Ferns and Department of Corrective Services [2005] NSWIRComm 9 - NSWIRComm 2000 case summary — Zoe

NSWNSWIRComm

Ferns and Department of Corrective Services [2005] NSWIRComm 9

[2005] NSWIRComm 9

Industrial Relations Commission (NSW)|2000-04-14|Before: Sams DP, Walton VP, Schmidt J, Schmidt JJ

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2000-04-14

Before

Sams DP, Walton VP, Schmidt J, Schmidt JJ

Source

Original judgment source is linked above.

Judgment (212 paragraphs)

[1]

CITATION: Ferns and Department of Corrective Services [2005] NSWIRComm 9

[2]

APPLICANT: Craig Nathan Ferns PARTIES: RESPONDENT: Department of Corrective Services

[3]

Termination of employment - Correctional Officer - Drug Dog Detection Unit (DDDU) - officer charged with criminal offence - transfer to general duties - criminal charges dismissed - request to transfer back to DDDU refused - consideration by Professional Conduct Management Committee - other performance related issues - whether applicant constructively dismissed - principles of constructive dismissal - access to records - failure to advise of investigation of allegations - whether transfer a permanent or temporary transfer - provisions of Public Sector Employment and Management Act 2002 - applicant refused to attend for work at Silverwater Jail as directed - whether direction a lawful and reasonable direction - wilful misconduct - whether allegation of misconduct proven - principles of summary dismissal - further allegations of working secondary employment while on sick leave - reinstatement offer withdrawn - nature of evidence - procedural fairness - whether dismissal harsh, unreasonable or unjust - compensation sought. CATCHWORDS: Held, applicant not constructively dismissed - transfer not temporary - no breach of Public Sector Employment and Management Act 2002 - direction to return to work at Silverwater a lawful and reasonable direction - applicant's conduct wilful and premeditated - summary dismissal justified - facts known after dismissal appropriately taken into account - respondent's investigation flawed - applicant unaware of matters considered - applicant not given opportunity to respond - respondent's procedures not followed - denial of procedural fairness in lead up to dismissal - dismissal procedurally unjust - alternative employment - age and conduct of applicant - compensation ordered.

[5]

Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Allison v Bega Valley Council (1995) 63 IR 68 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bates v Gundagai District Services Club (unreported, Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000) Blyth Chemicals Limited and Bushnell (1933) 49 CLR 66 Britton v Riverstone Public School (unreported, Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999) Buckman v Burdekin (1998) 85 IR 415 Burke v McGirr (1995) 87 IR 54 Byrne v Australian Airlines (1995) 185 CLR 401 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Day v Lumley Life Limited (1999) 90 IR 70 Franklins Limited v Webb (1996) 72 IR 257 CASES CITED: Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Little v Commissioner of Police (No.2) (2002) 112 IR 212 North v Television Corporation Ltd (1976) 11 ALR 599 Oswald v NSW Police Service (1999) 90 IR 42 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 Police Service of New South Wales v Batton (2000) 98 IR 154 Shop Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1 St Vincents Hospital Sydney Limited v Harris (unreported, Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998) Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46 Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [2004] NSWIRComm 26 Ward v Mobile Innovations [2002] NSWIRComm 287 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Wilson v Department of Education and Training (2000) 100 IR 1

[138]

113 Returning then to the requirements under the Public Sector Employment and Management Act 2002. The sections said to have been not complied with were ss86 and 87: 86 Temporary staff transfers (secondments) (1) A member of staff of a public sector agency may transfer temporarily to the service of another public sector agency with the approval of the heads of the home agency and the host agency. (2) A member of staff of a public sector agency may transfer temporarily to another position or other employment within the agency with the approval of the head of the agency. (3) A temporary transfer under this section may be: (a) at the request, or with the consent, of the member of staff concerned ( "an employee-initiated temporary transfer" ), or (b) at the direction of the head of the home agency ( "an employer-initiated temporary transfer" ). (4) A person may be temporarily transferred under this section at the person's existing level of remuneration or at a different level of remuneration. However, an employer-initiated temporary transfer cannot be made at a lower level of remuneration. (5) A person who transfers to the service of another public sector agency under this section remains an employee of the home agency. (6) However, in the case of an employee-initiated temporary transfer, the person ceases to be an employee of the home agency and becomes an employee of the host agency if: (a) the transfer has continued for at least 2 years, and (b) the head of the home agency notifies the person of the proposed cessation of employment, and (c) the person decides to remain with the host agency with the consent of the head of that agency. (7) In the case of an employee-initiated temporary transfer, a permanent appointment may be made to the original position of the person (and without the person ceasing to be employed by the agency) if: (a) the transfer has continued or is likely to continue for more than 12 months, and (b) the person is advised of the proposed appointment, and (c) the person is given a reasonable opportunity to terminate the transfer and return to his or her original position. (8) In the case of an employer-initiated temporary transfer, a permanent appointment cannot be made to the person's original position except with the consent of the person. (9) The following is to be determined in accordance with such guidelines as are issued from time to time by the Director-General of the Premier's Department: (a) the procedures for obtaining the consent of an employee under this section, (b) the circumstances in which an employer-initiated temporary transfer to a different workplace location in the State may be made. (10) In this section: "home agency" means the public sector agency from which the transfer of a member of staff is made under this section. "host agency" means the public sector agency to which the transfer of a member of staff of another agency is made under this section. "public sector agency" does not include a State owned corporation. Note: See also section 24 for acting appointments to vacant positions or where the holder of the position is suspended, sick or absent 87 Employer-sponsored permanent transfers (1) The head of a public sector agency may, subject to this section, transfer a member of staff of the agency to the service of another public sector agency: (a) with the approval of the head of the other agency and of the Public Employment Office, and (b) following consultation with the member of staff. (2) The head of a public sector agency may, subject to this section, transfer a member of staff of the agency to another position or other employment within the agency, following consultation with the member of staff. (3) The following provisions apply to the transfer of a person under this section: (a) the transfer is to be made at the person's existing level of remuneration, unless the person consents to the transfer at a lower level of remuneration, (b) if the person is employed in a staff position or on a temporary basis, the person is to be transferred to another staff position or to other temporary employment, respectively, (c) the person must possess the qualifications required for the position or employment to which the person is transferred or have the capacity to perform the work after a reasonable period of time in the position or in that employment.

[159]

132 In Concut Pty Ltd v Worrell and Anor, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. See also Blyth Chemicals Limited v Bushnell ; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46 and Hunt v Hornsby Shire Council [2001] NSWIRComm 242.