Barnier v Secretary, Department of Education

Industrial Relations Commission (NSW)|2021-06-10

decision

On 3 June 2021, Ms Justina Barnier (the applicant) filed in the Commission an application for relief in respect of a threatened termination of employment (the Application), along with a notice of motion, seeking, among other things, that pursuant to s 89 of the Industrial Relations Act 1996 (NSW) (the IR Act), the Secretary of the Department of Education (the respondent) will not dismiss her, in relation to any matter the subject of the Application.
The proceedings were listed on 4 June 2021 for conciliation and directions before the Commission. The conciliation was not successful, and the matter was set down for further conciliation and hearing of the applicant's notice of motion on 10 June 2021. The respondent gave an undertaking not to dismiss the applicant prior to 14 June 2021.
On 8 June 2021, the respondent filed a notice of motion seeking, inter alia, that the Application and the applicant's notice of motion be dismissed for want of jurisdiction (the respondent's notice of motion). Under the heading "Grounds and reasons" the respondent stated in the respondent's notice of motion: "1. The Commission has no jurisdiction with respect to the Application or the Notice of Motion. There is no dismissal to ground the Commission's jurisdiction because there has been no threat of dismissal. 2. Further and in the alternative, the Commission does not have power to make interlocutory orders under s. 89(7) of the Industrial Relations Act 1996 (NSW)."
The respondent's notice of motion was supported by an affidavit of Mr Andrew John Roberts, solicitor and was also relied upon in the applicant's notice of motion. Mr Roberts is a solicitor employed in the Office of the Crown Solicitor with carriage of this matter for the respondent.
At the commencement of the hearing on 10 June 2021, it was confirmed that the parties were seeking that the Commission hear the parties on the applicant's notice of motion and not conciliate the matter. The respondent did not move on the respondent's notice of motion but submitted that the arguments they would raise in it overlapped with those they relied upon in their resistance to the applicant's notice of motion, specifically as they relate to the question of whether the applicant has a prima facie case to bring the substantive proceedings. These are submissions that I consider further below in this decision.

The applicant's evidence and submissions

In support of the applicant's notice of motion, the applicant relied upon the affidavit of Ms Alexandra Grayson, solicitor dated 3 June 2021 (Ex A1). Ms Grayson is the solicitor acting for the applicant. Her evidence included the following by way of factual background to the Application and the applicant's notice of motion, under the heading "Background" ([4]-[32] of Ex A1): "I am instructed by the Applicant that: 4. The Applicant commenced employment with the Respondent in 1982. Accordingly, she has been employed by the Department for approximately thirty nine years. 5. The Applicant is currently substantively engaged as the Principal of Kellyville High School and has been temporarily transferred to alternative duties as a Principal Unattached at the Nirimba Education Precinct. 6. The Applicant remains gainfully employed performing duties at the Nirimba Education Precinct or working from home. … 8. By letter dated 6 August 2019, from Amanda Fiennes, Relieving Director, Child Protection Investigations, the applicant was informed that an investigation (Investigation) was to be conducted into allegations regarding procedural fairness and conflict of interest in relation to the employment of staff at Kellyville High School (6 August Correspondence). Particulars of the allegations were not provided. … 9. On 17 February 2020, the Applicant attended a meeting with Catherine Brennan, Executive Director, Helen Davis, Relieving Director Educational Leadership, and a support person, Kim Chapman, Principal Rouse Hill High School. 10. At the meeting, Ms Brennan provided the Applicant with a letter dated 13 February 2020 which stated that, as the result of further assessment, including "consideration of the risks to the school", a decision had been made to place her on alternative duties at the Nirimba Education Precinct. … 11. The applicant commenced alternative duties in or around July 2020. 12. By letter dated 23 September 2020, Ms Danielle Weismantel, Principal Investigator, wrote to the applicant and advised seven allegations against her. … 13. On 16 October 2020 and 21 October 2020, Mr Neale Dawson, New Law, then solicitor for the Applicant, sought the provision of further and better particulars to allow her to respond to the allegations. 14. No further and better particulars of the Allegations were provided. 15. By letter dated 6 November 2020, Ms Weismantel, Principal Investigator, wrote to the applicant and advised fourteen revised allegations against her). The conduct the subject of the allegations was the same as those set out in the correspondence dated 23 September 2020 however the Revised Allegations now alleged that the Applicant had breached four specific policies and guidelines as opposed to one named policy. … 16. On 26 November 2020, the Applicant provided her response to the Allegations attaching a large number of supporting documents (Response). … 17. The Applicant denies the Allegations for all of the reasons set out in the Response and the Application. 18. On 11 December 2020, the Applicant received a call from Relieving Director Educational Leadership Jeannie Brown. During the call, Ms Brown asked the Applicant to relinquish her position as Principal of Kellyville High School. The Applicant refused to do so. 19. Later that day, Ms Brown of the Department, attended the home of the Applicant while she was on personal leave to provide correspondence from the Department, advising that the Applicant was proposed to be permanently transferred, pursuant to s 51A of the Teaching Services Act 1980 (NSW), to the position of Principal, Unattached, Macquarie Park (11 December Correspondence). The 11 December Correspondence discloses that the proposed transfer was being considered as a result of (without limitation) the alleged conduct of Mr Wanstall and a workers compensation claim made by the Applicant. … … 22. By letter dated 30 April 2021 but received on 21 May 2021 the respondent advised the findings against the applicant and served an electronic copy of the Investigation Report on the applicant's solicitor (the Findings Correspondence). … 23. The Findings Correspondence advised that the Sustained Allegations warranted consideration of Dismissal (Threatened Dismissal) and requested a response to the Findings and the Threatened Dismissal within 14 days (that is, by 4 June 2021)."
Given the centrality of the letter dated 30 April 2021 (the show cause letter) to these proceedings as will become apparent, I interpose the terms of that letter here, addressed to the applicant: "You are aware that allegations made about your conduct have been investigated in accordance with the guidelines for the management of conduct and performance by professional and ethical standards (PES). I remind you that these guidelines can be accessed at www.education.nsw.gov.au . The investigation into the allegations that you may have engaged in misconduct has now been completed. I have considered the Investigation Report including your response to the allegations. A full copy including attachments is provided to you with this letter. My findings are as follows:

Allegations 1, 4, 5, 6 and 7 are not sustained.
Allegations 2, 3, 8, 9, 10, 11, 12, 13 and 14 are sustained.
The sustained conduct at Allegation 3 does not amount to misconduct.
The sustained conducted Allegations 2, 8, 9, 10, 11, 12, 13 and 14 amount to misconduct. I am now considering taking disciplinary action in accordance with Section 93F(1) of the Teaching Service Act 1980 There are five (5) possible disciplinary actions:
A caution or reprimand
The imposition of a fine
Reduction of the officer's salary or demotion to a lower position
Directing the officer to resign, or be allowed to resign within a specified period
Dismissal In relation to this matter, the severest disciplinary action I am contemplating imposing is: Dismissing you from the teaching service. You have 14 days from the receipt of this letter to make a submission and provide any additional information which you believe should be taken into account in relation to the proposed disciplinary action before I make a final decision. A submission may also be made on your behalf by your union. Your submission may address such matters as my opinion that you have engaged in misconduct, the Investigation Report, or any extenuating and mitigating circumstances. Before making a final decision on the appropriate disciplinary action, I will consider the following: 1. The Investigation Report 2. Your submission if made 3. The protection of children 4. The objectives of Part 4A of the Teaching Service Act 1980 which are as follows: a. to maintain appropriate standards of conduct and work related performance for officers in the teaching service, b. to protect and enhance the integrity and reputation of the teaching service, c. to ensure that the public interest is protected. You also have an opportunity to have an interview with me, accompanied by a support person of your choice (can be illegal or union representative, but not acting as an advocate) before a final decision is made. You may also nominate a person to speak on your behalf including a union representative but that person may not act as a legal advocate. Should you wish to have an interview the request should be made within seven (7) days are preceded this letter. …"

The misconduct allegations the respondent says are sustained against the applicant broadly relate to: 1. An alleged failure of the applicant to effectively manage a conflict of interest in relation to the employment of her son's then partner in a School Administrative and Support Staff Role by offering her paid overtime while not offering it to others in the same role, and by allowing her to attend university exams and a university trip without requiring a leave request be entered into the relevant payroll system (Allegation 2). 2. An alleged failure to comply with the respondent's policies in respect of the purchase of a number of laptops, a bunch of flowers for a staff member who was retiring ($100) and an end of conference gifts for executive staff amounting to approximately $147 (Allegations 8-14).
Ms Grayson's evidence continues at [24]-[25] of Ex A1: "24. Solicitors for the Applicant were provided with an electronic copy of the Investigation Report on 21 May 2021.The Investigation Report is over 650 pages long and is not electronically tabbed or page numbered. The Applicant had not previously seen the majority of documents contained in the Investigation Report. 25. The Investigation Report also contained links to numerous other additional policies and documents that had been relied upon by the Department in the Investigation but are not physically contained in the Investigation Report."
Ms Grayson's affidavit further notes at [26]-[32] that a hard copy of the Investigation Report was provided to the solicitors for the applicant on 1 June 2021 upon request, as the applicant could not properly review the electronic copy due to its size; her age and health; and computer facilities, and was over 650 pages long and lacking tabs or page numbers. The applicant's solicitors contacted the Department on 28 May 2021 requesting a two-week extension to respond to the Findings and Threatened Dismissal (until 18 June 2021), which was refused on the same date. Ms Grayson deposes that for reasons, including the fact that the applicant was on sick leave and unable to work between 4 May and 2 June 2021, the applicant could not respond to the Sustained Allegations, the Findings and the Threatened Dismissal before 4 June 2021.
The applicant additionally relied upon a letter from Dr Monica Ball dated 9 June 2021 about the applicant's health (Ex A2) extracted below in this decision.
The applicant delivered oral submissions at the hearing and filed and outline of submissions in reply on 11 June 2021 which I have considered in detail below.

The Respondent's evidence and submissions

The respondent relied upon the affidavit of Mr Andrew John Roberts in support of the respondent's notice of motion (Ex R1). In his evidence, Mr Roberts states at [5] of Ex R1: "I am instructed that no decision has been made to dismiss the Applicant from the Teaching Service, nor has any other decision been made to take disciplinary action."
Mr Roberts' affidavit annexed the show cause letter and the respondent's Guidelines for Management of Conduct and Performance (the Guidelines) which apply to the disciplinary process currently being undertaken by the respondent in respect of the applicant.
The respondent relied upon the respondent's written submission on motion and oral submissions delivered on 10 June 2021.
In summary, the respondent submitted that the applicant's notice of motion should be dismissed because: 1. The Commission has no jurisdiction with respect to the Application or notice of motion as there is no 'dismissal' to ground the Commission's jurisdiction as there has been no 'threat' of dismissal; 2. The applicant has not established a prima facie case such that the relief sought should be granted; and 3. Further or in the alternative, the Commission does not have power to make the interlocutory orders sought under s 89(7) of the IR Act.

Relevant legislation and principles

The relevant principles with respect to an application of this kind were set out by Boland J in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 (Woelfl). His Honour described the principles as follows: "28. Section 83(5)(a) of the Industrial Relations Act 1996 provides: (5) In this Part: dismissal includes: (a) the threat of dismissal, ... 29. Section 89(7) of the Act provides: (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. 30. There was also no issue about the Commission's jurisdiction to make orders under s 89(7) that the respondent not dismiss any or all of the three officers. In that respect, see Hill v Director-General of the Department of Education and Training (1998) 85 IR 201 at 208, cited with approval and/or applied in: Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98 at [32] - [34]; Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8 at [27]; ASMOF o/b Elizabeth Benson and Western Sydney Area Health Service [2003] NSWIRComm 337 at [6]; Western Sydney Area Health Service v Australia Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246; (2004) 138 IR 203 at [31]. See also ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [25]. 31. In Wojtulewicz the Commission observed at [31] that the exercise of the power to make interlocutory orders under s 89(7) is discretionary. And further, that the Commission will not lightly interfere with an employer's contractual (or statutory) right to terminate the employment of an employee. 32. In Wojtulewicz the Commission also held (at [32]-[36]) that in light of the decision in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 the correct approach to determining whether to grant or refuse an interlocutory order under s 89(7) was in accordance with Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618. 33. As it was observed in Wojtulewicz at [32]-[36]: [32]...In O'Neill, Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, said at [65] (references omitted): The relevant principles [governing interlocutory injunctions] in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. [33] At [19], Gleeson CJ and Crennan J stated (references omitted): The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be folIowed. [34] Thus what the plaintiff must show is that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights asserted by the plaintiff and the practical consequences likely to flow from the order sought. [35] Further, given the decision in O'Neill and the endorsement of the 'two inquiry' approach in Beecham, it would seem that the issue of irreparable damage by reason of damages not being an adequate remedy, no longer stands as a separate consideration, but is one that comes under the second inquiry referred to in the judgment of Gummow and Hayne JJ, namely, 'whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted' or, in other words, the balance of convenience test. [36] Gummow and Hayne JJ refer to preserving the status quo pending trial. The status quo may be the position of the parties at the time of the commencement of the proceeding. However, the defendant's allegedly wrongful conduct may have commenced by the time the proceeding is issued. In that case the plaintiff will seek to maintain the status quo pending trial in the sense that it wants the position to remain as it was before the defendant commenced to engage in the conduct complained of. That is the present case. 34. Thus, the two tests to be applied are: (i) whether there is a sufficient likelihood of success by the three officers to justify in the circumstances the preservation of the status quo pending the final hearing, status quo in this case being understood to be the suspension of the three officers on pay; (ii) whether the inconvenience or injury which the three officers would be likely to suffer if their interlocutory applications were refused outweighs or is outweighed by the injury which the respondent would suffer if the applications were granted. The second test may be referred to as the balance of convenience test."
This passage from Woelfl was more recently cited with approval in Jose v Secretary, Ministry of Health (Murrumbidgee Local Health District) [2019] NSWIRComm 1031 and Davis v Industrial Relations Secretary on behalf of the NSW Rural Fire Service [2019] NSWIRComm 1064.
The respondent has made a formal submission in these proceedings that the decision of Hill v Director-General of the Department of Education and Training (1998) 85 IR 201 (Hill) was incorrectly decided, however, it was conceded that the Commission as currently constituted is bound by the authority. Hill is authority for the proposition that the Commission has jurisdiction to grant interlocutory relief in order to preserve the ultimate jurisdiction exercisable under s 89(7) of the IR Act.
I have applied these principles to the case at hand.

Consideration

In deciding the applicant's notice of motion, the Commission must engage with the following questions: 1. Is there a sufficient likelihood of success by the applicant to justify the preservation of the status quo pending the final hearing, the status quo in this case being the applicant remaining employed as a Principal on alternative duties pending the final outcome of the Application. That is, consideration of the applicant's prima facie case. 2. Whether the inconvenience or injury which the applicant would be likely to suffer if her interlocutory application were refused outweighs or is outweighed by the injury which the respondent would suffer if the applications were granted. That is, the balance of convenience test.
I consider these in turn.

The prima facie case

The respondent argued that the applicant had not established a prima facie case of succeeding, such that the applicant's notice of motion should fail. Broadly, this argument was based on the respondent's submission that there was currently no threatened dismissal. However, the respondent went further to argue that the applicant had not made out a prima facie case for the final relief she is seeking in having any dismissal permanently stayed on the merits of the Application.
The respondent argued that the applicant had no prospects of succeeding as there has been no threat of dismissal at this stage of the process, including on the basis that: 1. While the show cause letter states that consideration is being given to terminating the applicant's employment, it does not state the likelihood of that outcome coming to fruition. Indeed, it was submitted that it the likelihood may be only 1 per cent. 2. Pursuant to the Guidelines, the decision-maker is precluded from making a decision until the employee has been invited to make submissions or participate in an interview. It was submitted that any information provided must be considered before a final decision is made, with reference to cl 7.4.3.10-11 of the Guidelines.
The respondent states in the respondent's submissions on motion at [38]-[45] that there is no 'threat of dismissal' in this matter, and that there is no material before the Commission that establishes a prima facie case that there is a sufficient likelihood of success to warrant the grant of interlocutory orders. The respondent's submissions on motion further state at [38]-[45] that as the applicant had not provided a response to the Department's finding of misconduct, there was no basis on which the Commission could assess the Department's position or conclude that there was a prima facie case that the alleged threatened dismissal was harsh, unreasonable or unjust.
The applicant argued that she has a strong prima facie case, which she asserts is established by the letter from the respondent dated 30 April 2021 and received on 21 May 2021. Her arguments were summarised in her submission in reply at [3]-[19]. The applicant argued that, the respondent's submission that an immediate or certain threat of dismissal is required is incorrect. The applicant asserts that even if an immediate or certain threat of dismissal were required, this would be satisfied in this matter on the basis that the applicant had not responded to the findings and Investigation Report within the specified time period, and that 7.4.3.11 of the Guidelines consequently empowered the respondent to dismiss the applicant with immediate effect.
The applicant argued extensively that there is a prima facie case on the merits of the application. In particular, the applicant submitted that in relation to Allegation 2 it is unclear whether corrupt conduct was alleged, and in any case the applicant had disclosed the potential conflict of interest and was not involved in the final decision-making process in the recruitment of her son's then-partner to her role at the school. It was submitted that this along with the contents of the response of the applicant contained in the annexure to A1 established a prima facie case that the threatened dismissal was unfair, as does the denial of the extension to reply to the show cause letter.
If there is no threatened dismissal, the Commission does not have jurisdiction to hear the applicant's claim pursuant to s 84 of the IR Act. Considering that the Commission's jurisdiction is being contested by the respondent, it is difficult to see how it would be appropriate to award interim relief to the applicant without first establishing that the Commission has jurisdiction to order the final relief she seeks pursuant to s 89(7) of the IR Act.
The parties helpfully referred to a number of cases where the issue of whether there has been a "threatened dismissal" has been considered. Clearly, whether there is a threat of dismissal is a factual matter that will turn upon the facts and circumstances of each case.
The respondent's submissions on motion provided: (1) At [40]: "In Decottignies, Bishop C dismissed an application for interlocutory relief under s.89(7) on the basis that: 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." (2) At [42]: "Similarly in Baker, Connor C stated (at [3]) that: For the threat to be sufficient to ground that remedy, in my opinion it must be certain, imminent and unconditional to give rise to a claim under Part 6."
The applicant provides the following references to case law in her submissions in reply at [4]-[8]: 4. In Clara Decottignies and NSW Department of Education and Training [2010] NSWIRComm 1014 Bishop C canvassed the factual circumstances which included that Ms Decottignies - who had worked in a series of fixed term positions in TAFE - suffered from a medical condition that limited the position in which she could be employed. There had been ongoing correspondence between the parties seeking to ascertain whether a position could be found that accommodated Ms Decottignies' medical restrictions. That process had not been exhausted. 5. Bishop C summarised the situation thus: 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. 6. In Baker v Australian Workers' Union [2005] NSWlRComm 1225 the applicant had made an application for relief from dismissal (not threatened dismissal) after he was suspended from duty by the AWU. At the Commission - when it was pointed out that he was merely suspended, not dismissed - Mr Baker argued that in fact it was a threatened dismissal and sought orders under s.89(7). Unlike these current proceedings, it was not an application for interlocutory orders. The decision is ten paragraphs long and with respect to Commissioner Connor contains some errors, no doubt as a consequence of the way in which the matter had come before him and been argued, it appears, on the run. Those errors included: a. Connor C's reliance on Hill v. Dept of Education when that authority is relevant to an application for interlocutory orders such as this application, not to final orders available under s.89(7) b. Connor C's statement that orders under s.89(7) are interim in nature (at paragraph 3). 7. Connor C's opinion that a threatened dismissal must be "certain, imminent and unconditional to give rise to a claim" probably reflects the fact that he was being asked to make orders under s.89(7), and is not apposite to these proceedings (without conceding that it correctly states the test for final relief). In any event, the decision is published for the purposes of dealing with the respondent's application to dismiss the unfair dismissal proceedings (which Connor C refused to do), in circumstances where the applicant in any event had withdrawn his threatened dismissal case. 8. In short, neither of these authorities assist the respondent, nor do they amount to a "movement away" from the decision in Hill v. DirectorGeneral of the Department of Education and Training (NSW). Hill has been approved by the Full Bench in Western Sydney Area Health Service v ASMOF (2004) 138 IR 203 and Sydney Water v Australian Services Union (NSWand ACT Branch) (2005) 146 IR 388."
The applicant submitted that the applicant must put before the Commission enough evidence to demonstrate a "sufficient likelihood" that the respondent is threatening to dismiss her. This approach is consistent with that taken by the Commission in the matter of Perry Janssen v Health Secretary (in respect of South Western Sydney Local Health District) [2018] NSWIRComm 1042 (Janssen) relied upon by the applicant. Whether there was a threat of dismissal was an issue in Janssen and the nature of the communication relied upon as evidencing the threat of dismissal was similar in its terms to the show cause letter in this matter. In respect of this issue, Chief Commissioner Kite SC (as he was) stated: "[36] The respondent submitted that here was no threat of dismissal merely an opportunity to make submissions before the question of dismissal is to be considered. It is unnecessary to determine this question to finality. It is sufficient to note that the concluding terms of the letter of 22 May 2018, set out at [8], provide a sufficient basis to conclude that there is a serious question to be tried or, in other terms, sufficient prospects for the applicant to succeed in proving a threat of dismissal exist."
There is no further analysis with respect of the issues within the decision. I have found the decision to be of limited assistance in terms of considering whether there has been a threatened dismissal in this matter.
Similarly, to the extent the applicant has relied upon the circumstances in Woelfl to support the contention that there is a threatened dismissal in this matter, I am disinclined to agree that it assists her. That matter proceeded on the basis that there was no issue that a threat of dismissal existed in respect of the three officers, the subject of the application: see [27] of Woelfl.
The Macquarie Online Dictionary provides for the following definition of "threat": "1. a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace. 2. an indication of probable evil to come; something that gives indication of causing evil or harm. 3. a person or thing which is deemed to have a negative impact on one's fortunes."
In the absence of evidence that a decision has been made to terminate the applicant's employment, there has not been a threat of termination within the ordinary meaning of that phrase. In Baker v Australian Workers Union [2005] NSWlRComm 1225, Connor C stated that in his view, such a threat must be, "certain, imminent and unconditional to give rise to a claim under Part 6". In Wei Fen Xian and Rail Corporation New South Wales [2009] NSWIRComm 1083, Bishop C referred to the decision in Baker. In that matter, Bishop C denied the applicant interim relief from a threatened dismissal in circumstances where the Commission found that a letter indicating that an Investigation Report would be forwarded to a Disciplinary Review Panel for consideration, which could consider a range of outcomes, including Dismissal, did not constitute a threat of dismissal.
The circumstances of the applicant in the matter of Hill were that he had been advised by the Director General that a decision had been made to dismiss him: p 204 of Hill. While in that case, the threat of dismissal was "certain, imminent and unconditional" this does not appear to have been the test laid down as the threshold that must be met for there to be a threatened dismissal. In my view, for there to be a threatened termination, at the very least, there needs to have been a more decisive statement of an intention to terminate than there has been in this case before it can be said that there is a threatened termination. Here, based on the evidence, a decision has not been made to terminate the applicant's employment and termination is one of a number of options being considered in the context of a disciplinary process. It follows from this that the Application and applicant's notice of motion is premature and must fail.
In forming this view, I have considered but am not persuaded by the applicant's argument that the threat has been made because the applicant's request on 28 May 2021 to extend the time within which to respond to the show cause letter was rejected. The respondent gave an undertaking to the Commission not to dismiss the applicant prior to 15 June 2021 (though prior to the hearing on 10 June 2021, this undertaking was only extended until 14 June 2021). The applicant submitted that the next step for the respondent, given that the applicant is not able to respond within the required timeframe, is to take disciplinary action, taking into account all of the material before them: 7.4.3.11 of the Guidelines. However, the Commission does not have an evidentiary basis upon which to conclude that a non-response to the show cause letter will necessarily lead to the termination of the applicant's employment such that the expiration of the respondent's deadline turns the show cause letter into a threat of dismissal. The fact that the decision-maker has stated that they are considering termination and the applicant does not provide any further information to act upon does not mean that the decision-maker will terminate her employment.
The applicant sought to place particular reliance upon the matter of Woelfl. However, this case is not helpful in providing guidance to the Commission with respect to whether the applicant has been threatened with dismissal. Although the relevant employees in the Woelfl proceeding had received letters in similar terms to the applicant's show cause letter, the issue of whether a threat of dismissal existed was not considered.
Although it is of no consequence to the notice of motion given my findings that there is no threatened dismissal, for completeness, I otherwise find that there would be sufficient material before the Commission for the applicant to establish a prima facie case. During the hearing of the applicant's notice of motion, counsel for the respondent argued that the Commission has before it allegations of corrupt conduct. I note that nowhere in the show cause letter is the applicant's alleged conduct characterised as corrupt, which is a term that carries particularly egregious connotations.
The Commission has before it a very detailed response to the allegations against the applicant: Ex A1 at pp 26-101. The Commission is not required to determine the merits of this case at this stage of the proceedings but suffice to say, the applicant protests her innocence and contests the findings of the respondent and if her assertions are correct, she has an arguable case to succeed in her application. In making this finding, I have considered the whole of the applicant's response in respect of the sustained allegations, but particularly the applicant's response to the allegations as they relate to her alleged failure to appropriately manage a conflict of interest with a staff member, then a partner of her son, which the respondent sought to place significant emphasis on at the hearing: pp 28-30 of Ex A1.
While the nature of what is alleged by the respondent is serious, particularly as it relates to the allegations of a failure to effectively manage a conflict of interest, the applicant has also foreshadowed an argument that the failure to extend the time within which to respond to the show cause letter may be a basis upon which the dismissal is argued to be unfair. There is in my view a prima facie basis upon which it could be argued that this decision was unfair, given that the reasons for that request, namely the volume of the materials served, the health of the applicant (supported by medical evidence) and the reasonable extension of time sought.
Noting that the disciplinary process is ongoing, and in case I am wrong with respect to whether there is a threatened dismissal, I have decided that it is appropriate that I also consider the parties' submissions with respect to the balance of convenience.

The balance of convenience test

In determining whether to grant the injunction sought by the applicant, the Commission is required to consider the balance of convenience. In my view, and although it is finely balanced, I am not persuaded that the balance of convenience favours the ordering of the relief sought in this notice of motion restraining the respondent from terminating the applicant's employment.
Under the heading "Balance of Convenience", Ms Grayson deposed at [33]-[46] that dismissing the applicant from her employment would render her unemployable in her profession, preclude her from finding alternate employment at the same or similar salary, and cause her irreparable reputational harm in her local community. Ms Grayson further deposed that the applicant is 60 years old and has worked for the respondent for her entire working life, and that dismissal would cause her to suffer immediate financial detriment in light of her personal circumstances. These are expressed to include her separation from her husband and the financial support she provides to one of her adult children who resides at home and has significant medical and legal fees which the applicant pays for.
The applicant relied upon a letter from Dr Ball dated 9 June 2021, which relevantly provided: "Dear Commissioner Webster, Re: [applicant's full name] This lady has been a patient of this practice for 8 years and is well known to me. [The applicant] has suffered severe distress, anxiety and depression since being placed on alternative duties by the NSW Dept of Education in February 2019. As a result of the removal of her role as Principal of Kellyville High [the applicant] has incurrent loss of her role as an active participant in the school and local community. She has suffered extensive public humilation (sic) due to media reports her (sic) regarding her removal. Her distress has been further excacerbated (sic) by the requirement of the Education Department that she not discuss her employment isseus (sic) with her colleages (sic) and friends, leading her to become socially isolated. Over the past 2 years [the applicant] has been under the care of Dr Chris Bauer (GP who specialistis (sic) in psychological therapy(sic)) and Dr Sugayshringari (Psychiatrist) . She has needed intensive psychological support from Dr Bauer. It is my opinion that the impact of losing her Job wilI cause further ongoing deterioration of her mental health As [the applicant] was planning toywork (sic) until at least 67 this lady and her family would experience signficant (sic) hardship. [the applicant] is the family breadwinner ."
It is clear from this letter that the applicant has had a very difficult time coping in her employment situation, including suffering severe distress, anxiety, and depression since being placed on alternative duties (noting the letter refers to this occurring in February 2019, rather than February 2020 which I have taken to be a typographical error). She has needed significant and ongoing medical professional assistance. Further, the letter evidences that the loss of the applicant's job will cause ongoing deterioration of her mental health, however, there is no detail provided with respect to that evaluation. I do however accept the medical prognosis for what it states and have taken it into account. I also acknowledge that if the applicant is successful in her substantive application, this is a loss for which no remedy will likely compensate the applicant adequately.
The applicant also argued that irreparable harm would be done to her reputation if her employment was terminated and that damage could not be remedied. Ms Grayson also referred to the applicant being the target of a Facebook group known as the "Dads of the Hills", but there was no detail provided with respect to this. Reliance was placed upon a number of media articles published in December 2020 relating to accusations made against the Deputy Principal of the applicant's former school, Mr Damian Wanstall. The articles identify that Mr Wanstall is accused of inappropriate behaviours and that he was arrested for attempting to lure a 14-year old girl for sex. The applicant was the principal to whom Mr Wanstall reported at Kellyville High School before she was removed from that role. In the articles: 1. MP David Elliott (Police Minister) alleged in a letter to Education Minister Sarah Mitchell that that he had been advised the applicant had failed to respond to alleged concerns relating to the inappropriate touching of staff and students by Mr Wanstall (Ex A1 p 111). 2. A student had alleged that she complained to the applicant in 2014 and was "Shrugged off" and was quoted as saying, "I was told I wasn't the first one to complain, which was of course very unsettling. The principal also told me 'that's just the way he is'. Nothing was done about it" (Ex A1 p 112). 3. A spokesperson for the respondent is reported as stating that after receiving a letter from MP Elliott alleging inappropriate conduct by Mr Wanstall, the Department acted on the referral which resulted in the applicant's removal from duty and an ongoing investigation into the leadership of the school. The then Department of Education Secretary, Mark Scott is also quoted as stating that while no further child protection matters had been raised with the Department, "there had been concerns about leadership at the school" (page 112 of Ex A1). 4. The applicant had been investigated in respect of a bullying complaint against her earlier that year (2020) and she had been engaged in an offsite role at the Department since term one (page 112 of Ex A1). 5. The applicant had been moved to a Department Job as an investigation continued in respect of as many as 20 complaints from parents and teachers about her management style (Ex A1 p 114).
The applicant strongly asserted during the hearing of the notice of motion that the applicant's reputation will be significantly impacted and that the Department of Education had linked her removal from the role of Principal with Ms Wanstall through the media when there was not a proper basis to do so: Tcpt, 10 June 2021, pp 26-28. It was further submitted that because of this, if the applicant's employment is terminated, then there will be assumptions made that the termination occurred because of her actions in the context of the complaints against Mr Wanstall and this would have a devastating impact upon her reputation. Ms Grayson gave evidence that the applicant had been frequently asked by local community members why she is not working at Kellyville High School and whether she was removed due to the alleged criminal conduct of Mr Wanstall: Ex A1 at [34].
I accept that if the applicant's employment is terminated and this becomes known to members of her local community, they may assume or question whether she was terminated because of her conduct in respect of the allegations against Mr Wanstall and that statements attributed to the Department of Education in the media may have influenced that perception, whether those statements were accurate or not.
The applicant will face significant challenges to finding alternative employment outside of the respondent's place of employment because of the media relaying the circumstances of her removal from Kellyville High School. This would be the case even if the applicant's employment were not terminated by the respondent and she sought employment within her vocation outside of the NSW public service. Given the specialised nature of her skills and work life and the stage of her career, she may not find employment at the same or similar salary for the remainder of her working life.
Naturally, the applicant will suffer immediate financial detriment if her employment is terminated. However, the Commission has limited evidence as to her financial position and the extent of any hardship this will cause her. Although there is evidence of some of the applicant's liabilities, including the medical expenses of an adult child on an apprentice wage, the Commission is not aware of the applicant's actual net financial position.
I also take into account that the applicant is currently gainfully employed by the respondent. The respondent would receive the benefit of her work in exchange for her wages if the orders sought were made.
In the context of deciding the balance of convenience, I have also considered the decisions in Janssen and Woelfl, which the applicant argued were most closely aligned factually to the matter before the Commission (as I have considered in the context of whether there has been a threatened dismissal). Ultimately, a determination of the balance of convenience will depend upon the facts of the case and no two cases will ever be the same. I do however note that in Woelfl, Boland J found and took into account that the relevant employees seeking interim orders akin to those sought by the applicant in this matter were the subject of vilification and abuse by "anonymous critics that appear to inhabit some of the social media and to some extend the officer had become pariahs, even in their hometown" and that the media "coverage given to the three officers would undoubtably operate to their prejudice in the context of seeking new employment": see [68]-[69] of Woelfl. I have taken the impact the media coverage has had upon the applicant as set out above and note that although reference has been made to the applicant being the subject of discussion on a Facebook page, the Commission has no evidence of what this has entailed.
I consider the circumstances of the applicant in Janssen to be readily distinguishable to those of the applicant in this matter. In particular, the applicant who was awarded interim relief from the threatened termination of his employment was in Australia pursuant to a s 457 Visa (as it was) and the termination of his employment prejudiced his capacity to remain within the jurisdiction to pursue any unfair dismissal claim: see [14] of Janssen.
It is centrally relevant to the determination of the balance of convenience that if the applicant is dismissed, she will be able to bring her application for unfair dismissal, seeking both reinstatement and backpay. Accordingly, if the applicant is successful and it is found that she has been wrongfully dismissed, she will be compensated with respect to any backpay and reinstated unless it is impracticable to do so. Though not a complete remedy, the reputational impact of the applicant's termination if she is successful in an unfair dismissal matter will be somewhat restored by such a decision too.
The making of the orders sought by the applicant will have the effect of interrupting the disciplinary process before it is complete and the final outcome definitively known. The effect of the orders would be to deny the respondent the opportunity to exercise their contractual rights to dismiss the applicant where the decision to do so may be fair and appropriate. This is a significant prejudice to the respondent given the nature of the allegations against her, particularly as they relate to the alleged failure to appropriately manage a conflict of interest. The authorities are clear that a decision to interrupt an employer's contractual (or statutory) right should not be taken lightly: ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [31] and [49].
Having taken all these matters into account, I have decided that the balance of convenience lies with the respondent and I would not be inclined to make the orders sought by the applicant. In forming this view, I have very carefully considered the evidence as it relates to the circumstances of the applicant, particularly with respect to her personal financial and medical circumstances, the reputational impact the termination would have on her and her capacity to find alternative work. However, considering this in parallel with the respondent's contractual rights to terminate the applicant's employment and the relief available to the applicant through an unfair dismissal application, I have decided that the balance of convenience lies with the respondent.
Ultimately, I have decided to dismiss the applicant's notice of motion so far as it seeks that the Commission make interim orders that the respondent not terminate the applicant's employment. I do so on the basis set out in this decision, namely because the applicant does not have a prima facie case given that there is currently no threat of dismissal. I also find that if such a threat were to crystalise, the balance of convenience would not lie in favour of making the interim orders sought.

Orders

I make the following orders:
Paragraph 5 of the applicant's notice of motion filed 3 June 2021 is dismissed.
The matter be listed for directions via telephone at 10 am on Friday, 25 June 2021. Janine Webster COMMISSIONER

Amendments 01 July 2021 - Decision published without restriction. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2021

Teaching Services Act 1980(NSW)

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