Francois v Industrial Relations Secretary

Industrial Relations Commission (NSW)|2019-03-12

Judgment

The appellant sought, by a Notice of Appeal filed 29 March 2018, to challenge decisions of the Department of Corrective Services ("the Department") cancelling her security clearance and deferring her increment. The two decisions were said to be made on 12 October 2017 and 2 March 2018 respectively. Attached to, although not otherwise referred to in, the Notice of Appeal was the following correspondence: 1. Letter dated 12 October 2017 notifying the appellant that an allegation of misconduct had been sustained and the misconduct outcome was "re-assignment to a different role"; 2. Letter dated 21 February 2018 from the solicitors for the appellant seeking information as to the meaning of the misconduct outcome; 3. Letter dated 2 March 2018 responding to the letter of 21 February; and 4. Letter dated 19 March 2018 from the solicitors for the appellant relating to her workers compensation rights.
By Notice of Motion filed on 7 December 2018 the respondent sought an order that the appeal be dismissed or permanently stayed. At the outset of the hearing leave was sought to make some minor amendments to the Notice of Motion. The appellant did not consent to the amendments and sought leave, at the same time, to amend the Notice of Appeal.
The respondent amendments sought by the respondent were; 1. An amendment to the title of person responsible for granting or refusing the National Security Clearance ("NSC"); and 2. An amendment to make explicit in the Notice of Motion its contention that the deferment of the increment was not an appealable decision. The only basis of objection to the amendments was that the respondent did not consent to the appellant's proposed amendment.
The appellant's proposed amendment was to make clear that the appellant wished to appeal the decision to reassign her outside the Corrections Intelligence Group ("CIG"). An issue arose as to whether that amendment was a mere administrative change to make the Notice of Appeal clear or a substantive change seeking, impermissibly, to extend time to appeal. I deferred consideration of that application until the parties were heard completely on the motion.

Relevant legislation

Part 5 of the Government Sector Employment Act 2013 (NSW) (the "GSE Act") is headed "Government sector employees". Relevantly ss 68 and 69 deal with unsatisfactory performance and misconduct. The sections provide so far as relevant: 68 Unsatisfactory performance of government sector employees (1) The government sector employment rules may deal with the procedural requirements for dealing with unsatisfactory performance (consistently with procedural fairness). (2) If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the person who exercises employer functions in relation to the employee may (without limitation on relevant action) take any of the following actions: (a) terminate the employment of the employee (after giving the employee an opportunity to resign), (b) reduce the remuneration payable to the employee, (c) reduce the classification or grade of the employee, (d) assign the employee to a different role … (Emphasis added) 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: government sector agency means: (a) a Public Service agency, and … misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: … (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. … (Emphasis added)
Other relevant provisions of the GSE Act are: 3 Definitions (1) In this Act: … role of an employee means the duties and responsibilities of the employee. … 26 Employer functions of Secretaries of Departments (1) The Secretary of a Department may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the following: (a) the Public Service senior executives assigned to roles in the Department, (b) the other employees of the Department, … (d) the Public Service senior executives assigned to roles in each Public Service executive agency related to the Department. … (3) The employer functions of the Government are all the functions of an employer in respect of employees, including (without limitation) the power to employ persons, to assign them to roles and to terminate their employment. (Emphasis added) 45 Employment in classifications of work (1) Public Service non-executive employees are to be employed in a classification of work determined by the head of the Public Service agency in which the person is employed in accordance with this Act and any other Act or law. Note. See Division 6 in relation to classifications determined under industrial instruments. (2) A classification of work extends to any kind of work and any grade of that work. 46 Assignment to roles in work classifications (1) In this section: assign to a role includes assign to a different role. (2) The head of a Public Service agency may from time to time assign Public Service non-executive employees of the agency to roles in the agency in the classification of work in which the employees are employed. (3) Public Service non-executive employees may be assigned to roles to enable the flexible deployment of staff resources within the agency and to develop the capabilities of staff. (4) A Public Service non-executive employee is not to be assigned to a different role unless the employee has been consulted. The remuneration payable to the employee is not to be reduced because of the assignment to the different role without the consent of the employee. (Emphasis added)
I observe that the Note to s 45(1) is intriguing because there does not appear to be any reference in Div 6 to "classifications determined under industrial instruments".
Parts 7 and 8 of the Government Sector Employment (General) Rules 2014 (NSW) ("GSE Rules") deal with "Performance management" and "Misconduct - procedural requirements" respectively. The relevant provisions are: 36 Dealing with unsatisfactory performance (1) The person who exercises employer functions (the employer) in relation to a person employed in a government sector agency (the employee) may not take any action under section 68 (2) of the Act in relation to the employee unless: (a) the employee's performance is determined by the employer to be unsatisfactory in accordance with the agency's performance management system, and (b) reasonable steps have been taken to advise the employee that the employee's performance is unsatisfactory and the basis on which it is unsatisfactory, and (c) the employee is notified that the employer is proposing to take specified action under section 68 (2) of the Act in respect of the employee, and (d) the employee is given a reasonable opportunity to respond to the notice, and (e) the employer has taken any such response into consideration. 38 Initial stage for dealing with allegations of misconduct (1) An allegation of misconduct by an employee of a government sector agency may be made by any person to the person who exercises employer functions in relation to the employee. (1A) The employee in respect of whom the allegation is made is referred to in this Part as the relevant employee and the person who exercises employer functions in relation to the employee is referred to in this Part as the employer. (2) After making an initial assessment of the allegation, the employer may decide not to proceed with the matter if the employer is satisfied that: (a) the allegation is vexatious or trivial, or (b) the incident or conduct concerned does not amount to misconduct, or (c) there is likely to be difficulty in establishing the facts of the matter. (3) If, after making an initial assessment, the employer decides to proceed with the matter, the relevant employee is to be advised: (a) of the details of the allegation of misconduct, and (b) of the action that may be taken under section 69 (4) of the Act against the employee. (4) The relevant employee is to be given a reasonable opportunity to make a statement in relation to the allegation. (5) The employer may, as a result of any such statement by the relevant employee: (a) decide to proceed to deal with the matter in accordance with this Part, or (b) decide not to proceed any further with the matter. The relevant employee is to be notified of the employer's decision. (6) The person making an allegation of misconduct is to be informed of any decision by the employer under this rule not to proceed with the matter. 39 Inquiries (1) The employer may, in dealing with an allegation of misconduct, conduct such inquiries as the employer thinks appropriate for the purposes of determining whether the misconduct has occurred. (2) A formal hearing involving the legal representation of the relevant employee or any other person and the calling and cross-examination of witnesses is not to be held in relation to an allegation of misconduct and the taking of any action with respect to the employee. 40 Findings by employer (1) The employer may, in dealing with an allegation of misconduct: (a) make a finding of misconduct by the relevant employee (in which case the employee is to be notified of the finding in writing), or (b) make a finding that misconduct by the relevant employee has not occurred (in which case the employer is to dismiss the allegation and advise the relevant employee in writing). (2) The employer may not take any action under section 69 (4) of the Act in relation to an employee unless: (a) the employee is notified of the proposed action to be taken, and (b) the employee is given a reasonable opportunity to make submissions in relation to the proposed action, and (c) if any such submissions are made, the employer has taken those submissions into consideration. (3) If the employer makes a finding of misconduct in relation to an employee, the employer may, instead of taking action under section 69 (4) of the Act, require the conduct of the employee to be monitored over a specified period notified to the employee. (4) If, during that specified period, the employer is satisfied that the employee has engaged in misconduct of the same or similar kind as the misconduct the subject of the previous finding, the employer may take any action under section 69 (4) of the Act in respect of the employee. (5) In that case, the employee is not required to be given an opportunity to make submissions in relation to the action proposed to be taken by the employer. (Emphasis added)
Clause 14 of the Government Sector Employment Regulation 2014 (NSW) ("GSE Regulation") deals with "increments". It provides: 14 Increments (1) The payment to any Public Service employee of an increment in accordance with any State industrial instrument or determination by the Industrial Relations Secretary under section 52 of the Act is, unless otherwise provided by the instrument or determination, to be made only with the prior approval of the agency head. (2) The payment of an increment to a Public Service employee (including any decision by the agency head to accelerate the progression of an employee through the increment scale applying to the employee) is subject to: (a) performance requirements under the agency's performance management system, and (b) the satisfactory conduct of the employee as determined by the agency head. (3) The agency's performance management system is to set out the criteria for the payment of an increment in relation to performance. (4) Until such time as the agency head is satisfied that such criteria are set out in the agency's performance management system or until 1 July 2015 (whichever is the sooner), the payment of an increment to an employee is subject to the satisfactory performance of duties by, and the satisfactory conduct of, the employee as determined by the agency head. (5) The payment of an increment may be deferred from time to time, but may not be deferred for more than 12 months at any one time. (6) A Public Service employee must be promptly notified in writing by the agency head of any decision to defer payment of an increment. The notice must include the reasons for the decision. (7) This clause does not apply to Public Service senior executives. (Emphasis added)
Chapter 2, Part 7 of the Industrial Relations Act 1996 (NSW) ("the Act") is headed "Public sector disciplinary appeals". Relevant sections for the purposes of this motion are: 91 Interpretation (1) In this Part: appeal means a disciplinary appeal. appealable decision means a decision of a kind referred to in section 97 (1). approved form means a form in or to the effect of a form approved by the Chief Commissioner. disciplinary appeal means an appeal under section 98. office includes position. public sector employee means a person who is: (a) employed in the Public Service, or (b) employed under Part 1 of Chapter 9 of the Health Services Act 1997 in the NSW Health Service, or (c) an officer, or a temporary employee, within the meaning of the Teaching Service Act 1980, or (c1) employed under Part 7A of the Transport Administration Act 1988 in the Transport Service, or (d) employed, whether permanently or otherwise: (i) as an officer of either House of Parliament, or (ii) in any position under the separate control of the President of the Legislative Council or Speaker of the Legislative Assembly, or under their joint control, or (e) otherwise employed in the service of the Crown. public sector employer means the following: (a) for a public sector employee of the class referred to in paragraph (a) of the definition of public sector employee - the head of the relevant Public Service agency, (b) for a public sector employee of the class referred to in paragraph (b) of that definition - the Secretary of the Ministry of Health, (c) for a public sector employee of the class referred to in paragraph (c) of that definition - the Secretary of the Department of Education, (c1) for a public sector employee of the class referred to in paragraph (c1) of that definition - the Secretary of the Department of Transport, (d) for a public sector employee of the class referred to in paragraph (d) of that definition: (i) who is an officer of the Legislative Council or under the separate control of the President of the Legislative Council - the President, or (ii) who is an officer of the Legislative Assembly or under the separate control of the Speaker of the Legislative Assembly - the Speaker, or (iii) who is under the joint control of the President of the Legislative Council and the Speaker of the Legislative Assembly - the President and Speaker jointly, (e) for a public sector employee of the class referred to in paragraph (e) of that definition - the person in whose service the employee is employed. (2) (Repealed) 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: (a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) a decision to reduce the rank, classification, position, grade or pay of the employee, … (2) A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4). … (5) A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (4). (6) In subsection (1) (f): dismiss includes dispensing with the services of an employee (including under any right or power of the Crown to dispense with the services of an employee). (7) For the purposes of this Division: (a) a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 98 regardless of whether the decision was made for disciplinary reasons, and (b) a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect. 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. … 100A Notice of appeal A public sector employee may make an appeal by lodging with the Industrial Registrar a notice of appeal in the approved form. 100B Time for lodging appeal (1) … (2) Notice of a disciplinary appeal must be lodged within 28 days after the public sector employee is notified of the decision against which the appeal is to be made. … (Emphasis added)

Evidence

The respondent read two affidavits of Julianne Taverner sworn 7 December 2018 and 8 March 2019. The appellant read her affidavit sworn on 11 January 2019. Neither witness was required for cross-examination. There was little contest as to the primary facts but there was some disagreement as to the conclusions which should be drawn from those primary facts.
Ms Taverner deposed, in her first affidavit, that: 1. The appellant commenced employment with the Department in July 2007 as a Probation and Parole Officer. 2. In April 2014 she was appointed to the role of Intelligence Analyst located in the Corrections Analyst Group at Silverwater. 3. On 8 April 2016 a disciplinary process was commenced into allegations of misconduct by the appellant. 4. By that time the appellant was employed in the role of Senior Intelligence Analyst (Administrative and Clerical Officer Grade 7/8). 5. From 8 April 2016 until 11 October 2016 a fact finding investigation was undertaken by the Department's Investigation Branch. 6. By letter dated 11 October 2016 the Acting Assistant Commissioner Security & Intelligence, Ms Angie West, informed the appellant of allegations of misconduct made against her. Ms West also advised that she intended to deal with the allegations under s69 of the GSE Act. 7. The appellant was invited, in accordance with clause 38(4) of the GSE Rules 2014, to make a statement in response to the allegations. 8. The appellant responded on 14 November 2016. 9. The appellant was due to move to the top of Grade 8 on 13 December 2016. 10. On 17 January 2017 the appellant was advised by an email from Mr Graeme Conn, Acting General Manager, CIG, that her increment was deferred pending finalisation of the misconduct allegations. 11. The appellant had been absent from work from 16 February 2017 and was in receipt of workers compensation. 12. On or about 9 March 2017 a decision was made to change the decision-maker from Assistant Commissioner Mark Wilson, Security & Intelligence Group to Assistant Commissioner Kevin Corcoran, Custodial Corrections. I have inferred that Ms West ceased to be Acting Assistant Commissioner on the return of Mr Wilson to that position. I have further inferred that, as he was mentioned in the second allegation of misconduct, it was deemed inappropriate that Mr Wilson should be the decision-maker. 13. On 5 April 2017 Mr Corcoran wrote to the appellant advising that the first allegation of misconduct was sustained and there would be no further action regarding the second allegation. He also advised that the severest penalty he was considering imposing was "Assignment to a different role". 14. On 21 April the Public Service Association sought, on behalf of the appellant, an extension of time to provide a response. An extension of 14 days was approved. 15. The appellant responded by the due date of 5 May 2017. In her response the appellant raised issues relating to the investigation undertaken into the allegations. 16. By letter dated 6 June 2017 Mr Corcoran wrote to the appellant and provided the "Investigations Branch Fact-Finding Report" and certain policy documents. He invited any further submissions the appellant wish to make in the light of those documents. 17. The appellant sought a further extension of time to respond. That was granted. 18. On 13 July 2017 the appellant emailed her response. 19. On 12 October 2017 Mr Corcoran advised the appellant that he had finalised his consideration of the matter and had formed the view that she had engaged in misconduct in that she had disclosed confidential information. The penalty he determined to impose was "Re-assignment to a different role". 20. On 21 November 2017 the appellant sought a review of the misconduct process and findings. The Commissioner for Corrective Services, Mr Severin, declined to authorise such a review. 21. On 19 December 2017 the appellant sent an email to the Executive Director, Strategic Human Resources, Department of Justice seeking a review and raising issues of alleged "systemic and institutional bullying including incidences of discrimination". The Executive Director indicated he would discuss the matter with the appellant. 22. The appellant received her salary increment on 8 February 2018 including back pay for the period 25 December 2017 to 5 January 2018. The appellant was on leave without pay for the period 13 December 2017 to 24 December 2017. 23. As the appellant had not appealed the misconduct outcome by 24 November 2017 the Department advised the Office of Police, Department of Justice of the outcome of the misconduct process. On 9 March 2018 the Office of Police advised that the NSC previously granted to the appellant had been ceased with effect from 8 March 2018.
In her affidavit the appellant deposed that: 1. Between 13 October 2017 and March 2018 she had made numerous attempts, personally and through her union, to find out about the payment of her increment and the practical consequences of the decision to assign her to a different role. 2. Ms Taverner had advised by letter dated 2 March 2018 that the appellant's security clearance had been cancelled and that "it was envisaged" that the appellant would be assigned to a role outside of the CIG but that "any reassignment will be effected in consultation with" the appellant on her return to work. 3. The notice of appeal the subject of the current motion was filed on 28 March 2018 (in fact 29 March). 4. She had not been paid her increment from 13 December 2016. 5. Her skills are "highly specialised as a Senior Intelligence Analyst". Her role as a multilingual analyst was not readily available in any organisations that she was aware of outside the public sector and she is essentially unemployable in any field in which she is suited by way of experience, background or training.
In her affidavit in reply Ms Taverner deposed that: 1. She was not the decision maker in the misconduct proceedings nor had she any involvement in relation to the deferral of the appellant's increment. 2. Her anticipation that the appellant would be assigned to a role outside the CIG was based upon: 1. The need for an NSC for all roles within the CIG; 2. Her understanding that the appellant's relationship with staff in the CIG had deteriorated to the point the appellant would not want to return to the CIG based, in turn, on a medical certificate stating that contact with Corrective Services staff may exacerbate her medical condition; and 3. Discussions with Ms West in which were mentioned the likelihood of: 1. the Office of Police declining any application for a new security clearance; and 2. reassignment outside the CIG. 1. Subsequent to the decision to reassign the appellant to a different role there had not been any discussions between the Department and the appellant about the role to which she might be assigned upon her return to work. 2. No decision had yet been taken to reassign the appellant to any particular role.

Submissions

Both parties, in accordance with the directions of the Commission, filed a written outline of submissions. Those submissions were supplemented orally.

Respondent's summary

In their written submissions Counsel for the respondent submitted that the appellant's invocation of the Commission's jurisdiction was wholly misconceived in relation to the deferment of the increment and the cancellation of the security clearance in summary because: 1. there was disclosed in the Notice of Appeal no "appealable decision" for the purposes of Ch 2, Pt 7 of the Act; and 2. the appeal was not commenced within the 28 day time limit prescribed by s 100B(2) of the Act and there is no power to extend the time limit.
The Notice of Appeal filed on 29 March 2018 made no express reference to the decision, following the misconduct proceedings, to reassign the appellant to a different role. Therefore the appeal does not relate to that decision. Moreover, even if the appeal was held to extend to that decision, there is no jurisdiction to hear an appeal against that decision because: 1. the appeal was not commenced within time; and 2. it is not an appealable decision within the meaning of Ch 2, Pt 7 of the Act.

Submissions as to deferment of increment

The advice to the appellant on 17 January 2017 that her increment was to be deferred pending the determination of the misconduct allegations was not a decision "to defer, for a period in excess of 6 months, the payment of an increment". Rather it was an acknowledgement of the effect of cl 14(2)(b) of the GSE Regulation. Mr Conn's email advised that "the increment in your salary has been deferred, pending resolution of the current misconduct action involving you". The email went on to explain that the misconduct process could not be completed before the return of Ms West from leave in mid-February. The deferment of the increment was not therefore a decision within the meaning of s 97(1)(a) of the Act.
Furthermore, the deferral of the increment, if in fact it be as a result of a decision, was not otherwise a decision to which Ch 2, Pt 7 of the Act applies. In support of that proposition Counsel referred to the decision of the Court of Appeal in Marroun v State Transit Authority [2017] NSWCA 273, 96 NSWLR 295, in particular at [47]. In that paragraph the court said: "It is correct to say that s 100C(2) confers powers on the Commission in relation to a disciplinary appeal. Those powers are not at large; they must be exercised in deciding the disciplinary appeal before the Commission. The subject matter of the appeal, and thus the matter to be determined by the Commission, is the decision of the public sector employer to take specific disciplinary action. In Schoeman, the Public Sector Act, s 46(2), was unambiguous and unequivocal. It conferred power on the department head to take disciplinary action if the officer had engaged in misconduct. The employer had no power to take disciplinary action unless the officer had engaged in misconduct. It was the exercise of that power which was the subject of a disciplinary appeal and thus the subject matter with respect to which "jurisdiction" was conferred on the Commission. The powers conferred on the Commission were therefore limited to the exercise of that jurisdiction and to the disposal of the appeal. There is no legitimate reading of s 100C(2) which expands the jurisdiction of the Commission." (Emphasis added)
The emphasised passages in the extract from Marroun are those identified by Counsel to support the submission that the decision under appeal must be a disciplinary decision. By contrast the increment deferment was of a procedural nature pending determination of a disciplinary process; it was not itself a disciplinary measure.
If the decision to defer the increment was found by the Commission to fall within s 97(1) of the Act the respondent submitted, in the alternative, that the appeal was out of time. The appellant was on notice from at least 14 June 2017 that the increment had been deferred more than 6 months. The time for lodging any appeal expired on 12 July 2017. The proceedings were not commenced until 29 March 2018. The respondent pointed to two other possibilities, being the date 6 months after notification on 17 January 2017 and the date of notification of the misconduct decision, 13 October 2017. Time to appeal would have expired on 15 August and 10 November 2017 respectively. On any of these approaches the appeal would be out of time.
Counsel explained that the increment was "reinstated" on 8 February 2018 and on that date there was a back payment for the period 25 December 2016 to 5 January 2017 being the only period that the appellant was entitled to pay. The effect of these steps was that the increment was adjusted from 13 December 2016.
The time limit in s 100B(2) of the Act is mandatory and cannot be extended: Singh v Legal Aid New South Wales [2014] NSWIRComm 1016 at [30]-[40] and the cases there cited; Beavan v Industrial Relations Secretary [2016] NSWIC 1 at [156]; see also Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWIRComm 1075 at [38]-[40].

Submissions as to cancellation of security clearance

To be eligible for an NSC the applicant requires sponsorship by an employing government agency but the decision to grant an NSC is one taken by the Executive Director, Counter Terrorism Branch, Office of Police, Department of Justice.
A decision to revoke an NSC is not an appealable decision within the meaning of s 97(1) of the Act because: 1. it is not a decision identified in the section; and 2. it is not a decision of the appellant's employer.
As to the latter, the respondent pointed to ss 22, 23 and 26 and Schedule 1 of the GSE Act to identify the employer as the Secretary of the Department of Justice. I accept that to be correct. I find nothing in the evidence to suggest that the decision was made by, or should be taken to have been made by, the employer. The appellant did not contend otherwise.
In relation to the former, Mr Chin submitted that, even if the cessation of the NSC was an incident of the decision to reassign the appellant, to find that an appeal lay because of an incident of the decision, occurring months after time to appeal the decision to reassign had expired, would be an impermissible collateral attack on the reassignment decision.

Submissions as to the reassignment decision

The reassignment decision was not able to be appealed because: 1. The time for any such appeal had expired: and 2. It was not a decision of a kind identified in s 97(1) of the Act.
The basis of the argument as to the first point is that there was no issue notice of the decision was received by the appellant on 13 October 2017 and the purported appeal, to the extent that it referred to that decision, was not filed until 29 March 2018, approximately 4.5 months out of time.
In relation to the second point, Mr Chin submitted that such a decision, while an authorised action under s 69(4) of the GSE Act, is not one of the appealable decisions listed in s 97(1) of the Act.

Appellant's submissions

In her written submissions Counsel for the appellant noted that there were a number of matters which were not in dispute. They were: 1. there is a strict 28 day period in which an appeal must be lodged after the employee is notified of the decision; 2. the employer made a decision within the meaning of s 97(1)(a) of the Act; and 3. the term "public sector employer" within that section means the head of the relevant Public Service Agency. I note that the second listed matter was in dispute. In response to a question from me, Ms Andelman acknowledged and accepted that to be the case.
Ms Andelman identified the substantial legal issues in dispute as: 1. the meaning of the term "in relation to" in s 97(1) of the Act; 2. the meaning of the terms "decision to reduce" and "position" in s 97(1)(b) of the Act; and 3. the meaning of the term "give the employee notice in writing" in s 97(2) of the Act.
Counsel referred briefly to the principles of construction and observed that, as beneficial and protective legislation, the provisions of Pt 7 of the Act should be given a liberal and beneficial construction rather than one that is literal or technical. She cited in support the decision of the High Court in IW v City of Perth (1997) 191 CLR 1, and in particular the judgment of Brennan CJ and McHugh J at 12. Their Honours said: "The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural."
Ms Andelman submitted that appeals under s 98 were not limited to decisions taken for disciplinary reasons referring to the decision of Commissioner Newall in Vernon v State Transit Authority [2014] NSWIRComm 1014.
The appellant submitted that the phrase "in relation to" is one of wide import citing D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed, 2011, LexisNexis) ("Pearce & Geddes") at par 12.7, and the decision of McHugh J in O'Grady v Northern Queensland Mining Co Ltd (1990) 169 CLR 356 at 376.
Applying the approach of McHugh J in O'Grady, the words "in relation to" in s 97 of the Act mean that any decision, even a procedural decision, which relates to one of the listed decisions, may be the subject of an appeal. Any decision which has such a link and is a decision in relation to a public sector employee is appealable. Thus the decision by the employer not to sponsor the appellant has a link to the cancellation of the NSC. It does not matter that the second decision is not one by the employer. The effect is that the appellant will not be able to be transferred into a position where she can use her skills. The cancellation of the NSC means her "position" will be reduced.
The term "reduce" should also be given a broad interpretation. It ought not be confined to monetary considerations. Counsel referred to the Australian Oxford Dictionary definition which was to "make lower in status or rank".
Ms Andelman then referred to the definition of "role" in s 3 of the GSE Act, and the absence of a definition of the term "position" in that Act.
The appellant accepted that on its face the letter dated 12 October 2017 does not disclose an appealable decision. The letter is, however, incomplete and misleading because, respectively, it doesn't refer to the increment decision and it does not advise that the role may be outside CIG.
The appellant's position was summarised as follows: In summary, the respondent's decision is appealable because without a position in CIG or a sponsor for a Security Clearance, Ms Francois will no longer be able to carry out the SIO position or role, she may be able to apply for an administrative or other role at the same classification level but it will be a fundamentally different nature from the one to which she has studied and has experience in. In this regard it is a significant reduction to her capacity to carry out her current duties and responsibilities.
In connection with the obligation under s 97(2) to give notice of the decision as soon as practicable after the decision has been made, Counsel submitted that, for the reasons identified in [39], the letter dated 12 October 2017 was not a notice as required by the section. In short it failed to inform the appellant of the true import of the decision to reassign the appellant. That was not made known until Ms Taverner wrote to the appellant's solicitors on 2 March 2018. The appeal was filed within 28 days of that notification. The appellant did not know about the deferral of the increment until the respondent's outline of submissions for conciliation was filed in April 2018.

Consideration

I am satisfied on the evidence that: 1. No discrete decision was taken to defer the increment for a period in excess of 6 months; and 2. Deferral of the increment was not a disciplinary measure imposed as a result of the finding misconduct. 3. The appellant was on notice from 17 January 2017 that the increment, available from 13 December 2016, had not been approved and consideration of it was deferred pending finalisation of the misconduct investigation.
A review of the legislation indicates that deferral of an increment is not an action this employer may take in the event of finding misconduct. The permissible actions are listed in s 69(4) of the GSE Act and have their parallels in s 97(1) of the Act. Similarly s 68(2) of the GSE Act lists the actions available to an employer once it is determined an employee's performance is unsatisfactory. Deferring an increment for more than 6 months is not included.
The authority to defer an increment is found in cl 14(5) of the GSE Regulation. Although the subclause does not prescribe reasons why such a decision may be taken, subcll (2) and (3) provide guidance. It is clear the employer needs to be satisfied that the employee's performance and conduct are satisfactory before authorising payment of an increment.
The considerations of satisfactory performance and conduct mean that there is much to be said for the proposition that the right to appeal under s 97(1)(a) is not dependent on the taking of a discrete decision to defer the increment for more than 6 months. In other words, if deferral continues for a period in excess of 6 months as a matter of fact, an appeal may be available.
Against that proposition it may be said that the other decisions listed in s 97(1), subject to the qualification in s 97(7)(a), are all of a kind representing discrete decisions to impose, following a determination of unsatisfactory performance or finding of misconduct, a disciplinary punishment. Why would the decision in s 97(1)(a) be different?
Further, failure to be satisfied as to satisfactory performance or conduct is qualitatively different from findings of unsatisfactory performance or misconduct. The latter involves a positive decision whereas the former does not, save in so far as it may be described as a decision of being failed to be satisfied. There is scope to argue that deferral of an increment following a finding of misconduct may fall within the requisite category of disciplinary decisions, notwithstanding it is not included in ss 68 or 69 of the GSE Act. In view of my findings I do not need to decide whether that is so in this case.
The reliance on the decision in Vernon, an ex tempore decision, is in my view misplaced. The part of the decision in which the Commissioner considers the jurisdictional issue is found at [4]-[9]. The Commissioner said: [4] Before I turn to the facts of this case it is necessary to address what is in effect a jurisdictional question. That is this. [5] This is a matter brought before the Commission pursuant to s 98 of the Industrial Relations Act 1996. ('the Act') [6] The decision which is under challenge is the decision to terminate Mr Vernon's employment. The appeal is brought pursuant to s 98 which is that section of the Act which confers a right of appeal upon an employee in relation to a decision made by a public sector employer in relation to a public sector employee including, at s 97(1)(f), a decision to dismiss the employee. [7] Now at first blush it is apparent that decisions under s 97 are disciplinary decisions, and indeed they fall within Division 3 of Part 7 of Chapter 2 of the Act, which is that part of the Act that addresses disciplinary appeals. But when one examines the section more closely one sees that at s 97(1)(a) the Act provides that in respect of particular decisions, they being decisions of a kind set out in 97(1)(d), (f) or (g) of the Act, that is to say reduction in rank, dismissal or requiring an employee to resign, an appeal may be brought regardless of whether the decision was made for disciplinary reasons. [8] Now this matter is not a disciplinary matter; Mr Vernon was medically retired pursuant to regulation 12 of the Transport Administration (Staff) Regulation 2012 ('the 2012 Regulation') but nevertheless pursuant to s 96 and 97(a) of the Act he has a capacity to bring a challenge to this particular decision to the Tribunal under s 98 and that is what he has done. [9] I am of the view that the application for appeal and the appeal is soundly and correctly brought and the Commission has jurisdiction to hear it for the reasons that I have set out.
I note that the parties were not legally represented and the Commissioner did not appear to have the benefit of detailed submissions on the question of jurisdiction. Certainly no submissions are referred to and there is no reference to any authorities. Nor is there any textual analysis of provisions beyond s 97. The Commissioner appears to have decided the matter by reference to the words of the section as they existed at that time.
It appears the reference to s 97(1)(a) in [7] of the decision should have been a reference to s 97(7)(a). That paragraph expressly provides that the decisions referred to in s 97(1)(d), (f) and (g) may be appealed even if not made for disciplinary reasons. I agree with the "first blush" observation made by the Commissioner, which is understandable given the headings to Ch 2, Pt 7 and Division 3 of that Part. There is nothing otherwise evident in the other nominated paragraphs, (a), (d), (f) or (g), to suggest a contrary conclusion should be reached. Certainly nothing is identified by the Commissioner in the text of those paragraphs to point to such a conclusion. There is no analysis of the history of the legislation or of the legislation authorising the making of these decisions.
The Commissioner's construction only makes sense if the reference to s 97(1)(a) is understood to be intended to be s 97(7)(a). The Commissioner, it must be inferred, determined that medical retirement constitutes dismissal within the meaning of the section. Once that is accepted, the decision amounts to no more than a direct application of the express language of s 97(7)(a) of the statute. The decision is not authority for the proposition that the decisions in pars (a), (b), (c) and (e) need not be disciplinary decisions.
The effect of s 97(7)(a) is that, although those nominated decisions need not be disciplinary, the legislative intention is that the remainder, by reason of the fact they are not to be so treated by s 97(7)(a), must be disciplinary decisions. That is consistent with the Commissioner's analysis (as explained in [51]) in Vernon and the decision in Marroun.
Mr Chin referred to that decision and the passage set out at [19] to argue that the decisions must be disciplinary decisions. Ms Andelman suggested that submission is based on a misinterpretation of the case which was concerned with s 100C of the Act not ss 97 or 98. It is convenient to note the terms of s 100C at this point. It provides: 100C Decisions with respect to appeals (1) (Repealed) (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. (Emphasis added)
Ms Andelman was correct in her submission that Marroun was particularly concerned with s 100C of the Act. The Court noted, however, at [24]: "In order to understand the scope and nature of the appellate function of the Commission in dealing with a disciplinary appeal (also referred to as the Commission's jurisdiction) it is necessary first to identify the powers of the employer with respect to disciplinary action."
It can be seen therefore that, although the case may be said to have concerned s 100C, it was necessary in order to deal with that question to determine the nature and extent of the Commission's jurisdiction. In Marroun it was accepted (at [29]) that the appeal was a fresh hearing of the allegation of misconduct. The Court observed at [35] that: "In colloquial terms, an appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed."
Applying this reasoning, the Commission's jurisdiction in this case would require the identification of the "specific charge or complaint" before the employer and the decision which was made in relation to it. If that decision is one of the decisions listed in s 97(1) of the Act the Commission has jurisdiction to make a determination in relation to that decision based upon the specific charge or complaint which it purported to determine. I note Marroun leaves open the question of amendment of the charge in the proceedings before the Commission. The focus of Ch 2, Pt 7 is on the disciplinary charge and outcome at least in respect of the decisions which are, or must be, disciplinary. I further note Mr Marroun was dismissed and therefore s 97(7)(a) would apply but there was no issue in that case that it was a disciplinary decision.
These considerations each support the submission of the respondent that Ch 2, Pt 7 is, save for the explicit exceptions, about disciplinary appeals from disciplinary decisions. That proposition is reinforced by the express reference in many sections of Ch 2, Pt 7 to "disciplinary appeals" as exampled in s 100C (2) and (3) at [53].
In accordance with that construction the decision to defer an increment referred to in s 97(1)(a) must be a disciplinary decision. It is to be remembered that Ch 2, Pt 7 applies to several government employers and their employees. So much is apparent from s 91(1) of the Act. In Marroun, for example, the State Transit Authority was the employer and the employee was a member of the Transport Service. As the Court of Appeal noted at [24] the powers of the employer with respect to disciplinary action were found in the Transport Administration (Staff) Regulation 2012 (NSW). The Court set out the relevant provisions. Included in the list of "disciplinary actions" available to the employer was "deferral of the payment of an increment".
Bearing in mind Ch 2, Pt 7 applies to a variety of employers who have different disciplinary powers it is understandable that the scope of s 97(1) may be broader or narrower than the scope of disciplinary actions available to a particular employer.
I conclude therefore that the decisions listed in s 97(1), other than those identified in s 97(7), must be disciplinary decisions.
In view of my finding that the deferral of the increment was not a disciplinary decision, and therefore not a decision within the meaning of the section, it is not appealable.
There is another basis on which it may be said that the deferment decision is appealable. Although not expressly argued, it is consistent with the appellant's submissions that the decision may be one in relation to a disciplinary decision. The arguable connection is that the deferment occurred by reason of a disciplinary process which culminated in a disciplinary outcome, to assign the appellant to a different role, which was not itself a decision within the meaning of s 97(1). For the reasons discussed at [65] - [70] I reject that construction.
Even if I am wrong in reaching the conclusion that the deferment is not an appealable decision, in my view the appeal is nevertheless out of time. The appellant was aware that she was eligible for the increment on or about 14 December 2016. She received notice that the increment would be deferred pending the outcome of the misconduct investigation on 17 January 2017. The period of 6 months expired in June and 28 days from that event expired in July 2016. No appeal was lodged until late March 2018.
The appellant submits that she was unaware of the increment decision until receipt of the respondent's conciliation submissions. That is at odds with the appeal filed which specifically refers to refusal of the increment. It is also at odds with the applicant's evidence. The appellant was unaware that the increment had in fact been authorised until she received the conciliation submissions. That fact explains why the appeal sought relief in relation to the increment when the relief had already been granted by the employer. It does not support the proposition that she was unaware the increment had been deferred as a matter of fact.

Cancellation of the NSC

The appellant's argument in relation to the cancellation of the NSC depends firstly upon the construction she places on the phrase "in relation to" in s 97. In my opinion the construction is completely misconceived.
The phrase as it appears in the section describes the relevant "public sector employee". It is the employee directly affected by the disciplinary decision who has the right of appeal.
The phrase does not qualify each of the decisions in s 97(1). The appellant's construction requires the phrase to be inserted (a second time) after the word "employee".
The passage to which counsel referred in O'Grady needs to be understood in context. McHugh J said: The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. (Emphasis added)
The highlighted part of the passage is the part quoted by the appellant. As can be seen from the full passage, his Honour's observation is subject to contrary indications of context. In Pearce and Geddes the authors make the same observation that context is all important, citing a number of authorities in support. What is clear from these references is that the phrase requires a connection between two subject matters. The nature and degree of connection is dependent on context.
The two subject matters in s 97(1) are the public sector employee and the decisions listed in the section. Decisions which may be incidental or in some way related to a decision listed in the section are not themselves appealable decisions. Only the decisions listed in s 97(1)(a) may be appealed. So much is clear from the opening words to s 97(1) which limit the operation of the section to the specific decisions which follow. In short, to have a right of appeal a public sector employee must identify a decision, listed in s 97(1), made by his or her employer which relates to her as an employee.
A further difficulty is that the relationship identified by the appellant is between the decision not to sponsor the appellant in connection with the NSC and the cancellation of the NSC. Putting aside the lack of evidence as to the reasons for cancellation of the NSC and assuming in the appellant's favour that there is a connection between the two decisions, neither decision is one listed in s 97(1). The appellant's answer to that is to say that the decision to cancel the NSC results in a reduction in the "position" of the appellant.
That submission has as its base a broad construction of the word "reduce" in s 97(1)(b). I acknowledge the concept of a reduction in position is not easily comprehended. But in my view "position" is to be understood consistently with the words around it being "rank", "classification" and "grade". A reduction in pay is readily and objectively understood. As are the concepts of reduction in rank and grade. In my opinion the words "classification" and "position" are to be similarly understood.
In construing these provisions it is, once again, important to bear in mind that they apply to more than one public sector employer and those employers operate pursuant to different legislative authorities. In that regard, and bearing in mind that par (b) of s 97(1) concerns disciplinary decisions, it is relevant to have regard to the authority of this employer to impose disciplinary outcomes. That authority is found in ss 68 and 69 of the GSE Act.
The parallel punishments to par (b) are found in s 68(2) (b) and (c) and s 69(4)(d) and (e). I do not overlook s 69(4)(f) but note that it does not use the word "reduce".
These sections do not refer to a reduction in "position". It may be that in respect of another public sector employer the concept has a particular and apt meaning. It is unnecessary to explore that further in this case.
Ms Andelman characterised the reduction in this case as the inability to transfer the appellant to a position (or role in the language of the GSE Act) in which she can use her skills. The appellant in her affidavit expressed in this way: "In practice, my skills are highly specialised as a Senior Intelligence Analyst in Corrective Services. My role as a multilingual analyst with a deep cultural understanding of the Middle East is not readily available in any organisations that I am aware of outside the public sector, as it is a niche skillset of use only to Government agencies. In conjunction with the interference with my formal security clearance, I am essentially unemployable in any field in which I am suited by way of experience, background or training."
There are a number of observations about these characterisations. First, the appellant has not yet been reassigned. That is to take place after consultation with her. Second, her employability is not in issue because her employment has not been terminated nor is there any suggestion that the employer proposes to terminate her employment. Third the submission requires a subjective approach to the meaning of "reduce". The submission and evidence lead to the proposition that the appellant is convinced that she will be assigned to a role that she is not happy to undertake. Whether that is so is not yet known nor is it necessarily something that may only eventuate from a disciplinary decision.
Pursuant to s 46 of the GSE Act the head of the agency may assign or reassign employees to roles to enable the flexible deployment of staff and develop capabilities of staff. Assignment to a different role requires consultation with the employee. Such decisions are not disciplinary. They may have the effect, however, of assigning an employee to a role which the employee would prefer not to undertake.
More importantly, whether a decision is to reduce something is to be objectively assessed. It is the employer's decision to "reduce" which is to be appealed. It is inconsistent with that context to assess it on a subjective basis from the perspective of the employee.
I do not regard the assignment of the appellant to a different role as amounting to or being a reduction in "position" within the meaning of s 97(1)(b) simply because the appellant is not happy to be assigned to a role other than Senior Intelligence Analyst in the CIG.

Compliance with s 97(2)

The criticism here is that the letter of 12 October 2017 was inadequate because it failed to reveal the "true import" of the decision to assign to a different role. I do not accept that submission. The "true import" I understand to be the characterisations described in [76].
The letter was clear in that it informs the appellant of the misconduct finding and misconduct outcome. The outcome was one of the actions authorised by s 69(4) of the GSE Act. If there was a right of appeal arising out of the decision taken, time ran from the date the decision was notified to the appellant, which was on 13 October 2017. This view is strengthened by compliance with the regime under the GSE Act and Rules.
I note that s 69(3) of the GSE Act authorises the GSE Rules to deal with misconduct and the procedural requirements for dealing with allegations of misconduct. Rule 40(2) of the GSE Rules requires the employer to advise the employee of the misconduct outcomes and proposed actions and give the employee an opportunity to make submissions in relation thereto. That was done in this case by Mr Corcoran's letter of 5 April 2017 to which the appellant responded by emails dated 5 May 2017 and 13 July 2017. The response of 13 July acknowledges the opportunity to make submissions as to the proposed misconduct outcome. The appellant's response was to submit there was no case to answer. No submission was otherwise directed to the proposed outcome of reassignment. Neither was there any request for further information about the proposed reassignment.

Appellant's application to amend

In view of my findings that the decision to reassign the appellant to a different role was not an appealable decision and any purported appeal was out of time I formally refuse to grant the amendment.

Conclusion and Order

The only disciplinary decision made by the employer was a decision to assign the appellant to a different role. That is not an appealable decision within the meaning of Ch 2, Pt 7 of the Act.
I therefore find for the respondent in respect of the Amended Notice of Motion filed 12 March 2019. The appropriate order is that the appeal be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2019

Transport Administration (Staff) Regulation 2012(NSW)

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