Schoeman v Director-General, Department of Attorney-General and Justice

Schoeman v Director-General, Department of Attorney-General and Justice - [2013] NSWIRComm 1018 - NSWIRComm 2013 case summary — Zoe

Facts 4The facts in this matter were largely not in contest; it was the inferences to be drawn from those facts that were at issue. Indeed, as I come to below, counsel for Ms Schoeman submitted at the outset that the whole case could be determined on a question of law. 5Before turning to that, however, the following facts can be adduced from the uncontroverted evidence. It is to be noted that Ms Schoeman herself did not give evidence either by statement or orally. The Appellant's evidentiary case was confined to a medical report from Dr Dowda, to which I refer below. However, a number of documents created by Ms Schoeman were contained in the Respondent's evidentiary material and were admitted without objection. 6Ms Schoeman was permanently employed by the Department from 24 October 1994, on that date being appointed to a position of Typist, General Scale. She had before that worked for the Department since 1992 in a temporary capacity. She was appointed to a range of clerical positions over the subsequent years. 7Ms Schoeman commenced a period of absence from the workplace on 17 July 2007. She made a workers' compensation claim, which was declined, but continued to furnish the Department with medical certificates. 8That absence, and that claim, was in respect of an injury said by her doctor ultimately to manifest in 'stress, adjustment disorder with anxious mood.' I refer to this injury hereafter as Ms Schoeman's psychological injury. 9Following this Ms Schoeman lodged a grievance alleging bullying and corrupt conduct by named senior Departmental officers. This grievance was investigated by the Department and was held to have no substance. 10From 5 May 2008, Ms Schoeman presented Workcover certificates providing that she was fit to work save that she could not work in the Crime Prevention Division or the building in which it is located. 11Certificates in those terms continued to be furnished covering a period up to 31 December 2009. 12Ms Schoeman returned to work in July 2008 in a location other than the Crime Prevention Division. She did not again after that date work in the Crime Prevention Division or in that building. 13That was consistent with an assessment of her injury carried out at the instigation of the Department by Health Services Australia in the person of Dr Dowda. In a report provided to the Department on 6 August 2009, Dr Dowda stated that Ms Schoeman was medically fit, indeed 'fully fit to carry on working productively' in her substantive position or another position, but that 'unresolved interpersonal/human resources issues' meant that she could not physically work in the Crime Prevention Division ('CPD') where she had previously worked, as that would result in an exacerbation of her psychological injury. 14Ms Schoeman was provided with alternative duties in other locations while remaining held against her substantive position. Dr Dowda advised in his report that he encouraged that Ms Schoeman remain working in the Crown Solicitor's Office, where she was located on a temporary basis at the time of his assessment of her, 'in order to ensure her continued health and wellbeing' and given that workplace's evident satisfaction with her work. 15She was not, however, permanently placed in that position. She did continue to work for the Department in positions at her grade. 16On and from June 2010, Ms Schoeman furnished certificates expressing her to be fit only for suitable duties (and at times unfit for duty at all) for reason of tendonitis caused by repetitive typing. While this injury is said to have begun to manifest in 2003, it is an entirely different injury to the psychological injury which caused her absence from 2007 to 2008 and in respect of which she continued to furnish certificates providing that she was fit, save, as noted, that she could not work in the CPD or the building in which it was housed. 17The Department had not sought to locate Ms Schoeman in that unit or that building since receipt of Dr Dowda's report in August 2009. Indeed, the Director-General told Ms Schoeman in writing on 3 May 2012 'Based on the medical advice provided by Dr Dowda on 6 August 2009, there is no intention to return you to work at Crime prevention Division'. While that was given to Ms Schoeman in writing only in May 2012, it is evident that that was a limitation already accepted by the Department, apparently from 2009. 18Ms Schoeman returned to work, after an absence due to her wrist injuries, in March 2011, pursuant to a return-to-work programme concerned with her wrist injuries, not her psychological injury. 19On the Department's evidence, after Ms Schoeman's return to work in 2011, 'HR Branch' determined that an 'up-to-date independent medical assessment should be sought regarding her psychological condition.' That was, as it emerged, to be a psychiatric assessment. 20The process by which 'HR Branch' came to the view that such an assessment was required was not put in evidence or explained. 21However, on 15 December 2011, Ms Jane Dunn, Manager Personnel Services, wrote to Ms Schoeman saying that the Department 'would like to obtain more recent medical advice regarding the condition of adjustment disorder with anxious mood to better assist with identifying suitable duties and provide support to you in the workplace.' 22It is noteworthy, in the light of the later absolute determination on the part of the Department that Ms Schoeman undertake this psychiatric assessment, which ultimately led it to dismiss her for refusing to take part in the assessment, that the Department's intent throughout was said to be to assist Ms Schoeman with placement and provide support to her. 23On 29 December 2011 Ms Dunn again wrote to Ms Schoeman telling her that a referral to Medibank Health Solutions was being arranged 'to obtain advice on your fitness for duty with the department'. Again, the fitness in question was said to be psychiatric fitness, as the referral was to be, as it emerged, to a psychiatrist. 24At this time Ms Schoeman had been determined by Dr Dowda to be fully fit for work, save that she should not be required to work in the CPD again. Ms Schoeman did, however, at that time have ongoing restrictions on her work due to her wrist injuries. 25The Department asserted in later correspondence that Ms Schoeman had been advised on 4 January 2012 that the Department had arranged a psychiatric assessment for 3 February 2012. No evidence of that communication was advanced by the Department. 26On 11 January 2012 Ms Schoeman replied to Ms Dunn's letter of 29 December 2011. She advised that she would not be attending the medical appointment. She stated that that was for a number of reasons, including that, on the basis of Dr Dowda's report, it was not medical reasons but unresolved human resources issues that prevented her returning to the CPD. She did not refer in that letter to any communication to her on 4 January 2012. 27On or about 23 January 2012 Ms Dunn wrote to the Director-General advising him that Ms Schoeman had indicated she would not attend the medical appointment, and recommended that if she did not, the matter be reviewed with the possibility of initiating disciplinary action. In that memo Ms Dunn advised the Director-General that 'Clause 17(2) of the Public Sector Employment and Management (General) Regulation provides that the Department Head may direct a member of staff to submit to a medical examination'. Although it does not identify it in terms, the reference to 'Clause 17(2)' indicates that it is the 1996 Regulation to which Ms Dunn refers. At the time of this letter that Regulation had been repealed for more than two years. 28I return to the Regulations below, but I here note that the paraphrase of the Regulation in Ms Dunn's letter to the director-General is incomplete in one important aspect, in that it does not state the necessary precondition to such a direction under the Regulation. That precondition was that the Director-General, before issuing such a direction, must first form a view that the employee concerned was not fit for work. 29On the facts of this matter, that was at no time a view formed, or able to be formed, by the Director-General. 30The Director-General approved Ms Dunn's recommendation. 31On 23 January 2012 the Director-General wrote to Ms Schoeman. He referred to her correspondence of 11 January 2012. He advised her that a medical appointment had been made to see a psychiatrist and said: 'In accordance with Clause 17(2) of the Public Sector Management (sic) (General) Regulation 1996, I formally direct you to attend a medical assessment at the following time, date and location. Details then followed. 32The Director-General went on to say 'Failure to adhere to this direction may result in disciplinary action being initiated in accordance with the Public Sector Employment and Management Act 2002.' 33As has been noted above, the Regulation to which the Director-General referred in formally issuing his direction to Ms Schoeman had been repealed. 34On 1 February 2012 Ms Schoeman wrote to the Director -General. She stated that she would not be attending the appointment. She further stated: 'You have no basis and indeed no legal basis on which to formally direct/force me to attend your medical assessment.' She went on to say 'your decision is undoubtedly because of the fact that I reported corruption and corrupt conduct in 2007, which you ultimately covered up.' 35On 2 March 2012 the Director-General wrote to Ms Schoeman. Having referred to Ms Schoeman's assertion that there was no medical or legal basis for the assessment, the Director-General stated: 'Clause 13(2) of the Public Sector Employment and Management (General) Regulation provides that the Department Head may direct a member of staff to submit to a medical examination. The Department of Premier and Cabinet Circular C2011-23 Section 5.1 also states that employees are required to comply with an agency's direction to attend and participate in a medical assessment.' 36The Director-General went on to direct Ms Schoeman in the following terms: 'In accordance with clause 13(2) of the Public Sector Management (sic) (General) Regulation 1996, I formally direct you to attend a medical assessment.' The date, time and place are then given; it is a medical assessment with a psychiatrist. 37The Director-General went on to say 'Failure to adhere to this direction will result in disciplinary action being initiated in accordance with the Public Sector Employment and Management Act 2002.' 38The letter makes no reference to any annexures. However, in the Department's evidence a copy of a page said to be from the Premier and Cabinet Policy is presented as an attachment to the letter. So is a copy of Clause 13 of the 2009 Regulation, curiously in light of the fact that the letter expressly refers to the 1996 Regulation. 39On 13 March 2012, Ms Schoeman commenced alternate duties as a Court Officer at Parramatta Local Court, as a further part of a return-to-work programme in relation to her wrist injuries.. 40On 12 April 2012 Ms Schoeman wrote to the Director-General. 41She repeated her earlier assertion that there was no medical or legal basis on which she could be directed to an assessment. She stated that if she were relocated to a permanent position outside the CPD, the matter would be finalised. 42She then went on to address what she saw as considerations that may have influenced the Director-General in his direction to her to attend a medical assessment. Amongst those she set out allegations of corruption, including secret payments she said had been made to a Ms Massara by a Mr Thomas, and deliberate refusal to investigate these properly by the Director-General. She went on to say to the Director-General 'I neither trust you, nor many of your senior departmental officers, particularly in the HR Branch.' She also said that she believed that the Director-General and senior officers instituted an investigation 'deliberately to cover up all the wrongdoing by Brendan Thomas and Rosa Massara.' She went on to say that she would not be attending the medical assessment and that the Director-General's insistence on it 'may constitute a form of bullying and harassment.' 43On 2 May 2012 the Director-General again wrote to Ms Schoeman. 44He began that letter by stating that he wished to clarify some issues 'as thee may be some misunderstanding of the Department's basis and rationale for the medical referral.' He went on to say that the Department had both a medical and legal basis for seeking the referral. 45As noted above, In addressing those matters he stated that, based on Dr Dowda's report, 'there is no intention to return you to work at Crime Prevention Division.' 46As to the medical basis of the referral, the Director-General stated that the purpose of obtaining a further assessment is to use the information obtained 'in conjunction with medical advice provided in respect of your RSI injury, to assist in supporting you in the workplace.' 47The Director-General then went on to identify the legal basis for the referral. He stated: 'In regards to a legal basis for the referral, Clause 13(2) of the Public Sector Employment and Management (General) Regulation 2009 provides that the Department Head may direct a member of staff to submit to a medical examination. The Department of Premier and Cabinet Circular C2011-23 Section 5.1 also states that employees are required to comply with an agency's direction to attend and participate in a medical assessment.' 48The Director-General then said 'I therefore provide you with a further opportunity to accept the Department's validity in referring you for a medical assessment. you are required to contact Mr Kevin Mullins, Senior HR Advisor.' whose contact details are then given. The Director-General then said 'If you could please advise of your confirmation to attend a medical assessment by Friday 18 May 2012.' 49It must be observed that the Regulation called in aid by the Director-General, although this time not a repealed regulation, does not provide any basis for referring a person for medical assessment where the purpose of that assessment is to use the information to help support an employee in the workplace, which the Director-General stated was the purpose of the referral. The Regulation does not allow the Director General to direct a person to attend a medical assessment for that purpose, but only in circumstances where the Director-General has formed the view that a staff member is not fit to work. That view was not and could not on the facts have been formed by the Director-General here. 50On 17 May 2012 Ms Schoeman replied to the Director-General. She noted that as there was no intention to return her to CPD, all that was required was to place her somewhere else permanently. She then went to some length to detail what she described as corruption and nepotism within the Department. She repeated that she did not trust the Director-General or many of his senior officers. She said that she would not be going to any medical assessment 'as there is no medical condition'. 51On 7 June 2012 the Director-General approved the initiation of disciplinary action against Ms Schoeman by having a disciplinary investigation carried out by a Ms Woodhouse. Ms Woodhouse carried out that disciplinary investigation without input from Ms Schoeman, because Ms Schoeman declined to be involved in it. 52Ms Woodhouse formed the view that Ms Schoeman had breached the code of conduct by failing to abide by a direction. Ms Woodhouse actually concluded that Ms Schoeman had 'on four occasions failed to comply with a direction and challenged the legitimacy of the Department's authority to direct her, despite being provided with information in this regard.' Ms Woodhouse did not address the fact that even on the Department's case there were not in fact four directions, but three. 53In specifically determining that there had been 'lawful' directions, and further that the Department had provided Ms Schoeman with information on the Department's authority to give the directions, Ms Woodhouse did not remark that the Director-General had purported to rely on a regulation which did not authorise a direction in the particular circumstances of Ms Schoeman's case, and indeed on two occasions had relied on repealed regulations. 54Ms Woodhouse provided her report, with a recommendation that disciplinary action be taken, to the Department on 3 August 2012. 55On 11 December 2012 Ms Jane Ridley, Director, Corporate Services, provided a report to the Director-General which he approved the same day. 56This report purported to be a report on the allegations of misconduct made against Ms Schoeman. It contained, inter alia, the following matters. 57Having stated that Ms Schoeman exhibited 'a continued lack of respect for authority', it held that Ms Schoeman's behaviour in declining to participate in Ms Woodhouse's disciplinary investigation was 'further demonstrable (sic) of her engagement in inappropriate, unprofessional and unacceptable behaviour.' 58It went on to say, in referring (for reasons unclear) to Ms Schoeman's RSI injury, 'discussions with the Department's Health and Safety Services have identified that Ms Schoeman is often uno-operative, evasive in providing requested documentation and on occasions, rude and discourteous to staff'. 59It then went on to say, remembering that it is a report drafted in the first person for the Director-General to adopt and sign, 'I am of the view that Ms Schoeman has demonstrated a continual pattern of disrespect. Ms Schoeman appears to have no comprehension of the basic principles of respect and courtesy, and candidly demonstrates a lack of respect for the authority and legislative processes' and further, that the paragraph of Ms Schoeman's letter of 22 June to the Director-General (in which she said 'There was no failure to adhere to your directions') '...appears to exhibit no remorse or apology for disregarding the reasonable and lawful directions issued to her. Ms Schoeman exhibits a complete lack of respect towards the authority of those providing the directions and legislative parameters under which those directions are issued. Such behaviour represents an issue of concern.' 60It went on further to say 'In general, the evidence presented during the course of the disciplinary investigation, suggests that Ms Schoeman has consistently failed to meet the minimum standards of professional and ethical behaviour expected of Departmental staff...' 61Precisely what breaches of ethics Ms Schoeman had committed, the report, in coming to this conclusion, did not detail. 62The report concluded that a finding of misconduct, with its most severe possible outcome being dismissal, should be made against Ms Schoeman. 63On the same day the Director-General wrote to Ms Schoeman. He stated that he had concluded that Ms Schoeman had engaged in misconduct. 64He stated that the most severe form of discipline that might be imposed was dismissal, but that that was not the final decision. He offered Ms Schoeman the opportunity of an interview with him, and the further ability to make a written submission. 65On 17 December Ms Schoeman replied to the Director-General, making a submission as to why she disagreed with the finding of misconduct. Inter alia, she stated that she believed the Director-General to have 'tainted and brought disgrace' to the role he held. She also included work references stretching between 1994 and 2009. She declined the offer of an interview. 66On 10 January 2013 the Director-General determined to dismiss Ms Schoeman. 67His decision to do so is contained in a 13 page document headed 'Implementation of Final Decision'. 68That report repeated the language of the earlier report presented to the Director-General by Ms Riley and set out above. 69 It repeated, for example, the observation that 'In general, the evidence presented during the course of the disciplinary investigation, suggests that Ms Schoeman has consistently failed to meet the minimum standards of professional and ethical behaviour expected of Departmental staff...' 70It was the Department's express evidence that that comment, and the other comments set out above in the Riley draft report which were repeated in the final report, were matters which the decisionmaker took into account in his final decision. 71The Department's evidence about this matter warrants recording. Ms McGrath, a senior HR officer and the Department's sole witness, give this evidence in response to questions from the Commission: Q. Before you stand down, Ms McGrath, I have a couple of questions after which I'll give both counsel the opportunity to ask if anything directly arises. Ms McGrath, can I ask you to have a look at tab 35 of your affidavit? Tell me when you've got that? A. Yes. Q. That appears to be the final decision made by the Director General? A. Yes, that's correct. Q. Can I ask you to have a look at page 10 of the 13 pages there, do you see that page? Do you see that page? A. Yes. Q. See the last paragraph, 'The investigation is limited to the conclusion Ms Schoeman was engaged inappropriate, unprofessional and unacceptable behaviour in relation to a continued lack of respect for authority and Departmental processes and failure to adhere to all reasonable directions, Ms Schoeman has exhibited insubordinate and obstructive behaviour.' Now am I to understand that what the Director General has written down there is something he took into account informing his decision to dismiss? A. Correct. Q. If we turn over the page, the second last paragraph, 'Ms Schoeman appears to have no comprehension of the basic principles with respect to courtesy and candidly demonstrates a lack of respect for the authority and legislative processes,' that's something he would have taken into account in your understanding? A. Excuse me, Commissioner, which paragraph were you referring? Q. I am very sorry, it's on page 11 of 13 and there's five paragraphs, it's the fourth one I'm looking at, it starts with, 'Based on review of the content,' and the Director General says in the second line there, 'I'm of the view that Ms Schoeman has demonstrated a continual pattern of disrespect of law authority and this is more evident in her written submissions dated 17 December 2012.' So that's a matter that the Director General would take into account informing his decision to dismiss? A. Yes. Q. The next sentence about courtesy and the like and that's also a mater he would have taken into account? A. Yes. Q. All right I understand that, thank you, and turning over the pate to page 12 of 13 the first paragraph and the second paragraph has got some italic quotes in it then there's the third paragraph, 'The abovementioned comments' that's the quote from Ms Schoeman's letter 'appear to exhibit no remorse or apology for disregarding the reasonable and lawful directions,' I understand that to be also something that the Director General took into account? A. Correct. 72Indeed, the Director-General took into account Ms Schoeman's written submissions to him of 17 December 2012, made in the context of the disciplinary process, as further evidence of her misconduct, and as part of his reasoning toward the decision to dismiss, as was very properly conceded by the Department's counsel: transcript, 8 August, p 23 l.43 - p 24 l. 6. 73Such a conclusion was in any event inescapable from the plain words of the final decision, which held: 'Based on a review of the content of Ms Schoeman's correspondence in relation to her referral for medical assessment, I am of the view that Ms Schoeman has demonstrated a continual pattern of disrespect of law authority and this is more evident in her written submissions dated 17 December 2012. Ms Schoeman appears to have no comprehension of the basic principles of respect and courtesy, and candidly demonstrates a lack of respect for the authority (sic) and legislative processes.' (emphasis added) 74Ms Schoeman was given no opportunity to know of or comment upon the fact that the Director-General found in her submissions on penalty, provided after the finding of misconduct, a further basis for a finding of misconduct and a further basis for a determination that she be dismissed. 75It must be noted that the allegations of misconduct against Ms Schoeman were, specifically, that she had refused lawful directions to attend a medical assessment. 76There were no allegations of misconduct against her to the effect that the had breached minimum ethical standards, or failed to comprehend basic principles of respect and courtesy, or demonstrated a continued pattern of disrespect of law and authority, or demonstrated a lack of respect for the authority and legislative processes, or engaged in inappropriate, unprofessional and unacceptable behaviour. Nor did the allegations of misconduct include that in relation to her workers' compensation claim she was 'often unco-operative, evasive in providing requested documentation and on occasions, rude and discourteous to staff'. 77It can properly be said here that a report framed in this way fell well outside the boundaries of the balanced, reasoned and objective assessment process that would properly be expected of a report to a decisionmaker in a process of this kind, both on the basis of the colourful language used and for reason that it chose to include a great deal of prejudicial material, some of it unsourced hearsay, which material fell entirely outside the scope of the actual allegations with which the report purported to deal. 78The Director-General then dismissed Ms Schoeman by a letter dated 10 January 2013 to Ms Schoeman which read, consistently it might be said with the quality of work evident in the reports that led to the dismissal, in the following terms: Final decision - disciplinary investigation I refer to me letter dated 11 December 2012 advising you that she had formed the view that you had engaged in misconduct and that a disciplinary action should be imposed. (sic) I have decided to take the following disciplinary action with effect from the date of this letter: Pursuant to section 46 of the Public Sector Employment and Management Act 2002 you are to be dismissed for the NSW Public Service. (sic) 79Ms McGrath, giving evidence for the Department, confirmed that that was the form in which the letter was on the file and therefore the form in which it should be taken to have been sent. 80Ms Schoeman was dismissed for misconduct, but given two weeks' pay in lieu of notice. 81Ms Schoeman then wrote a letter to the Director-General dated 17 January 2013 in which she said, amongst a number of other comments of a similar flavour, 'I believe you operate deviously, ultimately operate corruptly and ultimately cover up wrongdoing that you become aware of. therefore, as previously mentioned, I believe, you have tainted and brought disgrace to the dignified and honourable role of the Director-General.' 82Ms Schoeman had, before the misconduct found proven in 2012, an unblemished disciplinary record going back to 1992. 83Those are the factual matters that were established by, as I say above, uncontroverted evidence.

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The Commission's powers 84It is helpful to here set out the Commission's powers in a matter of this kind. 85This is, as noted above, an appeal brought pursuant to s.98 of the Act. I note that the appeal was lodged within the 28 days prescribed by subs.100B(2) of the Act. 86The Commission's statutory powers in relation to an appeal of this kind are set out at ss.100C and 100D of the Act, which fall within Division 3 of Part 7, Public Sector Promotion and Disciplinary Appeals, of Chapter 2 of the Act. 87These sections, indeed this Division, were inserted into the Act in 2010. 88.Section 100C provides as follows: 100C Decisions with respect to appeals (1) The Commission, in relation to a promotion appeal, may decide to allow or disallow the appeal. (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 89Section 100D provides: 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: (a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited-order the employer to repay the amount of any such fine or forfeited pay, and (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment. 90It is immediately apparent from the words of subs.100C(2) that an appeal before the Commission is an appeal de novo. That is, the Commission is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decisionmaker: see Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91. 91The Commission may, in relation to a disciplinary appeal, allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. The Commission is therefore not constrained merely to accept or reject the initial decision. It may impose any decision it thinks fit, including a harsher penalty than that which the initial decisionmaker imposed.

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The applicable jurisprudence 92 Division 3 of Part 7 of Chapter 2 of the Act was inserted by Act 54 of 2010. It essentially transfers the jurisdiction formerly exercised by the Government and Related Employees' Appeal Tribunal ('GREAT') into the Act. Indeed, the Explanatory Memorandum to the Bill specifically identified ss.100C and 100D of the Act as being ' substantially the same as sections 48 and 48A, respectively, of the GREAT Act.' 93In the Second Reading Speech (Hansard, Legislative Council, 23 June 2010) it was made clear that the jurisprudence previously exercised by GREAT is not altered by the incorporation of those provisions into the Act. The Second Reading Speech contained the following explanation: The Government recognises that public sector promotional and disciplinary appeals are unique issues, quite distinct from general industrial disputes, and that resolution of these matters requires a tailored approach. For this reason, the bill will not affect the fundamental principles which underpin the existing public sector appeals framework. Nor will it alter the format and style of hearing practices that have been refined over time and which public sector employees, employers and their representatives are familiar with. The bill preserves current hearing processes for both informal and formal appeals under the Government and Related Appeals Tribunal Act and the Transport Appeals Boards Act, while granting the commission sufficient flexibility to make adjustments to suit prevailing operational and administrative requirements. 94It follows that the jurisprudence developed by GREAT pursuant to ss.48 and 48A of the GREAT Act is to be followed by the Commission in exercising its powers under ss.100C and 100D of the Act. 95Counsel for Ms Schoeman submitted that the disciplinary power exercised by the Director-General pursuant to the Regulations is 'protective, not punitive', no doubt invoking that phrase having regard to the way in which disciplinary powers exercised by, for example, the Commissioner for Police have been characterised: Commissioner for Police v Donlan (unreported, Supreme Court of NSW, 8 August 1995). 96That submission is not in my view correct in this case. 97The position with respect to employees employed in junior clerical positions by the Department is quite different to that of a police officer or indeed any public servant charged with holding a public office who may have obligations akin to fiduciary obligations. 98In respect of positions with fiduciary-like obligations and functions the applicable disciplinary system is, as was held in Donlan, protective. There is not, however, to be found within the Regulations - or indeed the Public Sector Employment and Management Act 2002 ('the PSEM Act') in its application to an employee such as Ms Schoeman - any basis for importing a protective jurisdiction of that kind, and a disciplinary sanction imposed on an employee such as Ms Schoeman is simply punitive in nature, not protective of the general public: Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 276, at [106]-[107]. 99Of course, the Commission carries out all its functions in the light of a statutory obligation to have regard to the public interest: Act, s.146(2). The purpose of s.146, however, made evident by the specific references in subs.(2) to the Objects of the Act and the economy of the State, makes it clear that this obligation does not of itself alter the nature of the discipline imposed on an employee of this kind. 100The Commission's view of the matter is to be formed simply on the basis of, first, whether the misconduct said to be the basis for the punishment is made out; and second, if it is, whether the punishment imposed, here dismissal, is appropriate: Duhbihur loc cit.

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The Regulations 110The Director-General purported to rely on certain regulations in giving the directions to Ms Schoeman which are at the centre of the allegation of misconduct. 111Considerable argument in the matter turned on the regulations and it is accordingly necessary here to set out the relevant regulatory provisions. 112Specifically, the Director-General invoked regulations which confer on the Department Head in certain circumstances a power to direct an employee to attend a medical assessment. 113Until 2009, the relevant Regulation was the Public Sector Employment and Management (General) Regulation 1996. ('the 1996 Regulation') 114That Regulation relevantly provides: 17 Health and safety (1) For the purposes of this clause, a member of staff is not fit for work if the health of the member of staff: (a) may render the member of staff a danger to other members of staff or to the public, or (b) is likely to be seriously affected by the staff member's remaining on duty or, if the member of staff is absent from duty, by the staff member's resuming duty. (2) The appropriate Department Head may direct a member of staff to submit to such medical examination or other health assessment as the Department Head may, on the advice of HealthQuest, consider necessary, if the Department Head has reason to believe that the member of staff is not fit for work. (3) If the appropriate Department Head has issued any such direction to a member of staff, the member of staff: (a) must, if on duty, cease duty immediately, and (b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of HealthQuest is first obtained or a certificate is furnished by a medical practitioner that the member of staff is fit for work. (4) If the appropriate Department Head receives a health assessment from HealthQuest that a member of staff: (a) is fit for work, the Department Head is to direct in writing that the member of staff, if absent from duty, must resume duty, or (b) is not fit for work, the Department Head is to direct in writing that the member of staff must cease duty immediately or, if absent from duty, must not resume duty. (5) If a direction has been given to a member of staff under subclause (4), the nature of the leave, if any, to be granted to the member of staff during the absence from duty is to be determined by the appropriate Department Head after consideration of any relevant advice of HealthQuest. (6) A member of staff to whom a direction has been given under subclause (4) (b) must not resume duty unless the appropriate Department Head, on the advice of HealthQuest, approves in writing. (7) The appropriate Department Head is to give the health care professional providing a health assessment of a member of staff under this clause any requested information about the duties of the staff member's position that is reasonably required for the purpose of providing the assessment. 115Although the Director-General invoked the 1996 Regulation in his letter of 23 January 2012, that Regulation had in fact been repealed rather more than two years earlier, on 1 September 2009, and replaced on that date with the Public Sector Employment and Management Regulation 2009. ('the 2009 Regulation') 116The 2009 Regulation reads as follows: 13 Health and safety (1) For the purposes of this clause, a member of staff is not fit for work if the health of the member of staff: (a) may render the member of staff a danger to other members of staff or to the public, or (b) is likely to be seriously affected by the staff member remaining on duty or, if the member of staff is absent from duty, by the staff member resuming duty. (2) If the appropriate Department Head has reason to believe that a member of staff is not fit for work, he or she may direct the member of staff to submit to such medical examination or other health assessment as the Department Head may, on the advice of a nominated medical assessor, consider necessary. (3) If the appropriate Department Head has issued a direction under subclause (2) to a member of staff, the member of staff: (a) must, if on duty, cease duty immediately, and (b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of a nominated medical assessor is first obtained or a certificate is furnished by a medical practitioner that the member of staff is fit for work. (4) If the appropriate Department Head receives a health assessment from a nominated medical assessor that a member of staff: (a) is fit for work, the Department Head is to direct in writing that the member of staff, if absent from duty, must resume duty, or (b) is not fit for work, the Department Head is to direct in writing that the member of staff must cease duty immediately or, if absent from duty, must not resume duty. (5) If a direction has been given to a member of staff under subclause (4), the nature of the leave, if any, to be granted to the member of staff during the absence from duty is to be determined by the appropriate Department Head after consideration of any relevant advice of the nominated medical assessor. (6) A member of staff to whom a direction has been given under subclause (4) (b) must not resume duty unless the appropriate Department Head, on the advice of a nominated medical assessor, approves in writing. (7) The appropriate Department Head is to give the health care professional providing a health assessment of a member of staff under this clause any requested information about the duties of the staff member's position that is reasonably required for the purpose of providing the assessment. (8) In this clause: nominated medical assessor means a person or body, or a person who is a member of a class of persons, nominated by the Public Service Commissioner for the purposes of this clause. 117A detailed comparison of the Regulations is not necessary at this point, but it is to be noted that under both Regulations the prerequisite for a direction to attend a medical assessment pursuant to the Regulation is that the Department Head, before so directing, must form a view that an employee is not fit for work, as that term is defined in the Regulation.

[9]

Approach to determining appeal 118Counsel for the Department summarised the Department's case in opening in this way: 119'This is a relatively simple matter. The respondent's case has always been that it had a valid reason to refer the appellant for a medical examination and that the appellant refused to attend the direction to attend the medical assessment, not just once but on three separate occasions. The appellant does not deny that she refused to attend the medical assessment. ... The respondent after attempting three times to have the appellant medically assessed without any success and any prospect of success the respondent instigated a disciplinary investigation as it was required to do as per s 46 of the Public Sector Employment and Management Act. 120For the Appellant's part, counsel for Ms Schoeman advanced that the case turned solely on, as he put it, a point of law. He submitted as follows: 121'Clause 13 sub (2) and its construction sits at the forefront of this case. The applicant's case will be that in each of the three directions the requirements in cl 13 sub (2) were not met; thus, the direction was not lawful and thus not a direction at all. In cl 13 sub (2), on its face it reads fairly plainly that the department head has reason to believe that a member of staff is not fit for work, that is - they are terribly important words - is not fit for work, he or she may direct the member of staff to submit to such medical examination or other health assessment as the department head makes on the advice of a nominated medical assessor consider necessary. What happened was the Director General directed the applicant to attend a psychiatric assessment in order to be able to assess which positions she would be suitable for. It was a suitability assessment which is not the same as a determination that one is not fit for work. They are different. With respect, what the Director General did by and large sits in conformity with common law, but in this case the common law cases on a direction to attend a medical assessment on reasonable grounds fall away, because there is a regulation. The regulation is different from the common law position.' 122The Appellant's proposition was developed, as it necessarily had to be given that submission, by asserting that the Regulation, whether the 1996 or the 2009 Regulation, was a comprehensive code dealing with the circumstances in which a Department head may direct an employee to attend a medical assessment: transcript, 8 August p 39. No authority was advanced for that proposition. 123.In my view the proposition that the Regulation (whether under the 1996 or 2009 Regulations) is a comprehensive code is not correct. The Regulation cannot be a comprehensive code on when the Department head may direct an employee to attend a medical assessment. Its own words, and specifically the precondition necessary to the Department head acting, that is, the formation of a view that an employee is not fit for work, limit the Regulation to being a comprehensive code on how a Department head may proceed if he forms the view that an employee is not fit for work. 124The fact that a Department head must proceed in accordance with the Regulation if he forms the view that an employee is not fit for work does not confine him or his officers in respect of circumstances where an employee is not believed to be unfit for work and the Regulation is not therefore activated at all. 125Nothing in the Regulations or the PSEM Act go to suggest that the regulation in question is intended to cover the field of the circumstances in which a direction to attend a medical assessment may be issued. Absent such a clear statement of statutory intent, the general powers of the Director-General - for example, pursuant to subs.14(2) of the PSEM Act, which provides that in the management of a Department, 'a Department head may take such action as the Department head considers appropriate in the circumstances but may not take action that is inconsistent with the functions specified in this Act or of the Minister administering the Act or of the Director of Public Employment' - should not be read down. 126A public servant in Ms Schoeman's position is an employee. The ordinary precepts of the common law regarding the contract of employment are not excluded as a matter of principle from the contract, but only if the express statutory provisions of an Act or regulations exclude them: Director-General of Education v Suttling (1987) 162 CLR 427 at 437-8 per Brennan J; Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111 at [177] - [185]; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152 at [83]. 127The common law permits an employer to direct an employee to attend a medical assessment, provided that such a direction is reasonable: Thompson v IGT (Australia) Pty Ltd [2008] FCA 994; 173 IR 395; R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday (1938) 60 CLR 601 at 621-22. Indeed, in his opening submission set out above, counsel for Ms Schoeman expressly submitted that the Director-General acted in conformity with the common law in directing Ms Schoeman to a medical assessment, drawing attention to the requirement for reasonableness in such a direction. 128If the Regulation did not displace the common law, as in my view it demonstrated no intention to do and did not, then there can be little doubt that the Director-General had the power to direct an employee to attend a medical examination, provided that the direction is reasonable: Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539. In part that power arises from the obligations an employer, here including the Crown, has pursuant to what is now the Work Health and Safety Act 2011: Thompson v IGT (Australia) Pty Ltd loc cit at 408-409.

[10]

Reliance on the Repealed Regulation 129Although a good deal of time was spent cross-examining the Respondent's witness to the effect that the repealed regulation had been wrongly called in aid in the Director-General's initial letters, as it obviously had, counsel for the appellant ultimately did not proceed to argue that simply citing the incorrect regulation in a letter invalidated the directions that were given, conceding, in general correctly in my view, that if a power existed in a statutory officeholder to take a particular action on the particular facts of a case, it matters not if he incorrectly regarded himself as acting under another power: transcript, 8 August, p 18 ll. 9-20. 130As the respondent's counsel submitted, 'The fact that the wrong regulation or a repealed regulation was cited within a letter does not of itself make the direction or the order unlawful. What it means is that there was a mistake made. If the authority or the power existed at the time that the direction was made it does not matter that it was wrongly cited or wrongly referred to in the correspondence.' (transcript, 8 August, p 7 l.23 ff) 131As a general principle, if the decisionmaker had at the time of making any decision a power on which he could properly have relied to make that decision, it does not invalidate the decision that the wrong statutory power was invoked: Trigger v Australian Telecommunications Commission [1984] 6 IR 446; Re PSA and POA and Macquarie Generation [2004] NSWIRComm 11; semble, Munnings v Smith (1987) 22 IR 254 at 264 per Northrop and Spender JJ. 132That might be different if the subject of the decision was placed at a disadvantage by the invocation of the wrong Regulation, in that for example he was left unaware of rights of appeal that would have been drawn to his attention if the correct Regulation had been invoked, but that is not the case here. 133As I say above, in general, in my view, there can be no real doubt that the Director-General and his appropriately-delegated staff had a power at large to direct Ms Schoeman to attend a medical examination. That says nothing about whether the power was reasonably, correctly or appropriately exercised, or if it was actually exercised at all, on the facts of this case, and nor does that of itself determine that misconduct occurred.

[12]

Was it misconduct to refuse to obey the directions? 137There are two elements to this aspect of the matter. 138The first is whether valid instructions and directions were made at all. It can be misconduct to refuse a direction or instruction only if it was a valid direction or instruction. 139in my view the directions from the Director-General and the instructions from Ms Dunn were all invalid as they were beyond power. 140That is for the fundamental reason that they were unreasonable. 141As the High Court has held, it is an essential condition of every exercise of power by a statutory officeholder that the power be exercised reasonably: Minister for Immigration and Citizenship v Li loc cit at [23] ff; Abebe v Commonwealth loc cit at 554. 142An unreasonable decision by an officeholder in the exercise of a statutory discretionary power will be without power, in that it goes beyond the framework of rationality or reasonableness provided by the relevant statute: Li supra at [26]. 143The instructions by Ms Dunn and the purported directions from the Director-General were all, and were specifically expressed to be, for the purpose of obtaining a psychiatric assessment, as set out above. 144At the time of the instruction and directions purportedly given, Ms Schoeman was on restricted duties because of a wrist injury. The instruction and directions were for her to attend a psychiatrist. 145She was not on the evidence suffering a psychiatric condition. Dr Dowda and Ms Schoeman's treating doctor had said that she was not to work in the CPD because that would result in recurrence of her symptoms. Dr Dowda said that was because of 'unresolved human resources issues', not because of any persisting illness on Ms Schoeman's part. 146The Department had not in fact sought to place Ms Schoeman in the CPD since 2009 and indeed had expressly disavowed any intention of so doing, as the Director-General said in correspondence to Ms Schoeman during the course of the directions. There was no need to require a psychiatric assessment to 'assist with identifying suitable duties' as Ms Dunn's first letter put it. 147At the time of the directions and instructions to Ms Schoeman, there was simply no functional requirement to direct Ms Schoeman to a psychiatrist. 148The reference in later correspondence from the Department to the fact that Ms Schoeman had earlier seen a Dr Cameron, a psychologist, was patently called in aid as an afterthought. There was no active part of any treatment plan applying to Ms Schoeman at the time the directions were made that she visit a psychologist, let alone a psychiatrist, and, on the materials provided by her doctors to the Department, no evidence of any ongoing psychiatric illness. That HR Branch may have thought Ms Schoeman needed to see a psychiatrist because of the extreme and colourful nature of her allegations of corruption is not at all to the point. 149In those circumstances, any and every direction that she attend a psychiatric assessment in 2011 and 2012 was unreasonable and therefore without power. The instructions and directions were invalid at common law, let alone pursuant to any statutory powers. 150As the directions and instructions were without power, it follows that the finding of misconduct for failing to obey a lawful direction is necessarily wrong. Ms Schoeman did not refuse a lawful direction because the instructions and directions she was given, without anything else, were without power, and not lawful, because they were unreasonable. 151Fundamentally, the right to impose a punishment following a charge of misconduct is dependent on a finding that an employee committed the specific act of misconduct with which they are charged, not merely upon a finding of fact that the employee is guilty of any act of misconduct: Re Public Service Association and Professional Officers' Association Amalgamated Union of NSW and Macquarie Generation [2004] NSWIRComm 11 at [73] - [74]; Public Service Association of NSW and Public Service Board Re Ristau (No 2) (1979) AR 357 at 373. 152Here the specific misconduct with which Ms Schoeman was charged cannot be sustained. Neither the employer nor the Commission can recast the charge or view her conduct other than against the charges of misconduct as they were specifically framed and put to her. 153 The onus of proving the misconduct falls on the Department. It is an onus the Department does not satisfy. 154The fact that there was no misconduct meant that there was no basis for any disciplinary sanction to be imposed: PSEM Act s.46(2).

[13]

Further reason that finding of misconduct fails 155Even were I wrong in finding that the instructions and directions were invalid for being unreasonable, Ms Schoeman has not committed misconduct in relation to, at least, the Director-General's directions for another reason. 156Addressing the Director-General's letters to Ms Schoeman, it is evident that here the decisionmaker expressly and specifically relied on a particular statutory power, the regulation, to give a direction. He expressly set out the factual purpose for which he sought to invoke that power; a suitability assessment. That was a purpose for which the statutory power he invoked was not and could not have been used. 157That is, the Director-General purported to direct Ms Schoeman to a medical assessment under a Regulation which required as a precondition that he form a view that she was unfit to work. He did not form that view, and could not have formed that view on the facts. Indeed, he did not assert that he had formed that view, instead asserting to Ms Schoeman in writing that the basis for his direction was something altogether different, a requirement to assess Ms Schoeman's suitability for other placements. 158As the Director-General had not formed a view that Ms Schoeman was unfit, he had no power to direct her to attend a medical assessment under the Regulation, as the necessary precondition to the exercise of the power granted by the Regulation had not been met: Director-General, Department of Education ad Training v Sud [2010] NSWIRComm 147 at 33. 159It was evident on the face of the letters containing the directions, citing as they did the specific regulatory basis called in aid for the directions to an assessment, together with a statement of the purpose for which the assessment was to be used, that the directions were an invalid use of the statutory power actually invoked, that is, the Regulation 160Indeed, Ms Schoeman in each of her responses to these directions pointed out that they were without legal foundation. That did not lead the Director-General to consider any other powers he may have had in the circumstances; he persisted in directing Ms Schoeman under the Regulation. 161On one view the directions were simply invalid for the reason, further to their unreasonableness, that they were expressly framed as being under a regulatory power and the precondition for their issue under that power was on the evidence not met. 162But even without that, and even if it is said that the Director-General had a power to direct Ms Schoeman to a medical assessment, in my view Ms Schoeman was entitled to resist the Director-General's directions, as they were on the face of the letters received by her invalid directions, made without power, for reason that the factual circumstances simply did not provide the necessary precondition to the direction in the terms that it was made and indeed reinforced to Ms Schoeman. As I note above, Ms Schoeman expressly resisted the directions on the basis that they were without legal foundation. On the face of the letters she was given, she was right to say so. 163That is because Ms Schoeman, as any employee, was entitled to assume that the Director-General was acting, on the advice of his senior and experienced staff, in full competence and in full knowledge of his powers. 164Faced with directions on their face invalid, in that they expressly invoked a regulation (whether the 1996 or 2009 Regulation) that on the facts did not permit the Director-General to give the direction he purported to give, as he had not formed the necessary prerequisite view that she was not fit for work, it is not for Ms Schoeman (or any employee) to assume that the Director-General has erred in his written direction, further assume that as a matter of law he could have given the direction validly under another power to which he has not referred, then assume to herself an obligation to act as if the direction had been given under that other, unexpressed and unidentified, power, and then to act accordingly by attending the assessment. 165The Director-General's directions were, given the facts of the matter, on their face bad. To refuse the Director-General's directions in the terms that they were made was simply not misconduct. 166This is not made any different by the proposition of law set out above, that an officeholder identifying the wrong power for an action will not of itself invalidate the direction when in fact he had another power that permitted a valid direction. That may be the law but, as I say above, it is not for Ms Schoeman to know that and assume an obligation to act on it when she is not told it by the Director-General. 167As noted above, the Director-General invoked in two letters the Department of Premier and Cabinet Circular C2011-23 at Section 5.1. That does not improve the Department's position. The Circular does provide that employees are required to comply with an agency's direction to attend and participate in a medical assessment. It does not provide a power to direct independent of the powers actually held by the Director-General or his delegates, and it does not confer reasonableness on an otherwise unreasonable exercise of the power. 168It again follows that there was simply no misconduct in refusing to attend a medical assessment as the Director-General purportedly directed. Again, it follows that there was no basis for any disciplinary sanction to be imposed: PSEM Act s.46(2). 169As to the Dunn instruction, if I were wrong about it being invalid for unreasonableness, it is, it is true, not invalidated by a reliance on a regulatory power that could not be invoked. 170It is nevertheless of itself not a basis for the imposition of any disciplinary sanction approaching dismissal, which was the punishment imposed. If I were held to be wrong on the bases set out above and also below, concerning procedural fairness, the refusal of the Dunn instruction itself warranted, in the context of the Department's dealings with Ms Schoeman, and given her unblemished records, no more than a reprimand. However, for the reasons I set out above and below, such a punishment is not warranted.

[14]

Further reason that the punishment is improperly imposed 171For the reasons I set out above, the punishment imposed on Ms Schoeman was not properly imposed, as the fact that there was no misconduct meant that there was no basis for any disciplinary sanction to be imposed. 172There is however another aspect of this matter that provides another reason why the appeal should be upheld and the punishment should not be allowed to stand. 173It is apparent from the evidentiary material set out above that the reports, both preliminary and final, provided to the Director-General and endorsed by him contained language that had no place in any reasoned, balanced and objective exercise of statutory officeholder powers. On their faces the two reports that gave rise to the decision to dismiss use language divorced from the sort of language than a disinterested party would advance, and use language which is openly coloured against and prejudicial toward Ms Schoeman. That was itself a real procedural unfairness to Ms Schoeman. 174It constituted an unfairness in the preliminary report, as the use of such language stood against the obligation to keep an open mind and be ready and willing to be persuaded by Ms Schoeman until she had been heard: Hall v NSW Trotting Club [1977] 1 NSWLR 378 at 388. It constituted unfairness in the final report because the use of such language by a decisionmaker does not permit the conclusion that the decisionmaker has acted objectively. 175Secondly, and more importantly, even aside from the language used, there was concretely a good deal of prejudicial material, some of it as I note above unsourced hearsay, advanced to the Director-General and taken into account by him, that was wholly outside the actual allegations of misconduct that were purportedly the subject of the decision, and therefore irrelevant. 176As I note, there was no allegation against Ms Schoeman that she had breached minimum ethical standards, or failed to comprehend basic principles of respect and courtesy, or demonstrated a continued pattern of disrespect of law and authority, or demonstrated a lack of respect for the authority and legislative processes, or engaged in inappropriate, unprofessional and unacceptable behaviour. Nor did the allegations of misconduct include an allegation that in relation to her workers' compensation claim she was 'often unco-operative, evasive in providing requested documentation and on occasions, rude and discourteous to staff'. 177Yet this irrelevant and prejudicial material was expressly taken into account, on the Department's evidence, in the findings on the specific allegations of misconduct that were made and the decision to impose dismissal as a punishment. 178That constituted a significant procedural unfairness toward Ms Schoeman. 179Discretely, the reliance on irrelevant material rendered the whole of the decision to impose a punishment ultra vires. 180Further, the process adopted by the Department was significantly procedurally unfair for yet another reason; that the Director-General expressly used Ms Schoeman's written submissions on penalty dated 17 December 2012, which were submitted after the allegations and the initial findings of misconduct, as a further material basis for a final finding of misconduct and a decision to dismiss, without giving her any opportunity to be aware that he was doing so, let alone an opportunity to be heard about that. This was egregiously unfair. 181Pursuant to s.100C of the Act, of course, the Commission is not required to allow an appeal solely on the basis that the employer failed to comply with the rules of procedural fairness. The Act nevertheless permits the Commission to uphold an appeal solely on that basis. 182If I were wrong on the substantive matters set out above, that is, that the directions and instructions were invalid, and, discretely, that even if they were not, there was no misconduct, the appeal would nevertheless be properly upheld solely on the basis of this tripartite procedural unfairness to which Ms Schoeman was exposed. 183It would also, quite discretely, properly be upheld on yet another basis, that being that the decision imposing the punishment of dismissal was ultra vires for reason of the Director-General taking into account irrelevant prejudicial material, material which it was the Department's express evidence that he did take into account in making the final decision. 184As I have found that there was no misconduct, there is no reason to remit the matter to the Department to decide afresh under the Commission's powers pursuant to s.100C(3) of the Act. 185Were I thought to be wrong on all but the procedural fairness issues, however, for reason that the reports advanced to the Director-General by senior Departmental officers display language inconsistent, as I say, with any objective assessment of the matter and indeed displaying some animus toward Ms Schoeman, to exercise the Commission's powers to return the matter to the Department to decide again would in my view be nugatory. 186As I have found that there was no valid direction in the first place, and therefore no misconduct in refusing to obey it, there was no basis for the imposition of any punishment. No punishment is warranted where no misconduct lay, and accordingly the proper outcome is that the appeal be upheld and the punishment of dismissal be set aside. Orders to that effect will follow, together with orders going to monies payable under subs.100D(1).

[15]

Question of practicability of reinstatement 187There is, however, yet one further issue. 188I have referred above to the allegations Ms Schoeman has voiced against the last Director-General, the present incumbent and senior Departmental officers. The tone of those allegations and comments are evident in her last letter to the Director-General which I have in part set out above. 189It was put by counsel for the respondent that the repeated and extreme allegations and declarations of a complete and utter lack of trust by Ms Schoeman in Departmental officers, not to mention to use of terms such as devious, dishonest and corrupt, meant that whatever might come of this appeal, the employment relationship could not be restored. It was pointed out, correctly, that Ms Schoeman had been equally unstinting in her personal criticisms of the present Director-General. 190This was raised at the end of proceedings and I gave both counsel the opportunity to make further written submissions on the point; both did so. 191The argument advanced by the respondent was essentially this; after setting out the well-known tests in Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81-82, it was submitted that the refusal of the directions by Ms Schoeman was so destructive of the relationship between employer and employee that it is 'fundamentally impracticable to reinstate the Appellant to her employment.' That submission falls away once it is apparent that there was no refusal of a lawful direction, and that Ms Schoeman was entitled to resist what were unreasonable directions. 192The second limb of the respondent's argument, however, was that the 'highly critical and disparaging' statements made by Ms Schoeman 'display a profound and utter lack of respect for the Director-General' and that her 'ongoing lack of trust in key personnel within the employing department' make reinstatement impracticable. 193There is no doubt that the characterisation of Ms Schoeman's statements as 'highly critical and disparaging' is accurate, indeed restrained. 194The position, however, is this. 195The task before the Commission is to determine, first, whether the misconduct alleged in fact occurred, and second, whether a punishment is appropriate or justified,. 196I have found that there was no misconduct. There is no basis for the imposition of any punishment. The Commission simply has no power to impose any sort of punishment - which would be the effect of failing to set aside the decision to dismiss - in circumstances where there was no misconduct. It follows that the question of the restoration of the employer-employee relationship is simply not a matter that the Commission has to, or can, address in this matter. 197Even if I were wrong about that, the Commission's jurisdiction under s.100 must be contrasted with that under s.89 in relation to an application made under s.84 of the Act. Under s.89, the Commission is given a statutory obligation to consider practicability. That is not the case here. The parliament has chosen not to make such a weighing exercise part of the statutory regime applying to appeals. The issue does not arise in this case, as there was no misconduct, but even if there were, the question is simply whether the punishment imposed is appropriate. A consideration of, as advanced by the respondent, whether 'reinstatement is practicable', does not arise.

At a glance

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Judgment (16 paragraphs)

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Cases Cited (19)

Cited By (2)