Burrows v Attorney General's Department of NSW

Industrial Relations Act 1996 LEGISLATION CITED: Public Sector Employment and Management Act 2002 Public Sector Employment and Management (General) Regulation 1996

CASES CITED: B.P. Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266

HEARING DATES: 30 December 2007, 26 February 2008

APPLICANT: Ms S Burrows, unrepresented

LEGAL REPRESENTATIVES: RESPONDENT: Ms E Brus of counsel SOLICITORS: IV Knight Crown Solicitor

SUZANNE BURROWS v ATTORNEY GENERAL'S DEPARTMENT OF NSW

Application by Suzanne Burrows for declaratory relief under section 154 of the Industrial Relations Act 1996

1 In these proceedings the applicant, Ms Burrows, a former employee of the respondent, the Attorney General's Department of New South Wales, seeks declaratory relief pursuant to s 154 of the Industrial Relations Act 1996 ('the Act'). The application was brought in November 2007, after a decision made by the Director General of the Department, Mr Glanfield, that from Monday 12 November 2007, Ms Burrows should relocate to new Departmental offices located at Parramatta. Ms Burrows was then employed as a sound reporter, located in the Department's Sydney CBD offices. Ms Burrows refused to relocate and commenced these proceedings. Her employment was terminated in December 2007, as the result of a decision made by Mr Glanfield, at the conclusion of a disciplinary process, which had been underway for some time. Ms Burrows has challenged that dismissal in other proceedings and also continued to pursue her application in these proceedings. 2 The orders sought were:

The Applicant is, and at all times, has been continuously employed by the Respondent and/or the Minister, since 16 August 1993;

The Applicant is entitled to be able to perform her duties as a sound reporter in the CBD of Sydney, in accordance with the terms of her employment;

The Respondent ceases immediately it efforts to force the Applicant to work at a centre that is not within the CBD of Sydney.

The Applicant is entitled to work in the manner and location as determined by HealthQuest on 27 April 2007;

The Applicant is entitled to perform her duties as a sound reporter in the CBD without financial, emotional and physical duress, distress and detriment.

The Applicant is entitled to be paid her usual salary and associated benefits and/or entitlements from 12 November 2007.

The Applicant is entitled to the payment of Interest pursuant to s372 of the Industrial Relations Act 1966(sic) in relation to all monies payable to the Applicant;

The Respondent is to comply with the Award and related statutory requirements, policies and procedures that affect the Applicant worker; 3 Evidence was given by Ms Burrows and various documents were tendered. In its case the respondent called evidence from Mr Gregory Walker, Director, Reporting Services Branch, Attorney General's Department of NSW and Mr Michael Baldi, Assistant Director Employee Relations of the Attorney General's Department of NSW. 4 Section 154 of the Act provides:

(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 5 The respondent did not challenge the Court's jurisdiction to make the orders sought. It argued, however, in written submissions filed before the final day of the hearing, that in practical terms, orders 1-5 could only be made if there was an ongoing employment relationship on foot. Orders 6 and 7 had to be confined to the period between 12 November, when payments to Ms Burrows ceased, and 11 December, when her employment terminated. As to order 8, it was argued that the applicable requirements had been complied with by the respondent. 6 In her submissions, Ms Burrows confirmed that the question of whether she should be reinstated to her former employment, was now to be determined in the proceedings she had commenced before the Government and Related Employees Appeal Tribunal ('GREAT'). She addressed various of the matters raised in the respondent's submissions, as well as explaining why it was that she had refused to comply with the direction to relocate to Parramatta, which she viewed as inconsistent with her contract of employment, unfair and unreasonable. Ms Burrows held strong views as to the inappropriateness of her treatment by the respondent, throughout her employment and the unfairness of various decisions made over the course of that employment. It is unnecessary to outline the details of the submissions advanced as to those matters.

The background to the application 7 Ms Burrows claimed that she had the right to perform the duties of a sound reporter in the Sydney CBD, despite the Director General's direction that she relocate to Parramatta. That direction was given in writing on 1 November, when Mr Glanfield said:

I have determined that upon the relocation of the Department's corporate headquarters to Parramatta, which includes the Director's Office you will remain attached to that office under the supervision of the Director or his delegate and that you may be given alternate duties to that of a Sound Reporter. You will be required to travel to Parramatta when the Director's office is relocated in November 2007. 8 On 5 November, Ms Burrows replied, rejecting the direction, saying:

I received your letter dated 01 November 2007 on 02 November 2007. The unsatisfactory manner in which this task was undertaken has been conveyed to Ms Kidston and Mr Baldi.

I reject your "determination" forcing me to relocate to Parramatta from an unknown date, to an unknown supervisor and to unknown duties. Your determination is contrary to all departmental policies and legislative guidelines relating to equity and discrimination. The notions of procedural fairness and natural justice are totally absent as they always have been in matters initiated by the department relating to myself. I note that your letter omitted any reference to any Act or policy that supports your intended action of forced removal.

In addition, I also reject your forced relocation for the following reasons:

1. I was employed to work as a sound reporter in the CBD only. I have never sought a transfer to any other area outside of the CBD. Paul Cutbush did attempt to force me to Campbelltown and Barbara Flett also attempted to force me to Liverpool. Both actions were contrary to the Workers Compensation Act and contravened the department's own guidelines re secondment and transfer. None were proceeded with.

2. I have responsibilities to my family and recently moved to another inner-city location to be nearer my daughter and grandchildren, aged 3 months to 11 years. As with most people, I also have a responsibility to my aged mother. Your forced relocation would mean I would have to abrogate those responsibilities and I do not intend to do so.

3. Your forced relocation also is another term for a financial penalty to the amount of some $200 per month in additional transport costs not to mention the additional 3-4 hours travelling time per day. 4. Your forced relocation also means that I would have to locate and seek out new treating medical personnel, such as GP, specialists and physiotherapist for long existing work related injuries - and most of those injuries could have been prevented if the department had followed its own OH&S policies.

5. Your intention to force me to undertake alternate duties means that once again, the department is trying to undermine my progress with previous return to work plans and injury management. I note that you have chosen not to provide me with any further detail of those alternate duties nor any form of position description.

Suzanne Burrows 9 In his reply of 7 November, Mr Glanfield refused to alter his decision. The Department's corporate headquarters were relocating to Parramatta on 12 November and Ms Burrows was also required to relocate. Mr Glanfield said:

I refer to your letter dated 5 November 2007 in which you raise issues concerning my decision to move you to Parramatta upon the relocation of the Department's corporate headquarters that includes the Director's Office, Reporting Services Branch (RSB).

I have considered the contents of your letter, however, my decision remains unchanged. The Director's Office, RSB will be relocating to Parramatta on Monday, 12 November 2007 and you are directed to commence duties on that day at that location. The Director's Office, RSB will be located at Level 3, Parramatta Justice Precinct, 160 Marsden Street, Parramatta.

In my letter to you on 1 November 2007 I indicated that you would be supervised by the Director, RSB or his delegate. The Director or delegate will be required to provide you with meaningful work.

I have discretion whilst determining a disciplinary investigation to place the officer who is under investigation on alternative duties or duties at another location (Clause 11.1 of Procedural Guidelines for dealing with Misconduct as a disciplinary matter). When I initiated the disciplinary investigation you were provided with a copy of those guidelines and I used my discretion to continue an arrangement by Mr Walter Cellich to place you at an alternate work location.

In a prior letter to you dated 27 June 2007 I informed you that the investigation was being conducted in accordance with s46(1)(a) of the Public Sector Employment and Management Act 2002 (PSEM Act) and that should I determine that you engaged in misconduct I may consider taking disciplinary action against you under s46 of the PSEM Act. That letter also provided you with the possible disciplinary actions I may take that range from caution to dismissal.

Should you have any further inquiries concerning your alternate work location of the disciplinary investigation, please contact Ms Mary McGrath, Human Resources Branch on (02) 9*** **** or by email: ****

A copy of this letter has been provided to Mr Greg Walker, Director, RSB.

Laurie Glanfield Director General 10 At the time of these events, Ms Burrows was working on level 8 of the Goodsell Building, under the supervision of Mr Walker, the respondent's Director, Reporting Services Branch. Mr Walker had been appointed to that position some three weeks earlier. The evidence did not explore the particular duties Ms Burrows was then performing. Ms Burrows had been working on level 8, reporting to Mr Walker's predecessor, since November 2006, during the investigation of a grievance lodged against Ms Burrows by her former supervisor. That arrangement was continued during the period that disciplinary proceedings which resulted from that investigation, were brought against Ms Burrows. In June 2007, Ms Burrows had been advised of the disciplinary investigation which was to be conducted and that until it was complete, that she was to remain attached to the Director's Office. 11 There was no dispute that Mr Walker and the Reporting Services Branch staff formerly located on level 8 of the Goodsell Building, were amongst those who were relocated to Parramatta. At the time Ms Burrows was directed to relocate, a finding of misconduct had been made against her in the disciplinary proceedings, but no decision on penalty had been made by Mr Glanfield. 12 Ms Burrows complained that the respondent had failed to conduct the disciplinary proceedings in accordance with the applicable policies and guidelines, although the details of those complaints were not explored. She has challenged the fairness of her dismissal before the Government and Related Employees Appeal Tribunal. That application has yet to be heard. 13 Mr Glanfield's direction to Ms Burrows to relocate to Parramatta was the subject of discussion between Ms Burrows and Mr Walker on 2 November and again on 7 November. Ms Burrows told Mr Walker that she had not yet decided whether she would comply with Mr Glanfield's direction. Mr Walker urged her to do so and took steps to ensure that Ms Burrows was allocated a workstation at Parramatta, so that her belongings could be transported there, when the move occurred. Mr Walker was due to be absent from the office on 8 and 9 November and before his departure, in their final conversation, Ms Burrows told Mr Walker that it was unlikely that he would see her at Parramatta. 14 While Ms Burrows then packed her things in preparation for the move, she did not finally comply with Mr Glanfield's direction. On 12 November, she wrote to him advising that she would not relocate to Parramatta and that she would remain at home, until 'you are willing to provide me with a safe work environment that does not present financial, physical and emotional detriment to myself'. 15 Mr Walker was not provided with a copy of this letter, or otherwise notified of Ms Burrows' decision on 12 November and so he telephoned her, when she did not attend work. After some difficulty with Ms Burrows' mobile phone, Ms Burrows told him of her decision and provided him with a copy of her letter to Mr Glanfield. 16 Ms Burrows was thereafter treated by the respondent as having taken an unauthorised absence from her work, for which she would not be paid. This was advised in a letter from Mr Baldi on 14 November, although Ms Burrow's next pay slip did not reflect the steps which were taken to ensure that the respondent did not overpay Ms Burrows. An amended payslip was sent the following week, reflecting the payment actually made by the respondent. Consideration 17 Ms Burrows claimed that the respondent had no right to require her to relocate to Parramatta, or to treat her absence as unauthorised leave, when she refused the Director General's direction to relocate. Ms Burrows had applied for a position with the respondent in 1993, which was advertised to be located in the CBD. Ms Burrows claimed that consequently, she was contractually entitled to work in the CBD and that the respondent had no right to require her to relocate. I am unable to accept that argument. 18 While the advertisement referred to the position being located in the CBD, Ms Burrow's letter of appointment did not deal with the question of work location. On the evidence, the reference to the CBD in the advertisement, of itself, is not a basis upon which it can be concluded that Ms Burrows had the contractual right to remain in a sound reporter's position, located in the CBD, throughout her employment. There was no other evidence from which it could be concluded that such a contractual term had ever been discussed or agreed. It was certainly not an express term of Ms Burrows' employment contract. 19 Nor can it be concluded that it was an implied term of the contract, according, for instance, to the tests discussed by the Privy Council in B.P. Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283:

In their view, for a term to be implied the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

20 Such tests cannot be satisfied on the evidence. Clearly the contract would be effective without the claimed term; it is not so obvious as to go without saying and the term is not necessary, to give efficacy to this contract. Furthermore, when considering the claimed contractual entitlement, it cannot be overlooked that, as Ms Burrows submitted, her employment in the public sector was also regulated by statute, regulation and award. Such regulation was inconsistent with the contractual rights Ms Burrows claimed. Indeed, Ms Burrows herself claimed that the respondent had a relocation policy, which applied to her employment, which it had not complied with, when she was directed to relocate to Parramatta. That policy was not in evidence, understandably, given that the respondent had not purported to require Ms Burrows to relocate, pursuant to such a policy. Rather, in directing Ms Burrows to relocate, the Director General of the Department had referred to the Public Sector Employment and Management Act 2002 and the Procedural Guidelines for dealing with Misconduct. 21 The Public Sector Employment and Management Act, relevantly provides:

4E Salary, conditions etc of staff employed in Divisions

(1) The Government of New South Wales may fix the salary, wages and conditions of employment of staff employed under this Chapter in so far as they are not fixed by or under any other law. 46 Dealing with allegations of misconduct (1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the officer. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. (3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking. (4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process: (a) decide to take remedial action with respect to the officer concerned, or (b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both. (5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section.

22 Section 44 of the Public Sector Employment and Management Act permits the Director of Public Employment to issue the procedural guidelines referred to in s 46(1)(a). The Public Sector Employment and Management (General) Regulation 1996, also applied to Ms Burrows' employment, and relevantly provides: 15 Absence from duty (1) A member of staff must not be absent from duty unless reasonable cause is shown. (2) If a member of staff is absent from duty because of illness or other emergency, the member of staff must, as soon as practicable, provide an explanation for the absence. (3) If the member of staff fails to provide that explanation to the satisfaction of the appropriate Department Head, the Department Head is to cause to be deducted from the pay of the member of staff the amount paid to the member of staff for the period of absence. (4) Nothing in this clause affects any proceedings for a breach of discipline against a member of staff who is absent from duty without authorised leave. 49 Cost of travel to and from work (1) A member of staff must bear the cost of travel to and from work, unless the appropriate Department Head otherwise determines or subclause (2) applies. (2) If a member of staff: (a) is directed to report for duty at a locality other than the locality at which the member of staff reported for duty at the beginning of the day, or (b) is directed to report for duty on any day or days at a locality other than the locality at which the member of staff is normally required to report for duty and has already incurred expenditure in relation to travel on that day or those days to the locality at which the member of staff is normally required to report for duty, the cost of travel on that day or those days (but not exceeding in total the maximum number referred to in subclause (3)) to the locality at which the member of staff is so directed to report for duty is to be borne by the Department. (3) For the purposes of subclause (2), the maximum number of days is 5 days in any period or, if the appropriate Department Head is satisfied that special circumstances exist, such greater number of days as the Department Head may determine.

23 Both the Public Sector Employment and Management Act and the Public Sector Employment and Management (General) Regulation envisage that a public servant like Ms Burrows, may be required to work at a locality different to that where the employee normally works. This no doubt explains why the respondent has a relocation policy, to which Ms Burrows made reference in her case. In addition, the disciplinary proceedings which led to the decision to dismiss Ms Burrows from her employment, were conducted in accordance with the Public Service 'Procedural Guidelines for dealing with Misconduct'. They also envisage relocation, relevantly providing in clause 11.1:

11.1 Alternative Duties or Suspension of officers from Duty

Decisions in relation to this issue are to be based on the facts, nature and seriousness of the matter in the context of the officer's position. In the circumstances covered by s49, the first consideration should be, is it appropriate for the officer to continue in their usual duties. If the decision is that it is inappropriate, the first option is to place the employee on alternative duties or duties at another location (see Sample letter 1). 24 It was the respondent's case that Ms Burrows did not have the contractual right which she claimed and that the Director General was entitled to require Ms Burrows to relocate to Parramatta, while the disciplinary proceedings were pursued. He was also entitled to direct that Ms Burrows should be given meaningful work to perform at that location. 25 It was Ms Burrows' case that the Guidelines did not permit the Director General to require her to perform duties other than those of a sound reporter, at the same time as requiring her to perform duties at another location. Ms Burrows also argued that in any event, such an approach was only available to the respondent, while any allegations were investigated, rather than when consideration was being given to whether misconduct had occurred, and what disciplinary action, if any, should be taken in that event. I am also unable to accept those submissions. 26 The Guidelines provide practical guidance to Departments such as the respondent, as to how officers facing allegations of misconduct should be dealt with, given that the statutory framework permits such officers to be entirely suspended from work, including suspension without pay, in particular circumstances, during such a process. That such officers might be spared the consequences of a suspension, by being removed to another location, where they are given appropriate duties to perform, is an important opportunity for such officers and not one which ought lightly to be denied to them, by the narrow reading of the Guidelines which Ms Burrows urged in her case. 27 Such a construction would appear to be quite inconsistent with the purpose of the Guidelines and the legislation under which they were established. It would also be inconsistent with the language of Clause 11.1, which describes placing an employee 'on alternative duties or duties at another location' as 'the first option', where it is decided that a continuation of the employees' usual duties is inappropriate. Plainly the Guidelines contemplate other options, or a combination of options, as also being available to the respondent. 28 In any event, the evidence did not establish that the duties which Ms Burrows would have been given at Parramatta, would not have been those of a sound reporter, or would not have involved her 'usual duties'. The Director General had advised that Ms Burrows 'may be given alternative duties'. Because she refused to relocate, no duties were, in fact, ever given to Ms Burrows to perform at Parramatta. 29 Ms Burrows had suffered various injuries at work. She had been given particular duties on level 8 of the Goodsell Building. In her case, Ms Burrows tendered extracts from a HealthQuest 'Final Assessment Report - Fitness to Continue', dated 27 April 2007. It noted that Ms Burrows had been referred to HealthQuest for a 'Fitness to Continue Duty Assessment', given the Department's concern about her health and that she not be placed in a situation which might be deleterious to her health. The Report refers to clause 17 of the Regulations, which provided: 17 Health and safety (1) For the purposes of this clause, a member of staff is not fit for work if the health of the member of staff: (a) may render the member of staff a danger to other members of staff or to the public, or (b) is likely to be seriously affected by the staff member's remaining on duty or, if the member of staff is absent from duty, by the staff member's resuming duty. (2) The appropriate Department Head may direct a member of staff to submit to such medical examination or other health assessment as the Department Head may, on the advice of HealthQuest, consider necessary, if the Department Head has reason to believe that the member of staff is not fit for work. (3) If the appropriate Department Head has issued any such direction to a member of staff, the member of staff: (a) must, if on duty, cease duty immediately, and (b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of HealthQuest is first obtained or a certificate is furnished by a medical practitioner that the member of staff is fit for work. (4) If the appropriate Department Head receives a health assessment from HealthQuest that a member of staff: (a) is fit for work, the Department Head is to direct in writing that the member of staff, if absent from duty, must resume duty, or (b) is not fit for work, the Department Head is to direct in writing that the member of staff must cease duty immediately or, if absent from duty, must not resume duty. (5) If a direction has been given to a member of staff under subclause (4), the nature of the leave, if any, to be granted to the member of staff during the absence from duty is to be determined by the appropriate Department Head after consideration of any relevant advice of HealthQuest. (6) A member of staff to whom a direction has been given under subclause (4) (b) must not resume duty unless the appropriate Department Head, on the advice of HealthQuest, approves in writing. (7) The appropriate Department Head is to give the health care professional providing a health assessment of a member of staff under this clause any requested information about the duties of the staff member's position that is reasonably required for the purpose of providing the assessment

30 As to her physical conditions, the Report relevantly advised: s If Ms Burrows currently has a physical condition: Yes. Ms Burrows has had surgery for a lift biceps tendon rupture with internal disruption of the shoulder joint, and very likely has had other rotator cuff problems persisting since that time. This is no longer a major disorder, and the resolution of the residual functional problems involves relatively simple adjustment of her workstation which has now been achieved. She also probably has some rotator cuff problems of her right shoulder, and the management of this at work does not need to be significantly different from that of the left shoulder). s If so, does her physical condition prevent her from participating in the restricted duties as stated in the current WorkCover Medical Certificate: No, she would be able to cope with the duties as stated in the WorkCover Medical Certificate of 29/3/07. Indeed, some aspects of the restrictions in the WorkCover medical certificate are unnecessary as stated above.

FINAL DECISION [Clause 17, PSEM(Gen) Regulation 1996] From both the medical and psychological perspectives, Ms Suzanne Burrows is FIT for the full range of duties of the substantive position of Sound Reporter Multi-Skilled in the present location , provided she uses a workstation that is sufficiently adjustable, so she can mainly use her left upper arm in a relaxed, neutral (vertical) position. OTHER RECOMMENDATIONS There is no clear medical reason for a particular time-based division of her work duties, other than the normal recommendations regarding the work of a keyboard worker, particularly in terms of taking regular short breaks.

31 When the Director General refused to alter his requirement that Ms Burrows relocate, his advice of 7 November 2007 was that she would be given meaningful work to perform at Parramatta. Mr Walker's evidence was that was his intention, although he had not finalised what those duties would be. It cannot sensibly be inferred from all of the evidence, that the duties Ms Burrows would have been allocated, would not have been work of a suitable kind, given her skills as a sound reporter and the April 2007 HealthQuest report. 32 On Mr Walker's evidence, the Department was then in the throes of a major relocation. Mr Walker had responsibility for over 300 staff, apart from Ms Burrows. He assured her that she would be at Parramatta under his supervision, or that of another manager, should he be absent. Ms Burrows also had a concern as to the identity of such a manager, because she claimed she had outstanding, unresolved grievances against other former supervisors. Nevertheless, given the refusal to relocate, a situation where Mr Walker was absent and Ms Burrows had to be supervised by someone else, never arose. Nor was there any complaint advanced as to the supervision arrangements in place on level 8 under Mr Walker, including, for example, during Mr Walker's absence on 8 and 9 November. That there was any proper basis for Ms Burrows' expressed concerns, was simply not established. Nor could they provide a basis upon which Ms Burrows was entitled to refuse the direction she had been given. 33 Mr Walker had only a short opportunity to turn his mind to the duties which Ms Burrows might be given at Parramatta. He had made no final decision about those duties. Ms Burrows' repeated advice to Mr Walker, however, was that while she had not made up her mind, it was unlikely that she would relocate to Parramatta. As she had foreshadowed, she ultimately refused to comply with Mr Glanfield's direction. It is hardly surprising, in those circumstances, that Mr Walker, who was dealing with other issues raised by the relocation, did not complete his consideration of what duties Ms Burrows should be allocated, in the event that she decided that she would relocate. It cannot be inferred from the evidence that duties Mr Walker would have allocated Ms Burrows, had she relocated, would have been duties the respondent was not entitled to require of Ms Burrows, or even that they would have involved a departure from what HealthQuest had advised. 34 Ms Burrows also complained about the workstations at Parramatta. In cross examination, Mr Walker confirmed that they were not adjustable in the same way as the workstations at the Goodsell Building. They had to be adjusted for each employee, a process which took about three weeks to complete. Ms Burrows took the view that had she attended Parramatta, she could not have been productively employed. Given the HealthQuest advice to the Department, it could not be sensibly inferred that the necessary adjustment would not have been made to the workstation Ms Burrows was allocated. Ms Burrows insisted that she had an obligation to ensure that she did not put her health in jeopardy. So did the respondent. Such obligations could not, however, put Ms Burrows in a position where she was simply entitled to refuse the direction she had been given, because of a view that necessary adjustments to a workstation would not be made. 35 Ms Burrows also complained about many other aspects of the decisions made by the Director General, including the time at which the decision was made and how it was communicated to her; how she was dealt with by comparison to other employees affected by the relocation and the refusal to review the decision as she had requested, notwithstanding the difficulties it posed for her personal circumstances. On her approach, in fairness the Director General should have taken other courses available to him. 36 These proceedings do not, however, involve a review, or an appeal from the Director General's decisions, or how they were implemented. The fairness of those decisions and how they were implemented, also do not arise for consideration. Rather, Ms Burrows has sought particular declaratory relief, as a part of her challenge to the respondent's right to require her to perform work, other than that of a sound reporter located in the Sydney CBD. That challenge must fail. 37 The legislative scheme under which Ms Burrows was employed, envisages in s 46 of the Public Sector Employment and Management Act, that allegations of misconduct might be raised in relation to an officer such as Ms Burrows; that should they arise, such allegations should be the subject of a formal investigation; and that there should be procedural guidelines established, as to how such an investigation should be conducted and determined. The Guidelines, so established, also accord with the provisions of s 4E, which permit conditions of employment of staff to be fixed 'in so far as they are not fixed by or under any other law'. It follows that the Guidelines permitted the Director General to require Ms Burrows to perform work at a different location, as he did, consistently with the legislative scheme under which they were established. 38 What duties Ms Burrows was allocated from time to time in her employment, plainly depended upon the fact of her employment as a sound reporter. Her duties were also affected by her recovery from the injuries which she had sustained. Upon being directed to relocate to Parramatta, Ms Burrows was assured that she would be given meaningful duties there. What those duties would have been, cannot be known, given the circumstances in which Ms Burrows refused to comply with the direction to relocate. On the evidence, however, it cannot be inferred that duties which Mr Walker would have given Ms Burrows, had she complied with the direction, would have been inconsistent, either with the basis of her employment, or the state of her health. Despite Ms Burrows complaints, that she had no reason to accept any assurances as to the work which she would be provided, because the respondent had failed on earlier occasions to provide her with meaningful work, resulting in an injury and victimisation and harassment, it was not established that the Director General's November 2007 direction conflicted with anything which HealthQuest had 'determined', or that it was not one which the Director Generally was lawfully entitled to give. 39 Ms Burrows also argued that she was concerned that Mr Glanfield's advice that she would be given meaningful work at Parramatta, left open the possibility that she would be victimised and harassed and that the work she was to be given, would have resulted in a work related injury. Mr Walker's evidence, that he had assured Ms Burrows that at Parramatta, she would remain under his supervision, or in his absence that of another manager, and that he would provide her with meaningful work to do there, was not disputed. Undoubtedly Ms Burrows held strong views that she has been treated inappropriately, in a myriad of ways, by many other employees of the Department, throughout the course of her employment. The basis of these complaints was not much explored in these proceedings. Some of them, at least, are the subject of other proceedings brought by Ms Burrows, in which she seeks other declaratory relief. Those proceedings are presently part heard. 40 Nevertheless, on the evidence in these proceedings, it must be concluded that the requirement to relocate could not of itself be regarded as constituting victimisation or harassment. Nor did the evidence suggest that the complaints Ms Burrows advanced, related to her supervision by Mr Walker, or to the work she had been required to perform, while under his supervision. While Ms Burrows' complaints were wide ranging, some were particularly directed to events after November 2006, which Ms Burrows claimed had contravened applicable award provisions and had resulted in her being forced to work in an unsafe manner, that had resulted in further pain and injury. She also claimed that the respondent had provided false information to HealthQuest and that it had ignored the recommendations of WorkCover Certificates issued by her treating doctors. The evidence did not, however, seek to establish any foundation for those complaints. In the end result, despite all of Ms Burrows' stated claims, fears and concerns, the evidence did not establish a basis upon which it could be concluded that Ms Burrows was lawfully entitled to refuse to comply with the Director General's direction. 41 On his evidence in cross examination, Mr Walker had himself not had much notice that Ms Burrows was to move to Parramatta, although that was what he was expecting, given the circumstances in which she had come to be under his supervision, working on level 8 at the Goodsell Building. On her evidence, Ms Burrows had a different expectation, she assumed that she would remain in the CBD when Mr Walker and his staff relocated. Presumably, that expectation rested on Ms Burrow's belief as to her contractual entitlement to remain in a sound reporter's position in the CBD. 42 Mr Walker received advice of the Director General's decision, essentially at the same time as Ms Burrows, at a time when he had been in his position and supervising Ms Burrows for only some three weeks and a major relocation of the Department was imminent. On his evidence, Mr Walker was anxious to address Ms Burrows' expressed concerns, which he discussed with her on a number of occasions, when she repeatedly advised him that it was unlikely that she would relocate. As it transpired, Mr Walker had little practical opportunity to determine the particular duties he would allocate Ms Burrows at Parramatta, but he sought to reassure Ms Burrows that he would give her meaningful work, if she complied with the Director General's direction. There was no proper reason for that evidence to be doubted. 43 Ms Burrows certainly had no right to refuse to relocate, as directed, until she was advised what her particular duties would be, but on her evidence, this was but one of the many concerns, which led her to refuse to comply with the Director General's direction. 44 Ms Burrows also relied upon the award which applied to her employment, the Crown Employees (NSW Attorney General's Department - Reporting Services Branch) Sound Reporters Award 2007. It envisaged in clause 7.2 that:

The Department may vary the location of the employment of Multi-Skilled Sound Reporters on a needs basis and in accordance with the agreed terms of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2006 and other applicable industrial instruments.

45 Ms Burrows advanced no complaint that those terms had not been adhered to. Rather, she challenged the respondent's 'need' for her to perform her work at a location other than in the CBD. Ms Burrows' case was that at Parramatta, sound reporters perform District Court work, work Ms Burrows had not performed for some ten years. The respondent still employed sound reporters in the CBD and an assistant director had remained there, to supervise such work. It followed that the respondent still had a need for such work to be performed in the CBD and that, in truth, the Department had no need for her to perform her work at Parramatta and had transferred her there, knowing it was not a transfer which she desired. The respondent had thus deliberately sought to disadvantage her, by detrimentally affecting her financial position and her physical and mental health. 46 Ms Burrows' argument appeared to rest on the meaning of the phrase 'on a needs basis', as being confined to operational need of a particular kind. In her judgment, there was no such need, but the relocation was required by the Director General, in order to achieve other, improper ends. I do not accept that clause 7.2 of the Award is confined in the way Ms Burrows submitted. Nor was it shown that the circumstances in which Ms Burrows was directed to relocate, did not involve operational need. 47 This is an award which applies to public sector employment, regulated by a particular statutory scheme, including the disciplinary arrangements earlier referred to. Such public sector employment is highly regulated, undoubtedly for the benefit both of the Departments involved, as well as the public servants employed to deliver the work of those Departments. 48 On the evidence, there can be no question that there was a need for the statutory disciplinary process underway to be completed; a need for Ms Burrows to be given appropriate duties during that process and for her work to be supervised. Indeed, it was a part of Ms Burrows' own case, that the respondent had an obligation to provide her with suitable work. In 2006, Ms Burrows' work location and supervision arrangements were re-organised, so that she reported to the Director of the Court Reporting Branch, while the grievance lodged by her former supervisor, was investigated. That investigation led to a recommendation that disciplinary proceedings be instigated. As a result, in June 2007, Ms Burrows was informed that she was to continue being supervised by the Director, while those proceedings were resolved. In November 2007, when the Director's office relocated, Ms Burrows was required to move to Parramatta with the Director. I am unable to accept that this direction to relocate was inconsistent with the Award provisions. To the contrary, the Award and the Guidelines appear entirely consistent. Each envisage that during disciplinary proceedings, there may be a need to require an employee to relocate. 49 In making those observations, I also note that Ms Burrows argued that clause 10 of the Award, grievance and dispute resolution procedure, envisaged that while the specified procedures were pursued, normal work was to continue. On the evidence, this provision was, however, not relevant to the matters here in contention. The direction to relocate followed the resolution of the grievance of Ms Burrows' former supervisor, which had been investigated. The investigator's recommendation that disciplinary proceedings be pursued against Ms Burrows, had been accepted by the Director General and it was that process, not the resolution of the initial grievance, which was underway. 50 Ms Burrows also claimed that the direction to relocate was inconsistent with the requirement of clause 10.11 of the Award, that she be permitted to continue her normal work, in a manner that avoided any risk to her health and safety. It was not established however, as I have found, that this provision of the Award governed how Ms Burrows was to be treated at this point of the disciplinary process, or that the direction to relocate, gave rise to any risk to her health or safety. 51 Ms Burrow's refusal to accept the Director General's direction, resulted in her absenting herself from work, without leave, from 12 November until her employment was terminated in December 2007. Whatever be the explanation, the fact was that Ms Burrows neither sought, nor was granted leave. Ms Burrows persisted in her refusal to attend work, despite the respondent's urging through Mr Walker, that she return to work, even when these proceedings later came before the Court. 52 It follows, given the provisions of clause 15 of the applicable Regulations, that Ms Burrows has not demonstrated that she had any entitlement to payment for the period of her employment, when she refused to attend work in accordance with the directions she had been given on 1 November. Ms Burrows has not established that she was not obliged to comply with that direction. On 12 November, Mr Walker contacted her and urged her to come to work. She declined. As she was advised, Ms Burrows was paid for the days she worked prior to 12 November. The deductions made from her salary thereafter reflected that from 12 November onwards, she did not attend work as she had been directed and that she had not sought, nor had been granted, any leave from work. Whether or not she found difficulty in making an application for leave, given the fact that she had absented herself from work, the fact was that she neither sought nor was granted leave. On that basis, it followed that she had no entitlement to payment of any further salary. 53 I accept that it was unfortunate that the pay advice which Mr Burrows received shortly after the 12 November letter, was inaccurate. The letter of 12 November was quite clear, however that deductions would be made and the inaccurate pay slip was shortly followed up with a further pay slip, which corrected the position. Ms Burrows was left with no doubt, as to the consequences of her decision, but refused, nevertheless, to alter her stance. 54 Ms Burrows also complained about the additional travel time which would have been involved, had she relocated to Parramatta, as directed, as well as the additional cost. There was an issue as to just how much extra time would have been involved in travel to Parramatta, which it is unnecessary to resolve. These complaints also go to the fairness of the decisions made, which do not arise for review in these proceedings. 55 So far as compensation for travel costs is concerned, that entitlement was also expressly regulated by the Regulations. It is difficult to see that Ms Burrows, like other employees affected by the relocation, had any entitlement to compensation under the applicable Regulation, once she had been required to relocate. That was not, however, a matter argued by Ms Burrows, who instead referred to what ordinarily happened in her experience, when sound reporters were relocated in other circumstances. Whatever such an entitlement might be, this was clearly not such a relocation. 56 The advice given to Ms Burrows by Mr Walker, was that she would have to bear any additional travel costs, just like other staff who had been required to relocate, when the Department's headquarters moved to Parramatta. No case that Ms Burrows had a different entitlement under the Regulation, or otherwise, was made out. In any event, given the refusal to relocate, no such costs were incurred. Orders 57 I am satisfied that the orders which Ms Burrows has sought are not available to be made on the case advanced. 58 For all of the reasons given, the application for declaratory relief must be refused. I order accordingly.

AMENDMENTS HISTORY: 02/04/2008 - Coversheet changed to 'Industrial Court' not 'Industrial Relations Commission' - Paragraph(s) 1

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