Bhattacharya v Director-General of Department of Education & Training

Court of Appeal (NSW)|2000-04-04|Before: Mason P, Beazley JA

CITATION : Bhattacharya v Director-General of Department of Education & Training [2000] NSWCA 74 FILE NUMBER(S) : CA 40674/99 HEARING DATE(S) : 7th March 2000 JUDGMENT DATE : 4 April 2000

Pranay Kumar Bhattacharya PARTIES : Director General of Department of Education & Training The Crown Solicitor, NSW JUDGMENT OF : Mason P at 1; Beazley JA at 1; Bryson AJA at 1

LOWER COURT JURISDICTION : GREAT LOWER COURT 314/99 FILE NUMBER(S) : LOWER COURT R P J Noonan JUDICIAL OFFICER :

COUNSEL : Appellant: In Person Respondent: Ms C Ronalds SOLICITORS : Appellant: In Person Respondent: I V Knight, Crown Solicitor CATCHWORDS : Employment - Disciplinary charges and procedure - Dismissal - Implied duty of fidelity and good faith - Procedural fairness - Natural justice - Error of law Government & Related Employees Tribunal Act 1980 (NSW) LEGISLATION CITED : Technical & Further Education Commission Act 1990 (NSW) Teaching Services Act 1980 (NSW) Mental Health Act 1990 (NSW) Wessex Dairies Ltd v Smith [1935] 2 KB 80 Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 Ch 196, 1 All ER 350 Timber Engineering Co Pty Ltd v Anderson [1980] 2 NSWLR 488 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 Abalos v Australian Postal Commission (1990) 171 CLR 167 CASES CITED: Devries v Australian National Railways (1993) 177 CLR 472 State Rail Authority v Earthline (1999) 73 ALJR 306 Hope v Bathurst City Council (1980) 144 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 336 Rejfek v McElroy (1965) 112 CLR 517 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 DECISION : Appeal dismissed with costs

Pranay Kumar BHATTACHARYA v DIRECTOR-GENERAL OF THE DEPARTMENT OF EDUCATION & TRAINING & ANOR

The appellant, who was employed as a teacher by the New South Wales TAFE Commission under the Technical and Further Education Commission Act 1990 (NSW) (the TAFE Act), was dismissed from his employment for various breaches of discipline. He appealed to the Government and Related Employees Appeal Tribunal (GREAT), who found two of the disciplinary charges proven and confirmed the dismissal. The appellant appealed to this Court. The appeal was limited to a question of law: s 54 Government and Related Employees Appeal Tribunal Act 1980 (the GREAT Act).

(i) (a) The appellant had breached his implied duty of fidelity and good faith to his employer by making threats directed towards TAFE Commission members.

(b) A breach of this duty was sufficient to ground disciplinary charges, even though no disciplinary regulations had been made under the TAFE Act.

(ii) There was no breach of procedural fairness. The respondent's grievance procedure, which the appellant alleged was not followed, did not apply to the disciplinary matters which were the subject of the charges against him.

(iii) No other error of law had been demonstrated in GREAT's determination.

Appeal dismissed with costs. THE SUPREME COURT

Pranay Kumar BHATTACHARYA v DIRECTOR-GENERAL OF THE DEPARTMENT OF EDUCATION & TRAINING & ANOR

1 THE COURT: This is an appeal against a decision of the Government and Related Employees Appeal Tribunal (GREAT) dismissing the appellant's appeal from the decision of the Director-General of the Department of Education & Training and Managing Director of the Technical and Further Education Commission (TAFE), dismissing the appellant from his employment with TAFE as a teacher of Electrical Engineering. 2 An appeal from a decision of GREAT is limited to an appeal on a question of law: s 54 Government and Related Employees Appeal Tribunal Act 1980 (NSW) (the GREAT Act).

The Appellant's Employment 3 The appellant was employed by the TAFE Commission under the provisions of the Technical and Further Education Commission Act 1990 (NSW) (the TAFE Act): s 15. The TAFE Commission is empowered to fix the conditions of employment of its staff: s 16. In addition, regulations may make provision for or with respect to the employment of staff, including the discipline of staff: s 17(1). It was common ground between the parties that no regulations have been made. 4 On 10 October 1996 the Managing Director of TAFE issued a determination relating to discipline (the 1996 Determination) pursuant to the power to do so given by s 16. The 1996 Determination provided, relevantly: "1. Maintaining Satisfactory Performance … 1.6 When a line manager has concerns in relation to a staff member's performance a discussion is to be arranged. The staff member shall be provided with details of the concerns in relation to performance. The discussion will centre on performance expectations and how these can be achieved. Any work related problems that may be affecting the staff member's performance, for example personality clashes, lack of rewards or recognition, inability to deal with a changing corporate environment, lack of training in the use of equipment, and measures that can be taken to rectify the situation are also discussed. 1.7 At any stage of the process where an employee is required to attend for an interview or discussion in relation to performance concerns, the employee may request that a union representative or other staff member accompany him or her in an observer capacity. … 1.10 Record of Discussion 1.10.1 A confidential record of the issues discussed and the performance agreement reached is made. The record is to be kept simple and in broad terms will include: (a) the aspects of the performance causing concern that were brought to the attention of the staff member; (b) the positive actions to be put in place as agreed to by both parties; and (c) a specific time period for the staff member to show improvement. 1.10.2 The staff member is to receive and sign a copy of the performance agreement. This will indicate that he/she has received the document and has had the opportunity to comment. … 1.12 The Second Discussion 1.12.1 In conducting the second discussion the line manager refers to the first discussion and gives details of continuing unsatisfactory work performance or attendance record. The offer of assistance through TEAP is repeated. The staff member at this stage is informed of the consequences of continuing unsatisfactory work performance. 1.12.2 Another specific period of time is set for the staff member to show improvement and performance standards are reaffirmed or amended. This period is usually shorter than that set after the first discussion. A record of this discussion is again made and the staff member is to receive and sign a copy of the revised performance agreement. This will indicate that he/she has received the document and has had the opportunity to comment. … 1.13.3 If work does not improve and if there are no alternative indications or arrangements which arise out of clause 1.9 above a fact finding interview in accordance with clause 2 Discipline Process is conducted." 5 On about 3 November 1998, the appellant was charged with seven breaches of discipline arising from and in relation to his employment as a teacher by the New South Wales TAFE Commission. The charges were found to be proven after an inquiry conducted by a senior officer and it was recommended that the appellant's services be terminated. The Managing Director of TAFE terminated the appellant's services on 28 April 1999. 6 Section 24 of the GREAT Act provides to an employee a right of appeal to the Tribunal against a disciplinary decision of an employer. The appellant was an employee as defined in s 4. The appellant appealed to GREAT against the findings on all seven charges and against his dismissal. 7 Part 4 of the GREAT Act prescribes the rules governing the Hearing of Appeals. Section 36 provides that the hearing of an appeal from a disciplinary decision shall be conducted formally. Section 38 contains the detailed provision for the hearing of formal appeals, including that evidence in the proceedings shall be given on oath and subject to cross-examination. Subject to one matter relating to charge 6, the appellant does not allege that Part 4 was not complied with. 8 After a hearing in which witnesses were called and cross-examined and a large quantity of written material was tendered in evidence, GREAT found charges 5 and 6 were made out and dismissed the other charges. 9 The terms of the charges were as follows: " Charge #5 - Breach of an implied term of the contract of employment between the appellant and the NSW TAFE Commission as by your actions and statements you have breached the duty of fidelity and good faith which you owe to your employer by threatening to take certain actions against some staff of the NSW TAFE Commission and a former member of the NSW TAFE Commission Board during a telephone call with Les McKay of the Crown Solicitor's Office.

Particulars of the charge included statements by the appellant to Mr McKay that the appellant "will kill" certain named persons. Charge #6 - Breach of an implied term of the contract of employment between the appellant and the NSW TAFE Commission as by your actions and statements you have breached the duty of fidelity and good faith which you owe to your employer when you made threats of violence on 30 October 1997 during a conversation with Mr Tony Stavropoulos, a TAFE officer."

Particulars of this charge included threats of harm and death threats to certain named persons. 10 Having found these two charges proven, GREAT stated: "The appellant has made serious threats of violence against his employer. One set of threats was made to Mr McKay. The others were made in the workplace to Mr Stavropoulos. In each case the Tribunal finds that his conduct is repugnant to his continued employment by that employer. … In our view, the ordinary meaning of what he said was that if he didn't get satisfaction he would act in a manner similar to that of the people responsible for the respective killings at Dunblane and Port Arthur. To suggest he could mean otherwise is untenable. Notwithstanding that the Tribunal finds only two of the seven charges against the appellant to be made out, we are firmly of the view that dismissal is the appropriate disciplinary response, and the only reasonable outcome in the circumstances."

11 It accordingly disallowed the appellant's appeal to it from the Managing Director's decision to terminate his services.

Appeal To This Court 12 The appellant has appealed to this Court on two grounds: first, that GREAT erred in the application of law and secondly that the decision was contrary to the principles of natural justice. In his amended Notice of Appeal the appellant amplified these grounds by giving particulars of each and added a third ground that "[GREAT] misdirected itself and was biased". 13 The grounds of appeal, as elaborated upon in his written and oral submissions, may be summarised as follows: (i) as no regulations had been made there was no basis to charge him with a breach of discipline; (ii) GREAT was wrong in finding he made threats to his employer; (iii) there had been a breach of procedural fairness; (iv) charge 6 was based on hearsay evidence where it was necessary for relevant witnesses to be called; (v) GREAT overstated or failed to state certain matters which were relevant to the determination; and (vi) GREAT erred in finding that it was "satisfied on the balance of probabilities that the appellant is suffering from a mental illness". 14 The appellant also made passing reference to the fact that he had a conflict with GREAT and the chairman and therefore "you couldn't rely on [the judgment]". However, as the appellant made no challenge in the GREAT proceedings to the chairman sitting on his appeal, it is not appropriate to allow this ground to be taken now.

First Ground of Appeal 15 In his first ground of appeal, the appellant submitted that he had a legitimate expectation that he would be charged under the regulations governing his employment. That legitimate expectation was not met as the charges laid were based on an implied term of his contract of employment. He also submitted that as no regulations have been made under s 17 of the TAFE Act, no charges could properly be laid against him. The appellant further explained this ground of appeal as follows: he submitted that statute overruled the common law; that a breach of contract did not allow him to be charged under the disciplinary provisions relating to his employment; and that as there were no regulations in force under the statute, he could not be charged with a breach of discipline. The appellant also submitted that he had been wrongly advised by a Mr Hamilton, a senior TAFE Commission officer, that his employment was governed by the Teaching Services Act 1980 (NSW), when it was not. 16 We have already set out the statutory structure which governed the appellant's employment. It is true that no regulations have been made under the TAFE Act governing his employment. However, the absence of regulations does not prevent an employer from taking disciplinary action against an employee. The contractual relationship of employer/employee remains with all the consequences which flow from that. It is well-established that in every contract of employment there is an implied duty of fidelity and good faith. See Wessex Dairies Ltd v Smith [1935] 2 KB 80 at 84-85; Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 Ch 169, 1 All ER 350; Timber Engineering Co Pty Ltd v Anderson [1980] 2 NSWLR 488; Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 300. The TAFE Commission charged the appellant with a breach of that implied duty as it was entitled to do. There was, therefore, no error of law in charging the appellant with a breach of his common law duty of fidelity and good faith. 17 Before leaving this ground of appeal, it is appropriate to refer to two other matters raised by the appellant in argument. First, the appellant's original premise upon which he sought to ground this error of law, namely that statute law overrides common law, does not accurately state the law. On the contrary, there is a presumption that legislation does not override common law principles or invade common law rights. For statute law to override or abrogate common law principles or common law rights, there must be a clear statement of statutory intent that that is the case: see generally Pearce & Geddes: Statutory Interpretation in Australia, 4th Ed p 141-146. 18 Secondly, Mr Hamilton's error in stating that the appellant's employment was governed by the Teaching Services Act is inconsequential and irrelevant. The appellant was not charged under that Act nor were the disciplinary procedures instigated under that Act.

Second Ground of Appeal 19 The second major basis upon which the appellant challenged the decision was that GREAT was wrong in finding he had made threats to his employer. He advanced the following alternative propositions: · first, the appellant contends that he did not say the words which, it is alleged, constituted the threat. In particular, the appellant denies he used the word "kill" in his conversation with Mr McKay. He said that he had merely quoted from a judgment of O'Reilly DCJ and mentioned persons named in various judgments. · secondly, even if he had used such words, the conversation did not constitute a threat in law - as it was his intention that was important. Implicit in this submission is that it was not proved he had the requisite intent for a finding of threat to have been made. · thirdly, that a threat must be accompanied by conduct for it to constitute a threat in law. 20 The first of these submissions does not raise a point of law. GREAT had before it two versions of the one conversation. It accepted Mr McKay's version. There was nothing improbable in it having done so. No material was advanced by the appellant to demonstrate that GREAT had misused its advantage as the primary trier of fact: see Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority v Earthline (1999) 73 ALJR 306. A finding of fact does not involve an error of law. Even a wrong finding of fact does not involve an error of law; see Hope v Bathurst City Council (1980) 144 CLR 1 at 6-7; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. We should state, however, that nothing erroneous has been demonstrated in GREAT's fact finding process. 21 The second and third submissions may be dealt with together. GREAT was not required to find, on the criminal standard, that the appellant had committed a crime. The charge was a disciplinary charge that he had breached his implied duty of fidelity and good faith by inter alia, making threats to kill certain persons. The charge did not require proof of the commission of a crime nor did it require proof of the charges laid to the criminal standard. In determining whether the charges of breach of the implied duty of fidelity and good faith had been made out, GREAT correctly applied what is sometimes referred to in legal jargon as the Briginshaw standard. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J said at 361: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found."

See also Rejfek v McElroy (1965) 112 CLR 517 at 521 where the Court stated that the "clarity" of proof required in a serious matter such as fraud "is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved" . 22 GREAT was entitled to treat the statements of the appellant as a serious matter. The appellant made explicit threats to kill. In the conversation with Mr Stavropoulos he compared his own feelings to those of the mass murderers at Dunblane and Port Arthur. There was nothing about the two conversations which would warrant a conclusion they were made, for example, "in the heat of the moment". The fact there were two conversations with two different people would dispel any such notion. Nor was there anything jocular or light hearted about the two conversations. Nor was there anything in their content or the context in which they were made to warrant them being taken other than seriously. 23 The appellant also argued that the statements should not have been treated as threats as he had no history of violence. That view is far too simplistic. In the first place, any threat of harm, let alone a threat to kill, is a most serious matter. Secondly, any history must have a commencement. And thirdly, it might be asked rhetorically, how was Mr McKay or Mr Stavropoulos to differentiate between a 'real threat' and a meaningless one? There was nothing in the circumstances which would have given them that insight. 24 GREAT recognised that the appellant had a grievance against his employer and was seeking compensation. However, the conversations between the appellant and Mr McKay and Mr Stavropoulos were threats of a most serious nature. 25 GREAT referred to the respondent's reliance on Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66. In that case Dixon and McTiernan JJ stated at 81-2 "Conduct which … is destructive of the necessary confidence between employer and employee, is a ground of dismissal … An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." 26 It appears that GREAT applied this test. It was correct to do so. 27 The appellant submitted that even if that test applied, he had not acted repugnantly to his contract of his employment, because, to do so in the Blyth sense, required that he be at his place of employment at the time of the commission of the offending conduct. He pointed out there was no evidence of his being at his place of employment after 10 November 1997. 28 We do not agree with the appellant's submission. One could provide many examples of conduct committed outside the workplace proper, or while an employee was on leave, or away from his or her employment for whatever reason, which would be repugnant to the contract of employment. It is sufficient however, to focus upon the conduct subject of the present appeal. In our opinion, these threats were destructive of the necessary confidence between employer and employee. They involved threats of death and even potentially of massacre, of members of the employer Commission. GREAT formed the opinion, rightly in our view, that threats of such a serious nature were repugnant to the appellant's contract of employment.

Third Ground of Appeal 29 The appellant next argued that the Commission failed to follow its own grievance resolution procedure. The appellant made this submission in various ways. As put in his written submissions, it appears to raise a question of natural justice. As developed in argument, it seemed to be no more than a complaint that the appellant believed the grievance procedure should have been followed religiously. He did not contend however, that the Commission was obliged as a matter of law, to exhaust it. 30 The 1996 Determination makes provision for a grievance procedure directed to "Maintaining Satisfactory Performance" (cl 1) and for a disciplinary procedure (cl 2). Clause 1 engages the disciplinary procedure provided for by clause 2 if the staff member's work performance does not improve. The appellant complained that the respondent failed to follow the procedure provided by cl 1 and that, accordingly, the disciplinary process specified in cl 2 should not have been invoked against him. 31 The respondent submitted that as cl 1 only applied to work performance matters, it did not have any application to the respondent's complaint against and investigation of the appellant. We agree with this submission. It follows that this basis of complaint that there had been a breach of procedural fairness, has not been made out. 32 The appellant also contended there had been a breach of procedural fairness due to the delay in bringing the charges. He said that the history of discrimination and victimisation of him had occurred over a long period of time. He drew attention to the fact that the charges were laid on 3 November 1998 and the dates of particulars alleged in the charges began on 5 December 1996. He said this "scenario [was] deliberately designed in order to cause detriment". 33 We do not consider that this delay was such as to breach the rules of procedural fairness. There is nothing in the material before the Court to indicate that the appellant was prejudiced in any way which affected his ability to conduct the proceedings. Further, the time itself was not unreasonable and is within the parameters often encountered in the bringing and hearing of legal proceedings. 34 Accordingly, this ground of appeal also fails.

Fourth Ground of Appeal 35 The appellant next contended that the finding that charge 6 was made out was affected by legal error because GREAT had acted on hearsay evidence in that the persons who had made allegations against the appellant were not called to give evidence. However, before GREAT, the appellant admitted the conversation with Mr Stavropoulos. It was not necessary in those circumstances for the individuals to be called to verify their complaints. In any event, the charge was not that the appellant had sexually harassed members of staff. It was that he had breached his duty of fidelity and good faith by making threats of violence in his conversation with Mr Stavropoulos. Accordingly, it was not necessary for the purposes of charge 6 to call direct evidence from the persons who had made allegations of sexual harassment. 36 Accordingly, no question of fact or law is raised by this ground of appeal.

Fifth Ground of Appeal 37 The appellant compendiously described this ground of appeal in terms that "[GREAT] misdirected itself and was biased". He particularised the ground as follows: "(i) In omitting to state its own reason for the reasons of the decision. (ii) In overstating the facts in stating 'that is not a reasonable reaction' for the appellant to state the facts of Dumblane(sic) or Port Arthur in the circumstances which are equivalent factual circumstances before the Tribunal. (iii) In understanding the factual legal circumstances by stating 'In our view, the ordinary meaning of what he said was that if he didn't get satisfaction he would act in a manner similar to that of the people responsible for respective killings at Dumblane (sic) or Port Arthur. To suggest he could mean otherwise is untenable.' (iv) In consciously failing to state the facts while stating 'appellant may have genuine belief (albeit mistaken) …' (v) In consciously stating from the judgment of Judge Blanch from His Honour's decision dated 4 May 1998 in Sydney (on page 5 and 6 of the decision of GREAT) but failing to state the facts of police coercion, which was in evidence. (vi) In failing to state the facts related to appellant's arrest on 1 May 1998 when the appellant was arrested on the basis of allegations made by the Department. (vii) In failing to state the matters of police involvements which were before the Tribunal." 38 We will deal with each separately.

(i): This ground is not made out. GREAT gave reasons for its decision as to why it found charges 5 and 6 made out.

(ii) and (iii): We do not agree that GREAT misdirected itself as alleged. We have already expressed the opinion that the appellant's statement which was the subject of charge 6 was threatening and GREAT correctly treated it as such.

(iv) and (v): Neither of these two allegations relate to GREAT's determination in relation to charges 5 and 6. GREAT's reference to the decision of Blanch DCJ was as part of the background history. It made no reference to evidence of "police coercion" . Even if there was such evidence which it ought to have accepted, it would not be relevant to charges 5 and 6.

(vi) and (vii): Neither of these two matters are relevant to charges 5 and 6.

Sixth Ground of Appeal 39 This ground can be dealt with briefly. GREAT did not make any such finding. Rather it recorded the history of the appellant's employment with TAFE and various circumstances which were, from time to time, relevant to his continued employment with TAFE. One such circumstance was his detention under the provisions of the Mental Health Act 1990 (NSW) and the finding of Brownie J that the appellant "suffered from a mental illness - a delusional condition" and that his detention under the Mental Health Act was justified. 40 As GREAT did not make the finding as alleged, no ground of appeal properly arises.

Conclusion 41 In our opinion, the appellant has failed to demonstrate that the decision of GREAT was affected by legal error. Accordingly, we would dismiss the appeal with costs.

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Related Employees Tribunal Act 1980(NSW)

Further Education Commission Act 1990(NSW)

Teaching Services Act 1980(NSW)

Mental Health Act 1990(NSW)

Government and Related Employees Appeal Tribunal Act 1980(NSW)

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