Castlemaine Tooheys Ltd v South Australia

Castlemaine Tooheys Ltd v South Australia - [2010] NSWIRComm 36 - NSWIRComm 2010 case summary — Zoe

[12]

1 These dispute proceedings have their genesis in a notification made on 1 September 2009 by the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("the PSA") arising out of certain action said to have been taken by the respondent New South Wales Department of Corrective Services. The dispute notification referred to investigations being conducted by the respondent of a number of its members employed by the respondent who had allegedly posted comments on the "Facebook" website about the Commissioner and other senior officers of the respondent. The dispute notification expressed concern about investigations being conducted by the respondent based on allegations of infringement of privacy, defects in the investigation process and an apprehension of bias. Concurrently, with the dispute notification the Commission has before it applications brought on behalf of each of the correctional officers, the subject of the investigations, brought under s 89 of the Industrial Relations Act 1996 seeking relief based on claimed threats of dismissal with particular reference to s 89(7) of that Act. 2 The dispute proceedings were the subject of conciliation, which failed. The arbitration process then commenced. Initially, the arbitration centred around allegations of apprehended bias on the part of the person conducting the investigations. The Commission was not called upon to issue a decision about this matter. The respondent discontinued the earlier process and appointed another person to investigate the conduct of the employees concerned and to determine what action should be taken against them. 3 On 22 October 2009, Mr Paul Irving, Assistant Commissioner Probity and Staff Development within Corrective Services NSW, wrote to the solicitor representing the PSA confirming that Mr Ken Moroney had been "appointed as the decision maker in relation to all six officers involved in the Facebook matter. To effect this, Mr Moroney has been appointed as a temporary employee of the Department of Justice and Attorney General …." 4 Mr Moroney conducted an investigation into the circumstances involving each of the correctional officers. He wrote to them asking for submissions about the matter. On 17 December 2009, Mr Moroney wrote to each of the correctional officers referring to previous correspondence and indicating that he had formed the opinion that the officer had engaged in misconduct, which was described in the letter. The letter went on to say that Mr Moroney was "now CONSIDERING imposing disciplinary action." He referred to eight possible disciplinary actions available to him, which ranged from a caution or reprimand to dismissal. In the case of some of the correctional officers, the letter indicated that the severest penalty that Mr Moroney would conceivably impose would be "THAT YOU BE ALLOWED TO RESIGN." In the case of one of the correctional officers the letter said that the severest penalty that Mr Moroney would conceivably impose was "DISMISSAL." Each of the letters stressed that Mr Moroney had not yet decided to impose any sanction. He said that before making a final decision, he would consider a number of matters which he set out in the letter including any written or oral submission that each of the correctional officers might wish to make and allowing time for this to occur. 5 The PSA subsequently sought orders in the nature of interlocutory relief in effect restraining the respondent from proceeding with the further conduct of the enquiry into and the taking of any disciplinary action concerning the allegations made against the employees. I should add for completeness that only four employees remain subject to the investigative and potential disciplinary process. 6 In essence, the PSA attacked the ability of Mr Moroney to perform those duties that had been allocated to him by the respondent. There were two bases: firstly, that Mr Moroney was, in some way, not an appropriate person to have been appointed to perform this work and, secondly, that he had not been validly and appropriately appointed to perform that work. 7 As will be seen, it is only the second basis that has any validity and it is not necessary that I deal in any detail with the first basis. The statutory background

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17 The factual background was not in contention, although the consequences at law of the facts were very much in controversy. Much of the factual material was in documentary form. Some of it was produced to the Commission by the Department of Justice and Attorney General in answer to a summons for production issued by the applicant, the remainder consisted of affidavits sworn by Paul Irving and Judith Windle on behalf of the respondent. In essence, the summons for production sought all written material "pertaining and in relation to the appointment or employment of Mr Ken Moroney, AO, APM, as a temporary employee of the Department of Justice and Attorney General." The summons also sought documentation relating to the payment of salary and other employment benefits to Mr Moroney. Mr Irving was cross-examined on his affidavit. 18 I now summarise the documentation that became evidence in the proceedings. On 7 October 2009, Mr Irving made a submission to the Director General of the Department of Justice and Attorney General, Mr Glanfield. That submission referred to "disciplinary action against Corrective Services NSW staff" and in particular to the appointment "of external decision maker in relation to disciplinary action proposed to be taken against six correctional officers …." The submission set out the background to the posting of entries onto the Facebook website and investigations carried out to that time. It also referred to the history of the matter before this Commission and sought approval for the appointment of Mr Moroney as a temporary employee and "the delegation of your functions and powers under Part 2.7 of the PSEMA to Mr Moroney for the purposes of these disciplinary matters." A "formal instrument of delegation to Mr Moroney" was attached. 19 On 8 October 2009, Mr Glanfield appended the following material in handwriting to a copy of the submission, namely: I agree that a senior retired public servant should be appointed. Having considered those who might be available in that category I believe Mr Moroney is the most suitable. I approve the appointment of Mr Moroney as recommended and of the delegation of my functions to him as recommended. 20 Also on 8 October 2009, Mr Glanfield signed an "instrument of delegation" delegating his functions under Part 2.7 of the Act to Mr Moroney in respect of the several allegations of misconduct against named officers. The instrument of delegation said that it was to take effect on and from the date of signature, namely 8 October 2009. 21 Mr Irving had previously been in contact with Mr Moroney. Indeed, it seems from Mr Irving's affidavit that he originally contacted Mr Moroney on 24 September 2009 and had a telephone conversation in which he asked Mr Moroney whether he would be interested in investigating and dealing with the allegations made against the correctional officers. He met with Mr Moroney personally on 25 September 2009 and indicated to him that he would be appointed as a temporary employee of the Department of Justice and Attorney General but subject to Mr Glanfield approving his appointment. There appears to have been discussions of a general nature concerning the terms and conditions that would apply to the work to be performed by Mr Moroney. The affidavit states: Mr Moroney agreed to undertake the work of a decision maker in this matter and also the terms and conditions of his appointment. The meeting, which took approximately 2 hours, then concluded. If this is intended to indicate that the meeting on 25 September 2009 dealt comprehensively with all of the terms and conditions under which Mr Moroney would perform this work, and which resulted in agreement about them, then such intention is belied by subsequent communications between Mr Irving and Mr Moroney. 22 On 9 October 2009, at 11.13am, Ms Ball, Acting Director of the Department of Corrective Services, Professional Standards and Administrative Law Branch, forwarded an email to Mr Moroney attaching the instrument of delegation signed by the Director General, and concluding Paul (a reference to Mr Irving) will contact you on Monday to discuss and finalise the terms of your temporary appointment. Letters will be forwarded to you next week with all of the relevant material. 23 Mr Irving forwarded an email to Mr Moroney on 14 October 2009 at 2.03pm referring to the approval by Mr Glanfield of his appointment as a temporary employee pursuant to s 27 of the Act, the fact that Mr Glanfield had delegated functions and powers under Part 2.7 of the Act to Mr Moroney and continuing: I now need to finalise your employment as a temporary employee which will be effective from 8 October 2009. I propose that you be employed on a daily rate of pay of $791.89 and that you be employed on a part-time basis. Would you please advise whether this daily rate of pay is acceptable.

[40]

Mr Irving then sought additional information. 24 By email dated 14 October 2009, forwarded at 7.55pm, Mr Moroney indicated that the proposed daily rate was acceptable and queried what was meant by a "day" in terms of hours spent. 25 Mr Irving replied on 15 October 2009 suggesting a meeting at 7.00am on the following Monday, giving some details about the daily rate and basis of calculation and other relevant information. 26 Mr Irving gave a letter to Mr Moroney that, other than referring to "October 2009", is undated. That letter said, in part: I wish to confirm your appointment as a temporary employee of the Department of Justice and Attorney General pursuant to s 27 of the (Act). The letter proceeded: Your engagement as a temporary employee commenced on 8 October 2009 and will continue until you have made final decisions in the Facebook matter in accordance with your delegation. Mr Moroney was asked to sign his acknowledgment in a designated space set out below Mr Irving's signature and designation. Mr Moroney wrote "agree", signed his name and appended the date, being 19 October 2009. I assume this occurred at the meeting held that day. 27 Documentation produced by the Department of Justice and Attorney General indicated that Mr Moroney had a meeting with Mr Irving and another person within Corrective Services NSW on 25 September 2009 but made no claim for payment with respect to that meeting. He was, however, paid for eight hours work carried out on 19 October 2009 and a number of days subsequent to that date. 19 October 2009 is the first day on which Mr Moroney appears to have undertaken any work and for which he was paid. 28 Mr Moroney completed certain documentation relating to his employment with Corrective Services NSW on 19 October 2009 and on that date he also signed a tax file number declaration and pay disbursement authority. 29 The respondent sought to argue in the alternative that a contract of employment with Mr Moroney had been created on 25 September 2009. Such a submission is inconsistent with the events subsequent to 25 September 2009 outlined commencing at [22] above. In evidence, Mr Irving said he made it clear to Mr Moroney that the decision about whether he would be employed would be made by Mr Glanfield. There could not at law be any contract of employment created on 25 September. I would characterise Mr Moroney's acquiescence on that day as being an expression of interest in an offer of employment if made to him. Was the delegation to Mr Moroney valid?

[41]

30 Put shortly, the applicant submitted that the power of delegation contained within s 4F can only be made to a person who is a member of staff and such a person had, in effect, to be a person who was an employee under the Act, whether a temporary employee or otherwise. The PSA submitted that at the date of delegation, namely 8 October 2009, Mr Moroney was not and could not have been a temporary employee of Corrective Services NSW and that, in effect, the delegation had pre-dated his employment. 31 The respondent submitted that Mr Moroney became a temporary employee under the Act upon Mr Glanfield writing the words "I approve the appointment of Ken Moroney as recommended …." It was said that ipso facto the writing of those words constituted the "employment" of Mr Moroney under the Act and he thereby became a "member of staff" of the relevant Division. It will be remembered that a member of staff was defined in s 3 by reference to a person who was employed. Accordingly, whether Mr Moroney became a member of staff, and therefore a person to whom certain functions might be delegated under s 4F at the time that Mr Glanfield signed his handwritten notation, will depend upon whether or not Mr Moroney became "employed" at that particular point in time. 32 The answer to this lies in a consideration as to whether a person may become a temporary employee and a member of staff by appointment without any question of acceptance by the temporary employee, or whether, at law, this may only occur where a contract of employment has been entered into which can only come into effect where there has been offer and acceptance in the traditional sense. 33 If it is the former, there is some merit in the respondent's position. If it is the latter, then it is arguable that there was no acceptance of any offer of employment, on the basis of the evidence brought in the proceedings, until 19 October 2009. 34 As I have previously indicated, the resolution of this matter depends fundamentally on whether Mr Moroney became a temporary employee on 8 October 2009 or at some stage after that date. (This assumes that the handwritten notation made by Mr Glanfield had the effect of appointing Mr Moroney as a temporary employee and that the handwritten notation was made before Mr Glanfield signed the instrument of delegation.) 35 It is first necessary to consider what Mr Glanfield may have intended by use of the words "I approve the appointment …." On the one hand, this might be construed as meaning that Mr Glanfield thereby appointed Mr Moroney as a temporary employee. On the other hand, Mr Glanfield may have been referring to an appointment that would be made consequent upon his approval. 36 It appears that Mr Irving thought that the former situation prevailed because the terms of his letter to Mr Moroney were framed as confirming an appointment and the commencement of the engagement as having occurred on 8 October 2009. The letter anticipated Mr Moroney's acquiescence and was not framed in any manner that was conditional upon Mr Moroney's signed acknowledgment. 37 The Commission does not have the benefit of any evidence from Mr Glanfield, and it is therefore difficult to construe what he intended at the time that he wrote those words, which as I have said are capable of reflecting either meaning. If I were to approach the matter unaided by any consideration other than the words used, I would read them as indicating approval of something that was to occur. 38 However, the matter may be resolved, in my opinion, by reference to the statutory context in which the appointment of Mr Moroney was to be effected. 39 There has long been a recognition by the courts of the distinction between appointment of a person to an office that is effected, ipso fact, by the fact of appointment and the engagement of a person under a contract of employment that can only be effected by the communication of an acceptance which is appropriate to an offer. There has been a deal of controversy centred mostly around the public service conducted by the executive arm of government. 40 There is a reference to this controversy in the judgment of Brennan J (as his Honour then was) in the High Court of Australia in Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427. Mason ACJ and Deane J agreed in the reasons for judgment of Brennan J. 41 At [5] in his reasons for judgment, Brennan J said: 5 Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, for example, Gould v. Stuart (1896) AC 575, at p 577; Carey v. The Commonwealth [1921] HCA 54; (1921) 30 CLR 132, at p 137; Lucy v. The Commonwealth [1923] HCA 32; (1923) 33 CLR 229, at pp 238,249,253. However, the contractual nature of the relationship has not been universally accepted: see, for example, Monckton v. The Commonwealth [1920] HCA 3; (1920) 27 CLR 149, at pp 155,156; Lucy v. The Commonwealth , at p 244; Geddes v. Magrath; Morgan v. Geddes (1933) 50 CLR 520, at pp 533- 534; The Commonwealth v. Welsh [1947] HCA 14; (1947) 74 CLR 245, at pp 262,274; and cf. Ryder v. Foley [1906] HCA 61; (1906) 4 CLR 422, at p 440. And sometimes an espousal of one view rather than the other has been avoided: see, for example, Reilly v. The King (1934) AC 176, at p 180; Kodeeswaran v. Attorney-General of Ceylon (1970) AC 1111, at p 1118. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v. Commissioner for Railways (N.S.W.) [1951] HCA 50; (1951) 83 CLR 521, at p 527. 42 I should observe for completeness that the judges in dissent, Wilson and Dawson JJ, referred to the controversy but did not deal with it in any way. ([1] of their reasons for judgment.) 43 The cases direct attention to the particular statutory provisions that apply to the particular area of the public service. An example is provided by the decision of the High Court of Australia in Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44. Those proceedings concerned the purported dismissal from the office of Deputy Commissioner within the Police Service of New South Wales. The Court in the several judgments was required to analyse in some detail the provisions of the Police Service Act 1990 (NSW) that applied to the office of Deputy Commissioner. It is not necessary for present purposes to review those provisions, save to say that the Court was dealing with a very senior officer within the New South Wales Police Service whose appointment was dealt with specifically within the Police Service Act in terms which did not apply to members generally of the New South Wales Police Service. 44 In describing the basis of the relationship between the Deputy Commissioner and the New South Wales Police Service, Gleeson CJ said: 20 Section 41 establishes and defines the relationship between the statutory and the contractual aspects of the position of an officer such as the Deputy Commissioner. The employment of the officer is "governed by" a contract of employment between the officer and the Commissioner, such contract being made by the Commissioner for and on behalf of the Crown, that is, the Crown in right of the State of New South Wales. Although the contract governs the employment, and (pursuant to s 42) deals with such matters as the officer's duties and remuneration, it does not amount to an instrument of appointment, and it does not fix the officer's term of office (s 41(3)). Section 40 provides that, subject to the Act, an executive officer holds office for such period (not exceeding five years) as is specified in the officer's instrument of appointment. In the present case, the applicant was, by his instrument of appointment, to hold office for five years. That was reflected in his contract of appointment, but was not itself a term of the contract. He held office by virtue of the Act and the appointment made under the Act, and his term of office, by virtue of s 40, was five years, subject to the Act, which, for present purposes, means subject to s 51. 45 There is reference in the judgments of the High Court in Jarratt to a decision of the Canadian Supreme Court of Wells v Newfoundland [1999] 3 SCR 199. That case was discussed also by Rothman J in the Supreme Court of New South Wales in Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159. Rothman J was considering the circumstances of a senior specialist medical practitioner employed within the New South Wales health system, in the context of a consideration of powers of dismissal and as to whether they were based on statute or were contractual. At [314] to [318], Rothman J said: 314 The kernel of the approach adopted by the Canadian Supreme Court is whether the relationship between the individual and the Crown can be characterised as one of officer or employee. The Court distinguished between government positions of "monarchical patronage" (described as a "personal servant of the Crown" (at 209)) and the majority of government jobs, which could be better described as "public employee" - which, in substance, constitutes a contractual relationship. In the Canadian proceedings, Wells occupied a "senior public position of quasi-judicial responsibility" rather than a personal servant. The Court then remarked: "While the terms and conditions of the contract may be dictated, in whole or in part, by statute, the employment relationship remains a contract in substance and the general law of contract will apply unless specifically superseded by explicit terms in the statute or the agreement."

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318 In the instant legislative provisions, the specific provisions requiring appointment pursuant to a contract of employment override the general provisions that may otherwise import a right to suspend and/or remove without regard to the express or implied terms of employment. 46 I respectfully adopt the approach of Rothman J as embodying the appropriate approach to construction of the engagement of Mr Moroney in the circumstances of these proceedings. 47 S 7 sets out the categories of employment within the public service referring to employment as officers "being persons employed in chief or senior executive positions or other staff positions", temporary employees and casual employees. All of these persons are said to be "employed". This language is to be contrasted with the reference in the Act to the appointment of officers to "positions in the public service" which is referred to in specific terms in ss 17 and following. 48 The use of the word "employ" is, prima facie, a reference to employment as understood according to common law concepts. I can find nothing in the Act that would point to a contrary intention. There is, in particular, no language used in the Act that would indicate, in my opinion, that there was an intention to create a power of appointment of a person as a temporary employee. This is to be compared with the power to appoint a person to a particular position within the public service which may be designated, for example, by reference to a particular title or to a particular position within a classification structure utilised within the public service. 49 The provisions of the Act may be contrasted with detailed provisions concerning the appointment of office holders in other legislation including, in particular, the Police Act as described by the High Court in Jarratt. 50 Accordingly, it may be deduced that the Act operates so as to require the engagement of temporary employees by way of a contract of employment, which in turn requires appropriate acceptance of an offer communicated to the offeror. 51 There is no suggestion on the evidence adduced in the proceedings that in some way Mr Moroney had made any offer to accept employment if made available to him. The evidence particularised in [22] to [26] above establishes that prior to 19 October 2009 there was no agreement about the time during which work would be performed or any rate of remuneration. The evidence was to the effect that the employment was yet to be "finalised", and that this occurred on 19 October when Mr Moroney accepted his appointment as a temporary employee in writing. The evidence therefore is that the letter of Mr Irving constituted an offer to Mr Moroney, which was accepted by him on 19 October 2009. On this basis, Mr Moroney became a temporary employee pursuant to a contract of employment made on 19 October 2009. He was not a temporary employee on 8 October 2009. 52 The respondent sought to rely on the decision of the High Court of Australia in Visscher v The Honourable President Justice Giudice [2009] HCA 34 in submitting that it was possible for an employment relationship to be created prior to parties entering into a contract of employment. In Visscher, the majority judgment (Heydon, Crennan, Kiefel and Bell JJ) clearly differentiated between the "concepts of termination of an employment relationship" and "the discharge of a contract of employment." Their Honours said: 53 … The concepts are different. It does not follow from the fact that a wrongful dismissal is effective to bring the employment relationship to an end that it thereby discharges the contract of employment. In Byrne v Australian Airlines Ltd it was said that:

[47]

And Dixon J said: "... there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve." ( Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 469; cited in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 427). As was said in Byrne , the position was not always so clear in England ( Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 427). For a time the opinion was maintained that contracts of employment are sui generis, in that certain forms of repudiation are effective automatically to terminate them without the need for their acceptance. (See for example Vine v National Dock Labour Board [1957] AC 488 at 500 per Viscount Kilmuir LC; Sanders v Ernest A Neale Ltd [1974] EW Misc 1; [1974] ICR 565.) But, as has been observed, the theory was later rejected in favour of the "elective theory of termination". (McMullen, "A Synthesis of the Mode of Termination of Contracts of Employment", (1982) 41 Cambridge Law Journal 110 at 121, see also at 118; and see Gunton v Richmond-upon-Thames London Borough Council [1980] ICR 755.) Such an approach accepts as correct the general principle in contract law that acceptance by the innocent party of a repudiation is necessary to terminate a contract. ( Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235 at 250 per Kitto J; Holland v Wiltshire [1954] HCA 42; (1954) 90 CLR 409 at 419 per Kitto J; Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 at 48 per Brennan J; Foran v Wight [1989] HCA 51; (1989) 168 CLR 385 at 395 per Mason CJ, 421 per Brennan J, 441 per Dawson J; see also White and Carter (Councils) Ltd v McGregor [1961] UKHL 5; [1962] AC 413 at 427 per Lord Reid, 432 per Lord Morton of Henryton.) 53 The subsequent paragraphs in the joint judgment reinforce the comments made in the portion of the judgment extracted above. 54 It is sufficient for present purposes to emphasise the distinction between the employment relationship and the contract of employment. The respondent's submission seized on the judgment in Visscher to the effect that "the continued existence of the contract of employment was not dependent upon the continuation of the employment relationship." The respondent then proceeded to submit: By parity of reasoning, it may also (be) (sic) possible for an employment relationship to be created prior to the formal execution of a contract of employment. This proposition is a fortiori in a case, such as the present one, where the employment relationship is created as a result of the exercise by the Department Head of a power vested in him by statute. 55 There is then a reference in the respondent's submission to [71] of the judgment in Visscher with the observation that "the common law of contracts, and the manner in which such contracts are normally made or terminated, gives way to the exercise of a power vested by statute." 56 There are, in my opinion, some fundamental reasons why these submissions cannot be accepted. Firstly, as I understand the basic legal principles, an employment relationship is always regarded as being based in contract absent any statutory provision that might indicate to the contrary in a particular situation. There is no such statutory provision that would arguably apply in the circumstances of these proceedings, or at least neither party has been able to suggest that there is any such provision contained within the Act. Accordingly, for Mr Moroney to become a temporary employee, there must have been in existence a contract of employment. A contract of employment, like any other contract recognised at law, will only come into existence where acceptance of an offer has been communicated to the offeror. There can be no argument against the proposition that a contract of employment may survive notwithstanding the termination of the employment relationship, as is abundantly clear from the judgment of the High Court in Visscher and, indeed, many other well-known authorities dealing with the law of employment. But this does not mean that it is possible for an employment relationship to be created prior to the formal execution of a contract of employment, as contended for by the respondent. If an employment relationship can only, relevantly, be created by the making of a contract of employment, then it cannot be possible for an employment relationship to be created prior to the making of the contract of employment. What is important is the creation of the contract. If the respondent's submission is intended to refer to some formal execution of a written contract that is undertaken to confirm a contract already entered into, then there can be greater sympathy for the respondent's submission. However, a submission framed in those terms must necessarily direct attention to a contract of employment already created. This would, in turn, direct attention to the necessity to identify the communication of the acceptance of an offer. The only evidence available in these proceedings is that there was no such communication of any acceptance of an offer to enter into a contract of employment until 19 October 2009. Can s 4F operate in futuro?

[48]

57 The respondent submitted that s 4F may be construed as allowing delegation to a person who subsequently becomes a member of staff. That is, even though Mr Moroney may not have been a member of staff at the time of the delegation made by Mr Glanfield, upon him so becoming a member of staff, the delegation became effective. 58 A similar argument was considered by Osborne J in the Supreme Court of Victoria in R v Ashby [2010] VSC 14. The legislation under consideration was the Police Regulation Act (1958) (Vic). This legislation permitted the Director of Police Integrity to delegate certain powers under the Act to a person. Such a person must be a member of staff of the Office of Police Integrity or, alternatively, a person who has taken an oath or made an affirmation of a kind prescribed. The Director purported to delegate certain powers to Mr Murray Wilcox QC. However, as at the date of the purported delegation to Mr Wilcox, he had not taken the relevant oath or made the relevant affirmation. Indeed, he did not do so until the day after execution of the instrument of delegation. 59 In dealing with the submission of the defendant in those proceedings that Mr Wilcox had not been validly appointed to exercise the powers which were purported to be delegated to him, Osborne J said: 32 The submission falls to be considered in accordance with accepted principles of statutory construction. These include those stated by the majority of the High Court in Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355. 69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

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42 The statutory conditions in issue confine the power to delegate. They do not go to terms of the delegation. (Cf s 42A Interpretation of Legislation Act 1984.) 60 I would, with respect, adopt the same approach to construction as Osborne J in the context of a consideration of the provisions of the Act. 61 Although there is no reference to delegation to a person who has done anything, there is a reference to a person who has a particular status, namely who is a member of staff. The natural meaning of the words as used is indicative, in my opinion, that this is a reference to a person who is, at the time of delegation, a member of staff. Indeed, given the functions of a Head of a Division in the context of the management of the public service, it would be surprising if the legislation intended that there be a power of delegation to any person who was not, at the time of delegation, a member of staff of either the particular Division or any other Division. The power of delegation covers any of the functions of the Head of the Division and must therefore be seen to be a wide one. Furthermore, as noted by Osborne J, the powers are exercisable "for objects which are of the highest public importance", and the powers "potentially intrude significantly upon the rights and obligations" of members of the public service. 62 Osborne J rejected an argument by the prosecutor that the appointment could operate in futuro conditional upon the provisions of the Act being complied with. His Honour rejected any construction that would create a situation where someone's power would be, in effect, in limbo conditional upon a further step being taken, as required by the Act. In the context of these proceedings, it is arguable, on the basis of the evidence, that Mr Moroney did not formally accept the offer of employment until 19 October 2009. If the respondent's submission was to be accepted, then in the intervening 11 days, Mr Moroney was a temporary employee in waiting with delegated authority conditional upon his formal appointment as a temporary employee. Given my understanding of the purpose of the legislation and, in particular, the carefully framed provisions contained within Part 2.7 dealing inter alia with misconduct, I cannot agree that s 4F should be construed in the manner contended for by the respondent. Conclusion as to Mr Moroney's delegated functions

[82]

(8) An order under this section may be made on such terms and conditions as the Commission determines. 69 The provisions of ss 136 and 137 were considered by a Full Bench of this Commission in Sydney Water Corporation v Australian Services Union [2005] NSWIRComm 305. The Full Bench applied the approach to the grant of interlocutory relief set out in the decision of Schmidt J in Hill v Director-General of the Department of Education and Training (NSW) [1998] NSWIRComm 622; (1998) 85 IR 201. There can be no doubt that this Commission does have power in appropriate circumstances to grant interlocutory relief of the kind now sought by the applicant. In Hill, Schmidt J applied what may be regarded as the orthodox approach to the granting of such relief that is typified by the judgment of the High Court of Australia in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148. At [11], Mason ACJ (as his Honour then was) said: 11 The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 70 I should add that Schmidt J in Hill was considering an application brought under s 89(7). In Sydney Water Corporation, the Full Bench was considering applications for interlocutory relief sought under ss 136 and 137. As the Full Bench stated, the circumstances that need to be taken into account in determining whether to grant relief in the context of an industrial dispute may be significantly different from those applying to unfair dismissal proceedings. 71 In the context of the circumstances which pervade these proceedings, I would adopt the wider approach referred to in the Full Bench decision in Sydney Water Corporation, albeit that it is the threatened dismissal of one of the four correctional officers and a threat that the other three may be asked to resign that is at the heart of both the dispute notification and the unfair dismissal applications. In essence, I have concluded that the purported delegation made by Mr Glanfield to Mr Moroney was ineffective. Accordingly, the action which Mr Moroney purported to take pursuant to the delegation is invalid. In these circumstances, it would be both unjust and inappropriate for Corrections New South Wales to proceed to take any disciplinary action against any of the officers concerned based on anything done by Mr Moroney pursuant to the invalid delegation. This mandates the granting of the relief sought. If I failed to do so at this stage, I would, in effect, be seen to be condoning a further course of conduct that was unlawful. 72 In stating this, I refer again to the letters forwarded by Mr Moroney to each of the officers concerned, dated 17 December 2009, indicating that he had formed the opinion that each of them had engaged in misconduct as specified and that he was at that stage considering imposing disciplinary action, referring to eight possible disciplinary actions available to him. These were said to range "from a caution or reprimand to DISMISSAL." In the case of one officer, Mr Moroney said, "In relation to this matter, the severest penalty I would conceivably impose is DISMISSAL." 73 This letter would, in my opinion, constitute a threat of dismissal in the sense in which it is used in s 89 of the Industrial Relations Act. 74 During the course of submissions, the respondent was equivocal as to the likelihood of acting upon any relief that the Commission might grant in favour of the applicant. Lest there be any doubt, I should make it clear that if the respondent indicated that it was not prepared to comply with the orders which I intend making other than by way of seeking leave to appeal, I would consider any application brought by the applicant for declaratory relief under s 154 of the Industrial Relations Act and for that purpose would constitute myself as the Industrial Court of New South Wales. 75 The respondent expressed concern that the interlocutory application with which the Commission is dealing was brought by the PSA "for the sole purpose of attempting to delay and frustrate the disciplinary process which was put in place to deal with serious allegations of misconduct against a number of Correctional Officers." The position adopted by the PSA was said to raise "the practice of technical obstructionism to a new level". I can well understand the frustration that the respondent must be experiencing because the disciplinary action, which it has sought to take against the correctional officers, has now been the subject of two interlocutory applications. However, one might also express concern about the circumstances of the correctional officers whose continued employment is arguably in jeopardy until the outcome of the disciplinary action and any further unfair dismissal proceedings in this Commission is known. The fact is, however, that after the first interlocutory application the respondent undertook a different course of action without requiring this Commission to make a decision, and, as I have found, its subsequent effort to deal with the matter is fundamentally flawed. The frustration of the respondent's efforts to deal with the circumstances of the correctional officers concerned is a matter to be deplored but cannot be validly used, in my opinion, to allow the Department to proceed on a path that is contrary to law. I observe that it would have been a simple matter for the respondent to have had Mr Moroney retained to conduct the investigative processes and to allow Mr Glanfield to have determined what disciplinary action should follow. Alternatively, it would have been a simple matter for the respondent to have engaged Mr Moroney as a temporary employee and then arranged for the necessary delegation to have been given to him. Orders 76 The orders that I make are as follows: 1. The respondent is restrained from dismissing or taking other disciplinary action with respect to allegations of misconduct against Anita Malesevic, Owen Garing, Matthew Moore and David Walker based on or as a result of any determination of misconduct made by Mr Ken Moroney pursuant to purported delegation made to him by Mr Laurie Glanfield on 8 October 2009. 2. Liberty to apply at short notice.

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Judgment (83 paragraphs)

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Cases Cited (48)

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