No indication is given of the scope of the inquiry but it is clearly to be inferred from the scheme of the section that, where ordered by the council under s. 99 (2), it is to relate to the service of the servant, and, where ordered by the council under s. 99 (4), it is to relate to the grounds upon which the servant has been suspended. It is clear moreover from s. 99 (8), (9), (10), (11) that the inquiry is to have some of the qualities of a judicial inquiry into the propriety of the servant's conduct, the justification for termination of his services and his right to salary during any period of suspension.
With respect, the first sentence of this dictum is misleading. An inquiry under sub-s. (2) is not necessarily into the service of the employee and an inquiry under sub-s. (4) is not limited to the reasons stated by the council for the suspension. In both cases the inquiry is into the question whether the servant should be dismissed. The area covered by the inquiry will depend to some extent upon what issues are raised by the council and the servant respectively and it is neither necessary nor desirable to attempt to formulate an exhaustive list of the matters that might be relevant on such an inquiry. Not every case of proposed dismissal will be on the ground of misconduct; it may be proposed to terminate the employment of a servant because of unfitness due to ill-health or incompetence or because he is redundant to the requirements of the council or because the council is in a financial difficulty which requires it to retrench its staff. It follows that it cannot be right to regard an inquiry as simply into allegations of misconduct. If the proposed dismissal is because of alleged misconduct the inquiry may in some cases be into the question whether the allegation has been made out, and, since it may be conceded that if the alleged misconduct is established dismissal would be warranted in spite of the servant's past unblemished record, it may not be material to inquire into his service generally. In other cases, the allegation of misconduct may be admitted and the inquiry may be into the question whether the misconduct was excusable or whether the servant's character or service has been such as in the circumstances would warrant the council retaining his services. Clearly it will not be right to say that a report is not substantially favourable simply because it finds that one or indeed all of the acts of misconduct alleged have been established. A report may be substantially favourable to a servant, although it contains some matters unfavourable to him. The question whether a report is substantially favourable must depend upon a consideration of the report as a whole and if the report lends substantial support to the view that the servant ought not to be dismissed it may be regarded as substantially favourable to him. Moreover it is wrong to suggest that a report which fails to deal with some matter relevant to the question of the termination of the servant's employment is for that reason not substantially favourable. What the report contains, rather than what it omits, will show whether or not it is a substantially favourable report.
1. (1963) 64 S.R. (N.S.W.) 62, at p. 67; 9 L.G.R.A. 316, at p. 321.