Boncales v Secretary, Department of Education

1. As to the first order, namely an order that I stay the decision of the Commissioner, I accept the submission of the respondent that there is no utility to the making of such an order. To stay the decision of the Commissioner is to stay a decision to refuse an application. Staying that order will not in and of itself provide any relief, and for that reason I do not further consider that proposed order.
2. The second proposed order seeks an injunction preventing the dismissal of the applicant. In other words, it seeks relief of the nature that was sought and rejected by the Commissioner.
3. There is a real question as to whether the Industrial Relations Act provides me with the power to grant that relief. Section 190 of the Act provides me with the power to stay the decision that is the subject of appeal. Section 190A provides me with the further power to deal with "any interlocutory application in the appeal". For my part, it is not immediately clear to me that the latter power grants me a power to, in effect, grant the underlying relief that was sought below.
4. I accept that there is an argument that arises from the fact that if I do not grant order two, the effect will be to render the appeal otiose and that there is a line of authority to support the proposition that a court has an 'inherent', or perhaps better expressed as an 'implied' power to preserve the status quo to allow a matter to be heard. The difficulty of course is that I am not sitting as the Court, I am sitting as a tribunal whose powers are expressed and limited to those set out in the Industrial Relations Act, and such other legislation that confers jurisdiction upon us.
5. The absence of any express words providing me with a power to grant a positive injunction in the context of a stay application leads me to question whether I have that power notwithstanding the line of authority that I mentioned earlier.
6. In the absence of such a power the only alternative in a situation that we have before us, namely an appeal commenced urgently to seek to overturn a decision and prevent a dismissal, would be for me, as the head of jurisdiction, to convene a full bench and hear the appeal on an urgent basis. I accept that this is an available course, but for the reasons that are about to follow, one that I will not pursue.
7. The reason for that is that even if I had the power to make an order preventing the dismissal being effected, it is not a power that I would exercise, given my consideration of the prospects of success and the balance of convenience. I turn to those matters.
8. Dealing first with the prospects of success, as Ms Edwards for the respondent identified, this is an appeal from an interlocutory decision. There is no appeal as of right. In order to appeal a decision leave needs to be granted, and this Commission is slow to grant leave in respect of an appeal from an interlocutory decision. In order for leave to be granted there needs to be a view formed by a full bench that the matter is of such importance that in the public interest leave should be granted.
9. Whilst this matter is clearly of great importance to the applicant, nothing has been put before me to suggest that it is likely that a full bench would form a view that it is in the public interest that leave would be granted because of the wider import of these proceedings, or because there is an error of the sort that is of such significance that in the interests of justice leave would need to be granted.
10. Further, in my view the prospects of success of the appeal are not strong, given the matters that are relied upon by the applicant. The first of those matters was to identify that the evidence that the respondent put before the Commissioner at first instance was evidence that could be demonstrated at a final hearing to be incorrect, and specific reference was made to the evidence of Ms Belinda Wall in that regard.
11. Second, reliance was placed on the fact that there was material before the Commissioner to identify that the period of time during which the applicant's performance was assessed was a period of time during which she was having to deal with what the applicant described as a violent workplace environment which necessarily affected her capacity to achieve satisfactory performance, and that accordingly at any final hearing there would be good prospects of satisfying the Commission that that finding of inadequate performance would not be sufficient to justify termination when balanced against her previous 20 years of asserted exemplary behaviour.
12. As to those matters, I note that they were matters put before the Commissioner. I do note that the Commissioner determined not to say anything as to the prospects of success. Arguably, that was an error, noting that he properly acknowledged that the things he needed to consider were both the prospects of success and the balance of convenience.
13. I reject the submission of the applicant that there was some error in the order in which he dealt with those two matters. I would accept the Commissioner was correct in ultimately identifying there is no particular importance as to which order they are dealt with. However, it was arguably erroneous for the Commissioner to not deal with and make findings as to prospects of success.
14. I infer that the Commissioner proceeded to determine the matter on the basis that the applicant could make out a prima facie case, and accordingly he could then move appropriately to consider the balance of convenience.
15. In other words, the arguable error in not making a specific finding as to the prospects of success did not affect the outcome of the matter. Even if the applicant had or was able to identify all three of the matters that were relied upon today, namely: the asserted incorrect evidence of Ms Wall; the asserted violent work health and safety environment that prevailed during which the period of assessment was conducted; and the comparative difference in outcome in the way in which the applicant was treated and the way in which the applicant in the case of Buchannan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 was treated, that would not have altered the outcome below and as such does not provide a sufficient basis to find that a full bench would be likely to grant leave to appeal in light of that apparent error.
16. Turning then to balance of convenience, the matters that were relied upon today by Mr Sharma who appeared on behalf of the applicant were, first, that there would be a period of loss of income and that the loss of income would cause, in his submission, "irreparable harm" because it would mean that the child of the family who has a disability and requires treatment in the form of speech and occupational therapy, would then not be able to access such therapy.
17. Further, Mr Sharma identified that the applicant would be unable to provide money to the other persons who live in the house which he described as "the in-laws", who do not have themselves a separate source of income but are the owners of the property, and that they too would then suffer harm.
18. As to that, Mr Sharma relied upon evidence of a bank statement which showed, as at 14 April 2025, a sum of $676.75 being the last recorded date and evidence of a schedule of what appeared to be expected expenses.
19. That evidence is not, in and of itself, sufficient to demonstrate significant irreparable harm that might tip the balance of convenience in favour of making an order. That is because the evidence does not allow me to properly understand the applicant's financial affairs. I do not have material before me to understand what other sources of income the applicant may be able to access, such as, Centrelink payments, disability support pension payments in respect of the child, if any, capacity to obtain on an emergency basis or otherwise funding from the National Disability Insurance Scheme, access to obtain funds from the in laws, which might include evidence as to their capacity to raise funds against the equity of the home, whether there are other bank accounts and the like, such that I can be satisfied that there is an incapacity to pay for any essential medical treatment.
20. As to that, I add that there is no evidence before me that the medical treatment in question is essential in the sense that it cannot be postponed or that there is some significant harm that would be caused if it was not able to be provided for a relevant period.
21. Implicit in what I have dealt with is something which I should make explicit, namely, that any submission that the harm in question is irreparable needs to deal with the fact that upon the applicant's dismissal, she will have the capacity to bring an application under s 83 of the Act seeking relief for unfair dismissal. If ultimately the merits of her case which are relied upon by Mr Sharma in respect of the first issue, are indeed sufficient to allow her to succeed in that application, she will then be able to seek relief which would include the potential of reinstatement and full backpay.
22. In those circumstances, much of the submissions that were put to me as to the harm being irreparable has to be understood to be submissions which rise and fall on the suggestion that, notwithstanding that the applicant contends she has a strong case and will ultimately win and be able to obtain compensation and/or reinstatement and backpay, for that temporary period between now and then there is a necessity for her to continue to be paid an income.
23. For the reasons I have identified, the evidence before me is not sufficient to allow me to form a view that there is in fact such necessity.
24. It was also put before me that the applicant will, if she is not able to continue to be employed as a teacher, lose skills. As to that, first, it was also conveyed to me that she is not currently working and was on workers' compensation. I have no evidence before me as to whether she would, in fact, be doing teaching work if she was reinstated. Second, I do not accept the proposition that someone who has taught for 20 years will, in fact, as a result of being unable to teach for some period of months, lose such skills to a level which would lead to a conclusion that it would cause significant harm in that respect.
25. Before the Commissioner, and possibly before me, a further argument was put that there would be damage to the applicant's reputation if she was to be dismissed.
26. I accept that argument and I accept that ultimately any successful claim for reinstatement may not fully cure that harm, and that is a matter which I accept goes into the mix.
27. Finally in that regard, Mr Sharma put submissions in reply as to the fact that the decision to dismiss is harsh in the circumstances, and Mr Sharma identified the nature of those circumstances. I just reiterate what I have already identified that if, indeed, a dismissal is harsh then so much will be determined in any unfair dismissal proceeding, and any harm caused as to that is able to be addressed by subsequent proceedings.
28. I accept the respondent's submissions as to balance of convenience insofar as the harm identified by Ms Edwards that would be caused to it. I identify the harm as follows:

(1) First, the respondent would have to continue to pay someone;

(2) Second, the respondent would be required to continue to employ a person it has assessed as not able to adequately provide appropriate teaching services; and

(3) Third, the respondent will restrict its capacity to fill that position on an ongoing basis.

1. None of those three things are overwhelming reasons, but when taken into the balance, I accept the respondent's submission that the balance of convenience falls against making any interlocutory order if I had the power to make it.
2. It is no small thing to convince this Commission to stay a decision that a respondent has made following a full process in circumstances where the applicant can challenge that decision by way of an unfair dismissal proceeding.
3. In conclusion, on the materials before me, if I had the power to do so, I would not make an interlocutory order. I am not minded to constitute a full bench on an urgent basis. I do not think there is sufficient material before me that would allow me to consider that there are any real prospects of this decision being overturned or, indeed, leave being granted.
4. On that basis I dismiss the motion and refuse the application for a stay.

1. The application for a stay and the notice of motion is dismissed.