[2010] HCA 1
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Source
Original judgment source is linked above.
Catchwords
[1969] HCA 40
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123[2018] HCA 34
Kirk v Industrial Court (NSW) (2010) 239 CLR 531[2010] HCA 1
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24[1986] HCA 40
Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112[2021] HCA 9
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39(2009) 259 ALR 429
O'Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1[1983] HCA 47
Parisienne Basket Shoes Ltd v Whyte (1938) 59 CLR 369[1938] HCA 7
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28
Re Minister for Immigration and Multicultural Affairsex parte S20/2002 [2003] HCA 30(2003) 77 ALJR 1165
Snedden v Minister for Justice for the Commonwealth (2014) 230 FCR 82[2014] FCAFC 156
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3(2023) 407 ALR 222
Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208
Maroun Azzi (the plaintiff) was employed by the State of New South Wales (the defendant) with the Department of Customer Service (the Department). He was employed as Director of Performance and Compliance, Workers and Home Building Compensation Regulation (Director) in the State Insurance Regulatory Authority (SIRA). This position was in the Senior Executive Service. His contract of employment was dated 21 October 2020.
By letter dated 12 July 2022, Adam Dent, the Chief Executive Officer (CEO) of SIRA informed the plaintiff that his employment had been terminated, with effect from 21 July 2022, pursuant to s 69(4)(b) of the Government Sector Employment Act 2013 (NSW) (the Act) (the first decision). The plaintiff challenged the validity of the first decision by summons filed on 12 October 2022 (the first summons).
On 30 November 2022, Emma Hogan, Secretary of the Department, wrote to the plaintiff to inform him of her decision to terminate the plaintiff's employment, with effect from 21 July 2022, pursuant to s 69(4)(a) of the Act (the second decision). The plaintiff challenged the validity of the second decision by summons filed on 28 February 2023 (the second summons).
Both the first and second summons have been amended, most recently by documents filed in Court on 16 August 2023, the second day of the hearing.
It is common ground that, by reason of s 58(7) of the Act, this Court has no jurisdiction to grant relief in relation to the first or second decisions except on the basis of jurisdictional error: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [100].
[3]
The facts
Before turning to the bases on which the plaintiff contends that this Court ought set aside the July and the November decisions, I propose to set out the relevant facts.
In about February 2019, the plaintiff commenced employment with SIRA as Principal Project Manager. In about October 2019, Ms Hogan was appointed Secretary of the Department.
On 2 November 2020, following his promotion pursuant to a contract of employment dated 21 October 2020, the plaintiff commenced in the new role of Director, which he continued to occupy at the date of the first decision. The plaintiff's contract of employment provided that the plaintiff was obliged to perform his duties and responsibilities in accordance with the government sector core values under s 7 of the Act (cl 6.1) and to act in accordance with applicable employment policies of the defendant (cl 20.1).
By about 27 September 2021, Ms A, an employee of the Department who reported to the plaintiff, relocated to Germany where she continued to perform work for SIRA. At that time, she was working on production of documents for the Department pursuant to standing Order 52, a demanding task with a tight timeframe involving a substantial number of documents for which the plaintiff considered her to be particularly efficient and well-suited.
On or about 11 November 2021, a policy document, in the form of a set of PowerPoints, was prepared by the Department which purported to provide guidelines for employees who wanted to work overseas. The document stated in part:
"[s]taff with genuine compassionate request can apply to work overseas for a period of up to 3 months."
As referred to below, the status of this document as a policy was challenged by the plaintiff in this Court (though not in the correspondence preceding his termination).
On 7 December 2021, Ms Hogan signed an instrument of delegation which provided that the function of terminating the employment of a Senior Executive "cannot be delegated" and that a CEO had delegated authority to "manage grievance and misconduct matters including conducting and managing a formal investigation and making decisions and recommendations based on findings from that investigation".
On 17 January, 3 February and 4 March 2022, Darren Parker, Executive Director, Workers and Home Building Compensation Regulation, rang the plaintiff. According to Mr Parker, in each call he directed the plaintiff orally to require Ms A to stop performing work for SIRA in Germany immediately. According to the plaintiff, Mr Parker told him to tell Ms A to wind down the work she was doing for SIRA while she was in Germany. There was, accordingly, a substantial issue of fact about the terms of the direction (and therefore whether it had been complied with). It was, however, common ground, that Mr Parker had authority to give directions to the plaintiff (as long as they were lawful), with which he was obliged to comply.
[4]
Relevant legislative provisions
Section 58(7) of the Act provides:
"No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996."
The defendant accepted that s 58(7) does not prevent the granting of constitutionally entrenched relief, in the form of certiorari or mandamus, in respect of a decision to terminate the plaintiff's employment if there were jurisdictional error.
Section 7 of the Act relevantly provides:
"The core values for the government sector and the principles that guide their implementation are as follows:
Integrity
…
(b) Act professionally with honesty, consistency and impartiality.
(c) Take responsibility for situations, showing leadership and courage.
(d) Place the public interest over personal interest.
Trust
…
(c) Uphold the law, institutions of government and democratic principles
…
Accountability
…
(b) Take responsibility for decisions and actions."
Section 26(1) of the Act provides that the "employer functions" of the Government may be exercised by the Secretary of a Department. Pursuant to s 26(3), these functions include the power to terminate a person's employment. Subject to anything in the Rules, the Secretary can delegate his or her functions pursuant to s 27 of the Act. Pursuant to r 4(1)(c) of the Rules, the termination of a Public Service senior executive (such as the plaintiff) under s 69 of the Act cannot be delegated by the Secretary. Section 41 of the Act also provides for the termination of senior executives.
Section 69(1) of the Act relevantly provides:
"misconduct extends to the following -
(a) a contravention of this Act or an instrument made under this Act,
(b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act,
(c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action,
(d) a conviction or finding of guilt for a serious offence.
The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment."
[5]
The relevant principles
It is convenient to summarise the relevant principles before turning to their application in the present case.
[6]
What amounts to jurisdictional error
For the reasons given above, in order to obtain relief, the plaintiff must establish jurisdictional error. This requires him to show that the decision-maker has made an error of a type that the legislature intended was to condition the validity of the decision: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 407 ALR 222 at [54] (Gordon, Edelman, Steward and Gleeson JJ). The error must have the result that the decision-maker exceeded the limits of his or her decision-making authority, with the result that the purported decision is no decision at all: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24] (Kiefel CJ, Gageler and Keane JJ).
An error of fact or an error in the weight to be placed on particular evidence will not amount to an error of law, much less a jurisdictional error. Even a finding of fact that is "perverse" or "contrary to the overwhelming weight of the evidence" does not constitute an error of law, let alone a jurisdictional error: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 (Glass JA).
Not every error of law will amount to a jurisdictional error. Decision-makers may make an error of law within jurisdiction: Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [57] (Gleeson CJ). Thus, although a failure to take into account a mandatory consideration expressly prescribed by the empowering statute is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 (Mason J); [1986] HCA 40), it will not be a jurisdictional error unless the statute, properly construed, makes taking the consideration into account a condition of the authority which the statute confers on the decision-maker. For this reason, whether an error of law is jurisdictional ultimately depends on a proper construction of the statute conferring jurisdiction: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71], [121].
The inconvenience which would be caused if a decision made under a statute was found to be invalid by reason of non-compliance with a statute is also relevant to the characterisation of error as jurisdictional (or not) since it bears on the (presumed) intention of Parliament: Parisienne Basket Shoes Ltd v Whyte (1938) 59 CLR 369 at 389 per Dixon J; [1938] HCA 7.
[7]
Procedural fairness
It is not a jurisdictional error for a decision-maker not to take into account a submission or argument which was not made: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [21] (Basten JA); Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 at [1] (Gleeson CJ).
A decision-maker is not obliged to put provisional views or mental processes to the person affected for his or her comment. In Snedden v Minister for Justice for the Commonwealth (2014) 230 FCR 82; [2014] FCAFC 156, the Full Federal Court (Middleton and Wigney JJ) summarised the principles of procedural fairness relevantly as follows:
"175 There is no dispute that Mr Snedden was entitled to procedural fairness … In general terms that means the Minister was relevantly obliged to inform Mr Snedden of the case against him and provide him with a reasonable opportunity to answer it: Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [40]. Mr Snedden was entitled to be made aware of, and have the opportunity to address, the critical issues or factors on which the decision was likely to turn, as well as any adverse information that was credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 (Kioa) at 587 (Mason J) and 629 (Brennan J); Applicant VEAL/2002 v Minister for Immigration (2005) 225 CLR 88 (VEAL) at [15].
176 That is not to say that a decision-maker is necessarily required to disclose to a person affected by the decision every piece of information that the decision-maker has or might consider: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 (SZQHH) at [30]. Nor is a decision-maker necessarily required to disclose issues in respect of which the person is already on notice or information the substance of which is already known to the person: SZQHH at [30]; Brock at [22]. Whilst a decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material, there is no obligation for the decision-maker to expose mental processes or provisional views: Commissioner of ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 592.
177 The rules of procedural fairness do not have an immutably fixed content: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638 at [156]. There are no concrete rules as to what procedures a decision-maker must employ to provide procedural fairness in any particular case. What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts, including any statutory or regulatory requirements or considerations: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [26], [29]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (Saeed) at [19]-[20]; SZQHH at [26]; see too Re Minster for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 at [30]-[32]. The content of procedural fairness is flexible and adaptable to the circumstances of the particular case (Saeed at [18]) and must be approached on the basis of what is reasonable (Kioa at 627) and necessary to avoid "practical injustice": Lam at [37]-[38]."
[8]
The Carltona principle
Just as Ministers of the Crown are entitled to act through agents, heads of Department are entitled to have administrative tasks (like communicating their decisions) performed by agents, such as a CEO, or other authorised agent: O'Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1 at 11; [1983] HCA 47, referring to Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563; Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112; [2021] HCA 9 at [33] per Kiefel CJ, Gageler, Keane, Edelman and Steward JJ (the Carltona principle). There is an important distinction between an agent and a delegate. Thus, a Secretary of Minister who may not delegate a particular function, is nonetheless entitled to act through agents.
[9]
The challenge to the first decision on the basis that it was not made by Ms Hogan (ground 1 of the first summons)
It is convenient to start with the plaintiff's first challenge to the first decision: that it was invalid because it was made by Mr Dent, who had no power to make the decision as only Ms Hogan was empowered to terminate the plaintiff's employment as he was a Senior Executive.
Ms Francois, who appeared for the plaintiff, submitted that it was plain both from the wording of the letter of 12 July 2022 (including the use of the first person singular, "I") and from the briefing note which preceded it that Mr Dent was the relevant decision-maker and that Ms Hogan's only role in the first decision was to approve Mr Dent's decision.
I do not accept this analysis. Ms Hogan's approval for the termination was sought and was given. She and those advising her can be taken to have known that, in accordance with r 4(1)(c) of the Rules, she could not delegate the termination of the employment of a senior executive (under s 69(4) of the Act), which explains why the briefing note was sent to her and required her approval. She was entitled to act on advice and in accordance with the recommendations of others. That Ms Hogan did so does not amount to unauthorised delegation: Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208 at 214-215 (Barwick CJ); [1976] HCA 36. Ms Hogan's annotation of the briefing note (set out above) established that she decided to adopt the recommendation (that the plaintiff's employment be terminated) and thereby made the decision her own. Thus, Ms Hogan terminated the plaintiff's employment.
The circumstance that Ms Hogan's decision was communicated to the plaintiff by Mr Dent does not affect the validity of the decision to terminate. Ms Hogan was entitled to ask Mr Dent to communicate the decision to the plaintiff in his capacity as her agent in accordance with the Carltona principle. In these circumstances, contrary to Ms Francois' submission, it is not to the point that Mr Dent did not identify himself as sending the letter on behalf of Ms Hogan.
As I am satisfied that it was Ms Hogan who made the relevant decision to terminate the plaintiff's employment on 12 July 2022, it is not necessary to determine the alternative submission: that on 30 November 2022, she ratified Mr Dent's decision to terminate that was made on 12 July 2022. However, if it were necessary to determine this, I consider that it has been established by the terms of Ms Hogan's letter dated 30 January 2022 (set out above).
[10]
Alleged lack of procedural fairness (ground 3 of the first summons and ground 1 of the second summons)
The Act and the Rules required the employer (in this case, the Department) to put to the plaintiff the allegations of misconduct, consider his response and then put its findings of misconduct to him together with the proposed action. It was not suggested by the plaintiff that the defendant had failed to comply with the procedure mandated by the Act and the Rules. However, Ms Francois submitted that the requirements of the Rules did not meet the common law standards for procedural fairness in the respects set out below, which will be addressed in turn.
As referred to above, the principal factual question in issue between the plaintiff and the Department were the terms of the directions given by Mr Parker to the plaintiff. In substance, Mr Parker's version of his directions was that he directed the plaintiff to direct Ms A to cease working in Germany immediately; whereas the plaintiff's version was that Mr Parker directed him to put in train steps with a view to Ms A ceasing work for the Department while she was in Germany.
Ms Francois confirmed that if the plaintiff's version was correct, then the plaintiff would appear to have complied with Mr Parker's directions. I understood her to accept that if Mr Parker's version was correct, the plaintiff did not comply with the directions (although Ms Francois argued that, in that event, they were neither lawful nor reasonable).
Ms Francois submitted that the defendant failed to accord the plaintiff procedural fairness because it:
1. failed to inform him of adverse information or evidence which it had gathered and to provide copies to him for his comment and submission, such as:
1. Mr Parker's email of 8 March 2022;
2. the Department's alleged policy as to overseas leave arrangements; and
3. the arrangements made by the Department for Ms A to take leave to cover the period during which she remained in Germany; and
1. refused to facilitate the plaintiff's access to material on its software system which would have been relevant to the determination of the factual issues as to the content of the directions referred to above.
Ms Francois also submitted orally that procedural fairness required the defendant to identify why the directions were lawful and reasonable, especially since Ms A had been working remotely from Germany since September and no cyber-security risk had yet arisen. She contended that procedural fairness required the plaintiff to know what the employer considered to be lawful and reasonable. Further, she contended that whether or not the direction was lawful and reasonable is not in the discretion of the decision-maker but is something for the Court to determine.
[11]
Documents to which the plaintiff alleges he ought to have been given access as a matter of procedural fairness
[12]
Mr Parker's email dated 8 March 2022
The contents of Mr Parker's email of 8 March 2022 were replicated in the defendant's emails of 25 March 2022 and 6 June 2022. Accordingly, I reject the submission that there was any denial of procedural fairness in not providing it to the plaintiff.
[13]
The alleged policy concerning overseas leave arrangements
Ms Francois made several submissions which challenged the status of the document which was annexure "E" to the plaintiff's affidavit of 10 July 2023, which was entitled, "Request for working overseas" and which purported to set out guidelines for working overseas, including that staff could apply to work overseas for a period of "up to 3 months" and that there could be no extension on this 3-month period "regardless of the circumstances for example difficulties in returning to Australia". The document, itself undated, was an attachment to an internal Departmental email dated 11 November 2021, which identified the document as "a document put together by Erica [Machon] to provide guidelines regarding employees working from overseas."
Ms Francois submitted that the document did not create a "policy", that the Department did not need to comply with it and that its status was uncertain. She submitted that, in these circumstances, the plaintiff had been denied procedural fairness by not having been provided with this document which did not, in any event, limit the Department's capacity to allow Ms A to continue to work in Germany.
One of the difficulties with this submission is that it is at odds with the submissions made by the plaintiff in response to the allegations put to him by the defendant. In his response dated 4 April 2022 (extracted at length above), the plaintiff included in his chronology of relevant events at A.1viii:
"In late 2021, [the Department] introduced a policy that limited access to [the Department's] systems from international locations, this included SIRA as a division of [the Department]."
Indeed, the plaintiff submitted that he had, in fact, complied with the direction that he alleged had been given (that he take steps to have Ms A cease her work duties in Germany).
In the alternative, the plaintiff submitted, in his response of 4 April 2022, that any direction given to him by Mr Parker that he direct Ms A to cease work immediately would not have been lawful or reasonable because it would have involved a breach of the duty which he and the Department owed to Ms A pursuant to the Work Health and Safety Act. He also relied on s 43 of the Crimes Act 1900 (NSW), which criminalises abandonment of a child (in support of his submission that it was not open to Ms A, consistent with the law, to leave her children in Germany and return to Australia to resume her work duties with the defendant).
[14]
The arrangements made by the Department for Ms A to take leave to cover the period during which she remained in Germany
Ms Francois submitted that the defendant was obliged to divulge to the plaintiff the detail of the leave arrangements which the Department had made available to Ms A while she remained in Germany and that it was a denial of procedural fairness for the Department not to do so.
I do not accept this submission. The plaintiff had represented to Ms Machon on 21 March 2022 that he was working with "HR" (Human Resources) to "make sure that leave arrangements were in place". The plaintiff did not suggest at the time that he needed to know the detail of such arrangements. Further, as at March 2022, Ms A's return to Australia was thought to be imminent, with the expectation that her leave entitlements in the short term would not be an issue. While the plaintiff, as Ms A's supervisor, had a role in liaising with Human Resources, the defendant was not required, as a matter of procedural fairness, to give him chapter and verse of what leave was taken by Ms A before making a decision concerning him.
[15]
Alleged denial of procedural fairness arising from the defendant's refusal to facilitate the plaintiff's access to material on its software system which would have been relevant to the determination of the factual issues as to the content of the directions
Ms Francois submitted that the defendant was obliged, as a matter of procedural fairness, to facilitate access to the plaintiff of communications between any two or more of Mr Parker, the plaintiff and Ms A in the period during which the directions were made. She submitted that, in circumstances where the defendant had been confronted with two men saying different things, procedural fairness required it, as part of its obligation to make "an obvious inquiry into a critical fact", to have regard to the contemporaneous communications between relevant parties (Mr Parker, Ms A and the plaintiff) in the period during which the directions were made and seek the plaintiff's response to such documents before the defendant drew any inference against the plaintiff arising from the circumstances or from the documents themselves. Thus, she submitted that the defendant was obliged to facilitate access to such documents and provide them to the plaintiff (who sought them pursuant to a notice to produce which is referred to below, and which was set aside on the defendant's application).
This submission misapprehends the obligation to provide procedural fairness. As I have set out above in the summary of principles, a person affected by a decision is entitled, before the decision is made, to be given notice of the substance of the material before the decision-maker which could be used against them. The Department, when investigating the plaintiff's alleged breach of direction, was obliged to put to him Mr Parker's version of the contents of the three directions he had given to the plaintiff. This was sufficient to put the plaintiff on notice that he had to address the possibility that the Secretary would decide that he had breached a direction on the basis of Mr Parker's version.
While in some circumstances, a decision-maker will be obliged to make an obvious inquiry into a critical fact before making a decision adverse to the person affected, this obligation is a limited one. As the usual terminology indicates, the inquiry must be "obvious" and the fact must be "critical". Where, as here, there is a factual dispute about an oral conversation, the obvious inquiry is to ask the two participants as to their respective versions of the terms of the conversation. Although there are obvious difficulties in determining which version of an oral conversation to accept (see Watson v Foxman (1995) 49 NSWLR 315 at 318-319 (McLelland CJ in Eq)), this was a matter for the decision-maker to determine, in circumstances where an oral hearing was not permitted.
[16]
Alleged error of law in finding that the directions given were both lawful and reasonable (ground 5 of the first summons and ground 3 of the second summons)
The defendant's ultimate finding of misconduct against the plaintiff was based on the primary finding that he had failed to comply with three lawful and reasonable directions.
Ms Francois contended that the primary finding amounted to a jurisdictional error because:
1. the directions were inconsistent with the Crown Employees (Public Service Conditions of Employment) Reviewed Award (the Award); and
2. the directions amounted to a form of indirect discrimination contrary to s 25(2) of the Anti-Discrimination Act 1997 (NSW).
[17]
Alleged inconsistency between the directions and the Award
Ms Francois submitted that cl 65.1 of the Award required the Department ("management") to engage in an "effective means of consultation" with the Public Service Association (PSA) as to matters of mutual concern. She submitted that the defendant had not demonstrated that there had been any such consultation before the introduction of the policy regarding overseas work (which required permission and was limited to a period of three months) in November 2021, and that, accordingly, the policy was unlawful and any direction based on the policy could be neither lawful nor reasonable. On this basis she submitted that the finding that the plaintiff failed to comply with the directions was invalid for jurisdictional error.
I reject these submissions. First, the evidence indicated that there was some consultation about the policy, albeit of a general nature. There was no indication that the PSA was particularly concerned about there being a limit on the amount of time that a particular employee could carry out work for the Department overseas. Secondly, compliance with the Award was not a requirement of legality of the directions given by the defendant. Thirdly, the plaintiff did not raise this matter before either the first or the second decisions were made. Fourthly, even if this amounted to an error, I am not persuaded that compliance with the Award in giving directions was intended to be a mandatory relevant consideration going to jurisdiction.
[18]
Allegation that the directions amounted to indirect discrimination under the Anti-Discrimination Act
Ms Francois contended (and relied on statistics to prove) that more women than men are subject to domestic violence by intimate partners and that women perform caring roles more often than men do. On this basis, she contended that a direction that a woman not continue to carry out duties for the Department in Germany (which would, Ms Francois submitted, effectively require her to return to Australia) was a form of indirect discrimination because it would have a greater adverse effect on women than it would on men.
Mr Jones, who appeared with Ms Gall for the defendant, informed me that the defendant did not accept that it had engaged in any discriminatory conduct and pointed to the latitude afforded to employees and the relatively limited constraint that they were not permitted to access the work network while outside Australia. He submitted that because the direction was made in respect of Ms A only, it was not capable of being discriminatory in the relevant sense because it did not apply differently to females as opposed to males (since it concerned only Ms A). Further, he pointed to the absence of any evidence that she had foregone wages as a consequence of the direction, having regard to the arrangements which the Department made for her to access paid leave and her ability to return to Australia within a short period and resume her duties as a resident of New South Wales.
It is not appropriate, having regard to the limits on my jurisdiction (which are confined to an ascertainment of whether there is jurisdictional error), to make findings as to whether the Department in refusing to permit Ms A to continue to access its systems while in Germany engaged in conduct in breach of the Anti-Discrimination Act.
I reject Ms Francois' submission that alleged non-compliance with the Anti-Discrimination Act could amount to jurisdictional error. First, it was not raised with the defendant before the making of the first or second decisions. Secondly, the determination of whether particular conduct warrants an adverse finding under the Anti-Discrimination Act is made in the context of the Act itself, which makes detailed provision as to the making of complaints and the tribunal which is to determine any such complaints and the enforcement which may follow a finding. Thirdly, there is nothing in the Act to indicate that compliance by the defendant with the Anti-Discrimination Act is a condition of the defendant's jurisdiction to make findings of misconduct against its employees, which subsequently form the basis of termination of their employment.
[19]
Allegation that failure to comply with a direction could not amount to "misconduct" within the meaning of s 69(1) of the Act (ground 2 of the first summons and ground 4 of the second summons)
Ms Francois submitted that failure to comply with a direction could not amount to "misconduct" within the meaning of s 69(1) of the Act because of the wording of the definition (set out above).
The word "extends" in the definition indicates a legislative intention not to do other than make it clear that, in addition to those matters which fall within the ordinary meaning of the word "misconduct", the word extends to those further matters which are listed in the definition.
Failure to comply with a lawful and reasonable direction is capable of amounting to misconduct in an employment context by reference to its ordinary meaning. Indeed, the words formerly used to describe the relationship of employer and employee, "master and servant" aptly encapsulate the power of the former to direct and the obligation of the latter to comply (as long as the direction falls within the ambit of the relationship), which is an abiding characteristic of the employment relationship.
Although failure to comply with a lawful and reasonable direction is capable of amounting to misconduct, it was a question for the defendant whether it did so in the present case. Once the defendant found that it did amount to misconduct (a decision which also attracted procedural fairness), the Secretary had a power to terminate the plaintiff's employment as long as it accorded procedural fairness to the plaintiff before making that decision. No jurisdictional error has been established.
Ms Francois also submitted that there was no misconduct by reference to s 7 of the Act or the Code, which were referred to in the allegations against the plaintiff. The basis of this submission was that the plaintiff was not in breach of the requirement that he obey any lawful direction or instruction (because the direction or instruction, if given in the terms which Mr Parker said it had, was not lawful). This submission has been addressed above.
I note that the wording of the letter of 12 July 2022 makes it plain that the decision that the plaintiff had engaged in misconduct pursuant to r 40(1)(a) of the Rules was "further" to (that is, in addition to and not dependent upon) its finding that the plaintiff had acted contrary to s 7 of the Act and the Code. Thus, any error in this finding was immaterial to the finding of misconduct.
[20]
Alleged legal unreasonableness (ground 6 of the first summons and ground 5 of the second summons)
The plaintiff puts its ground of legal unreasonableness as follows:
"28 In the alternative to the above, the Second Purported Decision was legally unreasonable in that it was based upon a finding of misconduct which:
(a) had been made in breach of the requirement for procedural fairness; and/or
(b) had been made in circumstances where there was no rational basis to prefer the evidence of Mr Parker to the Plaintiff that the Directions had been given; and/or
(c) was based on the wrong belief the Directions were, in the circumstances above, reasonable or lawful; and/or
(d) was based on an incorrect understanding of section 69 of the GSE Act.
29 In the premises, Second Purported Decision is invalid and of no effect."
Ms Francois submitted that because the finding of misconduct was affected by jurisdictional error, the termination was also affected by jurisdictional error and could not stand. Mr Jones accepted that if the finding of misconduct was affected by jurisdictional error the termination would also be so affected.
The bases raised by the plaintiff have, save for (b), been addressed sufficiently above. The allegation that the finding of misconduct was made in circumstances that there was no rational basis to prefer the evidence of Mr Parker to that of the plaintiff as to the content of the directions given does not give rise to a jurisdictional error. The assessment of credibility in the sense of reliability (that is, which witness to prefer where accounts differ) is quintessentially a question of fact for the decision-maker. The decision-maker accepted that Mr Parker had directed the plaintiff on no fewer than three occasions to direct Ms A to cease her work in Germany immediately. The decision-maker was entitled to accept Mr Parker's version over the plaintiff's. As referred to above, the Department, which was entitled to make such enquiries as it thought fit, was prohibited by r 39(2) of the Rules from conducting a hearing. In these circumstances, the plaintiff has not established a jurisdictional error in the decision-maker's acceptance of Mr Parker's version over the plaintiff's.
[21]
Further matters
In the course of the hearing, the plaintiff made two applications, both of which I refused. My reasons for these refusals are as follows.
[22]
The plaintiff's application for leave to call on a notice to produce dated 1 March 2023 which had been set aside by Elkaim AJ on 16 June 2023
On 1 March 2023, the plaintiff served a notice to produce on the defendant which sought, of present relevance:
"…
2. The written and electronic communications to and from Mr Darren Parker which mention [Ms A] during the period 1 January 2022 to 9 March 2022 (inclusive).
3 The written and electronic communications to and from the Plaintiff which mention [Ms A] during the period 1 January 2022 to 9 March 2022 (inclusive).
4 The written and electronic communications between the Plaintiff and [Ms A] during the period 1 January 2022 to 9 March 2022 (inclusive)."
The defendant moved to set aside the notice to produce. Its application was heard by Elkaim AJ on 15 June 2023. On 16 June 2023, his Honour ordered that the notice to produce be set aside and ordered the defendant to produce various documents to the plaintiff (which did not relate to paragraphs 2, 3 or 4 above): Azzi v State of New South Wales [2023] NSWSC 659.
At the hearing before me on 15 August 2023, Ms Francois contended that the documents sought by the notice to produce were the very documents which the defendant ought to have considered in order to decide the factual issue between Mr Parker and the plaintiff as to the content of the directions Mr Parker gave the plaintiff. She submitted that, in circumstances where the defendant had been confronted with two men saying different things, it was obliged, as a matter of procedural fairness, to make "an obvious inquiry into a critical fact" and have regard to the contemporaneous communications between relevant parties (Mr Parker, Ms A and the plaintiff) in the period during which the directions were made and seek the plaintiff's response to such documents before the defendant drew any inference against the plaintiff arising from the circumstances or from the documents themselves.
Ms Francois submitted that if production in answer to the notice to produce was not required, the plaintiff may be disabled from discharging his onus of showing that "an obvious inquiry into a critical fact" would have made a difference: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
She contended that Elkaim AJ had not correctly understood her submissions and that I ought revisit the orders he made and reinstate the notice to produce.
[23]
The plaintiff's application for leave to amend the first and second summons made on 16 August 2023
After 4pm on 15 August 2023, while Ms Francois was still addressing in reply, she applied for leave to amend the first and second summonses to add a further ground of legal unreasonableness. I stood the hearing over to the following morning at 9am, to give Ms Francois an opportunity to serve the defendant with the amendments proposed.
At 9am on 16 August 2023, Ms Francois handed up the proposed amendments. The amendments to the orders sought were not opposed. The amendment which added the following paragraph to ground 6 (legal unreasonableness) was, however, opposed:
"Further, if the Court accepts the Defendant's submission that the 'Proposed Action Submission Analysis' by Human Resources at Exhibit A pages 259-265 did not inform the finding of misconduct against the Plaintiff and is irrelevant, then that misconduct finding lacked a rational foundation or an evident or intelligible justification and, accordingly, the Purported Decision was legally unreasonable."
Ms Francois submitted that the reason the amendment had been sought at such a late stage was that it arose from a submission made by Mr Jones on 15 August 2023. Mr Jones said that the defendant's document, entitled "Proposed Action Submissions Analysis: Mark Azzi (SIRA)", which addressed the plaintiff's submissions dated 17 June 2022 (which in turn were made in response to the letter dated 6 June 2022 in which the defendant's findings of misconduct were communicated to him) did not inform the findings of misconduct.
I do not accept Ms Francois' explanation for the delay. It was apparent from the "Proposed Action Submissions Analysis: Mark Azzi (SIRA)" that it post-dated the letter dated 6 June 2022 in which the findings of misconduct were made. Thus, Mr Jones' submission merely stated the obvious: a subsequent document cannot inform an earlier decision unless it purports to provide reasons for that earlier decision.
Ms Francois' submission that the finding of misconduct "lacked a rational foundation or intelligible justification" is a new submission which is to be distinguished from the various bases on which the finding of misconduct and the consequential decision to terminate the plaintiff's employment have previously sought to be impugned. Accordingly, the delay is unexplained and inexcusable. To allow the amendment would inevitably prolong the proceedings which were listed for one day (15 August 2023), having previously been listed for hearing on 4 July 2023 at a directions hearing on 15 December 2022. The date of 4 July 2023 was vacated on 20 June 2023. Further, Ms Francois was unable to articulate, beyond the pleading itself, the basis of the further allegation.
[24]
Conclusion
The factual narrative set out above may suggest that the termination of the plaintiff's employment was harsh or at least uncalled for. However, the effect of s 58(7) of the Act in the context of his employment is this Court has no jurisdiction to adjudicate on the merits of the decision to terminate his employment. All this Court has jurisdiction to determine is whether either or both of the first or the second decisions (to terminate the plaintiff's employment) were affected by jurisdictional error. For the reasons given above, I have concluded that neither was so affected. Accordingly, both summonses must be dismissed.
[25]
Orders
For the reasons given above, I make the following orders:
Proceedings 2022/303883:
1. Dismiss the further amended first summons filed 16 August 2023.
2. Order the plaintiff to pay the defendant's costs.
Proceedings 2023/66999:
(1) Dismiss the further amended second summons filed 16 August 2023.
(2) Order the plaintiff to pay the defendant's costs.
[26]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 August 2023
On 25 February 2022, Ms A sent an email to Tim Noonan, a co-worker, which was copied to the plaintiff in which she referred to the work she was doing for SIRA (thereby alerting SIRA that she was continuing to work).
On 9 March 2022, Mr Parker sent an email to the plaintiff as follows:
"This morning you told me that [Ms A] continues to work for SIRA while in Germany. I re-iterated my previous repeated requirement that this stops and asked you to today send [Ms A] an email explaining she is not permitted to work overseas.
Can you please send me a copy of any email you have sent? Also, do you know what leave arrangements are in place for [Ms A]?"
On 10 March 2022, the plaintiff sent a draft email to Mr Parker which he proposed to send to Ms A regarding overseas work. Mr Parker responded with his own draft which he proposed to send to Ms A himself if the plaintiff was not comfortable sending it himself. The plaintiff agreed to send, and sent, the email to Ms A in the following terms:
"Dear [Ms A]
I am keen to ensure you have appropriate supports while you are overseas especially at this difficult time. Please know that employee assistance remains available via [XXXX] or via installing the Benestar app for LiveChat. If you have any troubles accessing their services please let me know so I can assist.
This email is to confirm that you are not permitted to do any work for SIRA while overseas. The reason relates to cyber-security risks and a lack of approval. Can you also confirm the security arrangements for the storage of the work laptop? It must be secured and locked so that no other person can have access.
I would also like to confirm your leave arrangements both past and going forward.
Can you advise me what past leave you intend to apply for - what dates and for what reason? I will liaise with People and Culture to consider how these requests will be handled.
From today going forward, you will need to also apply for leave. Can you please include in your response the future dates and reason?
You last explained to me that you will be back in Australia in the next couple of weeks and ready to recommence work. Can you let me know what date you expect to be back in Australia and working?
If you would like to discuss any of the above, you may contact either me or Darren Parker, Executive Director WHBCR. A meeting with a People and Culture representative can also be arranged if so needed.
I remain contactable via the mobile.
[the plaintiff]"
[Emphasis added.]
In mid-March 2022, the plaintiff informed Emma Woodhouse, a Senior Human Resources Business Partner in the Department, that Ms A had suffered domestic violence from her partner in New South Wales.
On 21 March 2022, Erica Machon, the Director of People Services in the Department, wrote to the plaintiff informing him that the Department was conducting a review into staff accessing the Department's systems from overseas and that it was "likely that a number of existing arrangements will have to be amended or ceased." He responded to Ms Machon by email on the same day:
"[Ms A] is not currently working overseas. She was previously working from Germany, with arrangements approved [by myself, Darren Parker and John Hurley] prior to the security changes being heightened and changed. She had for a limited period accessed her email and teams via office 365, but that is no longer occurring. Her overseas arrangement has ceased and we are working with HR to ensure that appropriate leave arrangements are in place."
On 25 March 2022, Ms Hogan signed a briefing note which recommended that the plaintiff be issued with a letter alleging that he had repeatedly failed to comply with reasonable and lawful directions issued to him by Mr Parker.
On 29 March 2022, the plaintiff received a letter dated 25 March 2022 (the allegations letter) which included the following particulars of the three allegations of misconduct and invited the plaintiff to respond to the allegations in accordance with r 38(4) of the Government Sector Employment (General) Rules 2014 (NSW) (the Rules):
Allegation 1 Particulars
(a) On 17 January 2022, in a Teams call with Mr Parker, Mr Parker advised you that [Ms A] (an employee of the SIRA within your directorate) was not allowed to do any work for the State Insurance Regulatory Authority (SIRA) while she was residing overseas in Germany. You were further advised by Mr Parker that approval for [Ms A] to work overseas was unlikely to be provided, but that if approval was to be sought you would need seek approval through both ICT and People and Culture.
(b) In the discussion Mr Parker further reiterated to you that [Ms A] was not to do any work for the SIRA while she was in Germany and that you were to take action to address the issue immediately.
(c) You subsequently failed to comply with Mr Parker's instructions as outlined in (a) and (b) (the First Instruction) above and allowed [Ms A] to continue working for the SIRA while located overseas in direct contravention of the First Instruction and without seeking approval from ICT and People and Culture.
Allegation 2 Particulars
(a) On 3 February 2022, in a one-on-one regular meeting with Mr Parker, you advised Mr Parker that [Ms A] was still undertaking work for SIRA while residing in Germany.
(b) Mr Parker instructed you that it was highly unacceptable for [Ms A] to be doing any work for the SIRA while she was residing in Germany.
(c) Mr Parker further instructed you that you must immediately stop [Ms A] doing any work whatsoever for the SIRA while she was residing overseas in Germany (the Second Instruction).
(d) You subsequently failed to follow the Second Instruction above, and instead allowed [Ms A] to continue undertaking work for the SIRA while residing in Germany in direct contravention of the Second Instruction.
Allegation 3 Particulars
(a) On 4 March 2022, you had a regular scheduled one-on-one meeting with Mr Parker during which you advised Mr Parker that despite the First Instruction and the Second Instruction referred to in allegations 1 and 2 above, you had allowed [Ms A] to continue to undertake work for SIRA while residing in Germany.
(b) During the meeting Mr Parker stated to you words to the effect 'You need to stop [Ms A] doing any work for us.' (the Third Instruction).
(c) Despite the First Instruction, the Second Instruction and the Third Instruction you failed to take reasonable and timely steps to have [Ms A] cease undertaking any work for SIRA while residing in Germany, until Mr Parker again instructed you to do so in writing by email on 9 March 2022.
The author of the letter also referred to s 7 of the Act and the Department's Code of Ethics and Conduct (the Code) which included, as a professional responsibility: "obey any lawful direction or instruction given to you."
On 4 April 2022, the plaintiff responded to the allegations letter. I propose to set out his response at length, in part because it determines the parameters of the matters put to the decision-maker before the decision was made. The plaintiff said in part:
"SECTION A: OVERARCHING CONTEXT RELEVANT TO ALLEGATIONS OF MISCONDUCT
Chronology of Critical Events
A.1. In responding to the Allegations Letter, it is necessary to establish a timeline of events that took place regarding [Ms A] and her working from Germany. The following is a timeline of key events;
A.1.i On 24 August 2021, [Ms A] advised me that she and her children were being subjected to verbal, emotional and physical violence from her husband. This was in the midst of lock down and she sought leave to attend SIRA's Gosford Offices. …
A.1.ii On the same day I notified Mr Parker of the issue and sought approval for [Ms A] to attend the Gosford office. …
A.1.iii On 29 August 2021, [Ms A] sought approval to relocate to Germany to act as the primary carer for her father and to remove herself and the children from the domestic violence risk. …
A.1.iv In September 2021 arrangements were made for [Ms A] to travel to Germany and to continue working from there. [Ms A] as the primary carer took her children with her to Germany. Approval for her working arrangement was obtained from Mr Parker and ICT. …
A.1.v Annexure F is the affidavit of [Ms A] filed in the Family Court of Australia, which summarily sets out the nature of the verbal, emotional and physical violence suffered by her and the children. A small number of relevant extracts from this affidavit are set out below;
…
A.1.vi The HR team at DCS were also made aware of the domestic violence suffered by [Ms A] and her children through both conversation and in writing. …
A.1.vii [Ms A] had intended to remain in Germany until such time as the family law proceedings had been finalised. This was to ensure the continued safety of her and the children and avoid the scenario of residing in the same house as the aggressor.
A.1.viii In late 2021, DCS introduced a policy that limited access to DCS systems from international locations, this included SIRA as a division of DCS.
[Reference was made to the duty of care which the Department owed to Ms A pursuant to s 19 of the Work Health and Safety Act 2011 (NSW)]
….
A.7. It is evident that DCS, SIRA, Mr Parker and myself owed a real and material set of statutory duties to both [Ms A] and her children given the context of the domestic violence and the real threat of harm that existed (which DCS was well informed of in the original efforts for alternative workplace arrangements put in place for [Ms A).
SECTION B: RESPONSE TO ALLEGATION 1
B.1. On 17 January 2022, Mr Parker, during a conversation, asked that access to SIRA systems by [Ms A] be limited, due to cyber security risks and new policies being introduced by DCS. I advised Mr Parker that I would make enquiries and facilitate the removal of [Ms A's] access to SIRA systems.
B.2. On 17 January 2022 I spoke to Mr John Hurley, Director Business Engagement for ICT. I was instructed by Mr Hurley that [Ms A's] arrangements preceded the new cyber policy being introduced and that those arrangements were not being called upon yet. However, there was the risk that her access would be terminated without further notice. He further advised that I can make contact with Mr Matt Fedele-Sirotich, to seek an exemption for [Ms A] to continue working from Germany.
B.3. That same afternoon, I proceeded to make contact with Mr Fedele-Sirotich to which I received a response on the same day advising that access was only available to staff working in the "5 eyes countries". Please see attached at Annexure H an email exchange with Mr Fedele-Sirotich.
B.4. I immediately, following that confirmation, reached out to [Ms A] and advised that I had been instructed by Mr Parker to remove her access and was in the process of doing the same. I noted that I wanted to be sensitive to her circumstances and asked her to begin the task of process mapping the activities that she had been doing up till that point to prepare for a handover. I further instructed [Ms A] to limit her technology usage to non-SIRA and DCS platforms until such a time that she had completed her handover documentation after which I intended to speak to HR/ ICT to organise the termination of her access.
…
SECTION C: RESPONSE TO ALLEGATION 2
C.1. I confirm as set out in Allegation 2 that I advised Mr Parker that [Ms A] was still carrying out work for SIRA. This is consistent with my representation in Section B above. Specifically, that I was responding to the instruction provided by Mr Parker, but doing so with regard to my statutory obligations (as set out in Section A) and minimising the risk to both SIRA and DCS. Further my advising Mr Parker that [Ms A] was still working was consistent with my intent to be transparent and provide visibility of the actions taken as at that date and being taken to adhere to Mr Parker's instructions.
C.2. I advised Mr Parker that [Ms A] was undertaking work in process mapping and transferring her knowledge to other members of the Compliance and Performance team for the SO52 which had only just been completed. Mr Parker also advised in that call that future SO52's would be completed by another team within SIRA, managed by Mr Tim Noonan.
C.3. Having anticipated the need for SIRA's retention of the SME knowledge held by [Ms A], and having instructed her to document the same, in late February 2022, [Ms A] provided me with the draft process manual document. Please see at Annexure M an email from [Ms A] to Mr Tim Noonan, dated 25 February 2022 attaching a copy of the draft procedure.
C.4. In response to Allegation 2, I submit that I adhered to the direction provided by Mr Parker, by being transparent and honest in reporting on where I was in the process of completing Mr Parker's instruction, whilst being cognisant of my duties under the WHS Act and the Government Sector Employment Act 2013 (GSE Act)
…
SECTION D: RESPONSE TO ALLEGATION 3
D.1. On Friday 4 March 2022 I had a discussion with Mr Parker, where I continued to advise him of the status of [Ms A]. I advised him that the handover for the SO52 had been completed and a process manual was drafted and provided to Tim Noonan personally. I advised Mr Parker that, given the successful winddown of [Ms A]'s activities, I would seek to finalise [Ms A]'s transition to no SIRA related work.
D.2. Due to the discussion taking place on a Friday, I was unable to contact [Ms A] until early the following week i.e. week commencing 7 March 2022. However having been in regular and transparent conversation with her, I instructed [Ms A] that following the completion of her creation of the process manual and onboarding of her team members for the SO52 work, I would be taking immediate steps to finalise the termination of her access to all SIRA systems.
D.3. Although I confirm that Mr Parker sent me an email prompting a reply on 9 March 2022, you will note from my response that I confirm having had discussions with [Ms A] in that time. Please see at Annexure N a copy of the email exchange with Mr Parker. Further attached at Annexure O is a copy of the email sent to [Ms A].
D.4. I respectfully submit that it is factually inaccurate to suggest that I took no activity in response to Allegation 3, both my response and willingness to issue the email sought by Mr Parker immediately after its receipt is itself evidence of my regular discussions with [Ms A] and my having managed her expectations so as to ensure there was no impact form a work health and safety perspective to either her or the children.
D.5. In response to Allegation 3, and consistent with my behaviour throughout the life of this matter, I submit that I adhered to the direction provided by Mr Parker, by actively reporting on updates to Mr Parker, responding to instruction immediately, transparently managing expectations of [Ms A], taking due care to ensure the process of winding [Ms A] down from SIRA work was completed in a safe manner, whilst being cognisant of my duties under the WHS Act and the Government Sector Employment Act 2013 (GSE Act)…
…
SECTION E: OTHER CONSIDERATIONS AND CONCLUSION
E.1. I vehemently deny Allegations 1, 2 and 3 in that they are factually inaccurate to suggest that I took no action in response to the direction provided.
E.2. Rather all actions taken were in response to the direction provided by Mr Parker while being at all times cognisant and complaint with my statutory obligations under the WHS Act and the Crimes Act 1900 (see Section A for further details).
E.3. Noting the basis of this entire misconduct allegation is the alleged noncompliance with the DCS Code of Conduct, specifically obey any lawful direction or instruction given to you. Having previously set out, in Section A above, the statutory obligations under the WHS Act and the Crimes Act 1900, there is doubt as to whether the direction for immediate cessation of [Ms A] access was lawful.
…
E. 7. I submit that after having considered all the relevant facts and submissions above, that a decision will be made in accordance with s38(2) of the Government Sector Employment (General) Rules 2014 (GSE Rules) and a finding be made that the allegations do not amount to misconduct, or pursuant to s40(1)(b) of the GSE Rules that misconduct has not occurred.
…"
From May 2022, Ms A accessed various forms of leave, including paid Domestic and Family Violence Leave.
On 6 May 2022, the plaintiff was informed that he would be placed on special leave and stood down from his duties.
On 31 May 2022, Ms Hogan signed a briefing note addressed to her as Secretary, which recommended that a finding of misconduct be made against the plaintiff. Ms Hogan accepted the recommendation which proposed that his employment be terminated.
On 6 June 2022, Mr Dent sent a letter to the plaintiff which notified him of the finding of misconduct, informed him of the proposal to terminate his employment in accordance with r 40(2)(a) of the Rules and confirmed that the proposed action had been approved by Ms Hogan. Mr Dent invited the plaintiff to make submissions regarding the proposed termination action.
On 17 June 2022, the plaintiff's legal representatives, Kennedys, responded, relevantly, as follows:
"1 the direction issued by Mr Darren Parker, Executive Director (Mr Parker) on 17 January 2022 (Direction) was neither lawful nor reasonable when the Department of Customer Service (Department):
a. on or around 27 September 2021, approved [Ms A's], Senior Advisor ([Ms A]) request to relocate with her children and work from Germany in September 2021 (Relocation);
b. had actual knowledge of the circumstances necessitating the Relocation, namely, the actual imminent threat of physical violence arising from the domestic situation of [Ms A], directly impacting upon her children's safety;
and
c. had actual knowledge that should the Relocation be revoked, it was and would be reasonably foreseeable that [Ms A] and her children would need to return to an unsafe situation in Australia (see item (b) above);
2 at no time prior to 10 March 2022 was our client advised that the Direction was to take effect immediately and nor could it, having regard to the duty of care owed to [Ms A] (see above);
3 notwithstanding item 2, our client took immediate action to comply with the Direction as early as 17 January 2022, including by:
a. making enquiries with DCS ICT regarding [Ms A's] system access,
b. communicating the direction to [Ms A] (both verbally and in writing); and
c. taking numerous steps (such as the initiation of file handover) to exit/wind down [Ms A] from work;
4 the allegation that our client failed to comply with the Direction cannot be maintained (see item 3 above);
5 consistent with our client's professional responsibilities and the Department's core values, between 17 January 2022 and 10 March 2022, our client provided regular updates to Mr Parker on the progress of [Ms A's] exit from work; and
6 Mr Parker was at all times aware that [Ms A] was undertaking file handover work between 17 January 2022 and 4 March 2022 (which he permitted to occur without objection).
Accordingly, the proposal to terminate our client's employment pursuant to section 69(4) of the Government Sector Employment Act 2013 (NSW) (GSE Act) is without merit. Moreover, the alleged misconduct (having regard to, amongst other things, the above matters) does not constitute 'misconduct' as defined in section 69(1) of the GSE Act and, to the extent that it is relevant, no breach of the Department's Code of Ethics and Conduct has occurred.
For the avoidance of any doubt, the Direction was complied with.
Should the Department see to terminate our client's employment, our client will be entitled to payment of all statutory entitlements including receipt of the payment prescribed by the Government Sector Employment Regulation 2014 (NSW). Our client reserves all of his rights (including, without limitation, his statutory right of appeal)."
On 22 June 2022, Ms Hogan signed a further instrument of delegation which provided that the function of terminating the employment of a Senior Executive "cannot be delegated".
On 12 July 2022, Ms Hogan signed the briefing note, approved the termination of the plaintiff's employment and approved that the letter attached to the briefing note be sent to the plaintiff and be signed by Mr Dent, as the CEO of SIRA. Under her signature and the date, Ms Hogan said:
"Thanks. I think this case is a challenging one, in that Mr Azzi may have been well intentioned in his support of his employee's personal circumstance. I'm approving this BN [Briefing Note], but have asked Adam Dent (by phone) to consider whether offering Mr Azzi an opportunity to resign is a reasonable option, and will leave it with him as the CEO of SIRA to make this decision. … Em"
Mr Dent wrote to the plaintiff on 12 July 2022 informing him that he considered the directions to be lawful and reasonable and that his employment would be terminated effective on 22 July 2022 pursuant to s 69(4) of the Act, with an opportunity to resign by close of business on 21 July 2022. He also informed the plaintiff that Ms Hogan had approved of this decision. The plaintiff chose not to resign. Accordingly, if valid, the termination of his employment took effect on 22 July 2022.
On 12 July 2022, Ms Hogan wrote to the Public Service Commissioner to inform her of the termination, in purported compliance with r 42 of the Rules.
By August 2022, Ms A had returned to Australia (the evidence does not establish the precise date of her return which may have been considerably earlier) where she continued to work for the Department.
As referred to above, the first summons was filed on 12 October 2022. One of the grounds of challenge to the termination was that it was Mr Dent and not Ms Hogan who had made the decision to terminate the plaintiff's employment and that only Ms Hogan could validly terminate his employment.
On 30 November 2022, Ms Hogan signed a briefing note and the attached letter to the plaintiff referring to his contention that she had not made the decision that he be terminated. She confirmed that she had considered the matters he had put against that decision and decided to terminate his employment and agreed with and adopted the reasons which had been provided to him (the second decision). The signed letter was sent to the plaintiff on 30 November 2022.
Section 69(3) of the Act provides that the Rules may deal with both misconduct of government employees and the procedural requirements for dealing with allegations of misconduct by government employees "consistently with procedural fairness".
Section 69(4) of the Act provides that if, in accordance with the Rules, there is a finding of misconduct against an employee, the person who exercises employment functions in relation to the employee may do various things, from cautioning the employee to terminating his or her employment without giving the employee an opportunity to resign.
Part 8 of the Rules provides for the following:
1. an initial assessment to be made by the employer, following which the employee is to be advised of the "details of the allegation of misconduct" and the action which may be taken under s 69(4) of the Act (r 38(3));
2. the plaintiff to be given a reasonable opportunity to respond (r 38(4));
3. the employer to decide either to proceed or not to proceed (r 38(5));
4. the employer to notify the employee of findings of misconduct and of the action proposed (r 40(1)(a) and (2)(a));
5. the employee to be given a reasonable opportunity to respond in relation to the proposed action (r 40(2)(b));
6. the employer to take into account the employee's response before deciding on what action to take (r 40(2)(c)); and
7. the employee to be notified of the decision (r 38(5)).
Rule 39(1) of the Rules provides that the defendant had considerable discretion to conduct "such inquiries as the employer thinks appropriate". Pursuant to r 39(2), the defendant was prohibited from holding a hearing involving the calling and cross-examination of witnesses. As a result, it could not test any differences in the accounts of the plaintiff and Mr Parker in this way.
If the employment of a Senior Executive is terminated under s 41 of the Act, the employer is obliged, as soon as practicable, to provide a report to the Public Service Commissioner on the termination: r 42(1). The report is to be signed by the "agency head" and is to include a summary of the process and the reasons for terminating the employment: r 42(2).
Rule 44 of the Rules required the plaintiff to "comply with any of the obligations imposed on the executive under the executive's contract of employment".
While the common law requirements of procedural fairness cannot be constrained by statute, compliance with statutory requirements which are intended to achieve procedural fairness can be taken into account in an assessment whether a decision is invalid because of a failure to comply with procedural fairness: Brettingham-Moore v St Leonards Municipality (1969) 121 CLR 509 at 523-524 (Barwick CJ); [1969] HCA 40.
I reject the plaintiff's submission that he was denied procedural fairness by not being forewarned of the Secretary's intention to re-make or ratify the first decision by making the second decision. The misconduct findings had already been made on 6 June 2022. Ms Hogan was not obliged to revisit these findings (which pertained exclusively to past conduct, rather than, say, continuing unfitness). Further, the plaintiff, challenged the validity of the first decision, thereby creating both the occasion and the putative need for Ms Hogan to re-make or ratify the first decision, thereby ensuring that the termination of the plaintiff's employment was valid. The plaintiff, through his legal representatives, can be taken to have been aware of the possibility that Ms Hogan would take the action she did. Given the extensive process of procedural fairness which had been undertaken prior to the finding of misconduct and the termination, there was no need to engage in this process again before Ms Hogan made the second decision.
I reject the submission that the decision-maker was required to establish (by explanation, particulars or evidence) that the direction was lawful and reasonable before non-compliance with it could form the basis of a finding of misconduct. If the plaintiff had wanted to challenge the direction on the basis of its legality and reasonableness, he could have done so. As is apparent from his response, the plaintiff contended that if the direction had been given in the terms which accorded with Mr Parker's version (requiring immediate cessation of work by Ms A) it would have put the defendant in breach of the Work Health and Safety Act 2011 (NSW). He did not otherwise, however, put to the decision-maker that the directions given was other than lawful or reasonable. The plaintiff's primary submission to the decision maker was that he had actually complied with the directions which had in fact been given. The decision-maker addressed this submission in the response (by rejecting it) and was not required to do more.
The present case is not the appropriate occasion to delineate the circumstances in which the employer will be the ultimate arbiter of the legality and reasonableness of a direction from those where this Court can review this determination for itself. Situations can be postulated where it would be legally unreasonable for an employer to consider a direction to be lawful and reasonable. For example, if an employer directed an employee to sell prohibited drugs, this would be neither lawful nor reasonable, irrespective of the employer's assessment (except if it were directed in the context of a controlled operation by the Police). Such questions do not arise in the present case because of the nature of the directions given and the matters raised by the plaintiff before the findings of misconduct were made and his employment terminated.
Thus, it can be seen from the plaintiff's response of 4 April 2022, that he did not raise the issue which is now raised: namely, the reasonableness or otherwise of the policy or the extent of its operation (including its commencement date and whether it was binding). In these circumstances, in accordance with the statements of principle cited above, it is not a jurisdictional error for the decision-maker not to have addressed an argument which was not put.
If the decision-maker is considering accepting a version which does not correspond to the version of the person affected, it is necessary to put the opposing version to the person affected. However, on no view of the principles of procedural fairness was the defendant obliged to trawl through (or allow the plaintiff to trawl through) contemporaneous emails over a period of months to ascertain which version they tend to support in order to determine a contest of credit between two employees. While this approach may be undertaken in complex litigation to determine the "apparent logic of events" (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22) or to provide material with which to cross-examine witnesses of opposing sides, it could not be said to be an obvious inquiry into a critical fact. The sheer number of emails (approximately 2000) tends against this proposition or the notion that the fact could be "easily ascertained". Further, it was common ground that the directions, whatever their contents, were given orally. The method which the defendant used to determine, as a matter of fact, the content of each direction was a matter for the defendant, subject to the requirements of procedural fairness.
Rule 39 is an important integer in this conclusion. As set out above, the defendant was, by r 39(2), prohibited from having an oral hearing (which is the way in which courts generally determine contested issues of fact). Therefore, it was not open to the parties to challenge the opposing witness, with a view to discrediting him, by cross-examination.
In addition, the plaintiff had, until being stood down on 6 May 2022, access to his emails and could have provided any which he chose to provide to the defendant in support of his submissions that there was neither misconduct nor was termination called for.
The mere fact that the plaintiff (or his legal representatives) can postulate an avenue of further inquiry (of whatever variety) does not mean that the defendant's failure to undertake such an inquiry amounts to jurisdictional error.
It is questionable on what basis I could set aside the orders of Elkaim AJ in any event but, as I am not persuaded that the notice to produce ought be reinstated, it is not necessary to address the submissions which Ms Francois made to his Honour or his Honour's reasons for setting aside the notice to produce.
For the reasons given above, the principles of procedural fairness did not oblige either the decision-maker to review contemporaneous emails over a period of months to ascertain which version they tend to support in order to determine a contest of credit between two employees or to provide those documents to the plaintiff so that he could do so. While this approach may be undertaken in complex litigation to determine the probabilities of different accounts of events, it could not be said to be an obvious inquiry into a critical fact. The sheer number of emails tends against its being obvious. For these reasons I dismissed the plaintiff's application for leave to call on paragraphs 2, 3 and 4 of the notice to produce dated 1 March 2023.
In these circumstances it would be inimical to the matters for which Part 6 of the Civil Procedure Act 2005 (NSW) makes provision to allow the amendment.