Green v Chief Executive, Attorney General's Department,

SAET has the jurisdiction conferred by this Act -

(a) to adjudicate on rights and liabilities arising out of employment; and

(b) in relation to industrial matters -

(i) to approve enterprise agreements regulating remuneration and other industrial matters; and

(ii) to make awards regulating remuneration and other industrial matters; and

(iii) to hear, determine and regulate any matter or thing arising from or relating to an industrial matter; and

(c) to settle and resolve industrial disputes.

A natural person may bring an application as of right if the application is authorised under some other provision of this Act but otherwise must establish to the satisfaction of SAET -

(a) that the claim arises out of a genuine industrial grievance; and

(b) that there is no other impartial grievance resolution process that is (or has been) reasonably available to the person.

(1) The person presiding at a compulsory conference may, after giving reasonable notice to the persons attending at the conference, refer the subject matter of the conference for determination by SAET (which may be constituted of the person who presided at the conference under this Part).

(2) A matter may be referred for determination by SAET under subsection (1) orally and without formality.

(3) An order of SAET on a reference under subsection (1) -

(a) is binding only on persons represented before SAET or summoned to appear at the conference; and

(b) if the parties to the industrial dispute are bound by an enterprise agreement, may not affect the terms of the agreement.

1. Sections 53(2) and 54(2) of the Public Sector Act 2009 (PS Act) limit the action that can be taken by a public sector agency in relation to a public sector employee. Section 53 provides:

(1) A public sector agency may reduce the remuneration level of an employee of the agency without the employee's consent on any of the following grounds:

(a) the employee is excess to the requirements of the agency at the higher remuneration level;

(b) the employee's physical or mental incapacity to perform duties satisfactorily at the higher remuneration level;

(c) the employee's unsatisfactory performance of duties at the higher remuneration level;

(d) the employee's misconduct;

(e) the employee's lack of an essential qualification for performing duties at the higher remuneration level.

(2) A public sector agency may not reduce an employee's remuneration level under subsection (1)(a) or (b) unless the agency has made reasonable endeavours to find, but has failed to find, other suitable duties in the agency, or other public sector employment (to which this Part applies), to which the employee might be assigned or transferred on conditions that maintain the employee's substantive remuneration level.

(3) If an employee's remuneration level is reduced under subsection (1)(a), the employee is entitled to supplementation of the employee's remuneration in accordance with the relevant provisions of an award or enterprise agreement or, if there is no award or enterprise agreement covering the matter, in accordance with a scheme prescribed by the regulations.

(4) The power to reduce an employee's remuneration level under this section includes (without limitation) power -

(a) to reduce an employee's remuneration level to a remuneration level from a classification structure, or different classification structure, fixed by a determination of the Commissioner under Part 4; and

(b) to reduce an employee's remuneration level to a remuneration level for a class of employees not subject to a determination of the Commissioner under Part 4; and

(c) to reduce an employee's remuneration level as a preliminary step to assigning or transferring the employee to other duties in the agency or other public sector employment (whether or not employment to which this Part applies).

(1) A public sector agency may terminate the employment of an employee of the agency on any of the following grounds:

(a) the employee is excess to the requirements of the agency;

(b) the employee's physical or mental incapacity to perform his or her duties satisfactorily;

(c) the employee's unsatisfactory performance of his or her duties;

(d) the employee's misconduct;

(e) the employee's lack of an essential qualification for performing his or her duties.

(2) The employment of an employee may not be terminated under subsection (1)(a) or (b) unless the public sector agency has made reasonable endeavours to find, but has failed to find, other suitable duties in the agency, or other public sector employment (to which this Part applies), to which the employee might be assigned or transferred on conditions that maintain the employee's substantive remuneration level.

(3) A public sector agency may not terminate the employment of an employee under subsection (1) on any ground unless the agency -

(a) has informed the Commissioner of the grounds on which it is proposed to terminate the employment of the employee and the processes leading up to the proposal to terminate; and

(b) has considered any advice given by the Commissioner within 14 days about the adequacy of the processes.

(1) This section applies if the Tribunal believes that a proceeding -

(a) is frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount; or

(b) is being used for an improper purpose; or

(c) is otherwise an abuse of process.

(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and may make any related or ancillary order.

(3) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

(4) If a proceeding is dismissed or struck out under this section, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a Presidential member.

1. Ms Green's grievance was referred for hearing by a Commissioner because the parties did not find a suitable role for Ms Green in a timely manner.
2. Ms Green lives in Port Lincoln and attended the pre-hearing conference by telephone. I explained to Ms Green that because she has not identified any contraventions of the FW Act or breaches of an industrial instrument that applies to her employment, I was not satisfied that this is a genuine industrial grievance within the meaning of s 17(2)(a) of the FW Act. Ms Green indicated disappointment with that view but advised that she would withdraw the grievance. The Department had foreshadowed bringing an application to strike out or dismiss the application under s 41 of the SAET Act, but did not do so after Ms Green advised that she would withdraw the application.
3. By letter dated 21 January 2025 Ms Green advised that she was withdrawing the application "under protest". I consider that those words indicate that the withdrawal is not voluntary. For that reason, I will treat the application as being pressed by Ms Green. The letter was not provided to the Department.

1. These reasons concern whether there is a genuine industrial grievance and whether the Tribunal can and should make an order that quells a dispute between the parties. As evidence has not been called, I make no findings in relation to the assertions made by the Department about Ms Green's performance or her assertions about being mistreated by the Department. It is not necessary to do so to decide the matter. Some of the interactions between the parties are set out to give some context to these reasons.
2. Ms Green resides in Port Lincoln and has been employed by the Department and its predecessors[1] since 2006. Ms Green was part of National Parks and Wildlife Service South Australia until she was reassigned to the Department's finance and business support team in 2019. The reassignment has resulted in a protracted disagreement and an impasse between Ms Green and the Department. At present Ms Green remains employed and is being paid but is not performing any work. The Department has looked for, but not placed Ms Green in, an alternative role.
3. The tenor of Ms Green's complaints about the Department are apparent in the many letters she has sent to the Tribunal and the Department. She has expressed significant concerns with the behaviour, attitude and actions of the Department towards her since 2019.
4. Ms Green was absent from work and in receipt of sick leave for the first three months of 2021. In September 2021 Ms Green was advised that she would be assigned to work in what she calls the fleet team. Ms Tamara Anderson has managed Ms Green since 27 September 2021. Ms Green is the only member of the fleet team not based in Adelaide. Ms Green asserts that the fleet team role is not suitable for her and is not commensurate with the skills and capabilities she has acquired since commencing with the Department in 2006. She claims that Ms Anderson has acknowledged that.
5. Ms Green and representatives of the Department attended a meeting on 10 July 2023. Ms Green advised the Department that she would attend the meeting remotely through Microsoft Teams and arranged for her treating psychologist to be present with her. After the meeting concluded a letter dated 10 July 2023 was sent to Ms Green from Ms Martha Savva, the Department's Director, Corporate Services with the heading: "Unsatisfactory Performance - Possible Adverse Action".
6. Mr Ben Bruce, Chief Executive of the Department, wrote to Ms Green by letter dated 15 August 2023. Mr Bruce adopted the findings, description of unsatisfactory performance and the possible adverse consequences to Ms Green contained in the 10 July 2023 letter. Ms Green was advised that she had to provide reasons why her employment should not be terminated. The 10 July 2023 letter states that Ms Anderson commenced an informal performance management process in relation to Ms Green on 15 November 2021. The Department commenced a formal performance management process in August 2022 which included documenting performance expectations and results.
7. The 10 July 2023 letter describes the Department's expectations and documents instances where it considered Ms Green had failed to meet those expectations. The list is extensive and includes some basic tasks.
8. As part of her response to the 10 July 2023 letter, Ms Green made a complaint about how the Department had treated her. The complaint was handed to Greg Marsh, Principal Consultant in the Department's industrial and employee relations arm. Mr Marsh appointed external consultants, Perks People Solutions, to conduct the investigation. The investigation commenced late in 2023 and was completed in the early part of 2024. Ms Green was critical of the outcome of the investigation, which found that the Department had not mistreated her. Ms Green stated that neither she nor her treating psychologist were interviewed. The Department arranged for Ms Green to be medically examined by Dr Mary O'Hare, psychiatrist, on 1 May 2024. A copy of Dr O'Hare's report has not been provided to the Tribunal by either party.
9. On 10 October 2023 Ms Green was directed by Mr Bruce to remain absent from duty. The direction has remained in place since that time.
10. In a letter to the chief executive of the Department dated 7 June 2024, Ms Green stated that she was unable to perform the fleet team role because of declining wellbeing and increased anxiety due to interactions with Ms Anderson and others. Ms Green stated that she did not make a workers compensation claim in 2021 because she was too scared to do so. In the 7 June 2024 letter, Ms Green complains about the Department isolating her and failing to provide her with payslips. She alleges a breach of s 536(1) of the Fair Work Act 2009 (Cth) in relation to the latter complaint. Ms Green also asserted in the 7 June 2024 letter that it became apparent to Mr Marsh and others at a compulsory conciliation conference that the fleet team role was not suitable and she should be transferred to another role.
11. On 11 June 2024 Mr Marsh emailed Ms Green and asked if she intended to provide any further medical evidence. Ms Green did not answer that question but raised various issues and complaints in her email in reply dated 13 June 2024.
12. On 15 August 2024 Mr Bruce corresponded with Ms Green and advised her that the Department was considering transferring her to alternate public sector employment.
13. In response, by letter dated 28 August 2024, Ms Green stated that she expected a "transfer to an alternate public sector position to be conducted fairly, without prejudice and in accordance with the Code of Conduct" for public sector employees. Ms Green also asked Mr Bruce what was a reasonable time frame in which for a transfer to occur.
14. Ms Green then sent a letter to Mr Bruce dated 29 August 2024 which sought a formal apology and "acknowledgement of the unwarranted behaviour perpetrated upon me over the last 5 years".
15. Mr Bruce responded by letter dated 4 September 2024 noting that Ms Green did not respond to his request that she advise whether she was prepared to relocate from Port Lincoln if suitable alternate duties were available elsewhere. Mr Bruce expressed reservations about Ms Green working remotely given the finding of persistent and unsatisfactory performance when she worked remotely as a business support officer. Mr Bruce stated that Ms Green appeared to have presumed that a transfer would occur and that may not be the case. Mr Bruce advised there is no prescribed period in which to find suitable duties under s 54(2) of the PS Act and that endeavours to find another role would continue for at least another three months. Mr Bruce advised that Ms Green could stay abreast of advertised roles by checking a government website. Mr Bruce advised that he did not intend to reinstate Ms Green's access to emails or the intranet as she remained subject to his direction to remain absent from duty. Mr Bruce advised that he did not intend to further respond to Ms Green's letter, meaning that he did not respond to the request for an apology or acknowledge the unwarranted behaviour Ms Green alleged.
16. By letter dated 13 September 2024 Ms Green advised Mr Bruce that she considered the Department had a responsibility to transfer her as she had done nothing wrong and had not breached the Code of Conduct. The letter contains many complaints.
17. In his letter of reply dated 20 September 2024 Mr Bruce stated that he had previously addressed the various events Ms Green felt aggrieved by and that the search for suitable duties continued.
18. Michelle Leigh, General Manager, Human Resources for the Department, wrote to Ms Green by letter dated 20 September 2024 and advised that there were then no other suitable duties within the Department. Ms Leigh advised that if a decision was made to transfer Ms Green to public sector employment outside of the Department, the relevant delegate of the other department had to agree to the transfer.
19. By order dated 25 September 2024, the Commissioner with conduct of this proceeding directed Ms Green to file and serve the orders that she sought by 23 October 2024. Ms Green responded by an email dated 2 October 2024 which sought some general advice. By further email dated 16 October 2024 Ms Green advised that she was not able to comply with the Commissioner's order because she had an appointment to see a lawyer on 21 October 2024.
20. After that, Mr Yau of the Crown Solicitor's Office corresponded with Ms Green on 25 October 2024 and asked whether she intended to file a document describing the orders that she sought. Mr Yau sent Ms Green a further letter dated 18 November 2024 seeking the following particulars:
    1. the relevant matters which give rise to the purported industrial dispute or grievance pursuant to Fair Work Act 1994 (FW Act) s 7;
    2. the matters which establish that your claim arises out of a genuine industrial grievance and that there is no other impartial grievance resolution process that is (or has been) reasonably available to you, such that you have standing to commence an application to SAET pursuant to FW act s 17(2); and
    3. the nature of the relief sought.
21. The 18 November 2024 letter advised Ms Green that if she did not seek an extension of time to file the orders sought, Mr Yau was instructed to file an interlocutory application seeking to dismiss the proceeding under s 41 of the SAET Act.
22. Ms Green responded to the 25 October 2024 letter by email dated 15 November 2024 stating that she was still seeking advice about the proceeding and that she sought an extension until 2 December 2024 to respond to the Commissioner's order. Time to comply was extended as requested by the Commissioner on 22 November 2024.
23. Ms Green provided a written response to the Commissioner on 2 December 2024. The letter reiterates many of the assertions and complaints made by Ms Green over the preceding five years, many of which are described above. After that, the letter states:

I request that DEW be ordered to provide a weekly list of all available positions within the department and/or the SA Public Service at my classification in Port Lincoln or that can be conducted remotely, so I can be certain that there are no positions that are being withheld from me in the process of my return to work. I also request that I be provided with weekly updates regarding the managers that DEW have contacted regarding positions to which I might be assigned or transferred and any and all feedback provided.

I expect the transfer to an alternate public sector position to be conducted fairly, without prejudice and in accordance with the Code of Conduct for South Australian Public Sector Employees.

I expect due consideration be given to a position commensurate with my skills, knowledge and experience developed in the Dept. since 2006 and a supervisor who comprehensibly understands their duty of care responsibilities.

I expect proper procedure to be followed with regard to my return to work and the deliberate and duplicitous representation of my employment to cease immediately. DEW has no justification to persist with this subjective narrative regarding my performance as attested to by two comprehensive medical reports.

I look forward to continuing my career in the SA Public Service and believe I have the skills, knowledge and experience that enable me to effectively contribute to the SA Public Service in the future.

1. Ms Green's letter of 21 January 2025 purporting to withdraw the proceeding reiterates her request to be provided with a list of all available positions within the Department and/or the SA public sector "at my classification in Port Lincoln or that can be conducted remotely". Ms Green also reiterated her request to be provided with weekly updates about the hiring managers that the Department contacts.

1. The expression "genuine industrial grievance" is not defined in the FW Act and there is not much authority in relation to what the expression as it appears in s 17(2)(a)f the FW Act means.
2. In Krasowski v Chief Executive, Department of Trade and Economic Development,[2] Hampton DP considered an application made under s 194(2) of the FW Act, which at the time provided that industrial powers could be exercised by the South Australian Industrial Relations Commission if there was a genuine industrial grievance:[3]

There is no definition of genuine industrial grievance in the Act. In my view these words should be given their ordinary and natural meaning having regard to the context in which they are found, namely an act dealing with employment and industrial relationships and directly related matters. The objects of the Act are also an important part of that context.[4]

"Genuine" imports the notion that the matter is legitimate and bona fide and in the present context that it can be properly characterised as being an industrial grievance. The meaning of "industrial" within the Act is in my view evident from the definitions within the Act and in particular, that of "industrial matter". In essence, the concept revolves around employment, the performance of work, and the rights, duties and privileges of parties in such relationships. "Grievance" means a cause for complaint.[5] In industrial relations parlance the term is often used interchangeably for the term "dispute" however it connotes an individual rather than a collective complaint.[6]

Accordingly, in my view the requirements of s 194(2)(a) of the Act will be met where the claim arises out of a bona fide and legitimate complaint or dispute concerning employment related rights, duties or privileges...

1. The order made by Hampton DP was modified somewhat on appeal,[7] but no criticism was made of that statement of principle.
2. In Teague v Department of Treasury and Finance,[8] in an application made in response to a directive that certain government employees had to be vaccinated against COVID-19, the respondent argued there was no genuine industrial grievance within the meaning of s 17(2) of the FW Act. Lieschke DP found that s 17(2) was satisfied as the directive prevented the applicant from performing work under the contract of employment.
3. In Hatchard & Ors v Chief Executive, Attorney General's Department (South Australian Metropolitan Fire Service),[9] the applicant gave notice of an industrial dispute or grievance in relation to a decision made by the SA Metropolitan Fire Service (MFS) to dissolve the 2019 station officer promotion process order of merit. The MFS sought to summarily dismiss the notification on the basis that what was sought was beyond jurisdiction. Rossi DPJ refused the summary dismissal application. His Honour held that it was "at least arguable that the applicants have raised matters within the definition of an 'industrial matter' for the purposes of the FW Act".[10]

1. At a pre-hearing conference on 15 January 2025 Mr Yau advised that he was instructed to press the application to dismiss the proceeding as foreshadowed in his letter of 18 November 2024. After I advised the parties that there appeared to be little if any utility in making the orders Ms Green sought, she indicated that she would withdraw the proceeding. However, as said, the withdrawal was qualified and not truly voluntary.
2. I considered whether to give the parties a further opportunity to address the merits of the application however there is no utility in allowing the issues to be reventilated as Ms Green's complaints are well documented and she has been asked to describe what she seeks and has done so. It is therefore appropriate to consider the basis on which the application is made and the Department's challenge to it. Before doing so, it is instructive to consider ss 53(2) and 54(2) of the PS Act because it appears that they have played and continue to play an important role in creating the impasse or stalemate that presently exists between the parties.
3. Section 54(2) of the PS Act prevents a public sector agency from terminating the employment of a public sector employee unless the agency has made reasonable endeavours to find, but has failed to find, other suitable duties or public sector employment for the employee. Further, the employee's substantive remuneration level must be maintained in any new role identified. In other words, the Department has to make a reasonable effort to see whether suitable alternative employment is available for Ms Green before it can terminate her employment.
4. Section 53(2) of the PS Act imposes a similar restriction to the one in s 54(2) in relation to reducing the remuneration level of a public sector employee.
5. Despite finding there has been persistent and unsatisfactory performance by Ms Green, and despite warning her several years ago that her employment may be terminated, the Department has not taken any action in relation to Ms Green's employment other than to direct her to remain away from the workplace. That is the impasse or stalemate described above.
6. Although what is sought by the application has varied over time, Ms Green's 2 December 2024 and 21 January 2025 letters are consistent with each other in describing what she seeks.
7. There is no utility in ordering that the Department must inform Ms Green of the suitable duties/employment options it considers for her. Imposing that requirement does not quell any substantive dispute between the parties or resolve the impasse. The website that Ms Green has been directed to by Mr Bruce contains details of available public sector jobs.[11] While Ms Green appears to want the Department to select a role for her, she is able to view the website and advise the Department of any role she wishes to pursue. That seems to me to be a better way to identify potential suitable roles because in that way, Ms Green is able to discard any role she does not consider suitable. That would seem sensible given Ms Green appears to not have advised the Department whether she is willing to consider a role that is not based in Port Lincoln.
8. In addition to those considerations, should the Department transfer Ms Green into another role or terminate the employment contract, Ms Green will be able to seek discovery of all documents concerning attempts made by the Department to find her other suitable duties or other public sector employment. Such documents are clearly of direct relevance. Further, discovery would satisfy the second request in Ms Green's 2 December 2024 letter, that she be given details of all the managers that the Department has contacted regarding positions to which Ms Green might be assigned or transferred and all feedback given by them, albeit not by way of a weekly update.
9. In short, the two things sought by the application can legitimately be sought should the Department take action in relation to Ms Green's employment adverse to her.
10. There are longstanding, unresolved employment issues between Ms Green and the Department and I am satisfied there is an industrial grievance in the relevant sense. However, granting what is sought by the application will not assist to resolve the grievance or those unresolved issues. There must be some utility in making orders sought.
11. While the application is not frivolous and was not brought vexatiously, it is lacking in substance and it involves a trivial matter. Ordering the Department to advise Ms Green of potential alternative roles it considers for her will not assist to resolve the serious issues and the impasse between her and the Department.
12. In Bass v Permanent Trustee Co Ltd,[12] the High Court said:[13]

The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy...

1. Bass concerns an appeal from a judgment of the Full Federal Court in which the court answered questions asked by the parties and made a declaration. The industrial context of this proceeding is different to that context, but the comment made by the High Court applies equally to the resolution of an industrial dispute or grievance. Making the orders sought here will not quell the controversy between the parties.
2. While I understand why Ms Green may feel mistreated, and may be justified in feeling so, there is no utility in ordering the Department to advise her of alternative public sector roles it considers suitable for her. Things may well change if Ms Green or the Department identify such a role, or an attempt is made to reduce Ms Green's remuneration or to terminate her employment. The present situation does not, however, warrant intervention.
3. Pursuant to s 41 of the SAET Act, the application is dismissed.

[1] Eyre Peninsula Natural Resources Management Board; Eyre Peninsula Landscape Board; Department for Water Land Biodiversity and Conservation; Department for Environment and Heritage; Department of Water and Natural Resources.

[2] [2005] SAIRComm 44.

[4] Including as a result of s 22 of the Acts Interpretation Act 1915 regarding the approach to be adopted where more than one interpretation is reasonably open.

[5] The Australian Concise Oxford Dictionary.

[6] See the many dispute and grievance resolution provisions in Awards and Enterprise Agreements as an example of this approach.

[7] Krasowski v Chief Executive, Department of Trade and Economic Development [2006] SAIRComm 3.

[8] [2022] SAET 29.

[9] [2024] SAET 69.

[12] [1999] HCA 9; (1999) 198 CLR 334.