New South Wales Technical and Further Education Commission v Valda June Kerrison

APPELLANT: Mr P Menzies QC Ms E Brus SOLICITOR: Ms J Burton LEGAL REPRESENTATIVES: Crown Solicitor's Office

RESPONDENT: Ms C Howell of counsel then Mr M Perry of counsel SOLICITOR: Mr G Hart, Geoffrey Edwards & Co, then Ms S Barnes, Fisher Cartwright Berriman

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Coram: Walton J, Vice-President Staunton J Staff J 9 December 2004

Matter No IRC 7143 of 2003 NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION v VALDA JUNE KERRISON Application by New South Wales Technical and Further Education Commission for leave to appeal and appeal against the judgment and orders of Justice Schmidt given on 21.3.2003 and 10.12.2003 in matter no IRC 3124 of 2000 JUDGMENT OF THE COURT

1 These proceedings involve an application for leave to appeal and, if leave be granted, an appeal pursuant to ss 187 and 188 of the Industrial Relations Act 1996 ("the Act") against the decision of Schmidt J in Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76.

2 In the proceedings before Schmidt J, Ms Valda Kerrison, the respondent in the present matter, sought declaratory relief pursuant to s154 of the Act. The core issue for determination was whether the respondent had been medically retired from her employment with the New South Wales Technical and Further Education Commission ("TAFE") in accordance with the provisions of the Technical and Further Education Commission Act 1990 ("the TAFE Act"). The application also sought, following upon any determination in the affirmative, that the benefit of all appropriate emoluments, together with interest, be provided to Ms Kerrison.

3 The factual circumstances giving rise to Ms Kerrison's application under s154 of the Act were canvassed in detail in Schmidt J's judgment, and, for the most part, are not relevant to the matters arising for determination on appeal. It is useful, however, to understand the background to the matter. Accordingly, the facts can be relevantly summarised as follows: (1) Ms Kerrison was employed by TAFE as a teacher of business studies and other subjects at the North Coast Institute of TAFE's campus in Kempsey. Her employment commenced in 1983 in a part-time capacity, and became full-time in 1989. (2) During her employment, Ms Kerrison made complaints to her immediate supervisor, Ms Elizabeth McGregor, Assistant Director at the North Coast Institute of TAFE, and later (from 1993 to 1995) Campus Manager at Kempsey. Those complaints related to various workplace matters, including concerns regarding discrimination, victimisation and the conduct of another member of the teaching staff. (3) The complaints made by Ms Kerrison were the subject of numerous meetings, discussions, investigations documents and reports, a process which extended over many years. Whilst the nature and outcome of Ms Kerrison's complaints is not directly relevant to the matter presently before us, we note that Ms Kerrison considered the process followed by TAFE in response to her complaints was, at the very least, unsatisfactory and frustrating, and impacted significantly on her health. (4) On 11 March 1994, Ms Kerrison took sick leave for "agitated depression - work induced". Ms Kerrison remained on sick leave until 11 July 1994, when she returned to work as Head Teacher in the Admin Services section at Kempsey. TAFE acknowledged that, notwithstanding the difficulties Ms Kerrison was experiencing at work and with her health, Ms Kerrison was able to satisfactorily perform her duties when not absent on sick leave. (5) In April 1995, Ms Kerrison again took sick leave, following which TAFE took steps to arrange a psychiatric assessment of Ms Kerrison by HealthQuest. (6) On 19 May 1995, at the request of TAFE, Ms Kerrison underwent a medical examination conducted by Dr Eva Mandel, Consulting Psychiatrist to HealthQuest. Dr Mandel issued an "interim advice" to TAFE that Ms Kerrison should "remain at work or on [sick leave] if so advised by her own doctor", as additional information was to be sought and the assessment could not yet be completed. Additional information was being sought by HealthQuest from Ms Kerrison's psychiatrist, Dr James Holmes. (7) On 16 June 1995, HealthQuest issued a retirement certificate, signed by Dr Mandel and Dr Helen Jagger, Director of Medical Services at Canterbury Hospital and Acting Government Medical Officer at the time. The certificate declared that, in Dr Mandel's opinion, with which Dr Jagger agreed, Ms Kerrison suffered from a "personality disorder" and that "she is in consequence unable to discharge the duties of her office. I am further of the opinion that her disability will in all likelihood prove permanent".

(8) Dr Gregor Ramsey, Managing Director of TAFE, and Dr Gary Willmott, Director of the North Coast Institute of TAFE, both had authority to cause Ms Kerrison to be retired (the former pursuant to s14 of the TAFE Act by virtue of his management and control of the affairs of TAFE, and the latter by virtue of the delegation of that function pursuant to s8 of the TAFE Act).

(9) There was some considerable confusion regarding the process involved in causing an employee to be medically retired. The view held by Drs Ramsey and Willmott was that a decision to medically retire an employee was made by HealthQuest; their task was merely to implement that decision. Dr Jagger considered the function of HealthQuest was to provide a medical opinion; the decision to medically retire an employee was a matter for TAFE.

(10) In the event, the retirement certificate dated 16 June 1995, was sent by HealthQuest to TAFE. At the same time, HealthQuest wrote to Ms Kerrison informing her that the retirement certificate had been issued. The evidence indicates that Ms Ruth Gallagher (Acting Manager Executive Services and assistant to Dr Willmott) received the retirement certificate and made a handwritten notation on the certificate to Ms Kerry Walshaw (Acting Manager Human Resources) which said "Kerry URGENT need to terminate her at close of business today". Whilst Ms Gallagher had no authority to terminate Ms Kerrison's employment, it was Dr Willmott's practice to give her instructions as to what was to be done with incoming mail, and it was her practice to make notes of any such instructions. We will discuss in more detail the evidence in relation to Dr Willmott and Ms Gallagher's usual practices, and their recollections of the particular events surrounding Ms Kerrison's retirement shortly. (11) On Ms Walshaw's instructions, Ms McGregor contacted Ms Kerrison to "discuss her options and confirm to her that she had been medically retired and thus did not return to work" [sic]. (12) On 30 June 1995, Ms Kerrison was removed from the TAFE payroll, and the State Authorities Superannuation Board was advised of Ms Kerrison's exit from the fund. These steps were premature, and various administrative steps were subsequently taken to correct the error. (13) Ms Kerrison lodged an appeal to the Medical Appeals Panel, however she eventually refused to participate in the appeal process and the appeal was unsuccessful. Ms Kerrison's employment with TAFE terminated on or about 16 June 1995.

4 Dr Willmott and Ms Gallagher gave evidence before her Honour regarding the events surrounding Ms Kerrison's retirement, and their usual practices in such circumstances. Dr Willmott could not recall seeing the retirement certificate. His evidence included the following statements:

During my period as Director of [North Coast Institute of TAFE], it was my practice to seek guidance and advice on staffing matters from the Manager of Human Resources, Ms Kerrie Walshaw.

The handwriting which appears on the top right hand side of [the retirement certificate] - " Urgent, need to terminate her at close of business today " is not my handwriting. I believe the handwriting to be that of Ms Ruth Gallagher who was, as at June 1995, my Executive Assistant.

I have no recollection of sighting [the retirement certificate] during 1995 but say that it was my usual practice to have Ms Gallagher forward documents to various sections of the Institute after they had been brought to my attention.

5 In cross-examination, Dr Willmott gave the following evidence:

Q Do you have any recollection of when you received the retirement certificate? A I don't actually specifically recall receiving it. Obviously it has a date on it so I am aware of approximately the time that it was referred, yes.

Q Have you seen [the letter from Ms Walshaw to Ms Kerrison dated 23 June 1995] before? A I haven't seen this document, no.

Q So, from your recollection what was the probably [sic] sequence of events? A This matter, when it arose earlier, was referred by me to Kerry Walshaw as the manager of human resources in North Coast Institute, and when the notification from the HealthQuest would have come through that would have been referred on to Kerry Walshaw as well for attention. Judging from this particular correspondence that you have shown me dated 23 June 1995, it's clear that Kerry Walshaw prepared and sent this presumably shortly after being aware that HealthQuest had notified yourself, Ms Kerrison, of their decision.

The handwritten note on the [retirement] certificate ready [sic] "Kerry URGENT need to terminate her at close of business today" is I believe in my handwriting.

While I do not recall details of the day on which the note was written, nor of my writing the note it was the practice that verbal advice would be given to me by the Institute Director Dr G Willmott to direct the actions of other officers, in this case Kerrie Walshaw Director Human Resources.

The Institute Director was often out of the office on Institute duties throughout the region or in Sydney. Consequently, his direction would come through me to initiate action. I assume that this was what occurred in this case - I would have advised Dr Willmott of the arrival of the Retirement Certificate, given him any advice we had obtained from Head Office Unit and then forwarded his direction to Kerrie Walshaw.

7 In cross-examination, Ms Gallagher gave the following evidence:

Q So at this time in June 1995 would it be that the mail went directly to Dr Willmott and after that to you? A Possibly, yes.

Q And would he give you instructions as to it? A Yes. He would give me instructions as to what he wanted done with particular mail that came in, what was to happen, what was the action.

8 On 23 June 1995, Ms Walshaw wrote to Ms Kerrison advising her that:

I realise that by now you have received your notification of retirement from HealthQuest and that it was obviously unexpected. I am sorry that I was unable to discuss it with you beforehand but HealthQuest notified you at the same time as they sent the letter to our office.

You have provided valuable years of service to TAFE and I would like to acknowledge and thank you for your contribution. I hope that I can provide whatever support is required during the coming weeks and it you would like the opportunity to be briefed on your rights and entitlements could you please ring me on 829 130.

9 Schmidt J described Dr Willmott's evidence as follows (at [144]):

He could not recollect having seen the certificate. He sought guidance from Ms Walshaw on staffing matters. He thought it likely that he had spoken to Ms Walshaw about the letter she sent to Ms Kerrison, but did not recall doing so. In cross examination he explained that he had never seen the letter sent to Ms Kerrison by Ms Walshaw...

10 Ms Gallagher's evidence was summarised by her Honour (at [188]):

Ms Gallagher could not recollect making the handwritten note, which appeared on the certificate, but explained that Dr Willmott's practice had been to give her verbal advice, to direct the actions of other officers, in this case, Ms Walshaw. She explained that Dr Willmott was often out of the office. She assumed that she had advised Dr Willmott of the arrival of the certificate from HealthQuest, had given him any advice received from the Head Office Unit and then forwarded his directions to Ms Walshaw.

11 We are satisfied that the evidence given by Dr Willmott is consistent with that given by Ms Gallagher, and was correctly understood by Schmidt J. As we will discuss later, that evidence demonstrates that, whilst not specifically recollected by the witnesses, the actions taken by Dr Willmott and Ms Gallagher were consistent with their usual practices in similar circumstances. However, her Honour went on to conclude that no "inference" could be drawn from this that Dr Willmott caused Ms Kerrison's retirement within the meaning of s20 of the TAFE Act. As we will discuss later in our judgment, this conclusion is incorrect. Not only is such an inference available, the evidence leads to the conclusion that what happened was that Dr Willmott, on a correct interpretation of the word "cause", did, in fact, bring about Ms Kerrison's retirement. In this respect, as we will later discuss, Schmidt J made appellable errors of fact and law.

12 The declarations sought, as set out in her Honour's judgment, were in the following terms:

1. Declarations a) That Valda Kerrison is and at all times since 1988 has been employed by the Technical and Further Education Commission of New South Wales and its successors.

b) That Valda Kerrison be entitled to be paid all emoluments pertaining to her position as a fulltime teacher of the Technical and Further Education Commission together with interest thereon and to retain all seniority, long service leave and other entitlements, together with interest thereon.

c) That with respect to any moneys otherwise earned by the Applicant since 22 June 1995, allowance to be made for that sum.

13 Schmidt J determined the matter in favour of Ms Kerrison.

14 The proceedings before Schmidt J extended over 12 days. Her Honour went to some length in her judgment to outline the extensive evidence before her. In doing so, we consider her Honour canvassed many issues which ultimately did not require determination, having regard to the declarations sought by Ms Kerrison (and the grounds for the same). Those issues included, for instance, a discussion of what may have been the likely outcome had a claim been brought pursuant to s84 of the Act. In the result, we shall restrict our recitation of her Honour's findings to those which bear directly upon the primary question raised in this appeal.

15 Her Honour commenced her deliberation by postulating the fundamental question, correctly in our view, as "was Ms Kerrison's employment brought to an end by TAFE, pursuant to the provisions of the [TAFE Act]?".

16 Her Honour went on to contemplate the possibility that Ms Kerrison's employment was so terminated, speculating (at [179]) that:

On the evidence, it follows that the exercise of the power provided by s20 of the TAFE Act, could only have proceeded on the basis that the relevant decision, that Ms Kerrison was unfit or capable of discharging her duties and that she should be caused to retire, was made after the receipt of the HealthQuest certificate and before Ms Kerrison had appealed its assessment of her.

17 However, her Honour went on to make a number of findings which ultimately led her to reject that observation. First, Schmidt J made the following finding (at [180]-[181]) regarding evidence of the decision to cause Ms Kerrison to retire:

There was no evidence of any written record of such a decision having ever been made by anyone. The evidence suggested that TAFE did not maintain any system by which such an exercise of the s20 power was recorded, even for example, in the personnel files maintained in respect of Ms Kerrison.

The TAFE case was entirely inferential. TAFE maintained that it was the handwritten note made on the HealthQuest certificate by Ms Gallagher, which evidenced Dr Willmott's decision in relation to Ms Kerrison's retirement. There was no correspondence sent to Ms Kerrison informing her of Dr Willmott having so exercised the powers granted by s20.

18 Secondly, in light of the confusion within TAFE regarding the decision making process, Schmidt J made the following finding (at [187]) as to the possibility that authority to make the decision had in fact been delegated to HealthQuest:

While s8 of the Act contemplated that the TAFE Commission could delegate certain of its functions, including those provided by s20, to 'authorised persons', there was no suggestion that such a delegation had ever been made in favour of anyone employed at HealthQuest. Nor did the parties address the question of whether such a delegation would have been possible, given the definition of 'authorised person' in s8(4).

19 Her Honour noted that it was common ground that the power to cause Ms Kerrison to be retired had been delegated to Dr Willmott. Whilst the respondent sought to pursue this as an issue in her contentions, it was ultimately not pressed.

20 Thirdly, her Honour made findings as to whether the decision to cause Ms Kerrison to be retired could be inferred from the handwritten note made by Ms Gallagher. In that regard, Schmidt J held (at [190]):

The conclusion that Dr Willmott ever exercised the delegated authority he had to require Ms Kerrison to retire in accordance with the provisions of s20 of the Act, can only flow from Ms Gallagher's handwritten note. The decision made, as it was submitted for TAFE, was that Ms Kerrison was to retire, if any appeal made against the HealthQuest certificate failed. Given the evidence to which I have referred, the inference that such a decision had been made, was simply not available.

21 In the result, Schmidt J found that no decision had been made to cause Ms Kerrison to be medically retired from her employment with TAFE. Her Honour held (at [214]):

I am quite satisfied, on the basis of the evidence in these proceedings, that it cannot be inferred that any person with authority to do so, ever made a decision that the authority to cause Mrs Kerrison to retire should be exercised. TAFE acted as if that had occurred, merely by the issuing of a 'retirement certificate' by HealthQuest and the failure of the appeal lodged against that certificate. That is not a basis provided in the legislation for the termination of the employment of a TAFE employee. It follows that there has never been any valid, or effective, termination of Mrs Kerrison's employment.

22 TAFE was represented in these proceedings by Mr P Menzies, QC with Ms E Brus of counsel. Ms C Howell of counsel initially appeared for Ms Kerrison, who was subsequently represented by Mr M Perry of counsel. We note also that Ms Kerrison was not legally represented at first instance.

23 TAFE appealed Schmidt J's decision on the following five grounds: (1) Her Honour's decision is wrong because she posed for herself the wrong test ie her Honour looked at whether a decision had been made "to require Ms Kerrison to retire", whereas, in accordance with s20 of the [TAFE Act], her Honour should have examined whether a decision had been made "to cause Ms Kerrison to retire". (2) Her Honour was wrong (at paragraph 197) in finding that Ms Kerrison had been deliberately deceived by TAFE as to the reason and purpose for Ms Kerrison's referral to HealthQuest. (3) Her Honour was wrong (at paragraphs 177, 178, 181 and 190) in finding that Dr Willmott did not understand the proper role and function of HealthQuest in the process of causing an officer to be retired. (4) Her Honour was wrong (at paragraph 181) in finding that Dr Willmott had not made a decision in accordance with [s20 of the TAFE Act] to cause Ms Kerrison to retire. (5) Her Honour erred in the exercise of her discretion in that she gave insufficient weight to the evidence of Ms Gallagher as to the decision making process which ultimately lead [sic] to the decision to cause Ms Kerrison to retire.

24 The issue actually raised by the application for declaratory relief, and thereby raised in this appeal is, in our view, of short compass. It involves a question of statutory interpretation which depends for resolution on a small number of relevant facts.

25 It was agreed in this appeal that the relevant section of the TAFE Act was s20, which is in the following terms:

(a) a member of the staff of the TAFE Commission is found to be unfit to discharge or incapable of discharging the member's duties, and (b) the member's unfitness or incapacity appears to be of a permanent nature and has not arisen from actual misconduct on the part of the member (or from causes within the member's control),

the TAFE Commission may cause the member to be retired.

26 When seen in the light of this provision, the question requiring determination at first instance, and on this appeal, is limited to whether TAFE caused Ms Kerrison to be retired.

27 We consider that question must be answered in the affirmative. Before setting out our reasons for that finding, we note that Ms Kerrison sought to raise a number of additional contentions on appeal. We will discuss those contentions later in our judgment.

28 We turn then to consider the question of whether we should grant leave to appeal.

29 In our view, Ms Kerrison had a respectable argument that leave to appeal should not be granted on the basis that the decision below turned on highly unusual facts before her Honour; involved a relatively uncomplicated matter of statutory construction; and had limited implications given that it involved the particular circumstances of an individual's employment. However, where an appeal "raises issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application", leave to appeal would normally be granted: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382.

30 Similar expressions to "the [TAFE Commission] may cause the member to be retired" appear in at least nine statutes which regulate different areas of the public sector. In our view, it is plain that the issue that arises for determination in this appeal will have implications for the public sector generally and therefore the impact of our judgment will have important ramifications beyond those affecting TAFE.

31 Furthermore, the appeal raises a question regarding the proper administration of justice because, in our view, there is a real question whether the issue being central to the determination of Ms Kerrison's application for a declaration was directly answered by her Honour.

32 On these bases, we are satisfied that a refusal of leave to appeal could lead to a miscarriage of justice.

34 Having made those observations, we can well understand the difficulties which were confronted at first instance, and why concerns may have been expressed by Ms Kerrison with respect to the manner in which TAFE used HealthQuest and organised a medical examination in this case.

35 TAFE contended that it was clear that her Honour correctly identified the fundamental issue. However, it submitted it was equally clear that, in considering this fundamental question, her Honour was distracted by the plethora of material before the Court dealing with the less fundamental aspects of the case.

36 It was submitted that her Honour's criticism of TAFE's case, being entirely inferential, in effect reversed the onus of proof. Because TAFE could not produce a written document evidencing the making of a decision, or a copy of correspondence which advised Ms Kerrison that Dr Willmott had made a decision to retire Ms Kerrison pursuant to s 20 of the TAFE Act, her Honour concluded, erroneously, that no decision had been made. It was further submitted that her Honour incorrectly discounted the unchallenged evidence of Ms Gallagher and Dr Willmott as to how the handwritten directive to terminate by close of business came into existence.

37 It was the appellant's contention that her Honour erred in her view that a decision, written or otherwise, was necessary for compliance with the TAFE Act. The legislation does not require a "written decision", indeed, the TAFE Act does not require any formal decision to be made; it requires nothing more than steps to be taken to cause a member of staff to be retired. It was submitted on behalf of TAFE that Schmidt J fell into appellable error by mistaking the facts and misconstruing the law, particularly with respect to s20 of the TAFE Act.

38 Ms Kerrison, in referring to the notation on the retirement certificate, contended that the mere fact that Dr Willmott instructed someone to take steps to terminate Ms Kerrison's employment, even if established, does not demonstrate that he exercised a delegation under s20 (although, as earlier stated, ultimately Ms Kerrison brought no issue as to whether Dr Willmott had the delegation to exercise). Ms Kerrison contended that all of the relevant TAFE officers treated the "HealthQuest Retirement Certificate" as being determinative of the question of whether Ms Kerrison's employment should be terminated, so that any further action was merely administrative action in response to HealthQuest's decision.

39 Ms Kerrison further contended that her Honour's conclusion that Dr Willmott regarded his role as being to put into effect a decision of HealthQuest that Ms Kerrison be retired was correct. However, Ms Kerrison submitted such an attitude on Dr Willmott's part was inconsistent with the exercise of a delegation under s20. Her Honour stated that the issue of delegation was not an issue between the parties. Ms Kerrison contended that the delegate may only exercise the powers under s20 of the TAFE Act to cause a staff member to be retired where the pre-conditions set out in s 20(a) and (b) are satisfied. It was contended the pre-conditions to be satisfied are: (1) the member of staff must be found to be unfit or incapable of discharging his or her duties; (2) the member's incapacity must appear to be of a permanent nature; (3) the incapacity has not arisen from actual misconduct; and (4) the incapacity must not have arisen from causes within the member's control.

40 Accordingly, the delegate must turn his or her mind to the question of whether each of these conditions are satisfied prior to considering the question of whether or not the delegate will cause the staff member to be retired. Ms Kerrison contended that the use of the word "may" in s20 indicates that the power to cause someone to retire is discretionary, relying on s9 of the Interpretation Act 1987. Accordingly, it was submitted, having satisfied himself or herself that the pre-conditions are met, the delegate must then turn his or her mind to whether, as a matter of discretion, the power to cause an employee to be retired should be exercised.

41 It was the respondent's submission that a mere administrative action, in response to the receipt of a HealthQuest certificate, to set in process the machinery whereby an employee's employment is purportedly terminated could not be an exercise of delegation under s20.

42 Ms Kerrison submitted that her Honour's finding that Dr Willmott did no more than act as a link in the chain of administrative actions commencing with the issue of the HealthQuest certificate was not only available, but was entirely correct. There is no evidence that Dr Willmott even turned his mind to the question of whether or not he should cause Ms Kerrison to be retired, still less that he satisfied himself that the preconditions for the exercise of power under s20 were met, nor was there any evidence that his usual practice was to do so on receipt of a HealthQuest certificate. Ms Kerrison therefore submitted that her Honour was correct in finding that no decision to cause to retire, pursuant to s20 of the TAFE Act, had been made by any authorised delegate.

43 It was further submitted that if, contrary to Ms Kerrison's primary submission, Dr Willmott had purported to exercise the power under s20 to cause Ms Kerrison to be retired on or about 16 June 1995, any such step could not have been a valid exercise of power because of the role of the appeal process. The respondent contended that there could be no contingent or conditional exercise of a delegation and that it was only possibly to exercise the delegation after the conclusion of any appeal to the Medical Appeal Panel. It follows, it was submitted by the respondent, that the appeal taken by Ms Kerrison was not merely to delay the implementation of a decision under s 20 as suggested by TAFE. Rather, the effect of the appeal was that a decision could not be made to cause Ms Kerrison to retire until the outcome of the appeal process was known, because only after that process could it be said that there was material from which the first two prerequisites for the exercise of power under s20 could be established.

Consideration What is the meaning of "may cause the member to be retired" in s20 of the TAFE Act?

44 Section 20 of the TAFE Act deals with circumstances where an employee, through illness, can no longer continue in office. The conditions which must be satisfied before an employee may be medically retired pursuant to s20 are set out clearly in s20(a) and (b). They are as follows: (1) the employee must be "found to be unfit to discharge or incapable of discharging" his or her duties (s20(a)); (2) the employee's unfitness or incapacity must "appear to be" of a "permanent nature" (s20(b)); and (3) the employee's unfitness or incapacity must not have arisen from the employee's actual misconduct or from causes within the employee's control (s20(b)).

45 Where the language of a statute (in this instance, the use of the words "may cause" in the TAFE Act) is not ambiguous or uncertain, the court will apply the ordinary and grammatical meaning of the words unless to do so would give the statute an operation that was obviously unintended: Mills v Meeking (1990) 169 CLR 214 at 223. See also, for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217; Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]; Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 at [43]-[46].

46 Counsel were unable to refer to any cases where these words had been the subject of judicial consideration.

In our submission the appropriate construction of the expression " cause to be retired " is " to bring about " or " give effect to " the termination of that person's employment on the grounds of a disability identified by s20. It follows that the direction by Dr Willmott to Ms Walshaw via Ms Gallagher " to terminate her as at close of business today " was simply giving effect to or causing the " retirement " as identified in s20 to take place.

The nature of the decision making process which is involved in these circumstances is simply, the preconditions having been made out and accepted by the decision maker, to then take steps to have the retirement brought about or, to use the words of the statute, " cause the member to be retired ". The process required no formality nor any additional decision making processes, save that which were necessary to comply with s20.

48 We agree with that submission. In our opinion, without straining the ordinary meaning of "may cause", these words mean "to bring about".

49 The discretion to take steps to bring about the medical retirement of a particular employee arises once the conditions in ss20(a) and (b) are met. Given that the basis for the exercise of the discretion is a medical opinion, it is a discretion one would expect would normally be exercised in favour of retirement if the pre-conditions in ss(a) and (b) of s20 have been satisfied.

50 In our view, the way that we have approached the proper construction of s20 is confirmed by considering the purpose of the statute. It seems clear why the legislature has expressed itself this way. The TAFE Managing Director or delegate has no relevant expertise to make a finding as to medical fitness or incapacity. The delegate or decision maker adopts a finding as to fitness and acts upon it to cause the member to be retired. This is entirely unexceptional. It would seem to us, unnecessary and needlessly bureaucratic for that finding to have to be made twice, or, as submitted by Ms Kerrison, if the member unsuccessfully appeals against the medical finding, three times.

51 Any appeal to the Medical Appeals Panel against the medical assessment of HealthQuest effectively acts as a stay of the finding of unfitness. A successful medical appeal would reverse the finding of unfitness and there would be no basis for retirement as the pre-requisite set out under s20 of the TAFE Act would not be satisfied. There is nothing contained in the statute which precludes the contingent or conditional exercise of a delegation pending the conclusion of any appeal from the findings of HealthQuest. The statute is silent in respect of this process. If a retirement certificate is not overturned by the Medical Appeal Panel, then the finding of unfitness remains, that finding having been made by HealthQuest and not the TAFE Commission delegate. If this were not the case, then the delegate would be required to again make a finding at the conclusion of any unsuccessful appeal. This step would seem to us to be unnecessary. If the appeal is successful, then the process does not continue. If it is unsuccessful, it does. In our view, there is no need for any further layers of decision-making in the process itself. The "decision" is to cause the officer to retire. The "decision" once made by the delegate is not rendered beyond power or outside the delegation unless an appeal is successful, or some other process intervenes.

Did TAFE "cause" Ms Kerrison's retirement within the meaning of the TAFE Act?

52 Her Honour made three relevant findings in relation to the exercise of the discretion granted by s20 of the TAFE Act to medically retire Ms Kerrison: first, no person with authority to do so had made a decision that Ms Kerrison should be caused to be retired. Second, there was no evidence of any written record of such a decision ever having been made by anyone, including Dr Willmott and Dr Ramsey. Further, there was no evidence that TAFE maintained any system by which such an exercise of power was recorded.

53 In our view, in making those findings, her Honour fell into error by imposing a condition on the making of a decision under s20 of the TAFE Act which was far higher than what the TAFE Act, in fact, required or contemplated. That is, her Honour focused erroneously on the absence of correspondence sent to Mrs Kerrison informing her of the decision that she be medically retired pursuant to s20 of the TAFE Act, or any written record of that process. By focusing almost exclusively on evidence of a "decision", her Honour failed to identify whether, in fact, the actions of TAFE caused or brought about Ms Kerrison's retirement within the meaning of s20 of the Act.

54 Dr Willmott's evidence was of an absence of recollection of the particular events surrounding the receipt of the retirement certificate, the instructions given by him to Ms Gallagher, and the resultant steps taken by Ms Walshaw.

55 Although her Honour found that Dr Willmott directed Ms Walshaw to attend to the practicalities of the termination of Ms Kerrison's employment, her Honour did not apply those factual findings to the legal question that was required to be answered. Rather, her Honour found that the retirement certificate had been issued by HealthQuest and that it could not be inferred that any person with authority to do so, ever made a decision that the authority to cause Ms Kerrison to retire should be exercised. Her Honour concluded that TAFE acted as if that had occurred, merely by the issuing of a "retirement certificate" by HealthQuest, and that there had never been any valid or effective termination of Ms Kerrison's employment.

56 With respect to her Honour, this approach was indicative that her Honour had given insufficient consideration to the terms of s20 of the TAFE Act or the manner in which the power conferred by that section may be exercised.

57 In our view, having regard to the statutory context of this matter, Dr Willmott had received a document - the HealthQuest certificate - which satisfied all of the requirements for medical retirement in accordance with s20. Dr Willmott forwarded the HealthQuest certificate to a person in his administration to give effect to the medical retirement by notifying Ms Kerrison of the termination of her employment on those grounds. In doing so, Dr Willmott adopted the finding set out in the HealthQuest certificate and proceeded to cause Ms Kerrison to be retired. There was no issue in respect of Dr Willmott having the proper delegation to do so. We do not agree with the respondent's contention that any such delegation was ineffective until after the conclusion of any appeal to the Medical Appeals Panel.

58 Whilst Dr Willmott does not recall the actual circumstances surrounding the receipt of the retirement certificate, the evidence demonstrates that steps were taken, consistent with his normal practice, to act on the certificate and to terminate Ms Kerrison's employment. That is, the evidence demonstrated that, on the balance of probabilities, Dr Willmott gave an instruction to Ms Gallagher; Ms Gallagher made a note of that instruction, directed to Ms Walshaw; Ms Walshaw in turn acted on the handwritten instruction to contact Ms Kerrison and confirm the termination of her employment. We note that there was no contradictory evidence. Further, applying the presumption of regularity, which we consider is appropriate in the present matter, contributes to a finding that, in the absence of evidence to the contrary, the steps taken by TAFE were effective to cause Ms Kerrison to be retired within the meaning of s20 of the Act.

59 The fact that Dr Willmott caused Ms Kerrison to be retired is more than mere inference. The retirement certificate clearly stated that Ms Kerrison was "unable to discharge the duties of her office" (thereby satisfying the requirements of s20(a) of the Act) and that the cause of the incapacity was a "personality disorder" (a matter outside of her control and unrelated to any allegation of misconduct) which would "in all likelihood prove permanent" (thereby satisfying the requirements of s20(b) of the Act). In those circumstances, all that remained to be done to effect Ms Kerrison's medical retirement was the necessary administrative steps to cause or bring about that retirement. Those administrative steps were taken, in our view, when Dr Willmott instructed Ms Walshaw, via Ms Gallagher, to terminate Ms Kerrison's employment. We are satisfied that there are grounds for such a finding, notwithstanding the witnesses faulty recollections of the particular events surrounding the receipt of the retirement certificate from HealthQuest. The evidence amply demonstrates the usual practices adopted by Dr Willmott and Ms Gallagher when mail (such as that received from HealthQuest) was received, and further demonstrates that steps were taken in the present matter consistent with those usual practices. There is no basis, in our view, for departing from the presumption that their usual practices were followed. In the circumstances, the taking of those steps themselves evidenced the exercise of the relevant discretion conferred by s20 of the Act.

60 In light of the above, we do not agree, as earlier mentioned, with the following findings made by Schmidt J (at [181]):

The TAFE case was entirely inferential. TAFE maintained that it was the handwritten note made on the HealthQuest certificate by Ms Gallagher, which evidenced Dr Willmott's decision in relation to Ms Kerrison's retirement. There was no correspondence sent to Ms Kerrison informing her of Dr Willmott having so exercised the powers granted by s20. This was entirely consistent with oral evidence given by Dr Willmott at the hearing, which demonstrated that he had not made such a decision. Dr Willmott's evidence was that he did not make any decision.

61 Her Honour's finding that the steps taken by Mr Willmott, Ms Gallagher and Ms Walshaw were insufficient to cause Ms Kerrison to be retired arises, in our view, from her misconstruction of the words "cause the member to be retired" in s20 of the TAFE Act.

62 Although TAFE's procedure was far from what could be considered best practice, the evidence demonstrates that what was done in the present matter by Dr Willmott was effectively "to cause" the termination of Ms Kerrison's employment by reason of medical retirement by Dr Willmott instructing Ms Gallagher to have Mrs Walshaw execute the decision. As earlier stated, Schmidt J correctly formulated the question, namely, whether or not there was in fact the requisite removal in accordance with the TAFE Act. However, by incorrectly focusing on the absence of a plain and demonstrable decision, her Honour did not answer that specific question.

63 We do not interpret s20 as requiring any particular or formal process, such as the preparation of a document recording a formal consideration of medical information regarding an employee's fitness or capacity for duty. We are satisfied that the taking of administrative steps to give effect to a document which, on its face, indicates that the criteria for retirement have been satisfied, is evidence that TAFE caused Ms Kerrison's retirement within the meaning of s20 of the TAFE Act. In that regard, we do not agree with Schmidt J's conclusion that the termination of Ms Kerrison's employment by TAFE was "entirely inconsistent with the statutory scheme".

64 If the appropriate delegate of the managing director, in this case, Dr Willmott, receives a certificate which includes all the findings necessary under s20, as was the case here, then, his action of instructing the termination process to take place is in accordance with s 20. Dr Willmott was quite directly and unequivocally causing the member to be retired. We do not accept, on a proper reading of the section that Dr Willmott was required to make a separate finding of unfitness, permanency of the condition and absence of misconduct. On Ms Kerrison's argument, the delegate would need to go through the ritual of having received the certificate which contained all of the findings necessary for him then to cause the member to be retired and to repeat the whole process. This is not what the statute says and in our view is not what is required. There is nothing in the statute that requires the issuing of an additional form or any further procedure to be undertaken.

65 We would observe that the approach by the appellant in this matter was regrettable. Although the statute is silent in respect of any mechanism by which a member is informed of action pursuant to s20 of the TAFE Act, it seems to us that if more appropriate administrative steps had been put in place, there may be less cause for anxiety.

66 One further matter warrants comment. Schmidt J went to some length to consider the medical evidence which led to the medical assessment of Ms Kerrison by HealthQuest and the ultimate issue of the retirement certificate. For instance, her Honour made a finding that Ms Kerrison's health had been adversely affected by the events in the workplace. Her Honour then effectively dismissed Dr Jagger's medical opinion that Ms Kerrison's health had been so adversely affected that she was suffering from a personality disorder. Her Honour observed that the evidence showed that the diagnosis rested upon an inaccurate and one-sided account of Ms Kerrison's conduct at work and that this removed the foundation for Dr Jagger's opinion, although no contra medical opinion evidence was before her Honour.

67 In our view, a consideration of the medical evidence was unnecessary having regard to the nature of the task confronting her Honour, and ultimately contributed to distracting her Honour from properly determining the question before her. There may have been many elements of this matter which may have been relevant for consideration under s106 or s84 of the Act. However, no application has been brought under either of those sections.

68 In her written submissions, the respondent sought to introduce a number of additional contentions in these proceedings. Ms Kerrison, particularly given her unrepresented status below and to enable the Full Bench to consider whether such contentions should be entertained, was given an opportunity to file further contentions. Ms Kerrison was heard on the appeal and in respect of the contentions both in writing and orally and as to leave to bring the contentions. Those contentions, although late, were as follows:

The Respondent contends that the decision of the trial Judge, Her Honour Justice Schmidt, ought to be affirmed on grounds other than those relied upon by Her Honour on the following grounds:

1. Her Honour should alternatively have held that on the basis of the evidence, Dr Ramsey was the only person who had the statutory authority to make a decision to cause the Respondent to retire and Dr Ramsey at no time ever made such a decision.

2. Her Honour should also have found that there was no evidence that the Appellant had ever lawfully, or at all, delegated the function resident in the Appellant to cause the Respondent to be retired within the meaning of s.20 of the Technical and Further Education Commission Act, 1990 ("TAFE Act").

PARTICULARS The Respondent repeats paragraph 9 of the Further Outline of Submissions dated 30 July 2004 filed on her behalf.

3. Further, in addition and alternative to the reasons relied upon by Her Honour, Her Honour ought further to have held that even if there was a relevant decision to cause the Respondent to retire within the meaning of s.20 of the TAFE Act or that such a decision was unnecessary, any such decision or action causing the Respondent to be retired was unlawful and/or invalid because it denied the Respondent natural justice and/or procedural fairness. PARTICULARS OF DENIAL OF NATURAL JUSTICE AND/OR PROCEDURAL FAIRNESS The respondent relies upon Her Honour's conclusions on the evidence (particularly at paragraph 197AB1, p.66) and also that paragraph through to paragraph 213 and alleges: (i) The Respondent was misled by the Appellant as to the reason why she was being sent to HealthQuest. (ii) HealthQuest was provided with inaccurate information regarding the Respondent in a number of respects including that the Respondent was not on duty when referred to HealthQuest and the Respondent was not advised by the Appellant of such inaccuracies. (iii) Following the examination by Dr Mandel of the Respondent on 19 May 1995, the Respondent was found fit to continue work whereupon the Appellant referred the question of the Respondent's fitness back to HealthQuest without informing the Respondent nor arranging a further examination. (iv) The referral mentioned in (iii) above, involved the Respondent imparting information to HealthQuest doctors without providing the Respondent an opportunity to be heard in relation to such matters. (v) The Respondent was never given any fair appreciation of what investigation had taken place nor how and what the outcome of such investigation had been in relation to the Respondent's original complaints against the teacher at Kempsey TAFE. (vi) After the Respondent had made serious and substantiated complaints against the teacher referred to in (v) above, the Appellant required the Respondent to work with that teacher. (vii) There was never any valid decision made by any person that any unfitness or incapacity within the meaning of s.20 had not arisen from actual misconduct on the part of the Respondent or from causes within the Respondent's control.

4. Further, in addition and alternative to the reasons relied upon by Her Honour, Her Honour ought further to have held that even if there was a relevant decision to cause the Respondent to retire or that such a decision was unnecessary, the medical certificate/opinion purportedly used by the Appellants in causing the retirement was unlawful or invalid.

PARTICULARS The Respondent repeats the particulars to paragraph 3.

69 Whether or not leave to advance the contentions was required, we formed the view that it was only appropriate to call on TAFE in reply in respect of the principal issues arising directly in the appeal. The reasons for this decision were first, Mr Perry conceded that the contention was not agitated within the terms of the pleading with a precision as set out in the notice of contention; secondly, they involved the determination of factual issues; and thirdly, the Court would not likely substitute in an appeal, factual findings of its own. In any event, we do not consider that there is any proper basis for the contentions.

70 As to the contentions in respect of delegation (contentions 1 and 2), which we note were ultimately abandoned, Ms Howell initially submitted that her Honour should not have made a finding that it was common ground that the function available under s20 had been delegated to Dr Willmott pursuant to s8 of the TAFE Act. This was despite Ms Howell advancing the following submission:

Section 8 of the TAFE Act provides for the delation, (sic) of functions. It was accepted by Mrs Kerrison below that Dr Willmott had the delegation to exercise power under s20, and it was not asserted by TAFE that any other officer had purported to exercise the power.

71 Clearly Ms Howell was given instructions that this submission was incorrect and contentions 1 and 2 emerged against this background.

72 By notice of motion filed on 30 November 2001 in the proceedings before Schmidt J, Ms Kerrison sought judgment by admissions. Part of the grounds and reasons in support of the motion for judgment included the following:

4.14 These facts are as follows · North Coast Institute of TAFE ("NCIT") Internal documents reveal that on or about 10 November 1993 Phil Cox Acting Director NCIT signed an instrument of sub delegation pursuant s 8(2) of the TAFE Act and that this remained in force until revised 22 Nov 1996. · The attached schedule of Delegates and Sub delegates reveals that an exercise of power to cause retirement under s 20 of the TAFE Commission Act 1990 was given a specified number T 137 and that T 137 could only be exercised in the Institute by the ID (Institute Director) · No sub-delegation of that power had been made in NCIT for the period 10 Nov 1993 to 22 Nov 1996

4.15 Accordingly any purported termination of Mrs Kerrison's employment on 13 September 1996 pursuant to s 20 of the TAFE Commission Act could only be evidenced by notice or order to that effect signed by the Institute Director NCIT and dated 13 September 1996 and addressed to Mrs Kerrison.

73 The notice of motion for judgment on admissions was supported by an affidavit of Mr Gerard Crewdson filed 30 November 2001 which relevantly provided:

33 Some three weeks ago I was looking through some of many documents that Mrs Kerrison now has obtained from the TAFE Commission and noted a folder revealing correspondence of Peter Cribb TAFE Legal Officer in 1999.

34 The correspondence included an inquiry about delegations of authority pursuant the TAFE Act at North Coast Institute TAFE.

35 I noted that the delegation for retirements under s 20 of the Act was confined to the Institute Director.

36 I believe that this is a very significant document in relation to the question of whether Mrs Kerrison's services have ever been terminated by TAFE.

37 Because of the discovery of this document of delegations in addition to admissions that have been made by Mrs Kerrison already in these proceedings the applicant Mrs Kerrison now wishes to proceed with a notice of motion seeking judgment on admissions.

74 The notice of motion on admissions was the first occasion on which the issue of delegation was squarely raised. This came to the attention of TAFE on the fourth or fifth day of the hearing at first instance. TAFE made its position clear that it had not led evidence on the issue of delegation. To preserve TAFE's position, Schmidt J determined that, if this was a matter which was to be agitated by Ms Kerrison, Ms Kerrison should do so by way of cross-examination of TAFE's witnesses, including Dr Willmott. At no time was any cross-examination at all directed to Dr Ramsay or Dr Willmott on the issue of delegation. TAFE's evidence was that Dr Willmott had the delegation, a proposition with which Ms Kerrison agreed. It is entirely unsurprising that her Honour concluded that there was no issue between the parties on this point.

75 In withdrawing contentions 1 and 2 on appeal, Mr Perry conceded that Dr Willmott was the only person, by virtue of s8 of the TAFE Act, who had the authority to make the decision and that there was no issue about that.

76 In light of the above, it is appropriate to observe that whatever sympathies may be expressed towards Ms Kerrison's position, the mere fact that Ms Kerrison was unrepresented at first instance does not entitle her, or any unrepresented litigant, to unduly delay proceedings by seeking to raise matters for argument on appeal which have been conceded or abandoned at first instance (and which are singularly lacking in merit).

77 At the conclusion of the proceedings on 20 September 2004, we announced, before calling upon TAFE in reply (noting that the hearing on 20 September 2004 was set to hear Ms Kerrison's submission and that TAFE was not going to be called upon on that day) that we did not consider that there was any proper basis for bringing the contentions in the appeal. We therefore declined to receive the first and second contentions.

78 We turn to deal with the arguments advanced in support of contentions 3 and 4.

79 As to contention 3, counsel submitted that even if a decision was unnecessary under s20, or that a relevant decision was made, such decision was fatally flawed anyway by the failure to afford natural justice to Ms Kerrison. Mr Perry accepted that her Honour did not perceive this to be an issue that she had to resolve. Mr Perry contended that question raised by the contention was dealt with by Ms Kerrison in her written submissions and also in reply.

80 The Court was referred to ground 13(a) of the amended application for declaration which provided as follows:

13 Each of the decisions taken by officers of the TAFE Commission, HealthQuest and the MAP in relation to the applicant's employment has involved:

81 Mr Perry further conceded that in respect of the decision taken by Dr Willmott pursuant to s 20 and the issue of procedural fairness, this was not agitated before her Honour. There was nothing put in cross-examination to Dr Willmott as to what process he adopted in the context of procedural fairness with by Ms Kerrison.

82 Mr Perry developed the submission by contending that the allegations that were put forward related not so much to Dr Willmott, but to those involved in daily dealings with Mrs Kerrison that led up to the decision to refer Mrs Kerrison to HealthQuest, which led to the decision of Dr Willmott. It was not put to Dr Willmott that he denied Ms Kerrison procedural fairness in the steps he took in causing her to be retired (nor was any proposition relating to that topic put to him). On that basis, counsel accepted it was not agitated. Further, there was a reluctance by counsel to specifically define what decision(s) was being attacked on procedural fairness grounds.

83 As to contention 4, at the outset Mr Perry conceded that contention number 4 as "in so many cases overlaps with number 3. It is there for abundant caution and probably covers (sic) by the ambit of pleading (sic) 3". Mr Perry's submission was that what was contended for, in effect, was that the pleadings and submissions were wide enough to cover the question of procedural fairness. When further pressed regarding what decision was sought to be brought by the subject matter of contention 4, Mr Perry formulated the contention as an attack on the decision of the Government Medical Officer in the HealthQuest certificate; the decision not to inform the applicant of the reasons why she was going to the Government Medical Officer; the decision or non decision to provide inaccurate information to the Government Medical Officer; the decision after Dr Mandell examined Ms Kerrison on 19 May 1995 to contact Dr Mandell with further information without informing Ms Kerrison of such matters and the decision to impart information to the HealthQuest doctors, particularly given its nature without giving Ms Kerrison an opportunity to be heard about those matters and the decision to require Ms Kerrison to work with the teacher with whom she had a dispute for some time under her.

84 When pressed in respect of the scope of the contention, Mr Perry submitted that the contention did not go to the question of Dr Willmott, except insofar as Ms Kerrison was not given any fair appreciation of one investigation taking place. This, however, related to an investigation by persons commissioned by Dr Ramsay and did not bear upon Dr Willmott's actions in respect of s20.

85 Mr Perry provided references which he submitted underpinned the attack that Ms Kerrison made on the various decisions that he had identified.

86 Mr Perry also referred the Commission to the judgment of Spigelman CJ in Hill v Green (1999) 48 NSWLR 161 at 164-165 as follows:

The obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard...

In determining whether there has been a statutory modification, the courts must apply the principle of the law of statutory interpretation that general words used in a statute will be read on the basis of an assumption that parliament did not intend to infringe fundamental rights or principles - including procedural fairness - and, accordingly, that such general words may not be given their full scope or literal construction...

... formulations of the test to be applied in determining that parliament intended to abrogate principles ... include phrases such as "clear and unambiguous words", "unmistakable and unambiguous" and "express words or necessary implication".

87 Mr Perry submitted that the observations by the Chief Justice are relevant to the construction of the words "may cause the member to be retired". It was submitted that to have those words, when read in the way TAFE submits that they should be read, would be offensive to the principle of the law of statutory interpretation. This submission in respect of statutory interpretation is misconceived and we reject it for the reason earlier stated.

88 We do not accept Ms Kerrison's contention that there were various stages or decisions made in which Ms Kerrison was denied procedural fairness. The decision that is the subject of challenge in the proceedings for a declaration was that made by Dr Willmott pursuant to s20 of the Act. More significantly, we do not consider there is sufficient, or indeed any, evidentiary foundation to sustain contentions 3 and 4. We reject those contentions.

89 Finally, we should observe that we have some real reservations in allowing a contention to be argued as we have done in this appeal. Such a course has the potential to avoid the provisions of s188 of the Act for a prospective appellant/cross appellant. In many respects, this is an exceptional case in the way that the case proceeded at first instance. The reason that we were prepared to allow the contention to be argued was that we regarded this case as being unlike many others, in the way it developed before her Honour.

(1) Leave to appeal is granted. (2) The appeal is upheld. (3) The judgment and orders of Schmidt J in Matter No. IRC 3124 of 2000 are set aside.

91 The matter is set down for further hearing in relation to costs and as to any orders that should be made in relation to earlier orders staying the decision of Schmidt J.

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