Case: Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 535 ; (1992) 37 FCR 75
Outcome: applied
In deciding the first point the Senior Member relied on the following passage from Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 535 ; (1992) 37 FCR 75 at 83-4: In the context of the definition of "injury" in s 4(1) of the Act, the phrase "disciplinary action" means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. ... What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition. ... Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of "disciplinary action" in the Act. 21 The Department of the Senate had adopted a regime of Procedures for ... Determining Breaches of the Parliamentary Service Code of Conduct (the Procedures). This document provided for the Usher of the Black Rod to appoint an investigator to determine whether there had been a breach of the Code by an employee, and to report his or her findings to the Usher. The document provided that "[h]aving considered any mitigating comments from the employee, the [Usher] will determine the case and inform the employee in writing of the determination, any sanction imposed, the reasons for them, and the employee's rights of review". 22 The Tribunal held that, according to these procedures, it was "clear that the process did not go beyond an investigation and reporting of findings to the Usher of the Black Rod and the disciplinary action envisaged by the Procedures document did not take place". In these circumstances the Senior Member found that no disciplinary action was taken against the respondent. 25 The respondent ultimately accepted Comcare's position as to the asserted misapplication of Chenhall [1992] FCA 535 ; 37 FCR 75 and the error as to when disciplinary action against Ms Eames had commenced. However the respondent pointed out that, even so, the Tribunal's decision is unassailable because the Tribunal found that the injury (in either of its alternative characterisations) occurred on 14 November 2004 whereas, on any view, the disciplinary action did not commence before 1 December. 26 As to the alleged "reasonableness" of the disciplinary action, the respondent denies any error of law by the Tribunal and in any case says that the ultimate question of whether disciplinary action is "reasonable" is a question of fact only or, at most, a mixed question of fact and law, neither of which can found a s 44 appeal. 27 As finally formulated, the applicant sought by foreshadowed amendments to the notice of appeal to raise the following questions of law: 3.1 Whether action taken under s 15 of the Parliamentary Service Act 1999 (Cth) and the procedures established under s 15(3) of the said Act under clauses 2 to 5 constitutes "disciplinary action" under s 4 of the Act. 3.2 If the answer to question 1 above is "yes", whether the disciplinary action taken constitutes "reasonable disciplinary action" within the meaning of s 4 of the Act, as long as the action taken is not absurd, ridiculous or disproportionate. 3.3 In the alternative to paragraph 3.2 above, if reasonable disciplinary action requires procedural fairness to be given, what is the content of such an obligation. 3.4 Following on from paragraph 3.3 above, if procedural fairness is to be given, whether this obligation is discharged if: 3.4.1 The substance of the allegations; and 3.4.2 The substance of the evidence, on which the findings of the breaches are to be based, are given to the person in question. 29 It appeared that Comcare's principal concern prompting the appeal was the Tribunal's treatment of the disciplinary action in question. Comcare accepts the correctness of Cooper J's exposition of the law in Chenhall [1992] FCA 535 ; 37 FCR 75 as to what constitutes "disciplinary action" and the distinction between such action and things done by way of investigation preparatory to the commencement of the actual disciplinary action. However the applicant is concerned that the Tribunal misapplied Chenhall [1992] FCA 535 ; 37 FCR 75 in a way that would unduly narrow the practical effect of the intended statutory exemption of disciplinary action caused injuries from liability. 30 The applicant's submissions may be summarised as follows. 31 The construction of the phrase "reasonable disciplinary action" in s 4 of the Act (as it was at the relevant time) is a question of law: Chenhall 37 FCR at 78; similarly, in Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 and HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291 , the Full Court was satisfied that questions of law were raised with respect to the definition of some concepts in the relevant Commonwealth legislation. 33 The action taken in the present case was clearly disciplinary action. The regulatory regime as to disciplinary action in Chenhall [1992] FCA 535 ; 37 FCR 75 differed materially from that in the present case. The Tribunal in the present case applied the cited passage from the judgment of Cooper J, without proper appreciation of the particular factual contexts and the terms of the relevant regulatory schemes in Chenhall [1992] FCA 535 ; 37 FCR 75 and in the present case. Notwithstanding that the Senior Member cited the correct and helpful explanation of the phrase "reasonable disciplinary action", from Chenhall [1992] FCA 535 ; 37 FCR 75 the conclusion he reached was not open to him if he had correctly applied that definition. In this way the Tribunal erred in law. 34 In Chenhall [1992] FCA 535 ; 37 FCR 75 , Cooper J was reviewing a decision regarding a compensation claim made by an Australian Federal Police (AFP) officer, following an interview which was conducted as part of an investigation in accordance with the AFP General Orders. General Order 6 provided for the investigation of allegations and disciplinary matters to which the Complaints (Australian Federal Police) Act 1981 (Cth) (Complaints Act) did not apply. Cooper J concluded that disciplinary action, in the context of the regulatory scheme in Chenhall [1992] FCA 535 ; 37 FCR 75 , was not lawfully taken against the member of the AFP until: (a) the provisions of the General Order had been complied with; (b) the Commissioner determined in accordance with the Australian Federal Police (Discipline) Regulations 1979 (Cth) (Discipline Regulations) or the Complaints Act what action to take against the particular member in respect of a defined disciplinary offence; and (c) the Commissioner took one of the steps provided for under the Discipline Regulations or the Complaints Act to give effect to the determination. 35 The present regulatory regime, drawn from the Procedures, is distinguishable but also has a number of steps: 1. Unless a report of a breach (or alleged breach) of the Code of Conduct is considered to be frivolous or vexatious, the person receiving the report is to inquire into the allegations and determine whether there is enough evidence to justify further investigation. These initial considerations include 1.1 Is it a case of poor performance or misconduct? 1.1.1 If misconduct is alleged (a) is it minor and able to be dealt with informally by counselling or some other action; or (b) is it of such significance that an investigation is required? 1.2 Is suspension or temporary re-assignment of duties warranted? 1.3 Should the police be notified? 2. If there is sufficient evidence to warrant further investigation, the Usher will select a person who is independent and unbiased to determine whether the employee has breached the Code of Conduct. 3. The employee is informed in writing of the allegation(s), who is conducting the investigation and the sanctions that may be imposed if he/she is found to have breached the Code. 4. Having investigated the allegations with due regard for procedural fairness, the investigator will report the findings to the Usher. 5. If there is no breach found, the Usher will advise the employee in writing. If the investigator finds that a breach has occurred, he or she may also recommend an appropriate sanction. At this point the Usher must provide a copy of the findings to the employee and invite comment on any proposed sanction. 6. After considering any mitigating comments from the employee, the Usher will determine the case and inform the employee in writing of the determination, any sanction imposed, the reasons for them, and the employee's rights of review. 36 Steps 2-5 above constitute the taking of disciplinary action and had been taken in the present case prior to 3 February 2005. On 1 December 2004, two broad allegations were advised by the Usher of the Black Rod to the investigator, Mr Curtis. Mr Curtis found that a breach of the Code of Conduct had occurred, and recommended an appropriate sanction. On 15 December, Ms Griffiths (the Usher) provided a copy of the Curtis report to the respondent and invited comment. 37 The fact that the process did not culminate in the imposition of a sanction is not to the point and the Tribunal erred in so thinking. 38 The Tribunal's finding of liability from 14 November 2004 to April 2005 cannot have been made regardless of its discussion about disciplinary action: there is no indication in the Tribunal's reasons that the discussion about disciplinary action was not determinative of its final orders, no introductory phraseology such as "in any event" was used; the Tribunal devoted time and energy to this issue during the hearing and in its decision, indicating that its remarks were not a mere digression. Finally, the applicant submits that Dr Wessell's evidence indicated that it was the disciplinary action which was most causative of the alleged stress to the respondent. It defies commonsense to say that the disciplinary action was of no moment to the onset of or the aggravation of the alleged injury. 46 I agree with the parties that Chenhall [1992] FCA 535 ; 37 FCR 75 correctly and helpfully discusses the law as to what is necessary to constitute "disciplinary action". Whether particular conduct amounts to "reasonable disciplinary action" has previously been treated as a question of law: Chenhall [1992] FCA 535 ; 37 FCR 75 ; Schmid v Comcare [2003] FCA 1057 ; (2003) 77 ALD 782 , [84]. The question is: at what point in the regulatory regime in the present case did disciplinary action begin? This requires an analysis of that regime. 47 It appears that the learned Senior Member did misapply the definition of "reasonable disciplinary action", in that he did not consider disciplinary action within the meaning of the Act to have occurred at all in the present case. I accept that disciplinary action had begun from 1 December 2004, when the respondent was provided with the allegations made against her. What is described within the Procedures as an "investigation" is, when viewed in the context of the Parliamentary Services Commissioner's Direction 2000/1 (the basis of the Procedures, in accordance with s 15 of the Parliamentary Service Act 1999 (Cth)), actually a determination of whether there has been a breach of the Code of Conduct. This is clearly "action lawfully taken against an employee in the nature of or to promote discipline": Chenhall 37 FCR at 83. Cooper J explicitly (and in my respectful opinion, correctly) rejected the proposition that disciplinary action refers only to the actual imposition of a sanction: Chenhall 37 FCR at 85. The Tribunal appears to have misconstrued Chenhall [1992] FCA 535 ; 37 FCR 75 in this respect: at [39] it said "[t]aking into account the Senate's own procedures it is clear that the process did not go beyond an investigation and reporting of findings to the Usher of the Black Rod and the disciplinary action envisaged by the Procedures document did not take place". That is to conflate the entire process of disciplinary action and its ultimate outcome. Had the allegations not been sustained, the action of investigating them for the direct purpose of determining whether any sanction should be applied would nevertheless have been "disciplinary" action. 48 Notwithstanding this error, it needs to be shown that the actual decision may have been affected by it: the "appeal" is from the decision not from the reasons given in support of it. 49 By design or otherwise, reasons for decision given by decision-makers of all kinds frequently include expressions of opinion on material discussed in the case at hand that are unnecessary for the actual decision; in particular, appellate or reviewing decision-makers often intend, in that way, to be helpful to primary decision-makers. Tribunals giving opinions which are, logically, gratuitous do not always understand that, in terms of doing only what is necessary, an opinion expressed may have that character. Even where this is understood, a busy tribunal member may omit an explanation for undertaking the excursus. Frequently, judges (even at the highest levels) discuss unnecessary material and, often enough, without expressly flagging their understanding that they are doing so. At least an equal degree of understanding of the process of writing reasons for decision can and should properly be extended to administrative tribunals. The eye too keenly attuned to unduly strained inference needs some detuning. 56 This implies another consideration: Cooper J in Chenhall [1992] FCA 535 ; 37 FCR 75 indicated (rightly, in my respectful view) that, among other things, to be "disciplinary action" in terms of the statute, the action needed to be "lawfully" taken. If procedural fairness be denied, the action will not be lawful, whether or not some circumstances may exist (about which I say nothing) in which the action might nevertheless be "reasonable". Not only will the action be unlawful but unlawfulness in decision-making should have practical consequences even if it does not always lead to outright invalidity: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at [100] .