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  • Free speech denied in the High Court of Australia in Bernard Gaynor case

    Opportunity missed in the High Court on the free speech of public servants

    The High Court has refused to hear an appeal from Bernard Gaynor, who was terminated from the Army Reserves for his controversial public views, leaving public servants in an invidious position. Can they be fired for expressing their political opinion? Maybe.

    Before the High Court in August, distinguished barrister Jeremy Kirk SC addressed the elephant in the room. “No doubt there are some interesting issues over the horizon here,” he said, “interesting issues about social media and members of the public service and so forth, but this is a really extreme case.”

    The extreme case was this: Army reservist Bernard Gaynor had commenced legal proceedings after having his commission terminated for publicly expressing homophobic and Islamophobic views. He won in the Federal Court on free speech grounds, but lost in the Full Federal Court. Following Kirk’s suggestion (he appeared for the Defence Force), the High Court elected not to hear the appeal.

    For all public servants, the High Court’s failure to review the case is a great pity. While those “interesting issues” linger over the horizon, the ability of APS employees to speak their mind on political matters out-of-hours remains uncertain. With the Australian Public Service Commission continuing a crackdown on social media usage by public servants, this is no mere legal nicety but a pressing issue of public importance.

    Public servants and free speech

    Public servants are equal members of the Australian community and, ordinarily, enjoy the same rights and freedoms as any other citizen. However, the government has long sought to regulate the political expression of its employees – in 1902 a regulation was passed forbidding public servants from making any political comment. While the law has long since changed, the APS Code of Conduct is still regularly invoked against public servants who express disagreement with prevailing policy.

    The real difficulty in this context is striking the right balance. Few would argue that public servants have an unrestrained right to criticise government policy. In the GaynorHigh Court hearing, judge Patrick Keane posed a hypothetical: “If a minister of the Crown … were to make comments disparaging of the government policy and the Governor-General, on the advice of the Prime Minister, were to terminate the commission”, would that be unconstitutional?

    The answer is obviously no, and similarly a department head could hardly use the constitution as a shield against dismissal for publicly criticising his or her minister. But when a departmental receptionist expresses their views at home and out-of-hours, the pertinent considerations are entirely different. In Gaynor, the appellant was not in uniform, not on duty and not an active member of the Reserves.

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    John Wilson is managing legal director at Bradley Allen Love and acted for the public servant plaintiff in Bennett. He acknowledges the assistance of his colleague Kieran Pender in the preparation of this article. For more information about this case, please contact us.

    Article first published in the Mandarin.

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  • Candid Camera Covert Surveillance

    Candid Camera: Covert Surveillance in the Workplace

    If covert surveillance is used in a workplace, employers had better be sure it’s done with the agreement of staff.

    It is not uncommon for organisations to keep an eye on their employees via video cameras or internet monitoring. But beware the legal pitfalls.  The vexing topic of covert surveillance recently reared its ugly head in the Fair Work Commission. Nursing home provider Bupa had commenced an investigation into an employee after a colleague secretly recorded footage allegedly showing misconduct. Bupa claimed that Shahin Tavassoli had laughed during a conversation about the death of a resident and ignored residents’ calls for assistance. The latter is a serious breach of Bupa’s duty of care.

    These allegations were put to Tavassoli who immediately resigned. Two days later, she sought to rescind her resignation, but Bupa refused. Tavassoli then commenced unfair dismissal proceedings, arguing that she had been constructively dismissed. The Fair Work Commission recently found in her favour, ordering that Tavassoli be reinstated. The decision raises three important issues, which we will consider in turn.

    Procedural fairness

    Firstly, commissioner Bernie Riordan found that Bupa’s approach to the alleged misconduct was lacking in procedural fairness. The allegations were first put to Tavassoli orally and she was not given a copy of relevant written correspondence. Nor was the video recording, the only evidence for the alleged misconduct, shown to Tavassoli. Even several months after she had commenced unfair dismissal proceedings, Bupa had still not disclosed either.

    This, the commissioner held, fell considerably short of the standards required. “I struggle to see how the principles of procedural fairness can be satisfied,” the judgment reads.

    “Employees have a right to know the case that they have to answer. Bupa had an obligation to show Tavassoli the video footage, particularly when it forms the sole foundation of the allegations. Simply making generalised accusations when specific information was available is a form of entrapment. The decision to terminate an employee should not be based on a memory test but rather the employee’s considered response to specific accusations.”

    This passage is highly instructive. Employers must put particularised allegations to employees: “you were rude to clients” should be “on 1 October, you were disrespectful to John Smith by…”. When the employer has evidence to substantiate these claims – email logs, video footage, witness statements – they must also be provided to the employee (redacting names to protect privacy, where necessary). Anything less, and an organisation may fail to satisfy the Fair Work Act’s procedural fairness requirements.

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    First published HR Monthly. Written by John Wilson, Managing Legal Director, and Kieran Pender, Law Clerk.

    If you have any questions about surveillance in the workplace, please contact us.

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  • Has the clock really stopped time?

    Planning Law Update: Has the clock really stopped?

    In certain circumstances, a request for additional information will ‘stop the clock’: that is, the time for lodging an appeal ceases to run until either the information is provided within the time specified by the Council or the applicant tells the Council that it doesn’t intend to provide the information.

    However, failing to provide the information within the time specified by the Council may not result in the clock restarting.

    In a decision handed down earlier this week, the Land and Environment Court held that a Council’s actions following the end of the period within which the additional information was required to be provided effectively amounted to an extension of time for the provision of the information: Corbett Constructions P/L v Wollondilly Shire Council [2017] NSWLEC 135 (9 October 2017).

    In that case the Council had requested a substantial amount of additional information in relation to a development application for a large medium-density residential development.  The additional information included a residential flat building architectural design verification; a new BASIX statement; a ‘phase 1’ contaminated site assessment; a flood impact assessment and various other pieces of information.  The request for information was made 10 days after the DA was lodged and therefore complied with the requirement that such requests be made within 25 days from the date of lodgement of the DA: reg 109(2). The request required that this information be made available within 28 days and indicated that if the information was not received, the application may be determined on the basis of the current information.

    The deadline for the provision of the additional information passed, and sometime later, an exchange of emails took place between the applicant and the Council in which the applicant indicated that the additional information would be provided “in the coming weeks”.  This was followed by a letter from the Council noting that the requested information had not been provided and warning that if the information was not provided within the following 7 days, it would be assumed that the applicant wished to have the DA determined on the information previously submitted. When the additional information had still not been provided, the assessing officer emailed the applicant noting that “I have previously provided until 18 October for the provision of the outstanding information” and indicating that if the information was not provided by the end of the week, the assessment report would be prepared without it.  The requested information was provided that day.

    When the DA remained undetermined some months later, the applicant lodged an appeal to the Land and Environment Court against the “deemed refusal” of the application.  The Council applied to strike out the appeal on the basis that the appeal was required to be commenced within 6 months from the date on which the application was deemed to be refused (ss. 82 and 97(1)(b)), and that this period had already expired.

    The issue for the Court was whether the Council’s request for additional information had stopped the clock only for the 28 day period specified in the Council’s letter requesting the information, or until the ultimate deadline nominated in the assessment officer’s email of 18 October.  The appeal was only within time if the clock had been stopped until 18 October.

    The Council argued that, because there had been no information provided in answer to the Council’s letter within the 28 day period specified, time began to run again once the 28 day period had expired.  This meant that the appeal had commenced more than 6 months after the date on which it was deemed to have been refused.

    The Applicant referred to the requirement in reg 54(2)(b) that the request for additional information specify a reasonable period for the provision of the additional information and argued that the 28 day period specified by the Council was, having regard to the nature of the additional information requested, unreasonable.  In fact, the Applicant described the task of providing the information to the Council in the specified timeframe as so onerous that it was “mission impossible”.  In any event, the Applicant argued that the Council had extended the time for the provision of the information, and the information had been provided prior to the expiration of the extended deadline.

    As indicated above, the Court accepted the Applicant’s argument that the Council had in fact extended the time for the provision of the additional information, the information was provided within that extended period and the clock had been stopped until that time.  In coming to this conclusion the Court found that a consent authority was not restricted to allowing a further period of time for the provision of additional information only before the expiry of any period specified in the request for further information.  Rather, it is open to the consent authority, after the expiry of that period, to re-assess the situation and provide the applicant with further time to provide the information requested.

    These findings meant that it was unnecessary for the Court to determine whether the initial 28 day period specified by the Council was reasonable in the circumstances of the development application.  Nevertheless the Court went on the make some useful comments on what the requirement for the specification of a reasonable period entails.  Those comments may be summarised as follows:

    1. The inclusion of the word “reasonable” in reg 54(1)(b) is intended to ensure that consent authorities prescribe reasonable periods within which responses are to be prepared and provided when additional information is requested.
    2. The provision of additional information will often require careful, and sometimes time consuming, preparation.
    3. To be “reasonable”, logic demands that the period specified is sufficiently workable or feasible so as to provide enough time for the information to be assembled and then provided to the consent authority.
    4. What period of time will be “reasonable” will depend on the nature of the proposed development and the varying sophistication or complexity of the analysis required to provide the further information sought.
    5. It follows that a pro forma specification of a specified period within which information must be provided will often be inappropriate.
    6. Consent authorities should carefully tailor their requests under reg 54 after making their own assessment of what time would be necessary, and therefore reasonable, to enable an applicant to respond appropriately.

    For more information about this decision, please contact us.

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  • ACT’s First Wills Rectification Case - In the Estate of Rummer

    ACT’s First Wills Rectification Case - In the Estate of Rummer

    The ACT Supreme Court has recently delivered judgement in a case involving Section 12A (Rectification) of the Wills Act 1968. This was the first time Section 12A was considered by the ACT Supreme Court, so pracititioners have finally been provided with judicial guidance on the application of the rectification provisions in the Wills Act.

    The case involved a Will executed by Mr Rummer on 20 August 2015. Mr Rummer’s Will made provision for his half-sister, a close friend and gave the residue of his estate to his friend Judith, who was also the defendant in the proceedings.

    Mr Rummer subsequently dictated some amendments to his 2015 Will to his nominated executor, who was the Plaintiff in the proceedings, while the executor was at his bedside. Handwritten amendments were made to the 2015 Will which were signed by Mr Rummer in the presence of a registered nurse. The handwritten amendments constituted a Codicil to the 2015 Will.

    Among the changes were the following:

    • The deletion of the gift to Mr Rummer’s close friend (Roy);
    • An amendment to give “most of the rest and residue” of his estate to the defendant; and
    • Inserting the words after the gift of the residue to the Defendant of “amounts as directed to my Executor to my friends Pat … and Peter…”

    Sadly, Mr Rummer died on the same day he signed the “Codicil”.

    The Plaintiff sought rectification of Codicil seeking an order that the residue clause be amended to replace the words “most of the rest and residue” with “one-half of the rest and residue”. Based on conversations that the Plaintiff had with Mr Rummer, the Plaintiff’s position was that Mr Rummer meant to give the Defendant only one-half of the residue of his estate and that the other half was meant to be divided between friends Pat and Peter.

    The task before the Court was to consider the proper construction of the following words, and to consider the application for rectification by the Plaintiff:

    • “Most of the rest and residue” and
    • “amounts as directed to my executor”.

    The Judgement 

    The Court ultimately held that:

    • notwithstanding the insertion of the words “most of the rest and residue” the testator did not intend the defendant to only receive one-half of the residue. Rather, the testator intended that the defendant should receive the rest and residue of the estate in full after payment of two monetary gifts to Pat and Peter of $35,000 each; and
    • The Court also found that the gift to Pat and Peter of “amounts as directed” failed for uncertainty, however, the testator’s intention was that Pat and Peter at least receive some money and that having regard to the submissions by the parties, the testator probable intention was that Pat and Peter receive an amount of $35,000 each.

    “Most of the rest and residue”

    With regard to the words “most of the rest and residue”, the Court stated the following:

    “I reject the plaintiff’s submission that the word ‘most’ should be construed to mean ‘half’, for a number of reasons.

    First, the express words of the Codicil dictated by the testator are ‘most’ of the residue. The ordinary meaning of that word is ‘in the greatest quantity, amount, measure, degree, or number’ (Macquarie Dictionary, 7th ed). It denotes a quantity greater than ‘more’. The plain meaning of the word is not ‘half’.

    The word ‘most’, in my view, reflects the non-legal thinking of a dying man that he needed to replace the word ‘ALL’ in the Will (that had been drafted by a solicitor) with a different word, as he was now allocating some of the money that would previously have formed part of the residue to two other people”

    “Amounts as directed to my Executor”

    With regard to the words “amounts as directed to my executor to my friends Pat….and Peter”, the Court’s reasoning was interesting.

    The Court disagreed with comments in Charles Rowlands publication “The Construction or Rectification of Wills” which state that It would not be enough that the testator’s actual or probable intentions are known exclusively from external sources”.

    The Court disagreed with the above comment, indeed drawing from external sources and saying that “had the testator known the lack of stipulation of an amount or a mechanism for calculation of an amount would have the effect of the gifts to his two friends failing for uncertainty, he would have stated a sum for each”.

    In determining the amount to award each of Pat and Peter, the Court had regard to a range of factors and principles, including the “armchair principle” rule of construction.

    This case sets the precedent for cases involving section 12A in the ACT and sheds light on the legislative of“probable intention”. It is a well written and seemingly well-reasoned judgement highlighting key principles of construction and rectification of Wills.

    If you are involved in a will dispute, or have any questions about rectification provisions, please contact us.

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  • Does Comcare allow the Commonwealth to discriminate with impunity

    Does Comcare allow the Commonwealth to discriminate with impunity?

    A legislative ambiguity may be wrongly crimping public servants’ discrimination claims.

    Before the Safety, Rehabilitation and Compensation Act (the “Comcare Act”) commenced, if a federal public servant was injured at work, they could either file a general workers’ compensation claim or sue the Commonwealth in negligence. To succeed with the latter, the employee needed to establish fault on the part of the Australian Public Service, which made proceedings invariably costly and inefficient.

    To address this mischief, Parliament passed the Comcare Act in 1988, which extinguished the right to sue the Commonwealth in negligence and replaced it with a more generous workers’ compensation scheme administered by a government authority.

    his substitution of rights is enshrined in section 44 of the act, which relevantly reads: “an action or other proceeding for damages does not lie against the Commonwealth in respect of an injury sustained by an employee in the course of their employment”. In effect, it precludes a public servant from suing the Commonwealth following a workplace injury and, in return, they receive the right to ample compensation granted by the remainder of the act. However, the section’s wording does not restrict its application to negligence claims alone, but rather any action for damages “in respect of an injury”.

    This brings us to the four federal discrimination acts (the Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act), which are intended to eliminate discrimination against vulnerable members of society. They expressly apply to the Commonwealth as an employer.

    Under these discrimination acts, an aggrieved public servant can sue the Commonwealth for unlawful discrimination and, if they succeed, the court can make “any order it thinks fit”, which would generally include damages. There are two broad heads of damages: compensation for economic loss (such as lost wages) and compensation for non-economic loss, known as “general damages”. The latter takes the form of a sum of money the court determines would adequately compensate for the hurt, humiliation, distress and loss of enjoyment of life caused by the person’s experience of unlawful discrimination.

    In the landmark 2014 decision of Richardson v Oracle, the full Federal Court flexed its muscle by substantially increasing the general damages that could be awarded under the discrimination acts. Rebecca Richardson had been sexually harassed by a colleague, causing her to develop anxiety and depression. At first instance, Richardson was awarded just $18,000 in general damages; on appeal, the full Federal Court increased this to $100,000. Richardson was hailed as the start of a new era, giving teeth to discrimination law.

    However, if she had worked for the Commonwealth, the outcome of her claim might have been different: her employer might have claimed that section 44 of the Comcare Act precluded her from maintaining an action against it “in respect of an injury sustained by her in the course of her employment”.

    I have seen firsthand the Commonwealth raise this defence on several recent occasions, and it is unknown how many other claims it has sought to quash on this basis. Without a court decision or legislative clarification, the Commonwealth can continue to raise section 44 to rebuff claims of unlawful discrimination that result in injury, and for which it would otherwise be liable. This persisting uncertainty compromises public servants’ bargaining position.

    It would, in my opinion, be absurd for the Comcare Act to override the discrimination acts in this way, because it would mean public servants could only sue for unlawful discrimination if it either caused them permanent impairment (for which the Comcare Act provides an exception to section 44), or no injury at all – but not for anything in between. One can easily imagine some obscene outcomes if this interpretation was applied in practice: for instance, a public servant is raped at work by their boss and suffers a psychological injury because of it, but because they are not permanently impaired, they are precluded from recovering any compensation from the Commonwealth for their pain and suffering, despite the Commonwealth’s clear liability otherwise.

    My view is that the section 44 defence should fail, because a claim brought under the discrimination acts is a claim brought in respect of unlawful discrimination, not “in respect of injury”. The claim would be a complete cause of action whether the claimant had been harmed by way of injury or not. The injury is not the focus or subject of the claim. The claim is not one in respect of injury.

    This conclusion is supported by the Comcare Act’s second reading speech, which says section 44 was specifically directed towards common law negligence claims, and several High Court decisions to the effect that an implied repeal of another statute, particularly one that confers an individual right, requires “very strong grounds” and “clear words”, neither of which are found in the Comcare Act.

    Until the matter is resolved, the Commonwealth may unlawfully discriminate against any one of its roughly 250,000 employees, and then raise section 44 in its own defence to settle claims for much less than what they are worth. There is also a real question, in my opinion, whether reliance on such a defence is consistent with the Commonwealth’s model-litigant guidelines. Accordingly, I implore government lawyers to think carefully before arguing this defence in the future.

    Unless Parliament acts or the Commonwealth’s lawyers desist from this tactic, it will be left to a brave victim to run the matter to a court hearing and have the issue decided. But when there is a significant risk of having to pay tens of thousands of dollars to cover the Commonwealth’s costs if unsuccessful, most victims would prefer to simply settle for a much smaller sum and put the traumatic matter to rest. Who could blame them.

    First published in the Canberra Times.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleagues Ian Brettell and Kieran Pender, and barrister James Macken of Henry Parkes Chambers, for their help in preparing this article.

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