M v Commonwealth of Australia

REASONS FOR JUDGMENT 1 This is an urgent application brought before me as duty judge. It concerns the termination of the applicant's employment with the Australian Taxation Office at Parramatta, NSW on 19 December 2008. The applicant commenced employment with the ATO on 19 August 2008 subject to a probationary period of four months. That four months expired on 19 December 2008, the date on which his employment was terminated. The applicant seeks, on an urgent basis, an interlocutory injunction suspending the termination of his employment pending the resolution of his challenge to the validity of that termination. He has provided evidence by way of a number of affidavits which set out the background to his situation as he sees it. 2 As I understand it, the position is that, reasonably early in the period of his employment, complaints were made about the applicant's conduct being unsatisfactory. In a letter dated 1 December 2008, Ms Kerrie Wilby, National Graduate Coordinator of the Graduate Development Program in which he was employed in part, wrote to the applicant relaying concerns that had been expressed about his conduct in the course of his employment. She stated: These concerns related to: your unprofessional attitude toward the Graduate program and the Tax Office; failing to treat others with respect and courtesy e.g. the language and tone you have used with management; using commonwealth resources inappropriately; and disrupting a graduate assessment. 3 Attached to Ms Wilby's letter was a statement, a little over two pages in length, detailing alleged incidents. In her letter, Ms Wilby also referred to concerns that had been expressed to the applicant on 22 October 2008 and the subsequent improvement of his conduct during the two weeks following that date. She noted, however, that: "you have failed to maintain that standard". 4 The applicant was advised that he had until close of business on Monday, 8 December 2008 to make submissions to Ms Wilby and show cause why his employment should not be terminated. The applicant states that he emailed his reply to Ms Wilby, on 8 December 2008. I have only a draft copy of that response; however, the applicant said the only difference between the draft and the document actually sent were some minor typographical corrections. 5 In his response, the applicant rejected the allegations that had been made in some cases, and in others asserted that what had occurred had been misunderstood. In his final paragraph he said, referring to the reasons that he had given: It is for such reasons that I would suggest that, if there is further consideration about whether my employment with the Tax Office should be terminated, a more appropriate forum for a decision would be an independent investigation. 6 In oral submissions made at the hearing of his application for interlocutory relief, the applicant referred to that last paragraph as being a veiled reference to his claim that Ms Wilby was biased against him. He said that he had been advised not to make a more direct allegation by one of the managers at the Tax Office who supports him and has no difficulties with his behaviour. Notwithstanding his response, the applicant's employment with the Taxation Office was terminated on 19 December 2008, the date on which his probation ended. The notice of termination, issued under s 29(1) of the Public Service Act 1999 (Cth), stated that the applicant's employment was terminated: …on the grounds of failure to meet a condition of your employment imposed under subsection 22(6) of the Public Service Act 1999, viz, probation. Failure to meet such a condition is a ground for termination specified under subsection 29(3)(f) of the Public Service Act 1999. 7 The letter stated the termination would take place immediately and that the reasons for the notice were outlined in the attachment to the letter. The attachment to the letter referred to unsatisfactory conduct as outlined in the letter of 1 December 2008, and the applicant's alleged failure to moderate his conduct even after having been given a show cause letter. 8 The applicant relied on subsections 5(1)(a), (e), (g) and (h) of the Administrative Decisions (Judicial Review) Act 1977(Cth). In relation to his allegation under s 5(1)(e) that there was an improper exercise of power, he referred to subsections 5(2)(a), (b) and (d). In his submissions, he addressed the grounds relevant to those provisions generally rather than specifically. 9 My impression is that his real complaint is that his explanations were not accepted and, in his view, Ms Wilby and perhaps others who reported to her were biased against him. He did not deny that he had been provided with an opportunity to address the concerns that had been expressed, but alleged that the attitude of those in charge of the graduate program was such that he would not be believed no matter what case he made. Unfortunately, the applicant did not provide any independent evidence of the claims he made. For instance, he asserts that the managers to whom he reports in the line area of his work are entirely satisfied with his work, his conduct and are very supportive of him however he could proffer no evidence to support that claim. 10 Mr Heard, who appeared for the respondent, addressed the relevant sections of the ADJR Act and, without going into detail, submitted that the claims that had been made did not indicate a serious case to be tried in terms of grounds under those sections. For instance in relation to s 5(1)(g), he pointed out, for instance, that no evidence of fraud had been adduced; indeed, that no allegation of fraud had been made. In relation to s 5(1)(h), Mr Heard referred to s 5(3) and submitted that the conditions in that provision had not been met. 11 On the basis of the evidence before me, I am not satisfied that the requirement of a serious case to be tried - or, to put it another way, a prima facie case - has been established. In case I am wrong on that point, however, I have also considered the question of balance of convenience. Mr Heard argued that an interim order that the applicant's employment be continued would necessarily take the employment period over the four months of the probation. He referred me to a decision of the Australian Industrial Relations Commission in Wilson v Australian Tax Office (2001) 110 IR 78, which is authority for the proposition that termination on the grounds of failure to meet the conditions of the employment, namely, probation, could not occur after the end of the probationary period. 12 The effect of that would be, even if the applicant was not able to substantiate his claims at trial, the Commonwealth's position in relation to termination of his employment would have been irretrievably compromised. I accept that that is a serious issue affecting the balance of convenience. In this regard I also accept Mr Heard's submission that to have the applicant continue in employment in circumstances where the responsible officers of the Taxation Office have found that he could not be satisfactorily employed tips the balance of convenience in the respondent's favour. For these reasons, the application for interlocutory relief is refused. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .