TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Health Services Union of Australia
Tasmania No 1 Branch
(T.4358 of 1993)

and

Minister administering the Tasmanian State Service Act 1984

Industrial Dispute - harsh, unfair and unreasonable termination

REASONS FOR DECISION

This application by the Ambulance Employees Association of Tasmania, now the Health Services Union of Australia, Tasmania No 1 Branch (HSUA) concerned the termination of an Ambulance Officer, Mr D Dannals. It was alleged by the HSUA that the termination was harsh, unfair and unreasonable.

The matter first came before the Commission in June 1993. In the proceedings at that time it became apparent to the Commission that there may have been some deficiencies in the process relied upon to terminate Mr Dannals. After a short period of adjournment the following exchanges occurred:

"MR PEARCE: Thank you, Mr Commissioner. Firstly, thanks for the opportunity for the adjournment this morning. There are a number of aspects which attach to that. There were matters placed before you this morning upon which you enquired of the parties. The second matter was the - provide an opportunity for the minister to consider his position relative to conflicts and jurisdiction, if that's the proper terminology, having regard to a Supreme Court finding as to the conduct of an enquiry. It is proposed on the part of the minister to withdraw the letter of termination of the 27th of October and to take such further action as may be available per the powers of the State Service Act.

COMMISSIONER GOZZI: You're not saying - if I understand you correctly, you're not questioning the jurisdiction of this commission to deal with the matter, are you?

MR PEARCE: Not questioning the jurisdiction. We said with the conflicting choices of options between this commission, whose jurisdiction would be well-founded, and the jurisdiction of the relief available under the State Service Act which was how the matter was first progressed, it is an available option for us to pursue relief under the State Service Act, if we choose so to do, but for all intents and purposes the letter of termination of the 27th of October will be withdrawn and we would ask that this matter therefore be closed.

COMMISSIONER GOZZI: What will the effect of the withdrawal be - withdrawal of the letter of termination?

MR PEARCE: The effect of the letter - withdrawal of termination will be that the employee will continue on suspension, with pay, which will immediately restore the status quo as existed immediately prior to, upon receipt of the letter of the 27th of October.

COMMISSIONER GOZZI: All right. Thank you, Mr Pearce. Mr Nielsen?

MR NIELSEN: Mr Commissioner, we've noted and accepted that the minister's representatives have formally withdrawn the letter of the 27th of October which had notified the termination of our member. We're also aware that they've made reference to the State Service Act procedure. I want to clearly say on behalf of our association that we will give the strongest support to our member concerned in taking what action in defending any position or any procedures that may or may not be taken and even in regards to whether those procedures are competent to be taken in view of the circumstances of this or the incident of this matter arose on the 7th of January 1992, some, what, well over 18 months ago.

And the third issue, Mr Commissioner, we would oppose the closing of this matter and seek that it be adjourned sine die.

COMMISSIONER GOZZI: All right. Thank you, Mr Nielsen. This morning some complex issues were raised with the commission which gave rise to the adjournment in the first instance; those issues have not been addressed subsequent to the adjournment, primarily because the parties have been able to conduct some discussions and negotiations which produced the position that has now been put on the record. The effect of that position is to remove the letter of termination applicable to Mr Dannals and continue him on suspension pending other options that the employer may seek to pursue in accordance with the Tasmanian State Service Act.

It is not my intention to interfere with that arrangement between the parties. I do have a - I will, however, keep the file open and to that extent I will adjourn this matter sine die."

Transcript p22/23

On the motion of the Commission the matter again came on for hearing on 21 February 1994 following the Findings and Recommendations of Mr J D Cousland in respect of an Inquiry conducted by him relating to charges laid against Mr Dannals by the Secretary of the then Department of Health. The purpose of the hearing was for the Commission to enquire of the parties what the status of the application before it was.

In those ensuing proceedings Mr Nielsen informed the Commission of the events that transpired following the completion of Mr Coulsand's inquiry. Numerous exhibits also were tendered by Mr Nielsen including the following:

• Exhibit N8 - letter to Mr Dannals from the Acting Commissioner for Public Employment dated 1 October 1993.

Primarily this Exhibit advised Mr Dannals that Mr Cousland had found a number of charges against him were proven; the Secretary of the Department of Community and Health Services (the Secretary) was required to consider the findings; that the Secretary may exercise one or more of a number of specific powers; that Mr Dannals would be advised of the Secretary's decision following which he had appeal rights to the Commissioner for Review pursuant to Section 66(1)(i) of the Tasmanian State Service Act 1984. (the TSSA)

• Exhibit N9 - contained the findings and recommendations of Mr J D Cousland dated 30 September 1993.

• Exhibit N10 - a letter to Mr Dannals from the Secretary dated 14 October 1993 that it was her decision to recommend to the Minister that Mr Dannals be dismissed from the State Service and that he had appeal rights to the Commissioner for Review.

• Exhibit N11 - advice to Mr Dannals by the Minister for Public Sector Management in November 1993 that he was terminated pursuant to Section 54(1)(c) of the TSSA.

• Exhibit N13 - a letter to the Minister for Public Sector Management from the Ambulance Employees Association of Tasmania dated 22 December 1993 indicating that no charges under Section 54(1)(c) of the TSSA were proven against Mr Dannals. That section of the Act related to the use of intoxicating liquor or drugs.

• Exhibit N14 - a letter from Public Sector Management Office to Mr Dannals dated 25 November 1993 correcting the reference to Section 54(1)(c) to read Section 54(1)(d) of the Act. The letter also indicated that the "textual errors", reference to incorrect reference to Section 54(1)(c) of the TSSA, did not alter the action to dismiss.

Also in the proceedings on 21 February 1994 Ms Pammenter for the Minister informed the Commission that Mr Dannals' case had already been determined in accordance with the provisions of the TSSA and that he had failed to exercise his appeal rights in accordance with that Act. Subsequently the Minister had dismissed Mr Dannals.

Towards the end of the proceedings on 21 February 1993, the Commission made the following comments:

"... the situation simply is that there is an application before me which has only been dealt with in part, it's been set aside on the basis that other processes in other places are going to take place or were going to take place - they've now taken place - it's really a matter for the parties to let me know whether or not the matter should be concluded or not.

The fact of the situation is that there is no impediment, as far as I'm aware, and the minister might tell me different, Miss Pammenter, but there is no impediment as far as I'm concerned to an employee having been dismissed under the provisions of the Tasmanian State Service Act for that employee to seek redress for unfair dismissal or whatever in this - in this particular jurisdiction and that's the crux of the whole issue - is whether or not in the light of all that's happened and the all the findings have been made against Mr Dannals, whether or not this matter should proceed.

As I say, I'm not aware of impediments why it shouldn't but if it was going to proceed then obviously the case would have to be run in full. At this point in time none of that has really happened. There's been no merit review of the actions of the minister or the actions of Mr Dannals.

Let me make it perfectly clear, I'm not suggesting that that happens. There have been two inquiries, there have been Supreme Court proceedings, all of which has led to in the final analysis, Mr Dannals' dismissal by the minister. But I think it would be quite wrong for me to say that there isn't an avenue for Mr Dannals to pursue his dismissal in this jurisdiction, notwithstanding these other processes. The view I take is that a properly framed application was put before the commission. In the first hearing - and this is only the second hearing as far as I'm concerned in this matter - in the first hearing some difficulties with the dismissal itself were highlighted by myself, i.e., that in fact notwithstanding that Mr Dannals was said to have been dismissed, he wasn't in fact dismissed. Subsequently there was an inquiry and then he was dismissed..."

and later

"... but the whole point is as far as I'm concerned where I'm sitting here today, this matter is capable of being run in the commission. Now it's up to the parties to, if they wish, particularly the minister, Miss Pammenter, to convince me that that may not or should not be the case and nothing I've heard in respect of the proceedings in June last year or whenever they were - I think it was June - June last year - and today, would suggest that the matter shouldn't go ahead by way of further hearing.

Now I'm not saying that's desirable by any stretch of the imagination at all."

and later

"... but I will (sic) quite wrong in not indicating that from where I sit there is no impediment to this matter proceeding in this commission, and the parties need to have a view about that. I intend to adjourn the matter again so that you can come back and address me on it if you wish. In the meantime if you conclude that maybe there is no mileage in pursuing the matter further in the light of all that's happened, then you can let me know and I'll close the file."

Transcript p37/38

At the subsequent hearing held on 3 March 1994, which was essentially for the parties to report to the Commission on their view as to how this matter should be progressed, if at all, Mr Nielsen indicated the desire of the HSUA to:

"...use what resources that are available under this jurisdiction to ultimately if possible to defend this particular member, and to proceed with presenting a case for him."

Transcript p44

Following these submissions by Mr Nielsen the Commission enquired, having regard to the extensive processes undertaken in accordance with the Tasmanian State Service Act 1984 resulting in the termination of Mr Dannals, whether further processes in this Commission could be construed as "jurisdiction hopping".1 Mr Nielsen indicated that these proceedings in the Commission were being relied upon. In ongoing dialogue between the Commission and Mr Nielsen it was established that since the letter of termination forwarded to Mr Dannals by Mr Jarman, Manager Industrial Relations and Human Services from the then Department of Health dated 27 October 1992, Exhibit N16, Annexure 17, had been withdrawn following the Commission proceedings in June 1993, the reason for lodging a Section 29 dispute notification no longer existed.

Mr Willingham appearing for the Minister in the proceedings held on 3 March 1994 submitted that the matter contained in the application made by the Ambulance Employees Association of Tasmania to the Commission had been addressed. He said:

"That matter has been despatched. The letter, or the action which brought about the alleged harsh and unfair dismissal was rendered nugatory. Mr Dannals was reinstated. That is a fact, it is beyond argument."

Transcript p49

Mr Willingham qualified the foregoing submission by stating that given that Mr Nielsen could immediately lodge another application, the Minister could see no point in relying on a technical impediment in relation to the application and that there would be no attempt to deny Mr Nielsen putting his case. The Commission was however cautioned by Mr Willingham that the ability to sustain arguments under this application, given that the

circumstances giving rise to it were addressed, may be questionable. A further issue raised by Mr Willingham was that the Minister would take "forceful exception"2 to this Commission acting as an appellate body to another jurisdiction i.e. the Commissioner for Review; or indeed to act as a body of review in respect of a decision which had been taken under the provisions of another Act i.e. the Tasmanian State Service Act 1984.

Decision

The historical sequence of events demonstrates that the reason for the application in this matter ceased to exist when the original letter of termination dated 27 October 1992 was withdrawn following the proceedings in the Commission dated 23 June 1993. That is to say that the initial act of dismissal of Mr Dannals, the subject of these proceedings in the first instance, was resolved. The second act of dismissal had not taken place until Mr Dannals was informed to that effect by the Minister in November 1993. Clearly this was not comprehended in the application in this matter dated 27 April 1993 and received by the Commission on 28 April 1993. In the circumstances my finding is that the Commission has no further role to play in respect of the application now before it. Whilst this may appear to be a technicality it is important that any proceedings be properly founded. Having reached the conclusion that the present application should not be relied upon to deal with the November 1993 dismissal of Mr Dannals, it will be a matter for the HSUA to decide if it wishes to make a properly framed application to the Commission in respect of the second act of dismissal of Mr Dannals.

Some further comments by the Commission may be useful to the parties. In that regard it is relevant to indicate that the Commission considers that it would not be appropriate for it to act as an appellate body against any determination made by the Commissioner for Review. Albeit that neither the TSSA or the Industrial Relations Act 1984 would appear to preclude organisations or employees from seeking redress in both jurisdictions. However that may be there was nothing before the Commission in these proceedings to indicate that the dismissal of Mr Dannals in November 1993 was scrutinised in the context of Section 66 of the TSSA or that the Commissioner for Review had reached any conclusions about that dismissal as a consequence of any other processes undertaken by him. Certainly there was an invitation to Mr Dannals, not taken up by him,, to exercise appeal rights available to him pursuant to Section 66 of the TSSA. This invitation was for Mr Dannals to appeal, if he wished, the Secretary's decision to recommend to the Minister that he be dismissed. In the circumstances and on the material before me it would seem that any proceedings that may follow by virtue of a new application would, for the first time, review the November 1993 dismissal of Mr Dannals. Of course there have been numerous processes leading to that decision including an inquiry which was completed in September 1993, the outcome of which was relied upon to substantiate the dismissal. It is apparent that it was in the context of all the processes that were undertaken that Mr Willingham indicated that the Minister would take forceful exception to the Commission acting as a body of review in respect of actions taken under the TSSA. However that issue will only arise in the event the HSUA lodge an appropriately framed application. The Commission is obviously unable to make any findings about that at this stage. It is worthwhile stating though that the invitation by the Secretary for Mr Dannals to seek redress in accordance with Section 66 of the TSSA contemplated a review of actions taken against Mr Dannals. That review did not take place and to that extent this Commission would not be acting as an appellate body against any findings of the Commissioner for Review which may have resulted had Mr Dannals appealed pursuant to Section 66 of the TSSA.

In addition to the foregoing sight should not be lost of the fact that it was the dismissal and not necessarily the processes that was being contested by the HSUA in the later proceedings in the Commission. In that context it is clear that the Secretary was faced with the exercise of a number of powers as shown in Exhibit N16, Annexure 11. The HSUA considered in its application in this matter the power finally exercised and supported by the Minister in terminating Mr Dannals to be harsh, unfair and unreasonable. That has not been tested anywhere as is able to be done by virtue of Section 29 proceedings. Notwithstanding the Commission recognises that some threshold matters could arise in any future proceedings that may be initiated in respect of the November 1993 termination of Mr Dannals.

R K Gozzi
COMMISSIONER

Appearances:
Mr N Nielsen with Mr P Dodridge for the Health Services Union of Australia, Tasmania No 1 Branch
Mr C Willingham with Ms K Pammenter for the Minister for Public Sector Management
Ms J Cox with Mr T Pearce for the Minister administering the Tasmanian State Service Act 1984

Date and Place of Hearing:
1993
June 23
Hobart
1994
February 21
March 3
Hobart

1 Transcript p.45
2 Transcript p50