McGinn v Secretary, Family and Community Services

The applicable test

1. Mrs McGinn's employment was terminated pursuant to powers given to the head of an agency under section 47(1)(f) of the Government Sector Employment Act 2013. ('the GSE Act')
2. Section 47(1) (f) of the GSE Act provides: (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment: … (f) the employee has refused to perform the duties of the role assigned to the employee
3. Of course, as this is an application under s.84 of the Act, the question before the Commission is whether the dismissal was harsh or unreasonable or unjust, applying the tripartite test which is established by the statutory provision: Bankstown City Council v Paris (1999) 93 IR 209; Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 at [6].
4. Nevertheless, any assessment of the dismissal pursuant to that tripartite test will properly include an examination of whether the statutory power to dismiss has validly been exercised; whether or not the statutory power was validly exercised would certainly bear upon the consideration of whether the dismissal was unjust, at very least.
5. In that context it must be borne in mind that where, as here, the employment relationship is governed by the GSE Act, the contract of employment is one bounded by the terms of the statutory power to employ: Director-General of Education v Suttling (1987) 162 CLR 427 at 437. The contract is not a common law contract and does not incorporate the common law concept of summary dismissal. Accordingly, the assessment of the validity of a dismissal effected pursuant to the powers granted in subs 47(1) of the GSE Act will not involve inquiry as to whether an employee's refusal to perform duties would have warranted dismissal at common law: see Director of Public Employment v Public Service Association (on behalf of Brown) (2008) 184 IR 134 at [52]-[69]; Hansen v Secretary of Department of Transport (2015) 255 IR 40.
6. I was invited by counsel for the respondent to consider the correctness of the termination under s.47(1)(f) by assessing it against the well-established common law principle that an employer may dismiss an employee who fails to follow a reasonable and lawful direction within the scope of their employment, set out in for example R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan 1938) 60 CLR 601. With respect, I do not consider that those common law principles apply to assessing the lawfulness and correctness of a dismissal under s.47(1)(f). Indeed, to consider them might draw the tribunal into jurisdictional error. Such a dismissal must, as I set out above, be assessed only within the context of the statutory power to dismiss, as that is the only power that has been exercised. The decisionmaker was not required to consider common law contract principles at all.
7. The lawfulness of a termination of a contract established under a statutory scheme which is effected pursuant to a statutory power, and specifically here s.47(1) of the GSE Act, will fall to be assessed on whether the power was validly exercised within its own terms, including in accordance with any regulations that might affect the exercise of the power.
8. The question of whether the dismissal was harsh, unreasonable or unjust within the meaning of the Act, a discrete question, falls to be assessed according to the well-established jurisprudence of the Commission in relation to cases brought pursuant to s.84.

Exercise of powers under the GSE Act

1. The GSE gives a head of agency (or his delegate) power to dismiss a public servant on a range of grounds, relevantly here where the employee has refused to perform duties. The exercise of that power is governed by Clause 14 of the GSE (General) Rules 2014, which provides a requirement for procedural fairness to be observed in the exercise of the power.

Was there a refusal to perform duties?

1. The answer to the question, was there a refusal to perform duties, is certainly yes. Mrs McGinn freely admits to that in her own evidence. Her case, shortly put, is that in September 2016 a decision was taken to restructure her area which, when it came into effect, was going to result in the abolition of her position. That meant, she argued, that the Department could no longer ask her to carry out a significant element of her duties because it had evinced an intention that they would in future no longer need to be performed. It should be noted that at the date of dismissal, indeed at the date of hearing, the restructure, so far as it affected her position, had not been put into effect. Indeed, on the evidence no employees had been declared excess when Ms McGinn's employment was terminated on 13 April 2017. In any event, Mrs McGinn demonstrably refused to carry out duties.
2. Of course, not every refusal of duty will lead to a valid termination under s.47(1)(f). Each case must be decided on its own merits. An agency head would, in my view, need to be satisfied that the refusal to perform duties was deliberate and serious before taking the serious step of dismissing an employee for that refusal.
3. I add here that the statute does not require that a public servant refuse all duties to attract the possibility of action under s.47(1)(f). The statutory provision refers to a refusal "to perform the duties of the role assigned to the employee." On a proper construction of the Act, a refusal to perform the duties of a role, whether all or some of them, is contemplated by the sub-section.
4. Assessment of the validity of the dismissal under s.47(1)(f) necessarily leads to an inquiry into the scope and degree of Mrs McGinn's refusal to perform work, in the context of the role she occupied. It is necessary to set out the evidence about this in some detail.
5. On uncontested evidence, Mrs McGinn was employed in the role of Quality Manager and Internal Auditor as part of Land and Housing Corporation's Projects Division. Her duties included administering, coordinating and continuously improving the quality management system (QMS) which underpins the delivery of all social housing dwellings. This included undertaking quarterly management reviews with senior management to advise about the status of QMS.
6. On 9 August 2016, staff were advised that a restructure of the Projects Division would take place, that implementation of the new structure would be phased in, and that the proposed structure itself would not be finalised, at the earliest, until the first half of 2017.
7. Staff were told at that time that they would be required to continue work as normal pending finalisation of the new structure.
8. There was a further presentation in September 2016, which outlined similar information but added an early draft of the proposed structure.
9. During this period, a set of Frequently Asked Questions was published on the intranet, accessible by Mrs McGinn. There it was stated in terms that employees would continue in their existing roles until the new structure was implemented.
10. In January 2017, Mr Amar Prashant, Mrs McGinn's manager, had two discussions with her in which she asserted that her role had been deleted from the new structure and therefore she was no longer required to perform her duties.
11. Mr Prashant spoke to Mr Hugh Phemister, Executive Director Projects Division, to clarify whether Mrs McGinn's duties were still required to be performed. Mr Phemister confirmed that Mrs McGinn was still required to perform her duties.
12. Following this discussion, Mr Prashant confirmed with Mrs McGinn that she was still required to perform her duties during the implementation of the restructure.
13. Notwithstanding this, Mrs McGinn maintained that her role had been deleted and refused to perform her duties, although she continued to attend work each day.
14. A number of emails passed between management and Mrs McGinn in February 2017 confirming that her role had not been deleted and that she was required to continue to perform her duties during the restructure. These emails included: 1. Email from Mr Prashant to Mrs McGinn dated 6 February 2017. 2. Email from Mr Prashant to Mrs McGinn dated 15 February 2017 conveying Mr Phemister's advice that QMS was still required and directing Mrs McGinn to continue to perform her duties. 3. Email from Mr Prashant to Mrs McGinn dated 17 February 2017 asking her to confirm if she was still refusing to perform her duties and seeking clarification about what work she was actually completing. 4. Email from Mr Phemister to Mrs McGinn dated 20 February 2017 confirming that he agreed with Mr Prashant's advice that the duties of her role were still required. 5. Email from Mr Prashant to Mrs McGinn dated 23 February 2017 attaching a link to FAQ's available on the intranet which confirmed that staff were required to continue performing their duties during the implementation of the restructure. 6. Email from Mr Phemister to Mrs McGinn dated 23 February 2017 referring to the email that Mr Prashant had sent earlier in the day and again referring to the FAQs that had been sent. 7. Calendar invitation dated 27 February 2017 sent by Mr Prashant to Mrs McGinn for a meeting on 1 March 2017 in relation to QMS. 8. Email from Ms Lyndsay Brooker, Executive Director Corporate, to Mrs McGinn confirming that the requests made by Mr Prashant to Mrs McGinn to perform her duties were reasonable and directing her to perform the duties of her role.
15. Notwithstanding these communications and directions, Mrs McGinn adamantly refused to carry out the QMS aspect of her role, while still attending work. As a secondary matter, on the evidence Mrs McGinn was frequently observed during this period to arrive at work late, well into core hours, and leave early. That was not, however, the basis for the dismissal.
16. At this point the fact of Mrs McGinn's refusal to perform the QMS reviews was referred to Ms Juliet Adriaanse, Director Human Resources, in order to consider what, if any, action should be taken.
17. On 30 March 2017 Ms Adriaanse and Mr Phemister met with Mrs McGinn to deliver a show cause letter advising her that Ms Adriaanse was considering terminating her employment under section 47(f) of the GSE Act because of her continued refusal to undertake the duties assigned to her. In that letter Mrs McGinn was invited to provide a response about the proposed termination before a final decision was made.
18. Mrs McGinn emailed Ms Adriaanse on 3 April 2017 stating that it was not open to her to terminate her employment under s 47(1)(f) of the GSE Act as her employment was not 'ongoing,' given that her role was deleted. Mrs McGinn provided no other substantive response to the allegations being put to her. I return to the question of 'ongoing' employment below.
19. Ms Adriaanse replied by email stating that Mrs McGinn's employment was ongoing and that she was required to perform her duties, and reminding her that she had until 7 April 2017 to provide a response to the proposed termination of her employment. Mrs McGinn replied saying that she did not intend to make any further response. She did not resume her QMS duties.
20. Mrs Adriaanse then determined that Mrs McGinn's employment would be terminated pursuant to subs.47(1)(f) and effected that termination pursuant to delegations from the agency head. A letter of termination was sent to Mrs McGinn dated 13 April 2017.
21. I turn to assess the validity of the termination under s.47(1)(f) first, by asking the question whether there was a refusal to perform duties. Clearly there was, as a matter of fact. Mrs McGinn does not contest that. In my view the refusal to perform duties was sustained, deliberate and serious. It is clear on the evidence that, whatever idea Mrs McGinn may have developed about the effects of the restructure, she was repeatedly told by her superiors that she was required to perform the QMS role. She was directed to do so. She refused. In that context the exercise of the powers under subs.47(1)(f) was enlivened and justified.
22. I can well understand a public servant who discovers that her role is to be deleted under a proposed new structure feeling both aggrieved and undervalued. However, that cannot justify a flat refusal to perform a significant element of the employee's duties.
23. Clause 14 of the GSE (General) Rules was complied with. Mrs McGinn was given a clear statement of the intended action and the bases for it. She was given an opportunity to respond. She was well aware of that opportunity and expressly declined to take advantage of it.
24. Mrs McGinn argued that she had not been afforded procedural fairness. In my view only one of the bases on which she advanced that argument had any conceivable substance. That was that she was not given notice that the meeting on 30 March 2017, when she was handed the 'show cause' letter, was to be a 'formal' meeting, and consequently was not given the opportunity to bring a support person.
25. It is perfectly clear that she was not told that the meeting was formal, and that that was deliberate. Both Ms Adriaanse and Mr Phemister gave evidence that they did not advise Mrs McGinn that the meeting was 'formal' because they believed, based on previous events, that she would not attend it if they did.
26. As a general principle managers are not entitled to dispense with procedural fairness because of assumptions they make about an employee's potential response to an administrative act. However, the purpose of the meeting was no more than to give Mrs McGinn a show cause letter. That was done. Procedural fairness is not an end in itself, but a means to fair outcomes. It would have made no difference at all to the outcome of the meeting if Mrs McGinn had brought a support person. The failure to advise her that the meeting was 'formal' made no difference to anything, and does not at all bear on the observation of Clause 14 of the GSE Rules.
27. Mrs McGinn was notified of the proposed termination and the reasons therefor, was given a proper opportunity to make a submission about the proposed termination, and her submission was taken into account in making the decision to dismiss her from her employment.
28. The termination was effected in a manner which was procedurally fair within the meaning of the GSE Rules.

Ongoing employment

1. I refer above to Mrs McGinn's contention that she was not in 'ongoing employment' at the time of the termination, noting that subs.47(1)(f) grants the power to dismiss only where the employment is 'ongoing employment.' Mrs McGinn argued that her employment was not ongoing at the time of dismissal, because it was intended that her position be deleted in the proposed restructure. That is not, with respect, correct.
2. Again, in this context it must be remembered that the employment contract is established under a statutory structure.
3. Certainly it was the case that Mrs McGinn's position did not appear in the new structure. Put bluntly, it was intended that it be deleted. However, neither Mrs McGinn nor any other employee had been declared excess when her employment was terminated. Mrs McGinn was not an 'affected' employee within the meaning of the Agency Change Management Guidelines. Regardless of any proposed new structure, at the time she was dismissed no determination had been made as to whether she would be placed in a position in the new structure or declared excess. The nature of her employment with the Department remained 'ongoing' employment within the statutory scheme.
4. On all the bases addressed above, the powers under s.47(1)(f) were validly and lawfully exercised to terminate Mrs McGinn's employment.

Tests under the Act

1. That does not, of course, conclude the matter. The determinative issue is not the valid exercise of power under the GSE Act, but whether the termination was harsh, or unreasonable, or unjust.
2. I expressed the view in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 100, that while glosses have been placed on the words 'harsh,' 'unreasonable,' and 'unjust' in earlier cases, it is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole. I maintain that view.
3. With that in mind I turn to assess the termination of Mrs McGinn's employment under the tripartite test under the Act. In doing so I have regard to the matters set out under s.88 of the Act.
4. I am guided in that assessment by considering that the Parliament has, in the GSE Act, chosen to give agency heads an express power to dismiss for refusing to perform duties. That in its express form was not a power provided in the predecessor Act. It has to be accepted that the Parliament gave that power on the basis that a refusal to perform duties, without more, could be, in the appropriate circumstances, a proper basis for dismissal of a public servant. Here the refusal to perform duties was quite deliberate, it was sustained in the face of repeated requests and directions to perform the work, and I am satisfied, on the evidence of Mr Phemister, that the work Mrs McGinn refused to perform was important work necessary for the Department to carry out its functions.
5. I am unable to see that a termination for a sustained and deliberate refusal to perform necessary work within an employee's role, in the face of a statutory employment structure that expressly contemplates dismissal for refusal to perform work, was harsh. Nor, it seems to me, can it be called unjust; the powers were validly exercised under the statutory scheme, and procedural fairness was afforded. Neither can it be called unreasonable. It is difficult to see, in the context of the statutory basis for the employment, that another outcome than dismissal could reasonably have been effected in the face of a persistent and deliberate refusal to perform duties, sustained over time, and with every indication that the employee adamantly intended to maintain the position that she would not perform the duties.
6. As to subss.88(a)-(c), a reason was certainly given, it had a basis in fact, and the employee was afforded an opportunity both to modify her behaviour and to make out a defence. As to subss.88(d) and (e), the seniority of the position and the important nature of the duties exacerbate the seriousness of the refusal to perform them.

Strike-out and summary disposal

1. Mrs McGinn advanced a submission that she was entitled to summary judgment, or that the employer's defence (as set out in its Reply to the application) ought be struck out, entitling her to judgment. With respect to her, these submissions misconceive the nature of the Commission's processes. The Commission is not a court of strict pleading. The employer's reply to an application under s.84 is not a 'defence' within the meaning of the Civil Procedure Act 2005. There is no capacity for the Commission to give summary judgment to an applicant in a s.84 application. Not only is there no provision for such a step in the Act or the Rules, the Act makes it clear that the Commission is only empowered, in relation to an application under s.84 which it does not dismiss, to make an order under s.89, or any other order it is empowered to make: Act, s.87.
2. It is apparent on the face of s.89 that the Commission must, in making any order in relation to an application under s.84, have regard to a number of considerations, including for example whether or not it might be impracticable to reinstate an applicant in employment. Summary judgment is wholly inconsistent with such an exercise of judgment. None of the other orders the Commission is empowered to make - which are all orders expressly provided for in terms in the Act - provide for summary judgment.

Disposition of the application

1. The termination of Mrs McGinn's employment was neither harsh, nor unreasonable, nor unjust. There is no basis on which the Commission might intervene in the decision. The order I make in the matter is this: 1. Application dismissed.

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