Federal Court of Australia|1992-02-03|Before: Von Doussa J, Doussa J

The application for an order for review be dismissed.

The question of costs of the application including the notice of objection to competency be reserved for further consideration.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

2. The primary contention of Telecom on the objection to competency was that the decision made on 21 February 1991, was not a decision to which the ADJR Act applied. It was contended that the decision was not "made...under an enactment" but pursuant to the terms of the applicant's contract of employment: cf Australian National University v Burns [1982] FCA 191; (1982) 43 ALR 25. Alternatively it was contended that the decision was one of a class of decisions set out in schedule 1 to the ADJR Act, being a decision made under the Industrial Relations Act 1988. In the reasons for judgment published on 11 July 1991 which rejected both those contentions, the relevant statutory framework and the "enactment" under which the decision was made are set out in detail.

3. On 28 August 1989 the applicant applied to Telecom for permanent employment as a radio lineman. On 6 September 1989 he attended an interview, and by letter dated 18 September 1989 he was advised of his appointment which he took up on 25 September 1989.

4. On 21 June 1990 Telecom purported to terminate the applicant's employment on the ground that his employment was subject to a probationary period and a requirement of confirmation dependent on a satisfactory Conduct Diligent and Efficiency Report ("CDER"), and that, despite counselling, the latter condition had not been satisfied. The applicant sought to have the decision reviewed by a review tribunal. He also contended that his employment was no longer probationary as confirmation of permanent appointment had occurred on or about 16 February 1990. There was delay whilst this allegation was investigated, and, because of the delay, the decision of 21 June 1990 was revoked on 12 September 1990. The applicant was advised that a further report on his conduct, diligence and efficiency had been requested, and that the termination of his employment was still being considered. As the result of legal advice received, Telecom considered that the applicant's employment remained probationary. The applicant, on the other hand, continued to assert that his permanent appointment had been confirmed on or about 16 February 1990 by a letter bearing that date which he had received from Telecom.

5. By letter dated 2 November 1990 Telecom advised the applicant that he had not met the criteria for confirmation of appointment with regard to satisfactory conduct, diligence and efficiency, and his employment was terminated with effect from the close of business on 19 November 1990. The applicant was informed that he had the right to have the decision reviewed by a review tribunal. By letter dated 7 November 1990 the applicant exercised this right, and his employment was continued pending the outcome. The review was undertaken by a review tribunal constituted in Adelaide ("the Tribunal"). Following a hearing on 12, 13 and 18 February 1991, the Tribunal delivered its decision in the following terms:

"The decision of Telecom Australia (South Australian

Administration) to annul the appointment of Mr Roderick under the

existing guidelines of the Telecommunications Act is correct, and

the matter should proceed to finality."

6. The same day Telecom by letter advised the applicant that his employment with Telecom was terminated effective from 22 February 1991.

7. Section 85 of the Australian Telecommunications Corporation Act 1989 empowers Telecom to engage such employees as are necessary for the performances of its functions, and provides that the terms and conditions of employment shall be determined by Telecom. By a Determination made on 30 June 1989 under that section ("the s.85 Determination") the terms and conditions of the employment of a permanent employee employed after that date were determined to be the terms and conditions determined under a Determination made on 29 June 1989 pursuant to s.38 of the Telecommunications Amendment Act 1988 ("the s.38 Determination"). The s.38 Determination determined, relevantly, that the terms and conditions of employment were those applicable to an officer in the Australian Telecommunications Commission Service immediately before 30 June 1989. The s.38 Determination had the effect of applying, as terms and conditions of employment, the provisions of s.40 of the Telecommunications Act 1975, although that section had been repealed by the Telecommunications Amendment Act 1988. Under a complex package of amendments, of which the last mentioned Act is one, which came into force at about the same time, the Australian Telecommunications Commission became the Australian Telecommunications Corporation, and the distinction between officers and employees which had existed in the Australian Telecommunications Commission Service was abolished. It is therefore necessary in the application of the provisions of s.40 to the applicant's contract of employment to substitute "Telecom" for references to the "Commission", and "employee" for references to "officer". Section 40, as it appeared in the 1975 Act, provided:

"40.(1) Unless the Commission, in a particular case, otherwise

directs, the appointment of every officer shall be on probation

for a period of 6 months commencing on the day on which the

officer commences duties in pursuance of his appointment.

(2) A person appointed as an officer on probation remains a

probationer until his appointment is confirmed or terminated in

accordance with this section.

(3) The Commission may, at any time during the period of 6 months,

terminate the appointment.

(4) As soon as practicable after the expiration of the period of 6

months, the Commission shall -

(a) confirm the appointment;

(b) terminate the appointment; or

(c) direct that the probationer continue on probation for such

further period (not being a period exceeding 6 months) as

the Commission determines.

(5) Where the Commission directs that a probationer continue on

probation for a further period, the Commission may confirm or

terminate the appointment of the probationer at any time during

that further period and, if it does not confirm or terminate the

appointment before the expiration of that period, shall do so as

soon as practicable after the expiration of that period.

(6) Where the appointment of a probationer is to be terminated,

the Commission shall notify the probationer in writing of the

reasons for the termination of the probation.

(7) The regulations shall make provision for and in relation to

the review of a decision of the Commission under paragraph (4)(b)."

8. The regulations required by sub.s.40(7) to make provision for and in relation to the review of the decision of the Commission to terminate a probationary appointment were repealed when s.40 was repealed. The s.38 Determination, and the s.85 Determination, however had the effect of providing, as a term and condition of employment, a right of review of such a decision by a review tribunal, and established tribunals to perform this function. It is necessary to go to the s.38 Determination to ascertain the scope of the function of the Tribunal. Paragraph 6(3) of the s.38 Determination provides that:

"(3) There shall be established, as required, review boards, whose

function will be to review decisions of the Corporation and

recommend appropriate action."

9. The applicant's amended application for an order of review alleges, amongst other grounds, that "the persons who purported to make the decision (on 21 February 1991) did not have jurisdiction to make the decision". The applicant contends that the Tribunal purported to conduct the review under the applied provisions of sub.s.40(7), but did not have jurisdiction to do so as his probationary appointment had been confirmed before Telecom purported to terminate it. On a directions hearing the question arose whether the Tribunal should be named as a respondent to the proceedings. To save delay and expense the parties sensibly agreed for the purposes of the proceedings that if the applicant established that the Tribunal had acted beyond power, that is outside the functions accorded to it by the Determinations, or if the applicant established procedural unfairness in the making of the decision by the Tribunal such that the Tribunal's decision would be set aside if it were a party, the decision of Telecom, which reflected the Tribunal's decision, should be set aside.

10. As the case of the applicant was presented at trial, each of the grounds relied upon concerned the review hearing before the Tribunal.

11. It is convenient to consider first the submission that the Tribunal lacked power to conduct the review under the applied provisions of s.40 because the applicant's probationary appointment had been confirmed on 16 February 1990.

12. It is common ground that when the applicant was interviewed on 6 September 1989 he was informed that initial appointment would be on probation. The letter advising the applicant of his appointment on 18 September 1989 indicated conditions of employment. In the material part it read:

"As previously discussed at your interview the 'Conditions of

Employment' are as follows:

- 6 months probation, during which your ability to satisfy the job

requirements will be assessed.

- satisfactory Conduct, Diligence and Efficiency Report.

- a satisfactory Commonwealth medical Officers report.

- you must contribute to a superannuation scheme upon

commencement."

13. When the applicant commenced employment on 25 September 1989 he was handed a letter which commenced:

"Dear David,

I am pleased to offer you an appointment on probation as radio

lineman with a commencing salary of $20,537 p.a. Confirmation of

this appointment is subject to your health and physical fitness

being of an acceptable standard as well as a satisfactory

performance on the job. I have enclosed a booklet which sets out

in more detail the conditions of employment. See pages 6-8 for

further information relating to your appointment..."

14. The applicant acknowledged in writing that he had received the offer of appointment, and accepted it. The booklet referred to in the letter is entitled "Conditions of Employment". On page 6, the text under the heading "Appointment" reflects the provisions of s.40 and includes statements that:

"After working for at least 6 months, confirmation of your

appointment may be made...

Telecom Australia may annul an appointment on medical or other

grounds, such as unsatisfactory conduct, at any time during

probation..."

"Commencement as an Officer.

Your period of service as an officer dates from the time you

started work permanently for Telecom Australia, not from the date

of confirmation which is normally at least 6 months later."

16. At the date of the applicant's commencement, arrangements were made for him to be examined by a Commonwealth Medical Officer on 28 November 1989 (the appointment was later changed to 27 November 1989). Although the Conditions of Employment stated in the letter of 18 September 1989, and the "Conditions of Employment" booklet, required the applicant to contribute to a superannuation scheme upon commencement, he did not do so. This was due to oversight, which was recognised by Telecom on or about 5 January 1990. In the meantime, as a result of restructuring of the relevant award the applicant's job title had been changed on about 8 December 1989 to that of Communications Officer, Grade 2. On 5 January 1990 Telecom forwarded him a further offer of appointment on probation which noted that he had commenced on 25 September 1989. The completion by the applicant of the "Reply to Offer" endorsed on that letter was required by Telecom to have the applicant recorded in the superannuation scheme, although the evidence does not disclose whether the applicant at that time was informed of the purpose of the letter.

17. The applicant clearly understood at the time of his appointment that he was on probation and that a satisfactory CDER was required before his appointment as a permanent employee with Telecom would be confirmed. Furthermore, after he commenced his employment, he was aware that his conduct, diligence and efficiency was being assessed. The applicant acknowledged in his evidence, and I so find, that from as early as October 1989 Mr J. McLachlan, the External Plant Manager, was counselling the applicant about perceived difficulties with his work performance. In particular the applicant was informed that his supervisors considered that he had an attitude problem towards them, that he was argumentative with them, that he had difficulty working as a team member, that he required very close supervision, and that he had an unsatisfactory attitude to safety matters. On 14 February 1990 Mr McLachlan discussed with the applicant reports from two of his supervisors and informed him that there were areas where he needed to improve "1. to accept the authority of your supervisor. 2. to win their respect by being a modest lineman and a good worker. 3. think twice before getting involved in heated discussion."

18. It is against this background that on 16 February 1990 the applicant received from Telecom the letter dated 16 February 1990 which in material parts read:

"APPOINTMENT ADVICE

TELEPHONE -----

AREA CODE ----

REFERENCE -----

DATE 16/02/90 Australian Government

Service (AGS) Number: 3912387

To Mr D RODERICK

50 SHANDON AVE

SEATON

SA 5023

I am pleased to advise that you have been appointed as a permanent

officer of the AUSTRALIAN TELECOMMUNICATIONS CORPORATION. All

details relating to your Appointment are outlined below:

---------------------------------------------------------

APPOINTMENT DETAILS

APPOINTED AS: COMMUNICATIONS OFFICER GRADE 2

DATE OF PERMANENT APPOINTMENT 05/01/90

POSITION NUMBER 172510

POSITION STATUS E (E - Established)

(U - Unattached)

EMPLOYMENT STATUS PF (PF - Permanent Full

Time)

(MP - Permanent Part

Time)

DATE OF EFFECT 05/01/90

LOCATION OF APPOINTED POSITION...(details given)

---------------------------------------------------------

If you have just commenced, please note your AGS Number (top RH

corner) as you may need to quote this in relation to any

employment or pay enquiries.

As a permanent officer, you are required to contribute to the

Australian Government Superannuation scheme (minimum 5 percent of

salary). This money will be automatically deducted from your pay

in due course.

If you have any enquiries regarding this advice, please contact

your personnel unit on the above telephone number.

-------------(signature)

(Delegated Officer)"

Some days later the applicant also received from Telecom a letter informing him that his superannuation contributions were in arrears and that deductions would be made to bring them up to date commencing on the pay period ended 15 March 1990. The letter of 16 February 1990 was intended by Telecom to advise the applicant that he had become a member of the superannuation scheme, but this is not clear from the text.

19. The applicant says that he assumed from the letter that his appointment had been confirmed and that he was no longer on probation. He says that the question of his probationary appointment did not arise again until May 1990 when further counselling sessions with Mr McLachlan occurred over difficulties with his work performance. At that time his conduct, diligence and efficiency was considered by his supervisors and Mr McLachlan to be unsatisfactory.

20. In my opinion the letter of 16 February 1990 does not have the effect contended for by the applicant. The applicant knew, prior to receiving that communication, that his appointment was subject to six month's probation and the obtaining by him of a satisfactory CDER. The communication was received by him prior to the expiration of the six month period. Nowhere does it refer to the probationary condition, or say either that it no longer applies or has been fulfilled. In my opinion the letter cannot be construed as a variation of the original Conditions of Employment, or as confirmation of probationary employment according to the Conditions of Employment originally made known to him. The applicant now argues that the statement in the letter that his employment status is "PF" (Permanent Full Time) means that his appointment was no longer subject to the probationary condition. However, as the Conditions of Employment booklet stated, his appointment as a permanent officer dated from the time he started work with Telecom, not from the date of confirmation on fulfilment of the probationary conditions. The "PF" notation does not have the meaning alleged.

21. As a matter of fact I do not accept the applicant's assertion that he believed, when he received the letter of 16 February 1990, that his employment was no longer subject to the probationary conditions. Only two days before receipt of the letter he had been informed by Mr McLachlan that his work performance was perceived to be unsatisfactory. He also knew that the six month probationary period which applied to him had not expired. Even if he did not understand the letter to be one relating only to the superannuation requirements of his employment, however he read the letter, he must have remained, at the least, uncertain about his position.

22. The applicant was appointed on a six month probationary condition, and subject to the requirement of a satisfactory CDER. At 16 February 1990 neither of those conditions had been fulfilled, and the condition requiring a satisfactory CDER was never fulfilled. The contractual position between the parties remained from beginning to end one of probationary permanent appointment. Even if the applicant in February 1990 genuinely believed that his probationary appointment had been confirmed, that belief could not alter the true position. The terms and conditions of his employment applied by s.40 continued to operate after 16 February 1990. The termination of employment on 2 November 1990 by Telecom was effected under the applied provision of para 40(4)(b). It was pursuant to the applied provision of sub.s.40(7) that the applicant was entitled to have the decision of Telecom reviewed by the Tribunal. The Tribunal in hearing the review was exercising the function bestowed on it by the Telecom Determinations. The applicant's submission to the contrary fails.

23. A further submission was briefly raised by counsel for the applicant concerning the jurisdiction of the Tribunal. He argued that if the Court perceived that the Tribunal embarked on an enquiry as to whether or not the applicant's appointment was still probationary, the Tribunal had no power to do so. It is clear that the Tribunal did embark on such an enquiry. Telecom informed the Tribunal that the applicant asserted that his appointment had been confirmed, and expressed Telecom's reasons for holding the contrary view. The applicant contended before the Tribunal that his appointment had been confirmed. The evidence from the two Tribunal members who were called as witnesses in this Court, the chairman, Mr R.D. Oaten, and Mr D.P. Cox, was that the Tribunal considered this question, and concluded that the applicant was still on probation.

24. I reject the submission that the Tribunal exceeded its powers by undertaking this enquiry, and by determining the issue. Telecom presented its case to the Tribunal on the premise that the review concerned the termination of a probationary appointment pursuant to the applied provisions of s.40. Consistently with the primary submission of the applicant, if the confirmation of a probationary appointment would deprive the Tribunal of power to conduct a review under the applied provision of sub.s.40(7), the question of whether the applicant's appointment remained probationary, or had been confirmed, was a jurisdictional fact which, as a matter of necessary inference, the Tribunal had authority to determine. However I doubt whether the jurisdiction of the Tribunal under the applied provisions of sub.s.40(7) is confined to cases where the Tribunal determines that the appointment of the employee remained probationary. I think the better view is that the jurisdiction of the Tribunal extends to a case where Telecom purports to act under the applied provisions of s.40 to terminate the appointment of a permanent employee. If the parties were in dispute as to the probationary status of the appointee, the resolution of that question would go not to jurisdiction but to the validity of the termination of the appointment, and therefore to the merits.

25. The remaining grounds advanced by the applicant allege procedural unfairness. It is contended, firstly, that procedural unfairness occurred in the hearing because the applicant was refused the opportunity to be present when the Tribunal obtained evidence from the supervisors whose opinions about his work performance he disputed, and was refused the opportunity to cross-examine them. In support of this contention counsel for the applicant contends that the Court should find that there were clear and specific requests by the applicant, firstly, that he be present when the evidence from the supervisors was received, and secondly, that he be permitted to cross-examine them. In the second of his affidavits filed in support of the application to this Court, the applicant deposed that at the Tribunal hearing:

"63. The Board listened to me and commended me for my preparation

of the documents I supplied to them. They indicated that

they would let me go and then they would call in the

supervisors whose reports they already had before them in

writing. They said that this would be done at a later date.

64. I was not advised as to when they were going to do this.

65. I told the Board, that I wanted to be present when the

supervisors were giving their evidence. However, I was told

that I would not be able to be present when the supervisors

were giving their stories. Despite me bringing to their

attention that I would be unable to cross examine them, the

Board nonetheless continued to take their evidence without

me being present."

26. In his oral evidence however the applicant, in chief, said that he asked the Tribunal if he would be given the opportunity to hear what the supervisors said. When asked by his counsel what response he got from the Tribunal he answered (p 61):

"I actually didn't - I got a reply but I didn't get the - I asked

to be there but I wasn't allowed - I did not respond to it. I had

no offer at any time to respond to any further meetings."

27. In cross-examination it was suggested to the applicant that he did not ask the Tribunal to be present when the supervisors were interviewed. He answered (p 224):

"I mentioned to the Board, the three Board members, that if you

are bringing the other members back for further evidence, I

requested to be there. And that's - it mightn't have been said in

the actual context of my affidavit, in the actual words, but it

was clearly mentioned quite strongly and clearly, I particularly

emphasised the fact that I wanted to be present if any other

members going back (sic)."

28. Mr Oaten however says that at the conclusion of the oral presentation made by the applicant to the Tribunal the applicant was told that the allegations that he made would be enquired into and that the supervisors would either come in before the Tribunal in person or be contacted by conference telephone, but he denied that the applicant made any request either to be present when that was done or to cross-examine. Mr Cox had no recollection of such a request by the applicant, although he could not deny that one may have been made.

29. In the light of this evidence I find that the topic of cross-examining the supervisors was not raised by the applicant with the Tribunal. Generally I prefer the evidence of Mr Oaten to that of the applicant, but on the question whether the applicant asked to be present when the supervisors were interviewed, I think it is probable that the applicant did enquire if he would be in attendance when this happened, and was told that he would not. I think it is improbable that the applicant pursued the matter any further with the Tribunal or that he made a specific request to be present, and it is for this reason understandable that Mr Oaten has no recollection of the applicant raising the topic with him.

30. The question which arises is whether procedural fairness was denied to the applicant because the Tribunal failed to offer him the opportunity to be present when the evidence from the supervisors, and as it now transpires, from referees nominated by the applicant, was received by the Tribunal, and because he was not offered an opportunity to cross-examine those people even though he had made no specific request to do so.

31. In Kioa and Others v West and Another [1985] HCA 81; (1985) 159 CLR 550 at 584-585 Mason J. (as he then was) said:

"The law has now developed to a point where it may be accepted

that there is a common law duty to act fairly, in the sense of

according procedural fairness, in the making of administrative

decisions which affect rights, interests and legitimate

expectations, subject only to the clear manifestation of a

contrary statutory intention...

Where the decision in question is one for which provision is made

by statute, the application and content of the doctrine of natural

justice or the duty to act fairly depends to a large extent on the

construction of the statute. In Mobil Oil Australia Pty. Ltd. v

Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at pp 503-504,

Kitto J. pointed out that the obligation to give a fair

opportunity to parties in controversy to correct or contradict

statements prejudicial to their view depends on 'the particular

statutory framework'. What is appropriate in terms of natural

justice depends on the circumstances of the case and they will

include, inter alia, the nature of the inquiry, the subject-matter,

and the rules under which the decision-maker is acting:

Reg. v Commonwealth Conciliation and Arbitration Commission; Ex

parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National

Companies and Securities Commission v News Corporation Ltd.

[1984] HCA 29; (1984) 156 CLR 296, at pp 311, 319-321.

In this respect the expression 'procedural fairness' more aptly

conveys the notion of a flexible obligation to adopt fair

procedures which are appropriate and adapted to the circumstances

of the particular case. The statutory power must be exercised

fairly, i.e., in accordance with procedures that are fair to the

individual considered in the light of the statutory requirements,

the interests of the individual and the interests and purposes,

whether public or private, which the statute seeks to advance or

protect or permits to be taken into account as legitimate

considerations: cf. Salemi v Mackellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396

at 451, per Jacobs J."

32. In the present case the decision of the Tribunal is not one for which provision is made directly by statute. The Tribunal, since 1 July 1989, is a body created by Determination made under s.85 of the Australian Telecommunications Corporation Act 1989, and the decision in question was one made pursuant to the terms and conditions of the applicant's employment, those terms and conditions being ones established by an instrument made under the Australian Telecommunications Corporation Act, namely by the s.85 Determination: see Chittick v Ackland [1984] FCA 29; (1984) 1 FCR 254 at pp 262-264, and the reasons for judgment delivered in this matter on the objection to competency. The combined effect of the s.85 Determination and the earlier s.38 Determination is to apply to permanent employees engaged by Telecom after the commencement of the Australian Telecommunications Corporation Act the terms and conditions of employment which were applicable to an officer of the Australian Telecommunications Commission Service under the Telecommunications Act 1975 immediately before 30 June 1989. In these circumstances the requirements of the obligation to act fairly should be ascertained by treating the scheme imposed by the terms and conditions of employment as if that scheme were imposed by statute. The statements of principle by Mason J. in Kioa v West, set out above, are therefore directly applicable.

33. The Tribunal is constituted by an independent chairman, who is not a legal practitioner, and two employees of Telecom, one nominated by Telecom and the other by the relevant staff organisation prescribed under clause 36 of the General Conditions of Employment Award. The Tribunal is not required to hold formal hearings. It is not bound by the rules of evidence. There is no general rule that in a hearing before a Tribunal a person affected necessarily has a right to cross-examine witnesses: see National Companies and Securities Commission v News Corporation Limited and Others [1984] HCA 29; (1984-1985) 156 CLR 296; O'Rourke v Miller [1985] HCA 24; (1984-1985) 156 CLR 342 at 353 per Gibbs C.J. Whether procedural fairness in a particular case requires that a party affected be given the right to be present to hear evidence against his case, and to cross-examine, will depend on all the circumstances. The principles of procedural fairness "have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power": Kioa v West at 612 per Brennan J. The provision of an adequate opportunity to reply to the case sought to be made against a party will include the opportunity to challenge or contradict material advanced against that party. In City of Brighton v Selpam Pty Ltd [1987] VicRp 5; (1987) VR 54, where the question was whether a planning appeal board had failed to accord natural justice to a party by refusing the right to cross-examine an expert witness, Vincent J. at p 59 observed:

"However, what may be regarded as an adequate opportunity in any

given case must be dependent upon a whole range of factors. These

would include consideration of such matters as the nature of the

dispute and the tribunal before which it arises, the character of

the evidence or material involved, the manner in which the

material has been adduced before the tribunal, the way in which

the tribunal has endeavoured to inform itself, the significance of

the evidence or material in the determination of the dispute, and

of course, the status of the body before which the dispute has

arisen as an expert tribunal. It may well be appropriate at this

level to distinguish in some cases between material advanced to

establish relevant facts and that which is presented in support of

an argument directed to the exercise of discretion or judgment,

particularly when the matter arises before an expert body."

34. It is necessary therefore to turn to the circumstances of the present case in more detail. On 14 February 1990 when the applicant was counselled about his work performance by Mr McLachlan he says he was informed that bad reports had been received from his supervisors. He asked if he could see them and Mr McLachlan refused to show them to him, saying "Look, I don't want to show you these reports because they will create upheaval". That evidence is not disputed. However the applicant concedes that he was informed orally of the substance of the reports which was similar to complaints which had earlier been discussed informally with him by Mr McLachlan. On 24 May 1990 Mr McLachlan again formally counselled the applicant. Additional unsatisfactory work reports had been received from supervisors, and on this occasion all the reports, including those which had been in the possession of Mr McLachlan in February 1990, were made available to the applicant. The applicant went through the reports and expressed his disagreement with many of the opinions expressed about him. On that occasion an incident which was said to give rise to a safety issue which had occurred at Parachilna earlier that month was a major topic for discussion. The applicant's supervisor at the time, and another employee, had reported that whilst two of the team were working up a mast fixing a parabolic dish, the applicant had walked away from the mast, and made a private telephone call from inside a site hut.

35. When on 12 September 1990 the June termination of the applicant's employment was revoked further reports were called for from his supervisors. The applicant had continued to work with Telecom after the June termination as that decision was subject to review. On 26 September 1990 the applicant was interviewed by Mr K.W. Allison, the Superintending Engineer, and Mr K. Francis, the Construction Manager. The purpose of the meeting was to discuss with the applicant the supervisors' reports. Prior to the meeting all the reports had been provided to the applicant. At the meeting the applicant sought, and was granted, the opportunity to answer each of the reports. He said his superiors, Messrs Allison and Francis, had heard only one side of the story. The applicant gave his side at considerable length. The Parachilna incident in particular was discussed. The applicant did not dispute that he had walked away from the tower to make a telephone call whilst two men were still working on it. His contention was that in the circumstances his actions gave rise to no safety issue. He complained that he had not been shown written supervisors' reports by Mr McLachlan when he was counselled on 14 February 1990. On matters relating to his attitude he complained that his supervisors had not given him a "fair go" that their reports had been "rigged", that is made in collusion, and that he was being victimised. By that stage there were reports from different supervisors who had been in charge of the applicant at seven separate work sites. At the conclusion of the interview Mr Allison informed the applicant that he would not make a decision on the spot. The applicant had made assertions, and Mr Allison "needed to check them out".

36. Following the letter of 2 November 1990 which terminated his employment, the applicant sought a review by the Tribunal. On 13 November 1990 the Tribunal wrote informing him of the procedure which the Tribunal would follow. The letter advised that the Tribunal had written to Telecom seeking a statement of its reasons for the decision to terminate the applicant's employment, a copy of which was to be supplied to the applicant. The applicant was invited, after he received Telecom's statement, to submit a written supporting statement in relation to Telecom's comments and claims. The applicant was informed that the Tribunal would invite him to attend for an oral hearing, and that:

"This hearing is a further opportunity for you to present to the

Board any information you wish and for the Board to ask questions

before reaching their recommendation. The decision will be quite

informal and you may be assured that the members of the Board will

give you every assistance in putting your side of the matter forward."

37. By letter dated 27 November 1990 Telecom provided the Tribunal with its reasons for terminating the applicant's employment. The lengthy letter was under the hand of Mr Allison. The statement of reasons disclosed that Telecom treated the applicant as a permanent employee whose appointment was still probationary, a fact which the applicant disputed. The reason given for the termination was the applicant's continuing poor conduct, diligence and efficiency. All the supervisors' reports upon which this conclusion was reached were annexed to the letter to the Tribunal. The letter included the following paragraph:

"OTHER MATTERS

Mr Roderick has submitted claims for workers' compensation for

injuries or illnesses allegedly sustained at work or while

travelling to or from work. This was not considered to be a

factor which should be cause for his appointment to be annulled.

It was considered however, that the nature of the conditions

concerned were not mitigating factors which might be cause for not

annulling his appointment."

38. The supervisors' reports which accompanied the letter to the Tribunal included a brief statement from a supervisor about an incident when the applicant struck his left elbow whilst descending from a mast on 9 July 1990. Otherwise the papers included no information about workers' compensation claims.

39. The meeting between the applicant and Messrs Allison and Francis on 26 September 1990 had been recorded, and an audio cassette of that meeting was provided to the Tribunal.

40. The hearing before the Tribunal commenced on 12 February 1991. The applicant was invited to address the Tribunal orally. He took with him copies of all the supervisors' reports and other documents from Telecom which he considered to be relevant, including the letter of 16 February 1990. He gave a separate copy of all these papers to each member of the Tribunal. Over the following five hours he went through all the reports and disputed those parts of them with which he did not agree. At the applicant's request the Tribunal heard the audio cassette of the meeting on 26 September 1991, and by this process the Tribunal would have at least twice heard the applicant's contentions.

41. Again the incident at Parachilna assumed particular importance. The applicant explained his reasons for believing no safety issue was involved. He did not dispute the objective facts which had been reported by the supervisors. What he disputed was the assertion that the facts gave rise to a safety issue.

42. The applicant was given an unrestricted opportunity to say whatever he wished to say in support of his case. At the end of approximately five hours the Tribunal said to him "Mr Roderick we are happy to go on as long as you want, is there anything else?" and the applicant replied "I think I have finished my case, I've said what I want to say". It was at this point that the Tribunal indicated that it would contact the supervisors whose reports were before it. The Tribunal did so on subsequent days, and also contacted two referees who had been nominated by the applicant. I accept the evidence of Mr Cox that the information gathered by the Tribunal from the persons contacted raised no material allegation against Mr Roderick which had not appeared in the supervisors' written reports. The contrary is not suggested by the applicant's case. The members of the Tribunal then discussed the material which they had received. Members expressed their individual views, and arrived at a unanimous decision. The conclusions reached by Messrs Oaten and Cox are set out in affidavit material in these proceedings. I accept that evidence. It is sufficient to say that each of them was of opinion that the supervisors had not acted in collusion, and that the applicant's conduct, diligence and efficiency over a long period had been unsatisfactory, and that a safety issue had been involved at Parachilna.

43. The decision reached by the Tribunal was based on the material contained in the supervisors' reports which was fully known to the applicant and which he had comprehensively canvassed. Whether the Parachilna incident gave rise to a safety issue, and whether events at other work sites which had been the subject of discussion bore out complaints by the supervisors that the applicant was argumentative, had difficulty working as a team member, and required close supervision, involved matters of degree and judgment in respect of which the Tribunal members were entitled to bring to bear their own knowledge of Telecom work practices.

44. The procedure followed by the Tribunal ensured that the applicant was fully aware of the allegations about his work performance being made against him and of the issues upon which the decision would be based. He was given a generous opportunity to answer the case against him and to present whatever information he wished in support of his own case. Viewed in its entirety I do not consider the procedure followed by the Tribunal lacked fairness because the applicant was not present to hear the supervisors' evidence, or to cross-examine. Had some new allegation relevant to the case against the applicant arisen when the supervisors were contacted, fairness would have required that the new matter be made known to the applicant so that he had the opportunity to answer it. However that was not the case.

45. The applicant further contends that there was a want of procedural fairness arising from the fact that on 14 February 1990 Mr McLachlan did not show him the supervisors' reports, two in number, which were said to be unsatisfactory. It is argued that because he was not shown the reports he was deprived of an opportunity to remedy the unsatisfactory aspects of his behaviour. The reports were however made available to the applicant in May 1990 and were fully addressed by him both before Mr Allison on 26 September 1990 and before the Tribunal. In my opinion no procedural unfairness in the making of the decisions either by Mr Allison or by the Tribunal arose from the initial failure to make the supervisors' reports available. At the decision making stage the reports were before the applicant and he had the opportunity to respond. In any event, the applicant concedes that the substance of the complaints was made known to him in February 1990, and further, that even from October 1989 when similar complaints were first raised with him, he was making a conscientious effort to improve. At the most from the applicant's viewpoint, the initial failure to disclose the reports could go to the merits of his dismissal. Had the nature of the complaints been withheld from him there would be ground for him to argue that he should not be dismissed for unsatisfactory performance until the complaints were made known to him and he had the opportunity to reform. The Tribunal was critical of Telecom for initially withholding the reports, but nevertheless, on the merits, reached the decision which it did.

46. Another submission made on the applicant's behalf is that procedural unfairness was occasioned by Telecom's letter to the Tribunal dated 27 November 1990 which expressed its reasons for terminating the applicant's employment. It is contended that the letter, by its terms, set out to influence the Tribunal against the applicant. I am unable to detect anything unfair about the letter of 27 November 1990. It put forward the claims of Telecom, and clearly explained the basis upon which the decision had been reached. It quite fairly brought to the attention of the Tribunal the applicant's assertion that he was not a probationary appointee, and it annexed all the supervisors' reports upon which Telecom's decision was based. The letter was immediately made available to the applicant and he was given a full opportunity to respond to any aspect of the letter with which he disagreed.

47. The final topic raised by the applicant which is said to give rise to procedural unfairness concerns an investigation which a branch of Telecom made into three allegations of criminal behaviour by the applicant. The full extent of these investigations did not become known to the applicant until the trial of the application in this Court when a confidential file from Telecom Protective Services was produced by direction of the Court. However the applicant was aware in late 1990 of a suggestion that he had not made a full disclosure of prior compensation claims when he applied for employment with Telecom. Further after the Tribunal's decision, early in March 1991, he was served with an information for an indictable offence and summonsed thereon charging him with obtaining a benefit by an untrue representation contrary to s.29B of the Crimes Act 1914. The information was sworn by a Telecom officer on 21 February 1991, the day the Tribunal handed down its decision. The offence was alleged to involve the applicant's failure to disclose prior compensation claims when he applied for employment. The charge was later withdrawn when more investigation showed the probability that adequate disclosure had been made. The Telecom Protective Services file however disclosed that investigations had been made into two other matters as well, namely an allegation that the applicant had not injured his left elbow whilst descending the ladder on 9 July 1991 as he alleged, but that he suffered the injury some time before in a domestic fight, and that he had improperly gained access to Telecom records of silent telephone numbers.

48. The evidence, such as it is on the topic, suggests that Mr Allison in September 1990 was unaware of these investigations. Certainly there is no suggestion that he took any of these matters into account in reaching his decision conveyed by his letter of 2 November 1990 to terminate the applicant's employment. More importantly, it is clear on the evidence before this Court that the Telecom Protective Services file and the information therein was unknown to members of the Tribunal when the Tribunal reached its decision.

49. In his evidence before this Court the applicant at first said that the question of the non-disclosure of his worker's compensation history was raised by the Tribunal at the hearing on 12 February 1991. However he later modified his evidence, and it became clear that the topic was not raised with him on that occasion, but was first mentioned in the course of a discussion which he had with Mr Oaten in March 1991, after the decision was delivered. I accept Mr Oaten's evidence about that discussion. When the Tribunal contacted the supervisor Mr Walker he mentioned that it appeared that the applicant had suffered a workers' compensation claim which he had not disclosed to Telecom in the application for employment. Mr Oaten said that although Mr Walker mentioned the matter, it was not pursued as it was not part of Telecom's case. Mr Oaten instructed the Tribunal to disregard that information for the reason that it was not part of Telecom's case, and it played no part in the Tribunal's deliberations. After the Tribunal gave its decision, the applicant contacted Mr Oaten seeking information. In the course of their discussion Mr Oaten informed him that the Tribunal had not heard any evidence from the supervisors which differed from that contained in their written reports, and the only other thing that had surfaced was the workman's compensation matter which he had instructed the Tribunal to reject because it did not form part of Telecom's case as set out in Telecom's letter of 27 November 1990. It will be remembered that Telecom expressly disclaimed any reliance upon claims suffered by the applicant in the course of his employment. That is a different issue, but the fact remains that the Tribunal treated the statement by Mr Walker as irrelevant and disregarded it. In the circumstances no procedural unfairness occurred through the Tribunal's failure to bring that information to the applicant's attention before the delivery of its decision. For completeness, I record that there is no suggestion that the Tribunal or any one of its members was aware either of the allegation of a false claim of injury on 9 July 1990, or of the allegation of improper access to silent numbers.

50. It is further submitted that even if these allegations played no part in the decision making process, before a decision was made by Telecom or by the Tribunal, the applicant should have been made aware of the fact that he was subject to an investigation by Telecom Protective Services, and he should have been supplied with copies of statements obtained by a Telecom investigator from Mr McLachlan and three of the supervisors who had submitted reports on his work performance. The investigator had interviewed Messrs Hunt and Sladden about the alleged injury on 9 July 1990, and Messrs McLachlan and Walker were interviewed about the information disclosed by the applicant when he was interviewed on his application for employment. These were matters unrelated to the topics covered in the CDER's prepared by the supervisors, and were unrelated to the matters relied on by Telecom as justifying the dismissal of the applicant. In my opinion Telecom was under no obligation to make available those statements to the applicant at any time prior to the Tribunal's decision. It is also submitted that the statements taken by the investigation should have been produced to the Tribunal. I reject this submission. The statements relate to matters unconnected with the dismissal of the applicant. The production of them to the Tribunal would have confused the real issue, and created a risk of unfair prejudice to the applicant.

51. In my opinion the applicant has failed to establish any procedural unfairness relating to the decision of the Tribunal, which decision is reflected in the confirmation on 21 February 1991 of the termination of his employment. The application for an order of review will be dismissed.

Decisions (Judicial Review) Act 1977

Telecommunications Corporation Act 1989

Re David James Roderick v Australian Telecommunications Corporation [1992] FCA 20; (1992) 27 ALD 192 (Extract) (3 February 1992)

Re David James Roderick v Australian Telecommunications Corporation [1992] FCA 20;

At a glance

Court

Decision date

Before

Source

Judgment (71 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)

Re David James Roderick v Australian Telecommunications Corporation [1992] FCA 20; (1992) 27 ALD 192 (Extract) (3 February 1992)