Australian Workers Union v Bluescope Steel

Industrial Relations Act 1996 LEGISLATION CITED: Public Sector Managment Act 2002 Technical and Further Education Commission Act 1990

Australian Workers Union v Bluescope Steel (AIS) Pty Limited [2008] NSWIRComm 1060 ASMOF New South Wales (onbehalf of Dr Wojtuliwicz) v Director General of New South Wales Health Service (The Children's Hospital at Westmead) [2008] NSWIRComm 299 CASES CITED: Baker v Australian Workers' Union [2006] NSWIRComm 1225 Hill v Director-General of Education New South Wales (1998) 85 IR 201 Wei Fen Zian v Rail Corporation New South Wales [2009] NSWIRComm1083

APPLICANT Mr B Evans, reSolutions@Work Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of Counsel

DECISION: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Clara Decottignies and NSW Department of Education and Training

Application by Clara Decottignies re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application by Clara Decottignies against the New South Wales Department of Education and Training (TAFE) for a remedy pursuant to section 84 of the Industrial Relations Act 1996. 2 Ms Decottignies has alleged in her application that she was threatened with dismissal from her position of Acting Head Teacher with TAFE on 7 December 2009. She sought reinstatement to her former position, to be followed by a full time teaching position within a campus or campuses subject to her disability.

3 The matter was listed for conciliation and directions before Commissioner Stanton on the 23 December 2009, at which time conciliation took place. No settlement could be reached and a jurisdictional issue was pressed by TAFE as to the ability of the Commission to hear the matter further. Therefore directions were issued as to the filing and exchange of witness statements pursuant to Practice Direction 17 and the file returned to the Registry.

4 The matter was listed for hearing before the Commission as currently constituted in Newcastle today, the 4 March 2010. 5 At the hearing Ms Brus, of Counsel, appeared on behalf of TAFE, with the only witness being Ms Walton, Acting Manager Human Resources, Hunter Institute, who had filed a witness statement (Exhibit 1) and was required for cross-examination. 6 Mr Evans appeared on behalf of Ms Decottignies, who was not required for cross-examination but had filed a witness statement (Exhibit 3).

7 At the commencement of proceedings, the Commission indicated to the parties that the merits of the matters that were raised by Ms Decottignies in her witness statement would not be dealt with, as the only issue before the Commission for consideration was whether in fact there had been a threat of dismissal in order to establish the jurisdiction of the Commission to determine whether such a threatened dismissal was harsh, unjust or unreasonable and sufficiently so as to make what would be an interlocutory order pursuant to section 89(7). Therefore, much of the material contained in the witness statement of Ms Decottignies was not traversed. 8 Ms Decottignies commenced as a full time teacher with TAFE in 2001. She has held a variety of temporary appointments at various campus locations within the Hunter Institute and was Acting Head Teacher of Business Services at Muswellbrook campus at TAFE from February 2009 to July 2009.

9 The circumstances of her ceasing to be at that particular campus is in dispute to an extent between the parties and forms part of the merit argument of Ms Decottignies, which is not required to be traversed here. 10 Ms Decottignies has not returned to work since August 2009 and has been on approved leave of various kinds, principally sick leave. 11 "A Fitness to Continue Assessment" of Ms Decottignies conducted in November 2009 concluded that she could only travel to work locations within 30 minutes travel from her Pokolbin residence. Hunter Institute then examined the possibility of finding a teaching position within those parameters.

12 Ms Walton then wrote to Mr Evans, who was representing Ms Decottignies, on the 7 December 2009 (Exhibit 3 - G). The letter referred to a meeting held on 4 December to discuss the issues raised on Ms Decottignies' behalf and traversed the issues of the unavailability of alternative positions and some difficulties in what was available at certain campuses. The letter then concluded by saying : To this end, TAFE New South Wales can offer the following options: · A full program at Ms Decottignies' substantive location, Newcastle, compressed in 4 days to allow her the possibility of locating accommodation close to the campus. · A part-time program at Newcastle to suit Ms Decottignies' attendance requirements, supplemented by her leave provisions. · Support for Ms Decottignies to take leave without pay to allow her time to recover if possible. · Finalisation of Ms Decottignies' employment with TAFE NSW - Hunter Institute based on the fitness to continue assessment recommendations of Dr Mastrioanni and on the fact that there is not another suitable classroom teaching position to meet the medical requirements of the medical restriction. If Ms Decottignies would like to discuss these options or any other related matter, I can be contacted on.......... 13 Ms Walton's evidence was that there had been no written response to that correspondence.

14 At the commencement of the 2010 TAFE year Ms Decottignies submitted an application for sick leave for the period from 27 January 2010 to 27 March 2010, which was approved.

15 Ms Brus submitted that there was no threatened dismissal and that that was supported by the evidence of Ms Walton. Ms Decottignies' payment history had been tendered (Exhibit 2), which showed that she was in receipt of pay, that she was currently on sick leave and had medical certificate up until 27 March 2010. That was also confirmed in evidence by Ms Walton.

16 As such, Ms Brus submitted that there was no threat to dismiss, Ms Decottignies was still employed by TAFE and on sick leave. 17 Reference was made to the relevant provisions of the Public Sector Management Act 2002 covering the employment of Ms Decottignies. 18 Reference was also made to the fact that Ms Decottignies sought particular appointment to certain positions or certain campuses and that the Commission was precluded from dealing with that matter pursuant to s.19 of the Technical and Further Education Commission Act 1990 which provides as follows: 19, Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position in the TAFE Commission Division of the Government Service or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996 . 19 Ms Brus referred the Commission to a decision of the Full Bench in New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 [1999] NSWIRComm 234, concerning the operation of s. 19. of the TAFE Act 20 It was submitted that there was no jurisdiction of the Commission to deal with this matter as Ms Decottignies was on sick leave, had not been dismissed, was still an employee of TAFE and therefore there was no threat of dismissal.

21 Mr Evans, on behalf of the Ms Decottignies, referred to a decision of Commissioner Connor in Australian Workers Union v BlueScope Steel (AIS) Pty Limited [2008] NSWIRComm 1060. That matter dealt with the issue of the demotion of an employee and whether that in itself was a dismissal and whether the particular employee in question should be granted payment at the rate he was previously employed at, which was above the substantive wage for the position he now occupied. The application was dismissed.

22 The Commission does not find that decision of any assistance in this matter. There are more relevant decisions to which I will refer in a moment.

23 Mr Evans submitted that the expression "finalisation of Ms Decottignies employment", essentially meant termination of employment and that that was the threat that was imminent. I don't think there is any doubt that the term "finalisation of employment" certainly means the employment being concluded. That employment could be concluded in a number of ways, either by the resignation of an employee, the dismissal of an employee, the medical retirement of an employee or the constructive dismissal of an employee.

24 That brings me to the relevant law to be considered. The issue of whether or not a threatened dismissal exists in relation to an employee was traversed by the Commission as currently constituted in Wei Fen Xian v Rail Corporation New South Wales [2009] NSWIRComm 1083, a decision handed down on 14 October 2009.

25 That matter concerned a disciplinary investigation that was underway in relation to Ms Xian, but which had not been completed. In the decision, consideration was given to the leading authority on the issue of the threatened dismissal, namely Hill v Director-General of Education New South Wales (1998) 85 IR 201, as well as decisions of Commissioner Connor in Baker v Australian Workers' Union [2006] NSWIRComm 1225 and the President in ASMOF New South Wales (on behalf of Dr Wojtulewicz) v Director-General of New South Wales Health Service (The Children's Hospital at Westmead) [2008] NSWIRComm 299. 26 All of those matters concerned whether or not there was a threatened dismissal. In Hill, - and this was a matter where a decision had actually been made and conveyed to Mr Hill in writing with an actual date of effect also advised - Schmidt J observed at page 205; That brings me to the 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 employer at 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." 27 Similarly, in Wojtulewicz, Dr Wojtulewicz had been advised in writing of his dismissal and given an effective date, and thus there was an actual threatened dismissal in existence.

28 In Xian, I also considered the definition of "threat" as set out in the Macquarie Dictionary, being "declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for or conditionally upon some action or course". That same consideration is relevant in this matter.

29 As also was the case in Hill, Ms Decottignies is employed under a statutory scheme. That statutory scheme requires that when the dismissal, or indeed medical retirement, of an employee is being considered, certain administrative actions must take place. An employee must be advised that dismissal is being considered and a "show cause" letter is issued with the employee then having the opportunity of responding to that and giving reasons why dismissal should not take place. That step occurs before a final decision to actually conclude the employment relationship is made.

30 It is clear to me that in this matter, Ms Decottignies is currently on sick leave. She has a medical certificate that takes her to 27 March 2010. That leave has been approved and she is currently being paid. What might happen after 27 March 2010, I do not know. I do not have a crystal ball. 31 It is clearly a possibility that ultimately the cessation of the employment relationship, by one means or another may take place, however at this stage it still remains only a possibility. It is not a definite certainty and in any event, no final decision has been made by the employer.

32 Whilst Mr Evans indicates that the options contained in the first three bullet points of the letter of 7 December are impracticable, and given that the medical condition that Ms Decottignies is unfortunate enough to suffer is an ongoing one and therefore not likely to disappear or be such that it will carry on, it would appear that the issues concerning the difficulties with where she can be placed within TAFE will continue. 33 The problem seems to be the availability of alternate positions at this stage. That is not to say that it is not still open to the parties to consider what other alternatives there are, or that might arise, in the future. 34 The situation remains however, that at present, Ms Decottignies is an ongoing employee of TAFE, there is no threat to dismiss, she is currently on sick leave, she has a valid medical certificate until 27 March 2010, and what might happen after 27 March 2010 is beyond the proper capacity of this Commission to speculate about.

35 Should ultimately a dismissal take place, then Ms Decottignies will have the right, should she consider it appropriate, to file a section 84 application if she considers that such dismissal is harsh, unjust or unreasonable. The matter can be then heard by the Commission in the usual way. Until then, it seems to me that, to quote Commissioner Connor in Baker, "the applicant is jumping the gun". 36 Having considered the relevant provisions of the Act, the evidence and submissions before me and the relevant authorities, I am unable to find that there is an imminent threat to dismiss the applicant. Therefore, I accede to the application made by Ms Brus that the application be dismissed. 37 The application is dismissed. This matter is concluded.

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