Employer runs 'fowl' of procedural fairness

On 7 May 2015, the VGSO hosted its seminar. 'An essential ingredient - Procedural fairness in workplace issues: a panel discussion', to a full house of Victorian government agency staff.  Our panel members, Jacqueline Parker, Assistant Victorian Government Solicitor, Joanne Kummrow, Special Counsel, Alice Felman, Principal Solicitor, Andrea Lester, Investigator and Jim McKenna, Barrister, provided insights into the key elements of procedural fairness in the workplace and the importance of conducting thorough and unbiased investigations.

That same week, the Fair Work Commission delivered its decision in Heidi Cannon v Poultry Harvesting Pty Ltd, a sobering example of the consequences of failing to afford procedural fairness.

The untimely demise of a number of chickens

Ms Cannon was dismissed from her employment with Poultry Harvesting for allegedly being intoxicated at work, and sleeping in a vehicle during her shift.  Her neglect of duties led to the 'smothering' of a number of chickens.

After her supervisor (Mr Germinian) received a call from a co-worker reporting that Ms Cannon was 'useless', and apparently intoxicated at work, he attended the site.  Upon being asked several times, Ms Cannon denied that she was intoxicated.  She was dismissed after her supervisor smelt alcohol on her breath.

Later that afternoon, Mr Germinian refused to reconsider Ms Cannon's dismissal on the basis that Ms Cannon had lied to him about her intoxication.  Mr Germinian relied on information from another employee that Ms Cannon's partner had advised him that Ms Cannon had been too intoxicated to drive to work.

Although Ms Cannon admitted to not driving to work because she was concerned she might be over 0.05 if breathalysed, she did not consider herself to be intoxicated.

Ms Cannon made an application to the Fair Work Commission for an unfair dismissal remedy.

No valid reason to dismiss

The FWC found that there was no valid reason for Ms Cannon's dismissal.  Its reasons included:

• Failure to investigate (no steps taken by employer to objectively assess Ms Cannon's condition and reliance on hearsay information about Ms Cannon's fitness to drive) 
• Failure to apply policies (employer did not follow requirements of its own policies which required employees to be stood down from work until they could work in a safe manner, to be issued with a written warning and to be advised of the availability of counselling)  
• Evidence did not support reason for dismissal (despite concerns that Ms Cannon's intoxication could cause a health and safety risk, Ms Cannon was permitted to work until the end of her shift).

No procedural fairness

The FWC also found that Ms Cannon had been denied procedural fairness as a result of a failure to provide her with an opportunity to respond to allegations or to warn her that she was not permitted to drink any amount of alcohol prior to her shift.  The FWC took into account the following:

• the lack of engagement with Ms Cannon about her views regarding the allegations that she was intoxicated or that she had lied about her alleged intoxication; and
• the lack of an opportunity for Ms Cannon to respond to the allegation by Mr Germinian that Ms Cannon had brought into the premises a can of alcoholic beverage that Mr Germinian found in the shed.  

The Cannon case highlights many of the key themes discussed at the VGSO seminar, including:

• ensuring employees are aware of the standards of behaviour to which they are being held to account, such as their obligations under relevant instruments (eg the Code of Conduct, the Public Administration Act 2004 or the VPS Determination); 
• following the requirements set out in policies or instruments with respect to the management of misconduct or performance processes;
• informing the employee, at the commencement of the process, of the potential outcomes and consequences for their employment; and
• providing a genuine opportunity for the employee to respond or to offer mitigating circumstances with respect to the allegations, the findings and the proposed outcome.

For further advice on your agency's obligations of procedural fairness in the workplace, please contact:

Romina Woll
Senior Solicitor
t  9032 3026
romina.woll@vgso.vic.gov.au

Vicki Moulatsiotis
Principal Solicitor
t  9032 3012
vicki.moulatsiotis@vgso.vic.gov.au

Legislative instruments — Are yours in tune?

No inconvenience in government administration can, in my opinion, be allowed to displace adherence to the principle that a citizen should not be bound by a law the terms of which he has no means of knowing.

Chief Justice Barwick, Watson v Lee  (1979) 

Most of us know the maxim 'ignorance of the law is no excuse'.  But how can a citizen be expected to know about, let alone comply with, a law that has not been published?
Since 1 July 2011, new rules under the Subordinate Legislation Act 1994 (SLA) govern the preparation, making, publication and review of 'legislative instruments'.

The consequences of failing to comply with the SLA's requirements could be serious, including possible invalidity or disallowance of an instrument.  In this blog, we

• explain what is, and what is not, a 'legislative instrument';
• outline what the new laws say agencies must do; and
• give practical tips on things agencies should do to achieve best practice.

What is a legislative instrument?

To comply with the new laws, you first need to determine whether a particular instrument is legislative or administrative.   Put simply, any instrument that has a legislative character is a 'legislative instrument', unless otherwise designated or exempted  by the SLA (e.g. statutory rules and planning schemes) or other legislation.

Case law has developed principles for determining whether an instrument has a 'legislative character' by examining what the instrument does.  Under these principles, the distinction between legislative and administrative actions '…  is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases'.

A number of factors must be taken into account, such as whether the instrument alters pre-existing law, creates or changes legal rights and obligations, is mandatory or has general application.[1]   Usually, these principles are easy to apply — but not always.  In cases of doubt, given the potential consequences, it may be wise to seek legal advice.

In many cases, an instrument is specifically characterised as legislative or administrative by:

• the Subordinate Legislation Act 1994 [2]; 
• the Act under which the instrument is made; or
• the Subordinate Legislation (Legislative Instruments) Regulations 2011.

What does the SLA require?

The SLA imposes a number of requirements on agencies that make or administer legislative instruments, including those outlined below.

Preparation 

Agencies must

• consult other agencies and stakeholders during preparation, unless exempt;
• prepare a regulatory impact statement (RIS) if the instrument would impose an appreciable economic or social burden, unless exempt;
• conduct a human rights assessment of every proposed legislative instrument, identifying and justifying any limitation of the rights set out in the Charter of Human Rights and Responsibilities [3];  and
• prepare certificates of compliance with or exemption from these requirements.

Making 

Agencies must

• arrange tabling in Parliament of all new legislative instruments, unless exempt; and
• provide copies of all new legislative instruments and associated certificates (unless exempt) to Parliament's Scrutiny of Acts and Regulations Committee (SARC), which can recommend disallowance.

Publication

Agencies must

• publish all new legislative instruments in the Government Gazette, either in its next General edition, or in a Special edition within 10 working days (this often supersedes less onerous requirements in the authorising Act [4]); and
• prepare up to date consolidations of amended instruments, unless exempt; and
• publish copies of instruments in force, including any consolidations, on the internet and also make them available for public inspection in hard copy.

Legislative instruments exempt from RIS and tabling must still be gazetted.[5]

Good practice tips

There are a number of things not required by the SLA but which agencies should do as a matter of good practice to make the law more accessible and easier to understand for members of the public. They will also make administration easier.

In particular, it is good practice for agencies

• to draft using the standards and format for statutory rules, and to use plain English;
• to remake an instrument rather than make extensive amendments to it;
• to have a second person check the draft before an instrument is made — the criteria set out in the SLA at s. 13 (for proposed statutory rules) and at s. 25A (which SARC applies in reviewing instruments) provide useful checklists; and
• to retain revoked instruments and superseded consolidations on websites, so that members of the public can find what the law was at any point in time.

Getting In Tune - Legislative Instruments workshops

In conjunction with the Office of Chief Parliamentary Counsel, VGSO will be holding lunch time workshops for clients titled Getting In Tune - Legislative Instruments.

The workshops will cover the rules, procedures tips and traps of creating and maintaining legislative instruments.

These will be held on:
Tuesday 28 July, 12.30pm
Thursday 30 July, 12.30pm

To register your interest, please contact marketing.team@vgso.vic.gov.au 

For assistance on these issues contact:

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0416

Mark Miller
General Counsel

9947 1408

[1] See RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185 at 202, and Visa International Services Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 at 424. See also the Premier's Guidelines under the Subordinate Legislation Act 1994 published in the Government Gazette of 4 August 2011, at pages 1798 to 1799  Government Gazette of 28 August 2014 at pages 1906 to 1938.
[2] See the definitions of 'legislative instrument' and of instruments of a 'purely administrative nature' in s. 3.
[3] The VGSO's human rights and equal opportunity practice group can assist agencies with Charter assessments and the preparation of certificates:  Contact Catherine Roberts, Managing Principal Solicitor.
[4] See in particular section 16D of the Subordinate Legislation Act 1994, which deals with how to reconcile dual or competing publication requirements of the SLA and the authorising Act.
[5] See regulation 7 of, and Schedule 3 to, the Subordinate Legislation (Legislative Instruments) Regulations 2011.