100212358

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES GEOFFREY JOHNSTON

APPLICANT

 -v-

 MR RON MANCE, ACTING DIRECTOR GENERAL DEPARTMENT OF EDUCATION

RESPONDENT

CORAM COMMISSIONER S J KENNER

DATE TUESDAY, 6 AUGUST 2002

FILE NO/S APPLICATION 2302 OF 2001

CITATION NO. 2002 WAIRC 06155

_______________________________________________________________________________

Result Declaration issued

Representation

Applicant Mr M Farrell

Respondent Mr D Newman

_______________________________________________________________________________

Reasons for Decision

1         The substantive application in this matter is described as “To appeal under s 29(b) of the Industrial Relations Act by virtue of the provision of s 78(2) of the Public Sector Management Act 1994, for orders to reverse the decision of the respondent to reprimand and transfer Mr Geoffrey Johnston, a teacher employed by the respondent.”

2         This would appear to be the first application of its kind, consequent upon the repeal of the Education Act 1928 (“the EA”) and s 23B of the Industrial Relations Act 1979 (“the Act”).  As a result of this, the parties to the present proceedings have requested the Commission to determine a number of preliminary questions going to the jurisdiction and powers of the Commission to entertain the present application.  The parties agreed upon the issues to be determined, with the Commission consenting to hearing the questions as a preliminary issue, in all of the circumstances.

Background

3         The applicant is a school teacher and by letter dated 7 December 2001, he was found guilty of a serious breach of discipline.  As a consequence of this, the applicant was reprimanded and transferred from the school where he was a teacher, Cowaramup Primary School.  The applicant, represented by the State School Teaches Union of WA (“the Union”), challenges that decision and maintains that throughout the process, the applicant was denied natural justice.  Furthermore, it is alleged that “charges” against the applicant were invalid and the respondent's decision to impose the penalty it did was wrong.

Questions to be determined

4         The questions to be determined by the Commission as a preliminary issue are set out in an agreed document entitled “Notice of Jurisdictional Questions Raised by the Parties”.  The questions are as follows:

“Question 1

Should the reference in section 78(2) of the Public Sector Management Act 1994 (“the PSMA”) to section 29(b) of the Industrial Relations Act 1979 (“the IR Act”) be read as a reference to section 29(1)(b)?

Question 2

If the answer to question 1 is “yes”, is the application to the Commission under section 78(2) PSMA or a provision within the IR Act and how therefore, is a matter properly brought?

Question 3

If the answer to question 2 is “yes”, and in any event, does the reference in section 78(2) PSMA to 29(1)(b)(or section 29(b) merely indicate that an individual may refer the industrial matter to the Commission as 29(1)(b) provides (and section 29(b) provided) and not that the matter should be dealt in the same way as one of the matters referred to in section 29(1)(b)(i), section 29(1)(b)(ii), both or either?

Question 4

If the answer to question 3 is “no”, which provision should apply?

Question 5

Depending upon the answer to questions 3 and 4, what approach should be taken to a referral to the Commission of a matter pursuant to section 78(2) PSMA?  In particular is it the case that the Commission may only interfere with the decision of the employer where it is considered that the employer acted unreasonably or may the Commission review the decision de novo and substitute its own view?

Question 6

With respect to section 8, of Schedule 1, Transitional Provisions of the School Education Act 1999, was it open to the employer to bring matters of suspected misconduct pursuant to the PSMA against the applicant, where knowledge and action about that behaviour arose under the Education Act 1928 (now repealed)?”

5         In determining these questions, I firstly turn to consider the relevant legislative provisions.   Section 78 of the Public Sector Management Act 1994 (“PSMA”) provides as follows:

 “78. Rights of appeal and reference

   (1) Subject to subsection (3) and to section 52, an employee who —

  (a) is a Government officer within the meaning of section 80C of the Industrial Relations Act 1979; and

  (b) is aggrieved by a decision made in the exercise of a power under section 79(3)(b) or (c) or (4), 82, 86(3)(b), (8)(a), (9)(b)(ii) or (10)(a), 87(3)(a), 88(1)(b)(ii) or 92(1),

  may appeal against that decision to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.

  (2) Despite section 29 of the Industrial Relations Act 1979, but subject to subsection (3), an employee who — 

  (a) is not a Government officer within the meaning of section 80C of that Act; and

  (b) is aggrieved by a decision referred to in subsection (1)(b),

 may refer the decision mentioned in paragraph (b) to the Industrial Commission as if that decision were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.

  (3) Despite section 29 of the Industrial Relations Act 1979, but subject to section 52, an employee — 

  (a) against whom proceedings have been taken under this Part for a suspected breach of discipline arising out of alleged disobedience to, or disregard of, a direction which is by virtue of section 94(4) a lawful order for the purposes of section 80(a); and

  (b) who is aggrieved by a decision made in the exercise of a power under section 82, 86(3)(a), (8)(a), (9)(b)(i) or (10)(a), 87(3)(a) or 88(1)(b)(i),

 may refer the decision referred to in paragraph (b) to the Industrial Commission as if that decision were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.

  (4) In exercising its jurisdiction under subsection (3) in relation to a decision consisting of a lawful order referred to in section 94(4), the Industrial Commission shall confine itself to determining whether or not that decision has been, or is capable of having been, complied with.”

6         Section 29 of the Act is in the following terms:

 “29. By whom matters may be referred

   (1) An industrial matter may be referred to the Commission — 

   (a) in any case, by — 

  (i) an employer with a sufficient interest in the industrial matter;

  (ii) an organization in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organization; or

   (iii) the Minister;

    and

   (b) in the case of a claim by an employee — 

  (i) that he has been harshly, oppressively or unfairly dismissed from his employment; or

  (ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of service,

    by the employee.

  [(1a) repealed]

  (2) A referral by an employee under subsection (1)(b)(i) cannot be made more than 28 days after the day on which the employee’s employment terminated.

  [Section 29 inserted by No. 94 of 1984 s.19; amended by No. 15 of 1993 s.10; No. 1 of 1995 ss.7 and 43; No. 3 of 1997 s.24; No. 36 of 1999 s.247.]”

7         Provisions of the School Education Act 1999 (“SEA”) are also relevant, they being s 239 and clause 8 of Schedule 1 - Transitional Provisions, which are in the following terms:

 “239. Teaching staff and other officers, substandard performance and disciplinary matters

   (1) Part 5 of the PSMA has effect as if in that Part references to — 

   (a) an employee included — 

   (i) a member of the teaching staff; and

   (ii) an officer who comes within section 235(1)(c);

     and

  (b) an employing authority that is not the Minister (within the meaning in that Part) included references to the chief executive officer.

  (2) In addition to the actions that may be taken under the provisions of sections 79(3) and 86(3)(b)(ii) of the PSMA, the chief executive officer may under those provisions make a determination under section 238(1)(a) in respect of a member of the teaching staff.

  (3) Without limiting section 80 of the PSMA, a contravention of this Act is to be taken to be a breach of discipline for the purposes of that section….

 8. Inquiries under section 7C

  (1) If before the commencement an inquiry under section 7C(3) of the repealed Act has begun in relation to a teacher, the inquiry may continue and be completed and — 

  (a) the chief executive officer may exercise powers under the section; and

   (b) the section otherwise applies,

    in relation to the teacher as if the section had not been repealed.

  (2) For the purposes of subsection (1) an inquiry has begun under section 7C(3) if the chief executive officer has in writing requested a person to hold the inquiry.”

8         Before turning to the specific questions to be answered, it is trite to observe that the Commission should approach the task of answering the questions posed in accordance with the established canons of statutory interpretation.  That being that the legislation should be interpreted having regard to the ordinary and natural meaning of the words used in the legislation concerned.  This also involves ascertaining the meaning of a provision in a statute, in the context of the statute as a whole, consistent with ascertaining the purpose to be achieved by it: s 18 Interpretation Act 1984.

9         With those observations in mind, I now turn to the respective questions.

Question 1

10      Section 78(2) of the PSMA, with which the present matter is concerned, makes reference to s 29 (b) of the Act.  Section 29 of the Act, as introduced in the 1979 legislation, was amended by amending Act No 94 of 1994 by the repeal of the then s 29 and the substitution of a new s 29, containing paragraphs (a) and (b) in the same terms as the present s 29(1)(a) and (b) of the Act.  By amending Act No 15 of 1993 s 29 was again amended to re-number the then s 29(a) and (b) as s 29(1)(a) and (b) and to insert a new s 29(2), prescribing a 28 day time limit for matters to be referred to the Commission.  Subsequent amendments to s 29 occurred in 1995 by amending Act 1 of 1995 to insert a new s 29(1a) providing for appeals under the then s 23B being instituted by a teacher.  Additionally, a new s 29(3) was inserted, to enable an extension of the 28 day time limit in prescribed circumstances.  By amending Act No 3 of 1997, ss 29(3) and (4) were repealed.  Subsequently, by amending Act No 36 of 1999 in relation to the SEA, s 29(1a) was repealed, leading to s 29 in its form, prior to the enactment of the Labour Relations Reform Act 2002, which amendments are not material for the purposes of determining the present questions.

11      It can therefore be seen from the above history of s 29 of the Act, that as at the coming into effect of the PSMA, s 29(b) no longer existed in the Act.  It had become s 29(1)(b) as at the end of 1993.  Given that the former s 29(b) referred to claims of unfair dismissal and contractual entitlements, referred to the Commission by an employee, the question is whether that must be taken to have been an intended reference by parliament to s 29(1)(b) of the Act as it was on the commencement of the PSMA.

12      As is evident, a literal reading of s 78(2) would lead to an absurdity as this provision refers to a section in the Act that no longer exists, and indeed, did not exist as at the time of the enactment of the PSMA.  In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 it was said by Gibbs CJ at 156:

“There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case.”

13      It is also the case that if it is obvious that there has been a simple mistake in the drafting of legislation, then courts and tribunals will be prepared to read the legislation in its proper form: Statutory Interpretation in Australia 4th Ed.  Pearce and Geddes at para 2.14.  In Lindner v Wright (1976) 14 ALR 105, the cross reference in a section of legislation to subsection (3) should have been a reference to subsection (4).  In this case, Muirhead J was prepared to read it accordingly on the basis that the draftsperson had made a mistake.  Muirhead J said at 110:

“The fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent of the Parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole”: Higgins J in Amalgamated Society of Engineers v. Adelaide Steam Ship Co Ltd (1920) 28 CLR 129 at 161 (see also Nolan v Clifford (1904) 1 CLR 429)…But here we have not ambiguity nor any doubt, nor indeed argument as to the intention of the legislature - an intention apparently defeated by a draftsman's slip - or indeed perhaps by a printer's slip.. I must of course regard it as settled law that “it is no power of the judicial function to fill gaps disclosed in legislation”: Marshall v. Watson (1972) 124 CLR 40 at 649; (1972) ALR 641 at 646, per Stephen J.....  But whilst I can find no authority directly in point, it seems to me that I am faced not with a gap to be filled, but with a clear mistake and I consider when intention is so clear that to correct that mistake and give force to the sub-section involves not “legislation” but interpretation.  I take the view and so hold that section 8A(6) should be read as though “sub-section (4)” was inserted instead of “sub-section (3)”... 

14      I adopt this approach for the purposes of this matter.  In my opinion, the reference to s 29(b) in s 78(2) of the PSMA must be regarded as a drafting or printing slip, and should be read as s 29(1)(b), which in my opinion, would accord with the intention of the parliament when the PSMA was enacted.

15      I therefore answer Question One with “yes”.

Question 2

16      In relation to this question, in my view, the intention to be gleaned from the plain meaning of the words used in s 78(2), is that an individual employee, who is not a government officer within the meaning of s 80C of the Act, and is aggrieved by one of the specified types of decisions, is able, as an individual, to refer the subject matter of that decision to the Commission and the subject matter of that decision is deemed to be an industrial matter for the purposes of the Act.  That means that the matter referred is taken to be and is subject fully to the terms of the Act and hence the jurisdiction and powers of the Commission, to inquire into and deal with that matter under s 23 of the Act and not the PSMA.

Question 3

17      The answer to this question in my view is in part to be determined by a consideration of the terms of s 78 of the PSMA as a whole.  The question to be determined is whether referrals to the Commission pursuant to s 78(2) of the PSMA, are only limited to claims of harsh, oppressive or unfair dismissal or the denial of contractual benefits.

18      Firstly, s 78(1) of the PSMA enables a government officer to appeal against various decisions to the Public Service Appeal Board, constituted pursuant to Division 2 of Part IIA of the Act.  The various decisions from which an appeal may be brought, are those set out in s 78(1)(b).  Those decisions include reducing the level of classification of an employee; terminating the employment of an employee; suspending an employee without pay; and reprimanding, transferring, fining or reducing the salary of an employee.

19      By s 78(2)(b) of the PSMA, the decisions about which a non-government officer is aggrieved, and which may be the subject of a referral to the Commission under the Act, are the same decisions referred to in s 78(1)(b) referred to above.  Furthermore, by s 78(3), it is provided that an employee, who has had proceedings taken against them for a suspected breach of discipline under the PSMA, may refer the matter to the Commission as if it were an industrial matter.  Importantly in this connection, s 78(4) of the PSMA provides that in relation to exercising jurisdiction under s 78(3), the Commission must confine itself to determining whether or not that decision challenged has been, or is capable of having been, complied with.

20      In my opinion, from a consideration of these provisions as a whole, it is apparent that the intention of the legislature in s 78(2) was to enable a range of decisions, not confined to termination of employment or contractual benefits, to be referred to the Commission as if those matters were an industrial matter for the purposes of the Act.  Given that s 78(2) is a deeming provision enabling individual employees to refer the prescribed matters to the Commission, in my view, those matters are not limited to claims of unfair dismissal or contractual entitlements.  This construction is also supported by the use of the words “Despite section 29 of the Industrial Relations Act 1979” in the introductory part of ss 78(2) and (3), to the effect that the matters able to be referred are not limited to those specified in s 29(1)(b)(i) and (ii) of the Act. 

Question 4

21      It is unnecessary for me to consider this question in light of my conclusions as to Question 3.

Question 5

22      In referring one of the specified matters to the Commission as if that matter were an industrial matter, the Commission's jurisdiction is enlivened to “inquire into and deal with” that industrial matter: s 23(1) Act.  By section 78(1) of the PSMA, a government officer may appeal against one of the prescribed decisions to the Public Service Appeal Board.  In the determination of an appeal, the Public Service Appeal Board has jurisdiction and power pursuant to s 80I(1) of the Act to “adjust all matters” referred to it on appeal.  It would appear therefore, from the language of s 78(1), read with the jurisdiction and powers of the Public Service Appeal Board, that the nature of those proceedings, whilst an “appeal”, is in the nature of a de novo proceeding, enabling the Public Service Appeal Board to hear and determine the matter afresh, if the circumstances require it.  Some support for this view would appear to be found in the decision of the Public Service Appeal Board in Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266. 

23      A similar approach was taken to the interpretation of the right of appeal by a teacher to the former Government School Teachers Tribunal, pursuant to the repealed s 78(1)(b) of the Act: Milentis v Minister for Education (1987) 67 WAIG 1124.  In Milentis, the Full Bench concluded that the nature of an appeal to the Government School Teachers Tribunal was to be essentially heard de novo, however this would depend on the grounds of appeal in each particular case.  In so concluding, the Full Bench adopted and applied observations of the then Chief Justice when considering the nature of an appeal to a tribunal created by statute under the Prisons Act.  In Ex parte Hill, Director of WA Prisons Department v Ormsby No 1987 of 1985 the Chief Justice said at 11:

“The nature of the appeal is not, I think, to be determined by a resort to the cases which are legion dealing with appeals within or to establish courts and by asking whether it is an appeal by way of rehearing in the sense in which that word was understood in old chancery practice.  In the context of this Act no a priori restriction should be placed upon the right which it gives and which by the statute is called an appeal.  The intention of the statute, in my opinion, is simply to allow the prison officer to challenge the determination (?) or penalty before the Tribunal upon any grounds which are said to render it either unjust or wrong.  Grounds of appeal are to be given and the manner in which the Tribunal goes about its task will be controlled by those grounds.  But that manner is not controlled or restricted by anything to be found within the nature or character of the appeal itself.  If the grounds are such that in the judgement of the Tribunal justice cannot be done without hearing the proceedings all over again then it has power to do so.  If, on the other hand, the grounds can be adequately dealt with by the Tribunal on such record of the proceedings below as comes up to it, supplemented or not by evidence, then the Tribunal can deal with the appeal on a more restricted basis.  The procedure to be adopted is such as will, on the grounds of appeal, enable full and complete justice to be done.”

24      This approach was also broadly applied in relation to appeals under the former s 23B of the Act. 

25      Whilst s 78(2) does not refer to an “appeal” to the Commission, it seems plain enough from the language in the section as a whole, that it is concerned with challenges to a decision taken by the employer in relation to which the employee is “aggrieved”.  Reference to “aggrieved” is made in s 78(1)(b) dealing with appeals to the Public Service Appeal Board, and also in ss 78(2)(b), (3) and (4) dealing with referrals to the Commission.  In my opinion, given the nature of the proceeding contemplated by s 78 of the PSMA, a matter referred to the Commission pursuant to s 78(2) by an aggrieved employee from one of the nominated decisions, is to be dealt with in the same manner as a matter referred under s 78(1) of the PSMA.  That is, I do not consider that such a proceeding ought to be regarded as an “appeal” in the strict sense, as that issue was discussed by the Full Bench in Milentis.  Nor is it the case in my opinion, that the Commission is limited to determining only the reasonableness of the employer’s decision.

26      In other words, depending upon the nature of the challenge to the decision under review, such a proceeding may involve the Commission re-hearing the matter afresh or it may only be necessary to consider the decision taken by the employer “on such record of the proceedings below as comes up to it, supplemented or not by evidence”: Ormsby.  It would seem to be the case therefore, that consistent with the reasoning of the Full Bench in Milentis, the decision of the employer is not to be totally disregarded in the Commission hearing and determining the matter.

27      Furthermore, it also seems to me that if the referral to the Commission pursuant to s 78(2) of the PSMA involves an allegation of harsh, oppressive or unfair dismissal, then, consistent with the referral of such a matter to the Commission pursuant to s 44 of the Act, s 23A should apply to such matters in terms of the relief to be granted.  Such a matter, although referred to the Commission under s 78(2) of the PSMA, would nonetheless constitute “a claim of harsh, oppressive or unfair dismissal” for the purposes of s 23A of the Act and any relief to be granted.  In my opinion, it would be incongruous if this were not to be the case, as claimants commencing proceedings under ss 29(1)(b)(i) and 44 would be entitled and limited to the remedies under s 23A if successful, whereas those under s 78(2) of the PSMA would not be so limited, for example, as to matters of compensation for loss and injury.  Given the scheme of the Act in relation to such matters, I do not think parliament could have intended such an outcome.  Different considerations may apply of course in cases where it is alleged that a dismissal was unlawful, for example, on the grounds of a failure by the employer to comply with a mandatory statutory requirement.  

28      Also, whilst it is not necessary to finally decide the matter for the purposes of these proceedings, and I do not do so in the absence of argument, it would also appear to be the case that given that any unfair dismissal claim by a teacher would be “referred under” s 78(2) of the PSMA and not “referred under” s 29(1)(b)(i) of the Act, then arguably s 29(2) of the Act, providing for a 28 day time limit for such referrals, would not apply.  

29      Therefore, matters referred to the Commission pursuant to s 78(2) of the PSMA are not restricted to consideration by the Commission of the reasonableness of the employer's conduct, but the Commission may review the employer's decision de novo, as the circumstances warrant and determine the matter afresh and substitute its own decision for the employer's decision if that is appropriate.

Question 6

30      By clause 8 of Schedule 1 - Transitional Provisions, it is provided that an inquiry that has begun in relation to a teacher, pursuant to the former s 7C(3) of the EA, may continue and be completed.  It is provided by clause 8(2), that an inquiry is taken to have begun if the chief executive officer has in writing, requested a person to hold the inquiry.  The effect of this provision is manifestly to preserve the conduct of an inquiry, as the relevant procedure under the repealed EA, in respect of conduct falling within that former provision.

31      By s 239 of the SEA, Part 5 of the PSMA, dealing with substandard performance and disciplinary matters, applies to teaching staff from the commencement of the SEA which was 1 January 2001.   In my opinion, in respect of conduct that would otherwise have fallen within the purview view of s 7C of the repealed EA, but in respect of which an inquiry had not begun as defined in clause 8 of schedule 1 of the SEA, the process contemplated by s 239 of the SEA applies.  In my opinion, these provisions go to the procedure by which matters such as misconduct, are to be dealt with.

32      I do not accept the submissions of the applicant, that to so hold means that the terms of the SEA in this respect, would have retrospective operation.  It is of course the case that there is a presumption that legislation will not have retrospective operation: Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267.  However, in considering the question of the retrospective operation of legislation, it is important to distinguish between an Act having a prior effect on past events and an Act basing future action on past events (see generally Pearce and Geddes at para 10.4).  In Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 Jordan CJ said at 31:

“... As regards any matter or transaction, if events have occurred prior to the passing of the Act which had brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.”

33      In my opinion, that is the position which exists presently, in that the terms of the SEA in relation to substandard performance and disciplinary matters, constitute future operation of legislation based on past events.  In my view, parliament could never have intended to let certain conduct, for example serious misconduct, fall into a hiatus between both pieces of legislation without any right of recourse by an employer.

34      The answer to this question is therefore “yes”.

35      I declare accordingly.