Peacock v Department of Defence [1998] IRCA 24

IN THE industrial relations COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 1934 of 1998

BETWEEN: Mortimer John Peacock

Applicant

AND: Department of Defence

Respondent

before: mcilwaine jr

DATE OF ORDER: 2 JULY 1998

WHERE MADE: SYDNEY

CORRIGENDUM

In the last paragraph on Page 19 of the Reasons for Judgment the name and firm of the solicitors for the applicant should be deleted and in their place the following words should be inserted: John Justin Hendry Geoffrey Edwards & Co Solicitors Naomi Englebrecht Legal Assistant to Judicial Registrar McILwaine

Industrial relations COURT OF AUSTRALIA INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether employment terminated at initiative of employer or by effluxion of time - whether termination for the prohibited reason of age - whether applicant's employment terminated at age 65 by legislative prescription - whether termination for the prohibited reason of family responsibilities – REINSTATEMENT IMPRACTICABLE in circumstances of case – COMPENSATION. Industrial Relations Act 1988 (Cth) ss 3, 170DB, 170DE, 170DF, 170EA, 170EE, Sch 11, Art 5 Workplace Relations Act 1996 (Cth) ss 170CK(2)(f) Industrial Relations Court Rules (Cth) Order 20 rule 2(1)(a) Public Service Act 1922 ss 42, 76V(1), 76V(2) Public Service Regulations – SR 1935 No 18 r 83 Sex Discrimination Act 1984 (Cth) s 4A(1) Qantas Airways Limited v Christie (1988) 152 ALR 365 – considered and applied; Wannberg v Alloa Holdings Pty Ltd t/a Energy Publications (Ritter JR, 31 July 1996, unreported IRCA decision, decision no. 346/96) - cited; Griffin v Australia Postal Corporation (IRCA Full Court, 1 June 1998, unreported, decision no. 15/98 – considered; Johns v Gunns Ltd (1995) 60 IR 258 - applied; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 - applied; John Baillie Christie v Qantas Airways Ltd (1995) 60 IR 17 - cited; Australian Liquor Hospitality and Miscellaneous Workers Union v Commonwealth of Australia (1994) 55 IR 18 – considered and distinguished; Liddell v Lembke T/as Cheryls Unisex Salon (1994) 56 IR 447 - cited; Nicholson v Heaven & Earth Galleries Pty Ltd (1994) 1 IRCR 199 - cited; Peacock v Department of Defence NI 1934 of 1996 Before: McIlwaine JR Place: SYDNEY Date of hearing: 24 February 1997 Date of judgment: 26 June 1998

IN THE industrial relations COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 1934 of 1998

BETWEEN: Mortimer John Peacock

Applicant

AND: Department of Defence

Respondent

before: mcilwaine jr

DATE OF ORDER: 26 june 1998

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT DECLARES THAT: 1. The Respondent terminated the employment of the Applicant in contravention of s170DB of the Act. 2. The Respondent terminated the employment of the Applicant in contravention of s170DF(1)(f) of the Act on the ground of age. 3. The Respondent terminated the employment of the Applicant in contravention of s170DF(1)(f) on the ground of family responsibilities. 4. It is impractical to reinstate the Applicant in any position with the Respondent. 5. For the contravention of s 170DB of the Act, the Respondent is to pay to the Applicant the amount required by s 170DB(2), being 5 weeks salary calculated in accordance with s 170DB(5). 6. For the contravention of s 170DF(1)(f) of the Act on the grounds of age and family responsibilities, it is appropriate to award to the Applicant compensation of the maximum amount allowed pursuant to s 170EE(3). 7. Any sums paid within the respective time limitations to the Australian Taxation Office, on account of the Applicant with respect to the sums ordered to be paid as compensation, shall be pro tanto satisfaction of the obligations of the Respondent under these declarations.

THE COURT ORDERS THAT:

8. The Applicant and the Respondent are to agree on a schedule setting out the amounts to be paid to the Applicant in accordance with the above declarations, which is to be filed by the applicant by 4.00 pm on Monday 29 June 1998. 9. In the absence of agreement, the matter is to be re-listed for determination by the Court on Thursday 2 July 1998 at 10.00 am. 10. In any event, the matter is to be listed for issue of final orders in accordance with this decision on Thursday 2 July 1998 at 10.00am Naomi Englebrecht Acting Associate to Judicial Registrar McIlwaine.

IN THE industrial relations COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 1934 of 1998

BETWEEN: Mortimer John Peacock

Applicant

AND: Department of Defence

Respondent

BEFORE: mcilwaine jr

DATE: 26 june 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This is an application by Mortimer John Peacock of Canberra under Division 3, Part VIA of the Industrial Relations Act 1988 (Cth) (the "Act"). Since 26 November 1996, the Act has been renamed the Workplace Relations Act 1996 (Cth). The employer's name in the application has been recorded as the Department of Defence. The correct respondent is the Commonwealth of Australia ("the respondent"). The application was signed by the applicant's solicitor on 26 July 1996. The applicant claims he received written notice of termination by letter sent on 12 July 1996. The last day the applicant worked was 19 July 1996. The Australian Industrial Relations Commission on 26 July 1996 apparently received the application and, on the face of the documentation, no extension of time was required. Vice President McIntyre of the Industrial Relations Commission issued a certificate dated 9 August 1996 certifying as follows: "In accordance with subsection 170ED(1) of the Industrial Relations Act 1988, the commission hereby certifies: (i) that it has been unable to settle this matter by conciliation within a reasonable period, and (ii) that the parties in this matter, having been invited to elect to have the matter dealt with by consent arbitration, have not so elected." The parties did not object to the certificate and I therefore find the matter is properly before the Court.

HEARING The application first came before the Court in a Directions Hearing on 4 October 1996 and by consent it was listed for hearing on 24 February 1997. The respondent originally filed a Notice of Motion seeking that the application should be struck out or dismissed under Order 20, rule 2(1)(a) of the then Industrial Relations Court Rules upon the ground that the application discloses no reasonable cause of action. However, by agreement between the parties, the Notice of Motion was not pursued, and the parties decided, as far as possible, to place agreed facts before the Court. At the hearing the parties handed up an agreed chronology, the applicant gave some short oral evidence and was cross-examined. Written and oral submissions were made. The judgment was reserved as the matter involved a question of law, which was currently under consideration in the High Court. On receipt of the decision of the High Court in Qantas Airways Ltd v Christie (1988) 152 ALR 365("Christie") copies were made available to the representatives of the parties who were asked to make further submissions in light of that decision. The submissions were received on 4 April 1998. It is well settled that for the Act to operate there has to be a termination of employment of the applicant within the meaning of that expression in sections 170DB, 170DE, 170DF and 170EA. The respondent contends that the employment of the applicant has not ended in a way that brings the case within the expression 'termination' on its' proper construction.

AGREED BACKGROUND OF THE APPLICANT After graduating from the University of Sydney as a Bachelor of Arts with Honours in Psychology in 1969, the applicant was employed by the Commonwealth of Australia in the Department of Air as a Class 2 Psychologist in 1971. The applicant was employed under s 42 of the Public Service Act 1922 (Cth)("the PS Act"). In 1974, the applicant transferred to the Commonwealth Department of Media as a Classification Inspector until 1976, when he was promoted to the position of Psychologist Class 3 with the Commonwealth Department of Health as an Environmental Psychologist. In 1981, he was promoted to the position of Senior Professional Officer, Grade A, with the title of "Director of Psychology - Navy" in the Commonwealth Department of Defence. He remained in that occupation until he finished paid employment on 18 July 1996. In his application the applicant claims reinstatement and compensation. Having been born on 19 July 1931, the applicant was sixty-five years of age when he ceased to be employed. It was agreed between the parties that at all relevant times the applicant had his employment regulated by a Federal Award. As at the date of hearing, the applicant had been unemployed since 19 July 1996.

THE CLAIM The applicant alleges his employment was terminated on 12 July 1996. The respondent alleges that his employment ended on 18 July 1996 in accordance with s 76V(1) of the PS Act. The respondent further describes the issue that arises between the parties as to whether compulsory retirement under s 76V(1) of the PS Act can constitute a termination at the initiative of the employer. Section 170DF(2) was not raised by the respondent as a defence to these proceedings. A defence under this section was a key factor that informed the decision of the High Court in Christie. On the 18 December 1995, the First Assistant Commissioner of the Public Service Commission issued a Circular (Circular No. 1995/33) to all member of the Corporate Management Network Department and Agencies staffed under the PS Act and Staff Associations. That Circular dealt with the abolition of the compulsory age retirement in the Australian Public Service (APS). It reported that on 20 October 1995 the responsible Ministers of the then Government jointly announced that it was intended to abolish the compulsory age retirement in the APS, that such abolition would take effect with the enactment of a new public service act, scheduled for introduction to Parliament during 1996. The Circular also dealt with other consequential matters such as workers compensation, superannuation and suggested ways of introducing measures to gauge the effective performance in respect of those members of the service who would be likely to benefit from this change of policy. The key section of the circular, insofar as it relates to the proceeding before the Court, is contained in paragraph: "5: Under subsection 76V(2) a secretary has a discretion to allow a non-SES employee to continue in employment beyond age sixty five in the interests of the Commonwealth. In response to an expected increase in requests from staff wishing to work beyond age sixty-five: "agencies need to give careful consideration to all relevant factors including the employee's performance, employee's fitness for duty and a continuing availability of suitable work in making this assessment. Where an officer is to continue in employment the secretary must determine in writing that subsection 76V(1) does not apply to the officer prior to the officer reaching the maximum retirement age." On 11 March 1996, the applicant writes to the Deputy Secretary, Budget and Management. I reproduce the key paragraphs to that request namely: "REQUEST FOR RETENTION PAST THE AGE OF 65 UNDER SUB SECTION 76 V (2) OF THE PUBLIC SERVICE ACT 1922… Pursuant to reference A and subsequent discussions with Ms Kathy Potts of the Public Service Commission. I am writing to seek retention for a period of six months past my current retirement age of 65 years, which I will reach on the 19th of July this year. Ms Potts, and others advise me, that although the legislation has been before Parliament since the last quarter of last year, it is unlikely to be enacted before July. I am a sole parent and the last of my four children my youngest daughter, will be finishing studies in November this year. The six months period will also allow me to tie up financial arrangements hanging over from my divorce settlement…. 2… 3… 4… I mention all of the above merely to counter the ageism argument. The extra six months I seek is unlikely to cause any ruffles in the great scheme of things. Although my current DG has indicated that he does not support retention of elderly staff as he sees it as detrimental to the progress of younger staff, it appears to be purely a philosophical issue and not based on any animosity between the two of us. Indeed, I respect his views, as I am sure he does mine. However, I would point out that my performance appraisals under the two previous DG's CDRE Letts and CDRE Trotter were at the Superior level and respectfully request your favourable consideration to my request. M J Peacock DPSYCH-N 11 Mar 1996" I have not reproduced paragraphs 2, 3 and 4 as I view them as being arguments in support of the abandonment of the "age" barrier in the workplace which have already been dealt with at a government policy level (see Circular No 1995/33 and s 170CK(2)(f) (age) of the Workplace Relations Act 1996 (Cth) albeit without an amendment to section 76V(1) of the PS Act. In addition, those sections of paragraph 1 that I have underlined clearly raise the issue of the family responsibilities of the applicant. See s170DF(1)(f) of the Act and s 170CK(2)(f) (family responsibilities) of the Workplace Relations Act 1996 (Cth), where the Federal Parliament has reinforced its earlier legislative provision. Section 4A(1) of the Sex Discrimination Act 1984 (Cth) defines "family responsibilities" to mean responsibilities of the employee to care for or support a dependant child of the employee, or any other immediate family member who is in need of care or support. For a fuller discussion of this concept see the decision of Ritter JR in Wannberg v Alloa Holdings Pty Ltd T/as Energy Publications (31 July 1996, unreported, decision no.346/96) Admiral Forrest, in response to a request, advises the Deputy Secretary, Human Resources and Management on 29 April 1996: "it would not be to the detriment of the Commonwealth if Mr Peacock was extended for six months beyond his retiring age...nor are there any known special circumstances which would give cause to use the discretion available under S 76V(2) of the Public Service Act.". The Department of Defence writes on 10 May 1996 to the applicant advising him: "under S 76V of the Public Service Act, 1922, officers are retired upon reaching the maximum retiring age of 65. ...in your case, this means you must retire on 18 July 1996." This letter appears to be a general reminder letter. The Deputy Secretary Budget and Management replies on 15 May 1996 to the applicant's letter of 11 March 1996 advising him that his application for an extension under s 76V(2) of the PS Act had been declined. Further, the applicant is advised: "2 In your application you have cited personal reasons for wishing to continue in employment, and pointed to your Superior rating at your last two performance appraisals. Unfortunately, these factors by themselves do not provide sufficient justification for invoking subsection 76V(2) of the Public Service Act. The discretion available to delegates to waive compulsory age retirement continues to be used sparingly and in special circumstances, such as where an employee has unique or specialist skills that cannot be easily replaced, or where a project's timely completion depends on the retention of a particular employee because of unique knowledge. 3 Navy was consulted concerning your application and indicated that you are not involved in any special projects nor are there any known special circumstances which would give cause to use the discretion available to extend your employment. Regrettably, I cannot approve your request" The section I have underlined in paragraph 3 adopts the negative part of Admiral Forrest's minute of 29 April 1996. In my opinion, paragraph 2 of the reply, also where underlined, reveals a fundamental error on behalf of the respondent. It has misconstrued the applicant's family responsibilities as personal reasons. Further, the circular No. 1995/33 made no mention of the need for the discretion to be used sparingly and in special circumstances. Given the provisions of s 170DF(1)(f), this is a significant factor weighing against the respondent. In my view, the use of the term "personal reasons" imports the concept of a preference on the part of the applicant rather than a responsibility or a need to provide care or support to his daughter. Regrettably, there was no evidence tendered by the respondent which would support a conclusion that it gave (through its' officers) any proper consideration to the relevant factor of family responsibilities. This factor alone is sufficient to call into question the decision of the Deputy Secretary. I find that this decision of the Deputy Secretary was not lawful and to be in contravention of s 170DF(1)(f) of the Act. It appears from the evidence that the applicant satisfactorily met the criteria of performance, fitness for duty and there was a continuing availability of suitable work for him to perform.

RESPONSE TO DECISION OF 15 MAY 1996 The applicant responds on 3 June 1996 to the letter of 15 May 1996 advising, amongst other things, that he intends to take the issue to the United Nations Human Rights Committee relying upon Article 26 of the International Covenant on Civil and Political Rights. Further, the applicant suggested persons making such claim must have exhausted all available domestic remedies for the alleged infringement of rights and stated he is seeking advice upon this. The applicant sought, by the same letter, to remain in employment until all avenues of appeal had been exhausted. Further, the applicant submitted: "it would be "in the interests of the Commonwealth" for them to be seen to be meeting their obligations under an international treaty ratified by them rather than maintaining blind adherence to a 1922 Act, enacted in a more unenlightened period of Australia's history." The Deputy Secretary, Budget and Management, replies on 24 June 1996 to the correspondence by the applicant of 3 June 1996 and 19 June 1996, noting that the applicant in his minute of 3 June 1996 "Requests approval to remain in employment until all avenues of appeal.... have been exhausted". The applicant's appeal under reg 83 of the Public Service Regulations is forwarded on 24 June 1996 by the Deputy Secretary (BDM) to the Assistant Secretary of Personnel Policy (ASPP) for immediate attention. The Deputy Secretary is now on firmer ground when he declines the request to extend the retirement age of the applicant to allow for all avenues of appeal to be completed. I am of the view that it was up to the applicant to make representations to the government through his Federal Member or take appropriate court action to seek an injunction preventing a decision being made. It seems to me that at this point both parties were retreating to a standard pre-litigation response rather than attempting to resolve their differences amicably. Again in a formal way, the Department of Defence writes to the applicant on 4 July 1996 advising him that he must retire at the age of sixty-five years and reminding him to complete the relevant superannuation benefit application forms.

TERMINATION OF EMPLOYMENT On 10 July 1996, Mr A J Ayers, Secretary of the Department of Defence, advised the applicant in detail of the reasons for declining his request for an extension pursuant to s 76V (2) of the PS Act as follows. "STAFF IN CONFIDENCE Department of Defence MINUTE SEC 242/96 Mr M Peacock DPSYCH-N (D-1-29B) REQUEST FOR RETENTION PAST THE AGE OF 65 UNDER SUBSECTION 76V (2) OF THE PUBLIC SERVICE ACT 1922 - REGULATION 83 GRIEVANCE 1. I refer to your minute DPSYCH-N 329/96 dated 19 June 1996, lodging a grievance under Regulation 83 of the Public Service Act 1922 (the PSA) against a decision taken by DEPSEC B&M on 15 May 1996 not to invoke subsection 76V (2) of the Public Service Act 1922 to extend your employment beyond age 65. 2. In your minute of 19 June 1996 you drew attention to DCM28/95 (Revised termination of Employment Arrangements for Civilian Staff ) of 14 March 1995, which states that "amendments made to the Industrial Relations Act 1988 (the IR Act) which relate to termination of employment, prevail over provisions of the Public Service Act 1922...to the extent of any inconsistency". You suggested that in light of this, paragraph 170DF (1) (f) of the IR Act should apply. This section of the IR Act provides, inter alia, that employment must not be terminated for the reason of age. 3. I am advised that termination of employment under S 76V (1) of the PSA is not termination at the initiative of the employer but termination resulting from the operation of an Act of Parliament. I am further advised that where termination of employment results from an Act of Parliament, that type of termination is not one to which the relevant provisions of the IR Act apply. It follows that there is no inconsistency between the two Acts and therefore the termination provisions of the IR Act do not prevail over S 76V(1) of the PSA. 4. As you are aware S 76V(1) of the PSA will operate unless I form the view that it is desirable in the interests of the Commonwealth that you continue in APS employment beyond age 65 for a specific period. I have considered all the issues raised by you and have decided not to invoke subsection 76V (2) to extend your period of employment. The following paragraphs explain my reasons for this decision. 5. Generally, the Commonwealth's interests in this matter relate to the efficient operation of the Department and compliance with the law and government policy in public administration. 6. There is a Commonwealth interest in the maintenance of the efficient operation of government administration through the continued use of efficient and effective people. The Commonwealth interest which may be served by your continued employment is the continued utilisation of your skills in the achievement of relevant Navy program objectives. I note that you advise that you were given a rating of superior in your previous two performance appraisals. I am also advised that you remain fit for duty and suitable work is available. There is also, however, a Commonwealth interest in maintaining a balanced age profile in the Department and providing career opportunities for other suitable eligible staff, particularly at a time of significant staff reductions, and these interests would tend to militate against your continued employment. 7. There is a Commonwealth interest in the efficient operation of its Department of State. In Defence, the exercise of discretion by delegates in this interest has taken account of special circumstances, such as where an employee has unique or specialist skills that cannot be easily replaced or where a project's timely completion depends on the retention of a particular employee because of unique knowledge. Navy has indicated that none of these factors applies in your case. The presumption underlying the exercise of the discretion is that compulsory retirement should occur unless it is not in the interests of the Commonwealth. It appears that the efficient operation of the Department would not be affected by allowing s 76V(1) to operate in this case. 8. There is a Commonwealth interest in decision makers complying with government policy. I note that Minister Reith's office wrote to you confirming that the Government intends to implement its election commitment to abolish compulsory age retirement in the APS. The policy, however, requires a change to the current law, namely the repeal of s 76V (1) of the PSA. The new Public Service Act will give effect to the Government's policy stance on age retirement for APS employees. I am advised that it will be introduced into Parliament in the next few months and therefore will not be enacted before you reach age 65. 9. There is a Commonwealth interest in complying with the law as it stands at the time of decision is to be made. My decision not to exercise the discretion under s 76V (2) of the Public Service Act to defer the operation of s 76V (1) for a determined period takes account of the fact that the Regulations made under the Human Rights and Equal Opportunity Commission (HREOC) Act prohibit discrimination on the basis of age. In compliance with this law, my decision not to exercise the discretion available to me is not based on your age. 10. I am advised that you have lodged a complaint with the HREOC, which will not be investigated until at least February 1997. The HREOC investigation can proceed regardless of your employment status. You may also seek a review of my decision through the MPRA as a Regulation 84 grievance if you are dissatisfied with the outcome of this grievance investigation. Any application for review must be made in writing through the Assistant Secretary Personnel Policy to the Director of the MPRA, detailing the reasons for any dissatisfaction with the decision (see attached DP1 3/93 for further information). The Regulation 84 grievance can proceed regardless of your employment status. 11. The rules of procedural fairness are built into the APS review mechanisms. At each stage you have had, and will continue to have, the opportunity to put your case, be informed as to decisions which affect you, the reason(s) for those decisions, and be informed of further appeal and review rights. In my view, a decision not to extend your employment prior to finalising either the HREOC investigation, or any possible Regulation 84 grievance, would not deprive you of procedural fairness. 12. I trust that this minute satisfactorily explains the reasons for not extending your employment beyond 19 July this year. Signed A J Ayers Secretary 10 July 1996" The failure of the Deputy Secretary to take lawful account of s 170DF(1)(f) on the grounds of family responsibilities does not appear to be addressed or redressed by the Secretary in his minute of 10 July 1996. Although it could be argued in favour of the Secretary that he/she was now considering an extension of employment of uncertain duration (i.e., until all avenues of appeal had been redressed). It is clear from the Circular to the heads of departments and agencies that one of the factors that is no longer to be taken into account in considering a request under s 76V(2) of the PS Act is the age of the particular employee seeking an extension of his period of employment. The Circular is certainly an indication that the "national law and practice regarding retirement" has changed. See paragraph 5(a) – Chapter 11, Standards of General Application (Schedule 11 of the Act. Recommendation No. 166 Recommendation concerning Termination of Employment at the initiative of the employer.) Previously, employees were expected to retire at age sixty-five in the case of men and sixty in the case of women, this being the respective ages when a man or woman may qualify for the age pension. The Deputy Secretary, in his minute of 15 May 1996 quite astutely made no reference to age as being a factor in his decision. The crucial difficulty for the respondent on the question of age arose out of paragraph six of the Minute of the Secretary dated 10 July 1996: "There is also, however, a Commonwealth interest in maintaining a balanced age profile in the department and providing clear opportunities for other suitable eligible staff, particularly at a time of significant staff reductions and these interests would tend to militate against your continued employment". The secretary appears to contradict the earlier paragraph in paragraph 9: "My decision not to exercise the discretion under 76V(2) of the Public Service Act to defer the operation of section 76V(1) for a determined period takes account of the fact that the regulations made under the Human Rights and Equal Opportunity Commission (HEROC) prohibit discrimination on the basis of age. In compliance with this law, my decision not to exercise the discretion available to me is not based on your age. In my view, the Secretary then further and overlooked the change in policy required by the Act. As one of the admitted factors taken account of by the Secretary in considering the matter is a "balanced age profile" the two statement are totally inconsistent. In my view the respondent through its officers has taken into account matters which the Act prohibits it from so doing. No matter how diplomatically, bureaucratically or politic the words were constructed, it was in effect telling the applicant he was "too old". In Griffin v Australian Postal Corporation, Spender J cites McHugh J as authority for the following proposition: "Qantas' refusal to employ him past that age was not a termination of employment but a refusal to re-employ him after his employment ended. Nothing in the Act requires an employer of labour to employ a person who is over age 60. To the extent that such a refusal constitutes discrimination on the ground of age, the remedy of the person affected lies in the general anti-discrimination statutes that are in force in various jurisdictions or not at all. A finding that Qantas did not terminate Mr Christie's employment does not make the prohibition on age discrimination in s 170DF(1) of the Act meaningless. The argument that 'there would be no work for s 170DF(1) to do' unless a finding of discrimination is made in this appeal is unpersuasive. Many examples can be given of cases of termination that would offend against the age discrimination clause of the Act. Probably, the commonest case of such discrimination is one where the employee is terminated because he or she is 'too old'. Accordingly, the prohibition on discrimination in s 170 DF(1) is inapplicable because Qantas did not terminate Mr Christie's employment." It follows from this that the prohibition contained in s170DF(1)(f) was contravened by the respondent, there being a causal nexus between the termination of the applicant's employment and his age. In this matter I am satisfied that the Secretary improperly took the age of the applicant into account in the consideration of the retention of his services. I do not suggest that this was done with any improper motives except that it would seem that the Department has failed to give effect to the Circular which indicated that measures other than age should be adopted for gauging the retention of persons past the age of sixty-five. In Johns v Gunns Ltd, (1995) 60 IR 258, Northrop J examined the scope of the operation of section 170DF(1)(f) and concluded: "The respondent has to establish a negative, namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered." On this issue Northrop J also cites with approval a passage appearing at page 268 in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 which he observes has equal application where s170DF(1)(a) of the Act applies: "The provisions of s.5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge." For similar reasons, I do not accept the denial of the Secretary that age was not a factor in the decision that was taken not to grant an extension of time. Accordingly, in my view, this decision contravened s170DF(1)(f) of the Act on the ground of age. I find that the Secretary of the Department of Defence, as delegate or nominee of the employer, failed to act according to law by refusing the request of the applicant in his letter dated 3 March 1996 that he be granted an extension in his employment of six months and that this failure led to the operation of s76V(1) and the termination of employment of the applicant.

SUBMISSIONS BY PARTIES After the decision of the High Court was received, the respondent provided further written submissions through its' Counsel which suggested that the reasoning of McHugh and Gummow JJ in Christie supported its' contention that there is no termination at the initiative of the employer where a statutory provision provides that termination occurs by operation of a statute. This view is also supported by Spender J and Von Doussa J in Griffin v Australia Postal Corporation (Marshall J dissenting). On the other hand, the applicant submitted though its Counsel: "Mr Peacock in substance contended that his employment had been terminated by reason of the failure of the secretary of the department of defence to exercise his or her discretion under s 76V(2) of the Public Service Act 1922 (Cth) ("the PS Act") in Mr Peacock's favour and that a lawful exercise of that discretion would have resulted in Mr Peacock's favour and that a lawful exercise of that discretion would have resulted in Mr Peacock's employment continuing beyond age sixty five years, see in particular paragraphs 2A and 2B…" The applicant in a further written submission states: "It is not the statutory provision that the Commonwealth suggests is at issue here because of the important qualification of s 76V(2) of the PS Act and the fact that subs 76V(1) is subject to subs(2)…. In Christie, the High Court was divided 3:2 on the question of whether Qantas had terminated Christie's employment. Brennan CJ, Gaudron and Kirby JJ holding that there had been a termination, McHugh and Gummow JJ dissenting. Christie was decided for other reasons against Mr Christie, the High Court dividing differently on the question of inherent requirement, which was the other issue for determination." A further examination of the decision of Wilcox CJ at first instance in Christie appears to disclose a similar view on the question of the termination of employment occurring through the effluxion of time to that of Gray and Marshall JJ in the full court. In determining this matter I am fortified by the observation of the then Chief Justice of the High Court in Christie: "The experience of the Courts of this country must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles." Adopting, with appropriate modification, the words of Wilcox CJ in Christie at first instance (1995) 60 IR 17 at page 22: the respondent has failed to demonstrate that the applicant's employment came to an end by effluxion of time. Further, the respondent omitted to show that its' decision took into account the family responsibilities of the applicant. Finally, I should deal with the initial submission of Mr Goodwin, Counsel for the respondent that: "The decision in ALHMWU v The Commonwealth (1994) 55 IR 18 is binding authority that the Court has no jurisdiction to hear this matter as there has been no termination of employment at the initiative of the employer" (see exhibit A). In response, Mr Reitano, Counsel for the applicant, tendered the transcript of the hearing (exhibit 4) and invited attention to the following exchange between the Solicitor appearing for the Commonwealth, Mr Markus and Moore J: "HIS HONOUR: May I ask this, however, if one was confronted with a circumstance, however unlikely it might be that it would arise as a matter of fact, that an employee was employed in circumstances where on any reasonable view it would be desirable in the interests of the Commonwealth for that employee to continue in employment, but the secretary failed to form the opinion under subsection (2), would that then be a termination by the employer? MR MARKUS: No, your Honour. HIS HONOUR: Why not? MR MARKUS: Your Honour, it would not be a termination if the employment came to an end as a result of operation of subsection (1). If the secretary failed to exercise that particular power, then it would be open to the employee to seek orders from a different court under perhaps a writ of mandamus forcing the secretary to consider his position, or her position, in relation to subsection (2) but it would still not amount to a termination because – in the sense that that word is used in the act. HIS HONOUR: Might it not be said that the employer of a delegate or nominee of the employer failed to do an act and – or perform an act, that is form the requisite opinion, and that failure led to the operation of section 76V(1) and the termination of the employee's employment? MR MARKUS: Your Honour, the requirement is that there be an initiative by the employer; omission in that sense could not, in my submission, be described as initiative. And as I have suggested before, it may be that there are other an alternative remedies available to an employee in those circumstances, but it is the respondent's position that in those circumstances the jurisdiction of this court would not be involved. HIS HONOUR: Yes. Well, in any event, the example I am putting to you is not one that is apparent to me as arising in these proceedings. MR MARKUS: Well, it is not this case. HIS HONOUR: No. Yes, thank you. MR MARKUS: Thank you, your Honour. HIS HONOUR: I think it is appropriate I give my judgment now and it is in these terms. JUDGMENT DELIVERED" Having carefully considered this extract along with the rest of the transcript, it is apparent in ALHMWU v the Commonwealth ("ALHMWU") that no evidence was tendered of the applicant making any request for a decision by the Secretary under section 76V(2) of the PS Act. I am satisfied that ALHMW can be distinguished on this fact alone. The basic submission made by the representative of the applicant was to the effect that the Secretary was now obliged by the provisions of section 170DF(1)(f) of the Act to consider the case of every employee under s 76(2) of the PS Act. This is clearly wrong. Moreover, as shown by the extract reproduced above, it is clear from the observations made by Moore J that he was reserving his view on the issue of s76V(2). Additionally, since ALHMWU was determined, there is clear evidence of a change in national policy towards age retirement generally and in the public service particularly. I am respectfully persuaded on these grounds that the decision is not binding authority given the facts of the present case.

REINSTATEMENT I am satisfied that I have only a limited discretion not to reinstate the applicant where it has been found that there has been a termination of his employment arising out of a contravention of the Act. (See discussion of this issue in Liddell v Lemke T/A Cheryls Unisex Salon (1994) 56 IR 447.) From 15 January 1996, the question of reinstatement of an applicant was required to be considered in "all the circumstances of the case" (s 170EE(1)). The circumstances that I have taken into account in considering this question are: a) The initial request of the applicant was for a period of six months; b) The relevant immediacy of the change in policy (circular No. 1995/33 dated 18 December 1995); c) I do not find that the departmental officers acted with any personal animosity towards the applicant; and d) The officers acted more from a point of view of endeavouring to preserve the status quo by defending an existing policy which was relatively easy to administer and had previously operated with general acceptance in the public service (defence) community. For these reasons, I have determined not to order the reinstatement of the applicant. I am obliged to consider whether the reinstatement of the applicant is impracticable. The oral evidence from the applicant was to the effect that his daughter did in fact finish in November 1996. At that time it is likely that the applicant would have again applied for the renewal of his appointment. After November 1996 the applicant would not have the factor of family responsibilities in his favour. There has been a recent tragic fire on the HMS Westralia and it is possible that the applicant with his experience might have been seconded or called upon to develop a project of counselling the grief stricken which would require a further extension of time. However, this is only a possibility. I have already expressed a view on his request to stay in employment whilst all avenues of appeal were exhausted. I also expect that by November 1996, the Department would have ceased to rely on a "balanced age profile" in the department as a factor in its decision making. I have not overlooked the indication which was given by Mr. Goodwin that the respondent may wish to call further evidence on the issue, nor the opposition to that course expressed by Mr Reitano on behalf of the applicant. For these reasons the limited discretion which is available should be exercised against him. I find it is impracticable to reinstate the applicant in any position with the respondent.

COMPENSATION In considering this matter I have had regard to the observations of Kirby J in Christie at page 71: "It is possible that the court of trial could be convinced that reinstatement of Captain Christie is not practicable having regard to the amount of flying which he could perform, even if modifications of the rostering system were introduced to respond to his needs and those of other pilots in the same position after their sixtieth birthdays. But if reinstatement were not ordered questions of compensation and damages would remain. By such means a court could still vindicate the provisions of the Act although in circumstances which took into account the mitigating factors including some of those upon which Qantas relied" In Nicholson v Heaven & Earth Galleries Pty Ltd (1994) 1 IRCR 199, Wilcox CJ, suggested it may be appropriate to make an assessment of the period of time in which the applicant might continue in his employment, before his termination was able to be properly completed. In that case Wilcox CJ found that the particular applicant was not suited to the type of work he had done and that the amount of compensation would not be large. For the reasons that I have outlined under reinstatement, I assess the likely period of employment to have been a further six months from 19 July 1996. The applicant testified that as at the date of the hearing that he had not been employed since 19 July 1996 an economic loss period of seven months. As the maximum amount allowed in compensation is limited to a six month salary period on either method the maximum amount is payable. I am satisfied that the original intention of the applicant was to remain in employment for the period during which his daughter could complete her examinations in her final year of school and which would enable him to finalise his divorce proceedings. In the circumstances of this case I propose to allow six months from the anniversary of his birthday on 19 July 1996 for this purpose. It needs to be acknowledged that her exams were likely to have been completed in November 1996. However, the additional period through to January would enable the applicant to arrange to assist his daughter in her transition from school to the outside world of work or tertiary studies. It is appropriate to award the maximum amount allowed under s 170EE(3) In view of the finding that there has been a termination of employment, it follows that s 170DB has been contravened. Finally, there should be an award of compensation for the failure to give the required period of notice under s170DB of the Act. There will be judgment, declarations and orders accordingly.

THE COURT DECLARES THAT:

1 The Respondent terminated the employment of the Applicant in contravention of s170DB of the Act. 2 The Respondent terminated the employment of the Applicant in contravention of s170DF(1)(f) of the Act on the ground of age. 3 The Respondent terminated the employment of the Applicant in contravention of s170DF(1)(f) on the ground of family responsibilities. 4 It is impractical to reinstate the Applicant in any position with the Respondent. 5 For the contravention of s 170DB of the Act, the Respondent is to pay to the Applicant the amount required by s 170DB(2), being 5 weeks salary calculated in accordance with s 170DB(5). 6 For the contravention of s 170DF(1)(f) of the Act on the grounds of age and family responsibilities, it is appropriate to award to the Applicant compensation of the maximum amount allowed pursuant to s 170EE(3). 7 Any sums paid within the respective time limitations to the Australian Taxation Office, on account of the Applicant with respect to the sums ordered to be paid as compensation, shall be pro tanto satisfaction of the obligations of the Respondent under these declarations.

THE COURT ORDERS THAT:

8 The Applicant and the Respondent are to agree on a schedule setting out the amounts to be paid to the Applicant in accordance with the above declarations, which is to be filed by the applicant by 4.00 pm on Monday 29 June 1998. 9 In the absence of agreement, the matter is to be re-listed for determination by the Court on Thursday 2 July 1998 at 10.00 am. 10 In any event, the matter is to be listed for issue of final orders in accordance with this decision on Thursday 2 July 1998 at 10.00am.

I certify that this and the preceding pages are a true copy of the reasons for decision of Judicial Registrar McIlwaine. Acting Associate: Dated: APPEARANCES Counsel appearing for the applicant: Mr R. Reitano Solicitors for the applicant: John Austin Hendry Counsel appearing for the respondent: Mr Goodwin Solicitors for the respondent: Australian Government Solicitor Dates of hearing: 24 February 1997