Bond v. Director-General of Education and Training [2008] NSWIRComm 1131

Brady v. Kennedy, trading as "Sardines" (1999) 91 IR 258 Griffith Ex-Services Club Limited v. Federated Liquor and Allied Industries Employees' Union of Australia (1993) 51 IR 186 Hurrell v. Queensland Cotton Corporation Limited (2003) 125 IR 145 CASES CITED: Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 Sebastian v. Roads and Traffic Authority of New South Wales (1995) 62 IR 190 Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [2008] NSWIRComm 1119

APPLICANT unrepresented LEGAL REPRESENTATIVES: RESPONDENT Stephen Flanigan

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Judith Anne Bond and the Director-General of Education and Training

Application under S.84 of the Industrial Relations Act, 1996

1 Mrs Judith Bond was employed as a primary school teacher by the Department of Education and Training. She commenced duty in early 1969 but resigned in the middle of 1970 at which time approval was given for her to teach casually and she did so. On Monday, 4 June, 2007 she was informed by the Department that certain allegations concerning her sexual misconduct had been made by her son and they were being investigated. She was placed temporarily on the list of teachers - "Not To Be Employed" [NTBE] - proscribing her continued employment as a teacher and she was not to be employed as a teacher pending the outcome of those investigations, viz:

"....I am writing to advise you that the allegations about your conduct are being investigated by Employee Performance and Conduct [EPAC]... You do not have to make any comment about this matter at this time. However, this is an opportunity to respond to the allegations if you wish to do so... In the circumstances, I have temporarily withdrawn approval for you to be employed as a casual teacher in Departmental schools... Any information which you provide will be taken into account in deciding whether or not further action is required, and may be used if disciplinary action is taken against you..."

2 Mrs Bond did respond with correspondence in reply to the investigating officer of the Department dated Wednesday, 13 June, 2007, emphasising her lengthy satisfactory teaching record and asserting that she was guilty of no wrongdoing. In a further letter dated Wednesday, 18 July, 2007 to the investigating officer Mrs Bond asked that the investigations be "...fast tracked as a matter of priority...", stating further that she needed "...day to day teaching for day to day living expenses...". In a subsequent letter dated Tuesday, 28 August, 2007 to EPAC, Mrs Bond's solicitor at that time clarified some of the issues contained in Mrs Bond's earlier letter and confirmed that:

"....our client wishes to ensure this matter is resolved as soon as possible as she wishes to have her name and character cleared and be able to return to classroom teaching..."

3 The Department was subsequently satisfied that five of the six allegations against Mrs Bond were sustained and on Friday, 21 September, 2007 her solicitor was informed that consideration was being given to the permanent withdrawal of her teaching approval and her permanent retention on the NTBE list. In the letter Mrs Bond was invited to respond with written submissions concerning the matter within fourteen days. Mrs Bond's solicitor wrote a letter on Wednesday, 3 October, 2007 requesting an extension of time for those submissions and the Department agreed to that request. Ultimately, the response from Mrs Bond's solicitor in a letter dated Monday, 15 October, 2007 was to deny the relevance of some of the allegations as far as Mrs Bond's employment as a teacher was concerned and to challenge other allegations made against her.

4 On Monday, 12 November, 2007 the Department wrote to Mrs Bond and forwarded that letter to her solicitor at that time. That letter indicated that:

"....I have reviewed all the information available, including your responses and the responses made on your behalf by your legal representatives and have determined that your name be placed on the list of people who are not to be employed in any capacity in New South Wales Department of Education and Training, including schools and TAFE institutes, without reference to the Director of Staffing Services... In accordance with the Ombudsman Act, 1974, all relevant documentation is to be forwarded to the New South Wales Ombudsman's Child Protection Team. An officer of that office will assess whether the matter was properly investigated and appropriate action taken.

Having completed these employment proceedings, I am required to consider whether the allegations amount to reportable conduct... This being the case, in line with employer's responsibilities as required by legislation, your name has been referred to the Commission for Children and Young People [CCYP] as a Category 1 report..."

5 In the light of the conclusions it has reached concerning the allegations, the Department was under an obligation to notify the CCYP of the allegations against Mrs Bond. Pursuant to S.33 of the 1998 Commission for Children and Young People Act, the definition of "reportable conduct" includes:

"....any sexual offence, or sexual misconduct, committed against, with or in the presence of a child..."

"It is the duty of an employer to notify the (CCYP) of the name and other identifying particulars of any employee against whom relevant employment proceedings have been completed by the employer, other than proceedings:

(a) in which a finding is made that the alleged reportable conduct or the alleged commission of an act of violence, did not occur, or

(b) in which a finding is made that the allegation in respect of which the proceedings were brought were vexatious or misconceived."

"For the purpose of this Part, relevant employment proceedings are taken to have been completed when a finding has been made by the employer as to whether the alleged reportable conduct or the alleged commission of an act of violence, occurred or may have occurred, and a decision has been made by the employer as to what action (if any) is to be taken against the employee in respect of the finding."

The effect is that Mrs Bond's placement as a Category 1 employee as a result of the Department's report to the CCYP places her in a position that she may not be engaged in employment involving children.

6 On Tuesday, 13 November, 2008 Mrs Bond was informed by her solicitor of the contents of the Department's letter of Monday, 12 November, 2008. She claimed some confusion as to her status, ie whether she had been dismissed or not, and she wrote to the Department on Thursday, 22 November, 2007, viz:

"...I request that you re-enlist my name for employment in the New South Department of Education. I am seeking a review of the investigation... I have worked in the Education Department in New South Wales, South Australia and Victoria, on and off, for forty two years and I have never had any misconduct nor any report against me. I have maintained and met professional standards in my teaching profession. I have not caused physical harm to any student or my son. When working with children, I am very conscious and aware to protect children..."

7 Mrs Bond's request for a further review of the matter was subsequently rejected by the Department. She received advise that she could make an application for access to her file and she did so on Thursday, 23 November, 2007. She was also made aware that she could approach the Ombudsman or take action before the Administrative Decisions Tribunal [ADT]. She has claimed that "...no one knew where to go with the matter...". No one appears to have considered an application to the Commission under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act.

8 On Wednesday, 12 December, 2007 Mrs Bond was informed that her approval to teach had been withdrawn and her name was to be retained on the NTBE list. Subsequently, the Department agreed for an independent review into Mrs Bond's employment status and confirmed that to the solicitor now representing Mrs Bond in a letter dated Tuesday, 4 March, 2008. On Tuesday, 1 April, 2008 Mrs Bond was informed that her appeal to that independent body was unsuccessful and that no further consideration would be given to any further requests for a review of her employment status.

9 As I indicated earlier in this preliminary decision, at no time was Mrs Bond informed by the Department (or, it appears, her own legal advisers at that time) that she may also have certain remedies under the unfair dismissal regime of Part 6 of the State IR Act. She has made requests to politicians. She has written to the CCYP and the Ombudsman. On Thursday, 29 May, 2008 she lodged an application with the ADT but was subsequently informed by her solicitor that, since she had not been charged with any criminal offence, the matter may not be put before the ADT. She subsequently discontinued those proceedings on Wednesday, 4 June, 2008.

10 On Tuesday, 1 July, 2008 Mrs Bond asserts that she became aware of her rights under Part 6 and on that date she lodged an application in which she sought her reinstatement or, alternatively, monetary compensation in lieu thereof. Bearing in mind that Mrs Bond had been placed on the NTBE list since Monday, 4 June, 2007 and that position was confirmed on Wednesday, 12 December, 2008, her Part 6 application is substantially outside the 21 day time limit prescribed by S.85(1) and the Department has challenged it on that basis.

"Any application under this Part must be made not later than 21 days after the dismissal."

Nevertheless, under S.85(3) members of the Commission hold a discretion to accept an out-of-time Part 6 application if they consider that there is sufficient reasons for doing so [ Brady v. Kennedy, trading as "Sardines" (1999) 91 IR 258]. S.85(3) is in the following terms:

"The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to:

(a) the reason for, and the length of, the delay in making the application, and

(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and

(c) the conduct of the employer relating to the dismissal."

12 Mrs Bond's Part 6 application was allocated to McKenna C who set the matter down for conciliation in conferences on Thursday, 10 July, 2008 and Monday, 21 July, 2008. Ultimately, the matter was set down for arbitration on the threshold issue - whether to admit Mrs Bond's out-of-time Part 6 application to go forward to arbitration - before McKenna C on Monday, 29 September, 2008 but Mrs Bond requested an adjournment of those proceedings and that was granted by Sams DP. The hearing on that threshold issue was set down instead on Monday, 24 November, 2008 before McKenna C but it was re-allocated to me for the hearing on that day due to the unexpected absence of McKenna C at that time.

13 In those proceedings on Monday, 24 November, 2008 Mr Flannigan represented the Department. Mr Magee, who had been briefed to represent Mrs Bond in the proceedings, announced that he and the solicitor representing her had now ceased to act for her and he tendered a notice to that effect in the proceedings. I gave Mr Magee permission to withdraw from the proceedings. Mrs Bond indicated that she was seeking other legal representation. She indicated that she was prepared to proceed to a hearing on the out-of-time aspect of her Part 6 claim but I expressed some reservations to move in that respect to determine an aspect that so vitally affected her entitlements under Part 6 ahead of proper legal representation in the hearing and, ultimately, I adjourned the proceedings, with the consent of the parties, for hearing on the out-of-time aspect of her claim on Thursday, 4 December, 2008. Mr Flannigan indicated that, in view of the history of this matter, he was not prepared to accept any further adjournments of the matter.

14 Indeed, the history of this matter has been somewhat tortuous. Initially, directions by McKenna C in accordance with Practice Direction No.17 was that Mrs Bond provide written statements in support of her Part 6 application (including material relating to the fact that her claim was made out-of-time) by no later than Monday, 25 August, 2008. Solicitors whom she had subsequently briefed to represent her wrote on Tuesday, 19 August, 2008 requested, with the consent of the Department, further time - Thursday, 28 August, 2008 - to file and serve evidentiary material on her behalf. That material was lodged on Wednesday, 27 August, 2008. The directions were varied by consent.

15 The hearing of arguments over whether or not to admit the out-of-time claim was scheduled for Monday, 29 September, 2008. However, on Tuesday, 23 September, 2008 her solicitor at that time ceased to act for her and she wrote on Friday, 26 September, 2008 seeking an adjournment of the matter. That adjournment was granted by Sams DP and the file returned to McKenna C to set a new date for the hearing of the threshold issue. Mrs Bond obtained new solicitors to represent her interests in the hearing and on Tuesday, 14 October, 2008 those new solicitors lodged a notice of appearance in the proceedings, seeking further time for Mrs Bond to respond to material provided by the Department on the out-of-time aspect of the Part 6 application.

16 Walton J, the Vice President of the Commission, in chambers on Tuesday, 14 October, 2008 agreed to the variation of the directions already made with Mrs Bond's Part 6 application on the following terms:

"....The applicant shall file and serve any response on or before Friday, 31 October, 2008. Any further extension should be accompanied by a notice of motion and affidavit in support..."

The hearing of the threshold issue was to occur before McKenna C on Monday, 24 November, 2008 but, as I indicated earlier in this decision, that did not occur. The matter was reallocated to me and I adjourned the proceedings again on having been informed that Mrs Bond's new solicitor had also ceased to act for her.

17 Therefore on Monday, 24 November, 2008 when I proposed a further adjournment of the matter I did so with some reservations concerning further extending this long outstanding matter. But I did so in fairness to Mrs Bond. On Monday, 1 December, 2008 a notice of a change of solicitor for Mrs Bond was lodged by Mr Barwick. However, when the matter resumed before me on Thursday, 4 December, 2008 Mr Barwick announced that he was no longer representing her and he withdrew from the proceedings. I was not prepared for any further adjournment of the proceedings and Mrs Bond appeared content to proceed, relying essentially on the material previously supplied by her legal representatives insofar as it touched on the out-of-time issue.

18 Mr Flannigan has primarily argued that, in fact, Mrs Bond's Part 6 application is beyond jurisdiction. He asserts, whilst she has been placed on the NTBE list and has been classified as Category 1 by the CCYP, she has not actually been dismissed. However, the fact remains that whilst she remains on the NTBE list and is classed as Category 1, she will not be engaged as a casual teacher by the Department and she has not been since Monday, 4 June, 2007 when she was informed that she was to be placed on the NTBE list pending further investigation of the allegations against her. Mr Flannigan conceded that it was open to argue that Mrs Bond had been constructively dismissed but it seems to me that the actions of the Department were tantamount to a dismissal of Mrs Bond effective from Wednesday, 12 December, 2008 when her permanent placement on the NTBE list was confirmed to her.

19 Mrs Bond has indicated in the written statement that it was not until Monday, 30 June, 2008 that she had been made aware that she may have a remedy under Part 6. Her legal advisers at that time and the Department had not informed her of her rights in that respect. She had nevertheless made frequent unfruitful requests through her legal advisers for a review of the Department's decision on the matter, believing that to be her only option to challenge the Department's decision to place her permanently on the NTBE list.

20 As far as the aborted proceedings in the ADT are concerned, Mrs Bond asserts that she withdrew from those proceedings on being informed that, since she had not been charged with any offence, she may not proceed further with her claims. I understand that S.9(1) of the 1998 Child Protection (Prohibited Employment) Act provides for applications to a "relevant tribunal" (including the Commission) for an order permitting an applicant guilty of a "serious sex offence", as defined in S.3, to be engaged in child-related employment. Whilst it is true that Mrs Bond has not been charged with any "serious sex offence", the allegations against her remained "reportable conduct" within the meaning of S.33 of the CCYP Act and have deprived her of her employment as a teacher. It is in that light that the Part 6 application has relevance and importance to her - to provide a forum for her to seek to clear her name.

21 I do not believe that the Department was under any obligation to inform Mrs Bond of her rights under Part 6, although it may have been prudent that it also draw her attention to her rights in that regard. She had her own legal representatives to assist her in exploring every avenue available to her over the termination of her services and Part 6 was not one of the options that they chose to explore. As I indicated in my unreported preliminary decision of Wednesday, 12 November, 2008 in Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [Matter No.IRC 1409 of 2008 at p.5]

"...The rights of employees to pursue claims for unfair dismissal, and the 21 day time limit for such claims, have been a feature of the industrial landscape for at least seventeen years. I would therefore expect that by this time the general nature of the unfair dismissal regime would be common knowledge. But the legal maxim ignorantia juris quod quisque scire tenetur non excusat (ie ignorance is no defence) has not been accepted as a factor in the Part 6 jurisdiction [ Hurrell v. Queensland Cotton Corporation Limited (2003) 125 IR 145 at p.148.

That having been said, I would still regard, as the prima facie position, that Part 6 applicants be obliged to follow the 21 day time limit prescribed by S.85(1): it is a clear instruction of the legislature that such a time limit be imposed and to depart from it there must be some material upon which to exercise the discretion in favour of an out-of-time Part 6 applicant [ Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 at p.5]. Otherwise the time limit in S.85(1) would be meaningless..."

22 Nevertheless, the task before me in these proceedings is to determine whether it is appropriate that Mrs Bond be denied her access to the Part 6 jurisdiction to have her claims determined or, alternatively, whether the Department would be unnecessarily inconvenienced by permitting her Part 6 application to go forward to hearing. As I see the position, in exercising my discretion under S.85(3) it remains essentially a question of determining where the balance of convenience lays for the parties [Griffith Ex-Services Club Limited v. Federated Liquor and Allied Industries Employees' Union of Australia (1993) 51 IR 186 at p.191]. As I indicated in Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 at p.101:

"...In my view, it is not appropriate to adopt a restrictive approach in exercising my discretion under S.85(3). It is a question of balancing the competing interests of (the applicant) and (the respondent)…"

23 In my opinion, the balance of convenience favours Mrs Bond in this case and I consider I should permit her Part 6 application to go forward to hearing. She will certainly be prejudiced if her Part 6 application was aborted without his being given the opportunity available to her by virtue of Part 6 to defend herself from the serious allegations made against her, which have deprived her of work which she has performed for 42 years. By comparison, the inconvenience to the Department would be minimum, in my opinion.

24 I do not believe that there can be any doubts of Mrs Bond's determination to press for her reinstatement as a teacher. Almost from the outset, the Department was on notice that Mrs Bond was actively pursuing a claim for her reinstatement, albeit her actions in that respect were ultimately unsuccessful. For instance, as far back as her letter to EPAC on 18 July, 2007 seeking the "fast tracking" of the investigation of the allegations against her, Mrs Bond had indicated she needed "...day to day teaching for day to day living expenses...". And in the letter of Tuesday, 28 August, 2007 to EPAC Mrs Bond's solicitor referred to Mrs Bond's wish to "...be able to return to classroom teaching...".

25 What does still concern me is the practical outcome of any decision to preserve Mrs Bond's rights under Part 6, bearing in mind the lengthy history of this matter which I have outlined earlier in this decision. I do accept that the allegations against Mrs Bond have already been the subject of apparently very detailed investigation within the Department and by an external, independent body. It may therefore be the case that Mrs Bond's Part 6 application does no more than rake over dead coals. That would not be in her interests any more than it would be in the interests of the Department.

26 I note in that respect the comments of the Full Bench of the Commission (Wright J - President, Walton J - Vice President and McKenna C) in Hurrell v. Queensland Cotton Corporation Limited (at pp.151 and 152):

"...In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospect of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a 'sufficient reason' has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits.

Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion... Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary consideration: Sebastian v. Roads and Traffic Authority of New South Wales (1995) 62 IR 190 at pp.193 to 194. It should be emphasized, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature..."

Whether to proceed with her Part 6 application must remain essentially a matter for Mrs Bond and those persons who give her legal advice. I do not believe that it should deprive her of the additional right she has by virtue of Part 6.

27 In those circumstances, I propose to exercise my discretion under S.85(3) in favour of Mrs Bond's Part 6 application and permit it to go forward to arbitration. I will set this matter down for a mention on Monday, 2 February, 2009 (at 10.00am) for further programming of the matter.

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