WAQA v TECHNICAL AND FURTHER EDUCATION COMMISSION

(a) for the purpose of taking remedial action under s 22H, the relevant officer must find that "misconduct" has occurred; (b) there was no finding of misconduct in the present case, or, in the alternative, if there were such a finding, it was one which was not reasonably open in the circumstances; (c) to the extent that the remedial action was based upon unsatisfactory performance, the relevant officer failed to form the necessary opinion, and (d) any opinion she did form was not as to the current performance of the applicant. 31 Section 22H is engaged in the following circumstances: "22H Dealing with an allegation of misconduct (1) If an allegation is made to the appropriate Division Head that a member of staff may have engaged in any misconduct, the appropriate Division Head may do either or both of the following: (a) deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, (b) take remedial action with respect to the staff member." 32 There is nothing in s 22H which expressly requires a finding that misconduct has occurred before remedial action can be taken. On one view, remedial action may be seen as a diversionary program, the purpose of which might be undermined if a formal finding were required to be made, before such action could be taken. On the other hand, the applicant argued that taking remedial action was itself a significant step in relation to her career in the Government Service and could have adverse consequences in the future. She relied upon the nature of remedial action, which may include any of the following steps specified in s 22D(1), namely: "(a) counselling, (b) training and development, (c) monitoring the staff member's conduct or performance, (d) implementing a plan addressing unsatisfactory performance, (e) issuing of a warning to the staff member that certain conduct is unacceptable or that the staff member's performance is not satisfactory, (f) transferring the staff member to another position in the Government Service that does not involve a reduction of salary or demotion to a lower position, (g) any other action of a similar nature." 33 The primary judge was of the view that the making of an allegation was of itself sufficient to trigger the power to take remedial action: Judgment of 7 November 2008, at [23]. It seemed to be implicit in this bald statement that no finding of misconduct was necessary. On the other hand, her Honour also noted passages in the letter from the Institute Director of 22 January 2007 which expressly accepted that certain conduct was "unacceptable" and identified particular elements of the applicant's behaviour which had been contrary to the code of conduct. 34 Despite the unqualified language of s 22H(1) it is unlikely that the power to take remedial action was intended to be triggered by the mere existence of an allegation of misconduct. The preferable construction, given the nature of the power conferred, is that there must be sufficient information for the relevant officer to satisfy himself or herself that the allegation has substance. That requirement will lie somewhere between the mere existence of an allegation and satisfaction that misconduct has occurred. What is required will depend upon the circumstances, but is clearly not dependent upon a fact-finding process of a kind which would be required before the taking of disciplinary action. In the present case, a number of steps had been taken by way of inquiry and investigation (and attempted remedy) with respect to the applicant's conduct. It was undoubtedly open to the Institute Director to be satisfied that allegations of the kind specified in her letter had substance. 35 There remains a question as to whether it was open to the Institute Director to be satisfied that such unacceptable conduct fell within the category of "misconduct", as defined in Pt 6A, and whether she was so satisfied. That requires consideration of the definition contained in s 22E, which relevantly provides: " 22E Meaning of 'misconduct' (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action…." 36 This definition does not provide precise limits on the kinds of conduct which might constitute "misconduct". Nor can any final view as to the appropriate characterization have been intended in order to engage s 22H(1). No doubt the conduct said to have occurred must be of a sufficiently serious nature to justify the taking of disciplinary action, which could lead to dismissal from the Government Service, but could also lead only to a "caution or reprimand": s 22D(1), disciplinary action. The relevant misconduct, particularised in the Director's letter set out at [9] above, involved a number of elements of variable seriousness. Each, however, was capable in itself of justifying disciplinary action and it is clear that the Institute Director was of the view that it did, by describing the conduct as "unacceptable". No more definite opinion was required, with the consequence that the first two submissions must be rejected. 37 The third submission was that the Institute Director acted both on the basis of misconduct and unsatisfactory performance. It was not suggested, nor could it have been, that she erred in any legal sense in adopting both characterizations. Rather, in dealing with the matter as unsatisfactory performance, it was said that she failed to satisfy herself as to the relevant preconditions for taking remedial action under s 22J. So far as relevant, that section provides: " 22J Dealing with unsatisfactory performance (1) If the appropriate Division Head is of the opinion that a member of staff is not performing the staff member's duties in a satisfactory manner, the Division Head may decide to do either or both of the following: (a) take remedial action with respect to the staff member, (b) take disciplinary action with respect to the staff member." 38 The gravamen of this challenge is by no means clear, the Institute Director having expressly proposed the issue of a warning letter stating "that certain conduct is unacceptable" and implementing a plan "addressing unsatisfactory performance". There is no reason to suppose that she had not formed the relevant opinion, namely that the applicant's performance was "unsatisfactory". The latter is sufficient to constitute an opinion that the applicant was "not performing [her] duties in a satisfactory manner". This ground of challenge to the decision is without substance. 39 The final submission was that the opinion formed did not relate to the current performance of the applicant's duties. Rather, it was contended, the opinion was based upon conduct which occurred prior to the meeting with Ms Field in August 2005, some 18 months earlier. 40 The use of the present tense is important, but is not to be applied mechanistically: cf The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [68]-[74]. The manner of current performance will always be judged by reference to events which have taken place. An assessment of current performance may require consideration of performance over a period of time. To take an example, a member of staff who is liable to display aggressive behaviour on occasion, may not have misconducted himself or herself for some weeks, but, by a period of misconduct over time, may have demonstrated a degree of incapacity to perform in a satisfactory manner sufficient to satisfy a division head that he or she "is" not performing in a satisfactory manner. There will be matters of degree to be considered by the person minded to take remedial action. 41 In the circumstances of the present case, the challenge has not been made good on its factual premise. Thus, although the conduct complained of was reviewed in August 2005 and preceded that review, steps taken to counter the perception of unsatisfactory performance had later proved insufficient. As noted in Mr Baldry's recommendation of 12 December 2006, Ms Felix, the person responsible for coaching the applicant, had advised on 24 July 2006 that the applicant's "commitment to change was unreliable and could not be trusted". 42 The attempts by Institute management to deal with what were perceived as behavioural problems of the applicant extended over more than 18 months. However, the reason for the extended period was attributable in large part to the steps taken by the applicant to challenge recommendations, firstly of her supervisor, Ms Field, and secondly, of Mr Notley who investigated her earlier complaint. Thus, despite the delay, it was apparent from the applicant's own affidavit evidence that officers in the Commission were continuing to address the perceived problem in the second half of 2006. There is no basis to suppose that the opinion conveyed by the Institute Director's letter of January 2007 was not related to current performance. This challenge must be rejected. Lack of procedural fairness 43 The final matter to be addressed is a complaint by the applicant that she was not accorded procedural fairness prior to the decision by the Institute Director to take remedial action. Although it has been convenient to deal first with the other allegations, in order to outline the statutory and factual context, failure to accord procedural fairness was the primary basis for challenging the validity of the decision. The contentions of the parties gave rise to the following questions:

(a) Was the Commission obliged to accord the applicant procedural fairness before taking remedial action? (b) If so, did it - (i) fail to provide her with an opportunity to put her case before taking remedial action, or (ii) fail to comply with applicable guidelines? (c) If yes to either part of (b), did that constitute a breach of any requirement of procedural fairness applicable in the circumstances? 44 In relation to the obligation to accord procedural fairness, the applicant emphasised the potential adverse consequences of the remedial action in relation to her continued employment in the Government Service. The Commission argued that remedial action was a lesser alternative to disciplinary action and was directed to the continuation of the employment. It did not, the Commission contended, affect the applicant's rights or interests in a way which attracted an obligation to accord procedural fairness. 45 The obligation to accord procedural fairness, as a mandatory precondition to valid decision-making, has proved to be a major component of expanding judicial supervision of administrative decision-making. In addressing the validity of a coroner's decision not to hear closing addresses in the course of an inquest conducted under the Coroners Act 1920 (WA), Mason CJ, Deane and McHugh JJ commented in Annetts v McCann [1990] HCA 57; 170 CLR 596 at 600: "It simply would not have occurred to anyone in the legal profession in 1920 that the common law rules of natural justice applied to an inquiry whose findings could not alter legal rights or obligations. No doubt the legislature assumed that the rights of natural justice did not apply to coronial inquiries. But that is no ground for concluding that the legislature intended to exclude those rights if they were otherwise held to apply." 46 The expanded operation of procedural fairness has depended upon the abandonment of fixed rules, in favour of flexible principles, in three respects:

(a) the acceptance of "interests" as a sufficient threshold of affectation; (b) departure from the requirement that the decision have a final and operative effect on rights, and (c) allowing the obligation to have a variable content. 47 Some limits on the scope of judicial supervision may arise from the nature of the available relief. Thus, in relation to an attempt to quash the findings of the Queensland Criminal Justice Commission concerning an individual involved in the gaming industry, Mason CJ, Dawson, Toohey and Gaudron JJ noted in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 580 that the "function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review". However their Honours further stated that "when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities", certiorari may be available. When it is open to say that certiorari is available to quash a "step in a process capable of altering … interests" was a question that did not need to be considered in Ainsworth, the Court being satisfied that declaratory relief was available: see also Castle v Director-General State Emergency Service [2008] NSWCA 231 at [21] and [43]. 48 It has always been accepted that in relation to a statutory power, a general law duty to provide procedural fairness may be excluded by the legislation. However, express exclusion is unusual, except in cases where the statute provides its own procedural protections. Further, the provision of specific protections will usually not lead to an inference that other forms of procedural fairness were intended to be excluded: Commissioner of Police v Tanos [1958] HCA 6; 98 CLR 383 at 395-396 (Dixon CJ and Webb J); Annetts v McCann at 598; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [43] (Gleeson CJ and Hayne J), [95] (Gaudron J), [126] (McHugh J) and [181] (Kirby J). Similarly, an express statement that procedural fairness conditions the exercise of a particular power will usually not lead to the inference that it did not condition the operation of another power conferred in the same statute: see Baba v Parole Board (NSW) (1986) 5 NSWLR 338 at 344-5 (Hope JA), 347 (Mahoney JA), and 349 (McHugh JA), applied in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78 at [86]-[89] (Spigelman CJ); Commissioner of Police v Ryan [2007] NSWCA 196; 70 NSWLR 73 at [28]. To the extent that the trial judge in the present case relied on a contrast between the statutory requirement that procedural fairness be accorded prior to taking disciplinary action and the absence of any similar provision with respect to remedial action to indicate that such an obligation did not arise in the latter case, that approach was erroneous. 49 The preferable approach is to have regard to the nature of the interests which may be affected, viewed in the light of the relevant statutory scheme, in order to determine the nature and extent of any procedural obligation. On that approach, it will often be unhelpful to separate out a threshold question as to whether there is any duty to accord procedural fairness: see Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [7.90]. 50 Before leaving the question of the existence of the obligation, it is convenient to refer to the applicant's complaint that the Commission failed to adhere to its own "Guidelines for the Management of Conduct and Performance", compliance with which was said to be a precondition to taking valid remedial action. Paragraph 4.2 of the Guidelines, dealing with "Underpinning Principles", stated that "procedural fairness is a legal safeguard applying to an individual whose rights or interests are or could be affected". The paragraph continued: "A fundamental rule of procedural fairness is that a person be advised of the allegations against them and have an opportunity to reply to them." 51 The Commission responded that the Guidelines had no application to the implementation of remedial action. Rather, the Guidelines were issued pursuant to s 22F of the TAFE Act for the purpose of dealing with an allegation of misconduct as a disciplinary matter and for the purpose of taking disciplinary action. In that context, the Guidelines were required to be "consistent with" the rules of procedural fairness: s 22F(2). 52 The Commission's approach adopts too limited a view of its own Guidelines. Amongst other things, s 22F permits guidelines to deal with, not merely disciplinary action, but "any other matter referred to in" Pt 6A. Such matters will include taking remedial action. 53 Just as, for reasons noted at [34] above, a mere allegation of misconduct should not be taken as a sufficient basis for remedial action, so it should be accepted that procedural fairness will govern whatever investigation is undertaken, in circumstances where an allegation is not rejected out of hand. The content of the duty will extend to providing, with appropriate particularity, an indication as to the substance of the allegation, together with an opportunity for the person affected to respond. As the primary judge noted, there was clearly compliance with that requirement: at [40]. However, the basis of the applicant's challenge was rather that she was not specifically forewarned that remedial action might be taken against her. 54 In a formal sense, the complaint is factually correct. The TAFE Act, Pt 6A, only commenced on 4 August 2006 and there appears to have been no communication with the applicant as to its significance for her prior to Mr Baldry's recommendation of 12 December 2006, or between that date and the letter from the Institute Director of 22 January 2007. However, the critical question is whether there was a legal requirement that the applicant be warned that she might be issued a "warning" as an element of remedial action under Pt 6A. 55 Procedural fairness may require a decision-maker to advise a person affected that steps may be taken which are not reasonably apparent from the nature of the process and the circumstances known to the person: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 592, quoted with approval by Kirby J in Ex parte Miah at [194], and applied in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [29] and [32]. As explained by McHugh J in Ex parte Miah at [142], procedural fairness may require a person to be given an opportunity to comment on a matter, even where the matter is known to the person, if "he could not reasonably have been expected to provide information about a matter that he reasonably perceived as irrelevant to his situation". Whether or not that obligation will arise requires consideration of the specific circumstances of the case: see, eg, Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 at [128]-[135] (McHugh J). 56 To determine whether the applicant identified an omission of such a kind and having practical content requires reference to the previous scheme for dealing with allegations otherwise than by way of disciplinary action, prior to the commencement of Pt 6A, and the action taken in the present case. 57 Mr Baldry's memorandum of 12 December 2006, immediately following a reference to the origin of the matter as the applicant's failure to accept initial and informal performance management from her supervisor, Ms Field, identified the issues raised and commented: "Ms Field raised these issues in terms of the procedures for Maintaining Satisfactory Performance as provided by the Managing Directors determination - 1996." 58 On receipt of Mr Notley's report, the then Institute Director (Mr Black) told the applicant that he was implementing what he described as "four pertinent recommendations", the first of which was identified as follows: "I will be advising Ms Field that she should continue to work with you in regard to your performance as provided by the section Maintaining Satisfactory Performance of the Managing Director's Determination - 1996 (copy attached)." 59 The section headed "Maintaining Satisfactory Performance" was the first section of the disciplinary determination. It did not envisage a formal disciplinary process. Indeed paragraph 1.2 under that heading stated that "[s]uccessful resolution of performance concerns avoids disciplinary action". 60 In his letter of 6 February 2006 to the applicant, Mr Baldry stated: "I am also aware of the recommendations implemented by Neil Black, Institute Director with a view to addressing the conflict." 61 The second recommendation adopted by Mr Black was to appoint "a suitable professional support person" to help "coach" the applicant. That appears to have been a deliberate step to improve performance and would appear to have been taken in accordance with the purposes underlying the process set out in the 1996 determination. Mr Baldry's recommendation in December 2006 noted that coaching had been undertaken by Ms Judy Felix, who had provided a report on 24 July 2006. At some stage after that report, Ms Felix had advised that "she felt she could no longer provide coaching to the applicant". It was on the basis that there had been "unsuccessful attempts to informally performance manage" the applicant that Mr Baldry recommended remedial action in December 2006. 62 Against this background, it is necessary to return to the suggestion that the Commission was obliged to warn the applicant before it took remedial action. There are a number of reasons for rejecting any such legal obligation. First, although the applicant's evidence suggested that she did not accept the distinction, taking remedial action was a lesser alternative to taking disciplinary action. Secondly, the transitional provision which required that disciplinary action which had already commenced should continue under the 1996 determination, was clearly based upon the view that other steps relating to misconduct or unsatisfactory performance could properly continue to be dealt with under the new Part. That, it should be inferred, was because they would not become subject to novel procedures requiring any novel and more onerous elements. Thirdly, the applicant's vigorous response to the 2005 allegations indicated that she was conscious of the kinds of adverse consequences which could follow from their acceptance. Fourthly, she had already been subject to most of the actions which were available under the new Pt 6A by way of remedial action, including counselling, coaching, monitoring of her performance, implementing a plan to address unsatisfactory aspects of her performance and transfer to a different position in the Institute to do project work. Indeed, Mr Black's letter constituted a form of warning as to her conduct and performance. Fifthly, her email to Mr Callaghan on 25 September 2006 reiterated her desire to go back to teaching and recognised that he, Mr Baldry and Ms McGregor were to discuss "my continued work arrangements". Sixthly, at least following the Notley report and Mr Black's letter she knew that she was being dealt with in accordance with the 1996 determination. The evidence supports a finding that she was aware of the potential consequences of continuing unsatisfactory work performance or failure to address issues concerning her conduct. She had been given, and had availed herself of, more than adequate opportunities to defend her conduct and performance and resist any adverse course of conduct by the Commission. 63 The decision of 22 January 2007 continued the process of dealing with the matter otherwise than by way of disciplinary action, but added a degree of formality to the steps already taken by the previous Institute Director, Mr Black, on 5 December 2005. No practical disadvantage followed from the failure to notify the applicant that the label of "remedial action" was now provided by statute and governed the steps available to the Commission. 64 In the circumstances, there had been no breach of procedural fairness in the steps taken prior to the sending of the letter of 22 January 2007 by the Institute Director, nor were further steps required to achieve procedural fairness. The Director's decision to take remedial action was not legally flawed. Conclusions 65 Although in large part for different reasons, the result reached by the primary judge was correct. Because there were aspects of her Honour's reasoning which were open to question, it is appropriate that the applicant have leave to appeal, nevertheless, the appeal should be dismissed. 66 In relation to costs, the Court should make the usual order, no contrary submission having been made. However, and without intending to raise any expectation in either party, because on the reasoning set out above the applicant was entitled to be dissatisfied with the reasons of the primary judge, she should have liberty to apply to vary that order by notice of motion filed and served within 14 days (a period prescribed by the Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A), and not extendable: sub-r (3C)), with written submissions in support. The Commission shall have seven days thereafter to file and serve its response. 67 I would propose the following orders:

(2) Direct that the draft notice of appeal contained in the white book be filed within seven days but waive compliance with the Rules with respect to service.

(4) Order the appellant to pay the respondent's costs of the proceedings in this Court. **********

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