The right to procedural fairness and natural justice is recorded more fully below in material on public record in the cases IRC 3124 of 2000 Valda June Kerrison and New South Wales Technical and Further Education; and IR7143 of 2003 New South Wales Technical and Further Education and Valda June Kerrison.
For your information and to assist identifying the documents to the Panel, the following are what we deem to be relevant segments taken from documents lodged in NSW Industrial Relations Commission (IRC) NSW to Justices Schmidt, Staff, Staunton, and Vice-President Walton include the Applicant’s [Val Kerrison’s] Reply to Respondent’s [NSW Technical and Further Education (TAFE)] Submissions (November 2002).
Naturally, if you wish to put forward different documents to substantiate a claim that procedural fairness/natural justice was accorded, please feel free to do so within 14 days as part of your reply.
1) In her Reply to the Respondent’s Submissions Val Kerrison submitted from Paragraph 28 [Appeal Books from Page 298]
“… it appears that administrative decisions were made by persons in TAFE which resulted in the Applicant being deprived of work, salary and other entitlements. In Sullivan v The Council of the Municipality of Casino & Anor Judgment 7 December 1973 (…)[Kerrison v TAFE], Sullivan, an officer of Casino Council successfully brought a case against the Council claiming that a decision of the Council to suspend him was invalid because it arose from a resolution which was a nullity and thus failed to be an exercise of the power of the Council to suspend. While the present case is different it is similar in that the Respondent has at various times as set out in the List of Decisions and Related Actions herein, made decisions that are or should be a nullity on the grounds that they denied Procedural Fairness, lacked due process and arbitrarily deprived the Applicant [Val Kerrison] of her job, duties, income, and other entitlements including reputation. It is submitted that the Respondent's decisions against the Applicant [Val Kerrison] from 17 January 1995 and thereafter therefore were not a lawful exercise of the Respondent power and are nullity and that the Applicant [Val Kerrison] is entitled to the Declarations sought in her Amended Application for Declaration
2) Val Kerrison submitted, commencing at Paragraph 45 [Appeal Books Page 303]
45 In reply to the Respondent's Section "E" and paragraphs (73), (74), relating to Procedural Fairness and Natural Justice the Respondent [TAFE] mistakenly refers to a [mere] couple of instances, whereas the Applicant's case is that taking into account the cases above especially Kioa v. West (1985) 159 CLR 550 at p.619 the Applicant claims that she was entitled to procedural fairness and natural justice in all decisions and supporting actions and documents underpinning the decisions which were apt to affect her interest regarding her rights to her job, duties, income, reputation, opportunities for professional development, opportunities to progress in her career, opportunities for promotions, safe workplace free of harassment and unfair actions, other.
46 The Applicant's [Kerrison’s] submission that she was denied procedural fairness applies to an accumulating sequence of decisions and their related documents to prop up the decisions.
46.1 In Ainsworth and Anor v Criminal Justice Commission (1992) 175 CLR 564 at 576, the majority of four justices of the High Court said:
"It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations" (Annetts v McCann).
46.2 In Kioa v. West (1985) 159 CLR 550 at p.619 Brennan J referred to:
"The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted.
46.3 In Twist v Randwich Municipal
Council (1976) Barwick C J stated:
"The common rule that a statutory authority having power to affect the rights of a person is bound to hear them before exercising the power is both fundamental and universal …
The effect of a breach of the hearing rule is as follows:
"The decision is invalid (void, rather than voidable) see Ridge v Baldwin (1964)
"Although the decision may ultimately be declared void by the court, the fact that it has been made still gives the court jurisdiction to hear an appeal against it (in the event of there being a statutory right of appeal)
Ref: Essential Administrative Law by Ian Ellis-Jones, lecturer Faculty of Law UTS Sydney.
46.4 In Hubbard Association of Scientologists International v Anderson and Just (No 2) (1972) VR577 579 Adam J delivered the judgement of the court (Adam, Little and Gowans JJ) and said:
If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it, aside. It is automatically null and void, without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad.”
“You cannot put something on nothing and expect it to stay there. It will collapse.”
Denial of procedural fairness and rights by HealthQuest, MAP and department/s such as TAFE was identified in Ex 43 Health Care Complaints Commission report and the report in this Exhibit is applicable to this case particularly as the Applicant's case is amongst those reported on,
47 Underpinning the situation surrounding this case is the simple reality - the Applicant's performance of duties was exemplary and the Respondent admits this [EXH 3 Attachment "4"] and she performed those duties in TAFE classrooms, in TAFE colleges and in the wider community.
48 Against this reality, commencing January 1995 decisions were made and actions surrounding those decisions were carried out to the Applicant's detriment. The decisions and related actions effected the Applicant's:
48.1 Legal right to her job and duties;
48.2 Her rights to her wages, superannuation payments, and accumulated sick and extended leave;
48.3 Her rights to her reputation, both personal and professional
48.4 He rights to continue in her appointed position including the opportunity to apply for promotions and higher income
48.5 Her rights to participate in TAFE's internal staff development program
48.6 Her rights to rehabilitation through TAFE rehabilitation program.
49 The decision makers did not allow the Applicant natural justice before they made decisions that destroyed, defeated or prejudiced her rights, interests and legitimate expectations. The decisions were made and acted upon without giving the Applicant an opportunity to be heard, and to call evidence on such matters as were being considered before the decisions were made.
50 It is submitted that the decisions were commenced from one decision: the Respondent's decision to send the Applicant to HealthQuest and facilitate detriment to her and her removal from TAFE. From that decision the following decisions and actions flowed and were related as one action built on another. When put together the Commission may feel that the accumulated effect at present standing against the Applicant should not be allowed to stand. The Applicant, when she became aware of the decisions and actions standing against her and her rights and reputation did not accept them but vigorously denied them for years but the decision makers have not shifted their position, instead they made more decisions without allowing the Applicant procedural fairness or justice. The Commission may feel that this is an outrage performed by the decision makers for political reasons, not proper purpose and fall within the detrimental actions applied to dissidents as described in Ex 103 The Russell Tribunal Accusation . Consistent with the cases above, it is submitted that the following decisions and actions are void and a nullity.
51 It is submitted that the decision to stand the Applicant down, direct her to HealthQuest and all subsequent detrimental decisions and actions against her were directly related to the original wrong decision, done without any attempt at procedural fairness, or natural justice, often in serious denial of the truth, and are a nullity.
52 The decision makers had the means to communicate their intentions to the Applicant before they acted but did not. The decisions and related actions which were made and performed without procedural fairness and drastically affected the Applicant's rights as set out above are listed in Attachment 1. List of Decisions and Related Actions
In Applicant’s Reply to Respondent’s Submissions pages 56 to 59, Appeal Books 346-349
232 THE ORIGINAL DECISION On or around 17 December TAFE Managing Director Dr Ramsey referred to a grievance the Applicant had made on 25 October 1994 and Ex 3 Paras 2.1.3 - 2.6 lists the underpinning documents and content including that the Applicant was
¨ "taking the matters outside TAFE seeking resolution".
Dr Ramsey explored options with Mr John Allsopp TAFE Group General Manager Resources and wrote.
¨ Could I please have a personal (oral) briefing on this. What action can we take?
Following his deliberations, Dr Ramsey wrote a response to 25 October 1994 letter. Dr Ramsey forwarded his letter dated 17 January 1994 to the Applicant just prior to his writing on the same day his letter (Respondent's Annexure E) to Dr Willmott.
¨ TAFE's Managing Director on 17 January 1995 authorised the HealthQuesting of the Applicant.
The Commission may notice that this is the only decision out of all in this list that has any paperwork on deliberations and discussions in relation to the decision. The Commission may notice that Procedural Fairness does not appear to be a consideration and the Applicant is certainly not included in the discussions - the discussion was on the action to be taken against her. From this all the following flowed apparently without deliberations or due process - but just as actions to prop up this original decision. The Managing Director, perhaps with the assistance of Mr Allsopp, and made the decision to authorise TAFE Managers to send the Applicant to HealthQuest to be "medically assessed", and this was carried out in due course.
The grounds for that decision are itemised in Ex 3 Paras 2.1.3 - 2.6 and the Commission may find that the TAFE Managing Director selected forced psychiatric 'assessment' of the grievant as his preferred action instead of addressing the grievance and establishing a workplace free from discrimination, victimisation, crime.
The Commission may perceived this to be an attempt to cover up mismanagement and cause the grievant the forseeable damage which followed.
The decision to HealthQuest the Applicant grievant was made without natural justice or good reason and the decisions and actions which followed were similarly grounded on not only treating the Applicant as if she was not a fit and proper person (hence sending her for a "fitness to continue" appointment) but also actively creating the impression that she was not a fit and proper person by making contentious, offensive allegations about her re guns, suicide, 'personality disorder', and treating her as if she was not an employee entitled to duties and wages etc.
232.1 That decision was authorised by Dr Ramsey to Dr Willmott on 17 January 1995 (Ex 3 "7" and Ex 44)
232.2 Dr Ramsey's decision to personally, out of all the thousands of TAFE teachers, single out the Applicant for special treatment via HealthQuest was a serious matter effecting the Applicant's right to work, her right to reputation, and her right to personal freedom of choice of how to spend her time outside her TAFE duties hours and her right to a safe environment free of victimisation and harassment.
232.3 The decision involved publicly suspending the Applicant from her TAFE duties for the duration required to prepare for and travel to and from Sydney, and a forced attendance at HealthQuest.
232.4 The decision involved the formulation of purported reasons to medically assess the Applicant, and TAFE officers did write private accusations and insinuations referring to gun and possible homicide/suicide about the Applicant and send them to HealthQuest (but not the Applicant) and thereby wilfully damaged her reputation.
232.5 The Commission may determine that if they had believed even one part of their private accusations they would have/should have addressed it in the workplace immediately as actual or potential OH&S issues - the accusers did not, and nor did HealthQuest. No-one acted as if they believed the accusations were true. No-one! The Applicant was quite unaware. The Applicant was trusting (T/s 293.45 "I trusted people").
233 In April 1995 the Respondent commenced the HealthQuest process by formulating documents with contentious allegations against the Applicant (Ex 101, Ex 85 Attachment 4 Page 3, Ex 24 "3")
At some time, possibly after October 1995, but bearing the purported dates of April 1995 further documents with even more offensive, damaging contentious allegations which intimated the Applicant were formulated (Ex 24 "4", and 24 "2").
234 On or around 1 May 1995 the Respondent acted on the decision to send the Applicant to HealthQuest, wrote further contentious allegations against the Applicant forwarded them to HealthQuest (Ex 18 "A" page 1 and Ex 18 "A" Page 2).
235 On day/s surrounding 19 May 1995 the Respondent suspended the Applicant from duties pending the HealthQuest appointment.
235.1 The Respondent's decision to suspend the Applicant from duties, no matter how long or short that suspension was to be, is a penalty option that may be made under the Enterprise Agreement at Section 28.15 Disciplinary Options.
235.2 That disciplinary option may (or may not) be evoked under Section 188.8.131.52. "A staff member may be suspended from duty pending full investigation of a disciplinary matter or completion of court action against a staff member charged for a serious criminal offence…" and 184.108.40.206.2 "The suspension option with or without pay would only be exercised following the laying of a charge and consultation with the Manager Industrial Relations or the Manager Legal Services." [emphasis added]
235.3 The Respondent's arbitrary decision to suspend the Applicant from her TAFE duties pending the HealthQuest appointment was not only not made under due process as set out as a authorised by the Enterprise Agreement, without due process, but damaging to the Applicant's reputation and observable by others. At 285.35 the Applicant testified that a member of TAFE staff " said, 'Val', real quietly, as if I had done something wrong or whatever, 'you have got to go for a medical examination in Sydney'."
235.4 This placed the Applicant in a difficult, embarrassing position; she could not truthfully explain to others (including other teachers, students, business contacts, friends and family) why she was stood down, summarily removed from duties and out of Kempsey TAFE. She could not speak about it in a way that did not imply a slur on herself. She was not aware that the MD had "authorised" HealthQuesting her.
235.5 The Commission may observe that at no time did the Respondent ever lay any charge (or have reason to lay any charge) against the Applicant and therefore to apply the public detriment of suspension/standing down from duties against the applicant was a decision such that should only have been made with procedural fairness and due process, under circumstances as set out in the Enterprise Agreement.
236 The Respondent and HealthQuest privately formulated, gathered, stored, and exchanged more documents with contentious untested allegations against the Applicant, her reputation, her family members and their reputations, allegations of sexual matters, allegations of personal nature, allegations of guns, suicide (Ex 20 A", Ex 10, Ex 20 "C", Ex 11, Ex 20 "D", Ex 44 "A", Ex 20 "F"). As this was a purported "fitness to continue in employment" appointment the Commission should note that these topics are not topics used to select staff for employment.
237 In June/July 1995 the Respondent, as part of the ongoing action and decisions against the Applicant, by telephone message arbitrarily suspended her from duties and conversely told her that she was no longer an employee, that she was "medically retired", denied her sick leave, stopped her pay, and attempted to sever superannuation (Ex 19 "E", 44 "C", Ex 13) From this point on the Respondent did not accord the Applicant internal staff development opportunities
238 In August 1995 and in the preceding period the Respondent and HealthQuest (and apparently MAP) formulated, gathered, stored, and exchanged more documents with contentious allegations against the Applicant (Ex 19 "H", 20 "G", and attachments to Ex 79 Turco letter)
239 In September 1995 the Respondent resumed paying the Applicant her wages and in doing so acknowledged that, contrary to their claim in June 95 that she was retired, conceded that the Applicant was still an employee.
But the Respondent did not return her to duties. It did not apply Rehabilitation. By excluding the Applicant from duties and workplace this curtailed the Applicant's TAFE career and denied her access to TAFE staff development and promotion opportunities.
240 In October 1995 to January 1996 the Respondent formulated further documents with contentious contents against the Applicant (Ex 19 "L", and 19 "N", Ex 39, Ex 98, Ex 99)
241 During October 1995 to May 1996, the Respondent asked again to be allowed to return to her job but Ms Walshaw refused the Applicant her right to return to duties. Someone decided to reduce the Applicant's salary to $0, annexed her accumulated sick and extended leave accruals, placed her on Sick Leave Without Pay, (Ex 14, Ex 93, last page of Ex 34) so the Applicant obtained alternative work in Sydney.
242 On or around September 1996 the MAP disallowed an "appeal" (based on unknown material and allegations) wrote a notice of that disallowance, incorporated HealthQuest's offensive untested (and evidently unprovable) allegations, and distributed that notice (Ex 44 "G).
243 At various times in 1996 - 1998 the Respondent again attempted to sever superannuation responsibilities in relation to the Applicant, made and circulated contentious allegations about her (Ex 34, Ex 3 "13", Ex 38, Ex 35, Ex 36, Ex 37, Ex 4 "4" )
244 Applicant's affidavit Ex 16 Paragraphs 140-144 indicates TAFE could have induced its new Human Resource Manager Ms Williamson to accept the purported retirement and "put it through" by possibly changing its computer records. While this is a serious matter, simply changing employment records on the computer or wherever Ms Williamson "put it through" does not force an employee to enter retirement. It is submitted that substantiation for this is shown in Ex 85 Attachment 3 shows TAFE still attempting to manufacture a retirement/termination.
245 In November 1997 the Respondent again attempted to imply that the Applicant was no longer an employee (Ex 85 "3")
246 Ion 23 April 1998 the Applicant's Legal officer Mr Peter Cribb and Ms Stephanie Cole exchanged an email referring to "Val Kerrison's threat to use a gun". Ex 4 "4".
247 In October 1999 The Respondent applied the discriminatory phrase "medically retired" to the Applicant's name and forwarded this to a potential employer of the Applicant Ex 3 "3" and Ex 3 "4".