The applicant in this matter, Ms Loretta Nancy Basedow, was notified by correspondence dated 3 December 2018 from Michelle Micallef, Director, Community Corrections, Sydney West, that her employment had been terminated pursuant to sub-ss 47(1) and 68(2) of the Government Sector Employment Act 2013 (NSW).
On 15 January 2019, the applicant filed in the Office of the Industrial Registrar an Application for Relief in Relation to Unfair Dismissal ("the Unfair Dismissal Application"). The Unfair Dismissal Application came before me on 11 February 2019, 28 February 2019 and 16 April 2019.
On 11 February 2019, the respondent notified the Commission that he intended to object pursuant to s 90 of the Industrial Relations Act 1996 (NSW) ("the IR Act") to the Commission determining the matter as the applicant had lodged a claim with the Anti-Discrimination Board in relation to the termination of her employment. As no appearance was entered for the applicant, and the Commission was unable to establish that the applicant had received the notice of listing, I determined to adjourn the matter generally and directed that the respondent inform the applicant that the Commission would relist the matter on an application by the applicant. The Commission also took steps to inform the applicant of this.
On 18 February 2019, the applicant requested that the matter be relisted and the matter was relisted before me on 28 February 2019 for conciliation and directions.
On 25 February 2019, the respondent filed a Notice of Motion in the matter which sought, amongst other things, that the applicant's unfair dismissal application be dismissed pursuant to s 90 of the IR Act. That Notice of Motion was supported by an affidavit sworn by Ms Glenn Singer affirmed on 22 February 2019. The Notice of Motion asserted that a complaint had been made pursuant to another statute in another jurisdiction and that the subject matters of that complaint were essentially the same matters that arose in the Unfair Dismissal Application.
Basedow v Industrial Relations Secretary on behalf of the Department of... [2019] NSWIRComm 1062 | Case summary | Zoe
Section 90 of the IR Act is in the following terms:
90 EFFECT OF AVAILABILITY OF OTHER REMEDIES
The Commission must not determine an applicant's claim by making an order under section 89 if:
(a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and
(b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.
Ms Singer deposes in her affidavit that on 3 December 2018, the applicant lodged a formal complaint under the Anti-Discrimination Act 1977 (NSW) ("the AD Act") to the President of the Anti-Discrimination Board ("the ADB"), alleging that the act of termination of her employment was tantamount to victimisation pursuant to s 50 of the AD Act ("the Applicant's Discrimination Complaint").
On 28 February 2019, the respondent notified the Commission that he intended to move on the Motion to dismiss the Unfair Dismissal Application prior to engaging in conciliation. I determined that I would deal with the respondent's motion as a threshold issue before conciliation.
The applicant confirmed to me that she had received the Motion. I determined that the Motion would be heard on 16 April 2019 and set a timetable for the filing of any further material. I provided the applicant with a copy of s 90 of the IR Act and pointed to the language used in the section. I suggested that the applicant obtain advice about whether she could pursue both the Unfair Dismissal Application and the Applicant's Discrimination Complaint.
The applicant did not attend the Commission for the hearing of the Notice of Motion on 16 April 2019. Ms Singer appeared for the respondent and informed the Commission that the Applicant's Discrimination Complaint was before the ADB for conciliation on 9 May 2019 and accordingly had not yet been referred by the President to the New South Wales Civil and Administrative Tribunal ("NCAT"). Amongst other things, I directed that following the conciliation at the ADB: the respondent inform the Commission the outcome of the ADB conciliation and whether the Applicant's Discrimination Complaint had been referred to NCAT; if the matter was referred to NCAT then the Commission will determine the respondent's Motion on the papers; and if the Applicant's Discrimination Complaint was not referred to NCAT then the applicant must file with the Commission an undertaking pursuant to s 90 of the IR Act in relation to the Unfair Dismissal Application.
On 24 May 2019 Ms Singer, on behalf of the respondent, informed the Commission by letter that the ADB had informed the respondent that the ADB was referring the matter to NCAT at the applicant's request. Pursuant to s 163(1) of the IR Act, I am not bound to act in a formal manner and I can inform myself in a way that I consider just. On this basis, I accept this information in this form.
On 29 May 2019 I made directions: consistent with the directions of 16 April 2019 that, as the Applicant's Discrimination Complaint had been referred to NCAT, I would determine the respondent's Motion on the papers; and for the filing of any further evidence and submissions in respect of the respondent's Motion.
On 25 June 2019 the applicant filed two documents. The first of which was titled "Notice of Motion" and the second titled "Response to Orders Made 29 May 2019 to the proceedings - Notice of Motion". Both documents are difficult to understand and their relevance to the Unfair Dismissal Application is limited. On their face, neither seeks Orders from the Commission which the Commission is empowered to make.
On 28 June 2019 the applicant filed a document which was titled "Notice of Motion - Response to Orders Made 29 May 2019". The document is difficult to understand and its relevance to the Unfair Dismissal Application is limited. On its face, it does not seek Orders from the Commission which the Commission is empowered to make. However, the document attaches a Notice of Listing from NCAT dated 11 June 2019 for the matter of "Loretta Basedow v Department of Justice (Corrective Services NSW)" for a case conference on 3 July 2019. On the basis of the evidence in Ms Singer's affidavit and the letter from Ms Singer dated 24 May 2019, I understand that the matter of "Loretta Basedow v Department of Justice (Corrective Services NSW)" is the Applicant's Discrimination Complaint which has been referred to NCAT.
[2]
Consideration and determination
The language of section 90 of the IR Act is clear. This language was pointed out to the applicant by me on 28 February 2019 when I provided her with a copy of s 90 of the IR Act.
Relevantly, her Honour Justice Schmidt stated in Johnston v the Department of Mineral Resources [1997] NSWIRComm 67 (21 May 1997) at p. 6:
… Once a complaint has been referred to the Equal Opportunity Tribunal however, any issues which are before the Equal Opportunity Tribunal may only be pursued before the Commission if leave is given by the Commission under s 169.
If leave has been granted under s 169 but the matter is not resolved in conciliation proceedings under s 86, the Commission is precluded by section 90 from proceeding to "determine" the application for reinstatement in arbitration proceedings, because the applicant has already commenced proceedings under the Anti-discrimination Act, that being an act which provides redress in relation to the dismissal. If the circumstances of the particular dismissal give the dismissed person a right of redress under the Anti-discrimination Act but the person has not commenced proceedings under that Act, s 90 also precludes the Commission from determining the application in arbitration, if the person has not lodged a written undertaking not to proceed under the Anti-discrimination Act.
The applicant has not sought leave pursuant to s 169 of the IR Act. On the basis of the evidence in Ms Singer's affidavit it is not likely that leave would be granted.
The applicant has commenced the Applicant's Discrimination Complaint, which are proceedings under the AD Act. The AD Act provides redress to the applicant in relation to her dismissal. The applicant and the respondent have provided evidence that the Applicant's Discrimination Complaint is before NCAT. The applicant has not provided a written undertaking not to proceed with the Applicant's Discrimination Complaint, and has not provided any evidence or submissions to the Commission to dissuade the Commission from dismissing the Unfair Dismissal Application. Accordingly, I have no alternative but to dismiss the Unfair Dismissal Application.
A final matter is the proper description of the respondent in proceedings before the Industrial Relations Commission. The correct name of the respondent, for the purposes of industrial proceedings, is the Industrial Relations Secretary: GSE Act s 50. The title of the respondent for these proceedings will be amended to: "Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services)" and the title of the proceedings will therefore be "Basedow v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services)".
[3]
Orders
I make the following Orders:
1. The named respondent be amended to "Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services)".
2. The application by Loretta Nancy Basedow for relief from unfair dismissal filed on 15 January 2019 is dismissed.
N J Constant
Commissioner
[4]
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: 04 September 2019
Parties
Applicant/Plaintiff:
Basedow
Respondent/Defendant:
Industrial Relations Secretary on behalf of the Department of Communities and Justice