Dismissal without authority

Press, 14 April 1984, Page 5

Dismissal without authority

The dismissal of a social worker from the Social Welfare Department by the State Services Commission had been made without authority, the Chief Justice, Sir Ronald Davison, has ruled in a reserved decision given in the High Court in Christchurch. His Honour held that the commission had acted unfairly and in breach of natural justice in annulling the appointment of Miss Jacqueline Bridges Francoise Ryall, formerly with the Department of Social Welfare at Otahuhu, now unemployed in Christchurch. The commission had not given Miss Ryall a proper opportunity to comment on serious allegations which had been made against her. Those allegations must have influenced the final decision of the commission to annul her appointment, said his Honour. The case was heard on March 15. Dr W. G. G. A. Young appeared for Miss Ryall, and Mr C. J. Thompson for the State Services Commission. Costs were reserved. His Honour made a declaration that Miss Ryall was still a member of the Public Service and an order setting aside the purported decision of the commission to annul her appointment. Miss Ryall’s application for a judicial review was based and two grounds, his Honour said. The first was

that her initial one years’ probationary period expired on February 22,1980, and no notice was given by the commission in writing extending her period of probation. Under a section of the State Services Act her appointment as a public servant was thereby confirmed. The second ground was that in reaching the decision as to whether to confirm or annul her appointment, the commission was under a duty to act fairly and in accordance with the rules of natural justice. In its defence the commission said that the decision to extend the probationary period had been given in writing and that there was nothing in the act to indicate that the communication to the probationer of the decision by the commission itself was mandatory. On February 27, 1979, Miss Ryall was appointed on probation to the permanent staff of the Public Service as a social welfare worker at Otahuhu. The probation was to expire on February 22, 1980. The practice was for probationary reports to be issued every four months by the supervisor. This one for June 22, 1979, indicated that her performance was unsatisfactory. The director of the deparment at Otahuhu had a long conversation with Miss

Ryall and he advised her that unless there was a marked improvement in her work he would be recommending the annulment of her appointment. The Director General in Wellington was advised of the situation. As a result of improvement in her work Miss Ryall’s probation was allowed to run the full period of a year to February 27, 1980. Just before that date there was a recommendation by her supervisor that her appointment be confirmed. However, that recommendation was not endorsed by senior management in the head office of the Department. In June the department recommended to the State Services Commission that her appointment be annulled and she was advised of that recommendation by a letter of June 19, 1980. Instead the commission considered that it was more appropriate to extend Miss Ryall’s probationary period to six months to August 22, 1980, and she was advised of that by letter. Miss Ryall disputed her

August probation report and said that she had not been in a position to be fairly assessed and further comments on the report would be following. She was advised by the Social Welfare Department that her appointment had been annulled by the commission. The Public Service Association appealed against that decision.

His Honour said that Miss Ryall had elementary rights in connection with her employment or probation. She had the right to be shown the probation reports on her and the right to comment on those reports. Had she indicated that she did not wish to comment the position might well have been very different. But she had stated: “Further comments on this report will be following.” The commission had failed to give her a proper opportunity to comment on the serious allegations against her and that must have influenced the final decision of the commission to annul her appointment. “To that extent I think it

acted unfairly to her,” His Honour said. In reaching that conclusion he did not suggest what procedure should be followed where there was an annulment of probationary appointments in every case. The requirement for natural justice had to depend on the subject matter under consideration and the circumstances of the case. “If it were necessary for me to do so, I would declare the annulment void on that ground. Miss Ryall having succedeed, however, on the first ground she was, after August 27, 1980, deemed to be confirmed as a member of the Public Service. She is entitled to a declaration to that effect. “It follows that she is also entitled to an order setting aside the purported decision to annul her appointment to the Public Service as made without authority,” His Honour said. The consequences of the findings were now matters to be resolved between the parties and the question of costs was reserved, his Honour concluded.