WRITTEN BY John Wilson & Kieran Pender
There has been much media attention in recent months on the case brought by Sally Rugg against the federal government and teal independent Monique Ryan. Rugg sought an injunction to prevent the termination of her employment as Ryan’s chief of staff taking effect, as part of a wider general protections claim under the Fair Work Act.
She was unsuccessful in the injunction application; the substantive case will be heard later this year.
Political staffers’ employment is governed by the Members of Parliament (Staff) Act 1984, while public servants are employed under the Public Service Act 1999. The APS employment system provides a series of checks and balances which should prevent unjust decisions around a public servant’s employment proceeding to finality. But “should” is the critical word here – sometimes, even with these safeguards, injustice is allowed to proceed unchecked.
Which raises the question: once dismissed, can a public servant get their job back?
The question is not as simple as it may seem, which is why, in light of the attention around the Rugg case, it is timely to revisit it. (Although we will focus our attention on public servants, rather than political staff).
Traditionally, the common law of employment was wary of forcing employers to take back employees, even where they had been dismissed unlawfully. This was due to the personal nature of the employment relationship, which, when broken, may not be easily reparable.
Hence there was a reluctance to either order an employer reinstate an employee, or require an employee to return to their employer (when they had quit in breach of contract), because of a perception that this constituted a “forced” personal relationship which the courts were unable to practically supervise the “reconstruction” of.
This was in contrast to the situation in commercial contracts, where courts have been more willing to order “specific performance” – i.e. fulfilment of the contract.
This gap in the law may have been understandable in small workplaces, but the breakdown of relationship rationale is less persuasive for large employers, where even a localised relationship breakdown can be addressed with redeployment.
The situation was also deficient in failing to recognise the significance of employment for many people; unlike in commercial contracts, compensation (damages) may be insufficient to remedy an unlawful dismissal – especially in specialised fields, like many APS roles.
In the early 1990s, legislation intervened to make reinstatement a statutory remedy in the event of an unfair dismissal. This was a significant development, hailed by one judge as a “a charter of rights for employees”. Reinstatement has formed part of the Australian employment law landscape ever since, although its salience has waxed and waned through different eras of industrial relations reform.
Today, under the Fair Work Act, reinstatement is supposedly the primary remedy, which the Fair Work Commission must consider first before contemplating other remedies (such as compensation). If an employee (including a public servant) can show that they have been unfairly dismissed, there is, theoretically at least, an emphasis on reinstating their employment.
Unfortunately, in practice, reinstatement is less commonplace than might be expected. The statutory criterion is appropriateness – whether reinstating an employee to their employment would be inappropriate. The law has developed to consider whether the employer has lost trust and confidence in the employee, such that reinstatement would not be practical. As academics Shi and Zhong describe, “ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive.”
By way of example, a Fair Work Commission annual report a few years ago stated that, in the relevant 12-month period, of more than 8000 applications for a remedy for alleged unfair dismissal, just 55 had resulted in reinstatement. On this data (and certainly on our anecdotal perspective of the unfair dismissal decisions we see), an employee has, in reality, limited prospects of getting their job back once dismissed.
Public servants do have another option, though. As public sector employment has both administrative law and employment law underpinnings, an unfair or unlawful dismissal can be challenged through either the Fair Work Act or ordinary principles of judicial review. If the decision to dismiss a public servant was erroneous in law – say because the delegate took into account irrelevant considerations, or did not have the lawful authority to make the decision – a judicial review application can have the decision quashed.
In such circumstances, the termination decision is lawfully no decision at all, and the employment relationship resumes. (Although there is nothing preventing the agency from “remaking” the decision in a lawful manner, which may lead to the same ultimate outcome).
Sometimes, unlike in the Rugg case, a court will order an interim injunction to preserve the relationship while the underlying case is determined. In Assi v Department of Climate Change, on the eve of Christmas last year, the Federal Court blocked the dismissal of an APS employee.
The public servant had moved agencies and in her initial forms had declared that she had resigned from her previous employment during a workplace investigation. Two probation reviews passed satisfactorily and the employee anticipated being made permanent when, unexpectedly, she was accused of misleading the department over the prior investigation. The agency proposed to terminate her employment.
The court considered the impact of the ordeal on the employee’s health and the financial blow which would be caused by dismissal. Notwithstanding open questions about whether or not she had misconducted herself, the judge held that “balance of convenience plainly favours the applicant” in preserving the relationship until such issues could be resolved.
Her job was saved – at least, for a time.
While the Assi case provides some hope, ordinarily once sacked a public servant faces an uphill battle to get their job back. It does happen – there are some Fair Work Commission decisions which testify to that. But it is an arduous road ahead.
The above article was written for and published in the Canberra Times.
For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.