Boncales v Secretary, Department of Education [2025] NSWIRComm 1017

(1) an affidavit of herself dated 10 March 2025;

(2) a supplementary affidavit of 14 March 2025; and

(3) a statement of Mr Sharma of 24 March 2025.

1. Also, there have been outlines of submissions filed by the applicant, on 24 March 2025.
2. There has been filed by the respondent in these proceedings a statement of Belinda Wall. Ms Wall was the decision maker in relation to what was to be the threatened dismissal of the applicant.
3. In addition to that witness statement, the respondent has also filed an outline of submissions on 17 March 2025 and handed up today some further submissions as to credit.
4. The matter initially came before the Commission for hearing on 31 March 2025 during which each of the parties' witnesses were cross-examined.
5. Today I have received oral submissions from both the applicant's representative, Mr Sharma and also Mr Britt of counsel on behalf of the respondent.
6. The principles in relation to the granting of relief under s 89(7) of the Act are conveniently set out in the outline of submissions of the respondent, at paragraphs 6 through to 9 as follows (footnotes omitted):

6. The Commission in making orders pursuant to s.89(7) of the IR Act applies the principles generally applicable to the granting of interlocutory injunctions, namely:

(i) whether there is a serious question to be tried; and

(ii) where the balance of convenience lies.

7. The Applicant, for interim relief to be granted, needs to establish that there is sufficient likelihood of success to justify the preservation of the status quo and a range of considerations may be relevant to a consideration of the harm which may be suffered by an employee if dismissed.

8. In considering whether there is a prima facie case the Commission must determine 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; it is sufficient that the Applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the final proceedings. How strong the probability needs to be depends upon the nature of the rights the Applicant asserts and the practical consequences likely to flow from the order she seeks.

9. The Commission also needs to consider, if the interim relief is not granted, whether the Applicant is likely to suffer injury for which damages will not be an adequate remedy, and whether the Applicant has shown that the balance of convenience favours the granting of the interim relief. That is, 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 application was granted. That is, the balance of convenience test.

1. Thus the two key considerations for the Commission to exercise its discretion whether to make an order pursuant to s 89(7) of the Act is whether there is in existence a serious question to be tried or, put another way, prima facie case.
2. Secondly, where does the balance of convenience lie? Or, as put by Boland J Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woefl v Department of Attorney-General and Justice, Corrections, Corrective Services New South Wales [2012] NSWIRComm 33, irreparable damage that was occasioned to the applicant.
3. During the course of the oral submissions today, and I pause there for a moment and say that I have considered all of the evidence, I have considered all of the written submissions, and I have considered all of the oral submissions, and I will not repeat what is contained in all of those.
4. I refer to an exchange between myself and counsel for the respondent, Mr Britt, in which I asked Mr Britt, "Is it necessary for the Commission to firstly deal with the question of prima facie case prior to balance of convenience?" Mr Britt's response to that was, effectively, there is no precedent that says as much and in circumstances where it is appropriate that can be done. I agree with that statement of Mr Britt.
5. Following this exchange, during the luncheon adjournment today of one hour I tried to find any case which stood for authority that you must consider it. It is the case that it is usually done on firstly considering prima facie case and then balance of convenience, however there was no authority I found which provided that it must occur in this order.
6. I now turn to deal with the question of balance of convenience or, put another way, irreparable damage.
7. Mr Sharma, on behalf of his wife, put before the Commission a number of bases upon which balance of convenience or, in another term, the irreparable damage that could be occasioned to the applicant should the orders not be made and the subsequent final hearing of an unfair dismissal claim fall in her favour. One of those is effectively damage to credit. In relation to the stated irreparable damage, in my view that is not irreparable damage in that a positive finding for the applicant on a final hearing would undo any reputational damage that would be occasioned to the applicant.
8. There were other references made in terms of balance of convenience, ie irreparable damage, from the bar table concerning the purported ability or inability, to provide for the applicant's children, including payment of medical bills. Unfortunately for the applicant, there is not one scintilla of evidence that supports that statement and, unfortunately, in the absence of evidence, I cannot find that that element that is said to be irreparable damage is made out.
9. Another one is premature ending of a career, which is one again I find is not something that constitutes irreparable damage.
10. In the circumstances, I find that the applicant has not been able to make out there is any irreparable damage which falls to her. That does not necessarily mean automatically that the case falls against the applicant and her application is dismissed.
11. I also need to consider any irreparable damage which may be occasioned to the respondent or, really, to the public at large. I have heard from the respondent in particular the concern that it has about placing the applicant back in the workplace, in circumstances where there has been a finding that she is not competent and they have obligations, as does this Commission, pursuant to s 5A of the Teaching Services Act 1980 (NSW). I accept this submission that there is a potential for irreparable damage, ie harm in the nature of substandard teaching services being provided for children if it is the case that ultimately the respondent is correct and the application is dismissed.
12. There have been some other bases raised by the respondent in terms of irreparable damage, one of those being the inability to advertise or otherwise fill the position which was held by Ms Boncales. That is not a factor which is of sufficient substance to warrant the balance of convenience falling to the respondent; similarly with respect to the level of pay that would be made to the applicant should the order not be made.
13. Overall, I find that the balance of convenience does fall in favour of the respondent, which effectively means that the application for interlocutory relief pursuant to s 89(7) Act to stop the threatened dismissal of the applicant is dismissed.