Byrne v Australian Airlines Ltd

9 On Tuesday 4 April a number of telephone conversations took place between his Honour and the applicant regarding the progress of the applicant's report, which was eventually delivered to Justice Simos later that day. On the evening of 4 April, his Honour informed the applicant that Ms Hutchison would need to be given an opportunity to respond to the report and that the applicant may need to respond further. The applicant expressed great concern at the prospect of any further involvement in the matter. She indicated to Justice Simos that her report to him was not a complaint but a report of the facts for the benefit of his Honour only.

10 On 5 April, Ms Nerida Johnston made a file note detailing a conversation which had taken place with Justice Simos. His Honour had advised Ms Johnston of the applicant's report and that he had asked his Associate, Ms Hutchison, to read it and respond. Further, his Honour indicated that, subject to his Associate's reply, he would not want Ms Hutchison to remain on his staff. Ms Johnston also noted similarities in the applicant's complaint with matters she had discussed on an earlier occasion with Mr Rolphe and, with his Honour's approval, Ms Johnston indicated that she would seek a report from Mr Rolphe. Mr Rolphe provided a report on Friday 7 April.

11 A further conversation took place between Justice Simos and the applicant on 7 April. The applicant expressed concern that she was at home while Ms Hutchison was continuing to work. She also expressed concern that Ms Hutchison may stop her pay but his Honour assured the applicant that this would not occur. During the conversation the applicant deposed that Justice Simos had said to her that he hoped she would not be resigning if Ms Hutchison remained working in the Supreme Court building but not on his Honour's staff.

12 On Monday 10 April, in responding to a call from the applicant, Justice Simos advised her that: · Ms Johnston was going to take over the inquiry into Ms Hutchison's behaviour; · Ms Hutchison was to take leave of absence from Thursday 13 April for one week to complete her response to the applicant's report; · there were a number of research tasks that the applicant could undertake from her home.

13 During the evening of 10 April the applicant called Justice Simos and left a message on his telephone answering machine. The applicant indicated in her message that she was not satisfied with his Honour's handling of the matter and that she intended to take up the issues directly with Ms Johnston as a matter of urgency. She expressed concern that her report was being turned into a personal complaint against Ms Hutchison, which was not her intention. Later in the evening of 10 April Justice Simos returned the applicant's call and spoke with the applicant's brother, Mr Bale. Justice Simos indicated that he was happy for the applicant to write to Ms Johnston and acknowledged that the report by the applicant was not a personal complaint. Mr Bale queried whether his sister was being dealt with in an even handed way. Mr Bale challenged the need for Ms Hutchison to be given the opportunity to take time off to read the applicant's report and respond when his Honour had already accepted the truthfulness of his sister's report. Mr Bale also queried why Ms Hutchison had only been requested to take one week away from work while his sister was asked to take three weeks. Mr Bale commented that he did not like where the investigation was going "one iota." Justice Simos apparently expressed concern at Mr Bale's belligerence, which the latter, in his evidence, denied.

14 On 11 April Ms Johnston wrote to the applicant indicating that Justice Simos had confirmed with her that, at the time of the applicant's initial report to him, both the applicant and her brother had made it clear that the report was not a complaint against Ms Hutchison and confirmed that the report was typed by the applicant and handed to his Honour at his request.

15 It was also the case that on 11 April the applicant wrote to Ms Johnston, with copies to the Chief Justice, Chief Judge in Equity and Justice Simos. The letter was in four sections. Section one dealt with the circumstances that led the applicant to provide the report to Justice Simos. The applicant alleged that by being "induced" to write the report, she had suffered detriment. Section two dealt with an episode on 3 April following her meeting with Justice Simos when she went to Chambers to collect her belongings. The applicant alleged that Ms Hutchison: menacingly prowled around the office to check my every movement and continuously stared at both me and my brother. Ms Hutchison ultimately advanced to my side of the room and it was made necessary for my brother to stand in between myself and Ms Hutchison. My brother then warned me to be ready to call security should Ms Hutchison advance any further. Immediately upon hearing this comment, Ms Hutchison then called security herself without any grounds for doing so. I then called Justice Simos and told him that Ms Hutchison had called security but that my brother and I had done nothing to warrant this. Given Ms Hutchison's lack of good character, her previous conduct and the fact that Ms Hutchison had been made aware that a formal report on her conduct was pending, Justice Simos was foolish to allow Ms Hutchison the opportunity to deliberately create such a volatile situation. 16 Section three of the applicant's letter to Ms Johnston alleged a failure on the part of Justice Simos to ensure that Ms Hutchison provided a timely response to the applicant's report. In this part of the letter the applicant alleged "It is most unfortunate that Justice Simos has not elected to apply the same rigour with respect to obtaining a response from Ms Hutchison" as that required of the applicant in furnishing the original report. The applicant said in her letter "….I note that the Court is affording Ms Hutchison ample time to corrupt both the investigative process and the truth. Indeed, I know of no principle of procedural fairness which provides that a party should have an open-ended timeframe in which to provide a response." Further, the applicant said in the letter: My only interest in this matter is in returning to a safe workplace at the earliest possible opportunity. I reject any attempt by the court to make me the scapegoat for any action it may wish to take against Ms Hutchison. This stated, I stand by every word of my report and again note that at the relevant time, Justice Simos considered it to be, in his words, '100% truthful'. 17 Section four of the letter was an allegation that Justice Simos had attempted to resile from his earlier position that Ms Hutchison would "certainly not work for me again". This was put on the basis that his Honour had said to Mr Bale on 10 April the he would be reviewing Ms Hutchison's response to the allegations against her over Easter and would then decide if she were to remain on his personal staff.

18 Section five of the letter dealt with the alleged duty of the Supreme Court to provide a safe workplace. It was alleged that given Ms Hutchison's previous harassment and abuse of tipstaves, it was known by the Court that it was not a safe workplace and that "Given the admitted prior knowledge of Justice Simos and his capacity as a Judge of the Supreme Court of NSW, the Court is culpable for the situation I have found myself in". Further, that "As I will not be leaving my workplace and, as the innocent party, will of course not be transferred from my workplace, I will not permit Ms Hutchison to remain in my workplace. My parents and brother would like it made known that they will also not permit Ms Hutchison to remain in my workplace." 19 The applicant concluded her letter by demanding written confirmation by 5.00 pm on 18 April 2000 that "Ms Hutchison will be immediately and permanently removed from my workplace. Should this written confirmation not be received, it will be my intention to immediately commence formal proceedings to compel the Court to remove Ms Hutchison from my workplace".

20 On 14 April Ms Johnston replied to the applicant's letter of 11 April. Relevantly Ms Johnston's letter made four points: · Any decision regarding Ms Hutchison's future was a matter for Justice Simos and Ms Johnston; · Having regard to all the circumstances, Justice Simos and Ms Johnston had decided it would be best if the applicant did not continue as a member of his Honour's personal staff; · If the applicant wished, Ms Johnston would be happy to seek employment for her as a Tipstaff/Research Assistant on the personal staff of another Judge, subject to the applicant "agreeing not to commence any legal proceedings against the Court and to limit any further discussion by you of the matters you have raised with respect to Ms Hutchison to any discussions that you may have with me or members of my staff or with your parents and your brother"; · The applicant needed to respond as soon as possible because, as she had not been with the Court sufficiently long to accrue leave entitlements, she could not be paid for the period she was absent from duty.

21 The applicant responded to Ms Johnston's letter on 14 April. In her letter the applicant: · alleged that the response by Ms Johnston "confirmed my suspicions that the Court is now apparently proposing to cover-up Ms Hutchison's misconduct and make me, the innocent party, the scapegoat in this matter". · confirmed her willingness to attend her workplace; · alleged Justice Simos had refused her access to her workplace; · indicated that Ms Johnston was in no position to purport to not pay my salary in full in accordance with her contract of employment; · noted the "hypocrisy inherent in Justice Simos' swiftness in apparently attempting to remove me, the innocent party, from his personal staff, while the perpetrator remains on his personal staff". · alleged she had not been given procedural fairness; · advised she would take legal proceedings if her employment was terminated.

22 Mr Johnston responded in writing on 17 April. In her letter to the applicant Ms Johnston: · advised that the applicant was labouring under some misapprehension including: (i) misapprehension that a decision has already been made about Ms Hutchinson's future; (ii) a misapprehension as to the nature of the applicant's employment; (iii) a misapprehension that the applicant was to be made a scapegoat. 23 Ms Johnston's letter went on to explain that the applicant was not employed by Justice Simos but rather by the Crown in right of the State of New South Wales. For this reason the letter said, "the work location of such personal staff is not restricted to the Chambers or Court of a particular judge". The letter also said: For all relevant purposes, I act as the Crown's representative with respect to the formal employment arrangements relating to the personal staff of judges. I am, having regard to all of the circumstances, still prepared to arrange employment for you on the basis of the terms set out in my letter dated 14 April 2000 provided that I will, on the basis of your understanding of his Honour's comments, regard you as being entitled to be paid for the whole of the period since you were offered leave of absence on full pay. I hope that you will accept continuing employment on the basis set out in my letter dated 14 April 2000 (subject to the amendment referred to in the preceding paragraph of this letter). If you do accept the offer, you should report for duty at 9.00 am on 19 April 2000 (to me on level 5). If you do not accept the offer, I regret that I will have no alternative but to terminate your employment." 24 On 18 April the applicant responded to Ms Johnston's letter. The applicant: · accused Ms Johnston of poor handling of the matter; · reiterated her threat to notify the Director-General of the Attorney-General's Department of a breach of discipline on Ms Johnston's part under s 66(1)(h) of the Public Sector Management Act 1988 (NSW); · challenged Ms Johnston's statement that the applicant's employment was not restricted to the Chambers or Court of a particular judge on the basis that she was specifically employed as Tipstaff/Research Assistant to Justice Simos for a period of 12 months; · alleged that Ms Johnston was attempting to unilaterally vary the terms and conditions of the applicant's employment by posting her to another judge; · alleged that Ms Johnston had attempted to coerce the applicant into accepting an additional term in her employment contract, namely "making my continued employment contingent on my agreeing to waive my fundamental and valuable legal rights to commence legal proceedings and enjoy freedom of speech"; · asserted there were no grounds to transfer the applicant or terminate her employment.

25 On 20 April Ms Johnston advised the applicant by letter that her employment by the Crown had been terminated with effect from close of business on 20 April 2000.

Employment status of the applicant 26 It was, as I understand it, agreed by the applicant and the respondent that the applicant was an employee of the Crown. Notwithstanding that consensus I have found it necessary to satisfy myself as to the applicant's employment status and that I have jurisdiction to determine the application in this matter. The employment status of tipstaves is not immediately apparent. Moreover, "Crown employee" is a term sometimes loosely used and may, for example, refer to an officer in the Public Service, an employee subject to the Public Sector Management Act 1988 or a ministerial employee appointed pursuant to s 47 of the Constitution Act 1902. In the context of dismissal, different rules apply to each of these categories of "Crown servants". I must be satisfied that the Industrial Relations Act 1996 has application in this case.

27 On 22 September 1999 the applicant applied for a position as a Legal Research Assistant to the Commercial List of the Equity Division of the Supreme Court. The position was advertised on the employment notice board at the College of Law where the applicant was studying. The applicant attended an interview in relation to the position but was unsuccessful. During the interview the applicant was asked whether she might be interested in the position of Tipstaff/Research Assistant to one of the judges in the Equity Division and she responded in the affirmative.

28 On 14 October 1999 the applicant received a telephone call from Ms Hutchison inquiring of the applicant whether she was still interested in the Tipstaff/Research Assistant position to which the applicant said yes. On 15 October the applicant attended an interview with Justice Simos. During the interview his Honour outlined the duties he required to be performed by someone in the role of Tipstaff/Research Assistant and the terms of employment. These were set out in the applicant's affidavit as follows: · The position on offer was an appointment as Justice Simos' Tipstaff/Research Assistant for a period of twelve months commencing at the beginning of February 2000. · The remuneration for the position was approximately $32,000.00. · The duties of the position, these being legal research, assistance in court, miscellaneous errands such as collecting his lunch, and preparing his morning and afternoon tea. · The hours of the position would be nine to five. · He would be away for the period May, June and July 2000 on long leave but that during that period both his Tipstaff/Research Assistant and his Associate would be working for the Acting Judge who replaced him for that period.

29 On 20 October 1999 the applicant was offered, and accepted, the position of Tipstaff/Research Assistant with Justice Simos. Arrangements were subsequently made for the applicant to come to Justice Simos' Chambers on 14 December to complete necessary paperwork associated with the employment and to familiarise herself with the role. On that day the applicant said that his Honour elaborated on the nature of her duties and said to her words to the effect: "You work for me, you don't work for my Associate" and that "You are to assist my Associate when she requests you to do so but only if the requests are reasonable ones. Do not do anything that you consider is unreasonable".

30 The applicant subsequently commenced her employment on 31 January 2000.

31 The appointment of the applicant to the role of Tipstaff/Research Assistant was consistent with the general practice regarding the employment of tipstaves in that usually what occurs is that a judicial officer selects an appointee and advises the executive officer of the relevant court or the Attorney-General's Department. There is no process of formal selection and appointment which is so much a part of entry into the public service.

32 Consequently, I do not understand tipstaves to be employed as "officers" in the "Public Service" under the authority of the Public Sector Management Act 1988. In that Act "officer" is defined as: "a person employed in any capacity under Part 2, and includes: (a) a chief executive officer or a senior executive officer appointed under that Part, and (b) an officer on probation, but does not include a temporary employee." 33 That Act defines "temporary employee" to mean: "a departmental temporary employee employed under Division 5 of Part 2 or a special temporary employee employed under Division 5A of Part 2." 34 Part 2 of the Public Sector Management Act sets out the process for appointment of officers. In respect of officers other than Department Heads and senior executive officers Part 2 provides for: · filling of vacant positions (s 24); · method of appointment (s 25); · selection for appointment to be on merit (s 26); · legal proceedings not to be brought in respect of appointments (s 27); · appointments on probation (s 28); · confirmation or annulment of appointments on probation (s 29); · appointment of retired officers (s 30); · advertising vacancies (s 31); · publication of decisions to make recommendations for in-service appointments (s 32); · temporary appointments (s 33); · restrictions on temporary appointments (s 34); · incapable officer may be retired (s 36); and · vacation of position (s 37).

35 The Public Sector Management (General) Regulation 1996 also provides that a person may not be appointed to an officer's position before the person's fitness to carry out the duties of the position has been confirmed by a health assessment. Further, the Regulation requires a selection committee to be established to assess the merit (within the meaning of s 26 of the Public Sector Management Act) of applicants for appointment to a vacant officer's position.

36 The applicant was not subject to any of the foregoing provisions and there was no representation by the respondent that she was. Consequently, in my opinion, the applicant was not employed as an officer in the Public Service.

37 Divisions 5 and 5A of Part 2 of the Public Sector Management Act make special provisions for departmental temporary employees and special temporary employees respectively. I have considered whether the applicant was appointed as a departmental temporary employee but s 38(3) and s 38(4) of the statute places limitations on the period over which a departmental temporary employee may be engaged. These subsections provide: (3) The appropriate Department Head: (a) may employ a person under this section for a period not exceeding 4 months, and (b) subject to the regulations, may from time to time employ the person at the end of that period, or at the end of any subsequent period, for a further period not exceeding 4 months. (4) A person may not be employed under this section for: (a) a continuous period in excess of 12 months, or (b) 2 or more periods that together are in excess of 12 months in any period of 2 years, except with the approval of the Public Employment Office. 38 There is nothing to suggest that the applicant fitted the profile of a departmental temporary employee or, indeed, that there was any ministerial or departmental policy or direction that tipstaves should be engaged as temporary employees. If that were the case then significant conditions may have applied under the Public Sector Management Act and the Public Sector Management (General) Regulation 1996 that hitherto have had no application to tipstaves, as far as I am aware. I note that consistent with the practice of some judges, the applicant was engaged for a fixed period, namely, 12 months. That practice is not consistent with Division 5 of Part 2 of the Public Sector Management Act and lends weight to the proposition that the engagement of tipstaves is governed otherwise than by the Public Sector Management Act.

39 In Holly v Director of Public Works (1988) 14 NSWLR 140 the appellant and the second respondent, a Mr Schneider, applied for a vacant position (electrical fitter/mechanic) in the Department of Public Works. Each of them was a ministerial employee in the Department of Public Works; neither was an officer of the Public Service. The Director of Public Works, the departmental head of the Department of Public Works, recommended that Mr Schneider be appointed to the vacant position. The appellant appealed to the Government and Related Employees Appeal Tribunal. The Tribunal held that it had no jurisdiction to hear the appeal. Mr Holly appealed to the Supreme Court. The Court of Appeal (Kirby P, Samuels and Mahoney JJA) held that by reason of the definition of "employer" and "employee" in s 4(1) of the Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act") a ministerial employee employed in the Department of Public Works is deemed to be employed in the service of the Director of Public Works, even though under general law he is employed in the service of the Crown, and accordingly ministerial employees have a right of appeal under s 20 of the GREAT Act to the Government and Related Employees Appeal Tribunal.

40 Mahoney JA, who delivered the main judgment of the Court of Appeal, considered the question of appointments under the Constitution Act 1902. At 144-145 he said: The functions of government are, of course, performed for the Crown by persons engaged to act for it. It is the manner of engagement of them and the incidents of their engagements which are relevant in the present appeal. Under the general law, the Crown acted through those whom it chose to appoint to act for it. In practice, under the system of responsible government adopted in New South Wales, the acts of the Crown were performed for it by responsible Ministers, in the manner referred to by Griffith CJ in the much cited case of Ryder v Foley (1906) 4 CLR 422 at 432-433. It followed from this that, under the general law, the responsible Minister might appoint persons to act in the service of the Crown. To the extent to which the power of such Ministers so to act has not been superseded or restricted by statute, Ministers retain that power of appointment: see Josephson v Young (1900) 21 LR (NSW) 188; 17 WN (NSW) 12. However, the powers of the Crown under the general law and the powers of its Ministers to appoint persons to serve the Crown in this way have been affected by statute. It will be sufficient for present purposes to refer to the Constitution Act 1902 and the Public Service Act 1979. Since the commencement of responsible government in New South Wales under the Constitution Act (1855) (18 and 19 Vic, ch 54) "The appointment to all public offices under the Government of the Colony" has been vested in the Governor in Council (s 37); subject to the proviso there set forth in relation to minor appointments: see Josephson v Young (at 194; 15). Section 47 of the Constitution Act 1902 now provides: "Subject to the provisions of the Public Service Act 1902, and of all other enactments relating to the appointment of officers and being in force at the passing of this Act, the appointment of all public offices under the Government, whether such offices are salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds as hereinbefore mentioned, which appointments shall be vested in the Governor alone. Provided that this enactment shall not extend to minor appointments which by any Act or by order of the Governor and Executive Council are vested in heads of departments or other officers or persons." Therefore, minor appointments may be made by heads of departments or others, in accordance with the provisions of s 47. It is accepted that Mr Holly and Mr Schneider were each appointed under powers vested in accordance with the proviso to s 47. No order was referred to in this appeal but it is accepted that it is to be presumed that authority for the appointments was duly conferred: cf Josephson v Young (at 195; 15). 41 In Josephson v Young (1900) 17 WN (NSW) 12, Darley CJ and Owen J considered that the reference to "heads of departments" in what was then s 37 of the Constitution Act, was a reference to the "Minister presiding over the Department". I can see no reason why "other officers and persons" in s 47 of the Constitution Act 1902 would not include the Director-General of the Attorney-General's Department or indeed the Chief Executive Officer of the Supreme Court of New South Wales.

42 I consider that tipstaves may be regarded as "minor appointments" within the meaning of s 47 of the Constitution Act: see for example, Holly v Director of Public Works at 145; Josephson v Young at 14, 15. Further, in the absence of any order vesting power in the Attorney-General or the Chief Executive Officer of the Supreme Court to appoint tipstaves, it can be assumed that such orders have been made: Josephson v Young at 14,15; Holly v Director of Public Works at 145.

43 In the case before me, neither the Director-General of the Attorney- General's Department nor the Chief Executive Officer of the Supreme Court, Ms Johnston, could be said, in any personal sense, to have appointed the applicant. The applicant was appointed by Justice Simos and, from what I can gather from the evidence, the Attorney-General's Department was then notified of the appointment and arrangements made for wages to be paid to the applicant by that Department and for superannuation contributions to be made to FIRST State Super. I note that the Employment Separation Certificate that is required to be submitted to Centrelink upon termination of the employment, names the Attorney-General's Department as the applicant's employer. This would indicate, in my opinion, that Justice Simos was not the employer of the applicant.

44 I think, by implication, it can be said that Justice Simos, in engaging the applicant as Tipstaff/Research Assistant on the terms that he did, was acting in an administrative capacity as agent of the Crown. Neither party in the proceedings stated otherwise.

45 I find that the applicant was appointed to act in the service of the Crown. The term "employed" may be applied to the applicant's relationship with the Crown: Holly v Director of Public Works at 147.

46 The question arises as to who it was that terminated the applicant's employment with the Crown. In this respect it is noted that the power to make a minor appointment pursuant to s 47 of the Constitution Act includes the power to remove or suspend, at any time, a person so appointed: s 47(1)(b)(i) of the Interpretation Act 1987 (NSW). The evidence was that Ms Johnston, acting in her capacity as Chief Executive Officer of the Supreme Court and as the Crown's representative, terminated the employment of the applicant.

47 The Crown has a right to dismiss its servants at pleasure in the absence of a statute to the contrary: Gould v Stuart [1896] AC 575; Ryder v Foley (1906) 4 CLR 422 at 439; Coutts v The Commonwealth of Australia (1985) 157 CLR 117 at 119-120; G J McCarry, "Aspects of Public Sector Employment Law", The Law Book Company Limited, 1988 at 24; Peter W Hogg, "Liability of the Crown", The Law Book Company Limited, 1989 at 174-175.

48 The applicant seeks relief under The Industrial Relations Act 1996. That statute binds the Crown: s 404. Part 6 of Chapter 2 of that statute contains comprehensive provisions dealing with unfair dismissals. Section 83 of the Act provides: 83. Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or (b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). (1A) This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if: (a) the person is entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or (b) the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Workplace Relations Act 1996 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)). (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task, (b) employees serving a period of probation or qualifying period, (c) employees engaged on a casual basis for a short period, (d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances, (e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of: (i) their particular conditions of employment, or (ii) the size or nature of the undertakings in which they are employed. (3) This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (within the meaning of the Industrial and Commercial Training Act 1989) or any such employee who is an executive officer to whom Part 2A of the Public Sector Management Act 1988 or Part 5 of the Police Service Act 1990 applies. (4) This Part applies to the dismissal of an employee even though it occurred in the course of an industrial dispute and the Commission is otherwise authorised under this Act to order the reinstatement of the employee. (5) In this Part: "dismissal" includes: (a) the threat of dismissal, and (b) in the case of a public sector employee---dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee. "Federal award" means an award within the meaning of the Workplace Relations Act 1996 of the Commonwealth. "industrial instrument" includes a Federal award or other Federal industrial instrument. 49 An employee is defined in s 5 of the Act: 5. Definition of employee (1) General definition In this Act, "employee" means a person employed in any industry, whether on salary or wages or piece-work rates. (2) A person is not prevented from being an employee only because: (a) the person is working under a contract for labour only, or substantially for labour only, or (b) the person works part-time or on a casual basis, or (c) the person is the lessee of any tools or other implements of production, or (d) the person is an outworker, or (e) the person is paid wholly or partly by commission (such as a person working in the capacity of salesperson, commercial traveller or insurance agent). (3) Deemed employees The persons described in Schedule 1 are taken to be employees for the purposes of this Act. Any person described in that Schedule as the employer of such an employee is taken to be the employer. (4) Exclusion A person employed or engaged by his or her spouse or parent is not an employee for the purposes of this Act. 50 A "public sector employee" is defined in the Dictionary of the Act as follows: "public sector employee" includes an employee of a public authority (including an area health service or public hospital) and a member of the Public Service, the Police Service or the Education Teaching Service. 51 Whether the applicant was a "public sector employee" is somewhat problematic. None of the inclusions in the definition of that term in the statute's Dictionary would, in my opinion, apply to the applicant. However, the use of the term "includes" would suggest that the definition is not exhaustive. The ordinary meaning of "public sector employee" could, I think, extend to an employee of the Crown and, therefore, it might be argued that the applicant was a public sector employee (see for example R V McN (1963) 63 SR (NSW) 186).

52 In any event, I do not have to decide this point because I consider that the applicant fell within the meaning of "any other employee" in s 83 (1)(b). In Moore v Newcastle City Council (1997) 77 IR 210 it was held that an employee in the class of "any other employee" included an employee whose conditions of employment were set by an industrial instrument, whether or not the annual earnings exceeded the prescribed amount. An industrial instrument includes an award. The award that applied to the applicant was the Crown Employees (Tipstaves to Justices) Award 1964 published in (1964) 154 NSW Industrial Gazette 678. The prescribed amount as determined by r 5A of the Industrial Relations (General) Regulation 1996 was $71,200 The applicant was employed on a salary of approximately $32,200. Further, I do not consider that the applicant was exempt from the unfair dismissal provisions of the Act by virtue of s 83(2). I note that the applicant was engaged for a fixed term of 12 months but an employee engaged for a fixed term is only exempt from Part 6 of Chapter 2 of the Act where the fixed term is for a specified period of less than six months: r 5B(1)(a). There was no evidence that the applicant was engaged on probation or as a casual.

53 I consider that in this case the Industrial Relations Act ousts the common law right of dismissal at pleasure.

54 I find that I have power to deal with the application.

Whether the Dismissal was Unfair 55 I turn now to the issue of whether the dismissal of the applicant was unfair or, to use the words in s 84(1) of the Act, whether it was "harsh, unreasonable or unjust".

56 The evidence was that on 5 April, Justice Simos advised Ms Johnston of the applicant's report and that he had asked Ms Hutchison to read and respond to it. Further, his Honour had indicated to Ms Johnston that, subject to Ms Hutchison's response to the allegations against her, he would not want her to remain on his personal staff.

57 On 7 April the applicant telephoned Justice Simos to inquire as to the progress of the matter. She was informed by Justice Simos that Ms Hutchison had not yet provided a response and that prior to doing so was seeking legal advice. The applicant expressed concern that she was at home and not working. Justice Simos assured the applicant that her pay would continue. The applicant further expressed concern that Ms Hutchison was apparently continuing to attend for work, despite the seriousness of the allegations against her, yet the applicant was not allowed to attend for work. In the course of the conversation, Justice Simos said to the applicant that he hoped that the applicant was not intending to resign if Ms Hutchison remained in a job in the Court building. That prompted the applicant to read out a prepared statement to his Honour. The statement had been prepared by the applicant in the event that Ms Hutchison, whilst no longer working on the personal staff of Justice Simos, had been transferred to another position in the Supreme Court. In the statement the applicant: · indicated she would not resign; · expressed her outrage and anger at her treatment as outlined in her report; · indicated her intention to give a copy of her report to the Chief Justice and Ms Johnston; and · indicated that she was considering "what external forums are available to me to address the appalling workplace harassment that I have suffered at the Court".

58 Further conversations took place between the applicant and Justice Simos and Mr Bale and his Honour on 10 April, a week after the applicant had first approached Justice Simos with her concerns regarding Ms Hutchison. These conversations are described earlier in this judgment. I think it is important to note that the conversations on 10 April only served to heighten the applicant's concern. She was left with the impression that the earlier resolve to deal with the matter quickly had evaporated and indeed there were now signs of equivocation about whether any action at all would be taken in respect of Ms Hutchison. She was given no firm idea about when the matter might be resolved and when she might be allowed to resume her employment. The applicant was left in a considerable state of uncertainty, adding to her distress and anxiety.

59 In this state the applicant wrote her letter of 11 April to Ms Johnston. The content and tone of the letter were ill advised and indeed, a number of the allegations and accusations could be regarded as offensive, being directed as they were against a Judge of the Supreme Court.

60 It is reasonable to infer, in the absence of any direct evidence, that the tone and content of the applicant's letter of 11 April to Ms Johnston and copied to Justice Simos, led to a decision by his Honour, supported by the Chief Executive Officer of the Supreme Court, that he no longer wished to have the applicant on his personal staff. In view of the importance of trust, respect and confidence in the relationship between Judge and Tipstaff, his Honour's decision was unsurprising. But the question is whether the letter of 11 April and Justice Simos' apparent loss of confidence in the applicant, provided the Crown with the basis to terminate the applicant's employment. The Crown's case argues, in effect, that it was. But to accept this argument would be to ignore the overall context in which events occurred.

61 The applicant was a person who had been appointed to the position of Tipstaff/Research Assistant for a period of 12 months. After about two months in the role, the applicant decided she would resign because of the harassment of her by Justice Simos' Associate which had made her working life a misery. The applicant explained to his Honour the reasons for wanting to resign and was implored not to do so. Her allegations in relation to Ms Hutchison's conduct were accepted "as being 100% truthful" and having confirmed suspicions his Honour had held for some time about his Associate. The applicant was promised swift action and was asked to compile a report on the treatment she had received at the hands of Ms Hutchison. The report was prepared and delivered to Justice Simos the following day, 4 April.

62 The applicant was asked to work from home while the matter was being investigated. On 7 April and again on 10 April - almost a week after she had submitted her report - she inquired as to the progress of the matter. She was informed that the matter had been referred to Ms Johnston for investigation and that as yet no decision had been made about Ms Hutchison. Indeed, the applicant was left with the impression that it was an open question whether or not Ms Hutchison would return to Justice Simos' personal staff, despite earlier emphatic statements to the contrary. The applicant was left to ponder the wisdom of providing a report relating to Ms Hutchison's conduct in the first place.

63 That Ms Hutchison should have been provided with the allegations against her and to have been given a proper opportunity to respond is without question. The evidence was, however, that Ms Hutchison's response was not "expected" to be provided until 20 April. For the investigation to have taken so long without proper attention to the anxiety and distress being suffered by the applicant in the meantime, and who found herself in that state because she was asked to cooperate in making out a case against a person who had been suspected for some time of improper workplace behaviour, would suggest the applicant was not treated reasonably or fairly.

64 Once the matter had been referred by Justice Simos to the Court's Administration on 5 April, prompt action should have been taken, by the Crown as the employer, to deal with it. The applicant should not have been left languishing in a state of uncertainty, with Ms Hutchison at liberty to respond to the allegations in what I would regard as an unusually long timeframe. If the matter had been dealt with expeditiously the applicant's letter of 11 April may never have been sent and its consequences may have been avoided. In this respect, I note that Ms Johnston did make a telephone call to the applicant at about 4.45 pm on 11 April. By this time the applicant had sent her letter of that date. Ms Johnston sought a meeting with the applicant and suggested counselling because of all she had been through. The applicant refused and sought an answer to her letter in writing. The offer to meet should have been made much earlier. However, even at this late stage, the refusal by the applicant to attend a meeting with Ms Johnston was not at all rational or helpful in achieving a resolution of the applicant's plight.

65 I have already commented on what I think of the applicant's letter of 11 April. I should add that it does not reflect well on either the applicant or, perhaps even more so, her brother, a solicitor. His advice to his sister, one would have expected, might have been to convey her position in less dogmatic and strident tones. The letter affected her relationship with Justice Simos, and jeopardised her position on his Honour's personal staff. What caused her to write the letter in the terms she did can only be explained by the applicant's lack of mature judgment and the stress she was under at the time. The relationship between Judge and Tipstaff, because of the nature of the office the Judge holds, is based on the need for obedience, respect, confidentiality, discretion and trustworthiness on the part of the Tipstaff. The applicant's letter of 11 April destroyed the necessary confidence in the relationship. Even acknowledging the applicant's stress and the injustice she felt, it did not justify the language or tone of her 11 April letter.

66 The letter, however, was not the reason for the applicant's dismissal. The Crown submitted that with Justice Simos' loss of confidence and trust in the applicant as his Tipstaff/Research Assistant, it was open to the Crown to appoint the applicant to another position and to make the appointment conditional on certain undertakings constraining the applicant from pursuing legal action and from engaging in any public discussion on the matter. The applicant's refusal to accept another appointment and the conditions attached to it, Ms Anderson submitted, constituted grounds for dismissal.

67 It does not appear from the evidence that assignment to another judge constituted an express part of the applicant's contract of employment, except to the extent explained by Justice Simos that, while he was on long leave, the applicant would be required to work for the Acting Judge replacing him.

68 In relation to contracts of employment which are either oral or not wholly expressed in writing - which is certainly the case here, the test as to whether a term may be implied is whether "implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422, 442. It does not seem to me in this case that for the contract to be reasonable or effective it was necessary, in circumstances where Justice Simos lost confidence in the applicant, to imply that the applicant was required to accept an appointment with another judge. The contract was capable of operating reasonably and effectively without it being an implied term that the applicant was bound to accept an appointment with another judge. Ordinarily, if proper grounds existed for a judge to ask for a tipstaff to be removed from his or her staff, there would probably be grounds for termination of the tipstaff's employment and there would be no question about appointment to the staff of another judge: see in the case of a Judge's Associate for example, Norman Charles Good -and- Attorney General of Western Australia, (unreported, No PSAB 5 of 1998, Western Australian Industrial Relations Commission (Public Service Appeal Board), 26 June 1998). 69 The alternative proposition is that where a judge no longer requires the services of a particular tipstaff for whatever reason, short of misconduct on the part of the tipstaff, the "crystallised custom" is that the tipstaff will be available to be placed on the staff of another judge or transferred to other duties. The term "crystallised custom" appears to have been coined by Professor Sir Otto Kahn-Freund and is referred to in Byrne v Australian Airlines Ltd at 423. A "crystallised custom" refers to custom or usage "so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract": Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 236. If such evidence is presented, and there is no conflict with any express term of the contract, the term will be implied even if one or both parties had no knowledge of the custom when entering into the contract: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd at 237; B Creighton & A Stewart, "Labour Law An Introduction" third ed., The Federation Press, 2000, 223. There was insufficient evidence before me as to what the custom was at the Supreme Court in relation to the deployment of tipstaves, so I am unable to find the existence of any "crystallised custom" to the effect that tipstaves must make themselves available for duties other than those performed for a particular judge. I note the assertion by Ms Johnston in her letter to the applicant on 17 April of the Crown's right to transfer tipstaves to other work but the respondent chose not to bring any evidence let alone evidence of a custom that supported Ms Johnston's assertion.

70 Another consideration is whether it was open to the Crown to transfer the applicant "at pleasure". This might be said to follow from the power to dismiss at pleasure: Deynzer v Campbell [1950] NZLR 790; McCarry, "Aspects of Public Sector Employment Law" at 31, which, although such power is limited by statute, it does not affect an implied power to transfer at will. Even if one accepts this proposition (the learned author submitted there was no such power), it runs into the problem that, if at the time of engagement the applicant was not made aware that she could be transferred or re-located and that she did not subsequently consent to being transferred or re-located, for the Crown to unilaterally do so could be considered to be unfair in the context of termination of employment. In this case the applicant had no inkling of the prospect she might be subject to re-appointment on the personal staff of another Judge of the Court. However, it could be argued that transfer to the personal staff of another judge was such a minor departure from the original contract made with the applicant that it could not be considered to be unfair. In the normal course of events that might be the case. However, here I am constrained to consider how it was that the applicant came to find herself having to refuse re-appointment. Certainly, her letter of 11 April was a significant factor. But the letter's antecedents relating to the Crown's handling of the matter, in my opinion, must be taken into account in weighing whether there was any unfairness associated with the applicant's dismissal. 71 To attempt to unilaterally transfer the applicant against a background in which the respondent, in my opinion, mishandled the matter and was at fault, would strongly suggest unfairness. 72 I also note the decision in Suttling v Director-General of Education [1985] 3 NSWLR 427, where the New South Wales Court of Appeal (Glass and McHugh JJA, Kirby P dissenting) took the view that a public employer, including the Crown, could not unilaterally vary agreed terms unless an express statutory power to do so is exercised. It could be argued in this case, I think, that there was an express agreement between the Crown and the applicant that she would be employed for a fixed period in the service of Justice Simos, subject to the condition that the applicant would also serve an Acting Judge during Justice Simos' absence on long leave. Subject to any repudiation of that agreement by either party, its variation could only be effected by an express statutory power to do so. 73 Based on the foregoing analyses, I have come to the conclusion that it was not part of the contract of employment between the applicant and the respondent, or a unilateral right on the part of the respondent, that the respondent could direct the applicant to take up an appointment on the staff of another Judge of the Court. But I must make it clear that this is not the foundation on which I make my finding that the dismissal of the applicant was harsh, unreasonable or unjust; it is a consideration that I have taken into account in the overall circumstances of the case. 74 I have also had regard to the conditions attached to the continued employment of the applicant, namely, that the applicant was required to undertake not to commence legal proceedings against the Court and to refrain from public discussion regarding the matters contained in her report relating to Ms Hutchison. In my opinion, the requirement that the applicant give these undertakings as a condition of continued employment, added to the unreasonableness of the position adopted by the respondent. The fact that the applicant was subjected to harassment by Ms Hutchison and was subsequently asked to provide a report on that harassment was not a situation of the applicant's making and I cannot see why she had to bear the burden of constraint in order to keep her job. 75 It is very clearly the case that neither side was without fault in this matter. This has required me to weigh up the respective conduct of the parties having regard to the overall context of the circumstances that gave rise to these proceedings. 76 Having placed the applicant in the stressful position that it did, in imposing on her to produce a report on the conduct of a fellow employee of whom the applicant was frightened, the respondent had a duty to act quickly to resolve the matter. Instead, the person against whom the applicant's report was directed was given a minimum of over two weeks to provide a response. This was despite complaints by a former tipstaff of the person's conduct. Further, the applicant was required not to attend work and was left in a state of uncertainty for an unreasonable length of time, adding significantly to the stress and anxiety she was already experiencing. 77 The letter of 11 April, written by the applicant, was rash and ill-considered given her express desire to remain as Justice Simos' Tipstaff. The letter obviously contributed to the situation that eventually led to her dismissal. The applicant was advised that she would no longer serve on Justice Simos' personal staff and was offered continued employment on the staff of another judge subject to the giving of certain undertakings. The applicant refused and on that basis her employment was terminated. 78 I accept that in light of the applicant's letter of 11 April her continued retention as Justice Simos' Tipstaff would have been intolerable. This was the essence of the respondent's case; it was left with no choice but to seek to have the applicant re-appointed to the staff of another judge subject to certain undertakings. In my view, however, the respondent had no right, either under the contract of employment with the applicant or any unilateral right derived from the common law to insist on any transfer and, therefore, it could not be said that the applicant's refusal to accept the transfer and the conditions attached to it was unreasonable. 79 I acknowledge that all this created a significant dilemma for the respondent; on the one hand the necessary trust between Judge and Tipstaff had been destroyed and, on the other hand, the applicant refused to be re-appointed to another judge. In large part, however, this dilemma was of the respondent's own making and it cannot escape liability by shifting the responsibility for the situation onto the applicant and her letter of 11 April. One must have regard to the letter's antecedents which, in my opinion, amounted to unfair treatment of the applicant. 80 I find that the dismissal of the applicant by the respondent was unreasonable and unjust. 81 I have considered the appropriate remedy. There is no doubt that reinstatement or re-employment of the applicant would be impracticable. The necessary trust and confidence is simply not there: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. Consequently, I consider that compensation in this case is appropriate. In awarding compensation I have paid regard to the applicant's contribution to the circumstances leading to her dismissal, which includes her letter of 11 April and her refusal to meet Ms Johnston. For this reason I am not prepared to award the claim for the maximum amount of compensation available under the Act. Orders 82 Pursuant to s 89(5) of the Industrial Relations Act 1996, the Commission orders that:

1. The Crown in right of the State of New South Wales (Attorney General's Department) shall pay to Terriann Nicole Bale an amount equivalent to 13 weeks' pay calculated on the basis of her weekly salary as at 20 April 2000.
2. The amount so ordered shall be paid within 21 days of the date of this decision.

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