WAQA v TECHNICAL AND FURTHER EDUCATION COMMISSION

Court of Appeal (NSW)|2009-06-03|Before: Beazley JA, Giles JA, Basten JA, Commission J

The applicant indicated on the form she had read the comments and discussed the recommendation with her line manager/supervisor and was "not satisfied with the recommendation". 13 Part of the evidence before the primary judge was an affidavit of the applicant dated 14 November 2007. It was lengthy and set out in great detail many of the events which took place over the period 2005-2007. Some parts appear not to have been read or to have been rejected. However, those which remained in evidence appear to have included a lengthy statement of the discussions with Ms Field on 3 August 2005 and 10 October 2005. 14 On 18 October 2005 the applicant wrote to the then Institute Director, Mr Neil Black, complaining about her assessment. Mr Black treated the letter as a complaint with respect to Ms Field and appointed a private consultant, Mr Notley, to investigate and report on the complaint. Mr Notley's report, dated 20 November 2005, concluded: "The grievance was laid against Ms Field. Her conduct was found to be free of intimidation, harassment, bullying and manipulation. In reality the investigation was dominated by the evidence of staff and the problems they identified in the behaviour of Ms Waqa. It also highlighted the existence of a long-standing problem now being addressed by Institute management." 15 The report also included two passages which proved significant in the light of later events. On the third page of the report, Mr Notley referred to a complaint of "continually bringing up issues though they have been resolved". He described Ms Field's responses to this complaint in the following terms on the third and fourth pages: "She said she had a couple of informal discussions with Ms Waqa about these concerns in accordance with Institute policy which encourages informal discussions as a first step …. Ms Field then began to receive written complaints from staff about Ms Waqa. … Ms Waqa views the letter dated 11 August 2005 from Ms Field enclosing minutes of their 3 August 2005 meeting as an example of bringing up old issues …. On interview Ms Field stated that she sent Ms Waqa the minutes, notwithstanding an agreement reached in the meeting that the issues raised in the meeting were not to be brought up again, in accordance with policy directives - see Managing Director's Determination - 1996 (hereafter MDD), Discipline 1.6-1.8 and 1.10. This justification seems reasonable and doesn't constitute a form of intimidation. Ms Field also referred to Determination 1.13 Work Improvement/Decline, of the MDD to justify why in the course of dealings with Ms Waqa she would repeatedly bring up issues of concern." 16 In February 2006 the applicant was reassigned from teaching duties to project work. As explained by the primary judge, throughout 2006 she "participated in measures to give effect to the recommendations in" the report of November 2005. In June 2006 the applicant raised with the acting faculty manager the possibility of mediation to facilitate her reintegration into the teaching staff. 17 On 3 July 2006 the applicant wrote to the Acting Institute Director, Ms McGregor, seeking to appeal against findings contained in the November 2005 report. She set out, in a three page letter, her complaints about the report. Attached to the letter was a 40 page closely typed document headed "Appeal on grievance investigation report", together with attached references and achievement awards. 18 Ms McGregor arranged for the appeal to be considered by a project officer in Workplace Development, Ms Ruth Gallagher. Her report, dated 14 August 2006 recommended that the appeal be dismissed. On 8 September 2006 Ms McGregor forwarded the report to the applicant with a covering letter stating that she had decided to accept the report and intended to forward a copy to the acting Faculty Manager and the Director, Educational Programs (Mr Baldry) and to "ask them to make recommendations to me with regard to continued work arrangements after your return [from sick leave]". She concluded: "In the meantime, the arrangements in place before you went on leave will continue while these recommendations are being considered." 19 On 25 September 2006 the applicant responded to the acting Faculty Manager asking if Ms McGregor, Mr Baldry and he had "discussed my continuing work arrangements". She continued: "To move forward I would like to know what I will be doing next term. I would like to go back to the section/teaching if at all possible." 20 On 12 December 2006 Mr Baldry provided a memorandum, apparently to the Institute Director, Ms McGregor, containing a review of the Gallagher report. Mr Baldry noted: "The matter originally stemmed from Mhairi [the applicant] not accepting initial and informal performance management from her supervisor, Trish Field. The issues addressed with Mhairi were behavioural concerns involving classroom management, issues with other staff within the Hairdressing section at Coffs Harbour, and team communication matters. Ms Field raised these issues in terms of the procedures for Maintaining Satisfactory Performance as provided by the Managing Director's Determination - 1996." 21 After referring to some further history, Mr Baldry concluded: "To my mind, Mhairi's behavioural problems are issues that the guidelines treat as allegations of misconduct. The issues surrounding these problems have now been independently investigated on two separate occasions. Accordingly, I do not see any purpose being served by any further reviews or investigations, nor do I see the matter being a disciplinary one at this stage. The guidelines do provide for the implementation of remedial action in cases of allegations of misconduct, and a determination that misconduct has occurred does not have to be made for remedial action to be imposed by a decision maker. Accordingly, I recommend that remedial action be implemented to address Mhairi's behavioural concerns, including formal counselling and issuing of a warning. Mhairi's classroom management and team communication problems are performance concerns which are dealt with in terms of the Procedures for Managing Unsatisfactory Performance . Implementation of these procedures would enable Mhairi to receive guidance and support through a formal negotiated and documented ten week improvement program. This improvement program would be negotiated between Ms Field and Mhairi, and would involve the participation of an Improvement Program Manager, who would be appointed by the Director, People and Organisational Development." 22 This recommendation was approved by the Institute Director on 18 December 2006 and formed the basis for the decision notified to the applicant on 22 January 2007. Transitional provisions 23 Although the primary ground of challenge concerned lack of procedural fairness, it is necessary first to characterise the nature of the decision under challenge, in its statutory context. 24 It is clear from the terms of the Institute Director's letter of 22 January 2007 and from the terms of the recommendation of Mr Baldry, on which the decision was based, that the Director sought to take "remedial action" under Pt 6A of the TAFE Act. That Part was introduced by the Education Legislation Amendment (Staff) Act 2006 (NSW) ("the 2006 Act"), Sch 1.2, which commenced on 4 August 2006. The transitional provisions, inserted as Pt 4 of Sch 4 of the TAFE Act, provided that Pt 6A extended to conduct occurring before its commencement: cl 11. There was an exception in relation to existing disciplinary matters which read as follows: " 12 Existing disciplinary matters (1) Any breach of discipline by a member of staff to whom Part 6A applies that was, immediately before the commencement of that Part, being dealt with under any disciplinary determination that applied to that member, is to continue to be dealt with as if that Part had not been enacted. (2) In this clause: disciplinary determination means a determination made under section 16 of this Act (as in force before its repeal …) …." 25 The first question raised by cl 12 is whether the applicant was a member of staff to whom Pt 6A applies: it was not contended that she was not. The second question is whether a breach of discipline was being dealt with under a disciplinary determination immediately prior to the commencement of Pt 6A. 26 To answer the second question, it is necessary to find a meaning for the phrase "breach of discipline" in the context of a determination in force when the 2006 Act commenced. Section 16 of the TAFE Act, prior to its repeal, had provided that the Commission might fix "the salary, wages and conditions of employment of its staff …". On 10 October 1996, the Managing Director signed, on behalf of the Commission, a determination ("the 1996 determination") which was headed "Discipline" and was said to apply to all educational staff included in the NSW TAFE Commission Teachers and Other Educational Staff Salaries and Conditions Award 1996. The 1996 determination constituted the relevant "disciplinary determination" for the purposes of the transitional provision. 27 Section 2 of the determination was concerned with "the Discipline Process" and stated in a number of introductory paragraphs the general principles and mechanics of the process. The process was, in most cases, to commence with a "fact-finding interview": at par 2.7. Paragraph 2.13 states in part: "Depending on the method of recording the interview, all notes, tapes etc are to be securely preserved if disciplinary action results in charges being laid and charges proven, at least until the time of appeal has expired." 28 Paragraph 2.14 contained a new heading "Procedures". Paragraph 2.14.1 commenced: "The following disciplinary procedures will apply to all TAFE Commission staff: (a) a report of the investigation is sent to the Institute Director or Executive Director or nominee who will determine whether or not to charge the officer with a breach of discipline." 29 Where such a charge was laid, a further process was provided and various disciplinary options could result, where the charge was proven. Because the transitional provisions in the 2006 Act were concerned with action which might have been taken under the determination, the phrase "breach of discipline" should be understood in the sense in which it was used in the determination. That stage had not been reached in relation to the applicant. Accordingly, accepting (contrary to the view of the primary judge) that the applicant "was being dealt with under the determination", she was not, as at 4 August 2006, being dealt with for a breach of discipline, because no such charge had been laid against her. Accordingly, the transitional provision did not apply. Erroneous approach to remedial action 30 The second and third bases of challenge raised by the applicant concerned the application of ss 22H and 22J in Pt 6A of the TAFE Act. In substance, the submissions were as follows:

(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. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Education Legislation Amendment (Staff) Act 2006(NSW)

Public Sector Employment and Management Act 2002(NSW)

Coroners Act 1920(WA)

CITATION: WAQA v TECHNICAL AND FURTHER EDUCATION COMMISSION [2009] NSWCA 213

Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Annetts v McCann [1990] HCA 57; 170 CLR 596 Castle v Director-General State Emergency Service [2008] NSWCA 231 Baba v Parole Board (NSW) (1986) 5 NSWLR 338 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 CASES CITED: Commissioner of Police v Ryan [2007] NSWCA 196; 70 NSWLR 73 Commissioner of Police v Tanos [1958] HCA 6; 98 CLR 383 The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78

LOWER COURT MEDIUM NEUTRAL CITATION: Waqa v TAFE Commission [2008] NSWSC 808

In order to institute remedial action in respect of an allegation of misconduct, there must be sufficient information to conclude that the allegation has substance. The requirement will lie somewhere between the mere existence of an allegation and satisfaction that misconduct has occurred: [34].
The power to institute remedial action is not conditioned by precise definitional limits of conduct capable of giving rise to remedial action. The conduct in question was capable of giving rise to disciplinary action, and was, in the view of the Institute Director, "unacceptable"; no more definite opinion was required: [36].
The requirement that unsatisfactory performance be current was important, but the use of the present tense in a statutory provision is not to be applied mechanistically. An assessment of current performance will always be judged by reference to past events. There was no basis for doubting that the investigation and its subject matter were related to the applicant's current performance: [41]-[42]. The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145, referred to. In relation to (iii) (per Basten JA, Beazley and Giles JJA agreeing)

It will often be unhelpful to distinguish a threshold question as to whether there is any duty to accord procedural fairness. The preferable approach is to have regard to the nature of the interests potentially affected in order to determine the nature and extent of any procedural obligation. The obligation to accord procedural fairness extended to the taking of remedial action: [49], [52]-[53]. Commissioner of Police v Tanos [1958] HCA 6; 98 CLR 383; Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564; Annetts v McCann [1990] HCA 57; 170 CLR 596; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57; Baba v Parole Board (NSW) (1986) 5 NSWLR 338; Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78; Commissioner of Police v Ryan [2007] NSWCA 196; 70 NSWLR 73; Castle v Director-General State Emergency Service [2008] NSWCA 231, applied.
Procedural fairness may require a decision-maker to provide notice that steps may be taken which are not reasonably apparent to the person affected. In the circumstances, no such omission having practical content could be identified. The decision continued a process already on foot, and no practical disadvantage accrued from a failure to notify the applicant that the label of "remedial action" now attached to the steps being taken: [55]-[56], [62]-[64]. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576, applied.

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (5)

Cases Cited (14)

Cited By (1)