recollections may fade, documents may be lost and witnesses may become unavailable, cease employment, or transfer, with the result that an officer may be unfairly prejudiced in responding to the contents of the report.  It is not to the point to say that in the present case there is no specific reference to any prejudice of this nature because the exercise involves a question of construction as to the significance or importance of timing in following the prescribed steps. Prejudice of the nature referred to is a real possibility having regard to the multitude of varied circumstances which will no doubt arise under this legislation from time to time. Accordingly, it is appropriate to determine the unreasonableness of the delay in the light of any foreseeable consequences which could be seen to flow from such delay.

 

For the reasons given above, I am of the view that the delay in this matter were so unreasonable that there was no compliance with the timing required by the procedures, causing a further serious defect in the application of the procedures.

 

Disciplinary Reasons

 

The Agreement, specifically prohibits the use of the inefficiency procedures for disciplinary reasons.

 

The applicant submits that there was an error of law, in the use of the inefficiency procedures. It is said that action was taken regarding behaviour, which at the time it was identified in the relevant Departmental Memorandum of 19 July 1993, attracted the provisions of the disciplinary code.

 

The Memorandum of 23 June 1993 by Mr Effie Cauchi, sets out a litany of twenty-four complaints against the applicant and concludes that:

 

          "In essence this matter has now reached the situation that disciplinary action should be taken against this officer. Although it may be difficult I would like this officer removed from the Health Program immediately.

 

 

          I think you would agree that every effort has been  taken to assist this officer in the performance of her duties, to no avail. The amount of time taken up by constantly having to speak to this officer is now counter productive." (Emphasis added)

 

 

On 25 June 1993 Mr Flint, Manager of Personnel Services stated:

          "1.  The above officer has been the subject of numerous reports over the past year or so. The reports, all related to generally disruptive behaviour, have included matters such as assaulting another officer, un-hygienic practices, refusal to comply with directions and refusing to leave the premises until escorted out by one of her supervisors or a member of the security staff.

          2.   There is also the question of Ms Panagopoulos' efficiency. There is no doubt that she can perform efficiently. However, her behaviour, her absences from her place of work and her refusal to follow directions raise questions about her overall efficiency and her ability to sustain an acceptable level of work performance.  Previous episodes of counselling have led to only short-term improvements in work performance.

 

          3.   It would appear appropriate that Ms Panagopoulos be dealt with under the provisions of the Public Service Commission's Inefficiency Guidelines. To this end would you please indicate whether or not you are prepared to proceed along these lines and if so, who the assessment officer is to be. Mr Cauchi has undertaken to draft a set of specific duties with performance standards clearly defined for the purpose of the assessment.

 

          4.   Consequent upon your agreement to the action proposed above, I will arrange for Ms Panagopoulos to be counselled and made aware of her situation.  Copies of the more recent reports on Ms Panagopoulos are attached...." (Emphasis added)

         

 

It is submitted for the applicant that whereas the inefficiency provisions are  directed to levels of work performance and efficiency, the disciplinary proceedings relate to personal qualities  of conduct or behaviour within the control of the officer. These would include refusal to follow directions. Further, the history of events and behaviour, the subject of that Warning , preceding the letter of warning of 19 July 1993 were mostly "disciplinary" in character. 

 

It is further said that there is no indication as to the reasons for the use of the inefficiency procedure as opposed to disciplinary procedure in the material or the determination of the Appeal Committee. 

 

The importance of the distinction between inefficiency and disciplinary proceedings is well illustrated in the judgment of Sackville J in Dr Bart James v Brian McDonald (Unreported, 21 October 1994, NG 631 of 1994) at 19-22.

 

In the introductory material to the Agreement the relationship between the inefficiency and disciplinary procedures as set out earlier in these reasons, are described as overlapping.

 

The Warning alleges that the applicant failed to obey directions in relation to leaving the workplace; that she failed to "abide" by official directions in relation to attendance and that she has refused to obey directions relating to her duties and behaviour.

 

It is also said that she argued with her supervisor and inferentially that she did not comply with instructions from supervisors.

 

These allegations imply that the applicant has wilfully disobeyed or disregarded directions, within the meaning of s 56(a) of the Act. Therefore she has failed to fulfil her duties as an officer and hence was guilty of "misconduct".  The disciplinary procedures should have been used to investigate these reasons.

 

The Assessor's report refers to the applicant's failure to obey directions without argument. This indicates that the reliance on by the employer disciplinary reasons was carried through from the Warning notice to the report. The Assessor's report specifically refers to a performance review meeting of 8 September 1993, where it is recorded that in the previous two weeks the applicant had repeatedly refused to accept reasonable directions from her supervisors. That is, in my view, another instance of alleged wilful disobedience to directions and therefore "misconduct".

 

The Warning of 19 July refers to both disciplinary as well as inefficiency reasons.

 

Two of the reasons in the Warning, namely, paragraphs 3(a) and (d), can be taken to refer to "inefficiency grounds" in that they relate to conduct which disrupts the efficiency of the section and detracts from the overall efficiency of the section. Cf Preston v Carmody (1993) 44 FCR 1. However, paragraphs 3(b), (c) and (e) do not refer to inefficiency and in substance they are disciplinary reasons.

 

As the Warning raises misconduct and since misconduct is a disciplinary reason, in my view, the use of the inefficiency procedures, contravened the mandate that these procedures are not to be used for disciplinary reasons.  This is a further  and independent "serious defect" in the application of the procedures which operates to vitiate the Warning and the subsequent steps leading to the decision to retire the applicant.

 

Normal Counselling

 

The Agreement requires that the formal procedures in relation to inefficiency complaints are to apply after "normal counselling". The applicant's contention is therefore that normal counselling is a condition precedent to the institution of the inefficiency procedures. Since there was no sufficient normal counselling, the subsequent proceedings miscarried and were void.

 

I agree that such counselling is a condition precedent to the implementation of the inefficiency procedures.

 

There is no definition of "normal counselling" in the Agreement. It is not a term of art. It is submitted no "normal counselling" occurred in relation to the matters raised in the warning of 19 July.

 

While it is agreed that there were at least two previous instances of counselling it is said that these related specifically to discrete issues in relation to which no further action was taken. In her statement to the Appeal Committee, the applicant states that there were two formal counselling sessions prior to the Warning of 19 July.  The first related to an altercation between herself and a Mr Wakeham on 29 October 1992 and the second took place on 12 March 1993.  The two matters of concern in the latter instance were that she had been seen drying underwear using the hand dryer in the ladies' toilets on 9 March and that she had been seen expectorating into the hand basin.  The applicant's version is provided in relation to each of these matters in her statement in which she also sets out the relevant circumstances surrounding them. Neither of these matters were repeated nor further pursued.

 

In my view, the two instances of counselling, referred to by the applicant, satisfied the requirement of the Agreement that there be "normal counselling" before the inefficiency procedures were commenced. The counselling sessions drew her attention to unsatisfactory behaviour. It is not essential that the counselling should relate to all the matters specified in the formal written warning, although normally one would expect it to be relevant to such matters.

 

Further, it is said she received  no "normal counselling" because she understood that such counselling would involve a verbal discussion and a written record of that discussion which would be signed by the parties. Reference was made to the procedures set out in a Department of Veteran Affairs Management Handbook. The applicant says that at no time during 1990-1993 was she counselled in accordance with what she understood to be formal departmental procedures.

 

The Managers' Handbook to which reference is made, describes counselling as "Advice and assistance provided to staff in the interests of their career development, welfare and efficiency, and the efficient functioning of the organisation". The contents of this Handbook have no binding effect and are in the nature of administrative guidance.

 

It is there stated that counselling is to be used for  unsatisfactory performance and discipline. Reference is also made to the nature of the record to be kept which should specify the names of the parties, the dates and the reason for interview together with a brief summary of matters discussed and future action to be taken. There was no evidence of such a record in relation to the two instances counselling in the present case. 

 

It is also stated that records should avoid broad description of the officer's personality without providing specific examples and that it should be signed by the officer who should be given a copy.

 

The respondent says that the reference to the Managers' Handbook is of no assistance in clarifying the issue because it is not referable to the Industrial Agreement.

 

In this matter, I am not persuaded that there has been a failure to provide "normal counselling" within the meaning of the Agreement procedures. I do not think it is essential that the required counselling must cover or coincide with the matters referred to in the Warning. It is sufficient that any unsatisfactory conduct up to the date of the counselling should be drawn to the applicant's attention and that she be advised and "assisted" in relation to it.

 

Step 1 of the procedures set out in the Agreement does not specify the contents of the counselling. In the present case, over three months elapsed between the most recent counselling (on 12 March) and the Warning notice, 19 July 1993. It is not reasonable to require that the counselling should anticipate the contents of a Warning issued more than three months later. No serious procedural defect has been demonstrated in relation to the counselling of the applicant.  There is no substance in this ground of challenge and it fails.

 

Failure to Provide Documents

 

The "Instructions" under the Act of 12 March 1993, pursuant to s 76X specifically require the Assessing officer to:

 

          "..... make available to the officer any documents he or she is taking into account. The officer may provide written comments on these documents."

 

 

The applicant in her affidavit of 17 January 1995 has sworn that she did not become aware of the contents of a substantial number of important documents until about 9 June 1994. This was about nine days after she received the Notice of Retirement under s 76W. This is too late in my view..

 

The applicant did not become aware of a number of other material documents until 2 May to 6 May 1994. The time frame is again important because she was handed the Notice of Intention to Retire on 2 May 1994. That Notice informed her that she had seven days to reply to the Notice and to comment on the reports which were enclosed with the Notice.

 

On 9 May 1994 the applicant responded in detail to the reports furnished to her, but she was in my view, subjected to an unfair disadvantage in being required to respond without seeing all relevant documents, namely those of which she only became aware on 9 June 1994.  Moreover, the relatively short time frame in which she had to respond to those documents, further significantly disadvantaged her due to the time pressure. The adverse report of the Assessor was completed on 8 February 1994, without the applicant having the benefit of seeing and responding to it until three months later.

 

Among the documents of which she was not aware until 9 June 1994 was the important five page Memorandum signed by Mr Effie Cauchi, Assistant Treatment Manager, Services, to the Manager of Personnel Services, dated 23 June 1993 which set out twenty-four instances of behaviour which Mr Cauchi regarded as serious enough to warrant a recommendation of disciplinary action. It is clear from the first page of the Assessor's report that he had had regard to this Memorandum in the matters raised under the heading "Background" as giving instances of numerous occasions of "disruptive behaviour" and "unsatisfactory performance" over the previous twelve months.

 

At page three of his Report, the Assessor stated that:

 

          "Reports on Miss Panagopoulos' personal (sic) file for the period since the beginning of 1993 were examined to establish where Miss Panagopoulos' work performance had been unsatisfactory..."

 

 

This indicates to me that the Memorandum of 23 June 1993, which is on her Personnel File was probably "taken into account" and contrary to the Instructions, the document was not furnished to the applicant.

 

It is common ground between the parties in the present proceeding that the applicant did not receive a copy of this Memorandum until after 9 June 1994.

 

The failure to supply the material documents instanced in the applicant's affidavit warrant the conclusion that there was yet a further serious defect in the application of the formal procedures in this case, in that the applicant was not given any opportunity to respond in relation to the documents of which she became aware in June 1994.  Further, she was disadvantaged by the very short period of time available to respond to the Notice of Intention to Retire, in view of the late supply of the documents to her in the period 2-6 May 1994.

 

The failure to provide the important material required by the instructions of 12 March 1993 and/or the late supply of the other material leads me to the conclusion that these serious non-compliances with the express wording of the procedures warrant the setting aside of the retirement decision made under s 76W.

 

Failure to apply the correct legal test by the Committee:

 

It is said that the Committee asked the wrong questions and applied the wrong test in assessing the procedural errors. There are  references by the Committee in their decision to what would have been the consequences had the breaches not occurred.  The reasoning of the Committee was in effect that, in any event, the retirement and appeal decisions were justified "on the merits".  This is really another way of saying that there was no serious defect in procedure because even if the proper procedures had been followed they would not have affected the ultimate decision to retire the employee.  In my view non-compliance with the Agreement procedures was fatal and it is not to the point that the same conclusion on
the merits might or would have been reached if the procedural breaches not occurred. See Colpitts (supra) 9 FCR 52 at 70-71.

 

Curative Affect of the Administrative Appeal

 

For the respondents it is submitted that the existence and prosecution of an appeal in the full sense of a rehearing has the effect of "curing" any defects in the earlier procedures.  It is said, that all relevant material was made available and all issues clarified prior to or in the course of hearing the appeal to the Appeal Committee.  Accordingly, the earlier irregularities, if any, had no ultimate effect on the final result and both the retirement and appeal decisions were clearly correct "on the merits".

 

The effect of Division 3 of Part II of the MPRA Act is to make the hearing before the Appeal Committee a hearing de novo.

 

However, one of the two grounds of appeal to the Appeal Committee is that there "was a serious defect in the application of the formal procedures outlined above".  If the Appeal is successful the Agreement provides that the Notice of Termination is revoked. Accordingly, since I have found a number of "serious defects", it follows the Notice is revoked.

 

Step 4 of the Agreement procedure does not provide that a serious defect in the procedures leading up to the Retirement
Notice can be validated by the hearing before the Appeal committee, or by that committee.

 

In deciding whether an appeal hearing can overcome serious defects in procedure, in relation to a determination at first instance, so as to validate those initial procedures, it is necessary, to closely examine the language used. In the present case, the language of the Agreement, relating to Step 4 makes it clear to me that where the Appeal Committee finds there is a serious defect in the application of the formal proceedings leading to the decision to retire the employee, the decision is revoked without detriment to the officer by operation of the Agreement procedure. As a result there is no room for the application of the principle that a rehearing could "cure" the serious defects in application of the procedures.

 

In some circumstances the availability of an appeal de novo may mean that procedural unfairness at first instance can be cured in the course of a rehearing. However, there is no general rule to that effect. Nor does the provision of a full appeal to an administrative body invariably negate the implication of a duty to observe the principles of natural justice at the first instance stage. See Macksville & District Hospital v Mayze [1987] 10 NSWLR 708 at 728 B per Mahoney JA (with whom Priestley agreed). At that reference Mahoney JA said:

 

          "I do not think that the existence of such a right of appeal indicates the legislative intention that the Board, in its exercise of the powers of the Hospital, need not follow the rules of natural justice. The significance of an appeal to a body which is not a court was referred to in general in the judgment of Mason J in Twist's case. .....

 

          ......

 

          There is, therefore, no general rule to be taken from what was said in  Twist's case in this regard. The existence of an appeal from one administrative body to another, even to an administrative tribunal, may but does not necessarily indicate that the rules of natural justice do not apply to the first administrative body.

 

          But the nature of the decision to be made by the board of a hospital in a case such as this and the consequences of it are such that I do not think the inference should be drawn that the legislature intended that the Board should not follow the rules of natural justice."

 

The above reference to the judgment of Mason J in Twist's case is to the observation by Mason J in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 that:

 

          " ...  the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have "cured" a defect in natural justice or fairness which occurred at first instance." (Emphasis added)

This question was also considered by the Full Court of the New South Wales Industrial Court in Scorzelli (supra) 49 IR 169 at 185-6 in these terms:

 

          "Our approach reflects that of McHugh J in Woods v Bate and in conjunction with that of McGarry (sic) J in Leary v National Union of Vehicle Builders [1971] 1 Ch 34 where his Honour expressed the opinion that it was unfair to impose on an employee a duty, in effect, to appeal as a result of a procedure which was inappropriate.  In this case the existence if an avenue of appeal to GREAT or alternatively to the former Commission and now to the Industrial Relations Commission is no answer to the proposition that the requirements of natural justice, in the form provided by the Regulation, have not been complied with meticulously; the reason is that the appeal procedure imposes on the employee a burden which he may not otherwise be required to carry if the antecedent requirements have been observed.  While the breadth of the statement of the law adopted by McGarry (sic) J was criticised by the Privy Council in Calvin v Carr [1979] 1 NSWLR 1 at 11, we do not apprehend that to be significant in the context of the PSM legislation because of the view we have formed as to the mandatory nature of the relevant provisions."

 

The Privy Council pointed out in Calvin v Carr [1979] 1 NSWLR 1 at 11, that it is necessary to examine the whole hearing structure, in the context of the particular activity to which it relates, to determine whether a complainant has the right to a fair hearing both at the original and at the appeal stage.

 

My conclusion on this aspect is that the existence of the administrative appeal in the present case did not exclude the obligation to follow the specified procedures and the appeal did not provide a "cure" for any of the serious procedural defects referred to above.

 

Conclusion

 

As a result, I declare that both the retirement decision and the appeal decision are invalid and of no effect. I therefore set aside the decision that the applicant be retired under s 76W of the Public Service Act 1922 and I order that the first respondent pay the costs of the applicant.

 

 

 

 

 

 

 

 

I certify that this and

the preceding fifty-four (54)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

 

 

 

Associate:

 

Date:                                     6 November 1995                                

 

Counsel for Applicant:                    Mr J W Nolan                                   

 

Solicitor for Applicant:                        Mr C Howell

                                          Geoffrey Edwards & Co.

 

Counsel for Respondent:                   Mr B Skinner                                                           

 

Solicitor for Respondent:                 Mr M Allatt

                                          Australian Government Solicitor

 

Date of Hearing:                          21, 22, 23 August 1995                         

 

Date Judgment Delivered:                        6 November 1995