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:
- 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.
- The amount so ordered shall be paid within 21 days of the date of this decision.