21 June 2004
Key Points:
A recent case on the dismissal at pleasure principle shows that there are still misconceptions about its application and the requirement of procedural fairness at termination.
Dismissal at pleasure is a prerogative that the Crown has traditionally enjoyed. In the past, when Crown servants could be executed for selecting the wrong royal bride, dismissal without notice or assignment of cause probably seemed by comparison to be a perk of the job.
These days, however, it strikes some people as harsh. The NSW Court of Appeal recently had to grapple with the full rigour of the principle in Commissioner of Police for New South Wales v Jarratt [2003] NSWCA 326 (11 November 2003). It held that the principle was preserved in the Act, and that dismissal at will does not mean that the employment contract has necessarily been breached.
The Jarratt affair
Jeffrey Jarratt was a Deputy Commission of the NSW Police Service until he was dismissed without notice or clear cause.
His appointment was under the Police Service Act 1990 (NSW), which provides inter alia for terms of contract, performance reviews, and dismissal procedures.
He then sought damages for breach of contract in the NSW Supreme Court. The Commissioner defended the decision to sack Jarratt by reference to the dismissal at pleasure principle, subject only to the dismissal procedures in the Act. At first instance, Justice Simpson held that the principle has been modified to import procedural fairness (which was breached), and that Jarratt's contract had been breached. The Commissioner appealed to the Court of Appeal.
Did the Act re-enact the dismissal at pleasure principle?
Section 51 of the Act confers a statutory right of dismissal, but does not in terms stipulate a right to dismiss "at pleasure", or use language that preserves any common law right or power to dispense with an employee's services, or adopt the language found in later statutes which speak of a right of removal "at any time for any or no reason and without notice". Nonetheless, Jarratt bore the onus of showing the principle had been displaced; simply because a statute addresses some aspects of an officer's service will not be enough to exclude the principle from applying to its termination.
Although the presumption is that clear and unambiguous statutory language is required to displace a prerogative, it can be abrogated by implication or qualified by statute, for example by a statutory right of appeal. These principles mean that section 51 of the Act does not abrogate the common law power or its incidents merely because the power is stated in statutory form or is qualified to a degree. The nature and extent of such qualification must however be closely examined. Jarratt pointed to six aspects of the Act which he said excluded the principle:
The court rejected all these arguments.
In this case, the performance review and limited exclusion of judicial appeal were held to be ultimately neutral.
The court said that the argument based on the absence of an express provision purporting to preserve the common law principle is either circular because section 51 does in fact do that, or irrelevant because the onus rests upon Jarratt to point to something that clearly displaces the principle. As for the alternative route for dismissal, it only reinforces the different field of operation of the power conferred by section 51, and the vesting of section 51 power in the Governor as distinct from the Commissioner heightens the likelihood that section 51 is the statutory acknowledgement of the continuing operation of the principle.
Section 73(3) was irrelevant to this case, as it dealt with different matters. The statutory term appointment effected by sections 40, 41 and 61 of the Act in conjunction with the instrument of appointment expressly states the term is subject to the Act, which is at pains to segregate contractual entitlements and statutory entitlements.
That leaves section 51. The phrase "at any time" in section 51(1) effectively enacts the dismissal at pleasure principle, because this power is necessarily inconsistent with any requirement of procedural fairness. Since this aspect of the common law principle, at least, is reflected in the statute, the argument that the principle has not been displaced by section 51 is strengthened.
Although the Federal Court in Barratt v Howard (2000) 96 FCR 428 held the statutory scheme imported procedural fairness, this was because the statutory requirement conditioning the Prime Minister's power upon consideration of a report supported an implication that the recommendation could only be made upon substantively limited grounds. Accordingly, fixed term appointments were not held at pleasure.
By contract, the court here held section 51 stood "in the long line of provisions affirming and applying the dismissal at pleasure principle as an opportunity of last resort to the Executive in the efficient administration of a disciplined police force. The words "at any time" suggest this. So too does the fact that Parliament has seen fit to ameliorate the impact of summary dismissal by conferring rights of return to public sector employment and of compensation (sections 52, 53) upon those removed from office by the sharp hand of section 51."
Is procedural fairness required?
The Crown's right is a prerogative, and it doesn't have to give notice, hearing, or show or assign cause, but legislation may modify the right or provide rights which mollify or modify its incidents.
The Court of Appeal held that Justice Simpson was wrong to hold that the line of authority starting with Annetts v McCann (1990) 170 CLR 596 qualified the common law dismissal at pleasure principle by a common law implication of procedural fairness. Not only was there no implication of procedural fairness, the Crown did not have to show that the Act excluded procedural fairness.
What about the employment contract?
The mere existence of a contract does not exclude the Crown's right to dismiss at will. Although there is some question about whether a valid contract for a fixed term excludes the Crown's right under the principle, in this case the Act says an executive officer's term of office was not fixed by the contract of employment. The was therefore no breach of contract.
