Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice

DECISION

1. Eva Banozic is employed as a Manager in the Security & Intelligence unit of Corrective Services NSW ("CSNSW"). On 20 January 2023 she was served with a letter from Paula Quarrie, the Acting Assistant Commissioner of Security & Intelligence for CSNSW, dated 20 December 2022. In that letter, Ms Quarrie stated that she had received information that Ms Banozic had "allegedly engaged in corrupt conduct" and that, consequently, Ms Quarrie had decided to suspend Ms Banozic from duty with pay in accordance with s 70 of the Government Sector Employment Act 2013.
2. Ms Banozic, directly and through her union, challenged CSNSW's decision to suspend her. She claimed that she had been denied procedural fairness in the process culminating in that decision, and that the decision may have been affected by bias. She also sought details of the corrupt conduct in which she had allegedly engaged, while denying strenuously that there could be any substance to such allegations.
3. On 7 February 2023 McArdle Legal, acting on behalf of Ms Banozic, wrote to Assistant Commissioner Bernhard Ripperger of CSNSW, invoking cl 9 of the "Crown Employees (Conditions of Employment) Award" and asserting a breach by CSNSW of cl 8 of that award. The letter should be read as having intended to refer to the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 ("Award"); it was common ground that this was the award which applied to Ms Banozic's employment.
4. For context, cll 8 and 9 of the Award are relevantly in these terms: 8. Work Environment 8.1 Work Health and Safety - The parties to this award are committed to achieving and maintaining accident-free and healthy workplaces in Government organisations covered by this award by: 8.1.1 the development of policies and guidelines for the New South Wales Public Service and, as and when appropriate for individual organisations, on Work Health, Safety and Rehabilitation; 8.1.2 assisting to achieve the objectives of the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011 by establishing agreed Work Health and Safety consultative arrangements in Government organisations and or/work premises; to identify and implement safe systems of work, safe work practices, working environments and appropriate risk management strategies; and to determine the level of responsibility within a Government organisation to achieve these objectives; … 9. Grievance and Dispute Settling Procedures 9.1 All grievances and disputes relating to the provisions of this award will initially be dealt with as close to the source as possible, with graduated steps for further attempts at resolution at higher levels of authority within the appropriate Department or Agency, if required. 9.2 An employee is required to notify in writing their immediate manager, as to the substance of the grievance, dispute or difficulty, request a meeting to discuss the matter, and if possible, state the remedy sought. 9.3 Where the grievance or dispute involves confidential or other sensitive material (including issues of harassment or discrimination under the Anti-Discrimination Act 1977) that makes it impractical for the employee to advise their immediate manager the notification may occur to the next appropriate level of management, including where required, to the Department Head or delegate. 9.4 The immediate manager, or other appropriate employee, will convene a meeting in order to resolve the grievance, dispute or difficulty within two (2) working days, or as soon as practicable, of the matter being brought to attention. 9.5 If the matter remains unresolved with the immediate manager, the employee may request to meet the appropriate person at the next level of management in order to resolve the matter. This manager will respond within two (2) working days, or as soon as practicable. The employee may pursue the sequence of reference to successive levels of management until the matter is referred to the Department Head. 9.6 The Department Head may refer the matter to the Secretary for consideration. 9.7 If the matter remains unresolved, the Department Head will provide a written response to the employee and any other party involved in the grievance, dispute or difficulty, concerning action to be taken, or the reason for not taking action, in relation to the matter. 9.8 An employee, at any stage, may request to be represented by the Association. 9.9 The employee or the Association on their behalf or the Department Head may refer the matter to the New South Wales Industrial Relations Commission if the matter is unresolved following the use of these procedures. 9.10 The employee, Association, Department and Secretary will agree to be bound by any order or determination by the New South Wales Industrial Relations Commission in relation to the dispute. 9.11 Whilst the procedures outlined in subclauses 9.1 to 9.10 of this clause are being followed, normal work undertaken prior to notification of the dispute or difficulty will continue unless otherwise agreed between the parties, or, in the case involving work health and safety, if practicable, normal work will proceed in a manner which avoids any risk to the health and safety of any employee or member of the public.