67 I have very carefully considered the relevant evidence and submissions of the parties.
68 The jurisdiction of the Commission to hear and determine a Part 6 claim concerning the dismissal or threatened dismissal of an employee is to be found in s. 83 (5) of the Act:
83 (5) [Terms Defined] In this Part:
Dismissal includes:
a. the threat of dismissal, and
b. in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee.
69 In determining an application the provisions of both s.88 and s.89 (7) are relevant:
88 In determining the applicant's claim, the Commission may, if appropriate, take into account:
a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and
b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and
c) whether a warning of unsatisfactory performance was given before the dismissal, and
d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and
e) whether or not that the applicant requested reinstatement or re-employment with the employer, and
f) such other matters as the Commission considers relevant.
89 (7) Threat of Dismissal. In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.
70 Mr Ginters has rightly identified the leading authority on the issue of a threatened dismissal namely Hill v Director-General of Education as cited with approval in subsequent cases before this Commission including Baker v Australian Workers' Union and Wojtulewicz.
71 In Hill, a decision to dismiss had been made by the Director-General, and this decision had been conveyed to Mr Hill in writing with an actual date of effect also advised. Schmidt J. observed at p 205:
That brings me to question of whether this is a case which concerns a threatened dismissal or not. It seems to me that until the dismissal which has been foreshadowed is given effect, it is not a dismissal, but a threatened dismissal, in the sense in which both words are ordinarily understood. That is even more so in the case of a statutory scheme of employment which does not contemplate the common law concept of dismissal upon notice. Under this statutory scheme, Mr Hill remains an employee of the Department until dismissed. For reasons connected with this litigation, he has not been dismissed as yet. The reason why that is so, seems to me to be of little consequence to the end result. There has been no dismissal as yet, but it is clearly threatened and indeed, imminent, the dismissal having been put off on a number of occasions, most recently until 20 November. (emphasis added)