State of Victoria v Tutos [2018] VSCA 213

CONTRACTS - Public service - Contract of employment - Incorporation by reference of statute and ministerial order - Construction of public service contracts to take place against statutory regime - Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427, applied.

ADMINISTRATIVE LAW - Reasons for decision - Whether Board required to provide reasons - Remedy for failure to comply - No error of law - Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434, applied - Administrative Law Act 1978, s 8.

1 This appeal concerns the validity of an extension to the probationary period in a teacher's employment contract. The form of contract in question has often been used in the employment of teachers in the State Teaching Service. The contract provided a start and end date for the teacher's probation, and stated:

At the end of the probationary period your employment will either be confirmed or annulled.

There was no provision in the contract for the probationary period to be extended. However, there was a statutory power to that effect.

2 In the event, the period of probation was extended and the teacher's employment was subsequently annulled. The teacher sought review by a Merit Protection Board of the decision to 'annul his probation'.[1] The Board confirmed that decision and the teacher sought judicial review in the Trial Division.

3 The application for judicial review succeeded at first instance. The associate judge set the Board's decision aside and remitted the matter back to the Board to decide in accordance with the Court's reasons. In her Honour's view, the absence from the employment contract of a provision for probation to be extended was inconsistent with the statutory power to extend a probationary period. That inconsistency constituted a fetter on the statutory power, her Honour held, such that the contractual provision was a nullity.

4 For the reasons that follow, we respectfully disagree. The employment contract was expressly subject to the statutory power to extend a period of probation, and that power was lawfully exercised in this case. The appeal must be allowed and the Board's decision restored.

5 On 17 December 2015, the principal of Edenhope College, Ms Robyn Hollis, wrote to the first respondent, Mr Luke Tutos, offering him ongoing employment in the Victorian Teaching Service under pt 2.4 of the Education and Training Reform Act 2006 ('the Act'). The letter stated that the terms of the offer were set out below and in an attachment to the letter. The letter relevantly stated:

This offer is to be read in conjunction with the Education and Training Reform Act 2006, Public Administration Act 2004, any other relevant legislation, regulations made from time to time under those Acts, any ministerial orders, instructions and policies issued by the Department of Education and Training and any applicable federal award and/or agreement. You may access any of these documents on the Department's Human Resources website ...

...

There will be a period of probation from 26/01/2016 to 24/06/2016.

Your employment in the Teaching Service will be subject to the completion of the satisfactory probationary period. At the end of the probationary period your employment will either be confirmed or annulled.[2]

6 The attachment recorded details of the offer including a line containing four boxes, the first of which contained the words 'Probationary Period'. The word 'From' then appeared before the second box, which contained the date '26/01/2016'. After the word 'To', the third box contained the date '24/06/2016'. The word 'Or' appeared between the third and fourth boxes. The fourth box was blank.

7 Mr Tutos signed the offer indicating his acceptance of it on 18 December 2015.

8 Ms Hollis did not confirm or annul the employment of Mr Tutos between the dates set out in the letter. Instead, she wrote to him on 17 June 2016 outlining concerns about the standards of his performance. Those concerns related principally to the conduct of Mr Tutos in communicating with the principal and staff and in response to meeting requests, and his capacity to receive and accept appropriate 'professional feedback'. Mr Tutos provided a response to that letter in writing and during meetings.

9 On 13 July 2016, Ms Hollis wrote to Mr Tutos again, referring to her previous letter and indicating that she had decided that it was necessary to extend his period of probation to 20 December 2016. She stated that the conduct that Mr Tutos had demonstrated towards the end of his probation period in response to her request to discuss his performance was 'a significant departure from the standards expected of a teacher at your classification'. The letter continued that Mr Tutos had otherwise 'generally performed your teaching duties to a satisfactory standard' and had 'received positive feedback' regarding his classes. Ms Hollis stated that she considered that Mr Tutos would benefit from additional support in order to help to improve his performance in the areas she had earlier identified.

10 On 26 July 2016, Mr Tutos made an application to a Merit Protection Board under the Act, seeking to have his employment confirmed. That application did not proceed after the Board decided that it lacked jurisdiction to review a decision to extend a period of probation. That decision was made on 23 August 2016 after the Board had received submissions as to its jurisdiction.

11 In August 2016, issues arose in relation to the classroom conduct of Mr Tutos, some of which emerged as a result of parent and student complaints regarding aspects of his teaching and assessment. In the meantime, Mr Jon Neall became the acting principal of the school.

12 On 12 October 2016, Mr Neall wrote to Mr Tutos 'in relation to student concerns that have been raised with me by students in each of your current VCE classes over the course of the last few days'. It is not necessary to set those matters out. Mr Neall invited Mr Tutos to respond to the matters raised in writing by Monday 17 October. In the interim, on Friday 14 October, after further communications between Mr Neall and Mr Tutos, Mr Neall removed Mr Tutos from his classes and placed him on personal leave.

13 In a letter dated 14 October 2016 to Mr Tutos, Mr Neall stated that he had acted as a result of concerns about the mental health of Mr Tutos and his fitness to discharge his duty of care to students. In the letter, Mr Neall directed Mr Tutos onto personal leave 'so that you attend a medical practitioner of your choice to be examined to determine whether you are fit for duties'. The letter stated that, if Mr Tutos provided a certificate from his treating practitioner indicating that he was fit for duties, Mr Neall would consider whether further examination was required to address concerns about Mr Tutos's health and wellbeing.

14 Mr Tutos provided a detailed written response to the concerns that had been raised. On 17 October 2016, Mr Neall again wrote to Mr Tutos, stating his 'preliminary view' that he was not able to meet the standard of performance required for a classroom teacher at his level within a reasonable period of time. The letter invited a further written response, to be prepared from home without accessing the school grounds unless with prior permission.

15 On 20 October 2016, Mr Neall wrote to Mr Tutos again, providing more detail about the reasons why he had formed the preliminary view set out in his earlier letter.

16 Mr Tutos provided a detailed written response to Mr Neall in a document dated 24 October 2016.

17 On 26 October 2016, Mr Neall wrote to Mr Tutos advising him that he had decided to annul his probationary appointment with immediate effect.

18 On 26 October 2016, Mr Tutos made a second application to a Merit Protection Board seeking confirmation of his employment in an ongoing position. No issue as to the jurisdiction of the Board arises in relation to this second application.

19 Part 2.4 of the Act provides for the Government Teaching Service. Relevantly for present purposes, s 2.4.3(2) states that the Secretary, on behalf of the Crown, has 'all the rights, powers, authorities and duties of an employer in respect of employees in the Teaching Service'. In particular, s 2.4.8 provides as follows:

Employment to be on probation

(1) A person may be employed in a position in the Teaching Service on probation in accordance with a Ministerial Order.

(2) A person employed in the Teaching Service on probation remains a probationer until his or her employment is confirmed or annulled in accordance with the Ministerial Order.

(3) The Secretary may annul the employment of a person at any time while he or she is a probationer.

20 Section 5.10.4(1) permits the minister to 'make Orders which are required or permitted to be made for carrying out or giving effect to this Act'.

21 The Act makes provision for Merit Protection Boards in div 7 of pt 2.4. Section 2.4.44 establishes the Boards and provides that their functions include:

(d) to hear reviews and appeals in relation to any decision prescribed by the regulations or Ministerial Order to be a decision in respect of which there is a right of review by or appeal to a Merit Protection Board.

22 In 2009, the Minister exercised the relevant powers under the Act to make Ministerial Order 199. Part 5 of the order is entitled 'Personal Grievance'. The expression 'personal grievance' is defined in cl 5.1.1(4) in the following terms:

(a) 'personal grievance' means a grievance of an employee in respect of any action, other than those matters excluded under subclause (4)(b), taken within a work location which directly affects that employee and which the employee considers:

(i) is in breach of the Act or this Order; or

(ii) infringes the principles of merit and equity, or infringes any personnel policy or guidelines issued by the Secretary; or

(iii) is otherwise unreasonable.

(b) Notwithstanding sub-clause (4)(a) the following matters are excluded from the definition of personal grievance:

(i) employment, transfer or promotion under the Act;

...

(iii) termination of employment, other than the annulment of the employment of a probationer pursuant to section s.4.8(3) of the Act;

...

23 Division 6 of pt 9 of the Ministerial Order is entitled 'Probation'. It contains the following provisions:

9.6.1 Except where the Secretary otherwise determines either generally or in a particular case, the employment of a person who is not an ongoing employee to an ongoing position in the Teaching Service will be on probation for such period (not exceeding twelve months or six months in respect of an education support class employee) as the Secretary specifies whether generally or in any particular case or class of cases.

9.6.2 At the expiration of the period of probation determined under clause 9.6.1, the Secretary will either:

(1) confirm the employment of the probationer;

(2) annul the employment of the probationer pursuant to section 2.4.8(3) of the Act; or

(3) extend the probation for a further period (not exceeding twelve months or six months in respect of an education support class employee).

9.6.3 Where the Secretary extends the probation for a further period under clause 9.6.2 he or she must confirm or annul the employment before the expiration of that further period or as soon as practicable thereafter.

9.6.4 Nothing in clauses 9.6.2 and 9.6.3 prevents the Secretary from annulling the employment of a person at any time while he or she is a probationer pursuant to section 2.4.8(3) of the Act.

...

9.6.6 A person may lodge a grievance with the Merit Protection Boards in relation to a decision to annul his or her employment.

24 Clause 1.1.1 of the Ministerial Order states that, in the event of an inconsistency between the order and any award, agreement or employment condition applying under the Fair Work Act 2009 (Cth) to the Teaching Service, the relevant award, agreement or employment condition provision prevails to the extent of the inconsistency. To similar effect, s 2.4.2 of the Act provides that employment in the Teaching Service under pt 2.4 of the Act 'is subject to any relevant award or agreement under, or continued in force by, a law of the Commonwealth'.

25 In that regard, reference should be made to cl 21(4) of the Victorian Government Schools Agreement 2013 ('the Schools Agreement'), an enterprise agreement under the Fair Work Act 2009 (Cth). Clause 21(4) relevantly states as follows:

(a) The employment of a person on an ongoing basis is subject to a probationary period for such period not exceeding twelve months, or six months in respect of education support class employees, as the Employer determines whether generally or in any particular case or class of cases.

(b) A person employed on probation will remain a probationer until the employment is confirmed or annulled in accordance with this clause.

(c) The Employer may annul the employment of a person at any time while on probation.

(d) At the expiration of the period of probation the Employer will either:

(i) confirm the employment;

(ii) annul the employment; or

(iii) extend the probation for a further period (not exceeding twelve months or six months in respect of education support class employees).

(e) Where the Employer extends the probation for a further period the Employer may confirm or annul the employment at any time during that further period and if the employment has not been confirmed or annulled before the expiration of that period the Employer will as soon as practicable confirm or annul the employment.

...

26 Finally, a document entitled 'Probation Guidelines', issued for the Teaching Service by the Department of Education and Training and dated 9 May 2016, relevantly states that there are three stages of the probationary process. The third stage is described as being the conclusion of the probationary period. The guidelines contain the following description of that third stage:

Stage 3 Conclusion of probationary period

At the conclusion of the probationary period the delegate[3] will meet with the employee to discuss the employee's performance and advise the employee of the outcome of the probationary period. At this stage the delegate may:

• confirm the ongoing employment of the probationer; or
• extend the probation for a period not exceeding twelve months for principal and teacher class employees or six months for education support class employees. In determining the period of the extension the delegate will have regard to the time required to improve the employee's conduct and work performance in the area(s) identified. The procedures set out above should be followed during the extension period; or
• annul the employment of the probationer.

Where the delegate extends the probation for a further period, before the expiration of that further period, the delegate will meet with the employee to discuss the employee's performance and advise the employee of the outcome of the extended probationary period.

At this stage the delegate must:

o confirm the ongoing employment of the probationer; or

o annul the employment of the probationer.

27 By a determination made on 27 February 2017, the Board found that Mr Tutos had failed to establish grounds for review and therefore confirmed the decision of Mr Neall to annul his probationary appointment. The Board stated that it was of the view that the decision was neither a breach of the Act or the Ministerial Order, nor an infringement of the principles of merit and equity or any personnel policy or guidelines issued by the Secretary. The Board stated that it did not consider the decision to be otherwise unreasonable.

28 The Board set out six 'key contentions' raised by Mr Tutos. It rejected each of those contentions. First, the Board was 'entirely satisfied' that Mr Tutos had been the subject of a lawful and appropriate recruitment process and that it had not been unreasonable to require him to teach physics and electronics although his specialisation was as a mathematics teacher. Secondly, the Board accepted that not all the formal steps contemplated in the probation guidelines were followed by the school, but found that the course that was taken was 'entirely reasonable'. The Board found that, when issues arose in respect of the conduct of Mr Tutos, the school

28 appropriately followed the required guidelines. It also found that the decision to extend his probation was properly documented. The Board found that the fact that the school had required Mr Tutos to complete a performance and development plan contrary to the probation guidelines had no impact on the decision to annul his employment.

29 Next, the Board rejected a contention made by Mr Tutos that the decision to extend his probation was unlawful because the letter of offer had been silent on the prospect of extending the period of probation. The Board noted that the letter of offer stated that it was to be read in conjunction with applicable legislation and that departmental policy regarding probation was clear in informing prospective employees that the extension of probation was a possible outcome at the end of a period of probation.

30 Fourthly, the Board found that there was no credible evidence that Ms Hollis or Mr Neall had threatened or harassed Mr Tutos during his probationary period.

31 Fifthly, the Board found that there was no credible evidence to sustain a contention made by Mr Tutos that the annulment decision was linked to him attempting to expose issues of allegedly poor governance at the school.

32 Finally, the Board rejected a contention that Mr Tutos had been denigrated and humiliated as a result of being required to attend for medical examination. The Board accepted evidence that, once the prospect of his employment not being confirmed had arisen, Mr Tutos 'became difficult and unreasonably argumentative and demanding'. The Board considered the school's management of his behaviour to have been reasonable.

33 The Board stated that it had closely considered the individual issues raised by Mr Tutos as well as the totality of the circumstances that resulted in his employment being annulled. The Board considered that Mr Tutos had demonstrated a lack of understanding of the need for him to teach subjects other than mathematics and a lack of understanding of the need for him to cater for the absence of students on a Wednesday, which had been an area of dispute between the parties. The Board stated that Mr Tutos had persisted with misguided views around his offer of employment and possible probation outcomes. In conclusion, the Board stated that it was 'entirely satisfied that the decision to annul Mr Tutos's probationary appointment was compliant with the relevant clauses' of the Act and the Ministerial Order. The Board stated that the decision was also compliant with the relevant departmental policy in the matter and that it could not be characterised as unreasonable in any way.

34 By originating motion dated 29 May 2017, Mr Tutos sought judicial review of the Board's decision in the Trial Division. He sought his reinstatement as a senior mathematics teacher in an ongoing position, along with compensation for the deterioration in his health which was said to have been a direct consequence of the 'unlawful decision' made by the Board. The originating motion relied upon four grounds. However, the matter proceeded before the associate judge by reference to somewhat different arguments. The parties accepted that the associate judge correctly set out the issues that had properly arisen for determination in the proceeding before her as follows:

1. Recruitment processes and procedures

In respect of the Board's findings concerning compliance with recruitment processes and procedures: is there an error of law or jurisdictional error?

2. The contract of employment

In respect of the probationary period in the contract, did the Board:

(a) act beyond its jurisdiction in making a finding concerning it?

(b) if not, misconstrue the contract?

3. Probation guidelines

In respect of its findings concerning compliance with induction and probation guidelines:

(a) did the Board disclose its pathway of reasoning?

(b) were the findings open on the facts before the Board?

(c) were they so unreasonable that no reasonable person would have made them?

4. Annulment of probation

Was the decision to confirm the annulment of probation:

(a) beyond the Board's jurisdiction?

(b) if not, open on the facts before it?[4]

35 In relation to the first issue, the associate judge concluded that Mr Tutos had not established an error of law or jurisdictional error in respect of the Board's decision on recruitment processes and procedures. That matter, which was the subject of the first of the six contentions dealt with by the Board, is not relevant to the present appeal.

36 In respect of the second issue, the associate judge held that the Board had not acted beyond its jurisdiction in making a finding in respect of the extension of the probationary period. The State had accepted that the Board had jurisdiction to deal with the extension of probation in the context of an appeal against an annulment decision, on the basis that if probation had not been extended this might be a reason why the annulment decision was unlawful. That issue also no longer arises. However, the associate judge went on to find that the probationary clause in the contract was invalid. She held that the contract must be consistent with any statute, citing the following statement of Brennan J in Director-General of Education v Suttling:

If the relationship [between a civil servant of the Crown and the Crown] is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute ... The statute itself controls the terms of service ...[5]

37 The associate judge noted that public authorities cannot fetter their own exercise of discretionary power, citing Ansett Transport Industries (Operations) Pty Ltd v Commonwealth.[6]

38 Applying those principles, the associate judge concluded as follows:

The contract provides a start and end date for probation. The contract states that 'At the end of the probationary period your employment will either be confirmed or annulled.' The end date of the probationary period, together with the statement that, at the end of probation, employment will either be confirmed or annulled, paints a specific picture. That is, that, as Mr Tutos submits, at the end of his probationary period, the contract will be confirmed or annulled. There is no provision in the contract for extension of probation. This is inconsistent with the general power to extend probation. The contract is therefore a fetter upon the exercise of the discretionary power to extend probation. The consequence is that the probationary clause is invalid. It may be described as void.

I reject the State's submission that the instruments are incorporated into the contract because the contract states it is to be read 'in conjunction with' the instruments. 'In conjunction with' must have its plain and ordinary meaning. That is, 'together, jointly'. The phrase 'in conjunction with' does not remedy the specific inconsistency problem between the contract and the instruments. It does not provide that, in the event of inconsistency, the instruments should override the contract. However, the Board's decision is predicated upon the incorrect assumption that the contract should be read in that manner.[7]

39 Having concluded that the probationary clause in the letter of offer was invalid, the associate judge went on to consider a submission made by the State to the effect that Mr Tutos was on probation at the time his employment was annulled, because the Act provides that a teacher remains on probation until the employment is annulled or confirmed: s 2.4.8(2). She held that a period of probation could not be implied by law and that it was 'an open question' whether a probationary period might be implied by conduct.[8] Since that was not a question to be decided by the court upon judicial review, the associate judge held that the matter should be remitted to the Board, which would also have to decide if it had jurisdiction in the circumstances.

40 The associate judge next dealt with the question whether the Board identified its pathway of reasoning in respect of its findings concerning compliance with the probation guidelines. The associate judge held that there was no requirement at common law or under the Act requiring the Board to provide reasons for its decisions. However, she stated that s 8 of the Administrative Law Act 1978 ('the ALA') requires an administrative tribunal to give reasons for its decision. The associate judge held that this provision was applicable and that s 8(4) of the ALA required the reasons of the Board to be sufficient to enable a court to determine whether its decision involved any error of law. The associate judge held that the Board did not disclose a pathway of reasoning in respect of the guidelines. Instead, the Board had merely stated its conclusions. However, given the finding that the probationary clause was invalid, the associate judge held that there was no utility in ordering the Board now to provide adequate reasons for its decision in respect of the guidelines.

41 In the circumstances, the associate judge did not consider the further questions concerning the guidelines, namely whether the Board's decision was open on the facts or whether it was so unreasonable that no reasonable person could have made it.

42 Finally, the associate judge held that the Board had jurisdiction to review the decision to annul Mr Tutos's probationary appointment. However, she held that it was not necessary to consider whether the decision to confirm the annulment was open to the Board on the facts before it, because the anterior question whether or not a period of probation could be implied by conduct remained a live one for the Board to determine.[9]

43 The State seeks to appeal on the following three proposed grounds:

(1) The primary judge erred in law in holding that the probation clause in the first respondent's contract of employment was invalid.

(2) The primary judge ought to have found that:

(a) pursuant to his contract of employment, the first respondent was employed as a teacher on probation;

(b) that on its proper construction, the contract of employment incorporated the provisions concerning extensions of the period of probation set out in the Education and Training Reform Act 2006, Ministerial Order 199 and the Victorian Government Schools Agreement 2013; and

(c) the Secretary (by her delegate the Principal of Edenhope College) had lawfully extended the first respondent's period of probation on 13 July 2016.

(3) The primary judge erred in law in finding that the Merit Protection Board, in its reasons for dismissing the first respondent's personal grievance concerning the annulment of his employment did not disclose its 'pathway of reasoning' when dealing with the respondent's complaint that the College did not follow the applicable probation guidelines.

44 The State submitted that there was no inconsistency between the letter of offer and the provisions of the Act and the Ministerial Order. Those provisions were expressly incorporated into the contract and had to be read harmoniously with the letter of offer. It was submitted that the reference in the probation clause to 'the end of your probationary period' should be construed as referring to the end of the initial probationary period or, if that period was extended, to the end of the extended period.

45 Further, the State submitted that even if there was an inconsistency between the letter of offer and the identified provisions, the only result would be that the limitation on the Secretary's power to extend the probationary period would be of no effect. It was submitted that the associate judge was wrong to conclude that the entire probation clause was invalid. The only part of the probation clause that could constitute a fetter on the powers of the Secretary was the final sentence, if construed as not allowing for an extension of the probationary period.

46 In any event, the State submitted that, because the Act, the Ministerial Order and the Schools Agreement all provide that a teacher remains on probation until his or her employment is annulled or confirmed, Mr Tutos was still on probation at the time of the annulment decision in October 2016.

47 Finally, in respect of the third proposed ground, the State submitted that the Board's findings were not 'mere conclusions' as the associate judge had held, but explained the basis for the Board's conclusion that there was no substance in the grievance advanced by Mr Tutos. It was further submitted that the Board was not in any event obliged to provide reasons for its decision.[10] Even if s 8 of the ALA did have that effect (which was disputed), the remedy for non-compliance was not to set the decision aside but to order proper reasons to be provided.

48 The State submitted that, if its contentions were upheld, this Court should not remit the matter to the associate judge for further determination of the matters which she did not decide, but should dispose of the matter itself. It was submitted that the Court was in as good a position as the associate judge to deal with the issues raised in the judicial review application and that it should order that the proceeding be dismissed.

49 Mr Tutos submitted that the associate judge was correct in her analysis and conclusions. He submitted that the State had adopted a clear form of contract and could have made a different offer had it wished to retain the ability to extend the probationary period. He pointed to the fact that the State now used a different form of offer which expressly provided for the possibility of a probationary period being extended. The State had chosen not to make an offer in those terms. Mr Tutos submitted that a contract 'should not be a puzzle' and that clear words should have been used rather than referring to legislation. In any event, it was said, the letter of offer was more specific than the legislation and he had relied on the letter, not the text of the legislation, in deciding to accept the offer.

50 Mr Tutos made extensive submissions regarding departures from proper procedure, and violations of legal requirements, which he alleged had taken place in the course of his probationary period, including in respect of the decision to extend that period. He also made allegations of improper conduct and violations of the law in relation to the administration of the school and pointed to a deterioration in his health which he blamed on the manner in which he had been treated during his period of employment. Other submissions concerned alleged improprieties on the part of the Board and officers of the Department. Some of these matters were relevant to the substance of his grievance as to the decision to annul his employment, rather than the issues in the appeal.

51 Except in so far as they bear on the issues in the case, it is not appropriate to set out these aspects of the submissions. As was explained to Mr Tutos during the hearing in this Court, the function of the Court on the present appeal is to determine whether the associate judge was in error in the ways alleged by the State. If that were established, then the further question how the remaining issues in the proceeding before the associate judge should be considered would fall to be addressed. That might involve canvassing some of the factual matters advanced by Mr Tutos in this Court. But even then, much of the material Mr Tutos advanced was directed at matters not raised in his judicial review application.

Construction and validity of the probation clause (proposed grounds 1 and 2)

52 The first question to be resolved is one of construction of the employment contract. Two points may immediately be noted. First, the offer states that it is to be read 'in conjunction with' the Act, other relevant legislation, regulations, ministerial orders, instructions and policies and any applicable federal award or agreement. It is plain on the face of the offer that the terms of the contract being offered are not all to be found in the written offer, and that the written terms are to be read along with other terms incorporated by reference. That requires the written terms and the incorporated terms to be read as parts of the whole contract, to be interpreted harmoniously according to the ordinary rules of construction of contracts.

53 Secondly, that process of construction must take place against the background provided by the statutory regime. That regime gives those incorporated terms which have statutory force primacy over other terms to the extent that those terms are inconsistent. The associate judge correctly cited the observations of Brennan J in Suttling, quoted above, to that effect.[11]

54 In the present case, the terms to be construed are those concerning probation in the letter of offer and, relevantly, the following provisions having statutory force:

(a) s 2.4.8(2) of the Act providing that a person employed in the teaching service on probation remains on probation until his or her employment is confirmed or annulled in accordance with the Ministerial Order;

(b) cl 9.6.2 of the Ministerial Order, providing that, at the expiration of the period of probation, the Secretary will either confirm the employment, annul the employment or extend the probation for a further period.

(c) cl 21(4) of the Schools Agreement, to like effect, the statutory force of which is confirmed by s 2.4.2 of the Act and cl 1.1.1 of the Ministerial Order.[12]

55 In approaching this question, the associate judge considered that the letter of offer reflected a determination not to extend the period of probation applying to Mr Tutos. This was because the letter provided only two alternative scenarios for the treatment of the employment when the probation period expired: the employment 'will either be confirmed or annulled'.

56 It may be accepted that, if the letter of offer was purporting to deprive the Secretary of the power to extend Mr Tutos's period of probation, being a power conferred by statute, the contract would have been void to that extent, as preventing the due exercise of a statutory discretionary power.[13] However, in our opinion, that was not the effect of the letter of offer.

57 The meaning of the letter is not determined according to what Mr Tutos understood it to mean. The meaning of a contract is, in accordance with longstanding legal principle, to be determined by reference to what a reasonable person in the position of the parties would understand it to mean, rather than by the subjective beliefs of one party or the other.[14]

58 Properly construed, it was necessary to read the offer as being subject to the statutory and administrative regime to which it refers. On a literal reading, the probation clause refers to a single defined period of time. But when read with the provisions mentioned above, it is plain that the specified period is capable of extension. The 'probationary period' referred to in the offer is therefore the specified period, subject to any extension. Alternatively, the specified period of probation is to be understood as being only the initial such period. On either view, it is only at the end of the specified period, together with any extension, that the employment 'will either be confirmed or annulled'.

59 It is unfortunate that the effect of reading the letter of offer together with the statutory materials is that the disputed words of the letter are shown not to have their literal meaning. It is understandable that Mr Tutos should regard the task of understanding the contract as a whole as an unsatisfactory 'puzzle'. The Department appears to have accepted this in adopting the different and clearer form of offer which Mr Tutos produced to the Court. However, the letter of offer sent to Mr Tutos did make clear reference to the statutory materials and in our view the meaning of the letter, read in that context, is plain.

60 For that reason, in our view, the associate judge was not correct to hold that the probation clause was invalid. Even if our preferred construction were to be wrong, however, the result identified by the associate judge would still not follow. That is because, as the State submitted, if there was an impermissible attempt to fetter the Secretary's power to extend Mr Tutos's period of probation, it is only the fetter that would be void. The contract would operate without the fetter, so that it no longer presented only the two alternative courses of action at the end of the probation period. In other words, the invalidity of the contract would not extend to the whole probationary clause, but only to the sentence 'At the end of the probationary period your employment will either be confirmed or annulled'.

61 Accordingly, the appeal succeeds on the first two grounds. There are then two questions relevant to the further determination of the matter. The first is whether the Board's reasons were legally inadequate, with the result that its decision should be set aside on that basis. The second is what course should be taken in respect of the other grounds argued before the associate judge, which she did not find it necessary to decide.

Adequacy of the Board's reasons (proposed ground 3)

62 In respect of the reasons of the Board, the position is clear. The Board was under no statutory or other obligation to provide reasons for its decision.[15] Had it been asked to provide reasons, s 8(1) of the ALA would have obliged it to do so. That sub-section provides:

A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.

63 Because the Board provided reasons of its own accord, there was no request and this obligation was not enlivened. But in any event, the consequence of failing to provide reasons when asked to do so under the ALA is not that the decision involves an error of law.[16] Section 8 provides only that, in the case of such a failure, the Court may order that reasons be provided.[17] This was therefore not a case where the provision of reasons failing to meet the requisite standard could have given Mr Tutos the relief he sought. The associate judge recognised this.[18]

64 The third ground of appeal seeks to challenge the associate judge's conclusion that the Board's reasons for dismissing the grievance of Mr Tutos did not properly disclose its pathway of reasoning. That conclusion, for the reasons set out above, rested on the misconceived basis that there was an obligation to provide reasons. But even if the conclusion were to be accepted (which it is here unnecessary to decide), it did not sustain the relief sought by Mr Tutos, as the associate judge correctly observed. The issue is therefore moot and leave to appeal should be refused in respect of this ground.

65 Finally, it is necessary to consider the issues which the associate judge did not resolve. They were:

(a) whether the Board's finding that the Secretary had complied with the probation guidelines was open on the facts, and whether that decision was so unreasonable that no reasonable person would have made it; and

(b) whether the Board's decision to confirm the annulment of Mr Tutos's probationary appointment was not open on the evidence before it.

66 At the hearing in this Court, senior counsel for the State urged the Court, if it upheld the appeal, to deal finally with these issues and order that the judicial review proceeding be dismissed. It was submitted that this Court was in just as good a position as a judge in the Trial Division to resolve the outstanding issues and that this course would be more efficient than remitting the matter to the Trial Division for further determination. Since the Court had not had the benefit of written submissions in respect of the remaining issues, we made directions for the filing of supplementary written cases.

67 In its further submissions, the State contended that there were no relevant factual disputes or issues of credit left unresolved and that this Court was therefore in as good a position as a single judge to decide the remaining issues.[19] It was submitted that remittal would involve unnecessary delay, costs and stress for Mr Tutos.

68 Mr Tutos in his written submissions did not directly address the question whether this Court should decide the remaining issues. He submitted that it was not necessary for the Court to 'focus on other grounds' because he had filed a writ and statement of claim in the Trial Division in which his grievances would be aired. Instead, Mr Tutos made submissions directed at the merits of the Board's decision. To some extent these submissions touched upon the issues undecided by the associate judge, but the submissions also raised extraneous matters, including as to the propriety of the conduct of the Board hearing, which are not part of the judicial review proceeding now before the Court. Mr Tutos did not suggest that this Court would be in any way impeded in deciding the remaining issues for itself.

69 In our view, the State's submissions should be accepted and this Court should dispose of the case on the basis that it is in as good a position as a judge on remitter to do so. However, it should be noted that we are only in a position to do that because we have found the reasons of the Board to be sufficient to reveal its path of reasoning for the purpose of identifying whether its decision was attended by legal error. Although we would still refuse leave in respect of that ground for the reasons given, it will become apparent in what follows that we disagree with the associate judge's conclusion to the contrary.

70 The first of the remaining issues concerns the Board's finding that the Secretary, through Ms Hollis and then Mr Neall, had complied with the probation guidelines. The Board dealt with this issue as follows:

4.1.2.1 Mr Tutos contended that the probationary process was flawed and that no steps as outlined in the Department's guidelines were implemented until the decision to extend probation was made.

4.1.2.2 The Board rejected this contention as noted above, no issues of significance concerning Mr Tutos arose until relatively close to the end of his initial probation period. The Board accepts that not all the formal steps contemplated in the probation guidelines were followed by the college. The Board does not find the lack of these formal steps to be a flaw. Mr Tutos was an experienced teacher and it was entirely reasonable that the college would expect him to be able to perform with a limited induction program.

4.1.2.3 The Board noted that when issues with Mr Tutos' conduct arose, the college appropriately followed the required guidelines.

4.1.2.4 Further, Mr Tutos contended that the decision to extend his probation was not properly documented.

4.1.2.5 The Board rejected this contention. The Board was provided with sufficient documentation in relation to the decision to firstly extend and then annul Mr Tutos' probation.

4.1.2.6 Mr Tutos raised the issue of the college requiring him to complete a performance and development plan in breach of the probation guidelines.

4.1.2.7 The college acknowledged this as an error and the Board found that it had no impact on the annulment decision.

71 There are two aspects to the grievance advanced by Mr Tutos in this respect. The first is that procedures mandated by the probation guidelines were not followed. The second is that the procedures that were followed were contrary to those guidelines. The Board characterised the steps that had not been followed as 'formal' and found that it was 'entirely reasonable' that Mr Tutos was given a limited induction program in light of his experience. The Board further found that procedures were followed once issues about Mr Tutos's conduct arose. That included 'sufficient documentation' in relation to the extension and annulment of his probation.

72 These conclusions were reasonably open to the Board. Mr Tutos was an experienced teacher and it was open to find that departure from strict compliance with induction procedures was reasonable in that context. The correspondence between Ms Hollis and Mr Neall, on the one hand, and Mr Tutos on the other clearly documented the concerns upon which the school acted in extending his probation and sought responses and corrective actions on the part of Mr Tutos. There was evidence of meetings between Mr Tutos and Ms Collis and Mr Neall, respectively, at which these issues were discussed. The Board was therefore justified in finding that procedures had been followed once issues arose.

73 Turning then to the allegation that inappropriate professional development requirements were imposed, Mr Tutos in his supplementary submissions drew specific attention, as he had previously, to a policy statement to the effect that a person on probation is not required to participate in the normal performance and development process. He alleged that policy required that the performance and development guidelines not be applied to a person on probation and that this had been breached in his case. As is apparent from paragraph 4.1.2.7 of the Board's decision, the Department had acknowledged that this was an error but the Board found that it had no impact on the annulment decision.[20] In other words, the two matters were unconnected. In our opinion, this conclusion was reasonably open to the Board. It is plain that Mr Tutos's employment was annulled on grounds other than a refusal to comply with inappropriate requirements. The Board referred to the school's 'concerns with Mr Tutos' lack of insight and what appeared to be a total lack of capacity to respond appropriately to feedback'. It was open to the Board to find that the fact that he was wrongly required to pursue professional development had not impacted upon the school's decision.

74 The remaining issue concerns whether the Board's decision to confirm the annulment of Mr Tutos's probationary appointment was open on the evidence. As already indicated, the Board identified specific concerns about the performance of Mr Tutos. It heard evidence over several days, including from Ms Hollis and Mr Neall. There was evidence that, in response to concerns being raised about his performance by Mr Neall, Mr Tutos had threatened to go on a hunger strike. Ms Hollis stated that at earlier meetings with Mr Tutos she had felt threatened and intimidated. The school had received a number of complaints from students regarding Mr Tutos.

75 In our opinion, it was open for the Board to confirm the annulment of Mr Tutos's employment. In the face of issues having arisen regarding his conduct both in and outside the classroom, the school raised its concerns with him and sought to address the issues it identified. The Board found that Mr Tutos at this point 'became difficult and unreasonably argumentative and demanding'. Mr Tutos did nothing, on the evidence, to attempt to address the issues that had been raised with him but instead 'persisted with misguided views around his offer of employment and possible probation outcomes'. In circumstances where a positive response was sought to the matters raised, including regarding his ability to receive and act on 'feedback', Mr Tutos appears to have exacerbated rather than allayed the school's concerns. In the circumstances, it was well open to the Board to be satisfied that the annulment decision was in accordance with legislative and departmental requirements and that it was not in any way unreasonable.

76 It follows that leave to appeal should be granted in respect of proposed grounds 1 and 2, and refused in respect of proposed ground 3. The appeal should be allowed. The orders of the associate judge should be set aside and in their place it should be ordered that the application for judicial review be dismissed.

[1] Strictly speaking, it is the employment rather than the probation which is annulled. However, both the Board and the associate judge referred at times to the probation being annulled.

[3] The term 'delegate' is defined in the guidelines, in terms not relevant for present purposes.

[4] Tutos v State of Victoria [2018] VSC 23 [54]-[55] ('Reasons').

[5] Reasons citing Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427, 437-8.

[6] [1977] HCA 71; (1977) 139 CLR 54, 74 (Mason J).

[7] Reasons [54]-[55] (emphasis in original) (citations omitted).

[10] Public Service Board (NSW) v Osmond (1986) 159 CLR 656 ('Osmond'); Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot'); Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434.

[11] See [36] above.

[12] The Probation Guidelines are also to like effect. It is not necessary to decide whether they have statutory force.

[13] L'Huillier v Victoria [1996] VicRp 79; [1996] 2 VR 465, 481 (Callaway JA).

[14] Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 352 (Mason J).

[15] Osmond (1986) 159 CLR 656, 662 (Gibbs CJ); 675-6 (Deane J); Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 497-8 [43].

[16] Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434, 451 [74].

[19] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [34] (Gageler J).

[20] See [71] above.