Employment for a specified period in temporary public service positions, where the terms of appointment contemplate possible extension, does not constitute employment 'on the condition' that it shall not continue after that period, and such employees may be protected by the CE(RR) Act.
Later decisions that cite Ioannou v Fowell
SIMON IOANNOU v. RONALD FOWELL & ORS. (1984) 156 CLR 328
Public Service - Administrative Law
High Court of Australia
Gibbs C.J.(1), Mason(1), Murphy(1), Brennan(1) and Deane(1) JJ.
CATCHWORDS
Public Service - Temporary employment - Extension - Indications in appointment and extension letters that employment might continue - Condition - Whether employment on condition that it should not continue after expiration of a specified period - Public Service Act 1922 (Cth), s. 82(4) - Commonwealth Employees (Redeployment and Retirement) Act 1979 (Cth), s. 5(2)(e).Administrative Law - Decision to dispense with employee's services - Decision made in intended but mistaken pursuance of statutory provision - Review - Administrative Decisions (Judicial Review) Act 1977 (Cth).
HEARING
1984, February 15; April 12. 12:4:1984DECISION
GIBBS C.J., MASON, MURPHY, BRENNAN and DEANE JJ. The Special Broadcasting Service was established pursuant to the Broadcasting and Television Amendment Act l977 (Cth). It is charged, among other things, with the task of providing multilingual television services. On l8 August l98O, Mr. Simon Ioannou, who is the present appellant, commenced employment as a member of the staff of the Special Broadcasting Service as a Censorship Liaison Officer (Clerk Class 8). He was employed in a temporary capacity under the provisions of s.82 of the Public Service Act l922 (Cth). The letter from the Special Broadcasting Service advising him of his appointment said that his employment was from l8 August l98O to 3O June l98l. However, the letter expressly stated that his "temporary employment" might "be extended beyond" that date "pending the establishment of the Independent and Multicultural Broadcasting Corporation" at which time his employment might continue under the Broadcasting and Television Act l942 (Cth).2. By letter of 2O July l98l, the Commonwealth Public Service Board advised the Executive Director of the Special Broadcasting Service that approval was given for the extension of the temporary employment of a number of persons for the period l July l98l to 3O June l982. Mr. Ioannou was included among those persons. On 23 July l98l, the Executive Officer, Personnel, of the Special Broadcasting Service wrote to Mr. Ioannou advising that his "temporary employment under the Public Service Act (had) been extended until 3O June l982". The letter concluded with a statement that extension of Mr. Ioannou's employment beyond 3O June l982 would receive further consideration prior to that date.
3. At the time of Mr. Ioannou's initial appointment, s.82(4) of the Public Service Act provided that the continuous employment of a person in a temporary capacity should not extend beyond the end of the first or any succeeding year of that employment unless the Board certified in writing that the continued employment of that person beyond the end of that first or succeeding year was necessary. That provision was, however, repealed by Act No. 52 of 1979 (Commonwealth Employees (Redeployment and Retirement) Act l979 (Cth)) (the CE(RR) Act) which substituted a new s.82(4) with effect from 6 February 1981. It is not suggested by either side that the provisions of the old s.82(4) continued to apply to the employment of Mr. Ioannou after that date or to the "extension" of that employment after 30 June 1981.
4. On 24 May l982, Mr. Ronald Fowell, who was the Executive Director of the Special Broadcasting Service, wrote to Mr. Ioannou advising that he, Mr. Fowell, did not propose to seek Public Service Board approval to offer Mr. Ioannou a further period of employment beyond 3O June l982. Mr. Fowell indicated that the Special Broadcasting Service was acting and would act on the basis that the term of Mr. Ioannou's temporary employment expired on 3O June l982 and that, under s.82(4) of the Public Service Act (i.e. the new sub-s. (4)), the Special Broadcasting Service was "required" to dispense with his services as a temporary employee after that date. While the letter went on to detail a number of serious criticisms of Mr. Ioannou and his work as reasons for "this decision", it made clear that what was involved was not a dismissal of Mr. Ioannou but a "decision" that his services would be dispensed with on 3O June l982 on the footing that his employment would terminate as a matter of law on that day and no recommendation for his re-employment would be made to the Public Service Board.
5. In June l982, Mr. Ioannou applied to the Federal Court for an order of review under the Administrative Decisions (Judicial Review) Act l977 (Cth) of the "decision" that his services "be terminated or dispensed with and not renewed or extended beyond 3O June, l982". The respondents to the application were Mr. Fowell, the members of the Public Service Board and, by amendment, the Special Broadcasting Service. The matter was heard by Sheppard J. His Honour held that the decision that Mr. Ioannou's employment would be at an end on 3O June l982 was misconceived for the reason that it was based on a false premise that the Special Broadcasting Service was, under s.82(4) of the Public Service Act, required to dispense with Mr. Ioannou's services on that day. His Honour also came to the conclusion that the decision of the Special Broadcasting Service to dispense with, or not to seek a renewal of, Mr. Ioannou's services was, in any event, vitiated by a failure to observe applicable requirements of natural justice. Sheppard J. made a declaration that Mr. Ioannou's employment with the Special Broadcasting Service did not terminate on 3O June l982 and ordered that Mr. Fowell's decision that Mr. Ioannou's employment was dispensed with or would expire on that day be set aside. An appeal by the respondents from the decision and orders of Sheppard J. was upheld by the Full Court of the Federal Court (Bowen C.J., Woodward and Northrop JJ.). The Full Court set aside the declaration and orders made by Sheppard J. and ordered, in lieu thereof, that the application under the Administrative Decisions (Judicial Review) Act be dismissed. Mr. Ioannou appeals, by special leave, to this Court from the judgment and orders of the Full Court to that effect.
6. The primary question for consideration on the appeal is whether Mr. Fowell was correct in his view that the provisions of the new s.82(4) of the Public Service Act governed the termination of the appellant's employment. That question is, for present purposes, important for two distinct but related reasons. The first reason is that, if the provisions of the new s.82(4) were not applicable to Mr. Ioannou, Mr. Fowell was mistaken in thinking that the Special Broadcasting Service was, by virtue of the express provisions of that sub-section, "required to dispense" with Mr. Ioannou's services as a temporary employee. The second reason is a consequence of the interrelation between the provisions of s.82 of the Public Service Act and the provisions of the CE(RR) Act and of the special restriction which the Public Service Act imposes upon dispensing with the services of a temporary employee to which the CE(RR) Act applies. Mr. Ioannou was a person who had been an employee within the meaning of the Public Service Act for the immediately preceding period of one year. Under the provisions of the CE(RR) Act (s.5(l)(c)), that Act applies to a person who is such an employee unless he or she comes within one of the exceptions contained in s.5(2) or within the terms of an order made under s.6(1). It is now common ground that Mr. Ioannou was not within the exception contained in par.(d) of s.5(2) and that the only presently relevant exception or exclusion is the exception contained in s.5(2)(e) which excepts from the persons to whom the CE(RR) Act applies a person who is employed in a temporary capacity on a condition specified in s.82(4) of the Public Service Act. It follows that, if the termination of Mr. Ioannou's employment was not governed by s.82(4) of the Public Service Act, he was a temporary employee to whom the CE(RR) Act applied and enjoyed the special protection extended under the provisions of s.82 of the Public Service Act to such a person.
7. Section 82 of the Public Service Act is in "Division 10 - Temporary
Employment". It provides (sub-s. (lA)) that, subject to
the section, a Chief
Officer of a Department may employ persons in a temporary capacity in the
Department. Whenever the Chief Officer
is of the opinion that temporary
assistance is necessary, he is required to advise the Public Service Board
accordingly (sub-s. (l)).
If the Board is satisfied that such assistance is
required, the Board shall select, from the register of applicants for
temporary
employment, such persons who are available as appear to be best
qualified for the work; if no suitable person is available from
the register,
the Board may authorize the employment of any suitable person (sub-s.(2)).
The new sub-s.(4) is critical for present
purposes. It reads:
"Where a person is selected for employment, or the
employment of a person is authorized, on the
condition that his employment shall not continue
after the expiration of a specified period or on
the condition that his employment shall not
continue after the completion of specified work,
the Chief Officer shall, if the services of that
person have not been dispensed with before the
expiration of that period or the completion of that
work, as the case may be, dispense with the
services of that person upon the expiration of that
period, or upon the completion of that work, as the
case may be."
services of a person who is temporarily employed may be dispensed with at any
time by a Chief Officer. Sub-section (6B) contains
the special protection of
a temporary employee to whom the CE(RR) Act applies. It provides that the
services of such an employee
shall not be dispensed with under sub-s.(6)
except on a number of specified grounds involving wilful disobedience,
inefficiency,
incompetence, negligence, or misconduct or conviction or finding
of guilt of a criminal offence of a certain nature and seriousness.
8. As a simple matter of construction of the words used in s.82(4), it appears to us to be reasonably plain that the appellant was not a person selected for employment or whose employment was authorized "on the condition" specified in s.82(4). It is true that the authorization by the Board of the appellant's employment was for a limited period: initially for the period from l8 August l98O to 3O June l98l and, subsequently, for the period from l July l98l to 3O June l982. At the time of his initial employment however, the appellant was expressly advised that his employment might "be extended beyond" 3O June l98l. At the time the appellant was advised that his temporary employment had "been extended until 3O June l982", he was advised that extension of his employment beyond that date would receive further consideration. As a matter of ordinary language, it could not be said that either the selection of the appellant for employment or the authorization of the employment of the appellant was "on the condition that his employment shall not continue after the expiration" of either the initial or the extended period of his employment. To the contrary, the basis of the appellant's employment was that he would be employed for a stated term and that it was at least possible that his employment would be "extended" or would continue beyond that term. Indeed, it would be true to say that the letters from the Special Broadcasting Service to the appellant advising him of his original appointment and of the subsequent "extension" of his employment and the correspondence between the Special Broadcasting Service and the Public Service Board relating to the "extension" of the employment of the appellant and other temporary employees are all inconsistent with the notion that the appellant's employment was "on the condition that his employment shall not continue after the expiration" of the initial or extended period in that they clearly evidence that the appellant's employment was on the basis that it could be extended to continue after that period.
9. It was argued on behalf of the respondents that any employment for a particular period was, for the purposes of s.82(4), "on the condition that his employment shall not continue after the expiration of a specified period". This argument involves equating a decision or authority to employ somebody up until a particular date with a decision or requirement that they be not employed after that date. In our view, there is nothing in the context of the Public Service Act which requires such a false equation. It is true that the obvious and literal construction of s.82(4) may produce some perhaps unexpected results. On the other hand, the same can be said of the loose and unnatural construction for which the respondents contend. In that regard, if it be relevant, the material in evidence clearly discloses that neither the Special Broadcasting Service nor the Public Service Board in practice acted on the construction of s.82(4) for which they now contend. Had that construction been acted on, the employment of all temporary employees should have been dispensed with after 30 June 1982 and new appointees, selected from the register of applicants as laid down by s.82(2), should have been employed.
10. It follows that Mr. Fowell's understanding that Mr. Ioannou's employment with the Special Broadcasting Service came to an end as a matter of law on 3O June l982 was wrong. Mr. Ioannou's employment continued unless and until it was terminated by his compulsory retirement in conformity with the CE(RR) Act, his voluntary retirement or his dismissal pursuant to s.82(6B). It may well be that, if the allegations which Mr. Fowell made against Mr. Ioannou in his letter are correct, adequate grounds existed and exist for dispensing with Mr. Ioannou's services pursuant to s.82(6B) of the Public Service Act. It is not, however, suggested that any attempt has been made to dispense with Mr. Ioannou's services pursuant to the provisions of that sub-section.
11. As has been mentioned, Mr. Fowell's letter of 24 May l982 stated that under s.82(4) of the Public Service Act, the Special Broadcasting Service was "required to dispense with the services" of Mr. Ioannou after 3O June l982. The letter plainly conveyed that a decision had been made to dispense with his services. That decision was, as has been seen, erroneous. It was a decision of an administrative character made in intended but mistaken pursuance of s.82 of the Public Service Act. As such, it was properly reviewable pursuant to the provisions of the Administrative Decisions (Judicial Review) Act. That being so, Sheppard J. was, in our view, substantially correct in making the declaration and orders which he made. It is unnecessary to consider whether, if Mr. Ioannou had been employed on a condition specified by s.82(4), he would have been entitled to any relief.
12. We would allow the appeal, set aside the orders of the Full Court of the
Federal Court and in lieu thereof order that the appeal
from the judgment of
Sheppard J. be dismissed with costs. We would, however, substitute the
following for paragraphs 1 and 2 of
his Honour's order of 23 August:
1. Declare that the applicant's employment with
the Special Broadcasting Service did not
terminate on 30 June 1982 and that his
employment has continued after 30 June 1982
subject to the provisions of the Public
Service Act 1922.
2. Order that the decision of the firstThe respondent must pay the appellant's costs.
respondent, made on 24 May 1982, that the
applicant's employment with the Special
Broadcasting Service be dispensed with on 30
June 1982, be set aside.
ORDER
Appeal allowed with costs.
Order that the order of the Full Court of the Federal Court be set aside and
in lieu thereof order:
(A) that the order of Sheppard J. made on 23 August
1982 be varied by substituting the following for
paragraphs 1 and 2 thereof:
1. Declare that the applicant's employment with
the Special Broadcasting Service did not
terminate on 30 June 1982 and that his
employment has continued after 30 June 1982
subject to the provisions of the Public
Service Act 1922.
2. Order that the decision of the first
respondent, made on 24 May 1982, that the
applicant's employment with the Special
Broadcasting Service be dispensed with on 30
June 1982, be set aside.
(B) that the appeal to that Court be otherwise
dismissed with costs.