Legislation prevents Crown dismissing 'at whim'

Cases

Legislation prevents Crown dismissing 'at whim'

Source: Australian Business Ltd The NSW Supreme Court has rejected the principle that Crown employees hold their offices at the pleasure of the Crown and that they may, therefore, be dismissed at the whim of the Crown.

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Source: Australian Business Ltd

 

The NSW Supreme Court has rejected the principle that Crown employees hold their offices at the pleasure of the Crown and that they may, therefore, be dismissed at the whim of the Crown. Ruling on a case involving the NSW Police Service's former deputy commissioner, Justice Simpson found his removal from office was invalid because he was not accorded the procedural fairness he was entitled to under the Police Service Act. She concluded the employer's claim to be entitled to act in a 'high-handed manner' was 'in the 21st century, and in the light of modern authority, misplaced'. Justice Simpson found the former deputy commissioner was entitled to damages representing his salary loss for the whole of the unexpired term of his contract.

Background

The former deputy commissioner of the NSW Police Service initiated action against the NSW Police Commissioner claiming he had been removed from office without being accorded any procedural fairness and demanding compensation for the rest of the term of his contract.

He was appointed deputy commissioner in February 1997 for a term of three years. In February 2000 his appointment was renewed, this time for a term of five years. On September 12, 2001, on the recommendation of the NSW Police Commissioner, the deputy commissioner was removed from office. In a statement of reasons, the Commissioner alluded to unsatisfactory aspects of the employee's performance in his role as deputy commissioner.

The former deputy commissioner's case was that he was entitled, before being removed from his office, to be accorded procedural fairness. This procedural fairness demanded that he be advised that his removal was under consideration, that he be given an opportunity to be heard on whether he should be removed and allowed to answer any specific allegations made against him. He said he was given none of these considerations.

The employer (the Police Commissioner and State of NSW) argued it was under no obligation to afford procedural fairness to the deputy commissioner. It said that, pursuant to the relevant legislation, the employee could be removed from office at any time, without explanation, justification or excuse. It relied on the principle that Crown employees hold their offices at the pleasure of the Crown and that they may, therefore, be dismissed at the will - and indeed on the whim - of the Crown.

Findings

Justice Simpson of the NSW Supreme Court determined that the cases dealing with Crown employment 'invariably acknowledge' that the 'power of the Crown to dismiss at pleasure' principle is subject to modification by the statutory provisions which govern that employment. The deputy commissioner was appointed and his removal was, according to the Police Commissioner, effected under the provisions of the Police Service Act 1990. Justice Simpson said she would take the approach that it was not for the employee to prove the Police Service Act provided for procedural fairness, but for the Police Commissioner to prove that it did not.

The employer focused on the words 'at any time' included in subsection s51(1) of the act which reads: 'An executive officer may be removed from office at any time.' It said these words effectively reproduced the notion of employment of Crown employees 'at the pleasure of the Crown', with all that that historically entailed, including the right to terminate in denial of natural justice. Justice Simpson, however, said she was 'unable to accept that these three words, with their limited meaning, can be so read as to exclude what would (absent clear words to the contrary) otherwise be implied: that is, that, before employment (or an appointment) is to be terminated, procedural fairness should be afforded'.

Justice Simpson concluded that the employer's claim to be entitled to act in a 'high-handed manner' was misplaced. She said the focus in the Police Service Act on merit as the basis of appointment, and the requirement of annual performance reviews, supported that view. This conclusion was reinforced by the recommendation for the deputy commissioner's removal being based on the manner in which he performed his duties, she said. 'The [deputy commissioner] was entitled, not only to the benefit of a review of his performance in accordance with s43, but also, when his removal was being contemplated on performance grounds, to be notified of that fact and given an opportunity to respond to the proposal and the criticisms of his performance.'

Justice Simpson said that as he was denied these opportunities, the decision of the Police Commissioner to remove the deputy commissioner from his office was legally flawed and invalid. She went on to find that he was entitled to damages representing his salary loss for the whole of the unexpired term of his contract, less a proper allowance for sums he had been able to earn in the meantime; as at the time of his removal the deputy commissioner's appointment of five years had almost three and a half years to run. Justice Simpson said she could see 'no purpose' in appointing an executive officer for a fixed time if there was no intention to adhere to that term.

The judge said there was no reason to read into either the contract or the term of the appointment a capacity for the employer to terminate the employee 'on reasonable notice'. She said 'they may well have been entitled to do so had they brought about his removal in accordance with what the statute required of them. They not having done that, the [deputy commissioner] was entitled to the benefit of the agreement he had made'.

See: Jarratt v Commissioner of Police for NSW & Anor [2002] NSWSC 596 (July 5, 2002).


 

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