The appellant, Ms Carly Grant, filed an application for public sector disciplinary appeal on 21 September 2023. The appellant in this proceeding works at the Service NSW Miranda Service Centre. She appeals against a decision contained in a letter dated 24 August 2023 to reduce her classification from clerk class 6 under the Service NSW Salaries Award to clerk grade 3/4 year 1, with effect from 8 June 2024.
She is currently on maternity leave and then I understand is to take some long service leave, hence the reason why her demotion will not take effect until later this year.
The demotion was the result of the respondent having determined that the appellant had engaged in misconduct under r 41A of the Government Sector Employment (General) Rules 2014 by not complying with the respondent's policies and procedures when she allegedly, without authorisation or legitimate business reason:
1. accessed CCTV footage of cameras positioned in the Centre Manager's office and the Centre leader zone of the Miranda Service Centre on 10 March 2023, between 4.48pm and 6.03pm; and
2. the Centre Manager's office on 16 March 2023, between 11.24am and 11.26am.
The matter came before me on 11 October 2023 for conciliation. Unfortunately, the matter was not able to be resolved, so on that day I made directions to prepare the matter for an arbitrated hearing and set the matter down for hearing on 22 and 23 February 2024.
The respondent, being the statutory employer of the appellant, has applied by notice of motion filed on 15 February 2024, that is, three business days before the hearing is due to commence, for an order pursuant to r 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW), for leave to be granted for Catherine Spinelli to give evidence in the proceedings by way of video link. The application is opposed by the appellant.
Given the proximity of the hearing, I listed the motion for return on 16 February 2024 at 10am. At that time the respondent moved on its motion and read the supporting affidavit affirmed by the respondent's solicitor, Kathleen Plowman, on 14 February 2024. It also tendered, for the purpose of demonstrating the nature of Ms Spinelli's evidence, Ms Spinelli's statements of 8 November 2023 and 13 February 2024, which have been filed in the proceedings.
The appellant tendered an email of Ms Rooney of the respondent's solicitor's office, to the appellant's solicitor, dated 12 February 2024, sent at 3.33pm, requesting consent to Ms Spinelli giving evidence by way of AVL as she "will be away on a long planned family holiday for the duration of the hearing next week and will be unavailable to attend the Commission in person to give evidence."
Before hearing from both parties, I indicated to them that I was available to hear the matter, or further hear the matter, the week after the scheduled hearing dates and, indeed, on other dates in April or May and the parties had some discussions in an endeavour to come to a consent position in respect of an adjournment of the hearing in order to accommodate Ms Spinelli. Those discussions were not fruitful.
[2]
The Respondent's Evidence and Submissions in support of the motion
Ms Plowman affirmed, on information and belief, that Ms Spinelli is unable to attend the hearing for the following reasons:
1. Ms Spinelli is currently on a period of parental leave;
2. Ms Spinelli is the mother and primary carer of a four-month-old child;
3. Ms Spinelli's child is exclusively breast fed and is fed by Ms Spinelli approximately every three to four hours during the day;
4. Ms Spinelli ordinarily resides with her child and parents in Chipping Norton in Sydney;
5. Ms Spinelli's father is aged 69 and her mother is aged 70;
6. on 8 January 2024 Ms Spinelli's father fell and ruptured his right quadriceps tendon for which he underwent quadriceps tendon repair surgery;
7. since being discharged from hospital on 9 January 2024, Ms Spinelli's father has had difficulty moving and requires the use of crutches and the assistance of other persons to move;
8. Ms Spinelli has been and continues to be her father's primary carer as her mother is unable to assume these responsibilities because she is generally fragile and unable to tolerate material stress as a result of a heart transplant;
9. during the period 19 February 2024 and 25 February 2024:
1. Ms Spinelli will be in Shoal Bay with her father, mother and four-month-old child, which has been planned for over six months; and
2. there is no other relative available to care for Ms Spinelli's child between 20 and 24 February 2024.
Ms Plowman annexed to her affidavit Ms Spinelli's father's hospital admission and discharge papers. They indicated that Ms Spinelli's father would need to wear a brace for six weeks.
Ms Plowman also deposed to the ability for Ms Spinelli to give evidence via audio visual link, including her ability to receive emails which would enable her to receive further documents to which she might be taken prior to or during the hearing.
No information is provided as to what steps Ms Spinelli intends to implement in order to give evidence without interruption or influence of others.
It appears from Ms Plowman's affidavit that Ms Spinelli first enquired of Ms Plowman whether she could attend the hearing by AVL on 8 February 2024. There is no evidence as to when Ms Spinelli was first informed that she would be required to give evidence on one or more days between 19 and 23 February 2024. However, as Ms Plowman affirmed and, indeed, the statement was tendered, Ms Spinelli made a statement on 8 November 2023 which was filed in support of the respondent's case on the same day and Mr White, who appeared for the respondent before me today, invited me to infer that Ms Spinelli would have been informed around that time that she may be required to attend to give evidence in the proceedings on the specified dates.
I note that any indication from a key witness of a reluctance or inability to attend to give evidence on the scheduled hearing dates may warrant the issue of a summons to give evidence to ensure attendance. The lack of any evidence as to when Ms Spinelli was advised of the hearing dates and the arrangements the respondent's solicitors made to ensure Ms Spinelli's attendance is a matter of some concern to me.
The importance of Ms Spinelli as a witness in the proceeding is a matter of some dispute between the parties. Her first statement is six pages long with 22 pages of annexures, her second statement is six and a half pages long with 41 pages of annexures. Mr White submitted that her evidence is largely contextual and is not critical to the issues in dispute as she did not conduct the investigation into the appellant's conduct and did not make the decision to demote her.
Mr Wells for the appellant, on the other hand, indicated that Ms Spinelli is a key witness as she was the appellant's manager and it is her conduct which gave the appellant a legitimate basis to access certain CCTV footage.
Ms Plowman attempted to obtain the appellant's consent to Ms Spinelli giving evidence by AVL on 12 February 2023, however such consent was not forthcoming. As indicated by the email tendered by the appellant, the only reason given on that day for the need for Ms Spinelli to give evidence by AVL was because she would be on holiday.
On 14 February 2024, Mr White conferred further with Ms Spinelli about her ability to travel to Sydney to attend to give evidence. However, Ms Spinelli confirmed she could not travel to Sydney because of her father's condition "and the other circumstances outlined" in Ms Plowman's affidavit. I understand those circumstances to be that:
1. Ms Spinelli and her family have planned a trip to Shoal Bay six months ago;
2. she is breast feeding her baby who requires feeding every three to four hours; and
3. no relative other than her mother and father are available to care for the baby between 20 and 24 February 2024, that is because she would be in Shoal Bay and not in Sydney.
Mr White submitted that the respondent would be prejudiced if the order is not granted as if Ms Spinelli is not permitted to give evidence by AVL she simply will not give evidence. However, he also submitted that Ms Spinelli's evidence largely goes to what the respondent regards as uncontroversial matters which are supported by documentary evidence or matters which go to context only and not to issues which are key in the dispute between the parties.
[3]
The Appellant's Evidence and Submissions against the Motion
As noted already, the appellant tendered an email from the respondent's solicitor to the appellant's solicitor in which the request was made for Ms Spinelli to give evidence by way of AVL. As I have already observed, that request referred only to the fact that Ms Spinelli was on holidays or would be on holidays.
Mr Wells for the appellant submitted that Ms Spinelli is a key witness as essentially, as a result of her conduct, both on and prior to 10 March 2023, the appellant had a legitimate reason to access the CCTV footage.
When I put to Mr Wells that if I did not make the order sought by the respondent Ms Spinelli may not give evidence at all, he submitted that in those circumstances the only just outcome was an adjournment of the proceedings and he formally applied for the matter to be adjourned to a date in April or May, to the convenience of counsel and the Commission. That course was opposed by the respondent, primarily on the basis that it was not consistent with a just, quick and cheap resolution of the proceedings.
The appellant is due to return to work on 8 June 2024 and Mr White submitted from the bar table that the respondent needs to make arrangements to place her in an appropriate position. The outcome of this proceeding will determine which position she is to assume.
Mr White also noted it was possible that the respondent would still not call Ms Spinelli as a witness because of her unavailability in the future or as a forensic decision, such that adjourning the proceeding would not necessarily resolve the issue.
Mr Wells also submitted that the evidence given by the respondent in support of the application did not rise to the level to justify the making of the order. He submitted that there was no evidence as to why Ms Spinelli's mother could not look after her father for a day, other than that she has had a heart transplant and there was no evidence why respite care could not be arranged for Ms Spinelli's father.
[4]
Relevant Principles
I set out in Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) [2023] NSWIRComm 1025, at [18] to [33], the principles applicable to the making of an order pursuant to r 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) which applies to proceedings in this Commission (see r 1.5 and Sch 1). It is unnecessary to repeat all that I outlined there. It suffices to record that I reiterate those remarks and my conclusion at [33] that:
33. Ultimately I consider that Murphy J's conclusion in Southernwood v Brambles at [44] best describes the appropriate approach to an application made pursuant to UCPR r 31.3(1) for evidence to be given by AVL, albeit that his Honour was applying the discretion given in s 47A(1) of the Federal Court Act), namely:
"(a) it is for the party seeking a favourable exercise of the discretion to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding; and
(b) there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations."
I note that the citation for the decision of his Honour Justice Murphy is Southern Wood v Brambles Limited (No 2) (2022) FCA at 923.
[5]
Consideration
It is apparent that there will be considerable contest between the parties as to the relevance of Ms Spinelli's conduct in the ultimate finding of misconduct against the appellant. That is not a contest I can or should resolve on this interlocutory application.
I note, however, that she is one of five witnesses to be called by the respondent and her statements are significant. She was the Centre Manager and she managed the appellant. A cursory reading of her statements and those of the appellant indicates there are considerable discrepancies between their accounts of the relevant events, or at least the events that surrounded the days upon which the appellant accessed the CCTV footage.
The resolution of those discrepancies, to the extent I need to resolve them, will depend in part on my assessment of each witness when giving oral evidence. I consider that in this matter, where there is clearly some animosity between Ms Spinelli and the appellant, that I have a far better prospect of resolving the disparate accounts by observing both witnesses giving evidence in person.
That said, both parties are to be represented by experienced counsel, which should limit any unfairness to the appellant that could arise from the remoteness of the witness, unlike the situation in Dey and Industrial Relations Secretary, where the applicant was unrepresented.
While Mr White stressed that the key reason for Ms Spinelli being unable to attend the hearing in person was because of her father's condition, I am not persuaded that is so, in circumstances where no mention of that was made in Ms Rooney's email of 12 February 2024 and where it seems arrangements could be made at least in respect of Ms Spinelli's baby for a relative or some other person to look after her baby in the week after the hearing, when Ms Spinelli could return to Sydney. Presumably, therefore, arrangements could also be made for someone to look after her father for a few hours as well. The real problem, it seems to me, is that Ms Spinelli will be in Shoal Bay next week.
As I have already observed, I am concerned about the lack of evidence as to when Ms Spinelli was advised of the hearing dates. Given her role in the events leading to the appellant's demotion, and the fact that two statements have been filed by the respondent in respect of those events, it ought to have been evident to the respondent and the respondent's representatives that she would be or would likely be a witness in the proceeding on or about 11 October 2023 when the matter failed to settle and I set it down for hearing.
It seems to me, therefore, there is two possible scenarios. The first is that Ms Spinelli was told of the hearing dates in or around October or November 2023, as Mr White invited me to infer, but failed to make arrangements to change her plans to travel to Shoal Bay and failed to inform the respondent's representatives that she would be unavailable during those dates.
There is, of course, another scenario and that is that she was not told of the dates until very recently. Either scenario is regrettable.
The appellant should not be prejudiced because of failures on the part of either Ms Spinelli or the respondent's representatives. As I have already observed, however, I am prepared to infer that the respondent's representatives did inform Ms Spinelli of the dates of the hearing some time in or around November 2023.
In those circumstances, I do not accept that because Ms Spinelli made plans to be in Shoal Bay next week some six months ago that this means she is unable to attend the hearing for this reason. Being required to be in Parramatta for one of the days next week will no doubt cause her aggravation and inconvenience, but it is not an impossible task.
I do not accept that the fact Ms Spinelli is breast feeding a four-month-old baby and is the primary carer for her injured father is a reason why she cannot attend to give evidence in person. Plainly enough, even if she gave evidence by AVL, while giving that evidence she cannot attend to either of those responsibilities.
The Commission would be prepared to adjourn the proceeding to enable Ms Spinelli to breast feed her baby while she is giving evidence, which I accept is an important task which only she can perform. I have confirmed that arrangements can be made at the Commission for Ms Spinelli to breast feed her baby in private if she wishes, as may be required.
In respect of her father, I am not satisfied on the evidence that Ms Spinelli is the only person available to look after her father in the condition in which he is in.
In deciding whether to grant the order sought, I must have regard to the provisions of s 56 and 57 of the Civil Procedure Act and may have regard to the matters set out in s 58(2)(b). In respect of the matters set out in s 58(2)(b): I consider:
1. that the matter has a degree of difficulty due to the competing factual accounts given by the primary witnesses, thus the factor listed in s 58(2)(b)(i) points against the granting of the order;
2. while I am satisfied that the respondent applied for an order that Ms Spinelli give evidence by AVL as soon as it was clear to the respondent's representatives that she was not readily able to give evidence in person, I am not satisfied, in the absence of evidence, that the reason the application was made so close to the commencement of the hearing is not wholly due to Ms Spinelli's own conduct, such that the respondent has met satisfactorily their obligation pursuant to s 56(3) and therefore the factors listed in s 58(2)(b)(ii), (iii) and (iv) point against the granting of the order;
3. the respondent's opposition to the appellant's invitation to have the proceedings adjourned also points against the granting of the order, consistent with the factor listed in s 58(2)(b)(v);
4. that the degree of injustice to the appellant in not being able to cross-examine Ms Spinelli in person is at the lower end of the scale, in circumstances where she is represented by experienced counsel, however, so too it seems is the injustice to the respondent if Ms Spinelli does not attend to give evidence, as Mr White submitted that while the respondent would be prejudiced, it would not be "highly prejudiced", given that Ms Spinelli, on the respondent's case, is not a key witness.
In any event, in the absence of evidence as to steps the respondent took to ensure Ms Spinelli's attendance, I cannot be satisfied that this is a situation that the respondent could not have prevented.
I am not satisfied that adjourning the proceedings is an appropriate or just outcome in circumstances where it may not in fact resolve the issue. This is particularly so where no enquiries were able to be made at short notice as to the availability of the numerous witnesses proposed to be called by both sides. There is a real risk that an adjournment of the proceedings could only exacerbate the availability of the necessary persons required, both witnesses and representatives, to conduct this proceeding.
The respondent has not made out a persuasive case for an order for Ms Spinelli to give evidence by way of AVL and I accordingly dismiss the respondent's notice of motion.
Janet McDonald
Commissioner
[6]
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: 20 February 2024