Carter v Secretary, Department of Education [2026] NSWIRComm 6 | Case summary | Zoe

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Carter v Secretary, Department of Education [2026] NSWIRComm 6 | Case summary | Zoe

The applicant’s amended application does not identify any appealable error in the Senior Commissioner’s decision. Instead, the amended application seeks to relitigate the matters raised before the Senior Commissioner at first instance. This is most apparent from the “Appeal Grounds” in the amended application, which, rather than identifying error, constitute a submission as to why the respondent’s decision to medically retire the applicant was “harsh and unjust”. An appeal is not an opportunity for an applicant to simply relitigate the merits of their case at first instance.
The amended application advanced ten reasons why leave to appeal should be granted. For the reasons set out at [34] of the respondent’s submissions, these reasons advanced by the applicant do not satisfy us that leave to appeal should be granted.
That the applicant could not return to her substantive role at Cammeraygal High School at the time of the dismissal was not disputed, [8] and it was not seriously in issue between the parties at first instance that she would not be able to do so in the foreseeable future. [9] In any event, the decision of the Senior Commissioner did not depend on the applicant’s inability to return to the specific role at Cammeraygal High School. It relied on ongoing restrictions that prevented the applicant from working more than three days per week.
As to the alleged failure to follow the respondent’s own Medical Retirement Guidelines, the relevant question is whether the dismissal was harsh, unjust or unreasonable in the circumstances—compliance with policy or guidelines may be relevant to such a consideration, but they do not “override” or displace the statutory test. The asserted failure identified by the applicant, being the absence of a medical report that was less than three months old, which the Senior Commissioner held was met by a report of Dr Sagi dated 17 June 2024, was at best a technical failure and one that could not ground a finding that the dismissal was harsh, unjust or unreasonable.
This is equally so for the claimed non-compliance with workers compensation legislative requirements, including obligations to provide suitable alternative duties. It was plainly open to the Senior Commissioner to find that the respondent had, in fact, made repeated and reasonable efforts to accommodate the applicant’s medical restrictions and that the respondent was not required to continue to make such efforts indefinitely. Further, and in any event, the solicitor appearing for the applicant below abandoned the case so far as it relied on a failure to provide suitable duties. [10]
The applicant identifies that a medical report of her treating general practitioner dated 17 June 2024 stated that the applicant’s current “restrictions are not permanent” and that “our expectations and goals would be for [the applicant] to return to her full hours”. Those “current restrictions” were: not to return to the “substantive school”; to work within 30 minutes of her place of residence; and to work three days per week at regular hours. Against that report was evidence of medical reports and certificates of capacity over the previous two years, including from the same general practitioner, that consistently found that the applicant had the abovementioned restrictions with no suggested end date (for example, one referred to a restriction being “for the foreseeable future”), which were summarised by the Senior Commissioner at [56] of her decision. In light of that evidence, there is no arguable basis to contend that it was not open to the Senior Commissioner to be satisfied “that there was no real basis for [the decision-maker] to consider that [the applicant’s] restrictions would change” [11] and that consequently there was a sound basis for the decision-maker to decide to medically retire the applicant at that time. [12]
No error was made by the Senior Commissioner as a result of failing to find that there was an absence of evidence of a permanent incapacity. It is not apparent that this was a matter relied upon by the applicant at first instance in support of a contention that the dismissal was harsh, unjust or unreasonable. In any event, there had been demonstrated incapacity over a seven-year period based on medical reports provided by the applicant and ongoing incapacity had been admitted in respect of the applicant’s substantive role.
The applicant has failed to identify any error in the Senior Commissioner’s assessment of whether the respondent’s decision was procedurally fair. The applicant’s contention otherwise, to the effect that her submissions were not meaningfully engaged with by the respondent before termination, amounts to no more than an assertion that the respondent failed to agree with them at the time, and merely seeks to relitigate a submission which was rejected at first instance.
The Senior Commissioner applied the correct test to determine the applicant’s unfair dismissal application; she did so at [39] of her decision. [13] The Senior Commissioner directed herself correctly to consider that test by reference to three issues. [14] The applicant does not identify that the Senior Commissioner failed to have regard to a relevant matter, nor, that she had regard to irrelevant matters. The appeal ultimately does no more than to ask us to come to a different conclusion as to whether the dismissal was harsh, unjust or unreasonable on the same material. In that regard, it fails to identify an appealable error.